SARWAN SINGH LAMBA AND ORS. ETC. ETC.versusUNION OF INDIA AND ORS.

              SARWAN SINGH LAMBA AND ORS. ETC. ETC.                                 A
                                         v.
                         UNION OF INDIA AND ORS.

                                  MAY 12, 1995

              [A.M. AHMADI, 0, J.S. VERMA, P.B. SAWANT,                             B
                B.P. JEEVAN REDDY AND N.P. SINGH, JJ.]

          Administrative Tiibztnals Act 1985-S.6(7)-Appointments of Members
    of Madhya Pradesh State Administrative Tribunal-Appointments approved
    by Chief Justice of India prior to communication to State Govemment of          C
    constitution of Selection Committe~Held, appointments valid; approval
    granted by Chief Justice of India cannot be set at naught.

           Administrative Law-Malice in /aw-Appointment of Vice-Chainnan
    of Madhya Pradesh State Administrative Tribunal-Chief Secretary forward-
    ing file proposing his name to Chief Minister without comment-Name of           D
    Chief Secretary proposed by Chief Minister and approved by Law Secretary
    and Chief Justice of High Court-Held, appointment neither fraudulent nor
    vitiated; merely forwarding file not to be construed as influencing
    decision-Constitution of India, Article 166(3)-Ru/es of Business.
                                                                                    E
           Administrative Tribunals Act 1985-S.6(7) as amended by A!;t 51 of
    1987-Appointments of Chainnan, Vice-Chainnan and Members. of Ad-
    ministrative Tribunal-Supreme Court in Sampath Kumar's Case directing
    setting up of High Powered Selection Committe~Amendment however
    providing only for appointment in consultation with Chief Justice of
    India-Whether direction mandatory and amendment contrary thereto in-            F
    valid-Held, the direction was merely advisory; further held, since govemment


-   has set up selection committees, question of validity academic-Constitution
    of India, Article 141.

         Administrative Law-Natural Justic~hallenge to appointments of
    Vice Chainnan and members of Madhya Pradesh State Administrative
                                                                                    G

    Tribunal-High Court pernsing files after conclusion of hearing in the absence
    of appointees-High Court drawing adverse inference against appoin-
    tees-Held, violative of natural justic~onstitution of India, Article 226.

          Public Interest Litigation-Locus Standi-l'etitioner~ apprehending that H
                                        427
    428                  SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A Tribunal may vacate stay gramed earlier of their repauiation approaching
    High Cowt questioning composition of Tribunal-ffe/d : petition motivated
    to derive personal benefit and paralyse working of T1ibunal; exemplary costs
    awarded-Costs.

B       In S.P.Sampath Kumar v. Union of India, [1987) 1 SCC 124 ('S.P.
  Sampath Kumar I'), this Court gave certain directions to the Union of
  India to introduce legislative changes to cure the defects in the procedure
  for appointment of Chairman, Vice-Chairman and Members of the State
  and Central Administrative Tribunals constituted under the Administra-
  tive Tribunals Act, 1985 ('Act'). While Ranganath Misra J. suggested that
C where the selection was not of a sitting or retired High Court judge, it
  should be by a high powered committed chaired by a sitting Supreme
  Court Judge, Bhagwati CJI suggested a further alternative of prior con-
  sultation with the Chief Justice of India. In a snbsequent Order in S.P.
  Sampath Kumar v. Union of India, [1987) Supp. SCC 734 ('S.P. Sampath
D Kumar II'), this Court opined that in case of recruitment to the Central
                                                                                   --
  Administrative Tribunal, the committee was to be headed by a sitting
  Supreme Court judge nominated by the Chief Justice of India and for
  recruitment to the State Administrative Tribunals the committee was to
  be headed by a sitting High Court judge nominated by the Chief Justice of
  the concerned High Court. Thereafter by amendment Act No. 51 of 1987,
E S.6(7) of the Act was substituted to provide for prior consultation with the
  Chief Justice of India in the matter of appointments of Chairman, Vice-
  Chairman and members of the Tribunals.

          The Government of India on April 15, 1991 appointed a Selection
F Committee comprising the Chief Justice of the High Court, the Chief
  Secretary and the Law Secretary for appointments to the respective State
  Tribunals but communicated this to the State Government only by letter
  dated April 19, 1991. In the meanwhile the appointments of SSL, NNV,
  RMR and GSP as members of the Madhya Pradesh State Administrative
  Tribunal ('Tribunal'), were approved by the Chief Justice of India on April
G 18, 1991. In the case of RPK who was appointed as Vice-Chairman, he as
  Chief Secretary forwarded, in accordance with the Rules of Business, the
  file proposing his name without his own comment to the Chief Minister
  who on April 27, 1991 accepted it and returned the file to the Secretary,
  General Administration Department. After the Secretary, GAD had noted
H on the file that the proposal had to be sent to the Selection Committee and
                            SARWANSINGHLAMBAv. U.0.1.                          429

         further that the Chief Secretary himself being the candidate could not be    A
         associated with it, the Law Secretary recorded his_ approval and presented
         the file to the Chief Justice who gave his approval to the appointment or
         RPK.

                Three police officers who had initially approached the High Court
         and obtained an interim stay or their repatriation to their parent depart- B
         ment, subsequently filed a public interest litigation challenging the con-
         stitution of the Tribunal when their case was transferred to it as they
         apprehended that the stay order would get vacated, They sought writs or
         quo warranto to quash the appointments of RPK as Vice-Chairman and
         or SSL, NNV, RMR and GSP as members of the Tribunal.                         c
               The High Court held that the decision in S.P.Sampath Kumar I
         required the appointment or a high powered committee and the mere fact
         that the Chief Justice of India had approved the appointments or the
         members would not render them valid. It held the entire procedure or
         appointment to be fraudulent since S.6(7) was not amended as per the D
.--...   direction in S.P. Sampath Kumar II and further the candidates were not
         selected by the Selection Committee. Perusing the files after the hearing
         concluded, the High Court, without giving them an opportunity to explain
         the notings, concluded that RPK and GSP used their inflnence as Chief
         Secretary and Law Secretary to get themselves appointed to the Tribunal. E
         The High Court quashed the appointments or the Vice-Chairman and the
         Members who then appealed to this Court.

              Allowing the appeals, this Court

              HELD : 1. There was no violation or any law in the process or the       F
         appointments or the members. The appointments had already _been ap-
         proved by the Chief Justice of India before the appointment or the Selec-
         tion Committee was communicated to the State Government. The approval
         granted by the Chief Justice or India could not be set at naught and the
         whole process or selection redone. Failure to process the appointments G
...      through the Selection Committee would not mean non-compliance with any
         order or this Court or or any statutory provision. [442-A, 441-E)

              2.1. The finding of ihe High Court that the appointment or RPK and
         GSP were vitiated because their appointments were the result or their own
         machination cannot be upheld. Nor could it be said that their appoint- H
    430                   SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A ments were fraudulent or otherwise vitiated. [442-H]
        2.2. Merely because the Chief Secretary forwarded the file to the Chief
  Minister which he was required to do as per the extant Rules of Business
  that ought not to be construed as an act to influence the decision of the
  aforesaid functionaries. The High Court read too much in this act of the
B Chief Secretary in describing the ultimate appointment as fraudulent.
                                                                       (445-C]
          3.1. The judgment in 'S.P. Sampath Kumar I clearly indicates that the
    direction for setting up a High Powered Selection Committee was merely
    advisory and not mandatory in character. Even in the orders passed on the
C   review petitions no observations against appointments after consultation
    with the Chief Justice of India was made. (438-B-D]

        S.P. Sampath Kumar v. Union of India, (1987] 1 SCC 124 and S.P.
    Sampath Kumar v. Union of India, (1987] Supp. SCC 734, explained.

D          3.2. Normally even an obiter dictum is expected to be obeyed and
    followed. Further discussion whether non-compliance with the direction
    regarding the High Powered Selection Committee vitiates the amendment
    would be purely academic for the simple reason that without amending
    S.6(7) the dicta of the Court has in fact been made effective by the appoint-
    ment of High Powered Selection Committees both at the Central and State
E   levels with minor modifications. [439-F]

          4. The High Court inspected the files and drew its own conclusion
    on the basis of the notings without giving the parties against whom the
    inferences were drawn, any opportunity to explain the same. This was
F   clearly in violation of the basic rule of natural justice. [443-C]

         5. The petitions filed by the three police Inspectors were, to say the
  least, motivated with a view to deriving personal benefits and not in public
  interest. The idea was to paralyse the Tribunal and prevent it from hearing
  their petitions. They must each be saddled with exemplary costs of Rs.
G 15,000. (445-G-H, 446-A]
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5061 of
    1993 Etc. Etc.

         From the Judgment and Order dated 9.7.93 of the Madhya Pradesh
H   High Court in M.P. No. 1102 of 1991.
                      SARWANSINGHLAMBAv. U.0.1.[AHMADl,J.]                      431

            Altaf Ahmad, Additional Solicitor General, N.N. Goswamy, K.K. A
       Venugopal, S.R. Bhat, N.R. Nath, Mohan Pandey, S.S. Ali, G. Prakash,
       V.K. Agarwal, Ms. Anil Katiyar, A.K. Srivastava, T.V. Ratnam, Y.P.
       Mahajan, C.V.S. Rao, S.K. Agnihotri, Ashok K. Singh, K.V. Viswanathan
       and Shahid Rizvi for the appearing parties.

             In-Person in C.A. No. 5062/93 for the appellant.                          B

             The Judgment of the Court was delivered by

              AHMADI, CJI. This group of cases arise out of the judgment/order
       dated 29.7.1993 in Miscellaneous Petition No. 1102/91 passed by High            C
        Court of Madhya Pradesh (Indore Bench). The three petitioners before
       the High Court were working on the post of Inspectors in the Police
       Department of Madhya Pradesh. They sought to challenge the Constitution
,_,.   of the State Administrative Tribunal (in short 'SAT') as well as the appoint-
        ments of the Vice-Chairman and Members of the Tribunal as the Govern-
       ment had not complied with the direction of this Court given in the case        D
       of S.P. Sampath Kumar v. Union of India, [1987] 1 SCC 124 = AIR (1987)
 ·-    SC 386 to amend the Administrative Tribunals Act, 1985 (hereinafter
       alluded to as 'the Act') as suggested by it and had not made the appoint-
        ments after selection by a High Powered Selection Committee as·direction
       by the court. They stated that they could not obtain a copy of the appoint-     E
       ment letter of the aforesaid persons. They prayed for Writ of Quo War-
       ranto to show under what authority they were functioning and for a
       declaration that the constitution of SAT was null and void. The respon-
       dents Nos. 3 to 6 were Members of the SAT and respondent No. 7 was its
       Vice-Chairman. The respondent Nos. 1 to 2 were the Union of India and
       the State of Madhya Pradesh, respectively. The High Court quashed the           F
       appointments of the respondents nos. 3 to 7 by the impugned judgment
       dated 29.7.1993. The respondents Nos. 3 to 6 jointly challenge the judgment
•      in Civil Appeal No. 5061 of 1993. The appeal filed by the respondent No .
       7 is Civil Appeal No. 5062 of 1993. The Union of India also challenges the
       judgment in Civil Appeal No. 7486 of 1993. The Industrial & Labour Bar          G
       Association, Bhopal and another who claim to have been intervenors
       before the High Court have come up with a Special Leave Petition (civil)
       No. 17232 of 1993. We grant them Special Leave.

            Shri R.P. Kapoor, whose appointment as Vice-Chairman and S/Shri
       Dr. Narinder Nath Veermani, R.M. Rajwade, G.S. Patel and S.S. Lamba H



                  '
    432                   SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A whose appointments as Members were set aside by the High Court are
    referred to in this judgment as the appellants whereas the three police
    officers who filed the writ petition before the High Court are being referred
    to as the original petitioners.

B          The main reason for setting aside the appointments was the alleged
    failure on the part of the Government to select the candidates for the posts
    of members and Vice-Chairman of the Tribunal through a High Powered
    Selection Committee as directed by this Court in S.P. Sampath Kumar's
    case (supra) and in the review petitions filed subsequently, vide (1987)
    Supp. SCC 734 and 735. By the judgment in S.P. Sampath Kumar's case
C   (supra) certain directions were issued to the Union of India to introduce
    legislative changes to cure the defects in the procedure for appointment of
    the Chairman, Vice-Chairman and Members of the Tribunal. An amend-
    ment was made in Section 6 of the Act purportedly in compliance with the
    direction of this Court. The High Court of Madhya Pradesh has held that
D   the amendment was not in conformity with the direction of this Court and
    did not suffice to ensure the validity of the appointments challenged in the
    writ petition before it. The appeals were heard by a bench of this Court
    consisting of M.M. Punchhi, S.C. Agrawal, B.P. Jeevan Reddy, JJ by an
    order dated 3.5.1994 the court referred the matters to the Constitution
    Bench on the observation that they raised questions of general importance
E   involving the interpretation of the provisions of Section 6 as amended by
    Act 51 of 1987 as well as the validity of the appointments made in
    accordance with the said provisions and that the issues affect the constitu-
    tion of the CAT and the SAT.

F         On the pleadings and submissions made before the High Court, the
  points arising for determination came to be formulated in paragraph 7 of
  the judgment. These comprised preliminary objections as to (i) bar of
  jurisdiction in view of Section 28 of the Act (ii) propriety of entertaining
  such a petition by disgruntled litigants in the guise of public interest
  litigation and (iii) locus standi of the petitioners. The other technical
G objection raised was in regard to the scope of a petition seeking a writ of
  quo warranto. None of these objections was pressed before us. The High
  Court next considered the ambit and import of the observations made by
  this Court in S.P. Sampath Kumar's case and in the subsequent orders
  emanating from that decision. Based on the import of the said observations
H the High Court went into the question whether the appointments of the
             SARWANSINGHLAMBAv. U.0.1.(AHMADI,J.]                           433

Vice-Chairman and Members were validily made. The High Court on                    A
appreciation of the decision in S.P. Sampath Kumar and related cases came
to the conclusion that the appointment of a High Powered Committee was
a sine qua non under the said decisions and the mere fact that the Chief
Justice of India had approved the appointments on the administrative side
would not render the appointment valid. Detailing the procedure followed           B
in the matter of selection, the High Court after referring to the notings in
the department file held the same to be arbitrary and discriminatory and
even went to the length of describing the same as 'murky', 'self-motivated'
and 'biased' and in total violation of the procedure prescribed by the
Government of India under its order of 15th April, 1991 and consequently
quashed the appointments. The petitions were allowed with cost quantified          C
at Rs. 2,500.

       The main question is whether the mode of selection and appointment
of the Chairman, Vice-Chairman and Members of the Tribunal as
prescribed by the amendment of 1987 is valid? The Amendment Act of                 D
1987 followed the judgment of this Court in S.P. Sampat/1 Kumar's case
(supra) in which certain infirmities were pointed out in the Administrative
Tribunals Act, 1985, (hereinafter referred to as 'the Act') and certain
directions were given for introducing legislation to cure those defects.
What this Court was required to consider in that case was whether con-
stitution of the Administrative Tribunals under the Act, which excluded the        E
jurisdiction of the High Courts, was inconsistent with the concept of
judicial review, a basic feature of the constitution. Recalling the law laid
down in Mine1va Mills Ltd. v. Union of India, AIR (1980) SC 1789,
Bhagwati, J., said:
                                                                                   F
        "...judicial review is a basic and essential feature of the constitution
        and it cannot be abrogated without affecting the basic structure of
        the Constitution and it is equally clear from the san1e decision that
        though judicial review cannot be altogether abrogated by Parlia-
        ment by amending the Constitution in exercise of its constituent           G
        power, Parliament can certainly, without in any way violating the
        basic structure doctrine, set up effective alternative institutional
        mechanisms or arrangements for judicial review. The basic and
        essential feature of judicial review cannot be dispensed with but it
        would be within the competence of Parliament to amend the
        Constitution so as to substitute in place of the High Court, another       H
    434                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A           alternative institutional mechanism or arrangement for judicial
            review, provided it is no less efficacious than the High Court...."

          Referring to Article 323A, the learned Judge observed:

            "If this constitutional amendment were to permit a law made under
B           clause (1) of Article 323 A to exclude the jurisdiction of the High
            Court under Articles 226 and 227 without setting up an effective
            alternative institutional mechanism or arrangement for judicial
            review, it would be violative of the basic structure doctrine and
            hence outside the constituent power of Parliament. It must, there-
c           fore, be read as implicit in this constitutional amendment that the
            law excluding the jurisdiction of the High Court under Article 226
            and 227 permissible under it must not leave a void but it must set
            up another effective institutional mechanism or authority and vest
            the power of judicial review in it. Consequently, the impugned Act
            excluding the jurisdiction of the High Court under Articles 226
D           and 227 in respect of service matters and vesting such jurisdiction
            in the Administrative Tribunal can pass the test of constitutionality
            as being within the ambit and coverage of clause (2)( d) of Article
            323A, only if it can be shown that the Administrative Tribunals set
            up under the impugned Act is equally efficacious as the High Court
E           so far as the power of judicial review over service matter is
            concerned. We must, therefore, address ourselves to the question
            whether the Administrative Tribunal established under the im-
            pugned Act can be regarded as equally effective and efficacious
            in exercising the power of judicial review as the High Court acting
            under Articles 226 and 227 of the Constitution."
F
          The majority judgment in S.P. Sampath Kumar's case (supra)
    delivered by Misra, J. also expressed the same view in these words :

            "What, however, has to be kept in view is that the Tribunal should
            be a real substitute for the High Court - not only in form and de
G
            jure but in content and de facto. As was pointed out in Minerva
            Mills AIR (1980) SC 1789 the alternative arrangement has to be
            effective and efficient as also capable of upholding the constitu-
            tional limitation."

H         The next step was to consider how to ensure that the Tribunal was
             SARWAN SINGH LAMBA v. U.0.1. [AHMADI, J.]                  435

a 'real substitute' of the High Court. It was observed that the things to be A
examined were whether the judges of the Tribunal were equally effi-
cient/trained and equally independent as those of the High Court. Said
Misra, J.:-

        "Disciplined, independent and trained judges well versed in law        B
        and working with all openness in an unattached and objective
        manner have ensured dispensation of justice over the years. Ag-
        grieved people approach the court - the social mechanism to act
        as the arbiter - not under legal obligation but under the belief and
        faith that justice shall be done to them and the State's authorities
        would implement the decision of the Court. It is, therefore, of        C
        paramount importance that the substitute institution - the Tribunal
        - must be a worthy successor of the High Court in all respects.
        That is exactly what this Court intended to convey when it spoke
        of an alternative mechanism in Minerva Mill's case. 11
                                                                               D
      The Court then proceeded to examine the competence and inde-
pendence of the Members, Vice-Chairman and Chairman of the Tribunal.
The Court struck down Section 6(1)(c) of the Act which prescribed that a
person who for atleast two years held the post of a Secretary to the
Government of India or other equivalent post will also qualify to be the
Chairman of the Tribunal. This has no bearing on the facts of the present      E
case. What is relevant for us is how the court viewed the question so as to
ensure independence of the Members as well as of the Chairman and Vice-
Chairman of the Tribunal. The Act already had a provision that the judicial
members would be appointed only in consultation with the Chief justice of
India but for the Administrative Members as well as for the Chairman and       F
Vice-Chairman no such provision was made, thereby giving unfettered
discretion to the Government to make such appointments. It is in this
context that the court laid down the mode of their selection. To quote from
the judgment of Misra, J:-

        "We do not want to say anything about Vice-Chairman and mem- G
        bers dealt with in snb-sections (2), (3) or (3A) because so far as
        their selection is concerned we are of the view.that such selection
        when it is not of a sitting judge or retired judge of a High Court
        should be done by a high powered committee with a sitting judge
        of the Supreme Court to be nominated by the Chief Justice of H
    436                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A           India as its Chairman. This will ensure selection of proper and
            competent people to man these high offices of trust and help to
            build up reputation and acceptability."

          The Court desired amendments to bring the provisions in accordance
    with the observations made in the judgment and hoped that the amend-
B   ments would be brought about by 31.3.1987.

          Bhagwati, J. in his judgment considered the method of appointment
    of the Judge of the High Court, i.e. appointment by the Government in
    consultation \vith the Chief Justice of India and observed:-
c           "Obviously, therefore, if the Administrative Tribunal is created in
            substitution of the High Court and the jurisdiction of the High
            Court under Articles 226 and 227 is taken away and vested in the
            Administrative Tribunal, the same independence from the pos-
            sibility of executive pressure or influence must also be ensured to
D           the Chairman and members of the Administrative Tribunal. Or
            else the Administrative Tribunal would cease to be equally effec-
            tive and efficacious substitute for the High Court and the
            provisions of the impugned Act would be rendered invalid. I am,
            therefore, of the view that the appointment of Chairman, Vice-
            Chairman and Administrative members should be made by the
E
            concerned Government only after consultation with the Chief
            Justice of India and such consultation must be meaningful and
            effective .... n.

          The method suggested by Misra, J. was also accepted by Bhagwati,
F   J. as an alternative for ensuring independence of the Chairman, Vice-
    Chairman and Members of the Administrative Tribunals but with a little
    modification. Bhagwati, J. advisee\ setting up of a High Powered Selection
    Committee "headed by the Chief Justice of India, or a sitting judge of the
    Supreme Court or concerned High Court nominated by the Chief Justice
G   of India." Said the learned Judge:

            "Both these modes of appointment will ensure selection of proper
            and competent persons to man the Administrative Tribunal and
            give it prestige and reputation which would inspire confidence in
            the public mind in regard to the competence, objectivity and
H           impariality of those manning the Administrative Tribunal. If either
               SAR WAN SINGH LAMBA v. U.0.1. [AHMADI, J.]                  437

          of these two modes of appointment is adopted, it would save the         A
          impugned Act from invalidation. Otherwise, it will be outside the
          scope of the power conferred on Parliament under Article 323-A.
          I would, however hasten to add that the judgment will operate only
          prospectively and will not invalidate appointments already made
          to the Administrative Tribunal."
                                                                                  B
       The amendment that has been brought about in Section 6(7) by Act
 51 of 1987 is to the effect that the appointments to the post of Chairman,
 Vice-Chairman and Members shall not be made except after consultation
 with the Chief Justice of India.
                                                                                  c
        It needs to be mentioned here that the Central Government, in view
 of the discrepancy in the views expressed by the two learned judges, sought
 clarification by filing a review petition which was decided by an order dated
 5.5.1987 reported in [1987] Supp. SCC 734. The Court ordered:
                                                                                  D
          "Having considered the matter carefully we are of the opinion that
          in the case of recruitment to the Central Administrative Tribunal
          the appropriate course would be to appoint a High Powered
          Selection Committee headed by a sitting Judge of the Supreme
          Court to be nominated by the Chief Justice of India, while in the
          case of recruitment to the State Administrative Tribunals, the High     E
          Powered Selection Committee should be headed by a sitting Judge
          of the High Court to be nominated by the Chief Justice of the High
          Court concerned. 11

        The Central Government yet again filed review petitions nos. 520- 23      F
  of 1987 seeking modification of the court's order to the effect that consult-
  ation with the Chief Justice of India alone be prescribed as sufficient
· because selection by a High Powered Selection Committee was likely to be
  time consuming. The review petitions also prayed for extension of time for
  bringing about the amendments. It appears from the order reported in
  [1987] Supp. SCC 737 that the court did not make any order on the prayer        G
  for modification of the order although it granted extension of time prayed
  for. Two questions that confront us at this stage are:

        (a) Whether the direction to set up a High Powered Selection
            Committee was mandatory or simply advisory in nature; and H
    438                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A         (b) Whether non compliance of the direction in malcing the amend-
              ment vitiates the amendment;

        The judgment, carefully read, clearly indicates that the direction for
  setting up a High Powered Selection Committee was merely advisory and
B not mandatory in character. The Act originally provided that the judicial
  members were to be appointed after consultation with the Chief Justice of
  India. Neither Bhagwati, J. nor Misra, J. has found fault with it. Bhagwati,
  J. indicated that since there is no such provision for the selection/appoint-
  ment of the Chairman, Vice-Chairman and Administrative Members, there
  was a risk that they would not be independent of executive influence.
C Hence Bhagwati, J suggested that the Chairman, Vice-Chairman and Ad-
  ministrative Members should also be appointed only after consultation with
  the Chief justice of India. Misra, J. suggested appointment of the High
  Powered Selection Committee for all including the judicial members
  without indicating why selection after consultation with the Chief Justice
D of India was not acceptable. Obviously, Misra, J. did not discard the
  method of selection of judicial members after consultation with the Chief
  Justice of India. Nor did Bhagwati, J. Even in the order passed on the
  review petitions no observation against appointments after consultation
  with the Chief Justice of India was made.

E        The Court was confronted with the problem of ensuring inde-
   pendence of the personnel of the Tribunal. There could be several ways of
   ensuring such independence. Bhagwati, J. mentioned two such methods
   while Misra, J. advocated one. In the review petition again the Court
   altered the constitution of the High Powered Selection Committee by
F  saying that it should be headed by a Supreme Court Judge when selecting
   the members of the Central Administrative Tribunal but by a High Court
   judge when selecting the members of the State Administrative Tribunals.
   Coming to selection of the Members of the High Powered Selection
   Committee itself, the Court did not make any suggestion or order. It cannot
G be disputed that many other methods for selection to ensure independence
   of the personnel of the Tribunal could be suggested. The Court itself
  ,considered some of the possible modes and preferred the one mentioned
   in the order in review reported in (1987] Supp. SCC 734. In the subsequent
   review petition in which the Government again wanted only consultation
   with the Chief Justice of India to be accepted as the method of selection
H of the candidates the Court did not reiterate the previous decision. Nor
             SAR WAN SINGH LAMBAv. U.0.1. [AHMADI,J.]                  439

did it say that the appointment after consultation with the Chief justice of A
India was not acceptable. It ordered as under :

        "In view of what has been stated before us by the learned Attorney
        General of India, we extend the time granted to the Union of India
        upto January 31, 1988 for introducing necessary changes in the        B
        statute through legislative enactment in Parliament or by issuing a
        Presidential Ordinance. We trust it will not be necessary now for
        the Union of India to seek any further extension of time as this
        matter has been pending for a long time. The civil miscellaneous
        petitions are disposed of aecordingly."
                                                                              c
       On behalf of the Union of India it is submitted that the previous
order regarding the High Powered Selection Committee stood modified by
this order and the Government accordingly introduced the Amending Act
only to make provision for consultation with the Chief Justice of India.
Although it cannot be said that the prayer of the Union of India to D
introduce the provision to consult the Chief Justice of India in preference
to the High Powered Selection Committee was allowed by the court, it can
be perceived that the court itself did not reject the prayer or reiterate the
previous suggestion. That means the view expressed in the order dated
5.5.1987 stood unaltered.
                                                                              E
       Now we come to the next question, viz., whether non-compliance
with the direction regarding the High Powered Selection Committee
vitiates the amendment. Normally even an obiter dictum expected to be
obeyed and followed. In our view further discussion would be purely
academic for the simple reason that without amending Section 6(7) the         F
dicta of the Court has in fact been made effective by the appointment of
High Powered Selection Committees both at the Central level as well as
the State levels with minor modifications. Since these Committees are now
expected to make the choice of candidates whose names may be recom-
mended to the Chief Justice of India for final approval, the order of
5.5.1987 is fully complied with. Of course, names may be suggested to the     G
Committee by any source but the ultimate decision has to be taken by the
Committee and if the Chief justice of India is not personally heading the
Committee, the final decision would have to be taken by him on the
recommendation of the Committee. It would, thus, be seen that without
amending Section 6(7), the Government has given effect to the Court's view    H
    440                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A expressed in the order dated 5.5.1987 which renders the challenge
    academic and unnecessary to examine.

          The next question is what was the scope of the enquiry before the
    High Court? In para 2 of the impugned judgment the High Court has
    disclosed that the petitioners challenged the validity of the appointments
B   of the appellants as they were made in violation of the direction of this
    Court given in S.P. Sampath Kumar's case. The petitioners added at the
    time of hearing, as can be seen from para 4 of the impugned judgment, a
    plea that instead of selection, the appointments were made by nomination
    without considering all eligible and available candidates so that the best
C   amongst them could be selected.

          The Government of India as well as the Government of Madhya
    Pradesh placed before the High Court the files relating to the impugned
    appointments. The High Court has gone into a detailed analysis of how the
D   proposal for appointment of the appellants was mooted and how the same
    was processed right upto the then Chief Justice of India. The High Court
    observed that the entire procedure was fraudulent not only because of the
    Government's failure in bringing about a proper amendment but also
    because of the failure on the part of Government of Madhya Pradesh to
    select the candidates through a Selection Committee appointed by a
E   Government of India on 15.4.1991. Admittedly, intimation thereof was
    given to the State Governments by letter dated 19.4.1991. The High Court
    further observed that even the appointment of the Selection Committee
    was not in accordance with the order of this Court which provided for
    appointment of a High Powered Selection Committee. However, the Selec-
F   tion Committee constituted by the Government of India comprised only
    the Chief Justice of the High Court, the Chief Secretary and the Law
    Secretary.

         The High Court on an analysis of the various notes on the Govern-
  ment files observed that the appellants R.P. Kapur and G.S. Patel used
G their own influence as Chief Secretary and Law Secretary to get themselves
  appointed on the State Administrative Tribunal and, therefore, their ap-
  pointments were fraudulent. The appellants pointed out that the High
  Court committed serious errors in appreciating how the selection process
  moved. In fact when the high Court examined the files of the Government,
H the hearing had concluded on 16.12.1992 and the appellants had no oppor-
                 SARWAN SINGH LAMBA v. U.0.1. [AHMADI, J.]                  441

    tunity to explain the various notes on the files since the same were A
    produced in Court on 29.7.1993. This itself was against the rules of natural
    justice. Moreover, the applicants did not allege that the appointments had
    been secured by the appellants by practising fraud on the Government and
    were, therefore, bad."-Was it open to the High Court to enter upon an
    enquiry of this nature within the ambit of the writ jurisdiction?
                                                                                   B
           It is not in di$pute that all the appellants were duly qualified and
    eligible for the posts against which they had been appointed. There is no
    allegation that any of them was not suitable for any reason whatsoever. All
    of them had been appointed after consultation with the then Chief Justice
    of India. There was no violation of any law in the process of their appoint-   C
    ments.



-         The judgment in S.P. Sampath Kumar's case was delivered in 1987.
    In that very year, the Act had been amended in compliance with the
    judgment. The Selection Committee was appointed only on 15.4.1991. This D
    was communicated to the State Government on 19.4.1991. In the order
    dated 15.4.1991, as quoted in the impugned judgment, there is no reference
    to the judgment of this Court. As such although it can be said that this
    order of appointment of the Selection Committee must have been inspired
    by the judgment, it cannot be said that this was solely in obedience to the
    order of this court. It is clear, as observed by the High Court, that the E
    Selection Committee was not a High Powered Committee. As such failure
    to process the appointments through the Selection committee will not mean
    non-compliance with any order of this court or of any statutory provision.
    We must not lose sight of the fact that the Government of India itself,
    despite such order of appointment of Selection Committee, approved the F
    proposals for appointment. In fact the appointments of the appellants other
    than that of R.P. Kapur had already been approved by the Chief Justice of
    India before the appointment of the Selection Committee was communi-
    cated to the State Government. On 15.4.1991 itself the file with the
    proposal of the appointments was sent to the Chief Justice of India with
    the approval of the Prime Minister mentioning further that in view of the G
    Supreme Court order of 9.4.1991 in Writ Petition No. 497 of 1990
    Shailendra Kumar Gangrade & Anr. v. Union of India & Ors. for making
    appointments in State Administrative Tribunal within four weeks time, the
    matter was urgent. The then Chief Justice of India accorded his approval
    on 18.4.1991 to the appointments of Messrs Lamba, M.N. Virmani, G.S. H
    442                  SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A Patel and Rajwade. It would not be proper to say that because on 15.4.1991
    the Government of India constituted the Committee for selection which
    was not even communicated to any State Government till 19.4.1991, the
    approval granted by the then Chief Justice of India be set at naught and
    the whole process of selection/nomination be redone.

B
         So far as appellant R.P. Kapur is concerned, the Selection Commit-
  tee could not be ignored. His name was proposed by the Chief Minister
  himself on 27.4.1991. The proposal was approved by the Government on
  30.4.1991. Subsequently, however, the Secretary, General Administrative
  Department, noted that the proposal had to be sent to the Selection
C Committee. It was further noted hy him on the file that the Chief Secretary
  himself being the candidate proposed could not be associated with the
  Selection Committee. The Committee, therefore, of necessity comprised
  only of the Chief Justice of the High Court of Madhya Pradesh and the
  Law Secretary. The Chief justice approved the name of R.P. Kapoor when
D the file was presented to him by the Law Secretary himself. The Law
  Secretary's note itself mentions constitution of the Committee as also his
  own approval to the proposal to appoint R.P. Kapoor as the Vice-Chair-
  man. The High Court, in the impugned order has observed that the Chief
  justice was not told about the appointment of the Selection Committee.
  This is, however, not borne out from any record. It has to be presumed
E that in the usual course of business the Chief Justice had gone through the
  entire file before according his approval to the proposal to appoint R.P.
  Kapoor as the Vice-Chairman of the State Administrative Tribunal, Mad-
  hya Pradesh. Out of the three members of the Selection Committee, one,
  being the candidate himself, could not participate in the selection process.
F The other two, namely, the Chief Justice of the High Court and the Law
  Secretary approved the name of R.P. Kapoor. It cannot be said that merely
  because the name of R.P. Kapoor was mooted by the Chief Minister, the
  subsequent approval by the members of the Selection Committee was bad.
  It may be said at the cost of repetition that there is note averment that
  there was anyone more suitable than R.P. Kapoor for the post of the
G Vice-Chairman who was deliberately ignored by either the Chief Minister
  or the Selection Committee or the State Chief Justice. Nor is there any
  averment that for some reason R.P. Kapoor should not have been ap-
  pointed the Vice-Chairman of the Administrative Tribunal. The finding of
  the High Court that the appointments of R.P. Kapoor and G.S. Patel were
H vitiated because their appointments were the result of their own machina-
             SARWAN SINGH LAMBA v. U.0.1. [AHMADI, J.]                     443

ti on cannot be upheld. Nor can it be said that their appointments were           A
fraudulent or otherwise vitiated. This High Court Seems to have read too
mush from the notes on the file and, with respect, has drawn unsustainable
and wholly unwarranted inferences based on, if we may say so, suspicion.

       Before we part we would like to make a few general observations.           B
As has been pointed out -earlier long after the hearing had concluded the
Court had called for the files which were produced on 29.7.1993. The Court
inspected the files and has drawn its own conclusions on the basis of the
notings without giving the parties, the appellants, against whom the inferen-
ces were drawn any opportunity to explain the same. This was clearly in
violation of the basic rule of natural justice. The Court should have been        C
extra cautious since it was casting serious aspersions against the appellants,
particularly, R.P. Kapoor. As we shall briefly point out, the conclusion that
"the appointments... are result of murky self-motivated machinations" and
are, therefore, "vitiated by bias'', is not borne out from the material relied
on by the High Court. In the first place it must be remembered that the           D
original petitioners had filed writ petitions in the High Court wherein they
had sought an interim order against their repatriation to their parent
department. On the constitution of the Tribunal their writ petitions were
transferred to the Tribunal The Government had moved an application for
vacating the interim order and apprehending that the stay may be vacated,
they challenged the constitution of the Tribunal. The idea was to paralyse        E
the Tribunal and prevent it from hearing their petitions for otherwise
ordinarily the litigant would like that his case proceeds. In the circumstan-
ces it is difficult to say that the petitioners were actuated by considerations
of public interest. Secondly, it is not in dispute that all the MembersNice-
Chairman were eligible for appointment, in that, were fully qualified.            F
thirdly, it must be remembered that the proposal for the appointment of
Members had been initiated much before 15.4.1991 and had been cleared
by the State functionaries long before that date and by the then Chief
Justice of India before the decision was communicated by the Central
Government to the States on 19.4.1991. It is legitimate to assume that the        G
proposal must have been thoroughly scrutinised by the Chief Justice of
India before he gave his approval to the same. Fourthly it is necessary to
notice that R.P. Kapoor was on deputation to the Government of India
since 1980 and he was repatriated to the State in 1990 and, therefore, in
the absence of positive evidence of his interference it would not be correct
to attribute motives to him for the State Government's decision to shift the      H
   444                    SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A seat of Vice- Chairman to Bhopal on 4.1.1989. Actually in 1989 he was
  stationed at Hyderabad. Similarly much has been read into the note,
  discuss, made on 6.3.1991. As explained by R.P. Kapoor in his submissions
  before this Court that he desired to discuss the matter as he had some
  doubt in regard to the vacancy position which, as the subsequent note of
B the Secretary, GAD, would show, turned out to be correct. So also much
  ado has been made about the Law Secretary personally carrying the file to
  Patna where the Chief Justice of Madhya Pradesh was then camping. There
  was urgency for the clearance of the file because of the time-frame set by
  judicial orders. It is wrong to read in this visit any oblique motive. The Law
  Secretary in his capacity as a member of the Committee was deputed to
C go to Patna so that he may be able to apprise the Chief Justice of the
  proposal and explain any matter on which the latter would need clarifica-
  tion. It is wrong to infer that the Law Secretary felt obliged to R.P. Kapoor
  because the latter had not recommended the farmer's name but the recom-
  mendation had come from the then Chief Minister. Even if in normal
D course of business R.P. Kapoor had in fact recommended his name as a
  part of his duty, that should not make any difference. Besides, it is clear
  from the affidavit of the Ex-Law Secretary that he knew that his appoint-
  ment was cleared by the Government of India long before he proceeded
  to Patna. There was, therefore, no question of his being under the influence
E of R.P. Kapoor so as to affect his independent judgment. It is indeed true
  that R.P. Kapoor in his capacity as Chief Secretary forwarded the file to
   the Chief Minister on 11.4.1991 proposing his name as Vice-Chairman
  which was returned by the Chief Minister to the Secretary, GAD, on
   27.4.1991. Did forwarding of the file amount to 'active association' with the
F process of appointment? The fact that under the Rules of Business framed
   under Article 166 of the Constitution, it is not disputed that the normal
   channel of submission was through the Chief Secretary. Two options were,
   therefore, available to R.P. Kapoor; either he as a part of his duty forward
   the file or refuse to endorse the file. There is nothing else on record to
   show his active participation thereafter. So far as Secretary, GAD, is
G concerned, he marked the file to the Chief Secretary as per the Rules of
   Business. There was nothing else he could have done. The Chief Secretary
   could have avoided to endorse the file but to do so also he would have
   been required to say so. He chose to quietly forward the file to the Chief
   Minister without his own comment. le seems to us that the High Court read
H too much in this action of the Chief Secretary in describing the ultimate
             SARWAN SINGH LAMBA v. U.0.1. [AHMADI,J.]                   445

appointment as fraudulent. After all when the name of a Chief Secretary        A
about to retire is proposed for appointment, it is impossible to think that
the Chief Secretary would not know about it, if the Chief Secretary
pretends ignorance, no court will accept the same as correct. Therefore,
even if the Chief Secretary had not endorsed the file, it would not have
made any difference. It was ultimately for the Chief Minister to take a        B
decision which was to be approved by the Governor as well as the Chief
Justice of India. There is no hint on record to infer that he had in any
manner influenced the decision of these functionaries. Therefore, merely
because he forwarded the file to the Chief Minister which he was required
to do as per the extant Rules of Business that ought not to be construed
as an act to influence the decision of the aforesaid functinaries. Even        C
without signing the file in normal course of business, he could have done
the 'goading and egging' while pretending total ignorance. We are, there-
fore, of the view that the High Court read too much in this act of he Chief
Secretary R.P. Kapoor. This suspicion of the High Court unfortunately
coloured its vision resulting in it viewing each and every action leading to   D
his appointment with suspicion. These, in brief, are a few aspects of the
case which we have highlighted to demonstrate how the High Court fell
into an error and misdirected itself causing miscarriage of justice. We must
undo this injustice by allowing this appeal and setting aside the impugned
judgment and order of the High Court and giving appropriate directions
as under.                                                                      E

       The appellants should be allowed to resume their office. Hence we
direct that the appellants, as far as possible, be allowed to resume their
office unless any one or more of them has or have retired In case any of
them have since attained the age of retirement, the State will treat them as
                                                                             F
on duty upto the date of retirement and work out their retrial benefits
accordingly. All the appellants shall be entitled to arrears of pay and
allowances from the date of judgment of the High Court upto the date of
resumption of duty or date of retirement. The appeals succeed accordingly
and the original writ petition will stand dismissed.
                                                                               G
      We are satisfied beyond any manner of doubt that the petitions filed
by the three police Inspector were, to say the least, motivated with a view
to deriving personal benefits and not in public interest. Their idea was to
paralyse the working of the Tribunal and benefit from the delay at the cost
of other litigants. Otherwise how were they concerned with the legality of H
    446                  SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A their appointments? This, in our view, is a glaring case of abuse of the
    process of the Court in the name of public interest. Can such petitioners
    be allowed to get away unscatched? We think they must be saddled with
    exemplary costs. We, therefore, direct that each petitioner shall pay a sum
    of Rs. 15,000 by way of costs. The amount of cost may be recovered from
B   the provident fund/gratuity or any other future monetary benefit including
    pension or in ordinary course by executing the order.

    S.M.                                                     Appeals allowed.




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