Case: MADRAS BAR ASSOCIATION Vs. UNION OF INDIA & ANR

L. Nageswara Rao, J. 1. This Court is once again, within the span of a year, called upon to decide the constitutionality of various provisions concerning the selection, appointment, tenure, conditions of service, and ancillary matters relating to various tribunals, 19 in number, which act in aid of the judicial branch. That the judicial system and this Court in particular has to live these deja vu moments, time and again (exemplified by no less than four constitution bench judgments) in the last 8 years, speaks profound volumes about the constancy of other branches of governance, in their insistence regarding these issues. At the heart of this, however, are stakes far greater: the guarantee of the rule of law to each citizen of the country, with the concomitant guarantee of equal protection of the law. This judgment is to be read as a sequel, and together with the decision of the Constitution Bench in Rojer Mathew vs. South Indian Bank Limited, (2020) 6 SCC 1. 2. The core controversy arising for this Courts consideration is the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 (hereinafter referred to as the 2020 Rules). 3. Before considering the merits of the case, it is necessary to refer to the events preceding the issuance of the 2020 Rules for a better understanding of the dispute. Like many other nations, India recognized the need for Tribunalisation of justice to provide for adjudication by persons with ability to decide disputes in specific fields as well as to provide expedited justice in certain kinds of cases. Part XIV-A was inserted in the Constitution of India by the Constitution (42nd Amendment) Act, 1976. Article 323-A enables the Parliament to constitute administrative tribunals for adjudication of the disputes relating to the recruitment and conditions of service of persons appointed to public posts in connection with the affairs of the Union or of any State or any local or other authority. According to Article 323-B, the appropriate Legislature may constitute Tribunals for adjudication of any dispute, complaints, or other offences with respect to all or any of the matters specified in Clause (2) therein. The vires of the Administrative Tribunals Act, 1985 (enacted by Parliament in furtherance of Article 323A, for setting up administrative tribunals for adjudication of service disputes of public servants) was challenged in proceedings under Article 32 of the Constitution of India. Two questions that were posed in the said Writ Petition related to the exclusion of jurisdiction of the High Court under Articles 226 and 227 of the Constitution in service matters, the composition of the administrative Tribunal and the mode of appointment of Chairman, Vice-Chairman and Members. While holding that the bar on jurisdiction of the High Courts cannot be a ground of attack, this Court in S.P. Sampath Kumar vs. Union of India, (1987) 1 SCC 124 held that the Tribunal should be a real substitute of the High Courts not only in form and de jure but in content and de facto. The Central Government was directed to make modifications to the Administrative Tribunals Act, 1985 pertaining to the composition of the Tribunal to ensure selection of proper and competent people to the posts of Presiding Officers of the Tribunal. 4. The judgment in S.P. Sampath Kumar (supra) was referred to a larger Bench for re-consideration in view of later rulings, notably R.K. Jain vs. Union of India, [1993] 4 SCC 119 which had called for a review with respect to functioning of tribunals. In L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261 this Court held that the power of judicial review vested in the High Courts and this Court under Articles 226 and 227, and 32 is a part of the basic structure of the Constitution. Therefore, the Court held that the Tribunals cannot act as substitutes of the High Courts and this Court, and that their functioning is only supplementary and that all decisions of administrative Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. Addressing the issue of the dependence of tribunals on the Executive for administrative requirements, a recommendation was made for creation of a single umbrella organisation which will be an independent supervisory body to oversee the working of the Tribunals. This Court was also of the opinion that the Ministry of Law and Justice, Government of India should be the nodal Ministry. 5. Part I-B and Part I-C were inserted in the Companies Act, 1956 providing for the constitution of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT). Madras Bar Association filed a Writ Petition in the Madras High Court challenging the vires of the above provisions on the grounds of violation of rule of law, doctrine of separation of powers and the independence of the judiciary, which are essential features of the basic structure of the Constitution. The Madras High Court allowed the Writ Petition, which was subject matter of several appeals which were disposed of by this Court in Union of India vs. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1. This Court was of the opinion that while it cannot be said that the Legislature is denuded the power to transfer judicial functions performed by courts to Tribunals, nevertheless independent judicial Tribunals for determination of the rights of citizens, and for adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the rule of law. It was held in the above judgment that judicial independence and separation of judicial power from the executive, are part of common law traditions implicit in a Constitution like ours. The creation of the NCLT and NCLAT was upheld. However, the defects found in Parts I-B and I-C of the Companies Act, 1956 were directed to be rectified by suitable amendments with modifications suggested by this Court in order to uphold the judicial independence of the Tribunals. The suggestions pertained to composition of the Search-cum-Selection Committee (for appointment of members of the tribunals), qualifications for appointment, and service conditions of members of the Tribunals. Later, Madras Bar Association had assailed the constitutional validity of the National Tax Tribunal Act, 2005. This Court held the National Tax Tribunal Act, 2005 to be unconstitutional. (Madras Bar Association vs. Union of India, (2014) 10 SCC 1.) Nonetheless, the vesting of adjudicatory functions in Tribunals was held to be not violative of the basic structure of the Constitution. The Companies Act, 2013 replaced the earlier Act of 1956 in which amendments were made to provisions relating to the establishment of NCLT and NCLAT. A Writ Petition was filed under Article 32 by the Madras Bar Association questioning the amended provisions of Chapter XXVII of the Companies Act, 2013, and more particularly Sections 408, 409, 411(3), 412, 413, 425, 431 and 434. The complaint of the Madras Bar Association in the said Writ Petition was that the offending provisions were analogous to the provisions in the 1956 Act which were found to be unconstitutional by this Court in Union of India vs. Madras Bar Association (2010) (supra). The constitutional validity of the provisions in Chapter XXVII of the Companies Act, 2013 was upheld by a judgment in Madras Bar Association vs. Union of India, (2015) 8 SCC 583. However, this Court was of the view that certain provisions relating to composition of the Search-cum-Selection Committee and qualification of Members of the Tribunals are invalid as they are contrary to the directions issued by the earlier judgment in Union of India v. Madras Bar Association (2010) (supra). 6. By the Finance Act, 2017, amendments were made to certain Acts to provide for merger of Tribunals and other authorities, and conditions of service of Chairpersons, Members, etc. According to Section 183 of the Finance Act, 2017, the provisions of Section 184 shall apply to the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal or Appellate Tribunal or other authorities, as specified under Column (2) of the Eighth Schedule to the Finance Act, 2017 on and from the appointed day i.e. 26.05.2017. It was further provided that Section 184 shall not apply to those holding such office immediately before the appointed day. Section 184 empowered the Central Government to make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Presiding Officer, Vice-President, or Member of the Tribunal or the Appellate Tribunal or other authorities as specified in Column (2) of the Eighth Schedule to the 2020 Rules. Maximum tenure of the aforementioned persons was fixed as five years. Chairperson, Chairman or Presiding Officer of the Tribunals cannot continue beyond 70 years. Likewise, the Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer or any other Member shall be entitled to continue till they attain the age of 67 years. The validity of the Finance Act, 2017 and the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017 (hereinafter referred to as the 2017 Rules) came up for consideration before this Court in Rojer Mathew vs. South Indian Bank Limited, (2020) 6 SCC 1. This Court formulated the following issues for consideration: 86.1. (I.) Whether the Finance Act, 2017 insofar as it amends certain other enactments and alters conditions of service of persons manning different Tribunals can be termed as a Money Bill under Article 110 and consequently is validly enacted? 86.2. (II.) If the answer to the above is in the affirmative then whether Section 184 of the Finance Act, 2017 is unconstitutional on account of excessive delegation? 86.3 (III.) If Section 184 is valid, Whether Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 are in consonance with the Principal Act and various decisions of this Court on functioning of Tribunals? 86.4 (IV.) Whether there should be a Single Nodal Agency for administration of all Tribunals? 86.5 (V.) Whether there is a need for conducting a Judicial Impact Assessment of all Tribunals in India? 86.6 (VI.) Whether judges of Tribunals set up by Acts of Parliament under Articles 323-A and 323-B of the Constitution can be equated in rank and status with Constitutional functionaries? 86.7 (VII.) Whether direct statutory appeals from Tribunals to the Supreme Court ought to be detoured? 86.8 (VIII.) Whether there is a need for amalgamation of existing Tribunals and setting up of benches. 7. The issue pertaining to whether the Finance Act, 2017 was a Money Bill (and if not, the need for it to be passed by the Rajya Sabha) was referred to a larger Bench and it was held that Section 184 of the Finance Act, 2017 does not suffer from excessive delegation of legislative functions. The 2017 Rules were struck down as being contrary to the principles of the Constitution as interpreted by various decisions of this Court (including those previously referred to herein). The Central Government was directed to reformulate the Rules strictly in conformity and in accordance with the principles delineated by this Court in its earlier judgments read with the observations made in the judgment in Rojer Mathew (supra). Non-discriminatory and uniform conditions of service including assured tenure were directed to be formulated by the Central Government in the new set of Rules. A Writ of Mandamus was issued to the Ministry of Law & Justice to carry out a judicial impact assessment for all the Tribunals. Appointments to the Tribunals, Appellate Tribunals and the other Authorities were directed to be held in accordance with the respective statutes which governed the conditions of service of members of Tribunals before the enactment of the Finance Act, 2017 till a fresh set of Rules were made by theCentral Government. The Union of India was granted liberty to seek modification of the said order after fresh Rules are framed. 8. Thereafter, by a Notification dated 12.02.2020, the Central Government in exercise of the power conferred by Section 184 of the Finance Act, 2017 made the impugned 2020 Rules. The 2020 Rules which deal with the qualification and appointment of members by recruitment, procedure for inquiry into misbehavior, House Rent Allowance and other Conditions of Service are the subject matter of challenge in these cases before us and will be dealt with in detail in the succeeding paragraphs. 9. Pursuant to the liberty granted by this Court in the judgment of Rojer Mathew (supra), the Union of India filed Miscellaneous Application No. 1152 of 2020 placing the 2020 Rules before this Court and seeking a direction that the 2020 Rules would apply to all persons appointed as Members, President, Chairperson, etc. of Tribunals after the appointed day i.e. 26.05.2017. Several applications were filed by Bar Associations and the Members of the Tribunals seeking directions to fill up the vacant posts by making appointments to the Tribunals and for clarifications relating to the retrospective operation of the 2020 Rules. The Madras Bar Association filed a Writ Petition under Article 32 seeking a declaration that the 2020 Rules are ultra vires of Article 14, 21 and 50 of the Constitution apart from being violative of the principles of separation of powers and independence of the judiciary. According to the Writ Petitioner, the 2020 Rules were also contrary to the earlier judgments of this Court in Union of India vs. Madras Bar Association, (2010) 11 SCC 1 , Madras Bar Association vs. Union of India, (2014) 10 SCC 1 and Rojer Mathew (supra). Other Writ Petitions filed in the High Courts were transferred to this Court. 10. We requested Mr. Arvind P. Datar, learned Senior Counsel who has been actively associated with the litigation from the beginning and who was appointed as Amicus Curiae in the earlier rounds to assist this Court as Amicus Curiae to which he readily and graciously accepted. We have heard Mr. Arvind P. Datar, learned Senior Counsel (Amicus Curiae), Mr. Mukul Rohtagi, Mr. C.A. Sundaram, learned Senior Counsel, Mr. Vikas Singh, learned Senior Counsel, Ms. Anitha Shenoy, learned Senior Counsel, Mr. K.K. Venugopal, learned Attorney General for India, Mr. Balbir Singh, learned Additional Solicitor General, Mr. S.V. Raju, learned Additional Solicitor General, Mr. R. Balasubramanium, learned Senior Counsel, Mr. A.S. Chandhiok, learned Senior Counsel, Mr. Virender Ganda, learned Senior Counsel, Mr. M.S. Ganesh, learned Senior Counsel, Mr. Sidharth Luthra, learned Senior Counsel, Mr. C.S. Vaidyanathan, learned Senior Counsel, Mr. Guru Krishnakumar, learned Senior Counsel, Mr. Rakesh Kumar Khanna, learned Senior Counsel, Mr. Gautam Misra, learned Senior Counsel, Mr. P.S. Narasimha, learned Senior Counsel and other learned counsel appearing for the parties. For the sake of convenience, Writ Petition (Civil) No.804 of 2020 filed by the Madras Bar Association is taken as the lead case. The points raised in the said Writ Petition will broadly cover all the issues that have been the subject matter of discussion during the course of the hearing of this case. 11. The main issues raised in the Writ Petition are that the 2020 Rules are unconstitutional as: a) The Search-cum-Selection Committees provided for in the 2020 Rules did not conform to the principles of judicial dominance; b) Appointment of persons without judicial experience to the posts of Judicial Members/ Presiding Officer/ Chairpersons is in contravention to the earlier judgments of this Court; c) The term of office of the Members for four years is contrary to the earlier decisions of this Court; d) Advocates are not being made eligible for appointment to most of the Tribunals; e) Administrative control of the executive in matters relating to appointments and conditions of service is violative of the principles of separation of powers and independence of judiciary and demonstrates non-application of mind. NATIONAL TRIBUNALS COMMISSION: 12. Mr. Datar, learned Amicus Curiae submitted that there is an imperative need for the Tribunals to function independently and free from executive control. Tribunals which are exercising power once vested with the High Courts and adjudicating disputes should be completely independent to infuse confidence in the mind of the litigant public. He relied upon the observations of Vivian Bose, J. in Bidi Supply Co. vs. Union of India, (1956) SCR 267 which are as follows: The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. 13. Mr. Datar also referred to the Reports of the Franks and Leggatt Committees which describe the role of Tribunals in the United Kingdom in a detailed manner. Mr. Datar brought to our notice that the recommendations of the Leggatt Committee were cited with approval in the judgment of this Court in Union of India v. Madras Bar Association (2010) (supra). According to the learned Amicus Curiae, the administrative support is provided by a Department of the Government of India, the Secretary of which is a Member of the Search-cum-Selection Committee. He cited the judgment of this Court in L. Chandra Kumar (supra) to argue that there should be a wholly independent agency for the administration of all the Tribunals. The learned Amicus Curiae also brought to our notice a statement made by Mr. Arun Jaitley, the then Minister of Law and Justice on the floor of the Parliament on 02.08.2001 that there was a proposal to set up a Central Tribunals Division. According to the learned Amicus Curiae, setting up a National Tribunals Commission as a supervisory body over the Tribunals would go a long way in improving the effective functioning of the Tribunals and enhancing the public image of the Tribunals. The mounting arrears in the Tribunals is mainly due to the delay in filling up the vacancies of the Presiding Officers and members of the Tribunals. The learned Amicus Curiae suggested that there should be a National Tribunals Commission manned by retired Judges of the Supreme Court, Chief Justices of the High Courts and Members from the Executive which will have a full-time Secretary performing the following functions: a) Selection of candidates; b) Re-appointment of candidates; c) Conducting of inquiry against Members; d) Sanction leave of Members wherever necessary; e) Monitor the functioning of the Tribunals, in particular, the arrears and disposal of cases and filling up of vacancies and ensuring adequate infrastructure; and f) Ensure adequate infrastructure and IT support. 14. The learned Attorney General was also of the opinion that constitution of a National Tribunals Commission would provide a solution to the existing problems and ensure the smooth functioning of the Tribunals. 15. Docket explosion and mounting arrears are serious problems faced by the justice system in this country. Initially, creation of Tribunals was understood to provide a solution to the problems and to ease the burden on the Constitutional Courts. Specialized Tribunals were set up to meet the exigencies of adjudication of disputes in some branches of law. A constant complaint has been that the Tribunals are not free from the Executive control and that they are not perceived to be independent judicial bodies. There is an imperative need to ensure that the Tribunals discharge the judicial functions without any interference of the Executive whether directly or indirectly. 16. This Court has been repeatedly urging the Union of India to set up a single umbrella organization which would be an independent body to supervise the functioning of the Tribunals and ensure that the independence of the Members of the Tribunals is maintained. For the first time, this Court in its judgment in L. Chandra Kumar (supra) persuaded the Government of India to have the Ministry of Law as the nodal Ministry which would appoint an independent supervisory body to oversee the working of the Tribunals. The observations in L. Chandra Kumar are to the following effect: 96. ...The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out. 17. In para 70 of Union of India v. Madras Bar Association (2010) (supra), this Court deprecated the practice of administrative support from the Departments other than the Ministry of Law and Justice. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Later, the learned Amicus Curiae submitted a concept note on the National Tribunals Commission which was approved by this Court in Rojer Mathew vs. South Indian Bank Limited, (2018) 16 SCC 341. This Court was of the opinion that an autonomous oversight body should be established for recruitment of members and functioning of the Tribunals. In fact, the Court in Rojer Mathew (supra) even held that control of the tribunals by the executive is fraught and undermines their independence: 168. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. 18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals. 19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (supra) referred to the current problems faced by the Tribunals. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before them are some of the serious problems highlighted by this Court. There is a likelihood of the independence of adjudication process being compromised in a situation where the Tribunal is made dependent for its needs on a litigant. The need for financial independence of the Tribunals has been dealt with by this Court in Rojer Mathew (supra). A direction was given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. We reiterate the importance of the constitution of an autonomous oversight body for recruitment and supervision of the performance of the Tribunals. It is high time that the observations and suggestions made in this regard by this Court shall be implemented by the Union of India. An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence. We also notice that in the final directions and conclusions recorded in Roger Mathew (supra)(See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money Bills to a larger bench.), the wisdom or legality of setting up such an independent oversight body was not doubted and it was not referred to a larger Bench, since the view in L. Chandra Kumar on this point was not doubted.

Decision:
1[ds]15. Docket explosion and mounting arrears are serious problems faced by the justice system in this country. Initially, creation of Tribunals was understood to provide a solution to the problems and to ease the burden on the Constitutional Courts. Specialized Tribunals were set up to meet the exigencies of adjudication of disputes in some branches of law. A constant complaint has been that the Tribunals are not free from the Executive control and that they are not perceived to be independent judicial bodies. There is an imperative need to ensure that the Tribunals discharge the judicial functions without any interference of the Executive whether directly or indirectly.16. This Court has been repeatedly urging the Union of India to set up a single umbrella organization which would be an independent body to supervise the functioning of the Tribunals and ensure that the independence of the Members of the Tribunals is maintained. For the first time, this Court in its judgment in L. Chandra Kumar (supra) persuaded the Government of India to have the Ministry of Law as the nodal Ministry which would appoint an independent supervisory body to oversee the working of the Tribunals. The observations in L. Chandra Kumar are to the following effect:96. ...The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.17. In para 70 of Union of India v. Madras Bar Association (2010) (supra), this Court deprecated the practice of administrative support from the Departments other than the Ministry of Law and Justice. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Later, the learned Amicus Curiae submitted a concept note on the National Tribunals Commission which was approved by this Court in Rojer Mathew vs. South Indian Bank Limited, (2018) 16 SCC 341. This Court was of the opinion that an autonomous oversight body should be established for recruitment of members and functioning of the Tribunals. In fact, the Court in Rojer Mathew (supra) even held that control of the tribunals by the executive is fraught and undermines their independence:168. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary.18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals.19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (supra) referred to the current problems faced by the Tribunals. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before them are some of the serious problems highlighted by this Court. There is a likelihood of the independence of adjudication process being compromised in a situation where the Tribunal is made dependent for its needs on a litigant. The need for financial independence of the Tribunals has been dealt with by this Court in Rojer Mathew (supra). A direction was given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. We reiterate the importance of the constitution of an autonomous oversight body for recruitment and supervision of the performance of the Tribunals. It is high time that the observations and suggestions made in this regard by this Court shall be implemented by the Union of India. An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence. We also notice that in the final directions and conclusions recorded in Roger Mathew (supra)(See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money Bills to a larger bench.), the wisdom or legality of setting up such an independent oversight body was not doubted and it was not referred to a larger Bench, since the view in L. Chandra Kumar on this point was not doubted.24. The issue of constitution of the Search-cum-Selection Committees for appointment to the posts of Chairperson and Members of the Tribunal has been dealt with by this Court earlier. Section 10 FX of the Companies Act, 1956 provided for constitution of a Search-cum-Selection Committee consisting of the Chief Justice of India or his nominee as the Chairperson and four Secretaries to the Government of India from the Ministry of Finance and Company Affairs, Ministry of Labour, and Ministry of Law and Justice respectively as Members. The validity of Section 10 FX was challenged by the Madras Bar Association as being violative of the principles of separation of powers and judicial independence. This Court in Union of India v. Madras Bar Association (2010) (supra) while dealing with a judgment of the Madras High Court held that Parts IB and IC of the Companies Act can be made operational only after making suitable amendments suggested therein. In respect of the Search-cum-Selection Committee, the amendment suggested by this Court was that it should consist of the Chief Justice of India or his nominee as Chairperson and another Judge of the Supreme Court and two Secretaries of the Government of India from the Ministry of Finance and Company Affairs and the Ministry of Law and Justice. It is relevant to mention that in the said judgment, this Court took note of the fact that the Secretary of the sponsoring department is serving as a member of the Search-cum-Selection Committee. This Court was of the opinion that the Tribunals will not be considered independent unless reforms that were implemented in the United Kingdom pursuant to the Report of the Leggatt Committee are implemented in the Tribunals in India. Nonetheless, this Court observed that the Secretary, Ministry of Finance and Company Affairs can be a member of the Search-cum-Selection Committee for appointment of members to NCLT and NCLAT.26. Provisions made for the NCLT and NCLAT in the Companies Act, 2013 were again the subject matter of challenge before this Court in Madras Bar Association v. Union of India (2015) (supra). Section 412 of the Companies Act, 2013 deals with the selection of the Members of the NCLT and NCLAT. The President of the Tribunal, the Chairperson and Judicial Members of the Appellate Tribunal shall be appointed after consultation with the Chief Justice of India. The Search-cum-Selection Committee for appointment of the Members of the Tribunal and the Technical Members of the Appellate Tribunal shall consist of the Chief Justice of India or his nominee, a Senior Judge of the Supreme Court or the Chief Justice of a High Court and the Secretaries of the Ministry of Corporate Affairs, Ministry of Law and Justice and the Ministry of Finance. In Madras Bar Association vs. Union of India (2015) (supra), this Court expressed its displeasure in the constitution of the Search-cum-Selection Committee which is contrary to the principles laid down in its earlier judgment in Union of India v. Madras Bar Association (2010) (supra). Section 412 (2) of the Companies Act, 2013 was held to be not valid as it was found to be against the binding precedents of this Court in Union of India v. Madras Bar Association (2010) (supra). A direction was issued to remove the deficiency in the constitution of the Search-cum-Selection Committee by bringing the same into accord with sub-para (viii) of para 120 of the judgment in Union of India v. Madras Bar Association (supra).27. The 2017 Rules were made in exercise of the powers conferred under Section 184 of the Finance Act, 2017. Rule 4 provides for method of recruitment to the post of Chairman or Chairperson or President and the Members of the Tribunals. Under the 2017 Rules, the Search-cum-Selection Committee consisted of the Chief Justice of India or his nominee as the Chairperson and the Chairman of the Tribunal along with the Secretaries to Government. While striking down the 2017 Rules, this Court in Rojer Mathew (supra) commented that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. This Court further observed that excessive interference by the executive in appointment of the members would be detrimental to the independence of judiciary and an affront to the doctrine of separation of powers. The principles laid down in the aforementioned judgments are binding precedents which have to be implemented by the Respondent. However, the 2020 Rules which are in challenge in the Writ Petitions replicate the 2017 Rules in respect of the constitution of the Search-cum-Selection Committees, insofar as they do not ensure judicial dominance. We appreciate the stand taken by the learned Attorney General that a casting vote will be given to the Chief Justice of India or his nominee as the Chairperson of the Search-cum-Selection Committee. We also accept the submission of the learned Attorney General that normally the Chairperson of the Tribunal would be a retired Judge of the Supreme Court or the Chief Justice of a High Court. As such, two members of the judiciary with a casting vote to the Chairperson of the Search-cum-Selection Committee should ensure judicial dominance over the selection process and take care of the grievances of the Writ Petitioner. Mr. Datar submitted that there are certain Tribunals in which the Chairperson may not be a judicial member. In such Tribunals, we are of the opinion that the Search-cum-Selection Committee should have a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India in place of the Chairperson of the Tribunal.We approve this submission of the Attorney General.29. It has been repeatedly held by this Court that the Secretaries of the sponsoring departments should not be members of the Search-cum-Selection Committee. We are not in agreement with the submission of the learned Attorney General that the Secretary of the sponsoring department being a member of the Search-cum-Selection Committee was approved by this Court in Union of India v. Madras Bar Association (2010) (supra) and it would prevail over the later judgment in Madras Bar Association v. Union of India (2014) (supra). We have already referred to the findings recorded in paragraph 70 of the judgment in Union of India v. Madras Bar Association (2010) (supra) that the sponsoring department should not have any role to play in the matter of appointment to the posts of Chairperson and members of the Tribunals. Though the ultimate direction of the Court was to constitute a Search-cum-Selection Committee for appointment of members to NCLT and NCLAT of which Secretary, Ministry of Finance and Company Affairs is a member, the ratio of the judgment is categorical, which is to the effect that Secretaries of the sponsoring departments cannot be members of the Search-cum-Selection Committee. We, therefore, see no conflict of opinion in the two judgments as argued by the learned Attorney General. However, we find merit in the submission of the learned Attorney General that the presence of the Secretary of the sponsoring or parent department in the Search-cum-Selection Committee will be beneficial to the selection process. But, for reasons stated above, it is settled that the Secretary of the parent or sponsoring Department cannot have a say in the process of selection and service conditions of the members of Tribunals. Ergo, the Secretary to the sponsoring or parent Department shall serve as the Member-Secretary/Convener to the Search-cum-Selection Committee and shall function in the Search-cum-Selection Committee without a vote.30. The Government of India is duty bound to implement the directions issued in the earlier judgments and constitute the Search-cum-Selection Committees in which the Chief Justice of India or his nominee shall be the Chairperson along with the Chairperson of the Tribunal if he is a retired Judge of the Supreme Court or a retired Chief Justice of a High Court and two Secretaries to the Government of India. In case the Tribunal is headed by a Chairperson who is not a judicial member, the Search-cum-Selection Committee shall consist of the Chief Justice of India or his nominee as Chairperson and a retired Judge of the Supreme Court or a retired Chief Justice of a High Court to be nominated by the Chief Justice of India and Secretary to the Government of India from the Ministry of Law and Justice and a Secretary of a department other than the parent or sponsoring department to be nominated by the Cabinet Secretary. As stated above, the Secretary of the parent or sponsoring department shall serve as the Member-Secretary or Convener, without a vote.34. This Court directed the extension of the tenure of the members of the Tribunal from three years to seven or five years subject to their eligibility in the case of Union of India v. Madras Bar Association (2010) (supra). This Court was of the opinion that the term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, the term would be over. In the said judgment it was further observed that the Tribunals would function effectively and efficiently only when they are able to attract younger members who have a reasonable period of service. In spite of the above precedent, a tenure of three years was fixed for the members of Tribunals in the 2017 Rules. While setting aside the 2017 Rules, this Court in Rojer Mathew (supra) held that a short period of service of three years is anti-merit as it would have the effect of discouraging meritorious candidates to accept the posts of judicial members in the Tribunals. In addition, this Court was also convinced that the short tenure of members increases interference by the executive jeopardizing the independence of judiciary.35. The 2020 Rules are not in compliance with the principles of law laid down in Union of India v. Madras Bar Association (2010) (supra) and Rojer Mathew (supra) in respect of the tenure of the members of the Tribunals in spite of this Court repeatedly holding that short tenure of members is detrimental to the efficiency and independence of the Tribunals. Rule 9(1) of the 2020 Rules provide for a term of four years or till a Chairman or Chairperson or President attains the age of 70 years whichever is earlier. No rationale except that four years is more than three years prescribed in the 2017 Rules (described as too short, in Roger Mathew (supra)) was put forwardon behalf of the Union of India. In so far as the posts of Vice Chairman or Vice-Chairperson or Vice-President and members are concerned, Rule 9(2) fixes the tenure as four years or till they attain the age of 65 years whichever is earlier. In view of the law laid down in the earlier judgments, we direct the modification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of Chairman or Chairperson, Vice Chairman or Vice-Chairperson and the members. Rule 9(1) permits a Chairman, Chairperson or President of the Tribunal to continue till 70 years which is in conformity with Parliamentary mandate in Section 184 of the Finance Act. However, Rule 9(2) provides that Vice Chairman and other members shall hold office till they attain 65 years. We are in agreement with the submission made by the learned Amicus Curiae that under the 2020 Rules, the Vice Chairman, Vice-Chairperson or Vice-President or members in almost all the Tribunals will have only a short tenure of less than three years if the maximum age is 65 years.36. Section 184 of the Finance Act, 2017 provides for reappointment of Chairpersons, Vice-Chairpersons and members of the Tribunals on completion of their tenure. There is no mention of reappointment in the 2020 Rules.37. According to Rule 15 of the 2020 Rules, the Chairperson and the other members of the Tribunals shall be entitled to house rent allowance at the same rate admissible to officers of the Government of India holding grade A posts carrying the same pay.As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010) (Para 120 (i) @ page 65, 2010 (11) SCC 1 @ page 65) and Madras Bar Association v. Union of India (2015) (Para 27, page 608 (2015 (8) SCC 583 )). However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members.43. As we have already held that Advocates are entitled to be considered as judicial members of the Tribunals, we see no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The judgment of Union of India v. Madras Bar Association (2010) (supra) did not take note of the above points relating to the experience of members of Indian Legal Service at the bar. The Indian Legal Service was considered along with the other civil services for the purpose of holding that the members of Indian Legal Service are entitled to be appointed only as technical members.45. Rule 8 of the 2020 Rules provides the procedure for inquiry of misbehavior or incapacity of a member. According to the said Rule, the preliminary scrutiny of the complaint is done by the Central Government. If the Central Government finds that there are reasonable grounds for conducting an inquiry into the allegations made against a member in the complaint, it shall make a reference to the Search-cum-Selection Committee which shall conduct an inquiry and submit the report to the Central Government.We are in agreement with the submissions of the learned Attorney General.The very reason for constituting Tribunals is to supplement the functions of the High Courts and the other Courts and to ensure that the consumer of justice gets speedy redressal to his grievances. This would be defeated if the Tribunals do not function effectively. It has been brought to our notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the Tribunals. The pendency of cases in the Tribunals is increasing mainly due to the lack of personnel in the Tribunals which is due to the delay in filling up the vacancies as and when they arise due to the retirement of the members. There is imminent need for expediting the process of selections and appointments to ensure speedy justice.50. Before expressing our view on this point, it would be necessary to refer to certain interim orders that were passed by this Court in Rojer Mathew (supra). By an order dated 09.02.2018, this Court gave certain interim directions regarding constitution of the Search-cum-Selection Committee and other issues in relation to appointments to the post of members of the Central Administrative Tribunal. The direction with which we are concerned at present pertains to appointments that were directed to be made pursuant to the recommendations of the interim Search-cum-Selection Committee which shall abide by the conditions of service stipulated in the old Acts and Rules. By an order dated 20.03.2018, the order passed on 09.02.2018 was clarified by this Court and the tenure of the Chairperson and the members was directed to be for a period of five years. There is another order passed on 21.08.2018 by this Court in Writ Petition (C) No. 279 of 2017 by which it was clarified that appointments made to the post of members of the Customs Excise Sales Tax Appellate Tribunal shall be for a period of five years or till the member attains the age of 62 years. This Court clarified that the President shall continue till he attains the age of 65 years. In respect of the Central Administrative Tribunal, the old Rules were directed to be applied.51. The 2017 Rules have been declared as being contrary to the parent enactment and the principles envisaged in the Constitution and hence struck down by this Court in Rojer Mathew (supra). The Central Government was directed to reformulate the Rules in conformity and in accordance with the principles delineated by this Court in its earlier judgment and the observations made in Rojer Mathew (supra). The 2020 Rules are made in exercise of the power conferred under Section 184 of the Finance Act which came into force on their publication in the official Gazette as per Rule 1 (2). The date of publication of the 2020 Rules is 12.02.2020. We are unable to accept the submission of learned Attorney General that the 2020Rules which replaced the 2017 Rules shall come into force with effect from 26.05.2017 which was the appointed day in accordance with the 2017 Rules. It is true that the 2017 Rules were brought into force from 26.05.2017 and Section 183 of the Finance Act provides for any appointment made after the appointed day shall be in accordance with the Rules made under Section 184 of the Finance Act, 2017. 2017 Rules which have come into force with effect from 26.05.2017 in accordance with Section 183 have been struck down by this Court. The 2020 Rules which came into force from the date of their publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect. The intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.( ITO vs. M.C. Ponnoose, (1969) 2 SCC 351 ; Sri Vijayalakshmi Rice Mills vs. State of A.P., (1976) 3 SCC 37 ).52. As we have held that the 2020 Rules are not retrospective, the point that remains to be determined is the applicable Rules for appointments that were made prior to the 2020 Rules. The appointments made during the pendency of Rojer Mathew (supra) on the date of interim orders passed therein and appointments made after the judgment of Rojer Mathew (supra), like the appointments made prior to the 2017 Rules are, no doubt, to be governed by the then existing parent Acts and Rules. In view of the interim orders passed by this Court in Rojer Mathew (supra), appointments made during the pendency of the case in this Court are also to be governed by the parent Acts and Rules and the clarifications issued by this Court in Rojer Mathew (supra). According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment.