EXPRESSING DISPLEASURE at the unfilled vacancies in various tribunals, the Supreme Court on Wednesday took exception to the Centre’s stand that it “has the power not to accept the recommendations made” by the Search-cum-Selection Committee (SCSC), comprising judges of the top court, for appointments.
The court also expressed displeasure at the manner in which appointments were made, saying that “there cannot be any cherry-picking” of names.
“We are in a democratic country, following the rule of law. It is under the Constitution that we are working. You cannot say that,” Chief Justice of India N V Ramana told Attorney General K K Venugopal, who sought to submit that the Tribunal Reforms Act, 2021, enables the government to take a decision on the recommendations.
Hearing the matter on September 6, the court, while expressing its anguish over the delay in appointments, had given the government one week to fill the posts.
In an affidavit filed thereafter, the Centre said it had made 84 appointments to tribunals since 2020, including 38 recently — 18 to the National Company Law Tribunal (NCLT); 1 to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT); 13 to the Income Tax Appellate Tribunal (ITAT); and 6 to the Armed Forces Tribunal (AFT). The government said no name recommended by the SCSC was pending with it.
But the bench, also comprising Justices D Y Chandrachud and L Nageswara Rao, questioned the government for making appointments from the waitlist.
“I have seen that for the NCLT, the selection committee recommended nine judicial members and 10 technical members. They kept another 10 in the waitlist for additional vacancies, whenever they arise. By the appointment letters which were issued, they have selected four-five names from the waitlist and three names from the select list. As per elementary principles, we cannot ignore the selected candidates and go to the waitlist. There cannot be any cherry-picking. I don’t know what type of selection is this, what type of appointment is this,” observed the CJI.
“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,” the CJI said.
The AG referred to Section 3(7) of the Tribunal Reforms Act, 2021, which says that the committee shall recommend a panel of two names for appointment to the post of chairperson or member, as the case may be, and the central government shall take a decision on the recommendations, preferably within three months.
Justice Chandrachud responded that the provision is identical to what was there in the earlier law on tribunals — Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, some of whose provisions were held unconstitutional by the court in July this year.
The AG said the provision has three parts. First, it provides for a panel of two names, which the court has struck down. Then, it says the government will decide on the recommendations “preferably within three months”, which has been struck down too, but the part that the central government shall take a decision on the recommendation made by the committee has not been struck down.
“Even after the selections were conducted and recommendations were made, you don’t appoint them, when you pick people from the waitlist which was prepared for the purpose of being used in the future? That has nothing to do with Section 3(7),” said Justice Rao.
The AG submitted that “the government has the power not to accept the recommendations made. Your Lordships would know even as regards the High Courts and High Court judges…”
While the CJI took exception, the AG continued: “This has been held so even in the case of UPSC where the government is entitled not to accept certain recommendations. Your Lordships’ judgment says so. We have acted on that judgment”.
He said the government had proceeded to the waitlist only after exhausting the main list.
Justice Rao recalled that a selection committee had made recommendations for the TDSAT a year-and-a-half back, but no decision had been taken till now. “We don’t know how long you can continue with this… What is the sanctity of the recommendations of the selection committee if the government chooses to do anything at the last stage? The persons who are conducting the interview are ultimately not heard in the appointments,” he said.
“I think we are very 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 interviewed 534 candidates for judicial posts and 425 for technical posts. Out of that, 11 judicial members and 10 technical members were selected… Of these 11 selected judicial members, they selected only four. They went to the waitlist and chose three… Same with the technical members also… This is a waste of time for us then,” said the CJI.
He said some of those appointed were already 64 years old, and had been given tenure until 65 years. “They will get only one year of tenure. Mr AG, would you want to join the job for one year,” he said.
Justice Chandrachud said he was part of the selection committee for the National Consumer Disputes Redressal Commission (NCDRC) and “there also the list was truncated and only a few people have been appointed.”
The AG said some of the people recommended had been absorbed in other jobs at the high courts. Seeking more time, he said the government was ready to reconsider all the names which were not accepted, and “in the reconsideration, we would appoint a very large number”, except those facing corruption charges.
“Whatever problems we may have, appointment of members is the only solution,” said the CJI, and asked the AG to “please tell the government (that) you have to make the appointments”.
The bench granted the government two more weeks to complete the appointments, and also said that it should explain the reason if any appointment could not be made.