Holding

Appointments to the Central Administrative Tribunal made in accordance with Sections 6 and 7 of the Administrative Tribunals Act, 1985, after consultation with the Chief Justice of India are not amenable to judicial review.

Summary

The Union of India appealed against two High Court judgments that had entertained writ petitions filed by K.D. Batish and Ram Kishore Prasad, who had been recommended for appointment as Judicial Members of the Central Administrative Tribunal (CAT) but were not appointed after the Intelligence Bureau report on their antecedents was considered. The Himachal Pradesh High Court had directed a fresh consideration of Batish’s appointment, while the Jharkhand High Court dismissed Prasad’s petition, holding that inclusion in the selection list did not confer a right to appointment. The Supreme Court held that appointments to the CAT, which require consultation with the Chief Justice of India under Sections 6 and 7 of the Administrative Tribunals Act, 1985, are not subject to judicial review, and that the High Court of Himachal Pradesh erred in treating the matter as an executive appointment. The Court affirmed the Jharkhand High Court’s view that no enforceable right arose from the selection list and set aside the Himachal judgment. Consequently, the Union’s appeal was allowed and the Jharkhand appeals were dismissed.

Issues considered

The scope of judicial review over the appointment of a Judicial Member of the Central Administrative Tribunal made after consultation with the Chief Justice of India.
Whether non‑appointment of a candidate, despite inclusion in the selection list and after the Chief Justice’s concurrence, creates a enforceable right.
Whether the Intelligence Bureau report and antecedent verification can be subject to judicial scrutiny.
Whether the High Court of Himachal Pradesh erred in treating the appointment as an executive decision.

Legislation cited

Administrative Tribunals Act, 1985s. 4, s. 6, s. 7

Subjects

Central Administrative Tribunaljudicial appointmentjudicial reviewChief Justice of Indiaselection committeeantecedent verificationAdministrative Tribunals ActArticle 323Awrit petition

Judgment

-+
t I
UNION OF INDIA AND ORS. A
v.
KALI DASS BA TISH AND ANR.

JANUARY 5, 2006

[Y.K. SABHARWAL, CJ., B.N. SRIKRISHNA AND B
R.V. RAVEENDRAN, JJ.]

Constitution of India, 1950-Artic/es 226 & 32 3A-Central
Administrative Tribunal-Appointment of judicial member-Candidates
recommended by Selection Committee chaired by a nominee of Chief Justice
c
of lndia(CJI). not appointed considering their antecedents as reported by the
Intelligence Bureau(IB)-Decision of non-appointment made in consultation
with the CJI-Scope ofjudicial review on the decision-Held: Judicial review
f was impermissible-Parliament having reposed faith in the CJ/ as the
r paterfamilias ofjudicial hierarchy, it is not open for anyone to contend that D
the CJ/ might have given his concurrence without application of mind-
Administrative Tribunals Act. 1985-Sections 4, 6 and 7.

First and Second Respondent were amongst the candidates
recommended for appointment as Judicial Members of the Central
Administrative Tribunal by a Selection Committee chaired by a nominee E
of the Chief Justice of India- a sitting Supreme Court Judge. However,
they were not appointed considering their antecedents as reported by the
) Intelligence Bureau(IB). The decision of non-appointment was made in
consultation with the Chief Justice of India.

The said Respondents filed writ petitions challenging their non- F
appointment before High Court, First Respondent before the Himachal
Pradesh High Court and Second Respondent before the Jharkhand High
Court. The Jharkhand High Court declined to grant ~elief holding that
there was no scope for judicial review in such matters, but the Himachal
Pradesh High Court allow~d the writ petition filed before it and directed G
the Union Government to consider afresh the case of First Respondent.
)', Hence, the Union Government filed appeal before this Court against the
judgment of H.imachal Pradesh. The judgment of Jharkhand High Court
•
too was appealed against before this Court in a separate group of appeals.

261 H
262 SUPREME COURT REPORTS [20061 I S.C.R.

A Allowing the appeal against the judgment of Himachal Pradesh High
Court while dismissing the appeals against the judgment of Jharkhand
High Court, the Court

HELD: I.I. The High Court of Himachal Pradesh has acted in the
matter as if dealing with an appointment made by an executive officer.
B 1.2. CAT is a Tribunal constituted under Article 323A of the
Constitution and is expected to have the same jurisdiction as that of a High
Court. Consequently, Parliament has taken great care to enact, vide
Sections 6 and 7 of the Administrative Tribunals Act, 1985, that no
appointment of a person possessing the qualifications prescribed in the
C Act as a Member shall be made, except after consultation with the Chief
Justice of India. The consultation with the Chief Justice of India i.s neither
a routine matter nor an idle formality. [268-E-F[

1.3. A member of an Administrative Tribunal like the CAT exercises
vast judicial powers, and such member must be ensured absolute judicial
D independence, free from influences of any kind likely to interfere with
independent judicial functioning or militate thereagainst. It is for this
reason that a policy decision had been taken by the Government of India
that while considering members of the Bar for appointment to such a post,
their antecedents have to be verified by the 18. The antecedents would
E include various facts like association with anti-social elements, unlawful
organizations, political affiliations, integrity of conduct and moral
uprightness. All these factors have necessarily to be verified before a
decision is taken by the appointing authority to appoint a candidate to a
sensitive post like Member of the CAT. [268-F-H; 269-AI

F 1.4. Sub-section (7) to Section 6 of the Act requires that, the
appointment of a Member of the CAT cannot be made "except after
consultation with the Chief Justice of India". This consultation should, of
course, be an effective consultation after all necessary papers are laid
before the Chief Justice of India, and is the virtual guarantee for
appointment of absolutely suitable candidates to the post.
G
Delhi Administration v. Sushi/ Kumar. [1996[ 11 SCC 605, relied on.
[26A-AI

2.1. Unfortunately, the High Court of Himachal Pradesh seems to
have proceeded on the footing that the appointment was being made on
H its own by the Central Government and that there was an irregular
-+
U.0.1. v. KALI DASS BA TISH 263
f ) procedure followed by the Secretary by giving undue importance to the A
18 report. It was most irregular on the part of the High Court to have sat .
in appeal over the issues raised in the 18 report and attempted to disprove
it by taking affidavits and the oral statement of the Advocate General at
the Bar. This Court strongly disapproves of such action on the part of
the High Court, particularly when it was pointed out to the High Court B
that along with the proposal made by the Government, the Minister of
State had specifically directed for submission of the 18 report to the Chief
Justice !Jf India for seeking his concurrence, and that this was done.
Regrettably, 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. The High C
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 that the Chief Justice of India might
not have been supplied with the necessary inputs has no merit. If D
Parliament has reposed faith in the Chief Justice of India as the
paterfamilias of the judicial hierarchy in this Country, it is not open for
anyone to contend that the Chief Justice of India might have given his
concurrence without application of mind or witho.ut calling for the
necessary inputs. The argument, to say the least, deserves summary E
dismissal. [269-D-H; 270-A[

2.2. The impugned judgment of the High Court of Himachal Pradesh
is erroneous and needs to be set aside, while the judgment of the High
Court of Jharkhand is right and in consonance with the position in law
and needs to be upheld. The Jharkhand High Court rightly approached F
the matter on the principle that judicial review is not available in such a
matter. It also rightly pointed out that mere inclusion of a candidate's
name in the selection list gave him no right, and if there was no right,
there could be no occasion to maintain a writ petition for enforcement of
a non-existing right. [270-B-CJ
G
Punjab State Electricity Board and Ors. v. Malkiat Singh, (2005[ 9 SCC
22; Shankarsan Dash v. Union of India [1991 j 3 SCC 47 and K. Ashok Reddy
v. Government of India and Ors., [I 994[ 2 SCC 303, relied on~
[270-D; 271-B[

R.S. Milla/ v. Union of India, (1995[ Supp 2 SCC 230 and Dr. A.K H
t-

264 SUPREME COURT REPOR rs (2006] I S.C.R.

A Doshi v. Union of India, 120011 4 sec 43, distinguished. 1272-E, GI ' .
Sarwan Singh lamba and Ors. v. Union of India and Ors., (1995( 4 SCC
546, referred to. (273-CI

Council of Civil Service Unions v. Minister for the Civil Service (GCHQ
B case) (1985) AC 374, referred to. 1271-C-EI
Craig's Administrative law, Second Edn.. p.291, Paragraph 21 and De
Smith's Judicial Review ofAdministrative Action, Paragraph 23, referred to.
(271-BJ

C CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6663 of2004.

From the Judgment and Order dated 25.5.2004 of the Himachal Pradesh
High Court in Writ Petition No. 812/2003.

WITH
D
C.A. Nos. 7575-7576/2004.

G.E. Vahanvati, SG, R. Mohan, ASG, Devdatt Kamat, Hrishikesh
Barauh, Ms. Suruchi Suri, P. Parmeswaran, Ms. Sushma Suri and Ashok
Kumar Sharma for the Appellants.
E Naresh K. Sharma for Respondent No. I.

Respondent No. 2 In-Person.

The Judgment of the Court was delivered by

F SRI KRISHNA, J. This group of appeals raises the following question
for determination of this Court:

What is the scope of 'judicial review' in an order for appointment of
a member of the Central Administrative Tribunal made in consultation
with the Chief Justice of India? ,
G The Central Administrative Tribunal (hereinafter referred to as "the
CAT') is one of the Tribunals constituted under Section 4 of the Administrative
Tribunals Act, 1985 (hereinafter referred to as "the Act") with its jurisdiction
determined by Section 14 of the Act. It exercises jurisdiction, powers and
authority exercisable immediately on and from the appointed day by all courts
H other than the Supreme Court with regard to service matters and disputes
U.0.1. v. KALI DASS BA TISH [SRIKRISHNA. J.) 265

pertaining to service inter alia of Central Government employees. It comprises A
'Administrative Members' and 'Judicial Members' as respectively defined in
Section 3(a) and 3(i) of the Act. Sub-sections (3) and (3A) of Section 6 of
the Act prescribe the qualifications respectively for appointment of 'Judicial
Member' and 'Administrative Member'. The Department of Personnel and
Training, Government of India by Order dated 15.4.1991 I 23 .4.1991 has laid
down detailed guidelines about the constitution and procedure to be adopted B
by the Selection Committee for selection of Vice-Chairman and Members of
\ the CAT. In the case of selection of a Judicial Member, the Selection
Committee is required to be chaired by the nominee of the Chief Justice of
India, who shall be a sitting Judge of the Supreme Court of India and shall
comprise the following additional members: (i) Secretary, Ministry of Law C
and Justice (Department of Legal Affairs); (ii) Secretary, Ministry of Personnel;
and (iii) Chairman of the CAT.

Seven vacancies of Judicial Members and three vacancies of
Administrative Mftnbers of the CAT arose during the period I. 7.200 I to
r 31.12.200 I. fllominations were invited for these vacancies from different D
authorities.

First and Second Respondents in C.A. No. 6663/2004, namely, K.D.
Batish and ~am Kishore Prasad, respectively, were amongst the candidates
for selection to the post of Judicial Member in the CAT. The Selection
Committee met under the Chairmanship of Hon;ble Mr. Justice G.B. Patnaik E
(as he then was) on 18.7.200 I and considered th{ names of 121 persons for
selection to the aforesaid vacancies. First and Second Respondents were also
among those considered for selection. The Selection Committee recommended
the names of seven persons for appoi(ltment as Judicial Members and three
persons for appointment as Administrative Members in the main list and an p
equal number of persons in the waiting list. The candidates whose names
appeared in the waiting list were to be appointed in case any of the persons
named in the main list were not appointed for any reason. The names of First
Respondent-K.D. Batish and Second Respondent- Ram Kishore Prasad were
at SI. Nos. I and 6, respectively, of the main list. It is the established procedure
that where members of the Bar are considered for such important judicial G
posts, their antecedents are required to be verij'jed through the Intelligence
Bureau (hereinafter referred to as "the IB") and a report obtained from the
IB. Accordingly, the names of all such recommended persons were sent to
the IB. After obtaining the report from the IB, the Director (AT), Ministry of
Personnel, Public Grievances and Pensions made a noting on the file on H
t·

266 SUPREME COURT REPORTS (2006] I S.C.R.

A 25.10.2001 in which he noted in respect of First Respondent as u11der: "(i)
In legal circles, he is considered to be an advocate of average caliber. (ii) It
is learnt that though he was allotted to the Court of Justice R.L. Khurana, the
learned Judge was not happy with his presentation of cases and asked the
Advocate General to shift him to some other court, which was done. (iii) He
was a contender for the Shimla AC seat on BJP ticket in 1982 and 1985.
B When he did not get the ticket, he worked against the party and was expelled
from the party in 1985. He was subsequently reinducted by the party in
1989." The Director (AT) was, however, of the view that since the candidate
had been recommended by the Selection Committee headed by a Judge of the
Supreme Court, the benefit of doubt had to be given to him and the
C dissatisfaction of Justice Khurana with his performance must be treated as
counterbalanced by the recommendation of the Selection Committee headed
by the Sitting Judge of the Supreme Court.

On 29. l 0.200 I the Joint Secretary (AT & A), Ministry of Personnel
and Training made a noting to the following effect: "(i) Shri Balish has
D strong political affiliations and was a contender for the Shimla AC seat in
1982 and 1985 from BJP; (ii) He appears to be of average caliber and Justice
Khurana of the Himachal Pradesh High Court seems to have asked the
Advocate General to shift him to some other Court; and (iii) There is nothing
adverse against his character or integrity."
E On 30. l 0.200 I the Secretary (P) made a noting on the file that Shri
Batish need not be appointed since his performance was so poor that he was
shifted to another Court. On 31.10.2001 the Minister of State made a noting
and directed that the IB Report along with the department recommendations
be sent to the Chief Justice of India. Accordingly, the Secretary (Personnel)
p vide Confidential Memorandum dated 6.11.2001 forwarded all necessary
papers including the IB Report and sought the concurrence of the Chief
Justice of India with regard to the names recommended by the Central
Government.

On 12.11.200 I the Chief Justice of India concurred with the proposal
G submitted to him vide Confidential Memorandum dated 6.11.2001. On
14.1.2002 the appointments of the selected candidates were notified, but the
First and Second Respondents were not appointed.

On 30.6.2003 the Second Respondent-Ram Kishore Prasad filed a Writ
Petition No. 3098/2003 before the Jharkhand High Court challenging the
H action of the Central Government in not appointing him as a Judicial Member
U.0.1. v. KALI DASS BA TISH [SRI KRISHNA, J.] 267
I
of the CAT and sought a direction to the Central Government to appoint him A
on the ground of his being included in the select list. On 23 .9 .2003 the High
Court of Jharkhand at Ranchi dismissed the writ petitiion filed by the Second
Respondent inter alia holding that mere inclusion of the name of a candidate
in the select list gave him no right to be appointed, that in the case of
appointment to a judicial post like the CAT it was not only the right, but also B
the duty, of the appointing authority to verify the antecedents of the candidate
on the basis of the report and inputs from the 18, that it was open to the
appointing authority not to appoint any person whose name had been included
in the list prepared by the Selection Committee, that in excluding the petitioner-
Second Respondent, on the basis .of JB report received, which was made
available to the Chief Justice of India, and whose concurrence to the proposal C
was obtained by the Government of India after apprising the Chief Justice of
India of all the relevant facts, left no scope for judicial review, and that there
was no case of ma/a jides worth considering. In this view of the matter, the
writ petition was found to be without merit and dismissed. The Second
Respondent took out an application Civil Review No. 119/2003 for review of
the aforesaid judgment, which came to be dismissed by the_ order of the D
Jharkhand High Court made on 11.8.2004. Being aggrieved by the aforesaid
judgments, the Second Respondent has filed Civil Appeal Nos. 7575-7576/
2004 in this Court.

The First Respondent-K.D. Batish filed a Writ Petition No. 812/2003 E
·before the High Court of Himachal Pradesh at Shim la impugning the decision
of the Central Government not to appoint him as a Judicial Member of the
CAT and seeking a mandamus ff?ir h.is appointment. Though the said writ
petition was contested by the UnidU of India, the High Court by its judgment
dated 25.5.2004 allowed the writ petition and directed the respondents to the
writ petition (Union of India and the appointing authority) to reconsider. F
afresh, as a special case, the petitioner-K.D. Batish for his appointment as a
Judicial Member of the CAT, based on his selectidn by the Selection
Committee.

The. Union of India has challenged the judgment of the High Court of
Himachal Pradesh in CWP No. 812/2003 by its Civil Appeal No. 6663/2004 G
in which K.D. Batish and Ram Kishore Prasad <!re the First and Second
Respondents, respectively. Ram Kishore Prasad was a Respondent in the writ
petition before the Himachal Pradesh High Court and therefore appears· to
have been made a Respondent in this case also.
H
t--

268 SUPREME COURT REPORTS [2006] I S.C.R.

A The learned Solicitor General made a frontal attack on the judgment of
the High Court of Himachal Pradesh contending that the High Court has far
exceeded its powers of judicial review and grievously erred in interfering
with the decision of the Union of India and the appointing authority not to
appoint the First and Second Respondents to the posts of Judicial Members
of the CAT, after obtaining the concurrence of the Cliief Justice of India. He
B also contends that the High Court erred in adopting the extraordinary procedure
of calling for an affidavit of the Registrar General to be filed on the basis of
instructions obtained from Justice Khurana of the same High Court to be
used as substantive evidence in the decision of the said writ petition, though
the High Court itself was aware that it was an "unusual procedure".
c The learned Solicitor General further contends that the High Court
singularly failed to keep in mind the scope of Sections 6 and 7 of the Act,
that along with the proposal for appointment of the candidates all the relevant
papers, including the IB report, had been forwarded to the Chief Justice of
India for his concurrence, and that, after consideration of all the material, the
D Chief Justice of India had concurred with the proposal of the Government of
India for the appointment of the candidates as indicated in the proposal.

There is merit in the submissions of the Ld. Solicitor General. It appears
that the High Court has acted in the matter as if dealing with an appointment
made by an executive officer. It must be remembered that, the CAT is a
E Tribunal constituted under Article 323A of the Constitution and is expected
to have the same jurisdiction as that of a High Court. Consequently, Parliament
has taken great care to enact, vide Sections ~ and 7 of the Act, that no
appointment of a person possessing the qualifications prescribed in the Act
as a Member shall be made, except after consultation with the Chief Justice
F of India. The consultation with the Chief Justice of India is neither a routine
matter, nor an idle formality. It must be remembered that, a member of an
Administrative Tribunal like the CAT exercises vast judicial powers, and
such member must be ensured absolute judicial independence, free from
influences of any kind likely to interfere with independent judicial functioning
or militate thereagainst. It is for this reason, that a policy decision had been
G taken by the Government of India that while considering members of the Bar
for appointment to such a post, their antecedents have to be verified by the
IB. The antecedents would include various facts, like asso.ciation with anti-
social elements, unlawful organizations, political affiliations, integrity of
conduct and moral uprightness. All these factors have necessarily to be verified
H before a decision is taken by the appointing authority to appoint a candidate
U.0.1. v. KALI DASS BA TISH [SRIKRISHNA, J.] 269
to a sensitive post like Member of the CAT. In Delhi Administration v. Sushi/ A
Kumar' this Court emphasized that even for the appointment of a Constable
in Police Services, verification of character and antecedents is one of the
important criteria to test whether the selected candidate is suitable to a post
under the State. Even if such candidate was found physically fit, had passed
the written test and interview and was provisionally selected, if on account B
of his antecedent record, the appointing authority found it not desirable to
appoint a person of such record as a Constable, the view taken by the
appointing authority could not be said to be unwarranted, nor could it be
interdicted in judicial review. These are observations made in the case of a
Constable, they would apply with greater vigour in the case of appointment
of a Judicial Member of the CAT. It is for this precise reason, that sub- C
section (7) to Section 6 of the Act requires that, the appointment of a Member
of the CAT cannot be made "except after consultation with the Chief Justice
of India". This consultation should, of course, be an effective consultation
after all necessary papers are laid before the Chief Justice of India, and is the
virtual guarantee for appointment of absolutely suitable candidates to the
~ D
Unfortunately, the High Court seems to have proceeded on the footing
that the appointment was being made on its own by the Central Government
and that there was an irregular procedure followed by the Secretary by giving
undue importance to the IB report. It was most irregular on the part of the
High Court to have sat in appeal over the issues raised in the 18 report and E
attempted to disprove it by taking affidavits and the oral statement of the
Advocate General at the Bar. We strongly disapprove of such action •.in 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 18 report to the Chief Justice F
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 G
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

1(1996] II SCC605 H
1 J
t

270 SUPREME COURT REPORTS [20061 I S.C.R.

A been supplied with the necessary inputs has no merit. If Parliament has reposed
faith in the Chief Justice of India as the paterfamilias of the judicial hierarchy
in this Country, it is not open for anyone to contend that the Chief Justice of
India might have given his concurrence without application of mind or without
calling for the necessary inputs. The argument, to say the least, deserves
B summary dismissal.

In this matter, the approach adopted by the Jharkhand High Court
commends itself to us. The Jharkhand High Court approached the matter on
the principle that judicial review is not available in such a matter. The
Jharkhand High Court also rightly pointed out that mere inclusion of a
C candidate's name in the selection list gave him no right, and ifthere was no
right, there could be no occasion to maintain a writ petition for enforcement
of a non-existing right.

In Punjab State Electricity Board and Ors. v. Malkiat Singh 2, this Court
reiterated the observations of the Constitution Bench of this Court in
•
D Shankarsan Dash v. Union of India' as under:

"7. It is not correct to say that if a number of vacancies are notified
for appointment and adequate number of candidates are found fit, the
successful candidates acquire an indefeasible right to be appointed
which cannot be legitimate~v denied. Ordinarily the notification merely
E amounts to an invitation to qualified candidates to apply for recruitment
and on their selection they do not acquire any right to the post.
Unless the relevant recruitment rules so indicate. the State is under no
legal duty to fill up all or any of the vacancies. However, it does not
mean that the State has the licence of acting in an arbitrary manner.
The decision not to fill up the vacancies has to be taken bona fide for
F appropriate reasons. And if the vacancies or any of them are filled
up, the State is bound to respect the comparative merit of the
candidates, as reflected at the recruitment test, and no discrimination
can be permitted. This correct position has been consistently followed
by this Court, and we do not find any discordant note in the decisions
G in State of Haryana v. Subhash Chander Marwaha'. Neelima Shangla

0
12oos19 sec 22
'11991J 3 sec 47
H 'I 1974] 3 sec 220
U.0.1. v. KALI DASS BA TISH [SRIKRISHNA, J.) 271
v. State of Haryana 5 or Jatinder Kumar v. State of Punjab6." (emphasis A
supplied)

This, in our view, is the correct approach to be adopted in dealing with
a matter of this nature.

In K. Ashok Reddy v. Government of India and Ors.,' this Court indicated B
that however wide the power of judicial review under Articles 226 or 32
there is a recognised limit, albeit self-recognised, to the exercise of such
power. This Court reiterated a passage from Craig's Administrative Law
(Second Edn., p. 291 )., vi de Paragraph 21, as under:

"The traditional position was that the courts would control the existence C
and extent of prerogative power, but not the manner of exercise thereof.
.... The traditional position has however now been modified by the
decision in the GCHQ case. Their Lordships emphasised that the
reviewability of discretionary power should be dependent upon the
'f
subject-matter thereof, and not whether its source was statute or the D
prerogative. Certain exercises of prerogative power would, because
of their subject-matter, be less justiciable, with Lord Roskill compiling
the broadest list of such forbidden territory .... "

The observations of Lord Roskill, referred to above are from Council
of Civil Service Unions v. Minister for the Civil Service' (GCHQ case) as E
under:

"But I dci not think that that right of challenge can be unqualified. It
must, I think, depend upon the subject-matter of the prerogative power
which is exercised. Many examples were given during the argument F
of prerogative powers which as at present advised l do not think
could properly be made the subject of judicial review. Prerogative
powers such as those relating to the making of treaties, the defence
of the realm, the prerogative of mercy, the grant of honours, the
dissolution. of Parliament and the appointment of ministers as well as
others are not, I think, susceptible to judicial review because their G

'[1986) 4 sec 268

'[19851 ISCC 122

'[199412 sec 303
H
'(1985) AC 371
t

272 SUPREME COURT REPORTS (2006) I S.C.R.

A nature and subject-matter are such as not to be amenable to the judicial
process."

Finally, this Court emphasised judicial ~estraint by citing with approval
a passage in De Smith's Judicial Review of Administrative Action, (vide
Paragraph 23) as under:
B
"Judicial self-restraint was still more ~arked in cases where attempts
were made to impugn the exercise of discretionary powers by alleging
abuse of the discretion itself rather than alleging non-existence of the
state of affairs on which the validity of its exercise was predicated.
Quite properly, the courts were slow to read implied limitations into
c grants of wide discretionary powers which might have to be exercised
on the basis of broad considerations of national policy.''

Based on this reasoning, it was acknowledged that the transfer of a
Judge of the High Court based on the recommendation of the Chief Justice
D of India would be immune from judicial review as there is "an inbuilt check
,.
against arbitrariness and bias indicating absence of need for judicial review
on those grounds. This is how the area of justiciability is reduced ... .9"

We, respectfully, reiterate these observations, and expect them to be
kept in mind by all courts in this Country invested with the power of judicial
E review.

The respondents have relied on the judgments of this Court in R.S.
Milla/ v. Union of lndia 10 in support of their contentions. In our view, the
said authority hardly advances their case. In the first place, all that the authority
F says is that where a Selection Board headed by a sitting Judge of the Supreme
Court had recommended certain candidates for appointment as Members of
the ITAT, it was not open to the Government of India to sit on the said
recommendation without taking action. That was not a case where a decision
taken not to appoint a candidate for good reason was concurred in by the
Chief Justice of India.
G
The judgment in Dr. A.K. Doshi v. Union of lndia 11 on which the
respondents relied is also of no consequence. That was also. not a case of

'Ibid Para 24

H "[1995] Supp 2 sec 230
11
1200114 sec 43
4; U.0.1. v. KALI DASS BA TISH [SR!KR!SHNA. J.] 273
concurrence of the Chief Justice of India and, in any event; this Court had A
found a certain amount of mala tides on the part of the Secretary of the
Department concerned.

The Second Respondent-Ram Kishore Prasad, who argued his own
case adopted the arguments of the First Respondent. In addition, he submitted
lengthy written arguments and contended that his name was deleted with B
ma/a fide intention for illegally favouring one J.K. Kaushik, who was down
below in the merit list. Apart from the bald allegation, there is no material,
whatsoever, presented before the High Court in support of this ma/a fide
intention, nor did the High Court accept the case.

We have carefully perused the written arguments filed by the Second C
Respondent. Reliance on the judgment in Sarwan Singh Lamba and Ors. v.
Union of India and Ors. 12 helps in no way. Sarwan Singh (supra) is not an
authority which militates against the view we are inclined to take. On the
other hand, even this judgment suggests that .where the candidates were duly
qualified and eligible for the posts against which they were appointed, and D
all of them had been appointed after consultation with the Chief Justice of
India, there was no violation. of any law or procdure in their appointments.

We consider it unnecessary to refer in detail to a number of authorities
on which the Second Respondent has relied for, in our view, they are not
relevant.
E
In the result, we are of the view that the impugned judgment of the
High Court of Himachal Pradesh is erroneows and needs to be set aside, while
the judgment and order of the High Court of Jharkhand are right and in
consonance with the position in law and need to be upheld. Hence, we dismiss
Civil Appeal Nos. 7575-7576/2004 directed against the judgment and order F
of the High Court of Jharkhand.

We allow the appeal of the Union of India in Civil Appeal No. 6663/
2004 and set aside the impugned judgment of the High Court of Himachal
Pradesh in Writ Petition No.812/2003.

There shall be no order as to costs. G

B.B.B. Civil Appeal No. 6663/04 Allowed.
Civil Appeal Nos. 7575-7576/04 dismissed.

12
[ I9951 4 sec 546 H