CAT Vacancies : Why Don't You Consider 2 Advocates Recommended By Selection Committee For Appointment? Supreme Court Asks AG

A Bench comprising Justices L. Nageswara Rao and B.R. Gavai suggested -

"Attorney, forgetting about this contempt, why don't you consider what Mr. Maninder Singh(Senior Advocate) was telling you. If these advocates are selected along with others and if admittedly three judges did not join, why don't you consider them for an appointment? Why should you now wait for another selection to be conducted."

The Bench was hearing a contempt petition filed by Mr. Ajesh Luthra, President Central Administrative Tribunal Bar Association for 'gross non-compliance' of the order passed by the Apex Court on 04.01.2021. In the said order the Court had directed the Government to expedite the appointment of four post of judicial members in terms of the eligibility criteria elucidated in the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020. On a previous occasion, the Bench had stated that the vacancies had to be filled irrespective of any dispute regarding the same.

Senior Advocate, Maninder Singh appearing for Mr. Ajesh Luthra submitted that the Central Government had failed to comply with the order dated 04.02.2021, as a result of which the petitioner was constrained to institute the present contempt proceedings.

"This contempt petition comes up for gross non-compliance of order dated 04.01.2021, passed by your lordships in a case presented by the respondent through the Ld. Attorney General. Thereafter, when compliance was not taking place notice was issued on 12.07.2021 and on various dates the matter was taken up, where 3 documents on behalf of respondent - (i) a status report dated 24.08.2020, (ii) affidavit of compliance dated 01.10.2021, (iii) additional affidavit dated 18.10.2021, which is said to be filed in compliance with order dated 04.10.2021.

He apprised the Bench about the underlying dispute in the matter. Advertisements were issued to fill up six vacancies for judicial members of CAT for the year 2018. The Selection Committee headed by a Supreme Court judge constituted for filling up such vacancies recommended names of three advocates and one member of the Indian Legal Service. These recommendations were in addition to the names of four retired judges of the High Courts, which were also recommended by the Selection Committee. So, effectively, against six vacancies, the Committee recommended the names of four retired judges of High Courts, three advocates and one member of the Indian Legal Service.

Mr. Singh pointed out that out of the four retired High Court Judges, three had chosen not to accept the appointment.

"Admittedly, the four Hon'ble Judges whose names were recommended by the Committee chose not to take the appointment. 4 out of 6 vacancies for 2018…they chose not to take appointments."

He asserted that for the two vacancies for which the three advocates and one member of the Indian Legal Services were recommended, the list was based on merit. It was submitted that, rivetingly, those ranked 3rd and 4th were chosen for appointment by order dated 16.08.2021, and the 1st and 2nd in the merit list were left out.

"The two other vacancies for which 4 recommendations were made, it is extremely important, those names were also put in an order of merit by your lordships' Committee, where they have made only 2 appointments. I have no issues with the other two candidates, they are also members of the Bar. 2 appointments made are from the order of merit no. 3 and 4. Those appointments were made by orders dated 16.08.2021."

It was further emphasised that by the time the status report dated 24.08.2020 was filed by the Central Government, the four retired judges had already declined the offer and the posts were lying vacant even when the order to fill up the vacancies was passed by the Apex Court on 04.01.2021.

"By the time the status report was filed the respondents were aware that the 4 Hon'ble judges had declined to take appointment. And those 4 vacancies were vacant. They do not say that in any of their affidavits. I am sorry 1 joined and 3 did not join. Name of Justice Vijaylakshmi (Appointment order dated 08.10.2019) is there in the affidavit, but the others were unfilled. 3 vacancies remaining. Out of 6 vacancies for judicial members, the 4 recommendations of the judges led to one filing of vacancy, 3 remaining vacant and for 2, 4 names were recommended in the order of merit. As on 04.01.2021 there were 3 vacancies. This is noted by your lordships on 04.01.2021 and directions are passed…As on 04.01.2021, there are 5 clear vacancies belonging to 2018 to be filled by judicial members."

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Mr. Venugopal, appearing for the contemnors, submitted that the contempt was limited to the issue of non-appointment of four lawyers and did not extend to the appointment of the four retired High Court Judges.

Justice Gavai redefined the contours of the dispute as -

1. Non appointment of two advocates; and
2. Non compliance with the merit list in the order it was prepared.

Mr. Venugopal pointed out that as regards three of the vacancies which could not be filled due to the refusal of the three retired High Court Judges to take appointment for the year 2018, a separate advertisement was issued for filling up such vacancies.

Justice Rao suggested Mr. Venugopal that, without making the process more cumbersome and in order to prevent further delay, the two advocates who have been recommended by the Selection Committee for appointment of judicial members at CAT and were not appointed then be considered now.

Mr. Venugopal assured the Bench that he would suggest the Central Government accordingly and a decision would be taken in terms of the eligibility criteria in the new Act, which came into force on 04.04.2021.

[Case Title: Ajesh Luthra v Ajay Bhushan Pandey & Anr. Contempt Petition (C) No. 265/2021 in M.A. 2252/2020 in WP (C) No, 640/2017]

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