Customs Excise and Gold Control Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1987: Rules 2c, 3,6,10.-CEGAT-President-Appointment of Appointment of senior Vice-President as President-Legality and validity of Appointment held valid but need for appointing a sitting or retired High Court Judge as President emphasised-Need for amendment of Rule 10(4) emphasised.

CEGAT-Writ in public interest-Allegation of malfunctioning in CEGAT-Examination of allegation by a high level team directed.

Indian Evidence Act, 1872: Sections 123, 124 and 162. State Documents-Right of Government to claim immunity from disclosure-Scope of-Claim for immunity should be supported by affidavit by Head of Department indicating reasons for claim-Oath of office secrecy adumberated in Article 74 (5) and Schedule III of Constitution does not absolve Minister from stating reasons in support of immunity-It is duty of Court and not executive to decide whether a document needs immunity from disclosure.

Constitution of India, 1950:

Article 75(3) and Schedule III-Cabinet-Role and functions of-Cabinet documents-Need for secrecy-Extent of immunity from disclosure.

Article 74 (2) Scope of Advice tendered by Ministers to President-Bar of judicial review is to the factum of advice tendered by Council of Ministers to President-but not to record i.e. material on which advice is founded.

Articles 323A and 323B-Tribunals set up under-Need for a study by law Commission suggesting measures for improved functioning of Tribunals emphasised.

Judicial Review-Is basic feature of Constitution-Cannot be dispersed with by creating Tribunals under Articles 323A and 323B of Constitution-Alternative Mechanism devised for judicial review should be effective and efficient-Court's anguish over in effectivity of alternative mechanism devised for judicial review expressed Appeal to a Bench of two Judges of High Court over orders of Tribunal suggested.

Service Law-Selection-Rule conferring power on Central Government to make appointment-Court cannot sit over the choice of selection.

Service Law Challenge to legality of offending action-Only aggrieved person has locus-Third party has no locus to canvass the legality of action.

Maxim: Salus Popules Cast Suprema Lax-Meaning of.

By a letter dated December 26, 1991 addressed to the Chief Justice of India, the petitioner, Editor, Excise Law Times, complained that ever since the retirement of President of the Customs, Excise and Gold control Appellate Tribunal (CEGAT) in 1985 no appointment of President was made as a result of which the functioning of the Tribunal was adversely affected. He also alleged mal-functioning in the CEGAT and sought directions for immediate appointment of the President as well as an enquiry into the mal-functioning of CEGAT. The letter was treated as a Writ Petition in public interest litigation and on February 25, 1992, this Court issued Rule Nisi to Union of India to make immediate appointment of the President of CEGAT, prefer- ably a senior High Court Judge. After the directions were issued by this Court, Respondent No. 3, who was initially appointed as Judicial Member and subsequently as Senior Vice-President of the Tribunal, was appointed as President.

The petitioner filed another petition challenging the appointment of President and sought to quash the same on the grounds that (1) the appointment was in breach of judicial order passed by this Court on February 25, 1992 because as per the convention a sitting or retired Judge of the High Court should have been appointed as President in consultation with the Chief Justice of India; even though High Court Judges were available no serious attempt was made to requisition the services of one of them for appointment as President; (2) before the Act was made a positive commitment was made time and again by the Government on the floor of the House that judicial independence of CEGAT is sine qua non to sustain the confidence of the litigant public. The appointment of any person other than sitting or a retired judge of the High Court as President would be in its breach; and (3) the appointment of Respondent No. 3 as a Judge of the Delhi High Court was turned down by Chief Justice of India doubting his integrity, therefore appointment of such a person as President of CEGAT would undermine the confidence of the litigant public in the efficacy of judicial adjudication, even though Rules may permit such appointment.

The petitioner also prayed that Rules 10(1)(3) and (4) of the CEGAT Members (Recruitment and Conditions of Service) Rules, 1987 should be struck down as violative of Article 43 of the Constitution; the rules were ultra - vires of the basic structure of the Constitution, namely independence of Judiciary. On May 4, 1992 this Court issued Rule Nisi and on the next date of hearing the relevant file on which decision regarding the appointment of President was made produced in the Court but on behalf of the Union of India an objection was taken by the Additional Solicitor General that this Court cannot inspect the file as he intended to claim privilege. Accordingly, pursu- ant to the directions given by this Court that a formal application may be made setting out the grounds on which the claim for privilege was founded, the Finance Secretary and the Minister of State for Finance filed affidavits claiming privilege under Sections 123 and 124 of the Indian Evidence Act and Article 74, (2) of the Constitution stating that the Government had no objection for the Court to peruse the file but claimed privilege to disclose the - contents of the file to the petitioner.

On behalf of the Union of India it was contended that a Cabinet Sub- Committee approved the appointment of Respondent No. 3 as President of CEGAT and by operation of Article 77(3) and 74(1), the appointment was made by the President. The file constitutes Cabinet documents forming part of the preparation of the documents leading to the formation of the advice tendered to the President. Section 123 of the Evidence Act and Article 74 (2) precluded this Court from enquiring into the nature of the advice tendered to the President and the documents were, therefore, immune from disclosure. The disclosure would cause public injury preventing candid and frank discussion and expression of views by the bureaucrats at higher level and by the Minister/Cabinet Sub-Committee causing serious injury to public service.

On behalf of Respondent No.3 it was contended that (1) he had an excellent and impeccable record of service without any adverse remarks and dropping of his recommendation for appointment as a Judge of Delhi High Court could not be construed adverse to him; (2) the Government had prerogative to appoint any member, or Vice Chairman or Senior Vice President as President and Respondent No.3 being the Senior Vice President, was considered and recommended by the Cabinet Committee for appointment. Hence he was validly appointed as President.

Disposing the petitions.