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Govt ‘cherry picking’ appointments of tribunal members, our selection ‘waste of time’, SC says

Modi govt claims it had notified 84 appointments in three different tribunals —NCLT, AFT and ITAT — on 12 September. It was pulled up even for these appointments.

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New Delhi: For the third time in less than three weeks, the Supreme Court Wednesday admonished the government over appointment of members in statutory tribunals.

A special bench led by Chief Justice N.V. Ramana and comprising Justices D.Y. Chandrachud and L.N. Rao called the emerging situation due to the large number of vacancies in tribunals “pitiful”.

The reaction came even as the government claimed it had notified 84 appointments in three different tribunals — National Company Law Tribunal (NCLT), Armed Forces Tribunal (AFT) and Income Tax Appellate Tribunal (ITAT) — on 12 September, days before the Wednesday hearing.

The Centre was pulled up even for these appointments, with the court taking objection to the “cherry picking” by the government. The bench asked the government why it chose to appoint only a few from the list that was finalised by the search-cum-selection committee (SCSC), which is, according to legal requirement, headed by a sitting SC judge.

SCSC also has two senior civil servants — law secretary and secretary of the parent ministry of the tribunal — as its members.

Attorney General K.K. Venugopal responded saying the government is entitled to make a choice. He cited the current law, The Tribunal Reforms Act, 2021, on functioning of tribunals to assert the Centre’s dominance over such appointments.

This prompted the bench to remark, “What is the sanctity of the selection process, if the government has the last word? What is the purpose?”

The judges called the entire selection procedure a “waste of time”, adding a “lot of effort” is put in to finalise the selections that are made on the basis of inputs provided by the government itself.

They reminded Venugopal that the court had in November 2020 directed the government to set up an independent body, National Tribunal Commission, but there was no response yet.

“We are very unhappy with the way things are going on and decisions are taken. There is a problem and everyone is aware of it. We gave the solution, which is appointments and it is for you to implement it. Without inviting orders from this court, if you can do something we will be happy,” the CJI told Venugopal.

Venugopal was then given two more weeks after he assured the bench that the names that made it to the final list of selection issued by SCSC but were left out will be reconsidered. He also agreed to come back with a response by then with regard to appointments in the other tribunals.

The court was hearing a set of petitions highlighting the rising vacancies in tribunal that has virtually left these quasi-judicial bodies defunct. Some petitions have also been filed seeking contempt action against the government for introducing a law to govern the selection and service conditions of tribunal members in violation of the top court orders.

Until the next hearing, the court said it would “hold its hands” as far as contempt petitions are concerned. However, it told the AG that it expected some positive developments before the next hearing. 

To be sure, the Tribunal Reforms Act is also under challenge and the top court has already issued notice on a petition challenging it. On Wednesday, the court also issued notice on a separate petition filed by the Madras Bar Association, on whose challenge the court had in July this year struck down an ordinance. Significantly, the Act has been introduced with the same provisions that were declared invalid in the July verdict.

Also read: Not going to reopen decision on granting reservation in promotion to SCs and STs, SC says

AG relies on ‘struck down provisions’ to justify ‘cherry picking’

At the outset of the hearing, Venugopal informed the bench about the 84 appointments. He said the government had acted upon all recommendations. But the judges found fault with the same and each objected to the selected appointments made.

CJI Ramana was the first to speak with regard to the appointments made for NCLT since he heads the SCSC for the same. He said the SCSC had cleared 11 names for judicial and 10 for technical. There was also a waiting list prepared to fill up the vacancies that were likely to arise in future.

However, defying service law jurisprudence, he said, the government had chosen only three names from the judicial list and four from the technical, while five appointed belonged to the waiting list.

“We don’t know what type of appointment is this. It is against service law. How can you go to the waiting list without exhausting the final list?” asked the CJI.

He pointed out a similar exercise was followed even for ITAT appointments. To this, senior counsel Arvind Dattar, the lawyer appearing for petitioner Madras Bar Association, claimed the government had appointed only 13 out of 40 names that were recommended by SCSC.

Venugopal defended the government’s move by referring to a provision under the new Act. But Justice Chandrachud promptly reminded him that he was relying on the provision that was held unconstitutional by SC in its July verdict.

When Justice Rao emphasised the government couldn’t have picked up people from the list prepared for the purposes of vacancies that might come up later, the AG said the government was well within its rights to do so.

The CJI responded, “We are a democratic country, but we also believe in the rule of law.”

Justice Rao spoke about his experience as the head of SCSC for TDSAT and informed the AG that more than a year ago, he along with two senior civil servants had recommended names for the tribunal. It was done under the then existing law, but no action was taken on the recommendation.

When Venugopal said one of the two candidates suggested was absorbed somewhere else, Justice Rao remarked, “If the government takes so much time, the candidates will obviously join somewhere else.”

Also read: Warrant against Kangana if she doesn’t appear on 20 September, says court in defamation case

‘Waste of time’

On the delay, the CJI told AG that one of the judicial members appointed in the NCLT was recommended two years back when he was 62. Now, the CJI said, he is 64 and as a judicial member will have only a one-year term in the NCLT.

“As part of SCSC for NCLT, I interviewed 534 candidates for judicial post and 400 odd for technical. Out of that we chose 11 for judicial and 10 for technical.  We travelled across the country for this. Despite all this, even during Covid, I agreed to hold online interviews for two days for more selections. But it seems to be a waste of time,” the CJI said.

Even Justice Chandrachud pointed out that as a SCSC head for National Consumer Disputes Redressal Commission (NCDRC), he had suggested a few names. But the final list notified by the government was truncated and no reason was given for leaving out the others.

Justice Rao further said that as the chairman of SCSC he has refused to convene a meeting to recommend chairman for TDSAT until the earlier recommendations are cleared.

On the Union government’s notification that allows transfer of jurisdiction of the Debt Recovery Tribunal, the bench expressed surprise. It asked how it is possible for someone in Jabalpur to appear before the DRT bench in Lucknow.

The court also issued notice on the plea questioning this notification and advised the government to let an existing judicial member of NCLT or ITAT in Jabalpur hear DRT cases there.

“Litigants are in distress. Once notice is issued under SARFAESI, the next step is possession. If this happens then they (litigants) will have no recourse,” the bench said.

(Edited by Amit Upadhyaya)

Also read: Both Hindus & Muslims accused in Delhi riots case, court orders two separate trials


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