TaxTMI 
TaxTMI 
2019 (1) TMI 131
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....9;clear' vacancies and 11 anticipated vacancies in the post of Presiding Officer of DRT at various Benches including those at Jaipur and Aurangabad. Both Appellants were called for interviews by the Selection Committee which was presided over by a sitting Judge of the Supreme Court of India. These interviews took place on 30th March, 2016. Both Appellants were recommended by the Selection Committee for being appointed to the post of Presiding Officer DRT - the Appellant in LPA No. 52/2018 was recommended for the DRT at Jaipur and the Appellant in LPA No. 60/2018 for the DRT at Aurangabad. They were asked to communicate the willingness to accept the appointment which each of them did within the time stipulated. 3. While the Appellants were waiting for their respective letter of appointment, a fresh notification dated 29th September, 2016 was issued inviting applications for the posts of Presiding Officers at various DRTs including Jaipur and Aurangabad. This led to the Appellants making an inquiry about their non-appointment. 4. Thereafter, while the Appellant in LPA No. 52/2018 filed in WP(C) No. 10196/2016 in this Court the Appellant in LPA No. 60/2018 filed in WP(C) No.....
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....then examined the decisions relied upon by the Appellants viz., Union of India v. N. P. Dhamania 1995 Supp (1) SCC 1, Major General H.M. Singh v. Union of India [2014] 3 SCC 670, and of this Court in Sunil Alag v. Union of India [2015] 221 DLT 199 (DB) and observed as under: "6. Upon hearing and on perusal of file produced and decisions cited, I find that Supreme Court in N.P. Dhamania (supra) has emphatically declared that it is open to the Appointing Authority to differ with the recommendations made by the Selection Board, as the recommendation is advisory in nature and is not binding upon the Appointing Authority and there is no need for ACC to communicate the reasons for not making appointments. The aforesaid legal position has been noticed by Supreme Court in its later decision in Major General H.M. Singh (supra) but in the facts of the said case, Supreme Court has ruled that ACC ought to have considered the recommendation on merit and suitability of the candidate. A Division Bench of this Court in Sunil Alag (supra) has dwelt upon the aspect of overturning of expert opinion by bureaucratic input and decision of not to promote candidate as Scientist, was quashed. Supr....
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....0, is that the ACC has acted arbitrarily in differing from the view expressed by the Selection Committee, without giving any reasons. It is submitted that the ACC was bound to give reasons and further communicate those reasons to each of the Appellants. It is further submitted that it was incumbent on the learned Single Judge, who called for and perused the records, to have directed the Respondents to provide to both the Appellants the copies of the relevant record and the reasons for the rejection of their candidature. 12. Counsel for the Appellants further submitted that while according to the learned Single Judge the record disclosed that the report of the Intelligence Bureau (IB) was adverse, the Division Bench which heard the present appeals in its order dated 12th October, 2018, after perusing the same record expressed the view that the IB report in the case of both Appellants could not be termed as prima facie adverse. Since this was the only reason for rejection of a candidature, the Division Bench requested the ACC to reconsider the matter. The Appellant in LPA No. 52/2018, in addition to the submissions made by his counsel, stated that it is only from the impugned judg....
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....tioning of the DRTs the Supreme Court observed: "The manner in which a dispute is to be adjudicated upon is decided by the procedural laws which are enacted from time to time. It is because of the enactment of the Code of Civil Procedure that normally all disputes between the parties of a civil nature would be adjudicated upon by the civil courts. There is no absolute right in anyone to demand that his dispute is to be adjudicated upon only by a civil court. The decision of the Delhi High Court proceeds on the assumption that there is such a right. As we have already observed, it is by reason of the provisions of the Code of Civil Procedure that the civil courts had the right, prior to the enactment of the Debt Recovery Act, to decide the suits for recovery filed by the banks and financial institutions. This forum, namely, that of a civil court, now stands replaced by a banking tribunal in respect of the debts due to the bank. When in the Constitution Articles 323A and 323B contemplate establishment of a tribunal and that does not erode the independence of the judiciary, there is no reason to presume that the banking tribunals and the appellate tribunals so constituted wou....
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.... qualified to be, a District Judge." By an amendment to the DRT Act with effect from 26th May 2017, Section 6 A has been inserted which inter alia provides that the "qualifications, appointment, term of office, salaries, allowances..." of the Presiding Officer of the DRT after the commencement of Part XVI of Chapter VI of the Finance Act 2017 shall be governed by the provisions of Section 184 of that Act. However the proviso to Section 6 A clarifies that a Presiding Officer appointed prior thereto would continue to be governed by the DRT Act and the rules made thereunder. In the present case, it is not in dispute that the case of the Appellants would be governed by the DRT Act and the rules thereunder. 20. Rule 3 (1) of the DRT (Procedure for Appointment as Presiding Officer of the Tribunal), Rules 1998 ('Rules') states that for the purposes of the appointment to the post of a Presiding Officer, "there shall be a Selection Committee consisting of: "(i) The Chief Justice of India or a Judge of the Supreme Court of India as nominated by the Chief Justice of India; (ii) the Secretary to the Government of India in the Ministry of Finance (Depart....
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....ee makes its recommendation, it does not have the IB report before it. For the appointing authority, therefore, the input of the IB becomes the additional factor to consider before deciding on the appointment of the candidate. 24. In the present case, no doubt that the two Appellants were recommended by the Selection Committee on 30th March 2016 for appointment as Presiding Officers of the DRT. Their names were thereafter sent for verification to the IB. The IB reports along with the recommendation of the Selection Committee were thereafter placed before the ACC which comprises the Prime Minister of India (who is the Chairman of the ACC) and the Union Minister for Home Affairs in the first instance on 1st February 2017. The ACC on that date did not take a decision as to the appointments of the two Appellants. The ACC called for a fresh IB Report in respect of the two Appellants. Thereafter for the second time on 1st August 2017, the ACC considered the case of the two appellants along, in light of the fresh IB report and decided not to appoint them as Presiding Officers. This was then communicated to each of them by separate Om dated 8th August, 2017. 25. In examining the lega....
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....? Can a writ Court, only because it might differ with the ACC's response to the IB report, substitute its decision for that of the ACC? The answer is obviously in the negative. Even in the present case, when the Division Bench took a 'prima facie' view which was different from that of the Single Judge on the nature of the IB report, it remanded the matter to the ACC for a fresh consideration. That is indeed the outside limit of the scope of the writ jurisdiction. In the considered view of this Court, it is for the authority, in the statutory scheme governing such appointment, which has to take the final decision to appoint, to take a call on such IB report. The writ Court does not and cannot possibly, sit in appeal over that decision. Of course, there are instances where malice in law and/or in fact, demonstrated to exist to the satisfaction of the Court, might persuade the Court to interfere. However, as already noted, that is not the ground of challenge here. 29.1 This is of course not the first time that such issues have arisen before the Constitutional Courts. Reference may be made to one such instance in Union of India v. Kali Dass Batish (2006) 1 SCC 779, where....
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....sprove it by taking affidavits and the oral statement of the Advocate General at the Bar. We strongly disapprove of such action on the part of the High Court, particularly when it was pointed out to the High Court that, along with the proposals made by the Government, the Minister of State had specifically directed for submission of the IB report to the Chief Justice of India for seeking his concurrence, and that this was done. We note with regret that the High Court virtually sat in appeal, not only over the decision taken by the Government of India, but also over the decision taken by the Chief Justice of India, which it discarded by a side wind. In our view, the High Court seriously erred in doing so. Even assuming that the Secretary of the concerned department of the Government of India had not apprised himself of all necessary facts, one cannot assume or impute to a high constitutional authority, like the Chief Justice of India, such procedural or substantive error. The argument made at the Bar that the Chief Justice of India might not have been supplied with the necessary inputs has no merit. If Parliament has reposed faith in the Chief Justice of India as the paterfamilias o....
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....or promotion to a higher level post. 30.2 Be that as it may, in N.P. Dhamania (supra) the ACC chose to differ from the recommendations of the DPC "without assigning any reason". As noted in para 14 of the decision "the counsel for the Union of India was unable to produce any material to show that the reasons have been assigned for differing from the DPC." The Supreme Court therefore felt that the name of the Respondent in that case 'cannot be arbitrarily dropped'. Further in para 20, it was noted: "If the file had contained reasons something could be said in favour of the appellant. But, that is not the case here. Then the question would be whether the reasons recorded are required to be communicated to the officer concerned. Our answer is in the negative. There is no need to communicate those reasons. When challenged it is always open to the authority concerned to produce the necessary records before the court." 30.3 The two propositions that emerge from the above decision in N.P. Dhamania (supra) are that (i) there is no requirement for the ACC to communicate to the persons concerned the reasons why it was differing from the recommendations of the DPC and (....