Supreme court criticises Centre for 'cherry picking' names for Tribunals

The Supreme court on Wednesday pulled up the Centre over the recent appointments in some tribunals, saying it was "cherry-picking" candidates from the recommended list and that there was "no consistency" in the selection process.

"We are very much unhappy with the way the issues are going on and how the decisions are taken, the court observed, calling the situation "unfortunate".

Observing that making appointments in tribunals is the only solution, the top court asked the Centre to do so in two weeks as the quasi-judicial bodies face a severe crunch of presiding officers as well as judicial and technical members that crippled their functioning. The Centre was also asked to apprise the court of the reasons if persons from the recommended list are not selected.

 

A three-judge special bench headed by Chief Justice N V Ramana took note of the assurance of Attorney General K K Venugopal that the Centre would make appointments in two weeks to the tribunals from the list of persons recommended by the search and selection committee.

There is no consistency, I am sorry. I do not know why you want to bring trouble in all these matters. It is very unfortunate. The government has to realise this...Subject to the consideration of the submissions made by you, so far as the appointment is concerned, the contempt is concerned, we will hold our hands for two more weeks. Let's see what will happen, the CJI said.

There are around 250 posts lying vacant in various key tribunals and appellate tribunals such as the NCLT, DRT, TDSAT and SAT.

We are waiting very patiently. A counter affidavit (reply of the Centre to the pleas) is not the solution. We are telling the government to make appointments, said the bench that also included Justices D Y Chandrachud and L Nageswara Rao.

The bench referred to specific instances of Debt Recovery Tribunals(DRT)where its Jabalpur branch has no presiding officer and the recovery cases of banks transferred to Lucknow while neither Telangana nor Andhra Pradesh had such a functional body.

The top court termed the condition pitiable and said the litigants, who are facing bank notices for attachment of properties, have no place to go as the high courts are not hearing them and they cannot be left in lurch.

It referred to the recent appointments and said that without exhausting names from the recommended list of persons, the authorities have appointed from the waitlist also and this amounted to cherry-picking.

"The appointment letters which have been issued clearly indicate they(Centre) have cherry-picked three names from the select list and others from the waitlist, ignoring others in the select list. In service law, you can't go to the waitlist ignoring the select list. What kind of selection and appointment is this?" the bench asked the Attorney General Venugopal.

With respect, I think we are very much unhappy with the way the issues are going on and how the decisions are taken. I want to tell you one thing I am also one of the persons who was part of the selection committee for NCLT. We have interviewed 534 candidates for judicial posts and 425 for technical posts, the CJI said, adding that the names recommended after such a task were not appointed as desired.

The CJI said the Supreme Court judges undertook an elaborate exercise to shortlist the names during the COVID pandemic and the entire efforts are going in vain.

The bench asked what would be the sanctity of recommendations of the selection committee if the government chooses to act at the last stage and the persons who are conducting the interview are ultimately not heard in the appointments.

Justice Rao shared their experience in recommending names for Telecom Disputes Settlement and Appellate Tribunal (TDSAT) and said the names have not been considered for appointments for almost one-and-half years.

The CJI said that after interviewing 534 candidates for judicial posts and 425 technical posts, 11 judicial and 10 technical members were recommended for appointment in the NCLT.

We are taking into consideration all inputs and making recommendations in order of merit for appointing judicial and technical members in NCLT. Out of these 11 selected judicial members, they selected only four. They went to the waitlist and chose three from the waitlist. Same with the technical members also.

We travelled across the country, the corporate affairs secretary and law secretary were there. Another judge, Justice Surya Kant, was there. This is a waste of time for us then. We spent a lot of time together. During COVID, your government requested us to conduct interviews as early as possible. So we did so over two days via video conferencing," the CJI said.

Venugopal said the government has the power not to accept the recommendations made and referred to the Collegium system regarding the High Courts and High Court judges.

We are in a democratic country following the rule of law. It is under the Constitution that we are working. You cannot say that," the bench responded.

The court took note of the delay in appointing a person in tribunals and said, "Now the problem is that you have selected from the judicial members list, High Court judges who held their office till 62. Now they are already 64 and they have been given tenure until 65 years. They will get only one year of tenure. Mr. AG, would you like to join the job for one year?"

At the outset, senior advocate Arvind Datar, appearing for the Madras Bar Association, said for the Income Tax Appellate Tribunal (ITAT), the search-cum-selection committee selected 41 people but only 13 have been chosen on the basis of which "we don't know".

"It is a very disturbing trend. I request you to put an end to it at the earliest. All the appointment letters are being issued now including ITAT, they are sending WhatsApp messages. Now whether the tenure is to be four years or five years, that this court will decide next week," he said.

The bench said as per elementary principles of the service law selected candidates cannot be ignored.

The bench then said, "Every time, this happens. This is nothing new. Even after the order is passed, they are notifying like this. Same way, the ITAT members are also affected. Every time, the same story."

Venugopal submitted that the main list of recommendations has been exhausted and it is only after that the government has gone to the waiting list.

The bench also asked the Centre to file its response within a week to the pleas including the one filed by Congress leader Jairam Ramesh challenging the new law on Tribunals.

"So far as the challenge to the 2021 Act is concerned, we have already issued notice. Please file a counter affidavit within a week", the CJI said.

The top court was hearing a clutch of petitions on the issue of vacancies in tribunals and the new law governing quasi judicial bodies.

Separate pleas have been filed by State Bar Council of Madhya Pradesh, lawyer and activist Amit Sahni, Amarjit Singh Bedi, Delhi Bar Association, Advocates Association Bengaluru and some others.