- (1.) M. Katju, J. Heard Sri V. B. Singh and Sri P. S. Baghel, learned Counsel for the petitioner, Sri A. K. Singh, learned Counsel for Union of India, Sri Shashi Nandan, learned Counsel for Respondent No. 4 and Sri Navin Sinha and Sri Anurag Khanna, learned Counsel for Respondent No. 5. We have also heard Mr. Chandra Shekharan, learned Counsel who has filed an affidavit on behalf of Smt. Lakshmi Swaminathan, Vice Chairman (Judl.), Central Administrative Tribunal, Principal Bench, New Delhi.
(2.) THE point raised in this case is a matter of great moment. THE question involved is whether the Presiding Judge of the Central Administrative Tribunal in India can be a member from the purely executive wing of the State. We are of the opinion that he cannot, and that is why we are giving a detailed judgment as this matter is of great legal and constitutional importance in our country. The petitioner has challenged the panel prepared for the posts of Vice Chairmen in various branches of the Central Administrative Tribunal in India and he has prayed for preparation of a fresh panel. In this case on 25-2-2002 we passed the following interim order : "heard Sri V. B. Singh, learned Senior Advocate and Sri P. S. Baghel Advocate for the petitioner and learned Counsel for the Central Government. Learned Counsel for respondents prays for and is granted 3 weeks to file counter-affidavit. Issue notice to Respondent Nos. 4, 5 and 6 returnable at an early date. List peremptorily on 24-3-2002 on which date the petition may be finally disposed off. '' The petitioner has prayed for quashing the panel prepared for the post of Vice Chairman in various benches of the Central Administrative Tribunal (hereinafter referred to as CAT ). Section 6 (2) of the Administrative Tribunal Act, 1985 states : "a person shall not be qualified for appointment as the Vice Chairman unless he is or has been (or is qualified to be) a Judge of a High Court, or (a) has, for at-least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India ; or (b) has for at-least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India ; or (c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member. " At first glance a perusal of the above provision gives the impression that even a Secretary or Additional Secretary to the Government of India can be appointed as Vice Chairman. However, we are of the opinion that Section 6 (2) cannot be read in isolation but it must be read alongwith Article 50 of the Constitution, which states : "separation of judiciary from executive.-The State shall take steps to separate the judiciary from the executive in the public services of the State. " The object of Article 50 of the Constitution was that there should be separation of the judiciary from the executive so that there may be an independent judiciary in which alone the public can have confidence. This view is also supported by the decision of the Supreme Court in State of Maharashtra v. Labour Law Practitioner's Association and others, AIR 1998 SC 1233. In our prima facie opinion the Vice Chairman of CAT can only be a sitting or retired High Court Judge or an Advocate who is qualified for appointment as a High Court Judge. A person who has been in executive service for 20 to 30 years naturally develops a pro-executive approach and his thinking process becomes coloured thereby. However, since the CAT is a judicial body that has to decide judicial matters it must function as an independent body, as that alone can inspire the confidence of the public. A person who comes from a legal background has an independent mind, whether he is or has been a High Court Judge or an Advocate having more than 10 years practice. We are not expressing any opinion on the point whether a member of the Tribunal should also be a person with a legal background. However, we are certainly of the opinion that the Vice Chairman must be a person with a legal background since the person who presides over a bench must inspire confidence in the public. The very object of Article 50 will be subverted, in our opinion, if the Presiding Officer is a person from the executive. The Directive Principles in the Constitution cannot be treated as merely ornamental, as held by the Supreme Court in Keshavananda Bharti v. State of Kerala, 1973 (4) SCC 225; Minerva Mills v. Union of India, 1980 SC 1789 and Unnikrishnan v. State of A. P. , 1993 SC 2178. In our opinion the persons who have been Secretary or Additional Secretary of the Government of India can only be appointed as Vice Chairman in exceptional circumstances if no persons with a legal background as mentioned in clause (a) of Section 6 (2) is available, and even in this situation such appointment can only be a stop gap arrangement for a short period till the person mentioned in Clause (a) of Section 6 (2) become available. We make it clear that we are not making any derogatory comment on members of the executive, many of whom are doing their duty excellently and honestly. We are only concerned with the confidence of the public in the judiciary, which is only possible if the judiciary is not only independent but also appears to be independent. In the circumstances we direct that in the panel which has been prepared for appointment of Vice Chairman of various Benches of CAT, and in future panels also, only the persons referred to Section 6 (2) (a) can be appointed as the Vice Chairman of the various benches of the CAT. Let a copy of this order be communicated forthwith by the Registrar General of this Court as well as the learned Counsel for the Central Government to the Union Law Secretary, New Delhi and Chairman of the CAT, New Delhi. The petitioner may also communicate it to the appropriate authorities. Let a copy of this order may be given to the Counsel for the parties on payment of usual charges today.
(3.) THEREAFTER on 6-3-2002 we passed the following interim order : "this writ petition had been ordered to be listed on 24-3-2002, but it appears that day is a Sunday. Hence we direct that this writ petition be listed on 2-4-2002. We further direct the Chairman, Central Administrative Tribunal, New Delhi to serve copies of the writ petitions and notices to all the Vice Chairman of the various benches of the Tribunal who were Secretary or Additional Secretary to the Government of India i. e. who come from the Executive side. We feel this order would be in the interest of justice because the petitioner may not be able to get the names and addresses of such persons and hence it would be convenient if the Chairman, Central Administrative Tribunal, New Delhi is directed to serve all such Vice Chairman by special messenger including Respondent Nos. 4, 5 and 6. Copy of this order will be given to the learned Counsel for the parties on payment of usual charges within 24 hours and learned Counsel for the petitioner will communicate this order by courier service/speed post service to the Chairman, Central Administrative Tribunal, New Delhi alongwith sufficient copies of the petition. This order may also be communicated by the learned Counsel for the Central Government to the Chairman, Central Administrative Tribunal, New Delhi. We make it clear that all the Vice Chairman of the Central Administrative Tribunal in various benches who are from Executive side will be deemed to be respondents in this case and they may appear themselves or through Counsel on 2nd April, 2002 on which date the petition will be finally disposed off. Such Vice Chairman should show cause why their appointments be not quashed. List before us on 2-4-2002. " This case was listed before us on 2-4-2002 on which date it was adjourned to enable the parties to exchange any further affidavits, if they so wanted.;