KUDRAT SANDHU

UNION OF INDIA AND ANR.

(Writ Petition (Civil) No. 279 of 2017)

FEBRUARY 22, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Tribunals - Chairperson/Judicial/Administrative/Expert/ Technical members - Selection of - After considering the suggestions filed, along with modifications, order passed by Supreme Court on 9 February 2018 as an interim arrangement to govern selection in all Tribunals - However, since some of the Search-cum- Selection Committees (SCSC) had already proceeded with their work prior to the said interim order, matter listed for further hearing wherein inter alia Union of India was directed to file status of selection process by the Committees - Tabular chart filed by Union of India indicating the status of selection process in respect of 19 Tribunals - Tribunal-wise position with regard to the selections analysed by Supreme Court and directions given in respect of each of the Tribunal - Tribunal, Appellate Tribunal and Other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 279 of 2017 Under Article 32 of the Constitution of India.

WITH W. P. (C) Nos. 558, 561, 640, 1016, 788, 925, 1098 and 1129 of 2017 W. P. (C) No. 33 of 2018.

Arvind P. Datar, C. A. Sundaram, Mohan Parasaran, Sidharth Luthra, Sr. Advs., Ms. Maneesha Dhir, Karan Batura, Ms. Anushree Prashit Kapadia, Ms. Priyanka Rathi, Ms. Ruchira Goel, Vikramaditya, Arun Monga, Ms. Divya Sharma, Ms. Mayuri Raghuvanshi, Nikhil Swami, V. K. Verma, Nikhil Nayyar, Rupesh Kumar, Anand Varma, K. Krishna Kumar, Annam D. N. Rao, Advs. for the Petitioner.

[2018] 2 S.C.R. 1005

SUPREME COURT REPORTS


K. K. Venugopal, AG, S. S. Shamshery, Ms. Shraddha Deshmukh, Rukmini Bobde, Kumar Shashank, Mukesh Kumar Maroria, Zoheb Hossain, Ashok Mathur, Mrs. Anil Katiyar, Advs. for the Respondents.

The follwing order of the Court was delivered:

O R D E R

1. On 9 February 2018, an interim order was passed by this Court after considering the suggestions filed during the course of hearing. The suggestions read as follows:

"1. Staying the composition of Search-cum-Selection Committee as prescribed in Column 4 of the Schedule to the Tribunal, Appellate Tribunal and Other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017 both in respect of Chairman/Judicial Members and Administrative Members. A further direction to constitute an interim Search-cum Selection Committee during the pendency of this W.P. in respect of both Judicial/Administrative members as under :

a. Chief Justice of India or his nominee - Chairman

b. Chairman of the Central Administrative Tribunal - Member

c. Two Secretaries nominated by the Government of India - Members

2. Appointment to the post of Chairman shall be made by nomination by the Chief Justice of India.

3. Stay the terms of office of 3 years as prescribed in Column 5 of the Schedule to the Tribunal, Appellate Tribunal and other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017. A further direction fixing the term of office of all selectees by the aforementioned interim Search-cum Selection Committee and consequent appointees as 5 years.

4. All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall be with conditions of service as applicable to the Judges of High Court.

5. A further direction to the effect that all the selections made by the aforementioned interim selection committee and the

consequential appointment of all the selectees as Chairman/ Judicial/Administrative members for a term of 5 years with conditions of service as applicable to Judges of High Court shall not be affected by the final outcome of the Writ Petition."

2. The learned Attorney General had no objection to the above suggestions being adopted as an interim arrangement to govern the selections to all tribunals, except for the fourth and fifth suggestions recorded above. The Learned Attorney General suggested that the above two suggestions may be re-cast as follows:

"4. All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules.

5. A further direction to the effect that all the selections made by the aforementioned interim selection committee and the consequential appointment of all the selectees as Chairman/ Judicial/Administrative members shall be for a period as has been provided in the old Acts and the Rules."

The Court accepted the suggestions together with the modifications which weredesired by the Attorney General. The operative direction reads thus:

"In view of the aforesaid, we accept the suggestions and direct that the same shall be made applicable for selection of the Chairpersons and the Judicial/Administrative/Technical/Expert Members for all tribunals."

4. Since some of the Search-cum-SelectionCommittees (SCSC) have already proceeded with their work prior to the above order, the case was listed for further hearing on 12 February 2018.The following order was passed:

"As some Committees had proceeded, the matter was listed for further hearing. We have heard learned counsel for the parties.

Mr. Rohit Bhat, learned counsel assisting the learned Attorney General for the Union of India shall file the status of the selection process by the Committees, by 13.2.2018.

Mr. Arvind Datar, Mr. C.A. Sundaram and Mr. Mohan Parasaran, learned senior counsel shall also file through their Advocateson-Record a joint memorandum with regard to which tribunals

KUDRAT SANDHU v. UNION OF INDIA AND ANR.


are covered and not covered. The same shall be filed by 10.30 a.m. on 13.2.2018.

Orders reserved."

5. The Attorney General has in pursuance of the proceedings which took place on 12 February 2018 filed a tabular chart indicating the status of the selection process in respect of 19 tribunals.Written notes have been filed by Mr Vikas Singh, Senior Advocate and by Mr Vijay Kumar Verma, Advocate (appearing respectively in Writ Petition(Civil) No. 279 of 2017 and companion cases and Writ Petition (Civil) No. 640 of 2017).

6. The tabular chart submitted by the Attorney General indicates the following details individually in respect of 19 tribunals:

(i) Whether the SCSC has been constituted;

(ii) Whether advertisements have been issued for judicial and/or technical (or expert) members;

(iii) Whether applications have been received;

(iv) Whether the process of shortlisting or, as the case, may be holding interviews has been completed; and

(v) Whether appointments have been made.

The written submissions filed by Mr Vikas Singh, Learned Senior Advocate and Mr Verma, Advocate indicate that substantial steps have taken place in the selection process for the Central Administrative Tribunal and it is desirable that appointments be made expeditiously.

7. We will now analyse the position in regard to the selections, tribunal-wise.

CESTAT

We have been apprised of the fact that in respect of the Central Excise and Service Tax Appellate Tribunal (CESTAT), applications were received for judicial and technical members pursuant to advertisements issued under the directions of the SCSC.Interviews have been conducted and the Appointments Committee of the Cabinet has approved the proposal for filling up vacant posts of judicial members. The above position indicates that the process of selection has been substantially completed.Hence, we clarify that the selection process in respect of the

CESTAT may be completed and will not be affected by the order of this Court dated 9 February 2018.

DRT and DRAT

8. For the Debts Recovery Tribunal, the chart submitted by the learned Attorney General indicates that the selection process has been completed and appointments of Presiding officers have been made. This being the position, the selection process in respect of the DRT shall not be affected. In respect of the DRAT also, the selection process has been completed and will hence be taken to its logical conclusion.

CAT

9. In respect of the Central Administrative Tribunal, the chart submitted by the learned Attorney General indicates that after the constitution of the SCSC, vacancies were advertised and applications have been received both for judicial and administrative members. Two meetings have been held by the SCSC for judicial members; shortlisting criteria were finalised and 67 candidates have been shortlisted. In the above situation, the selection process for judicial members of CAT shall proceed unhindered by the previous directions dated 9 February, 2018 and shall be taken to its logical conclusion. Since no substantial steps have taken place in regard to the appointments of Administrative members of CAT, the directions contained in the order dated 9 February 2018 shall apply.

NCLAT

10. As regards the National Company Law Appellate Tribunal, the chart submitted by the learned Attorney General indicates that the existing selection committee has the same composition as provided for in the new rules. Advertisements inviting applications were issued and 141 applications have been received by the SCSC. We clarify that the selection process for the NCLAT shall continue and shall not be affected by the interim directions dated 9 February 2018.

NCDRC

11. For the appointment of the President of the National Consumer Disputes Redressal Commission, the applications received have been forwarded to the Chief Justice of India by the Ministry for Consumer Affairs, Food and Public Distribution. A recommendation is to be made

KUDRAT SANDHU v. UNION OF INDIA AND ANR.


by the CJI in terms of Rule 4 read with Item No. A of Column No. 4 of Serial No. 16 of the relevant Rules.

12. For judicial and non-judicial members ofNCDRC, the SCSC has shortlisted candidates. Recommendations have been made by the SCSC in February 2018. The selection process has been substantially completed. It may proceed to its logical conclusion without being affected by the directions dated 9 February 2018. However, it is made clear that the appointment of President of NCDRC is to be made by a nomination of the CJI.

AAR

13. For the Authority for Advance Ruling, a nomination was received by theUnion government from the Chief Justice of India.

However, before the appointment was made, the nominated candidate died. A fresh nomination is to be made by the CJI.

14. The Chairperson of the Search and Selection Committee for selection of the Vice Chairman, nominated by the Chief Justice of India has made recommendations.

APTEL

15. The Chairperson of the SCSC has been nominated for recommending the appointment of Chairperson of the Appellate Tribunal for Electricity. The Committee has initiated the process and is ascertaining willingness of eligible persons. The work of the Committee may proceed unhindered by the order dated 9 February 2018.

16. In the case of certain other tribunals, the chart submitted by the Attorney General is extracted below:

Sl No.

Tribunal / Appellate Tribunal and Other Authorities

Existing Vacancy Whether

SCSC constitute under New Rules.

If yes, its composition

Status of selection process

Total N umber s of applications as received

Interviews conducted Selectio n made / Final Appointment

1 Appellate Tribunal under

SAFEMA Act

1 Vacancy for Member

SCSC constituted for post of member.

Advertised on 11.10.2017

12 applicati ons received

NA NA

2 Railway Claims Tribunal

02 Vacancies to the post of Vice Chairman - Technical

3 vacancies to the post of Technical Member

Judicial Member-08 posts

SCSC Constituted.

VC/Tech- Proposal put up to Board for circulation of Vacancy Notice

For post of Technical Member- 1st

Round meeting held on 7.02.2018 and IB clearance sought

Proposal put up to Board for circulation of Vacancy Notice

NA NA NA

3 Securities Appellate Tribunal

Nil SCSC Not constituted.

N.A.

N.A.

N.A.

N.A.

4 Airport Appellate Tribunal

01 vacancy for post of Chairman

SCSC Constituted.

Vacancy circulate issued

17 Interviews

not yet conducted

5 Telecom Disputes Settlement and Appellate Tribunal

(TDSAT)

One vacancy in respect of a Member will arise on 12.5.2018

SCSC Constituted.

Advertiseme nt for the post of Member, TDSAT will be issued in a day or two so as to fill the vacancy arising on 12.05.2018

NA NA NA

KUDRAT SANDHU v. UNION OF INDIA AND ANR.


6 Appellate Board Under Trade Marks Act

01 vacancy for post of Vice Chairman, 01 vacancy for post of Technical Member (Trade Mark), 01 vacancy for post of Technical Member (Patent) and 02 vacancies for post of Technical Member (Copy right)

SCSC Not yet constituted.

Vacancies advertised in November, 2017

09 applications received for post of Vice Chairman, 14 applications receiver for post of Technical Member (Trade Mark), 17 applications received for Technical Member (Patent) and 15 applications received for Technical Member (Copy right)

NO NO

7 Film Certificatio n Appellate Tribunal

02 vacancies for post of Members w.e.f. 30.12.2017

SCSC not constituted, although the process for constituting the same has been initiated.

NA NA NA NA

8 Armed Forces Tribunal

8- Administrativ e Members

8- Judicial Members

Composition of the Selection committee under the old rules and the SCSC under the new rules for vice chairperson, judicial member and administrative member is the same.

Advertisem ent issued on 20.07.2017 (for the post of 6 Administrat ive Member);

NA NA NA

The earlier selection committees are therefore continuing.

Advertisement issued on 08.08.2017 - for the post of 1 Judicial Member;

Advertisement issued on 06.

11.2017 - for the post of 7 Judicial Members and 2 Administrative Members

9 National Green Tribunal

Chairperson- 01

Judicial Members - 05

Expert Member- 07

Note : Apart from the above vacancies, Justice

M.S.

Nambiar, Judicial Member superannuated on 2.01.2018 and Shri S.B. Sajwan Expert Member superannuated on 9.12.2017.

SCSC Constituted Process initiated

Date of advertisement - 29.08.2017

83 applications received for post of Judicial Member and 169 applications received for post of expert members

Date is awaited NA

10 Income Tax Appellate Tribunal

Vice President

6 vacancies

President - 01 SCSC not yet constituted.

NA NA NA NA

SCSC Constituted NO NA NA NA NO

Member- 24 vacancies

SCSC not yet constituted.

NA NA NA NA

KUDRAT SANDHU v. UNION OF INDIA AND ANR.


For the Armed Forces Tribunal (AFT), the composition of the Selection Committee under the old rules and the SCSC under the new rules for vice chairperson, judicial members and administrative members is the same. Recommendations have been made. The selection may hence proceed for AFT (Serial No. 8 above).

17. As regards the selection of the President of the ITAT, a recommendation has already been made. Hence, the selection process will be taken to its logical conclusion. The SCSC for the rest of the tribunals in the above chart (other than Serial No. 8) shall be governed by the interim directions dated 9 February 2018.

18. In all cases where the CJI has nominated the Chairperson of the SCSC for making recommendations for appointment of Chairperson / President / Presiding Officer of any tribunal and the Committee has begun its work by holding a meeting, the process will continue on the basis of the terms and conditions and eligibility stated in the advertisement issued or, as the case may be, as notified on the directions of the SCSC for ascertaining expression of interest.

19. All recommendations made or to be made by any SCSC as referred to above for appointment of Chairperson and/or members shall be processed further without being affected by the order dated 9 February 2018.

Divya Pandey Directions issued.