A.K.Behera vs Union Of India & Anr

21. It is also incorporated in the rejoinder that the amendment has placed the members of the Bar in a totally disadvantageous position as previously the members of the Bar were being selected as Member (Judicial), but with the amendment now the retiring and retired High Court Judges are competing for the post of Member (Judicial) thereby the members of the Bar are totally ignored. Theoretically, the members of the Bar are eligible for appointment as Member (Judicial), practically competent and otherwise deserving lawyers have been eliminated from the scene. The Tribunal which is discharging judicial powers which were earlier exercised by the High Courts should be predominantly manned by the members of the Bar and Judiciary but after the 62 amendment till date only two members have been appointed from the Bar in so many years. This is the direct and inevitable impact of the amendment. This goes against the letter and spirit of the law declared in the case of S.P. Sampat Kumar v. Union of India & Others (1987) 1 SCC 124.

18.For the reasons stated in the Judgment, this Court does not find any merits in any of the abovementioned writ petitions and they are liable to be dismissed. Accordingly, both the writ petitions fail and are dismissed. There shall be no order as to costs.

1. I have had the benefit of going through the judgment of my Brother Hon'ble Mr. Justice J.M. Panchal. Though Hon'ble Mr. Justice K.G. Balakrishnan, Chief Justice of India has agreed with his decision, however, I express my inability to agree with him, therefore, I am writing a separate judgment.

54. I am, therefore, clearly of the opinion that there is no anathema in the Tribunal exercising jurisdiction of High Court and in that sense being supplemental or additional to the High Court but, at the same time, it is our bounden duty to ensure that the Tribunal must inspire the same confidence and trust in the public mind. This can only be achieved by appointing the deserving candidates with legal background and judicial approach and objectivity.

55. I deem it appropriate to briefly discuss the theory of basic structure and separation of power in the Constitution to properly comprehend the controversy involved in this case. EQUALITY AND BASIC STRUCTURE 86

SEPARATION OF POWERS

EQUAL PAY FOR EQUAL WORK

88. One fails to comprehend and understand why the respondents are perpetuating discrimination even for a period of four to five years.

89. The High Court Judges are appointed from two streams - 2/3rd from the Bar and 1/3rd from the Subordinate Judicial Service. After appointment, they are assigned the task of discharging judicial functions. The direct and inevitable impact of the amendment is to dissuade and discourage both the members of the Bar and Judiciary from becoming members of the Tribunal. The Tribunal is discharging purely judicial work which were earlier discharged by the judges of 105 the High Courts. The people's faith and confidence in the functioning of the Tribunal would be considerably eroded if both the members of the Bar and judiciary are discouraged from joining the Tribunal. In a democratic country governed by rule of law, both the lawyers and judges cannot be legitimately discouraged and dissuaded from manning the Tribunal discharging only judicial work.

90. The petitioners are aggrieved by the decision of the respondents to abolish the post of Vice-Chairman in the Central Administrative Tribunal and pray that it should be restored.

92. The petitioners are also aggrieved by the newly inserted Section 10A that it is unconstitutional to the extent that it stipulates that the total term of the office of the members of the Tribunal shall not exceed 10 years. They pray that this embargo be removed.

93. The petitioners further pray that all members be permitted to function till they attain the age of superannuation of 65 years.

NEWLY INSERTED SECTION 10A

94. I see no rationale or justification in providing different conditions of service for the members of the Tribunal on the basis of their appointment under the amended and the unamended rules, particularly when even according to the respondents it is nowhere denied that both the categories of members are not discharging the same duties, obligations and responsibilities.

98. I see no logic, rationale or justification in abolishing the post of Vice-Chairman in the Central Administrative Tribunal. No reason for such abolition has been spelt out by the 109 respondents even at the time of introducing the Bill. Before the amendment, ordinarily, the retired judges of the High Courts used to be appointed to the post of Vice-Chairman. It used to be in consonance with the status and positions of the retired judges.

102. In the larger public interest the post of Vice-Chairman is restored and the procedure for appointment would be in accordance with the unamended rules of the Act.

103. It must be clearly understood by all concerned that the judicial work which the members of the Tribunal discharge is one, which was earlier discharged by the Judges of the High 111 Court. The work is totally judicial in nature, therefore, dispensation of justice should be left primarily to the members of the Bar and Judges who have, by long experience and training acquired judicial discipline, understanding of the principles of law, art of interpreting laws, rules and regulations, legal acumen, detachment and objectivity. Unless extreme care is taken in the matter of appointments of the members of Tribunal, our justice delivery system may not command confidence, credibility, acceptability and trust of the people.

104. I deem it appropriate to reiterate the impact of conclusions of my judgment:

(ii) All the members of the Tribunal would have uniform age of retirement from 01.06.2010, meaning thereby that all members of the Tribunal shall be permitted to function until they attain the age of superannuation of 65 years. Hence, Section 10A is quashed and set aside.

(iii) The post of Vice-Chairman in the Central Administrative Tribunal is restored from 01.06.2010. However, I do not want to disturb the Vice-Chairmen, if already designated by the Government, and permit them to continue in their respect posts till they attain the age of superannuation. Thereafter, the Vice- Chairman shall be appointed in accordance with the unamended rules. Consequently, the newly inserted section 12(2) of the amended Act is also quashed and set aside.

105. The Writ Petitions are accordingly allowed in aforementioned terms and disposed of, leaving the parties to bear their own costs.

..................................J. (Dalveer Bhandari) New Delhi;

May 6, 2010