Centre Can't Hold Tribunal Appointments Cleared By SCSC Citing New Inputs; Fresh Materials Must Be Shared With SCSC : Supreme Court

The Supreme Court on Tuesday disapproved the practice of the Central Government putting off the appointments of members to Tribunals despite recommendations by the Search-cum-Selection Committee (SCSC) citing new inputs about the candidates. If fresh materials come to light about the candidates cleared by the SCSC, such materials should be shared with the SCSC. Not doing so will be a deviation from fair process, the Court stated.A bench comprising Justices DY Chandrachud and PS Narasimha was hearing a contempt petition filed by Advocate Association Bengaluru in 2021 against the then Secretary of the Department of Legal Affairs alleging violation of the directions issued in the Madras Bar Association Case by not appointing members to the Income Tax Appellate Tribunal as per the recommendations made by the SCSC.Senior Advocate R Basant, appearing for the petitioner, submitted that the SCSC headed by Supreme Court judge Justice AM Khanwilkar had recommended 41 names as ITAT members in 2019, but the Centre only cleared 22 names in 2021 and were holding 19 names.The bench noted that the files produced by the Centre pursuant to an earlier direction mentioned that "multi-source enquiry" revealed that the integrity of some candidates were doubtful.The bench expressed surprise at this process carried out after the SCSC recommendation, which was finalised after considering the inputs of the Intelligence Bureau."Who carried out this exercise?", Justice Chandrachud asked Attorney General for India KK Venugopal."The problem is, if names of members of Bar Association of that HC is mentioned as a source and is known to other side, it'd be an embarrassment", the AG replied."Who's the person carrying out that exercise?", Justice Chandrachud asked further."PMO (Prime Minister's Office)", the AG replied."Look at arbitrariness of it all. We've a judge, IAS officers part of the committee(SCSC). They go to IB, and people who're doubtful are drawn out. Suppose something comes to light about candidate which wasn't brought to IB's attention, there should be some way that IB and the committee is told about this", Justice Chandrachud commented.Drawing on his experience as the Chief Justice of the Allahabad High Court and a member of the Supreme Court collegium, Justice Chandrachud said that the "nature of the feedback is dependent in who is being asked".The Attorney General agreed that it is only fair and proper that subsequent inputs are remitted to the SCSC to enable it to apply its mind. The AG also agreed that in future, it will be ensured that all inputs available with the Government will be placed before the SCSC so that these inputs are duly gone into before the recommendations are finalised.The bench noted that in the files, there is a tabular column with the title "feedback" and with respect to many candidates, the "feedback" was at variance with the IB report. Also, the files did not indicate any underlying material on the basis of which the "feedback" was formulated.In this backdrop, the bench stated in the order as follows :"The IB report, under the extant procedure, is placed before the SCSC before the process of shortlisting takes place and the candidates are called for interview. When the candidates recommended by the SCSC are those who have been cleared by the IB after a detailed analysis of their credentials, integrity and other relevant features, evidently, many of the comments which are contained in the feedback column are of subjective nature without any disclosure of underlying material. This would substantially detract from the fairness of the process. If, as a matter of fact, after the formulation of recommendations by the SCSC, any tangible material comes to the knowledge of the competent authority, it is only proper and appropriate, as submitted by the AG, that such material should be placed before the SCSC. We're in agreement with AG that all inputs bearing on the candidature of each person should be placed by the Union of India before the SCSC.For instance, in the case of certain candidates, the objection was on the ground that penalty proceedings have been initiated by the CBDT. In this context, learned Senior Advocate Arvind Datar, the amicus curiae, submitted that the provisions of Section 270A of the Income Tax Act result in the automatic initiation of penalty proceeding where the income assessed is higher than the income reported. It would in our view be appropriate if such material which has come to knowledge of competent authority were to be drawn to SCSC's attention which would be in position to determine if any modification in terms of its original recommendation is required".The bench continued in its order : "It must be emphasised that SCSC, besides being chaired by a judge of the Supreme Court, also consists of two secretaries of the Union Government. A comprehensive exercise is conducted by the committee, including calling for IB's inputs. All such inputs must be placed with SCSC in advance. ...

Centre Can't Hold Tribunal Appointments Cleared By SCSC Citing New Inputs; Fresh Materials Must Be Shared With SCSC : Supreme Court

Srishti Ojha

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