KUDRAT SANDHU versus UNION OF INDIA AND ANR. on 22 February 2018

O R D E R

B

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

“1. Staying the composition of Search-cum-Selection CommitteeCas 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 andAdministrative Members. A further direction to constitute aninterim Search-cum Selection Committee during the pendencyDof this W.P. in respect of both Judicial/Administrative membersas under :

a. Chief Justice of India or his nominee - Chairman

b. Chairman of the Central Administrative Tribunal - MemberEc. Two Secretaries nominated by the Government of India -Members

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

3. Stay the terms of office of 3 years as prescribed in Column 5Fof the Schedule to the Tribunal, Appellate Tribunal and otherAuthorities (Qualification, experience and other conditions ofservice of members) Rules, 2017. A further direction fixing theterm of office of all selectees by the aforementioned interimSearch-cum Selection Committee and consequent appointees asG5 years.

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

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

consequential appointment of all the selectees as Chairman/Judicial/Administrative members for a term of 5 years withconditions of service as applicable to Judges of High Court shallnot be affected by the final outcome of the Writ Petition.”

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

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

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

3. The Court accepted the suggestions together with themodifications which weredesired by the Attorney General. The operativedirection reads thus:

“In view of the aforesaid, we accept the suggestions and directthat the same shall be made applicable for selection of theChairpersons and the Judicial/Administrative/Technical/ExpertMembers for all tribunals.”

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

“As some Committees had proceeded, the matter was listed forfurther hearing. We have heard learned counsel for the parties.Mr. Rohit Bhat, learned counsel assisting the learned AttorneyGeneral for the Union of India shall file the status of the selectionprocess 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 Advocates-on-Record a joint memorandum with regard to which tribunals A

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D

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

Orders reserved.”

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

C6. The tabular chart submitted by the Attorney General indicatesthe following details individually in respect of 19 tribunals:

(i) Whether the SCSC has been constituted;

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

(iii) Whether applications have been received;

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

(v) Whether appointments have been made.

E

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

F7. 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 Exciseand Service Tax Appellate Tribunal (CESTAT), applications wereGreceived for judicial and technical members pursuant to advertisementsissued under the directions of the SCSC.Interviews have been conductedand the Appointments Committee of the Cabinet has approved theproposal for filling up vacant posts of judicial members. The above positionindicates that the process of selection has been substantiallycompleted.Hence, we clarify that the selection process in respect of theH

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

DRT and DRAT

8. For the Debts Recovery Tribunal, the chart submitted by thelearned Attorney General indicates that the selection process has beencompleted and appointments of Presiding officers have been made. Thisbeing the position, the selection process in respect of the DRT shall notbe affected. In respect of the DRAT also, the selection process hasbeen completed and will hence be taken to its logical conclusion.

CAT

9. In respect of the Central Administrative Tribunal, the chartsubmitted by the learned Attorney General indicates that after theconstitution of the SCSC, vacancies were advertised and applicationshave been received both for judicial and administrative members. Twomeetings have been held by the SCSC for judicial members; shortlistingcriteria were finalised and 67 candidates have been shortlisted. In theabove situation, the selection process for judicial members of CAT shallproceed unhindered by the previous directions dated 9 February, 2018and shall be taken to its logical conclusion. Since no substantial stepshave taken place in regard to the appointments of Administrative membersof CAT, the directions contained in the order dated 9 February 2018shall apply.

NCLAT

10. As regards the National Company Law Appellate Tribunal,the chart submitted by the learned Attorney General indicates that theexisting selection committee has the same composition as provided forin the new rules. Advertisements inviting applications were issued and141 applications have been received by the SCSC. We clarify that theselection process for the NCLAT shall continue and shall not be affectedby the interim directions dated 9 February 2018.

NCDRC

11. For the appointment of the President of the National ConsumerDisputes Redressal Commission,the applications received have beenforwarded to the Chief Justice of India by the Ministry for ConsumerAffairs, Food and Public Distribution. A recommendation is to be made A

B

C

DE

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

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

AAR

C

13. For the Authority for Advance Ruling, a nomination wasreceived by theUnion government from the Chief Justice of India.However, before the appointment was made, the nominated candidatedied. A fresh nomination is to be made by the CJI.

14. The Chairperson of the Search and Selection Committee forDselection of the Vice Chairman, nominated by the Chief Justice of Indiahas made recommendations.

APTEL

15. The Chairperson of the SCSC has been nominated forrecommending the appointment of Chairperson of the Appellate TribunalEfor Electricity. The Committee has initiated the process and is ascertainingwillingness of eligible persons. The work of the Committee may proceedunhindered by the order dated 9 February 2018.

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

Sl No. Tribunal / Existing Whether Status of Total Interviews SelectioAppellate Vacancy SCSC selection N umberconducted n made / Tribunal constitute process s of Final and Other under New applica-Appoin-Authorities Rules. If tions as tment yes, its received composition 1 Appellate 1 Vacancy SCSC Advertised 12 NA NA Tribunal for Member constituted on applicatiunder for post of 11.10.2017 ons SAFEMA member. received Act G

H

2 Railway 02 Vacancies SCSC VC/Tech-NA NA NA AClaims to the post of Constituted. Proposal put Tribunal Vice up to Board Chairman – for Technical circulation of Vacancy 3 vacancies to Notice Bthe post of Technical For post of Member Technical Member- 1[st]Judicial Round Member-08 meeting held posts on 7.02.2018 Cand IB clearance sought Proposal put Dup to Board for circulation of Vacancy Notice 3Securities NilSCSC Not N.A.N.A.N.A.N.A.EAppellate constituted. Tribunal 4Airport 01 vacancy SCSC Vacancy 17Interviews NAAppellate for post of Constituted. circulate not yet Tribunal Chairman issued conducted F5Telecom One vacancy SCSC AdvertisemeNANANADisputes in respect of a Constituted. nt for the Settlement Member will post of and arise on Member, Appellate 12.5.2018 TDSAT will Tribunal be issued in a G(TDSAT) day or two so as to fill the vacancy arising on 12.05.2018 H

1012SUPREME COURT REPORTS[2018] 2 S.C.R.A6Appellate 01 vacancy SCSC Not yet Vacancies 09 NONOBoard for post of constituted. advertised applications Under Vice in received for Trade Chairman, 01 November, post of Vice Marks Act vacancy for 2017 Chairman, post of 14 Technical applications BMember receiver for (Trade Mark), post of 01 vacancy Technical for post of Member Technical (Trade Member Mark), 17 C(Patent) and applications 02 vacancies received for for post of Technical Technical Member Member (Patent) and (Copy right) 15 applications Dreceived for Technical Member (Copy right) 7 Film 02 vacancies SCSC not NA NA NA NA Certificatiofor post of constituted, En Appellate Members although the Tribunal w.e.f. process for 30.12.2017 constituting the same has been initiated. 8Armed 8-Composition AdvertisemNANA NAFForces Administrativof the ent issued Tribunal e Members Selection on committee 20.07.2017 under the old (for the post 8- Judicial rules and the of 6 SCSC under AdministratMembers the new rules ive Gfor vice Member); chairperson, judicial member and administrative member is the same. H

The earlier Advertisement Aselection issued on committees 08.08.2017 – are for the post of therefore 1 Judicial continuing. Member; BAdvertisement issued on 06. 11.2017 - for the post of 7 Judicial Members and 2 CAdministrative Members 9 National Chairperson- 01 SCSC Process 83 Date is NA Green Constituted initiated applications awaited Tribunal received for Judicial Members post of DJudicial – 05 Date of advertisement Member Expert Member- – 29.08.2017 and 169 07 applications received for Note : Apart from post of the above expert Evacancies, Justice members M.S. Nambiar, Judicial Member superannuated on 2.01.2018 and Shri S.B. Sajwan Expert Member Fsuperannuated on 9.12.2017. 10Income Tax President – 01SCSC not NA NA NA NAAppellate yet Tribunal constituted. GSCSC NO NA NA NA NO Constituted Vice President Member-24 SCSC not NANANANAvacancies yet 6 vacancies constituted. H

AFor the Armed Forces Tribunal (AFT), the composition of the SelectionCommittee under the old rules and the SCSC under the new rules forvice chairperson, judicial members and administrative members is thesame. Recommendations have been made. The selection may henceproceed for AFT (Serial No. 8 above).

17. As regards the selection of the President of the ITAT, arecommendation has already been made. Hence, the selection processwill be taken to its logical conclusion. The SCSC for the rest of thetribunals in the above chart (other than Serial No. 8) shall be governedby the interim directions dated 9 February 2018.

B

C18. In all cases where the CJI has nominated the Chairperson ofthe SCSC for making recommendations for appointment of Chairperson/ President / Presiding Officer of any tribunal and the Committee hasbegun its work by holding a meeting, the process will continue on thebasis of the terms and conditions and eligibility stated in the advertisementissued or, as the case may be, as notified on the directions of the SCSCDfor ascertaining expression of interest.

19. All recommendations made or to be made by any SCSC asreferred to above for appointment of Chairperson and/or members shallbe processed further without being affected by the order dated 9 February2018.

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Divya Pandey Directions issued.

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