WWW.LIVELAW.IN 1 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 127 OF 2008 Vadakara V. Menon
..Appellant versus
O.P. Nahar and others
..Respondents O R D E R
1. cause
The petitioner has approached this Court by raising a in
public
interest,
wherein
he
has
raised
the
following
prayers: “a) issue a writ of quo warranto or any other appropriate writ or order or direction commanding respondent nos. 1 and 2 to explain under what authority they are occupying the office of the Chairperson/Member of the Appellate Tribunal for Foreign Exchange, New Delhi, as by the judgment dated 12.04.2004 in W.P.(C) No. 7603/2003 and connected cases the 1st respondent was found to be not eligible even to be appointed as a Member to the Tribunal and further the officers of the Law Ministry do not hold a judicial post and, therefore, are not entitled to be appointed even as members of the Tribunal, or, in the alternative, to declare that their appointment as Chairperson/Member respectively of the said Tribunal is unconstitutional and void by reason of the ratio laid down in the said judgment;
Signature Not Verified Digitally signed by PARVEEN KUMAR Date: 2017.04.25 17:02:50 IST Reason:
b) issue a writ of certiorari or any other appropriate writ or order declaring that sub-rule (2) of Rule 3 of the Appellate Tribunal for Foreign Exchange (Recruitment, Salary and Allowances and other conditions of Service of Chairperson and Members) Rules, 2000 is unconstitutional and void inasmuch as it permits appointment of Chairperson/Member of the Appellate Tribunal for Foreign Exchange through backdoor without advertising the vacancies and further to read into the said rules, if the Rules were not to be struck down, the mandatory requirement of advertising the vacancies and inviting applications from all
WWW.LIVELAW.IN 2 eligible persons, except in the case of sitting or retired Judges of the High Court, to be considered for the post of Chairperson; and c) pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2.
Prayer (a) reveals, that the petitioner has sought a writ
in the nature of quo warranto against respondent no.1, the then Chairman of the Appellate Tribunal for Foreign Exchange, and as against respondent no. 2, the then Member of the Appellate Tribunal for Foreign Exchange. points
out,
that
Learned counsel representing respondent no.3
respondent
nos.
1
and
2
have
since
demitted
office, on account of having completed the tenure of service.
That
being the position, we are satisfied, that prayer (a) raised in the writ petition has been rendered infructuous. In continuation of what has been stated in the foregoing paragraph, we may reiterate that it is impermissible to appoint part-time Members to the Appellate Tribunal, referred to above, and also, to appoint a Chairperson to the Appellate Tribunal as a stop-gap arrangement, as has been held by this Court in Union of India vs. S. Srinivasan, (2012) 7 SCC 683. 3.
Insofar as prayer (b) is concerned, namely, whether the
vacancies of Chairperson and Members of the Appellate Tribunal for Foreign Exchange require to be mandatorily advertised, before they are filled up, reference may be made to Rule 3 of the Appellate Tribunal for Foreign Exchange (Recruitment, Salary and Allowances and other conditions of Service of Chairperson and Members) Rules, 2000, which is extracted below:
WWW.LIVELAW.IN 3 “3.
Method of Recruitment
(1) The Chairperson and the members of the Appellate Tribunal for Foreign Exchange shall be appointed by the Central Government on the recommendation of the Selection Board consisting of – (a) A Judge of the Supreme Court nominated by the Minister of Law, Justice & Company Affiairs in consultation with the Chief Justice of India – Chairperson (b) Secretary-in-charge of the Ministry of the Central Government dealing with the Department of Legal Affairs – Member (c) Secretary-in-charge of the Ministry of the Central Government dealing with the Department of Personnel and Training – Member (2) The Selection Board shall recommend person for appointment as Chairperson or Member of the Appellate Tribunal from amongst persons from the list of candidates prepared by the Ministry of Law, Justice & Company Affairs, Department of Legal Affairs after inviting applications therefore by advertisement or on the recommendations of the appropriate authorities.” A perusal of Rule 3(2) of the 2000 Rules (extracted above) reveals, that the concerned Ministry has to prepare a list of candidates, after inviting applications by issuing an advertisement for filling up vacancies of Chairperson and Members of the Appellate Tribunal for Foreign Exchange, out of which the Selection Board would make its recommendation. Alternatively, the selection of the Chairperson and Members, can be made on the basis of candidates recommended by the appropriate authorities.
The language employed in framing rule
3(2) of 2000 Rules, may seem to be ambiguous. However, there can be no room for any doubt, that in terms of the constitutional mandate contained in Article 16 of the Constitution, Rule 3(2) must always be
interpreted
to
mean,
that
the
Selection
Board
while
making
WWW.LIVELAW.IN 4 recommendations Member(s),
of
would
persons
always
be
to
be
obliged
appointed to
issue
as an
Chairperson
or
advertisement,
depicting the proposal to fill up the postulated vacancies, so as to afford an equal “...opportunity for all citizens in matters relating
to
employment
or
appointment
to
any
office
under
the
State...”, as contemplated under Article 16(1) of the Constitution. 4.
With
the
aforesaid
observations,
the
instant
writ
petition stands disposed of.
…....................CJI [JAGDISH SINGH KHEHAR] …......................J. [Dr. D.Y. CHANDRACHUD] NEW DELHI; APRIL 19, 2017.
….......................J. [SANJAY KISHAN KAUL]
WWW.LIVELAW.IN 5 ITEM NO.104
COURT NO.1 S U P R E M E C O U R T O F RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s).
SECTION X I N D I A
127/2008
VADAKARA V. MENON
Petitioner(s) VERSUS
O.P. NAHAR & ORS.
Respondent(s)
Date : 19/04/2017 This petition was called on for hearing today. CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE SANJAY KISHAN KAUL For Petitioner(s)
Ms. E.R. Samathy, Adv. for Mrs.S.Usha Reddy,AOR
For Respondent(s)
Mr. A.K. Panda, Sr. Adv. Mr. B. Krishna Prasad,Adv.
UPON hearing the counsel the Court made the following O R D E R The writ petition stands disposed of, in terms of the signed order.
(Renuka Sadana) (Parveen Kumar) Assistant Registrar AR-cum-PS [signed order is placed on the file]
