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2007 DIGILAW 1655 (PAT)

Shambhu Nath Choubey v. Union Ot India

2007-10-08

J.N.BHATT, MIHIR KUMAR JHA

body2007
Judgment Mihir Kumar Jha, J. 1. This application has been filed against the order, dated 20.12.2006 passed in O.A. No. 822 of 2004 whereby and whereunder the Central Administrative Tribunal (hereinafter referred to as "the Tribunal") had dismissed the application filed by the writ petitioner, an Advocate seeking his appointment as Presiding Officer of the Debt Recovery Tribunal as well as quashing the appointment of respondents 4 and 5 as Presiding Officer of the Debt Recovery Tribunal, Patna and Kolkata respectively. 2. The brief facts giving rise to the said application before the Tribunal as set out in the writ application is that pursuant to an advertisement, dated 11.7.2003 inviting application for the post of Presiding Officer in the Debt Recovery Tribunal at Patna, Cuttack, Kolkata and Ahmedabad, prescribing the last date of filing of the applications within 30 days of the advertisement, the petitioner, a practicing Advocate claiming to be qualified in terms of Article 233 of the Constitution of India (being eligible to be appointed as a District Judge by virtue of his being an advocate with practicing experience of more than seven years, had submitted his application for the post of Presiding Officer of the Debt Recovery Tribunal. It has been stated by the petitioner that he alongwith other eligible candidates in terms of the advertisement were called to appear in an interview conducted by a Selection Committee in the month of February, 2004. It is the case of the petitioner that his performance in the said interview was quite satisfactory and as such, he had reasons to believe that he was recommended and selected by the Selection Committee for the said post of the Presiding Officer in the Debt Recovery Tribunal. The petitioner, however, had stated that even though he had been recommended and selected by the Selection Committee, the officials of the Ministry of Finance who with a mala fide motive and manipulations did not appoint him and instead appointed others including respondent no. 4 as Presiding Officer of the Debt Recovery Tribunal, Patna. The writ petitioner, being aggrieved by the order of appointment of respondent no. 4 as contained in the letter of the Department of Economic Affairs in the Ministry of Finance, dated 8.10.2004 whereby and whereunder the respondent no. 4 was also asked to take over the charge of Presiding Officer, Debt Recovery Tribunal, Patna by 25.10.2004. The writ petitioner, being aggrieved by the order of appointment of respondent no. 4 as contained in the letter of the Department of Economic Affairs in the Ministry of Finance, dated 8.10.2004 whereby and whereunder the respondent no. 4 was also asked to take over the charge of Presiding Officer, Debt Recovery Tribunal, Patna by 25.10.2004. The petitioner had initially filed a representation before the Secretary, Department of Economic Affairs in the Ministry of Finance on 1.11.2004 requesting that the result of the selection as with regard to the Presiding Officer should be communicated to him because he had reasons to believe that he had been selected by the Selection Committee for the post of Presiding Officer, Debt Recovery Tribunal and yet he was not appointed. It is the case of the petitioner that when in response to his representation. dated 1.11.2004 he did not hear anything from the respondent officials of the Union of India, he had filed the said O.A. No. 822 of 2004 on 29.11.2004 for setting aside the appointment of respondents 4 and 5 on the post of Presiding Officer in the Debt Recovery Tribunal at Patna and Kolkata respectively as well as for a consequential direction for his appointment on the post of the Presiding Officer, Debt Recovery Tribunal either at Patna or at Kolkata. The Tribunal ultimately by an order, dated 20.12.2004 has dismissed the O.A. filed by the writ petitioner. The Tribunal in the process of dismissing the application filed by the writ petitioner had rejected that the contention of the petitioner that respondent no. 4 was not qualified to be appointed as Presiding Officer, Debt Recovery Tribunal, Patna and had also found no merit in the contention of the petitioner that the application filed by respondent no. 4 was not submitted by him within the prescribed time limit as setout in the advertisement. 3. Mr. J.P. Shukla, Senior Counsel appearing for the petitioner had taken us through the voluminous records annexed with the writ petition and on the basis of the pleadings, he had submitted that it was more than clear that the Tribunal had committed an error on record in rejecting the submission that the application filed by respondent no. 4 was within the prescribed period of one month as required under the advertisement. 4 was within the prescribed period of one month as required under the advertisement. Learned Senior Counsel in this respect with reference to the advertisement published in the Employment News, dated 11.7.2003 had submitted that the period of one month for filing of application was completed on 10.8.2003 but from the appointment letter of respondent no. 4 on record, it was more than clear that the application of respondent no. 4 was sent by the Registrar General, Rajasthan High Court to the Ministry by a letter, dated 13.2.2004 and, therefore, the application was not filed by the respondent no. 4 within the period of one month. 4. I am afraid I cannot accept this submission for the simple reason that there is no pleadings as to when the respondent no. 4 had submitted his application in response to the advertisement in question. The requirement under the advertisement in this regard was that suitable and wiling persons may send their applications with details as enumerated in the proforma enclosed with the advertisement to the Under Secretary of the Ministry of Finance and Company Affairs within 30 days of publication of this advertisement. However, it was also mentioned in the advertisement itself that the persons already in service had to send their application strictly through the organization in which they were employed and their employer were required to send such application of the concerned candidate alongwith Vigilance clearance and attested copies of annual confidential reports of last five years. In fact in the said advertisement, it was also made clear that no action would be taken on the advance copies of the application of such candidates who were already employed unless they were rooted through proper channel i.e. through their employer. The advertisement had also clearly spell out that in case of judicial officers seeking appointment on the post of Presiding Officer in the Debt Recovery Tribunal, a list of disposal of cases had also to be furnished and in case their annual confidential report was not maintained, a certificate to this effect had to be furnished by the concerned High Court alongwith the Vigilance clearance certificate. Thus, it is clear that the advertisement envisaged application from two different categories of persons, namely, those like the petitioner who were not at all in employment and other like the respondent no. 4 employed in service including Judicial Service. 5. Thus, it is clear that the advertisement envisaged application from two different categories of persons, namely, those like the petitioner who were not at all in employment and other like the respondent no. 4 employed in service including Judicial Service. 5. The filing of application directly to the Ministry was envisaged only under the first category who were not already employed elsewhere inasmuch as the employed persons in any sort of service including judicial service had to send their application only through proper channel i.e. through their employers who were required to send the same to the Ministry along with Vigilance clearance certificate and attested copies of the annual confidential reports of last five years. In view of the aforementioned imperative sort of restrictions imposed in the advertisement itself with a stipulation that no action would be taken on an advance copy of the application or that in case of a judicial officer seeking appointment on the post of President Officer in the Debt Recovery Tribunal, the details of the disposal of cases was to be furnished and. was to be certified by the employer, leave nothing for speculation that the period of one month for filing of application was confined to the first category of candidates not employed elsewhere alike the writ petitioner and advocate whose applications were to be directly sent to the Ministry as in their case, the condition of sending the Vigilance clearance report and annual confidential reports and/or records of disposal of cases was not application. 6. Turning now the case of respondent no. 4 being Judicial Officer, his application was required to be forwarded to the Ministry alongwith their Vigilance clearance, Annual Character Reports for five years and record of disposal of cases and this aspect has been examined by the Tribunal with the help of the pleadings on record including the written statement filed on behalf of respondents 1, 2 and 3 wherein it has been stated that the advance copy of the application of the respondent no. 4 was sent on 1.9.2003 and was received by the Ministry on 4.9.2003 and the application of respondent no. 4 through proper channel was received from the Registrar General, Rajasthan High Court on 9.2.2004 and was received by the Ministry on 11.2.2004. Thus, it is beyond doubt that the forwarding of the application of respondent no. 4 was sent on 1.9.2003 and was received by the Ministry on 4.9.2003 and the application of respondent no. 4 through proper channel was received from the Registrar General, Rajasthan High Court on 9.2.2004 and was received by the Ministry on 11.2.2004. Thus, it is beyond doubt that the forwarding of the application of respondent no. 4 by Rajasthan High Court even after one month could not have led to rejection of his application. In this context, the interpretation of Rule 5 by the Tribunal that the Selection Committee had to make recommendations of Judicial Officers for their appointment to the post of the Presiding Officer of the Debt Recovery Tribunal in the nomination of the High Court also seems to be perfectly justified even for holding that the submission and screening of the application of respondent no. 4 after its being sent through the High Court was well within the Rules. Thus, the first point that the selection and appointment of respondent no. 4 on the post of Presiding Officer in the Debt Recovery Tribunal was fit to be set aside on the ground of delayed submission of application in terms of advertisement is found to be unsustainable both on fact and in law. 7. Coming to the second point raised by the learned Counsel that the respondent no. 4 was not qualified to be a District Judge inasmuch as he was holding the post of only Additional District Judge has no merit. The expression "District Judge has been defined and explained under Part VII Chapter VI of the Constitution of India and under Article 236 it is absolutely clear that the expression District Judge also includes an Additional District Judge. The reliance placed by Mr. Shukla in this regard on the judgment of the Kerala High Court in the case of Mathew Daniel vs. State of Kerala & Another, reported in AIR 1996 Kerala 222 is equally misplaced inasmuch as in that case while deciding the validity of an appointment of a Judicial Officer on the post of President in the District Consumer Forum, it had been held that till the date of retirement, he had neither been placed in the rank of District Judge as defined in Article 233 of the Constitution nor on the date of his appointment as President of the Consumer Forum i.e. on 21.7.1995 he was even eligible to be a District Judge. I fail to appreciate as to how the ratio of Mathews case (supra) would apply to the facts of the present case, where there is no dispute that the respondent no. 4 was holding the post of Additional District Judge at the time his case was recommended by the Rajasthan High Court for appointment on the post of the Presiding Officer in the Debt Recovery Tribunal. 8. The Tribunal in this regard has recorded a finding of fact that the respondent no. 4 was actually holding the post of the Additional District Judge at the time of his retirement and thus in view of the clear provision under Article 236 of the Constitution laying down that the expression District Judge will also include Additional District Judge, the respondent no. 4 was fully qualified for the post of the Presiding Officer, Debt Recovery Tribunal in terms of the requirement under Section 5 of the Act. 9. The third limb of submission on behalf of the petitioner that the appointment of the respondent no. 4 was not even sustainable on merit because the prformance of the petitioner in the inter-view was better is also fit to be rejected as the Tribunal or this Court in exercise of power under Article 226 of the Constitution cannot sit over the decision of the Selec-tion Committee. There is nothing on record to show that the Selection Committee which was headed by a Judge of Supreme court had assessed the petitioner to be a better candidate than respondent no. 4. In fact such assessment of the petitioner vis-a-vis respondent no. 4 is even otherwise not permissible while exercising power of judicial review under Article 226 of the Constitution. The Tribunal has correctly held that there is no scope of judicial review in which appointment it is made with the consultation of the Apex Court and the Chief Justice of India. The reliance placed by the petitioner on the judgment of the Supreme Court in the case of Union of India and Another vs. Major Bahadur Singh, reported in (2006)1 SCC 368 is not at all applicable to the facts of the case in hand inasmuch as that was a case where promotion on the post of Lieutenant Colonel in the Army was questioned and it was held that the evaluation of all his ACRs were not correctly made by the Selection Committee. I fail to understand as to how the ratio of this case would apply to the facts of the present case where the petitioner, an Advocate, was also an applicant along with the Judicial Officers and the Selection Committee had recommended for appointment of such competent Judicial Officer to hold the post of Presiding Officer in the Debt Recovery Tribunal. There is nothing on record to show that the Selection Committee had even recommended the petitioner for appointment on the post of the Presiding Officer and it is only the self-assessment of the petitioner which has made him to believe that his performance in interview was of a high standard and he was selected and recommended by the Selection Committee for appointment on the post of the Presiding Officer, Debt Recovery Tribunal. In absence of any material to support much less prove this contention, the petitioners submission on this score must also fail. In this regard, the finding of the Tribunal that there was no basis for it to believe that the name of the petitioner was included in the select list could not be dislodged much less demonstrated by the Counsel for the petitioner to be factually incorrect and/or based on error of record and accordingly, I hold that there is no basis for the petitioner to claim that he was already selected for the post of Presiding Officer in the Debt Recovery Tribunal. The Tribunal is absolutely justified in rejecting this plea of the petitioner by also considering the aspect that even if his name as per the case of the petitioner, was included in the select list that by itself will not give him any enforceable right for being appointed on the post of Presiding Officer in preference to the respondents 4 and 5 as it is well settled that mere empanelment of a person in the course of selection does not bestow a right to the candidate for claiming appointment. 10. The last submission on behalf of the petitioner was that the Tribunal in fact had no jurisdiction over the subject matter relating to the appointment on the post of Presiding Officer in the Debt Recovery Tribunal has also been correctly repelled by the Tribunal wherein it has held that the service condition of a Presiding Officer in the Debt Recovery Tribunal came within the jurisdiction of the Tribunal. In fact, the petitioner even otherwise could not have raised the issue of the jurisdiction of the Tribunal because it was he who in his original application under Section 19 of the Central Administrative Tribunal Act vide Clause 4 of such O.A. No. 822 of 2004 as prescribed in Form No. 1 in terms of the Central Administrative Tribunal (Proceeding) Rules, 1987 had himself made a declaration to the following effect: "The applicant declares that subject matter of the order against which he wants redressal is within the jurisdiction of the Tribunal." 11. Thus, the petitioner cannot be permitted to raise this issue of jurisdiction and his blowing hot and cold in the same breath is hit by the principle of acquiescence. It is well settled that no one can approbate and reprobate and thus, the writ petitioner having taken chance before the Tribunal of assailing the appointment of respondents 4 and 5 as well as seeking a direction for his own appointment from the Tribunal after losing the case cannot raise a question of jurisdiction. In this context, I have examined the whole scheme of the Act and I am even otherwise satisfied that the matter relating to appointment and service condition of a Presiding Officer in the Debt Recovery Tribunal being a post under the Central Government can be examined and decided by the Tribunal. 12. In the result, I find no merit in the writ application filed by the petitioner and the same is accordingly dismissed. However, there will be no order as to costs. J.N.Bhatt, J. 13 I agree.