Sh. Rajan Sharma vs Union Of India & Anr.
2013 Latest Caselaw 1058 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  WP(C) No. 1761/2012

%                                                        4th March, 2013

SH. RAJAN SHARMA                                           ..... Petitioner
                          Through:       Mr. R.K. Saini, Advocate with Mr.
                                         Vikas Saini, Advocate.

                          versus

UNION OF INDIA & ANR.                                ..... Respondents

                   Through:              Mr. V.S.R. Krishnav, Advocate with
                                         Mr. Abhishek Yadav, Advocate for
                                         respondent Nos.1 and 2.
                                         Mr. S.S. Mishra, Advocate with Mr.
                                         Adbhut Pathak, Advocate for
                                         respondent No.3.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

+ W.P.(C) No.1761/2012 and C.M. Nos.19093/2012 (directions) and 3871/2012 (stay)

1. This writ petition is filed by the petitioner seeking directions for

being appointed as a member of Railway Claims Tribunal, w.e.f. 14.3.05

inasmuch as it is pleaded that the petitioner was in fact called for interview,

was selected and placed at serial No.1 in the Selection List of Members

(Judicial). It is pleaded that the selection list is prepared by a committee

comprising of a Judge of Hon‟ble Supreme Court; Chairman, Railway

Board; Chairman, Railway Claims Tribunal and the Secretary, Ministry of

Law.

2. On behalf of respondent Nos.1and 2, it is not disputed that

petitioner was in fact put at No.1 on the selection list, however, it is argued

that there had been an error in calling the petitioner for appointment

inasmuch as there existed a bar in terms of Section 10 of Railway Claims

Tribunal Act, 1987 (hereinafter referred to as „the Act‟) as per which a

member of a Railway Claims Tribunal cannot seek fresh appointment as a

member of the Railway Claims Tribunal. A member, it is argued, though

can apply for being appointed as Vice-Chairman or Chairman of the

Railway Claims Tribunal or Member or Vice-Chairman or Chairman to any

other Tribunal, but, cannot again apply for being appointed as a member of

the Railway Claims Tribunal.

3. On behalf of the petitioner, rebutting the stand of respondent

Nos.1 and 2, it is argued that qualifications of a person to be appointed as a

Judicial Member of the Railway Claims Tribunal are contained in Section 5

of the Act and when this provision is read with Section 7 all that they

provide for is an upper age limit of 62 years with respect to a Member, and,

Section 10 cannot be read to deny the second or subsequent term as a

Judicial Member of the Railway Claims Tribunal provided of course the age

does not exceed 62 years.

4. In order to appreciate the arguments of both the parties since

the provisions of Sections 5, 7 and 10 would be relevant, I reproduce the

same as under:-

"Section5. Qualifications for appointment as Chairman, Vice- Chairman or other Member.-(1) A person shall not be qualified for appointment as the Chairman unless he-

(a) is, or has been, a Judge of a High Court; or

(b) has, for at least two years, held the office of a Vice-Chairman. (2) A person shall not be qualified for appointment as the Vice- Chairman unless he-

(a) is, or has been, or is qualified to be, Judge of a High Court; or

(b) has been a member of the Indian Legal Service and has held a post in Grade I of that service or any higher post for at least five years; or

(c) has, for at least five years, held a civil judicial post carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India; or

(d) has, for at least five years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules and procedure of, and experience in, claims and commercial matters relating to railways; or

(e) has, for a period of not less than three years, held office as a Judicial Member or a Technical Member.

(3) A person shall not be qualified for appointment as a Judicial Member unless he-

(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) has been a Member of the Indian Legal Service and has held a post

in Grade I of that service for at least three years; or

(c) has, for at least three years, held a civil judicial post carrying a scale of pay which is not less than of a Joint Secretary to the Government of India.

(4) A person shall not be qualified for appointment as a Technical Member unless he has, for at least three years, held a post under a railway administration carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India and has adequate knowledge of rules an procedure of, and experience in, claims and commercial matters relating to railways.

(5) Subject to the provisions of sub-section(6), the Chairman, Vice- Chairman and every other Member shall be appointed by the President.

(6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.

Section7. Term of office.-The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains,-

(a) in the case of the Chairman, the age of sixty-five years; and

(b) in the case of the Vice-Chairman or any other Member, the age of sixty-two years;

whichever is earlier.

Section 10. Provision as to the holding of offices by Chairman, Vice-Chairman etc., on ceasing to be such Chairman or Vice- Chairman, etc.-On ceasing to hold office-

(a) the Chairman of the Claims Tribunal shall not be ineligible for further employment either under the Government of India or under the Government of a State;

(b) a Vice-Chairman shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of the Claims Tribunal, or as the Chairman, Vice-Chairman or member of any other Tribunal established under any law for the time being in force, but not for any other employment either under the Government of India or under the Government of a State;

(c) a Member (other than the Chairman or Vice-Chairman) shall, subject to the other provisions of this Act, be eligible for appointment

as the Chairman or Vice-Chairman or as the Chairman, Vice- Chairman or member of any other Tribunal established under any law for the time being in force, but not for any other employment either under the Government of India or under the Government of a State;

(d) the Chairman, Vice-Chairman or other Member shall not appear, act or plead before the Claims Tribunal."

5. A reference to the aforesaid provisions shows that Section 7

provides for the term of office of a Member or Chairman or Vice-Chairman

of Railway Claims Tribunal to be of five years or till that person reaches the

age of 65 years so far as the Chairman is concerned, and 62 years so far as

Vice-Chairman or Member is concerned. Section 7 has therefore two

ingredients one of which is of the term of a Member being five years and the

second of limitation that it would not be of five years if the appointee

exceeds the age of 65 years so far as the Chairman is concerned and 62 years

so far as Member and Vice-Chairman are concerned. A Member therefore is

appointed on a term of five years subject to upper age limit of 62 years.

6. Section 5 pertains to qualifications required for appointment as

a Chairman, Vice Chairman or a Member, and which qualifications are

respectively dealt with in sub-Sections (1), (2) and (3) of Section 5 of the

Act. We are concerned with sub-Section (3) of Section 5 with respect to

appointment of a Member and not with respect to sub-Sections (1) and (2)

which talk of appointment as a Chairman or a Vice-Chairman. A reference

to sub-Section (3) shows that a person will not be qualified for being

appointed as a Judicial Member of the Railway Claims Tribunal unless he

falls in one of the categories specified in clauses (a) to (c) of sub-Section (3)

of Section 5 of the Act. Really therefore sub-Section (3) deals with and

contains the qualifications required for appointment, though, the language is

couched in negative.

7. Section 10 deals with entitlement of a Chairman, Vice-

Chairman and Member of any other Tribunal for further appointment after

that appointee completes his term in the post and therefore also as to

disentitlement to a particular appointment. This provision provides that a

Chairman of Railway Claims Tribunal shall be ineligible for further

employment under the Government of India or under the Government of

State. The bar so far as a Vice Chairman is however restricted for

appointment/employment either under the Government of India or the

Government of State, but, there is no bar for being appointed as the

Chairman of the Railway Claims Tribunal or the Chairman, Vice-Chairman

or Member of any other Tribunal i.e a Vice-Chairman is specifically barred

for to be again appointed as a Vice-Chairman. So far as a Member is

concerned, there is a similar bar for appointment either under the

Government of India or the Government of State, however, there is no bar

for being appointed either as the Chairman or Vice-Chairman of the Railway

Claims Tribunal or a Member or Vice-Chairman or Chairman of any other

Tribunal i.e he cannot seek a second appointment as a member.

8. A conjoint reading of various sub-Sections of Section 10 of the

Act therefore shows that there are limitations carved out for further

appointment/employment with respect to a Member, Vice-Chairman and

Chairman. With respect to a Member, and with which post we are

concerned, there is only an entitlement to be appointed as either a Vice-

Chairman or Chairman of the Railway Claims Tribunal or as a Member or

Vice-Chairman or Chairman of any other Tribunal. To put it differently the

appointment again as a Member of the Railway Claims Tribunal is

specifically found missing and thus not deliberately included in sub-Section

(c) of Section 10.

9. From the aforesaid discussion, the following conclusions

emerge:-

(i) Though it is undisputed that the petitioner was put at No.1 in the

selection list by the committee of appointments, the petitioner is being

denied appointment on the ground of the bar contained in Section 10(c) of

the Act.

(ii) Section 10(c) with its various sub-Sections provide for the avenues

which are open, and thus also the avenues which are not open, after a

person's term of appointment either as a member or Vice-Chairman or

Chairman of the Railway Claims Tribunal comes to an end. With respect to

a Chairman, there is a bar for appointment under the Government of India or

Government of State. With respect to Vice-Chairman besides the afore-

stated bar, there is an additional bar for being appointed as a Vice-Chairman

or Member of the Railway Claims Tribunal, and, with respect to a Member,

there is a bar for being appointed under the Government of India or

Government of State and also as a Member of the Railway Claims Tribunal.

10. The legislative intention excluding appointments of a Member,

Chairman or Vice-Chairman again to their specific posts is ex facie clear and

cannot be curtailed by reference to the qualifications for appointment which

are governed by Section 5 with its sub-Sections. Section 5 deals with

qualifications and Section 10 deals with entitlement to further appointment

and thus also the limitations qua further appointments.

11. Learned counsel for the petitioner sought to argue on the basis

of various judgments of the Supreme Court, citations of which I need not

refer to, that unless there is a specific bar, the provisions of a statute should

not be read so as to create a bar, and it is argued that the bar in the present

case is only created by Section 5(3) and not by Section 10(c) so far as the

petitioner is concerned, and the petitioner hence cannot be denied

appointment.

There cannot be a dispute to the proposition of law that the bar

has to be specific, however in my opinion, and as already stated above, the

provision of Section 5(3) of the Act really deals only with the issue of

qualifications(though the language couched in the negative) and not with

respect to the bars for further appointment. The said provision talks of

which person can be qualified for appointment as a Judicial Member i.e what

should be the qualification. This provision cannot be interpreted as if it

deals with a bar being contained in this provision and, it cannot be doubted

that Section 5 with its sub-Sections only deals with qualifications for

appointment of a Chairman or Vice Chairman or a Member in view of its

categorical language. Section 5 with its sub-Sections cannot be read to mean

that the same also deals with the aspect of who cannot be appointed as a

Member or a Vice-Chairman or a Chairman i.e the disqualifications

specifically.

12. In any case, in my opinion, the issue is resolved by applying the

principle of harmonious construction with regard to interpretation of

statutes. Legislature is said not to legislate in futility, and if there is a

specific provision of law viz Section 10, the same has necessarily to be

given effect to unless it does violate to any other provision of the statute.

Therefore, on a harmonious construction of Sections 5, 7 and 10 it becomes

clear that a Member of a Railway Claims Tribunal is not re-eligible for being

appointed again as a Member of the Railway Claims Tribunal though he can

always be appointed as Vice Chairman or a Chairman of the Railway Claims

Tribunal or a Member or Vice Chairman or Chairman of any other Tribunal.

13. Merely because the Committee may have overlooked the vital

provision of Section 10(c) of the Act, and the petitioner was put at No.1 in

the selection list, would not mean that this Court is liable to issue

prerogative writs which will result in violating the specific provision of

Section 10(c) of the Act.

14. In view of the above, there is no merit in the petition which is

accordingly dismissed, leaving the parties to bear their own costs.

Crl. M.A. No.17760/2012 (under Section 340 Cr.P.C.)

15. By this application the petitioner seeks permission/direction for

prosecution under Section 340 CrPC of the signatory to the counter-affidavit

one Sh. Manoj Kumar on the ground that a letter dated 30.9.2011 of Sh.

Mahender Sharma, Advocate relied upon in the counter-affidavit is a

fabricated document.

16. I have by a detailed judgment dismissed the writ petition, and

ordinarily, I would not have passed any orders on this application inasmuch

as exercise of jurisdiction under Section 340 CrPC is discretionary, however

I am passing orders inasmuch as the petitioner who is present in person

instructs his counsel to strongly pursue the present application.

17. A Constitution Bench of the Supreme Court in the case of Iqbal

Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr. (2005) 4 SCC 370

has held that Courts will not exercise powers under Section 340 CrPC if the

fabrication is of a document which is stated to be manufactured by an act

done outside the premises of the Courts i.e outside the Court case.

Therefore, without commenting one view or the other on merits of the facts

urged by either party, this application is dismissed.

VALMIKI J. MEHTA, J MARCH 04, 2013 Ib/Ne