IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 16915 of 2005(L) ---------------------------------------- PETITIONER(S): ------------------------- JAMES K.JOSEPH, "SILVER OAK", P.T.P.NAGAR, THIRUVANANTHAPURAM. BY MR. S.KALYANAN, SENIOR ADVOCATE, BY ADV. MR.P.A.AHAMMED. RESPONDENT(S): --------------------------- GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, NORTH BLOCK, NEW DELHI. *ADDL.R2 IS IMPLEADED: R2. SMT. SATHI NAIR, VICE PRESIDENT, CENTRAL ADMINISTRATIVE TRIBUNAL, KOCHI. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 21/08/2008 IN I.A.NO.93/06) R1 BY MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL ADDL.R2 BY ADV.MR.S.RADHAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2009, THE COURT ON 18/02/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.16915/2005 L APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT DTD. 23/08/04. EXT.P2: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE SECRETARY TO GOVT. OF INDIA DTD.28/04/2005. EXT.P3: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD. 1/12/05. EXT.P3: COPY OF THE LETTER NO.A-11013/40/2005-AT DTD. 22/11/05. EXT.P4: COPY OF THE LETTER NO.A-11013/40/2005-AT DTD.22/11/05. EXT.P5: COPY OF THE APPLICATION DTD. 23/08/06 FILED BY THE PETITIONER. EXT.P6: COPY OF THE LETTER NO.A-11013/25/2006-AT DTD. 8/09/2006. EXT.P7: COPY OF THE APPEAL FILED BY THE PETITIONER DTD.21/9/2006. EXT.P8: COPY OF THE LETTER NO.A-11013/25/2006-AT DTD. 18/10/2006. EXT.P9: COPY OF THE APPEAL FILED BY THE PETITIONER DTD.10/11/2006. EXT.P10: COPY OF THE LETTER NO.P13025/2/2006-AT DTD.10/09/07. EXT.P11: COPY OF THE COMMON JUDGEMENT OF THE DISTRICT JUDGE, THIRUVANANTHAPURAM DTD. 4/10/2004 IN CMA NO.75/04. EXT.P12: COPY OF THE LETTER FROM ADV.P.A.AHAMED TO CENTRAL PUBLIC INFORMATION OFFICER, DTD. 23/05/2008. EXT.P13: COPY OF THE LETTER NO.412-RTI/77-08 DTD. 26/06/2008. RESPONDENT'S EXHIBITS: EXT.R2(A): COPY OF THE APPOINTMENT ORDER NO.A-11013/37/2002-AT DTD. 22/10/2003 ISSUED TO THIS RESPONDENT. EXT.R2(B): COPY OF THE ORDER NO.2/1/96-JA/6086 DTD. 03/06/2005 ISSUED BY THE CHAIRMAN, CENTRAL ADMINISTRATIVE TRIBUNAL. /TRUE COPY/ P.S.TO JUDGE Kss C.R. P.N.Ravindran, J. ================== W.P.(C) No.16915 of 2005 ===================== Dated this the 18th day of February, 2009. JUDGMENT In this Writ Petition, the petitioner seeks a writ in the nature of mandamus commanding the first respondent to appoint him as Administrative Member in the Central Administrative Tribunal, Ernakulam Bench. The brief facts of the case are as follows: 2. The petitioner was a member of the Indian Audit and Accounts Service. During the period from 1988 to 1995 he was the Accountant General for the State of Maharashtra, the State of Tamil Nadu and the State of Kerala. Later, during the period 1995-1996 he was Joint Secretary in the Ministry of Personnel of the Government of India. While the petitioner was holding office as Joint Secretary (Establishment) in the Ministry of Personnel of the Government of India, he took voluntary retirement from service. Thereafter, he had also served as the Managing Director of the Kerala State Industrial Development Corporation and the Kerala State Road Transport Corporation. 3. Three vacancies of Administrative Member in the Central Administrative Tribunal (hereinafter referred to as the CAT for short) WP(C) 16915/05 -: 2 :- arose during the period from 1.1.2004 to 30.6.2004. The Government of India notified the vacancies and invited applications from eligible candidates. The petitioner applied for appointment as Administrative Member in the CAT by submitting Ext.P1 application dated 23.8.2004 to the Joint Secretary (Administration), Ministry of Personnel, Government of India. The petitioner states that the post of Accountant General is a post equated to the post of Joint Secretary to Government of India and that only civil servants, who are consistent and outstanding in their performance are posted as Joint Secretary to Government of India. According to him, he had 8 years of experience in the category of Joint Secretary and was therefore eligible and qualified to be appointed as Administrative Member in the CAT. 4. The Selection Committee constituted by the Government of India in terms of Order No.A-1013/54/90-At dated 15.4.1991 and 23.4.1991 considered the applications received from various candidates and recommended the names of the petitioner and Sri.N.Ramakrishnan, IAS for appointment as Administrative Members in the CAT. Sri.N.Ramakrishnan, IAS was appointed as Administrative Member in the CAT, Ernakulam Bench. Since the petitioner was not appointed, he filed this Writ Petition on 6.6.2005, joining the Government of India represented by the Secretary, Ministry of Personnel as the sole respondent, contending that as the Selection Committee has recommended his name, the action of the Government of India in WP(C) 16915/05 -: 3 :- denying appointment to him is arbitrary and discriminatory and violative of the fundamental rights guaranteed to him under Articles 14 and 16 of the Constitution of India. He has further contended that two vacancies of Administrative Members existed in the CAT, Ernakulam Bench, that Sri.N.Ramakrishnan IAS, one among the two persons recommended by the Selection Committee for appointment against the said vacancies was appointed and that as per the norms, the Government of India is bound to appoint him as Administrative Member in the CAT, Ernakulam Bench. The petitioner has in the Writ Petition placed reliance on the decision of the High Court of Himachal Pradesh in Kali Das Batish v. Union of India & others - 2005(1) SLR 412 and the decisions of the Apex Court in Maneka Gandhi v. Union of India - AIR 1978 S.C. 597, E.P. Royappa v. State of Tamil Nadu - 1974 (1) SLR 497 SC and Ramana Dayaram Shetty v. The International Airport Authority of India - AIR 1979 S.C. 1628 relied on by the High Court of Himachal Pradesh in support of his contentions. In the Writ Petition as filed, the petitioner had prayed for a writ in the nature of mandamus commanding the Government of India to appoint him as Administrative Member in the CAT, Ernakulam Bench. After the Writ Petition was filed, Smt.Sathi Nair, the additional second respondent in the Writ Petition was appointed as Vice Chairman of the CAT by Ext.R2(a) order dated 22.10.2003 and posted in the Chennai Bench. Later, by Ext.R2(b) order dated 3.6.2005, she was transferred to the Ernakulam Bench. The petitioner thereupon filed I.A.No.93 of 2006 WP(C) 16915/05 -: 4 :- to implead her as the additional second respondent in the Writ Petition and I.A.No.2831 of 2006 to amend the Writ Petition by incorporating a prayer to quash the appointment of the additional second respondent as Administrative Member of the CAT, Ernakulam Bench. Both the applications have been allowed. 5. The first respondent has filed a counter affidavit denying and disputing petitioner's averment that the Selection Committee had recommended him along with Sri.N.Ramakrishnan, IAS for appointment as Administrative Member in the CAT, Ernakulam Bench. The first respondent has also raised a contention that the Writ Petition is based on surmises and conjectures and that the allegations in the Writ Petition are baseless and are not tenable. It is also stated that the Union of India has filed an appeal before the Apex Court, challenging the correctness of the decision of the High Court of Himachal Pradesh in Kali Das Batish v. Union of India & others - 2005(1) SLR 412, that the judgment of the High Court of Himachal Pradesh has been stayed by the Apex Court and that a final verdict in the matter is awaited. 6. The petitioner has filed a reply affidavit dated 3.7.2005 and an additional reply affidavit dated 16.7.2008. In the reply affidavit dated 3.7.2005, the petitioner has stated that he had applied to the Central Public Information Officer (Administrative Tribunal) to disclose the reason for which he was denied appointment, that in Ext.P4 letter dated 22.11.2005 the Central Public Information Officer (Administrative WP(C) 16915/05 -: 5 :- Tribunal) informed him that the Selection Committee had not finally recommended him for appointment as Administrative Member in the CAT, that as the answer contained in Ext.P4 was vague, he had sent Ext.P5 letter dated 23.8.2006 to the Central Public Information Officer (Administrative Tribunal) requesting him to give the specific reason for denying him appointment, that in Ext.P6 reply dated 8.9.2006, the Central Public Information Officer (Administrative Tribunal) informed him that he was initially recommended by the Selection Committee for appointment as Administrative Member, that after receipt of the verification report on his character and antecedents, the matter was resubmitted for consideration by the Selection Committee and that as the report was adverse to him, the Selection Committee withdrew their earlier recommendation to appoint him and that the recommendation of the Selection Committee to withdraw their earlier recommendation to appoint him as Administrative Member was concurred with by the Honourable the Chief Justice of India and approved by the appointing authority. The petitioner has further stated in the reply affidavit dated 3.7.2005 that though he had submitted Ext.P7 appeal against Ext.P6, it was turned down by Ext.P8, that he thereupon submitted Ext.P9 appeal to the Central Information Commission and that till date, the appeal has not been disposed of or the information sought made available to him under the Right to Information Act, 2005. 7. In the additional reply affidavit dated 16.7.2008, the petitioner WP(C) 16915/05 -: 6 :- has averred that though the report of the Intelligence Bureau was not furnished to him, it was furnished to Sri. Ram Kishore Prasad, an Advocate practising in the High Court of Jharkhand who was also denied appointment as Judicial Member of the CAT. A copy of the letter sent by the Central Public Information Officer (Administrative Tribunal) to Sri.Ram Kishore Prasad together with the relevant portions of the files is produced and marked as Ext.P10. In Ext.P10, it is stated that while the petitioner was the Accountant General of Kerala, he had to face an enquiry in connection with the recruitment of contingency staff from among the relatives of Class IV staff in the office of the Accountant General and that as the report of enquiry was not favourable to him, he proceeded on voluntary retirement. The petitioner submits that there is no truth in the allegations levelled against him in Ext.P10 and that the report submitted by the Intelligence Bureau was false. He relies on Ext.P13 letter dated 26.6.2008 sent by the Central Public Information Officer in the Office of the Comptroller & Auditor General of India to contend that no enquiry whatsoever was held in connection with the recruitment of contingency staff in the office of the Accountant General of Kerala and that the report submitted by the Intelligence Bureau was one engineered by Sri.K.J.Alphonse, IAS, with whom he was not on good terms. The petitioner also submits that as the Managing Trustee of Resurgent Educational and Charitable Trust he had sacked its Director Sri.K.J.Roy, brother of Sri.K.J.Alphonse, IAS for indulging in corrupt WP(C) 16915/05 -: 7 :- practices and that it infuriated and prompted Sri.K.J.Alphonse to engineer the submission of a false report by the Intelligence Bureau. 8. I have heard Sri.S.Kalyanam, the learned Senior Advocate appearing for the petitioner, Sri.P.Parameswaran Nair, the learned Assistant Solicitor General of India appearing for the first respondent and Sri.S.Radhakrishnan Nair, the learned counsel appearing for the additional second respondent. The learned Senior Advocate appearing for the petitioner, relying on Ext.P13 letter submitted that the information which led to the petitioner's disqualification, is not correct and that the Intelligence Bureau had at the instigation of Sri.K.J.Alphonse, IAS, filed a false report as regards the petitioner's character and antecedents on extraneous considerations and without verifying the facts, solely with a view to deny him appointment as Administrative Member in the CAT. The learned Senior Advocate appearing for the petitioner contended that as it is now evident that the note submitted by the Joint Secretary did not reflect the true state of affairs and as Ext.P13 proves that there was no enquiry against the petitioner as reported by the Intelligence Bureau, the Government of India is bound to reconsider its earlier decision and to appoint the petitioner as Administrative Member of the CAT. The learned Senior Advocate contended that it was at the intervention of Sri.K.J.Alphonse, IAS, who is named in Ext.P10 itself that a false report about the character and antecedents of the petitioner was submitted by the Intelligence WP(C) 16915/05 -: 8 :- Bureau and that as no enquiry as reported by the Intelligence Bureau was ever held against the petitioner, the injustice meted out to the petitioner has to be remedied by this Court. He contended that as the decision taken by the first respondent not to appoint the petitioner was prompted by a mistaken belief as regards the existence of a non-existing fact or circumstance, the decision is unreasonable and that such a decision which is based on reasons of fact which did not exist has therefore to be held to be an abuse of power. The learned Senior Advocate appearing for the petitioner, relying on the decisions of the Apex Court in State of Madhya Pradesh and another v. Bhailal Bhai and others - A.I.R. 1964 S.C. 1006, S.R. Venkataraman v. Union of India and another - A.I.R. 1979 S.C. 49, R.S.Mittal v. Union of India - 1995 Supp (2) S.C.C. 230 and Dr.A.K. Doshi v. Union of India - (2001) 4 S.C.C. 43 contended that as the petitioner has demonstrated that the report submitted by the Intelligence Bureau was based on a non-existing fact, the decision taken by the first respondent not to appoint him, is liable to be set aside and the petitioner is entitled to be appointed. 9. Per contra, the learned Assistant Solicitor General appearing the first respondent contended that as the Selection Committee chaired by a Sitting Judge of the Honourable the Supreme Court of India had withdrawn their earlier recommendation to appoint the petitioner and as the Honourable the Chief Justice of India had concurred with the decision of the Selection Committee and the appointing authority had accepted it, WP(C) 16915/05 -: 9 :- the petitioner cannot challenge his non-selection and seek a writ in the nature of mandamus commanding the Government of India to appoint him as Administrative Member in the CAT. He also relied on the decision of the Apex Court in Union of India & others v. Kali Das Batish and another - A.I.R. 2006 S.C. 789 to contend that the decision taken by the Selection Committee to withdraw their earlier recommendation and the decision taken by the appointing authority not to appoint the petitioner are not justiciable and that this Court cannot therefore exercise the power of judicial review and issue a writ in the nature of mandamus commanding the first respondent to appoint the petitioner as Administrative Member in the CAT. The learned counsel appearing for the additional second respondent submitted that the second respondent has ceased to hold office and that the relief prayed for against the second respondent has become infructuous by efflux of time. 10. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Shorn off details, the petitioner's contention is that the Selection Committee which had initially recommended him for appointment as Administrative Member in the CAT withdrew their recommendation on the basis of a false report filed by the Intelligence Bureau which was furnished to them by the Joint Secretary (AT) along with Ext.P10 note and therefore the petitioner is entitled to be appointed as Administrative Member in the CAT. Since the controversy centres round the correctness of the statements in Ext.P10, the relevant WP(C) 16915/05 -: 10 :- portions thereof are extracted below: “Joint Secretary (AT) In its meeting held on 11.10.04, the Selection Committee for Vice-Chairman/Members of the Central Administrative Tribunal, recommended three persons for appointment as Administrative Member and three persons for appointment as Judicial Member. The Committee also recommended one candidate to be placed on the Waiting List for Administrative Member and one candidate to be placed on the Waiting List for Judicial Member. 2. After seeking approval of MOS (PP) and concurrence of the Chief Justice of India, proposals for the appointment of three Judicial Members and one Waiting List Judicial Member and for the appointment of two Administrative Members and one Waiting List Administrative Member have been forwarded to the ACC. One case of Administrative Member has been under process because a reference was made to the Intelligence Bureau. 3. The IB inquiry process is normally used only in the cases of Members of the Bar who are being considered for posting as Judicial Members. Such IB inquiry is not asked for in the cases of Administrative Members, or of officers of the Judicial Services being considered for Judicial Member because all such persons would have a service record, ACRs etc. The case of Shri James K.Joseph, IA & AS (Retd) was however referred to the IB because Shri. Joseph had taken voluntary retirement from service in May, 1996. WP(C) 16915/05 -: 11 :- Given the long period that elapsed from his retirement and the absence of vigilance status, ACR dossier, etc. orders of MOS (PP) were obtained in 18.10.04 and the case referred to IB. 4. The IB's comments have been received in note of 17.12.04. The report makes mixed reading. There are references to Shri Joseph's association with the BJP, though having retired from Government service, Shri James K. Joseph is free to take part in political activities. There is also a reference to an ongoing feud between him and Shri.K.J.Alphonse, IAS, on a matter related to the Resurgent Kerala Educational and Charitable Trust, Trivandrum. It should be noted that we have independently received various documents from Shri K.J. Alphonse related to the same matter. It should also be noted that while the complaints against Shri.James K.Joseph are serious, Shri. K.J. Alphonse himself is highly controversial and no judgment can be passed in the matter without a better knowledge of the facts. 5. There is yet another issue mentioned in the IB report which is probably more serious. It is stated that during his posting as Accountant General, Kerala, Shri. Joseph had faced an inquiry in connection with recruitment of some contingency staff from amongst relatives of Class IV staff of the AG Office. The IB report clearly states that the inquiry report in the matter was unfavourable and that Shri.Joseph had consequently proceeded on voluntary retirement. 6. In my view, this is a fairly serious complaint. We do WP(C) 16915/05 -: 12 :- not have details of inquiry report with us, but I do not also think it is worthwhile to make inquiries from the AG's office at this stage. Given the information revealed by the IB report, it seems fairly clear that Shri.James K. Joseph's general reputation is somewhat controversial. In the circumstances, it is recommended that we do not accept the recommendation of the Selection Committee. It should be made clear that the facts brought out by IB were not brought to the attention of the Selection Committee which had before it only a simple CV of Shri. James K. Joseph. 7. We may accordingly seek orders of MOS(PP) to reject the recommendation of the Selection Committee. Since the proposal to appoint the two other Admn. Member and a Waiting List candidate is already in ACC, there should be no difficulty about filling the vacancy with the Waiting List candidate.” 11. The pleadings and the materials on record disclose that the Selection Committee that met on 11.10.2004 had recommended the name of the petitioner for appointment as Administrative Member of the CAT, that as the petitioner had retired from service in May, 1996 his case was referred to the intelligence Bureau for verification of character and antecedents and that the Intelligence Bureau had in its note dated 17.12.2004 reported that while the petitioner was the Accountant General of Kerala, he had faced an enquiry in connection with the recruitment of contingency staff from amongst the relatives of Class IV WP(C) 16915/05 -: 13 :- staff of the Accountant General's office, that the report of enquiry was unfavourable to the petitioner and consequently he proceeded on voluntary retirement. After the report of the Intelligence Bureau was received, the Joint Secretary (AT) prepared the note evidenced by Ext.P10 which I have extracted above on 24.12.2004. Thereafter, as can be seen from Ext.P6, the file was placed before the Selection Committee as directed by the Honourable the Chief Justice of India and in view of the report submitted by the Intelligence Bureau, the Selection Committee withdrew their earlier recommendation to appoint the petitioner as Administrative Member of the CAT. Ext.P6 also discloses that the recommendation of the Selection Committee to withdraw their earlier recommendation to appoint the petitioner as Administrative Member in the CAT, was concurred with by the Honourable the Chief Justice of India and approved by the appointing authority. It is in this background that this Court has to consider whether the petitioner is entitled to seek a writ in the nature of mandamus commanding the first respondent to appoint him as Administrative Member in the CAT. 12. I shall now refer to the decisions of the Apex Court relied on by the learned Senior Advocate appearing for the petitioner. In State of Madhya Pradesh and another v. Bhailal Bhai and others (supra) a Constitution Bench of the Apex Court considered the question whether the High Court has power under Article 226 of the Constitution to order refund of tax which was illegally collected. It was held that if a right has WP(C) 16915/05 -: 14 :- been infringed - whether fundamental right or statutory right - and the aggrieved party comes to the court for enforcement of the right, it will not be giving complete relief if the court merely declares the existence of such right or the fact that the existing right has been infringed. The Apex Court also held that where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient and that where the right has been actually invaded, the High Courts have the power to give consequential reliefs for the purpose of enforcement of fundamental rights and statutory rights. In S.R.Venkataraman v. Union of India and another (supra), the Apex Court was dealing with the case of a public servant ordered to be retired prematurely in public interest. Taking note of the admitted fact that there was nothing on record which would justify an order prematurely retiring the appellant from service, the Apex Court held that when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance, there would be an error of fact and that what is done under a mistaken belief, might almost be said to have been done in bad faith. It was held that an administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power. 13. In R.S. Mittal v. Union of India (supra), the Apex Court while considering the question whether the Appointments Committee of the Cabinet was entitled to deviate from the recommendation made by the WP(C) 16915/05 -: 15 :- Selection Board, held that though a person on the select panel has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select panel or act on its whims. It was held that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then there is no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person, who is on the select panel. On the facts of the case, the Apex Court held that no reason whatsoever, not to talk of a justifiable reason has been given as to why the appointments were not offered to the candidates recommended by the Selection Board and accordingly directed the recommendations of the Selection Board to be placed before the Appointments Committee of the Cabinet. In Dr.A.K.Doshi v. Union of India (supra), the Apex Court considered the