# Bharati v. State of Kerala 1973, (4) SCC - **Citation:** (2002) 2 ILRA 311 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-02-19 - **Case number:** Civil Misc. Writ Petition No.6902 of 2002 - **Bench:** M. Katju, Rakesh Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharati-v-state-of-kerala-1973-4-scc-39824 - **Pages:** 4 ## Headnote INDIAN LAW REPORTS ALLAHABAD SERIES [2002 312 S.C. Central Administrative Tribunal Act 1985- Section 6 (2)- Appointment of Vice-Chairman in the CAT- only those mentioned in Section 6 (i) of the Act having legal back ground- should be appointed. The Secretary or executive member can be appointed for short time- stop gap arrangement- only when the judicial back ground the official are not available. Held- Para 9 However we are certainly of the opinion that the Vice- Chairman must be a person with a legal background since the person who presides over a bench must inspire confidence in the public. The very object of Article 50 will be subverted, in our opinion, if the Presiding Officer is a person from the executive. The Directive Principles in Constitution cannot be treated as merely ornamental, as held by the Supreme Court in Keshavnanda Bharati v. State of Kerala 1973, (4) SCC 225, Minerva Mills v. Union of India 1980 SC 1789 and Unnikrishnan v. State of A.P. 1993 SC 2178. In our opinion the persons who have been a Secretary or Additional Secretary of the Govt. of India can only be appointed as Vice Chairman in exceptional circumstances if no person with a legal background as mentioned in Clause (a) of Section 6 (2) is available and even in this situation such appointment can only be a stop gap arrangement for a short period till the person mentioned in Clause (a) of Section 6 (2) become available. Case law discussed: AIR 1998 SC-1233 1973 (4) SCC-225 AIR 1980 SC-1789 AIR 1993 SC 2178 ## Text 2 All] Balram Vs. State of U.P. and others 311 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.2.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE RAKESH TIWARI, J. Civil Misc. Writ Petition No.6902 of 2002 Balram ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri N.K. Trivedi Sri O.P. Tripathi Counsel for the Respondents: Sri Prakash Krishan S.C. Constitution of India, Article 226- Recovery of Public money-the guarantor and the Chief debtor both are equally liable. It is sole discretion of creditor to proceed either of them- but No recovery charges shall be realized. Held- Para 3 Learned counsel for the petitioner has submitted that respondents nos. 2 and 3 should first proceed against the Principal debtor before proceeding against the guarantor. There is no such requirement in law, and hence we cannot give any such direction. It is the discretion of the creditor whether to proceed against the Principal debtor or the guarantor, we, however, direct that no recovery charges shall be realized from the petitioner. (Delivered by Hon'ble M. Katju, J.) 1. Heard Sri N.K. Trivedi, learned counsel for the petitioner and Sri Prakash Krishan, learned counsel for the respondents. 2. The petitioner has challenged the impugned recovery certificate dated 22.1.2002. The petitioner is a guarantor of the loan granted to Shiv Pal Singh by respondent no. 3. It is well settled that the liability of the guarantor is co-extensive with that of the principal debtor. Hence we cannot interfere with the impugned recovery. 3. Learned counsel for the petitioner has submitted that respondents nos. 2 and 3 should first proceed against the Principal debtor before proceeding against the guarantor. There is no such requirement in law, and hence we cannot give any such direction. It is the discretion of the creditor whether to proceed against the principal debtor or the guarantor. We, however, direct that no recovery charges shall be realized from the petition. 4. With the aforesaid observations, the writ petition is disposed of finally. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 25.02.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE R. TIWARI, J. Civil Misc. Writ Petition No. 8248 of 2002 Shambhu Dayal ...Petitioner Versus Union of India through Cabinet Secretary and others ...Respondents Counsel for the Petitioner: Sri V.B. Singh Sri Vijay Sinha Sri P.S. Bhagel Counsel for the Respondents: Sri Ajeet Kumar INDIAN LAW REPORTS ALLAHABAD SERIES [2002 312 S.C. Central Administrative Tribunal Act 1985- Section 6 (2)- Appointment of Vice-Chairman in the CAT- only those mentioned in Section 6 (i) of the Act having legal back ground- should be appointed. The Secretary or executive member can be appointed for short time- stop gap arrangement- only when the judicial back ground the official are not available. Held- Para 9 However we are certainly of the opinion that the Vice- Chairman must be a person with a legal background since the person who presides over a bench must inspire confidence in the public. The very object of Article 50 will be subverted, in our opinion, if the Presiding Officer is a person from the executive. The Directive Principles in Constitution cannot be treated as merely ornamental, as held by the Supreme Court in Keshavnanda Bharati v. State of Kerala 1973, (4) SCC 225, Minerva Mills v. Union of India 1980 SC 1789 and Unnikrishnan v. State of A.P. 1993 SC 2178. In our opinion the persons who have been a Secretary or Additional Secretary of the Govt. of India can only be appointed as Vice Chairman in exceptional circumstances if no person with a legal background as mentioned in Clause (a) of Section 6 (2) is available and even in this situation such appointment can only be a stop gap arrangement for a short period till the person mentioned in Clause (a) of Section 6 (2) become available. Case law discussed: AIR 1998 SC-1233 1973 (4) SCC-225 AIR 1980 SC-1789 AIR 1993 SC 2178 (Delivered by Hon'ble M. Katju, J.) 1. Heard Sri V.B. Singh learned Senior Advocate and Sri P.S. Bhagel Advocate for petitioner, and learned counsel for the Central Govt. 2. Learned counsel for respondent prays for and is granted 3 weeks to file counter affidavit. Issue notice to respondent nos. 4,5 and 6 returnable at an early date. 3. List peremptorily on 24.3.2002 on which date the petition may be finally disposed off. 4. The petitioner has prayed for quashing the panel prepared for the posts of Vice Chairmen in various benches of the Central Administrative Tribunal (hereinafter referred to as CAT). Section 6 (2) of the Administrative Tribunals Act, 1985 states: "A person shall not be qualified for appointment as the Vice Chairman unless he is, or has been (or is qualified to be) a Judge of a High Court; or (a) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India, or (b) has for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or 2 All] Shambhu Dayal Vs. Union of India through Cabinet Secretary and others 313 (c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member." 5. At first glance a perusal of the above provision gives the impression that even a Secretary or Additional Secretary to the Govt. of India can be appointed as Vice Chairman. However, we are of the opinion that Section 6 (2) cannot be read in isolation but it must be read alongwith Article 50 of the Constitution, which states: "Separation of judiciary from executive- The State shall take steps to separate the judiciary from the executive in the public services of the State" 6. The object of Article 50 of the Constitution was that there should be separation of the judiciary from the executive so that there may be an independent judiciary in which alone the public can have confidence. This view is also supported by the decision of the Supreme Court in State of Maharashtra Vs. Labor Law Practitioners Association and others, AIR 1998 S.C. 1233. 7. In our prima facie opinion the Vice Chairman of CAT can only be a sitting or retired High Court Judge or an Advocate who is qualified for appointment as a High Court Judge. 8. A person who has been in executive service for 20 to 30 years naturally develops a pro-executive approach and his thinking process becomes coloured thereby. However, since the CAT is a judicial body that has to decide judicial matters it must function as an independent body, as that alone can inspire the confidence of the public. A person who comes from a legal background has an independent mind, whether he is or has been a High Court judge or an advocate having more than 10 years practice. 9. We are not expressing any opinion on the point whether a member of the Tribunal should also be a person with a legal background. However we are certainly of the opinion that the Vice Chairman must be a person with a legal background since the person who presides over a bench must inspire confidence in the public. The very object of Article 50 will be subverted, in our opinion, if the Presiding Officer is a person from the executive. The Directive Principles in the Constitution cannot be treated as merely ornamental, as held by the Supreme Court in Keshavananda Bharti V. State of Kerala 1973, (4) S.C.C. 225, Minerva Mills V. Union of India 1980 S.C. 1789 and Unnikrishnan V. State of A.P. 1993 S.C. 2178. In our opinion the persons who have been a Secretary or Additional Secretary of the Govt. of India can only be appointed as Vice Chairman in exceptional circumstances if no person with a legal background as mentioned in clause (a) of Section 6 (2) is available, and even in this situation such appointment can only be a stop gap arrangement for a short period till the person mentioned in Clause (a) of Section 6 (2) become available. 10. We make it clear that we are not making any derogatory comment on members of the executive, many of whom are doing their duty excellently and honestly. We are only concerned with the confidence of the public in the judiciary, which is only possible if the judiciary is INDIAN LAW REPORTS ALLAHABAD SERIES [2002 314 not only independent but also appears to be independent. 11. In the circumstances we direct that in the panel which has been prepared for appointment of Vice Chairmen of various benches of CAT and in future panels also, only the persons referred to Section 6 (2) (a) can be appointed as the Vice Chairmen of the various benches of the CAT. 12. Let a copy of this order be communicated forthwith by the Registrar General of this Court as well as the learned counsel for the Central Govt. to the Union Law Secretary, New Delhi and Chairman of the CAT, New Delhi. The petitioner may also communicate it to the appropriate authorities. 13. Let a copy of this order may be given to the counsel for the parties on payment of usual charges today. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 18.02.2002 BEFORE THE HON'BLE B.K. RATHI, J. Second Appeal No. 24 of 1993 Ami Chand ...Appellant Versus Smt. Subhadra Devi and others ...Respondents Counsel for the Appellant: Sri Vishnu Sahai Sri B. Dayal Counsel for the Respondents: Sri Dhan Prakash Sri M.A. Siddiqui Code of Civil Procedure- Section 100- Second Appeal- finding of facts when can be set a side by the Appellate Court relevant contingencies and scope of law discussed. Held- Para 9 and 10 The findings of the facts of the courts below can be examined in the second appeal, if the same is against the weight of the evidence. In view of the decisions of the Apex Court, in the circumstances, the findings of the courts below regarding fact can be set aside in this second appeal. (Delivered by Hon'ble B.K. Rathi, J.) 1. This second appeal has been preferred against the judgment and decree dated 12.10.1992 passed by Sri Pooran Singh, Special Judge/Additional District Judge, Bulandshahr in Civil Appeal No. 249 of 1975. The fact giving rise to this appeal are as follows: 2. The appellant filed a suit for specific performance of contract of sale. It is alleged that the respondent no. 1, Smt. Subhadra Devi was owner of the disputed plot no.23, measuring 2 bigha 5 biswas situated in the village Salampur, Pargana Shikarpur, district Bulandshahr. She agreed to sale the said plot in favour of the plaintiff for a consideration of Rs.24,000/-. A sum of Rs.5,000/- was paid in advance and registered agreement to sale was executed on 23.08.1973. It was agreed that the sale deed shall be executed by 30.09.1973 on payment of balance sale consideration of Rs.19,000/-. That on 08.09.1973, the respondent no.1 came to Bulandshahr treasury and