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Outcome: Disposed off
Segment: Body
entirely arbitrary. 
As this Court in its previous judgment (Rojer Mathew) has pointed out
in another context, the exclusion of such young and energetic legal
practitioners could result in not so efficient or competent practitioners
left in a field for consideration which would have telling effects on the
quality of decisions they are likely to render.
22. Prescribing 50 years’ minimum age as a condition for
appointment to these tribunals is arbitrary also because absolutely no
reason is forthcoming about what impelled Parliament to divert from the
long-established criteria of giving weightage to actual practice, reputation,
integrity and subject expertise, without a minimum age criterion, in the
pleadings in this case, nor in any other cases (R. Gandhi –MBA –I;
Madras Bar Association –III and Roger Mathew). Such being the
case, it is astonishing that in the span of a year (i.e. after the decision
in Roger Mathew) ”new thinking” seems to have prevailed to frame
rules excluding advocates who can otherwise, based on their expertise,
be considered for appointment to even High Courts.
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23. This Court would also observe that the consideration of such
younger advocates in the age group of 40-45 years would have long
term benefits since the domain knowledge and expertise in such areas
(Telecom Regulation, Taxation –both Direct and Indirect, GATT Rules,
International Taxation etc.) would be useful in adjudication in these
tribunals and lead to a body of jurisprudence.  Depending on how such
counsel/advocates fare as members of the Tribunal, having regard to
their special knowledge of these laws, at a later and appropriate stage,
they may even be considered for appointment to High Courts.
24. The age criteria, impugned in this case also leads to wholly
anomalous and absurd results. For instance, an advocate with 18- or 20-
years’ practice, aged 44 years, with expertise in the field of indirect
taxation, telecom, or other regulatory laws, would be conversant with
the subject matter. Despite being eligible, (as she or he would fulfil the
parameters of at least 10 years’ practice, in the light of the decision in
MBA-III) such a candidate would be excluded. On the other hand, an
individual who might have practiced law for 10 years, and later served
as a private or public sector executive in an entirely unrelated field, but
who might be 50 years of age, would be considered eligible, and can
possibly secure appointment as a member of a tribunal. Thus, the age
criterion would result in filtering out candidates
with more relevant
experience and qualifications, in preference to those with lesser relevant
experience, only on the ground of age.
25. In the decision reported as State of  J&K v. Triloki Nath
Khosa31, this court explained that a classification for the purpose of
Article 14 of the Constitution (as the present minimum age criteria
undoubtedly is, in the present case) based on any criteria, must be based
on a distinct characteristic, having a rational nexus with the object of the
norm, or the law:
“31. Classification, however, is fraught with the danger that
it may produce artificial inequalities and therefore, the right
to classify is hedged in with salient restraints; or else, the
guarantee of equality will be submerged in class legislation
masquerading as laws meant to govern well marked classes
characterized by different and distinct attainments.
Classification, therefore, must be truly founded on substantial
31 (1974) 1 SCC 19
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differences which distinguish persons grouped together from
those left out of the group and such differential attributes
must bear a just and rational relation to the object sought to
be achieved.”
26. Similarly, in Mohd. Shujat Ali v. Union of India32 this Court
cautioned against over-classification, based on artificial distinctions
between two categories falling within the same class, in matters of public
employment:
“To permit discrimination based on educational attainments
not obligated by the nature of the duties of the higher post is
to stifle the social thrust of the equality clause. A rule of
promotion which, while conceding that non-graduate
Supervisors are also fit to be promoted as Assistant Engineers,
reserves a higher quota of vacancies for promotion for
graduate Supervisors as against non-graduate Supervisors,
would clearly be calculated to destroy the guarantee of equal
opportunity.”
27. Given that the essential educational qualifications and
experience in the relevant field are fixed for all candidates, for a
classification based on minimum age for appointment (like in the present
case) to succeed, the Union cannot say that it should be held to be valid,
irrespective of the nature and purposes of the classification or the quality
and extent of the difference in experience between candidates. As
between someone with 18 years’ experience but aged 42 or 43 years,
and someone with only 12 years’ experience, if a system of weightage
for
experience and qualification were to be applied, the one with greater
experience would in all likelihood be selected. Then, to say that one with
lesser experience, but who is more aged should be selected and appointed,
not only eliminating the one with more experience, but even disqualifying
her or him, would mean that better candidates have to be overlooked
and those with lesser experience would be appointed, solely on the ground
that the latter is over 50 years of age. Prime Minister Jawaharlal Nehru,
in the course of the Constituent Assembly debates, (though in the context
of fixing age of retirement of judges) remarked that33
32 1975 (3) SCC 76
33 CAD, Vol. VIII dated 24th May, 1949
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“But the fact is, when you reach certain top grades where
you require absolutely first-class personnel, then it is a
dangerous thing to fix a limit which might exclude these first-
rate men.”
In the present case, the rule has the effect of excluding deserving
candidates, without subserving any discernible public policy or goal. Thus,
the classification is based on no justifiable rationale; nor can it be said
that the age criterion has some nexus with the object sought to be
achieved, such as greater efficiency or experience.
28. In Anuj Garg v. Hotel Assn. of India34 one of the issues was
the bar to employment of anyone less than 25 years of age in the hotel
industry. This court held that such age discrimination was unsustainable,
and struck it down, observing as follows:
“25. Hotel management has opened up a vista for young men
and women for employment. A large number of them are taking
hotel management graduation courses. They pass their
examinations at a very young age. If prohibition in employment
of women and men below 25 years is to be implemented in its
letter and spirit, a large section of young graduates who have
spent a lot of time, money and energy in obtaining the degree
or diploma in hotel management would be deprived of their
right of employment. Right to be considered for employment
subject to just exceptions is recognised by Article 16 of the
Constitution. Right of employment itself may not be a
fundamental right but in terms of both Articles 14 and 16 of
the Constitution of India, each person similarly situated has
a fundamental right to be considered therefor.
**********
56. Young men who take a degree or diploma in hotel
management enter into service at the age of 22 years or 23
years. It, thus, cannot prohibit employment of men below 25
years. Such a restriction keeping in view a citizen’s right to
be considered for employment, which is a facet of the right to
livelihood does not stand judicial scrutiny.”
34 (2008) 3 SCC 1.
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29. In this court’s decision in Lt. Col. Nitisha & Ors. v. Union of
India,35 a reference was made to a US statute - the Age Discrimination
in Employment Act, 1967 and the US Supreme Court decision in
Smith v. City of Jackson36 which dealt with discrimination based on
age. The relevant provisions of the said enactment proscribe age
discrimination in regard to matters of employment.37 A recent US
Supreme Court decision Baab v. Wilke38 explained what is meant by
age discrimination, in the following terms:
“The Civil Service Reform Act of 1978, which governs federal
employment, broadly defines a “personnel action” to include
most employment-related decisions, such as appointment,
promotion, work assignment, compensation, and performance
reviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation is
consistent with the term’s meaning in general usage, and we
assume that it has the same meaning under the ADEA. Under
§633a(a), personnel actions must be made “free from”
discrimination. The phrase “free from” means “[c]lear of
(something which is regarded as objectionable).” Webster’s
Third New International Dictionary 905 (def. 4(a)(2)) (1976);
4 Oxford English Dictionary 521 (def. 12) (1933); see also
American Heritage Dictionary 524 (def. 5(a)) (1969) (defining
“free” “used with from” as “[n]ot affected or restricted by a
given condition or circumstance”); Random House Dictionary
35 2021 SCCOnLine SC 261.
36 544 US 228 (2005).
37 The relevant provisions of the
Age Discrimination in Employment Act, 1967, Sec
623 (Section 4) are as follows:
“(a) Employer practices
It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this
chapter.
(b) It shall be unlawful for an employment agency to fail or refuse to refer for
employment, or other -wise to discriminate against, any individual because of such
individual’s age, or to classify or refer for employment any individual on the basis of
such individual’s age….”
38 No. 18-882, 589 U. S. ____ (2020)
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of the English Language 565 (def. 12) (1966) (defining “free”
as “exempt or released from something specified that controls,
restrains, burdens, etc.”). Thus, under §633a(a), a personnel
action must be made “untainted” by discrimination based on
age, and the addition of the term “any” (“free from any
discrimination based on age”) drives the point home. And as
for “discrimination,” we assume that it carries its “‘normal
definition,’” which is “‘differential treatment.’” Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005). Under
§633a(a), the type of discrimination forbidden is
“discrimination based on age,” and “[i]n common talk, the
phrase ‘based on’ indicates a but-for causal relationship.”
Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63 (2007);
cf. Comcast Corp. v. National Assn. of African American
Owned Media, ante, at 6. Therefore, §633a(a) requires that
age be a but-for cause of the discrimination alleged. What
remains is the phrase “shall be made.” “[S]hall be made” is
a form of the verb “to make,” which means “to bring into
existence,” “to produce,” “to render,” and “to cause to be or
become.” Random House Dictionary of the English Language,
at 866. Thus, “shall be made” means “shall be produced,”
etc. And the imperative mood, denoting a duty, see Black’s
Law Dictionary 1233 (5th ed. 1979), emphasizes the
importance of avoiding the taint. So much for the individual
terms used in §633a(a). What
really matters for present
purposes is the way these terms relate to each other. Two
matters of syntax are critical. First, “based on age” is an
adjectival phrase that modifies the noun “discrimination.” It
does not modify “personnel actions.” The statute does not
say that “it is unlawful to take personnel actions that are
based on age”; it says that “personnel actions . . . shall be
made free from any discrimination based on age.” §633a(a).
As a result, age must be a but-for cause of discrimination—
that is, of differential treatment—but not necessarily a but-
for cause of a personnel action itself. Second, “free from any
discrimination” is an adverbial phrase that modifies the verb
“made.” Ibid. Thus, “free from any discrimination” describes
how a personnel action must be “made,” namely, in a way
that is not tainted by differential treatment based on age. If
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age discrimination plays any part in the way a decision is
made, then the decision is not made in a way that is untainted
by such discrimination. This is the straightforward meaning
of the terms of §633a(a), and it indicates that the statute does
not require proof that an employment decision would have
turned out differently if age had not been taken into account.”
(emphasis supplied)
30. The Delhi High Court, in its decision reported as Commissioner,
M.C.D. v. Shashi39 invalidated a rule that allowed the public employer
to screen candidates based on their age, emphasizing that:
 ‘‘Subject to constitutionally permissible reservations, every
endeavour must be made by the State to employ or engage
the most qualified or the most meritorious persons. In doing
so, the State may fix shortlisting criteria on the basis of
educational qualifications or experience or marks obtained
in an examination or an interview or any other criterion which
enables the most competent person to be selected.
Unfortunately, age has nothing to do either with merit or
competence. Wisdom may be an attribute of age, but not merit
or competence.
13. There is not even an iota of material to suggest, nor indeed
has anything been pointed out by learned Counsel for the
Petitioner, that merely because an applicant falls within the
age group of 28 to 30 years he is better qualified as a teacher
than a person falling in the age group of 18 to 27 years. It is
not the case of the Petitioner that
persons in the age group of
28 to 30 years are either better qualified educationally or
have more experience or are in any manner more meritorious
or competent than the applicants falling within the age group
of 18 to 27 years solely because of their age. It seems to us
that the Petitioner has literally picked the age group of 28 to
30 years out of the hat (as it were) without any reference to
any logical or empirical basis”
31. In the present case, therefore, the qualification of a minimum
age of 50 years as essential for appointment, is discriminatory because it
is neither shown to have a rational nexus with the object sought to be
39 (2009) 165 DLT 17
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achieved, i.e. appointing the most meritorious candidates; nor is it shown
to be based on any empirical study or data that such older candidates
fare better, or that younger candidates with more relevant experience
would not be as good, as members of tribunals. It is plain and simple,
discrimination based on age. The criterion (of minimum 50 years of age)
is virtually “picked out from a hat”40 and wholly arbitrary.
32. As stated earlier, the tribunals which were reorganized by the
Finance Act, 2017 and now, through the impugned ordinance, exercise
judicial functions of the State, interpret and enforce the law, in the course
of adjudication of disputes. As repeatedly emphasized by this court in
previous Constitution Bench judgments, appointment of members (of
such tribunals), their conditions of service, manner of selection,
remuneration and security of tenure are vital to their efficiency and
independent functioning. It is in this backdrop that the Union’s contention
regarding “equivalence” or “parity” with members of the civil services
of the Union or holders of civil posts under the Union, as a justification
for the age criterion, needs to be examined.
33. This Court in All India Judges’ Assn. (II) v. Union of India41,
held that:
“9. So much for the contention of the review petitioners that
the directions given by this Court would lead to the demand
from the members of the other services for similar service
conditions. It is high time that all concerned appreciated that
for the reasons pointed out above there cannot be any link
between the service conditions of the Judges and those of the
members of the other services. It is true that under Article
309 of the Constitution, the recruitment and conditions of
service of the members of the subordinate judiciary are to be
regulated by the Acts of the appropriate legislature and
pending such legislation, the President and the Governor or
their nominees, as the case may be, are empowered to make
rules regulating their recruitment and the conditions of service.
It is also true that after the Council of States makes the
necessary declaration under Article 312, it is the Parliament
which is empowered to create an All India Judicial Service
40 An expression used in an analogous context, while declaring a cut-off date to be
arbitrary, in D.R. Nim v Union of India 1967 (2) SCR 325.
41 (1993) 4 SCC 288.
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which will include posts not inferior to the post of District
Judge as defined under Article 236. However, this does not
mean that while determining the service conditions of the
members of the judiciary, a distinction should not be made
between them and the members of the other services or that
the service conditions of the members of all the services should
be the same. As it is, even among the other services, a
distinction is drawn in the matter of their service conditions.
This Court has in the judgment under review, pointed out that
the linkage between the service conditions of the judiciary
and that of the administrative executive was an historical
accident. The erstwhile rulers constituted, only one service,
viz., the Indian Civil Service for recruiting candidates for the
judicial as well as the administrative service and it is from
among the successful candidates in the examination held for
such recruitment, that some were sent to the administrative
side while others to the judicial side. Initially, there was also
no clear demarcation between the judicial and executive
services and the same officers used to perform judicial and
executive functions. Since the then Government had failed to
make the distinction between the two services right from the
stage of the recruitment, its logical consequences in terms of
the service conditions could not be avoided. With the
inauguration of the Constitution and the separation of the
State power distributed
among the three branches, the
continuation of the linkage has become anachronistic and is
inconsistent with the constitutional provisions. As pointed out
earlier, the parity in status is no longer between the judiciary
and the administrative executive but between the judiciary
and the political executive. Under the Constitution, the
judiciary is above the administrative executive and any
attempt to place it on a par with the administrative executive
has to be discouraged. The failure to grasp this simple truth
is responsible for the contention that the service conditions
of the judiciary must be comparable to those of the
administrative executive and any amelioration in the service
conditions of the former must necessarily lead to the
comparable improvement in the service conditions of the
latter.”
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34. In addition, it is worthwhile to recollect that a civil servant’s
experience, though varied and diverse – ranging from co-ordination and
administration at taluk, district and state levels, to devising, framing and
implementing the government’s policies and programmes, to managing
statutory corporations and even commercial enterprises of the state,
does not always entail adjudicatory functions. However, legal
practitioners, chartered accountants and one segment of civil servants,
i.e. tax administrators and adjudicators are involved in the day to day
interpretation of law, leading to adjudicatory outcomes. Such being the
case, the equivalence of “status” of members of tribunals cannot be
compared in a linear or rigid manner. That according to the Union’s
scheme of rules and regulations, members of its services can attain a
certain rank upon attaining the age of, say, 50 years, therefore, cannot
be determinative. In any case, the argument of equivalence is not relevant.
This point too, was brought home in the judgment of this court, in All
India Judges Association II (supra):
“Unlike the administrative officer, the judicial officer is
obliged to work for long hours at home. When he reserves a
judgment he has usually to prepare the same at his residence.
For that purpose, he has to read the records as also the
judicial precedents cited by counsel for the adversaries. Even
otherwise with a view to keeping himself up
to date about the
legal position he has to read judgments of his own High Court,
other High Courts and of the Supreme Court. He has also to
read legal journals.”
35. There are other points of distinction too between civil servants
and members of tribunals. Members of tribunals are not drawn from
any civil service; they are not holders of civil posts. Civil servants,
especially members of the All-India Services recruited by the Union,
some of whom are deployed to different States, are governed by rules
and other service conditions embodied in circulars and orders. These
govern their entire universe of employment: starting with eligibility
conditions, rules for recruitment and selection, pay and allowances,
seniority, promotion, discipline and other matters related to misconduct,
pension, terminal benefits etc. On the other hand, such rules or similar
rules do not apply to members of tribunals not drawn from public service.
It is only conditions of equivalence such as pay scale which they are
assured of under the rules, which also determine their status. The manner
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of selection, conditions of eligibility, rules for their removal upon proven
misbehaviour and so on, are entirely different from public servants. In
fact, the latter category, i.e. members of tribunals not drawn from public
service sources, are not even holders of civil posts or members of
any encadred civil service. This has been clarified in at least two
judgments of this court.42 They are not governed by Article 311 of the
Constitution, nor are their conditions of service laid out in rules framed
under the proviso to Article 309 of the Constitution. Such being the position,
the argument of parity, in the opinion of the Court, is entirely devoid of
merit. Nor is the argument of the Attorney General that a uniform age is
necessary, merited. There is no material to show that members recruited
on the technical side, such as experts in engineering, scientific or other
technical fields would be suitable only after they cross the age of 50. In
fact, one can complete a doctoral thesis and become a holder of a Ph.D
at the time that she or he is 30 years or even below. To be a professor,
one has to possess 10 years teaching experience; there is no minimum
age under the relevant regulations framed by the UGC. Even non-teaching
personnel, on the basis of their research, can be designated professors43.
42 State of  Maharastra v Labour Law Practitioners Association 1998 (2) SCC 688
“Going by these tests laid down as to what constitutes judicial service under
Article
236 of the Constitution, the Labour Court judges and the judges of the Industrial
Court can be held to belong to judicial service.”
In S.D. Joshi v. High Court of Bombay, (2011) 1 SCC 252 the previous decision
in Harinagar Sugar Mills v Shyam Sunder Jhunjunuwala 1962 (3) SCR 339 was
quoted:
“Broadly speaking, certain special matters go before tribunals, and the residue
goes before the ordinary courts of civil judicature. Their procedures may differ, but the
functions are not essentially different.”
In Union of India v K.B. Khare 1994 (3) SCC 502, this court repelled the
contention that members of the Central Administrative Tribunals were government
officials, subject to its rules:
“On the contrary, an independent judicial service, the appointment in the CAT
is on tenure basis. The pension relating to such post is clearly governed by Rule 8 of the
Rules quoted above and at the risk of repetition, we may state it exhaustive in nature.”
43 UGC Regulations on Minimum qualifications for appointment of Teachers and other
academic staff in Universities and Colleges and measures for the Maintenance of
Standards in Higher Education,20104.0.0 DIRECT RECRUITMENT
“4.1.0 PROFESSOR A. (i) An eminent scholar with Ph.D. qualification(s) in the
concerned/allied/relevant discipline and published work of high quality, actively engaged
in research with evidence of published work with a minimum of 10 publications as
books and/or research/policy papers. (ii) A minimum of ten years of teaching
experience
in university/college, and/or experience in research at the University/National level
institutions/industries, including experience of guiding candidates for research at doctoral
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As on date, there are vice-chancellors in some state and national
universities who had not completed 45 years at the time of appointment.
Such being the position, experience in the field either in the academic,
technical or scientific field for a further period of 10 or 12 years or even
15 years would not add up to the minimum threshold of the impugned
criteria, i.e. 50 years of age. Purely as empirical data, the ITAT has a
sanctioned strength of 126 members, (which includes accountant
members, technical members – who are drawn from the Indian Revenue
Service holding the rank of Commissioner of Appeals, for 3 years, and
advocates). 66 members presently are in office, appointed since the
year 1999.44 Of these, 10 members were below the age of 40 at the time
of their appointment; 20 members were between the ages of 40-45, and
15 members were between the ages of 46-50- at the time of their
respective appointments. Cumulatively, 44 members out of 66 were
appointed below the age of 50. Only 17 members were 50 or above at
the time of their appointment. Data is not provided in respect of 5
members. This data- as indeed similar data from other tribunals, shows
that past appointment to these positions was amongst younger, and and
competent persons. The Union has not shown why this past history
requires departure, and why that longstanding basis for appointing younger
professionals, now needs to be departed from, in public
interest.
Significantly, commissioners of appeals (of income tax) – in the respective
service rules, typically are appointed after 18 or so years of service; if
one adds 3 years, an incumbent Commissioner could be well below 50
years. She or he would be completely familiar with the adjudicatory
process in tax laws. Exclusion of such otherwise qualified and suited
personnel, too, is irrational. Having regard to all these reasons, the Union’s
argument that 50 years is necessary as it brings about parity between
the members of the civil services who are eligible to be considered in
their stream for tribunals or that there is an overall uniformity, is without
merit and accordingly rejected.
level. (iii) Contribution to educational innovation, design of new curricula and courses,
and technology – mediated teaching learning process. 6 (iv) A minimum score as
stipulated in the Academic Performance Indicator (API) based Performance Based
Appraisal System (PBAS), set out in this Regulation in Appendix III. OR
B. An outstanding professional, with established reputation in the relevant field,
who has made significant contributions to the knowledge in the concerned/allied/relevant
discipline, to be substantiated by credentials.”
https://www.ugc.ac.in/oldpdf/regulations/revised_finalugcregulationfinal10.pdf
visited on 25 June, 2021 @ 16:18 hours.
44 https://itat.gov.in/page/content/members (last accessed on 21.06.2021).
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36. A further, but crucial issue. In Madras Bar Association v
Union of India45 (MBA-III) this court held as unlawful the exclusion of
advocates from consideration in the following directions:
“53. The upshot of the above discussion leads this court to
issue the following directions:
**********
(vi) The 2020 Rules shall be amended to make advocates with
an experience of at least 10 years eligible for appointment as
judicial members in the Tribunals. While considering
advocates for appointment as judicial members in the
Tribunals, the Search-cum-Selection Committee shall take into
account the experience of the Advocate at the bar and their
specialization in the relevant branches of law. They shall be
entitled for reappointment for at least one term by giving
preference to the service rendered by them for the Tribunals.
(vii) The members of the Indian Legal Service shall be eligible
for appointment as judicial members in the Tribunals, provided
that they fulfil the criteria applicable to advocates subject to
suitability to be assessed by the Search-cum-Selection
Committee on the basis of their experience and knowledge in
the specialized branch of law.”
37. The Union of India had not made any move to give effect to
the above directions. The declaration of law in MBA-III recorded in an
earlier part of the decision, that advocates in all tribunals are eligible for
consideration for appointment as members of various tribunals. It is no
longer open to exclude
such eligible advocates from consideration. The
direction to the following effect is binding and has become final. It has
not been interdicted in any manner, by the impugned ordinance:
“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)19 and
Madras Bar Association  v. Union of India (2015)20. 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
45 2020 SCCOnline (SC) 962
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law while considering them for appointment as judicial
members”.
After hearings were concluded, the directions in MBA-III on the
above score, were accepted, and Advocates have now been made
eligible, for appointment to 15 tribunals, after they complete 10 years’
enrolment, and have relevant experience or in the concerned field of
practice.
38. As a result of the above discussion, the proviso to Section 184
(1), inserted by the impugned ordinance is declared void. A declaration
is issued that all candidates, otherwise eligible on their merit, based on
qualifications and experience in the relevant field, are entitled to be
considered, without reference to the impugned “minimum” age (of 50
years) criteria.
39. I am in agreement with the reasoning and conclusions of L.
Nageswara Rao, J. about the impermissibility of legislative override, even
while upholding the retrospectivity accorded to Section 184 (11). In
addition to the detailed reasons why such a legislative override is
impermissible in the circumstances of this case, I would also rely on the
Constitution Bench judgment in State of Gujarat v. Raman Lal Keshav
Lal Soni46. This Court, in Raman Lal dealt with the issue of retrospective
application of a provision of the Gujarat Panchayats Act, 1961. The
facts pertained to denial of the benefits of two pay commissions to
employees of Panchayat Institutions who had previously been employed
by municipalities. The
legislative provision (Section 102(1)) was given
retrospective effect, classifying these employees as servants of Gram/
Nagar Panchayats, notwithstanding judgments of courts which had
declared them to be Government servants, which would have entitled
them to the revised pay scale. The court held:
“53. (…) The legislature is undoubtedly competent to legislate
with retrospective effect to take away or impair any vested
right acquired under existing laws but since the laws are made
under a written Constitution, and have to conform to the do’s
and don’ts of the Constitution neither prospective nor
retrospective laws can be made so as to contravene
Fundamental Rights. The law must satisfy the requirements of
the Constitution today taking into account the accrued or
46 (1983) 2 SCC 33.
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acquired rights of the parties today. The law cannot say,
twenty years ago the parties had no rights, therefore, the
requirements of the Constitution will be satisfied if the law is
dated back by twenty years. We are concerned with today’s
rights and not yesterday’s. A legislature cannot legislate today
with reference to a situation that obtained twenty years ago
and ignore the march of events and the constitutional rights
accrued in the course of the twenty years. That would be most
arbitrary, unreasonable and a negation of history. It was
pointed out by a Constitution Bench of this Court in B.S. Yadav
and Ors. etc. v. State of Haryana and Ors. etc. [1981] 1 SCR
1024, Chandrachud CJ., speaking for the Court,
“Since the Governor exercises the legislative power under
the proviso to Article 309 of the Constitution, it is open to
him to give retrospective operation to the rules made under
that provision. But the date from which the rules are made
to operate, must be shown to bear either from the face of
the rules or by extrinsic evidence, reasonable nexus with
the provisions contained in the rules, especially when the
retrospective effect extends over a long period as in this
case”.
Today’s equals cannot be made unequal by saying that they
were unequal twenty years ago and we will restore that position
by making a law today and making it retrospective.
Constitutional rights, constitutional obligations and
constitutional consequences cannot be tempered with
that
way. A law which if made today would be plainly invalid as
offending constitutional provisions in the context of the
existing situation cannot become valid by being made
retrospective. Past virtue (constitutional) cannot be made to
wipe out present vice (constitutional) by making retrospective
laws. We are, therefore, firmly of the view that the Gujarat
Panchayats (Third Amendment) Act, 1978 is unconstitutional,
as it offends Articles 311 and 14 and is arbitrary and
unreasonable.”
40. The impugned provision in the present case reads as follows:
“(11) Notwithstanding anything contained in any judgment,
order, or decree of any court or any law for the time being in
force, ––
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(i) the Chairperson of a Tribunal shall hold office for a term
of four years or till he attains the age of seventy years,
whichever is earlier;
(ii) the Member of a Tribunal shall hold office for a term of
four years or till he attains the age of sixty-seven years,
whichever is earlier:
Provided that where a Chairperson or Member is appointed
between the 26th day of May, 2017 and the notified date and
the term of his office or the age of retirement specified in the
order of appointment issued by the Central Government is
greater than that which is specified in this section, then,
notwithstanding anything contained in this section, the term
of office or age of retirement or both, as the case may be, of
the Chairperson or Member shall be as specified in his order
of appointment subject to a maximum term of office of five
years.”
41. The interim directions of this court, which culminated and
were subsumed in Roger Mathew (supra), resulted in the appointment
of members of various tribunals, whose term is now sought to be
interdicted by the proviso to Section 184 (11), which has been introduced
with retrospective effect. I agree with Rao, J. that while the retrospectivity
accorded to this provision cannot be faulted, nevertheless, the said proviso,
to the extent it seeks to interfere with and curtail the tenure of members
appointed under interim orders, who are entitled to enjoy their term of
office, in accordance with the
pre-amended legislation and rules, is
arbitrary and void. As held in Raman Lal (supra), “(t)oday’s equals
cannot be made unequal by saying that they were unequal twenty
years ago and we will restore that position by making a law today
and making it retrospective”. In a manner somewhat reminiscent of
the facts of this case, an interim order, enjoining the employer, All India
Institute of Medical Sciences (AIIMS) from curtailing the tenure of the
then Director, was sought to be legislatively overridden by Parliament.
In P. Venugopal v. Union of India47, this court held that enactment to
be unlawful, and held that the curtailment of tenure for one person was
arbitrary and based on no reasonable criteria:
47 (2008) 5 SCC 1
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“36. From the aforesaid discussion, the principle of law
stipulated by this Court is that curtailment of the term of five
years can only be made for justifiable reasons and compliance
with principles of natural justice for premature termination
of the term of a Director of AIIMS squarely applied also to the
case of the writ petitioner as well and will also apply to any
future Director of AIIMS. Thus there was never any
permissibility for any artificial and impermissible classification
between the writ petitioner on the one hand and any future
Director of AIIMS on the other when it relates to the premature
termination of the term of office of the Director. Such an
impermissible overclassification through a one-man legislation
clearly falls foul of Article 14 of the Constitution being an
apparent case of “naked discrimination” in our democratic
civilised society governed by the rule of law and renders the
impugned proviso as void ab initio and unconstitutional.
37. Such being our discussion and conclusion, on the
constitutionality of the proviso to Section 11(1-A), we must,
therefore, come to this conclusion without any hesitation in
mind, that the instant case is squarely covered by the
principles of law laid down by this Court in the various
pronouncements as noted hereinabove including in D.S.
Reddi, Vice-Chancellor, Osmania University v. Chancellor
[D.S. Reddi, Vice-Chancellor, Osmania University v.
Chancellor, AIR 1967 SC 1305 : (1967) 2 SCR 214] .
************
39. It was further held in D.S. Reddi [D.S. Reddi, Vice-
Chancellor, Osmania University v. Chancellor, AIR 1967 SC
1305 : (1967) 2 SCR 214] that such a classification was not
founded on an intelligible differentia and was held to be
violative of Article 14 of the Constitution of India. Accordingly,
the provision of Section 13-A was held to be ultra vires and
unconstitutional and hit by Article 14 of the Constitution.
Similarly in the present case, the impugned proviso to Section
11(1-A) itself states that it is carrying out premature
termination of the tenure of the writ petitioner. It is also
admitted that such a premature termination is without following
the safeguards of justifiable reasons and notice. It is thus a
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case similar to D.S. Reddi [D.S. Reddi, Vice-Chancellor,
Osmania University v. Chancellor, AIR 1967 SC 1305 : (1967)
2 SCR 214] and other decisions cited above that the impugned
legislation is hit by Article 14 as it creates an unreasonable
classification between the writ petitioner and the future
Directors and deprives the writ petitioner of the principles of
natural justice without there being any intelligible differentia.
42. In my opinion, like in P. Venugopal (supra) the curtailment of
tenure to five years, of these few individuals appointed as members of
tribunals, who were entitled to continue in office in terms of the pre-
existing enactments (upto the age of 62 years etc.) is arbitrary. Apart
from the fact that the Union wishes to curtail their tenure despite the
finality of directions of this court in Roger Mathew and MBA-III, there
is no conceivable rationale. Nor has any overriding public interest been
espoused as a justification for this. The divesting of judicial office by
legislative fiat, in this court’s opinion, directly affects the independence
of the judiciary. It also amounts to naked discrimination, because all
other members of the same tribunals would enjoy longer tenure, in terms
of the pre-existing conditions of service, which prevailed at the time of
their appointment.
43. In MBA III (supra), this Court directed the Union ‘to make
appointments to tribunals within three months from the date on
which
the Search-cum-Selection Committee completes the selection process
and makes its recommendations.’ The necessity to take action on this
is emphasized by the nuts and bolts of the adjudicatory functions of
tribunals. As many as 21,259 cases were pending before the National
Company Law Tribunal as on 31.12.2020, and 2278 cases were filed
before the tribunal under the Insolvency and Bankruptcy Code, 2016
during the period of April to December 2020, out of which only 176 have
been disposed so far.48 As on April 2021, the NCLT comprised of its
Acting President and a total number of 38 members, out of which 17 are
judicial members and 21 are technical members -  much below than the
sanctioned strength of 63 members.49 At the Armed Forces Tribunal,
48  Available at https://economictimes.indiatimes.com/news/economy/policy/over-21250-
cases-pend in g- before -nclt-at -en d-of-dece mb er-2 020/ar ticl es how/
80754041.cms?from=mdr (last accessed on 20.06.2021).
49  Available at https://www.indialegallive.com/top-news-of-the-day/news/plea-in-sc-
seeks-extension-of-tenure-of-nclt-members/
 (last accessed on 20.06.2021).
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against a sanctioned strength of 34, only 11 members are currently in
office – 4 judicial members and 6 administrative members, for the
tribunal’s 11 benches. Till 28.02.2021, a total of 18,829 cases were pending
for disposal; the highest pendency was before the principal bench in
Delhi, with 5553 cases, followed by Chandigarh with 4512 cases and
Jaipur with 3154 cases.50 At the 18 benches of the Central Administrative
Tribunal (CAT), only 36 members are in office, against a sanctioned
strength of 65.51 Over 48,000 cases are pending disposal at the CAT,
with over 28,000 cases pending for 1-5 years.52 As on 01.03.2021, 72,452
cases were pending before various benches of the CESTAT. Out of a
total strength of 26, 18 positions are filled, and 8 vacancies are still open
in the 9 benches of the CESTAT.53At the Income Tax Appellate Tribunal
(ITAT), only 66 members are in office, out of a sanctioned strength of
12654, and a total of about 88,000 appeals are pending. 24,000 are pending
before the Delhi bench, followed by about 16,000 before the Mumbai
bench.55 At the National Consumer Disputes Redressal Commission
(NCDRC), 138105 cases have been filed since inception (i.e. since 1987)
out of which 1,16,572 have been disposed of. 21,443 cases are pending.
At state commissions, 124559 cases are still pending, and 401184 are
pending before district forums. The total pendency is 547186 cases.56
Out of the 44 benches of the Debt Recovery Tribunal (DRT) and sole
Debt
Recovery Appellate Tribunal (DRAT), 11 benches have vacancies.57
50  Available at https://www.tribuneindia.com/news/nation/23-out-of-34-posts-of-armed-
forces-tribunal-vacant-19-000-cases-pending-mod-tells-parliament-223283 (last
accessed on 20.06.2021).
51 Available at http://www.cgatnew.gov.in/writereaddata/Delhi/docs/RTI/list.pdf (last
accessed on 20.06.2021).
52  Available at https://theprint.in/india/governance/purpose-of-central-administrative-
tribunal-far-from-being-achieved-parliamentary-panel/378156/ (last accessed on
20.06.2021).
53 Available at https://cestatnew.gov.in/uploads/writereaddata/Delhi/docs/
pendency022021.pdf (last accessed on 20.06.2021).
54 See https://itat.gov.in/page/content/members (last accessed on 21.06.2021).
55 Available at https://www.business-standard.com/article/pti-stories/88-000-appeals-
pending-before-income-tax-appellate-tribunal-chairman-120022601297_1.html (last
accessed on 21.06.2021).
56 http://ncdrc.nic.in/stats.html (last accessed on 21.06.2021).
57 https://www.business-standard.com/article/economy-policy/banks-flag-tardy-
decision-making-piling-of-cases-at-recovery-tribunals-119032300883_1.html (last
accessed on 21.06.2021).
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As of April 2020, the Railway Claims Tribunal had 25,571 pending
cases.58
44. The sheer volume of pendency is an indicator of the substantial
judicial functions carried out by tribunals, necessitating that they be manned
by efficient, well qualified judicial and technical members. It is necessary
that the Union expedite the process of appointments to tribunals, towards
ensuring swifter, and efficacious justice delivery.
45. As a postscript, one would only say that this judgment- seventh
in the series commencing with R.Gandhi, hopefully should conclude all
controversies. It would be erroneous on anyone’s part to consider that
interdiction by this court amounts to conflict with Parliamentary or
executive wisdom. Each judgment- when it interprets provisions relating
to setting up of tribunals and other arrangements for tribunals, adds to
the ongoing discourse between the three branches of governance. The
Constitution of India envisions a republic, governed by the rule of law,
and guarantees justice: social, economic and political, as well as equality
of status and of opportunity. Acting within their assigned spheres, the
legislative, executive and judicial departments strive to further this
constitutional vision. When assured rights or the principle of equality
cannot be secured by the citizen or person guaranteed it, she turns to the
judicial wing. It is to ensure that this wing has the competence, vitality
and
fairness, expected of it, that this court intervenes, to ensure that the
adjudicatory mechanisms are robust, independent, and are manned by
competent and merited personnel.
46. In view of the foregoing discussion, I conclude and hold as
follows:
(i) The first proviso to Section 184(1) of the Finance Act, 2017,
introduced by Section 12 of the Tribunals Reforms (Rationalisation and
Conditions of Service) Ordinance, 2021 is hereby declared void and
inoperative. Similarly, the second proviso to Section 184(1) of the Finance
Act, 2017, introduced by Section 12 of the Tribunals Reforms
(Rationalisation and Conditions of Service) Ordinance, 2021 is held to
be void and inoperative.
58 See https://indianexpress.com/article/india/rct-judges-drag-govt-to-sc-cite-
fundamental-rights-to-seek-extension-6380655/ (last accessed on 21.06.2021).
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(ii) Section 184(7)  of the Finance Act, 2017 introduced by Section
12 of the Tribunals Reforms (Rationalisation and Conditions of Service)
Ordinance, 2021 is hereby declared void and inoperative.
(iii) Section 184(11)(i) and (ii) introduced by Section 12 of the
Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance,
2021 are hereby declared as void and unconstitutional.
(iv) Consequently, the declaration of this Court in para 53(iv) of
MBA-III shall prevail and the term of Chairperson of a Tribunal shall be
five years or till she or he attains the age of 70 years, whichever is
earlier and the term of Member of a Tribunal shall be five years or till
she or he attains the age of 67 years, whichever is earlier.
(v) The retrospectivity given to the proviso to Section 184(11) –
introduced by Section 12 of the Tribunals (Reforms Rationalisation and
Conditions of Service) Ordinance, 2021 is hereby upheld; however, without
in any manner affecting the appointments made to the post of Chairperson
or members of various Tribunals, upto 04.04.2021. In other words, the
retrospectivity of the provision shall not in any manner affect the tenures
of the incumbents appointed as a consequence of this Court’s various
orders during the interregnum period.
(vi) The writ petition is allowed to the above extent.
HEMANT GUPTA, J.
1. I have gone through the detailed judgment authored by Justice
L.  Nageswara Rao as also separate but concurring judgment of Justice
Ravindra Bhat, but I am unable to persuade myself to agree with the
views expressed therein except to the limited extent that part of Section
187(7) of the Tribunals Reforms (Rationalisation and Conditions of
Service) Ordinance, 20211 that the Search and Selection Committee shall
recommend two names for a post and that the tenure of members including
Chairperson etc. shall be four years in terms of Clauses (i) and (ii) of
Section 184 (11) of the Ordinance is illegal since the issues of constitution
of panel and tenure have already been decided in MBA-III and that
without removing such defect, the Ordinance could not be enacted.
1  For short, the ‘Ordinance’
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2. Before I advert to the grounds of challenge, some of well-
established and settled principles of the applicability of the principles of
interpretation need to be recapitulated.
(i) The power of Legislature is to enact law and the power of
Judiciary of that of judicial review of the statutory
enactments.
3. The three organs of the State i.e., Legislature, Judiciary and
Executive have separate and distinct roles and functions as provided in
the Constitution.  All the institutions must act within their own jurisdiction
and not trespass into the jurisdiction of others. By segregating the powers
and functions of the three institutions, the Constitution ensures such a
structure where the institutions function as per their own institutional
strength. Secondly, it also creates a system of checks and balances as
the Constitution provides a degree of latitude for interference by each
branch into the functions and tasks performed by another branch2.
4. The Constitution does not permit the courts to direct, advise or
sermonize other organs of the State in the spheres reserved for them,
provided the legislature or executive does not transgress its constitutional
limits or statutory conditions. Independence and adherence to
constitutional accountability and limits while exercising the power of
judicial review gives constitutional legitimacy to the court decisions. This
is the essence of the power and function of judicial review
that
strengthens and promotes the rule of law3.
5. It is also to be noted that the application of law by the Judges is
not synonymous with the enactment of law by the legislature. Judges
have the power to spell out how precisely the statute would apply in a
particular case. In this manner, they complete the law formulated by the
legislature by applying it. This power of interpretation or the power of
judicial review is exercised post the enactment of law, which is then
made subject-matter of interpretation or challenge before the courts.4
6. This Court has observed that if a law is enacted by the Parliament
or Legislature, even if it is assumably contrary to the directions or
guidelines issued by the Court, it cannot be struck down by reason of
such directions/guidelines issued by the Court; it can be struck down
2  Dr. Ashwani Kumar v. Union of India & Anr., (2020) 13 SCC 585 (Para 10)
3 Ibid (Para 13)
4 Ibid (Para 25)
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only if it violates the fundamental rights or the right to equality under
Article 14 of the Constitution5.
7. A seven Judge Bench of this Court6 held that the primary
function of the judiciary is to interpret the law. It may lay down principles,
guidelines and exhibit creativity in the field left open and unoccupied by
legislation7.  The Court while interpreting Articles 32, 21, 141 and 142 of
the Constitution held that prescribing periods at which criminal trial would
terminate resulting in acquittal or discharge of the accused or making
such directions applicable to all cases in present or in future would amount
to judicial law making and cannot be done by judicial directives. The
Courts can declare law, interpret law, remove obvious lacunae and
fill up the gaps but they cannot entrench upon in the field of
legislation8. The bars of limitation were deleted by this Court on two
grounds, first, it amounts to judicial legislation which was not permissible
and secondly, it runs counter to the doctrine of binding precedents9.
8. The Constitution Bench of this Court10 held that a writ of
mandamus cannot be issued to bring Section 3 of the 44th Constitutional
Amendment Act in force. It was held that the Parliament having left to
the unfettered judgment of the Central Government, the question as
regards the time for bringing the provisions of the 44th Amendment into
force, it was not for the court to compel the Government to do what
according to the mandate of
the Parliament lies in its discretion to do so
when it considered it opportune to do it. Since the Parliament has left the
matter to the judgment of the Central Government without prescribing
any objective norms, it makes it difficult for the Courts to substitute their
own judgment for that of Government on the question whether Section 3
of the 44th Amendment should be brought into force.
9. This Court11 held that the Court cannot direct the legislature to
enact a particular law when an executive authority exercises a legislative
power by way of subordinate legislation pursuant to the delegated
authority of a legislature, such executive authority cannot be asked to
5 Ibid (Para 29)
6 P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578
7 Ibid (Para 25)
8 Ibid (Para 27)
9 Ibid (Para 33)
10 A.K. Roy v. Union of India & Ors., (1982) 1 SCC 271 (Para 51)
11 Mangalam Organics Limited v. Union of India, (2017) 7 SCC 221 (Para 36)
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enact the law which it has been empowered to do under the delegated
legislative authority.
10. In another Constitution Bench judgment of this Court12, it was
held that the duty of judicial review bestowed upon the judiciary is not
unfettered and it comes within the ambit of judicial restraint. The
Parliament and Legislative Assemblies exercise sovereign power to enact
law and no outside power or authority can issue a direction to enact a
particular kind of legislation.
11. In a separate but concurring judgment in Kalpana Mehta
authored by D.Y. Chandrachud, J., the Court held as under:
“255. Parliament and the State Legislatures legislate. The executive
frames policies and administers the law. The judiciary decides
and adjudicates upon disputes in the course of which facts are
proved and the law is applied. The distinction between the legislative
function and judicial functions is enhanced by the basic structure
doctrine. The legislature is constitutionally entrusted with the power
to legislate. Courts are not entrusted with the power to enact law.
Yet, in a constitutional democracy which is founded on the
supremacy of the Constitution, it is an accepted principle of
jurisprudence that the judiciary has the authority to test the validity
of legislation. Legislation can be invalidated where the enacting
legislature lacks legislative competence or where there is a violation
of fundamental rights. A law which is
constitutionally ultra vires
can be declared to be so in the exercise of the power of judicial
review. Judicial review is indeed also a part of the basic features
of the Constitution. Entrustment to the judiciary of the power to
test the validity of law is an established constitutional principle
which co-exists with the separation of powers. Where a law is
held to be ultra vires there is no breach of parliamentary privileges
for the simple reason that all institutions created by the Constitution
are subject to constitutional limitations. The legislature, it is well
settled, cannot simply declare that the judgment of a court is invalid
or that it stands nullified. If the legislature were permitted to do
so, it would travel beyond the boundaries of constitutional
entrustment. While the separation of powers prevents the
legislature from issuing a mere declaration that a judgment is
erroneous or invalid, the law-making body is entitled to enact a
12 Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 1 (Para 42)
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law which remedies the defects which have been pointed out by
the court. Enactment of a law which takes away the basis of the
judgment (as opposed to merely invalidating it) is permissible and
does not constitute a violation of the separation doctrine. That
indeed is the basis on which validating legislation is permitted.”
12. The lack of binding nature of the guidelines on the legislature
is also evident from the fact that even though directions that are
mandatory in nature may be issued within the ambit of Article 142 of the
Constitution, but the same cannot be enforced against the legislature as
the legislators have absolute and unfettered freedom in terms of Article
194(2) in respect of State Legislatures, which is pari materia with Article
105(2) relating to Parliament. The seven Judges Bench of this Court13 in
the celebrated case of controversy between the Uttar Pradesh Assembly
and the High Court held as under:
“32. Having conferred freedom of speech on the legislators, clause
(2) emphasises the fact that the said freedom is intended to be
absolute and unfettered. Similar freedom is guaranteed to the
legislators in respect of the votes they may give in the legislature
or any committee thereof. In other words, even if a legislator
exercises his right of freedom of speech in violation, say, of Article
211, he would not be liable for any action in any court. Similarly, if
the legislator by his speech or vote, is alleged to have violated any
of the
fundamental rights guaranteed by Part III of the Constitution
in the Legislative Assembly, he would not be answerable for the
said contravention in any court. If the impugned speech amounts
to libel or becomes actionable or indictable under any other
provision of the law, immunity has been conferred on him from
any action in any court by this clause. He may be answerable to
the House for such a speech and the Speaker may take appropriate
action against him in respect of it; but that is another matter. It is
plain that the Constitution-makers attached so much importance
to the necessity of absolute freedom in debates within the legislative
chambers that they thought it necessary to confer complete
immunity on the legislators from any action in any court in respect
of their speeches in the legislative chambers in the wide terms
prescribed by clause (2). Thus, clause (1) confers freedom of
speech on the legislators within the legislative chamber and clause
13 Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745
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(2) makes it plain that the freedom is literally absolute and
unfettered.
40. Our legislatures have undoubtedly plenary powers, but these
powers are controlled by the basic concepts of the written
Constitution itself and can be exercised within the legislative fields
allotted to their jurisdiction by the three Lists under the Seventh
Schedule; but beyond the Lists, the legislatures cannot travel. They
can no doubt exercise their plenary legislative authority and
discharge their legislative functions by virtue of the powers
conferred on them by the relevant provisions of the Constitution;
but the basis of the power is the Constitution itself. Besides, the
legislative supremacy of our legislatures including the Parliament
is normally controlled by the provisions contained in Part III of
the Constitution. If the legislatures step beyond the legislative fields
assigned to them, or acting within their respective fields, they
trespass on the fundamental rights of the citizens in a manner not
justified by the relevant articles dealing with the said fundamental
rights, their legislative actions are liable to be struck down by
courts in India. Therefore, it is necessary to remember that though
our legislatures have plenary powers, they function within the limits
prescribed by the material and relevant provisions of the
Constitution.”
13. A conspectus of the above judgments, inter alia, among many
others, is that the judiciary
in exercise of power of judicial review can
strike down any legislation which violates fundamental rights or if it is
beyond the legislative competence but the courts cannot direct the
legislature to frame or enact a law and in a particular manner. The law
declared by the Supreme Court is binding on all Courts in India in terms
of Article 141 of the Constitution. The directions issued under Article
142 of the Constitution, are binding on every Court in terms of Article
141 of the Constitution. The legislature cannot be said to be Court within
the meaning of Article 141 of the Constitution by any stretch of
imagination. Article 144 of the Constitution mandates, civil and judicial
authorities in India shall act in aid of the Supreme Court meaning thereby
executive and judicial authorities shall act in aid of the Supreme Court.
The legislature is neither civil or judicial authority who is mandated by
the Constitution to act in the aid of Court. The legislature is supreme so
as to enact a law falling within its legislative competence. The directions
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of the court cannot compel the legislature to frame law in that particular
manner only.  The legislature while enacting laws can legislate in a manner
which is not in accordance with the directions issued by the Court to the
legislature, even if the Court has specially chosen to do so. The directions
of this Court stop outside the four walls of legislature. The judiciary will
step in only after a law is enacted to test the legality of a statue on the
known principles of judicial review. The Judiciary cannot and should not
usurp the powers vested with legislature. The Judiciary cannot legislate
in the scheme of the constitution as propounded by many judgments
including larger Bench Judgments, which are binding on the smaller
strength benches. The directions of this Court in MBA-III are
encroaching upon the field reserved for legislature.
(ii)
Whether a judgment has to be read in the context in
which it was given and cannot be read as a statute,
inter alia, in view of the principles that the Court while
interpreting a provision cannot generally add word to
a statute in view of doctrine of Casus Omissus.
14. A Constitution Bench14 of this Court has held that Courts should
not place reliance on decisions without discussing as to how the factual
situation of the matter fits in with the factual situation of the decision on
which reliance is placed. There is always peril in treating the words of a
speech or judgment as though they are words in a legislative
enactment,
and it is to be remembered that judicial utterances are made in the setting
of the facts of a particular case. This Court further held as under:
“12. The rival pleas regarding rewriting of statute and casus omissus
need careful consideration. It is well-settled principle in law that
the court cannot read anything into a statutory provision which is
plain and unambiguous. A statute is an edict of the legislature.
The language employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction is that
the intention of the legislation must be found in the words used by
the legislature itself. The question is not what may be supposed
and has been intended but what has been said. “Statutes should
be construed, not as theorems of Euclid”, Judge Learned Hand
said, “but words must be construed with some imagination of the
purposes which lie behind them”. (See Lenigh Valley Coal
14  Padma Sundara Rao (Dead) & Ors. v. State of T.N. & Ors., (2002) 3 SCC 533 (Para
9)
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Co. v. Yensavage [218 FR 547] .) The view was reiterated
in Union of India v. Filip Tiago De Gama of Vedem Vasco De
Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] .
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14. While interpreting a provision the court only interprets the law
and cannot legislate it. If a provision of law is misused and
subjected to the abuse of process of law, it is for the legislature to
amend, modify or repeal it, if deemed necessary. (See Rishabh
Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5
SCC 515]) The legislative casus omissus cannot be supplied by
judicial interpretative process……”
15. This Court15 held that according to the well-settled theory of
precedents, every decision contains three basic postulates: (i) findings
of material facts, direct and inferential. An inferential finding of facts is
the inference which the Judge draws from the direct, or perceptible
facts; (ii) statements of the principles of law applicable to the legal
problems disclosed by the facts; and (iii) judgment based on the combined
effect of the above. A decision is an authority for what it actually decides.
What is of the essence in a decision is its ratio and not every observation
found therein, nor what logically flows from the various observations
made in the judgment. The said view has been relied upon by the
Constitution Bench of this Court16.
16. This Court17 also held that the observations of courts are neither
to be read as
Euclid’s theorems nor as provisions of the statute and that
too taken out of their context. The observations must be read in the
context in which they appear to have been stated.
17. This Court18 has observed that judgments are not to be
construed as statutes. The words or phrases in judgments are not to be
interpreted like provisions of a statute. The words in a judgment should
be read and understood contextually and not intended to be taken
literally. Such interpretation has been followed by a two Judge Bench of
15  State of Orissa & Ors. v. Md. Illiyas, (2006) 1 SCC 275 (Para 12)
16 Natural Resources Allocation, in Re, Special Reference No. 1 of 2012
17 Union of India v. Amrit Lal Manchanda & Anr., (2004) 3 SCC 75 (Para 15)
18 Som Mittal v. Government of Karnataka, (2008) 3 SCC 574 (Para 9)
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this Court19 wherein it was held that the ratio of any decision must be
understood in the background of the facts of that case.
18. In another recent judgment20, it was held that the ratio of a
judgment is what it decides and not what logically follows therefrom.
The Court held as under:
“31. It is trite that ratio of a judgment is what it decides and not
what logically follows therefrom. The observations in the Three
Judges cases [Supreme Court Advocates-on-Record Assn. v.
Union of India, (1993) 4 SCC 441] , [S.P. Gupta v. Union of
India, 1981 Supp SCC 87] , [Special Reference No. 1 of 1998,
In re, (1998) 7 SCC 739] are to be read in the context in which
they are rendered. Once that is kept in mind, we arrive at a
conclusion that the ratio of those judgments cannot be extended
to read the expression “Chief Justice”, wherever it occurs, to
mean the “Collegium” of the senior Judges.”
19. This Court21 observed that the plenary powers of this Court
under Article 142 of the Constitution are inherent in the Court and are
“complementary” to those powers which are specifically conferred on
the Court by various statutes. The powers conferred on the Court by
Article 142 are curative in nature, they cannot be construed as powers
which authorize the Court to ignore the substantive rights of a litigant.
This power cannot be used to “supplant” substantive law applicable to
the case or cause under consideration of the Court. Article 142, even
with the width of its
amplitude, cannot be used to build a new edifice
where none existed earlier, by ignoring express statutory provisions
dealing with a subject and thereby achieve something indirectly which
cannot be achieved directly. The Court held as under:
“19. …Article 142, even with the width of its amplitude, cannot
be used to build a new edifice where none existed earlier, by
ignoring express statutory provisions dealing with a subject and
thereby achieve something indirectly which cannot be achieved
directly.”
19 Arasmeta Captive Power Company Private Limited & Anr. v. Lafarge India Private
Limited, (2013) 15 SCC 414 (Para 32)
20 Shanti Bhushan v. Supreme Court of India & Anr., (2018) 8 SCC 396
21 M.C. Mehta v. Kamal Nath & Ors., (2000) 6 SCC 213
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20. Thus, the Court will not direct to the State or Union to enact
any particular law, or amend/ issue any notification for amendment of
any statutory Rule or even to direct an Act to be enforced, when the
legislature has conferred such power on the executive. The directions
of this Court in MBA-III were issued in the peculiar facts to make the
Tribunal functional at the earliest rather than mandating legislature to
amend the law in a particular manner. The legislature has a right to
enact law, which may not be necessarily in terms of the directions of this
Court. Such law when enacted by Parliament or the State Legislature,
even if contrary to the directions or guidelines issued by the Court, cannot
be struck down for the said reason. The legislation can be struck down
if the basis of the provision interpreted by the Court is not altered or if it
violates the fundamental rights or the right to equality under Article 14 of
the Constitution.
21. The questions of law raised in MBA-III were in respect of
separation of powers and independence of judiciary in the matter of
constitution of Search and Selection Committee; appointment of persons
without judicial experience as Judicial Members; failure to provide proper
technical specialized expertise; failure to provide for adequate tenure of
members; exclusion of advocates for being appointed as members of
tribunals; continuing role of the parent department in Search and
Selection
Committee; the preliminary inquiry by the Central Government for
removal of the members is invalid and the Executive’s continuing
administrative and financial control over the tribunals.
22. The directions of this Court which are at variance with the
Ordinance are as follows:
“53. The upshot of the above discussion leads this court to issue
the following directions:
(i) xxx
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(iii) Rule 4(2) of the 2020 Rules shall be amended to provide that
the Search-cum-Selection Committee shall recommend the name
of one person for appointment to each post instead of a panel of
two or three persons for appointment to each post. Another name
may be recommended to be included in the waiting list.
(iv) The Chairpersons, Vice-Chairpersons and the members of the
Tribunal shall hold office for a term of five years and shall be
eligible for reappointment. 7Rule 9(2) of the 2020 Rules shall be
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amended to provide that the Vice-Chairman, Vice-Chairperson
and Vice President and other members shall hold office till they
attain the age of sixty-seven years.
(v) The Union of India shall make serious efforts to provide suitable
housing to the Chairman or Chairperson or President and other
members of the Tribunals. If providing housing is not possible, the
Union of India shall pay the Chairman or Chairperson or President
and Vice-Chairman, Vice-Chairperson, Vice President of the
Tribunals an amount of Rs. 1,50,000/- per month as house rent
allowance and Rs. 1,25,000/- per month for other members of the
Tribunals. This direction shall be effective from 01.01.2021.
(vi) xxx
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(ix) The Union of India shall make appointments to Tribunals within
three months from the date on which the Search-cum-Selection
Committee completes the selection process and makes its
recommendations.
(x) The 2020 Rules shall have prospective effect and will be
applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.
(xi) Appointments made prior to the 2017 Rules are governed by
the parent Acts and Rules which established the concerned
Tribunals. In view of the interim orders passed by the Court
in Rojer Mathew (supra), appointments made during the pendency
of Rojer Mathew (supra) were also governed by the parent Acts
and Rules. Any appointments that were made after the 2020 Rules
came into force i.e. on or after 12.02.2020 shall be governed by
the 2020 Rules subject to
the modifications directed in the preceding
paragraphs of this judgment.
(xii) xxx
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(xiv) The terms and conditions relating to salary, benefits,
allowances, house rent allowance etc. shall be in accordance with
the terms indicated in, and directed by this judgment.
(xv) The Chairpersons, Vice Chairpersons and members of the
Tribunals appointed prior to 12.02.2020 shall be governed by the
parent statutes and Rules as per which they were appointed. The
2020 Rules shall be applicable with the modifications directed in
the preceding paragraphs to those who were appointed after
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12.02.2020. While reserving the matter for judgment on
09.10.2020, we extended the term of the Chairpersons, Vice-
Chairpersons and members of the Tribunals till 31.12.2020. In
view of the final judgment on the 2020 Rules, the retirements of
the Chairpersons, Vice-Chairpersons and the members of the
Tribunals shall be in accordance with the applicable Rules as
mentioned above.”
23. The arguments were concluded on 3rd June 2021 but before
we could finalize our views, the Tribunal, Appellate Tribunal and other
Authorities (Qualifications, Experience and other Conditions of Service
of Members) (Amendment) Rules, 2021 stands notified on 30th June
2021. The Search and Selection Committee as ordered by this Court in
MBA-III, the Advocate being eligible for appointment in certain Tribunal
and option to pay House Rent Allowance in terms of the directions of
this Court in MBA-III stands incorporated in such Rules. The questions
raised now have to be examined in the light of amended Rules.
24. The judgment authored by Justice L. Nageswara Rao has
held as under:
“43. The permissibility of a legislative override in this country should
be in accordance with the principles laid down by this Court in the
aforementioned as well as other judgments, which have been culled
out as under:
a) The effect of the judgments of the Court can be nullified by a
legislative act removing the basis of the judgment. Such law can
be retrospective.
Retrospective amendment should be reasonable
and not arbitrary and must not be violative of the fundamental
rights guaranteed under the Constitution. (Lohia Machines Ltd.
& Anr. v. Union of India & Ors. ((1985) 2 SCC 1987).
b) The test for determining the validity of a validating legislation is
that the judgment pointing out the defect would not have been
passed, if the altered position as sought to be brought in by the
validating statute existed before the Court at the time of rendering
its judgment. In other words, the defect pointed out should have
been cured such that the basis of the judgment pointing out the
defect is removed.
c) Nullification of mandamus by an enactment would be
impermissible legislative exercise (See: S.R. Bhagwat & Ors. v.
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State of Mysore, ((1995) 6 SCC 16). Even interim directions cannot
be reversed by a legislative veto (See: Cauvery Water Disputes
Tribunal, 1993 Supp (1) SCC 96) and Medical Council of India v.
State of Kerala & Ors., ((2019) 13 SCC 185).
d) Transgression of constitutional limitations and intrusion into the
judicial power by the legislature is violative of the principle of
separation of powers, the rule of law and of Article 14 of the
Constitution of India.”
25. I have my reservation with respect to the aforementioned
conclusions (c) and (d). In Cauvery Water Disputes Tribunal, the State
of Karnataka promulgated Karnataka Cauvery Basin Irrigation
Protection Ordinance, 1991 on 25.7.1991. In pursuance of the order
passed by this Court in a writ petition, the Tribunal by way of an interim
order directed the State of Karnataka to release water from its reservoirs
to ensure 205 TMC is available in Tamil Nadu’s Mettur reservoir in a
year from June to May vide its order dated 25.6.1991. It is thereafter
the Ordinance in dispute was promulgated. It is the said interim order
which was sought to be nullified by enactment of the Ordinance, later
substituted by an Act by the State of Karnataka. This Court held as
under:
“73. The Ordinance is unconstitutional because it affects the
jurisdiction of the Tribunal appointed under the Central Act, viz.,
the Inter-State Water Disputes Act which legislation has been
made under Article 262 of the Constitution. As has been
pointed
out above, while analysing the provisions of the Ordinance, its
obvious purpose is to nullify the effect of the interim order
passed by the Tribunal on June 25, 1991. The Ordinance makes
no secret of the said fact and the written statement filed and the
submissions made on behalf of the State of Karnataka show that
since according to the State of Karnataka the Tribunal has no
power to pass any interim order or grant any interim relief as
it has done by the order of June 25, 1991, the order is without
jurisdiction and, therefore, void ab initio. This being so, it is
not a decision, according to Karnataka, within the meaning of
Section 6 and not binding on it and in order to protect itself against
the possible effects of the said order, the Ordinance has been
issued. The State of Karnataka has thus arrogated to itself the
power to decide unilaterally whether the Tribunal has jurisdiction
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to pass the interim order or not and whether the order is binding
on it or not. Secondly, the State has also presumed that till a final
order is passed by the Tribunal, the State has the power to
appropriate the waters of the river Cauvery to itself unmindful of
and unconcerned with the consequences of such action on the
lower riparian States……….. To the extent that the Ordinance
interferes with the decision of this Court and of the Tribunal
appointed under the Central legislation, it is clearly unconstitutional
being not only in direct conflict with the provisions of Article 262
of the Constitution under which the said enactment is made but
being also in conflict with the judicial power of the State.”
(Emphasis Supplied)
26. The judgment of this Court in Medical Council of India was
again to nullify the judgment of this Court where this Court had struck
down the admission of 180 students in Kannur Medical College and
Karuna Medical College in the State of Kerala. This Court held as under:
“23. What has been done by the impugned Ordinance by the State
Government is clearly entrenching upon the field of judicial review
and it was obviously misadventure resorted to. In our considered
opinion, it was not at all permissible to the State Government to
promulgate the Ordinance/legislate in the matter. Not only the
judgment of the court is nullified and the arbitrariness committed
in admissions was glaring, and the decision
of the High Court of
Kerala which was affirmed by this Court with respect to
applications to be entertained if they were online applications has
been undone. It was clearly an act of nullifying judgment and
is violative of judicial powers which vested in the judiciary.
It was not open for the State Government to nullify the
judgment/orders passed by the Kerala High Court or by this
Court. It was not a case of removal of a defect in existing law.
Various Constitution Bench decisions of this Court have settled
the principles of law governing the field. It passes comprehension
how the State Government has promulgated the Ordinance in
question”.
(Emphasis Supplied)
27. In S.R. Bhagwat, the petitioners were senior in the final
seniority list but their juniors got promoted on the basis of higher ranking
in the provisional seniority list which was earlier operative. The writ
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petitions were allowed wherein the petitioners were directed to be
considered for promotion. In implementation of the said judgment, the
State granted deemed dates of promotions but denied the consequential
monetary benefits. The petitioners filed contempt petitions before the
High Court. It was at that stage that an Ordinance was promulgated
whereby payment of actual financial benefits was sought to be taken
away. The said judgment is clearly not applicable to the facts of present
case as the defect was not even attempted to be cured. The legislative
action was to deny financial benefits arising out of a judgment, which
had attained finality. In the present case, I am of the opinion that except
two aspects that are contained in Rules 4(2) and 9(2) of the 2020 Rules,
rest of directions were dehors the legality or illegality of the Rules with
an idea of making Tribunals being made functional at the earliest.
28. Therefore, three judgments referred hereinabove have to be
read in the context of the facts and the issues raised therein. In fact,
none of the judgments was to the effect that whatever are the directions
of this Court to enact law, it is binding on the legislature. The three
judgments arise out of facts, wherein, the defect was not even attempted
to be cured but simpliciter, the judgment was sought to be nullified.
29. In respect of conclusion (d), though transgression of
constitutional limitations and intrusion into the judicial power by the
legislature is violative of the principle of separation of powers, the rule
of law and of Article 14 of the Constitution of India, but it is equally true
that judiciary in exercise of power of judicial review cannot direct
legislature to frame any law in a particular manner.
Legality and validity of first proviso to Section 184(1) of the
Ordinance
30. The said proviso to Section 184(1) of the Ordinance reads as
below:
“Provided that a person who has not completed the age of fifty
years shall not be eligible for appointment as a Chairperson or
Member”
31. I am unable to agree to the opinion that the first proviso to
Section 184 prescribing a minimum age of fifty years is an attempt to
circumvent the direction issued in MBA-III. The condition of eligibility
for appointment as a Judge of a High Court was kept in view while
considering the eligibility of advocates as members of Tribunals.
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However, the Memorandum of Procedure for appointment as judges of
the High Court finalized by this Court and forwarded to the Central
Government in March, 2017 was that a person shall not be eligible to be
considered for appointment as Judge of a High Court against Bar quota
unless he has completed forty-five years of age on the date of
recommendation by the High Court Collegium. Though, in terms of Article
217 of the Constitution, a candidate becomes eligible for appointment
after 10 years of practice as an Advocate. Thus, an Advocate would be
eligible for appointment as judge of the High Court around the age of 35
years. The Memorandum of Procedure adopted by the Collegium of this
Court prescribed forty-five years of age as the minimum age. I find that
eligibility to seek appointment is not solely dependent upon qualification
of a candidate but experience and suitability, likely term which a candidate
may have are necessary considerations. The relevant part from the
memorandum of the collegium is reproduced as under:
“17.  A person shall not be eligible to be considered for appointment
as Judge of a High Court against Bar quota, unless he has
completed 45 years of age on the date of recommendation by the
High Court Collegium.”
32. In terms of the Constitution read with the Memorandum of
Procedure adopted by this Court, an advocate would have maximum
tenure of 17 years as a Judge of the High Court, may be another
three
years as Judge of this Court. On the other hand, an advocate appointed
as member of a Tribunal can have a tenure of 17 years, even if 50 is the
minimum age for appointment. The tenure of such member is up to the
age of 67 years with the possibility of being appointed as the Chairperson.
This is not to compare the status of a High Court Judge with that of a
member of a Tribunal. The members would be appointed on the basis of
recommendation of the high-powered Search and Selection Committee
having judicial dominance. If a member is discharging his functions legally,
there is no need to bear any apprehension about his not being re-appointed.
The process of re-appointment is again with the High-Powered Search
and Selection Committee with judicial dominance. A provision in the
statute cannot be found to be untenable merely for the reason that there
is a possibility of not being reappointed.
33. The advocates were not eligible for appointment under 2020
Rules. Therefore, there was no condition of age of eligibility of such
candidates. It may be noted that though this Court discussed the age of
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the candidates eligible for appointment to be “around 45 years” in para
44, but there was no particular direction qua age.
34. The discussions in the judgment are not to be considered as
directions. There is background in which the ultimate directions are issued.
Since no directions were issued in respect of eligibility conditions
particularly relating to age, thus, fixing of eligible age as fifty years cannot
be treated to be in contradiction to the directions issued in MBA-III.
Even if it is contravening to any such direction, the legislature is within
its jurisdiction to determine the minimum eligibility age for the purpose of
appointment.
35. Mr. R. Gandhi, the President of Madras Bar Association
challenged the provisions of The Companies Act, 1956 as amended by
Central Act 11 of 2003 when Part 1B and Part 1C were inserted
constituting National Company Law Tribunal and the Appellate Tribunal
respectively before the Madras High Court. The High Court allowed
the writ petition22 on 30.3.2004. The High Court held that the power of
reappointment was read to be a ‘renewal’, apart from rendering many
provisions of the amending Act as illegal in as much as they were in
breach of basic constitutional scheme of separation of powers and
independence of the judicial function. The Madras High Court held as
under:
“74. Unless the term of office is fixed as at least five years with
a provision for renewal, except in cases of incapacity, misconduct
and the like, and
the period for which lien may be retained is fixed
at not more than one year, the constitution of the Tribunal cannot
be regarded as satisfying the essential requirements of an
independent and impartial body exercising judicial functions of
the State.
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123. In the light of foregoing discussions it is declared that until
the provisions in parts 1B and 1C of the Companies Act introduced
by the Companies (Amendment) Act, 2002, which have been found
to be defective in as much as they are in breach of the basic
constitutional scheme of separation of powers and independence
of the judicial function, are duly amended, by removing the defects
that have been pointed out, it would be unconstitutional to constitute
22 2004 (2) Current Tamil Nadu Cases 561
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a Tribunal and Appellate Tribunal to exercise the jurisdiction now
exercised by the High courts or the Company Law Board.”
36. In an appeal against the said order, this Court in MBA-I noticed
the contention of the Union as under:
“11. The Union Government has accepted the finding and agreed
to amend Sections 10-FE and 10-FT of the Act to provide for a
five-year term for the Chairman/President/Members. However,
the Government proposes to retain the provision for reappointment
instead of “renewal”, as the reappointments would be considered
by a Selection Committee which would be headed by the Chief
Justice of India or his nominee. As the Government proposes to
have minimum eligibility of 50 years for first appointment as a
Member of the Tribunal, a Member will have to undergo the
process of reappointment only once or twice.”
37. The finding of the High Court that the President or the Chairman
was entitled to renewal of term was not accepted.  This Court held as
under:
“120 (ix). The term of office of three years shall be changed to a
term of seven or five years subject to eligibility for appointment
for one more term. This is because considerable time is required
to achieve expertise in the field concerned. A term of three years
is very short and by the time the members achieve the required
knowledge, expertise and efficiency, one term will be over. Further
the said term of three years with the retirement age of 65
years is
perceived as having been tailor-made for persons who have retired
or shortly to retire and encourages these Tribunals to be treated
as post-retirement havens. If these Tribunals are to function
effectively and efficiently they should be able to attract younger
members who will have a reasonable period of service.”
38. Subsequently, the Companies Act, 2013 was enacted, repealing
the Companies Act, 1956. The said Act provided for establishment of
National Company Law Tribunal and National Company Law Appellate
Tribunal. The provisions of the new Companies Act, 2013 were upheld
by this Court subject to certain modifications as provided in MBA-II.
The provisions of the Act which were not challenged or interfered with
are contained in Sections 413 and 414 of the Act.   Sections 413 prescribes
that a person who has not completed fifty years of age shall not be
eligible to be appointed as a Member or Chairperson.
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39. This Court in MBA-II held the provisions contained under
Section 409(3)(a), (c) and Section 411(3) of the Companies Act, 2013 to
be invalid. The appointments of technical members as in the Madras
Bar judgment rendered in the year 2010 were to be scrupulously followed.
This Court held as under:
“28. Having regard to the aforesaid clear and categorical dicta in
2010 judgment [(2010) 11 SCC 1], tinkering therewith would
evidently have the potential of compromising with standards which
the 2010 judgment [(2010) 11 SCC 1] sought to achieve, nay, so
zealously sought to secure. Thus, we hold that Sections 409(3)(a)
and (e) are invalid as these provisions suffer from same vice.
Likewise, Section 411(3) as worded, providing for qualifications
of Technical Members, is also held to be invalid. For appointment
of Technical Members to NCLT, directions contained in sub-paras
(ii), (iii), (iv), (v) of para 120 of the 2010 judgment [(2010) 11
SCC 1] will have to be scrupulously followed and these corrections
are required to be made in Section 409(3) to set right the defects
contained therein. We order accordingly, while disposing of Issue
2.”
40. In MBA-II, the age for appointment of members of the National
Law Company Tribunal was fixed as fifty years. Same was not disputed
by the present petitioner in the writ petition before the Madras High
Court or before this Court. Therefore, the age of 50 years as the eligibility
condition is not off the hat but is based upon
previous legislation in respect
of members of the National Company Law Tribunal. Thus, the fixation
of fifty years of age as the eligibility condition cannot be said to be
manifestly arbitrary or violative of any of the Fundamental Rights of any
of the candidates which may render such condition of age as illegal. The
argument is based on apprehension that it would be difficult for an
advocate appointed after attaining the age of fifty years to resume legal
practice after completion of one term, in case he is not reappointed. A
person who is competent and good in his work will not find any difficulty
to resume his practice but what would happen to his professional career
if his term is not extended is a calculated risk which a candidate shall
take at the time of seeking appointment. Such apprehensions as to what
will happen in future cannot be a ground to strike down a condition of
age in the statute. This Court is not possessed of the expertise to say
that it will be difficult for an advocate to resume practice if he is not
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reappointed. I am unable to agree that the statutory provisions can be
struck down on such grounds based on presumed apprehensions.
41. The apprehensions or misuse of a statutory provision is not a
ground to declare the provisions of a statute as void. A five Judges Bench
of this Court23 held as under:
“33.  …This Court has held in numerous rulings, to which it is
unnecessary to refer, that the possibility of the abuse of the powers
under the provisions contained in any statute is no ground for
declaring the provision to be unreasonable or void. Commenting
on a passage in the judgment of the Court of Appeal of Northern
Ireland which stated:
“If such powers are capable of being exercised reasonably it
is impossible to say that they may not also be exercised
unreasonably”
and treating this as a ground for holding the statute invalid Viscount
Simonds observed in Belfast Corporation v. O.D. Commission
[1960 AC 490 at pp. 520-521] :
“It appears to me that the short answer to this contention (and
I hope its shortness will not be regarded as disrespect) is that
the validity of a measure is not to be determined by its
application to particular cases.… If it is not so exercised (i.e.
if the powers are abused) it is open to challenge and there is
no need for express provision for its challenge in the statute.”
The possibility of abuse of a statute otherwise valid does not impart
to it any element of invalidity. The converse
must also follow that
a statute which is otherwise invalid as being unreasonable cannot
be saved by its being administered in a reasonable manner. The
constitutional validity of the statute would have to be determined
on the basis of its provisions and on the ambit of its operation as
reasonably construed. If so judged it passes the test of
reasonableness, possibility of the powers conferred being
improperly used is no ground for pronouncing the law itself invalid
and similarly if the law properly interpreted and tested in the light
of the requirements set out in Part III of the Constitution does not
23 Collector of Customs, Madras & Anr. v. Nathella Sampathu Chetty & Anr., AIR 1962
SC 316
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pass the test it cannot be pronounced valid merely because it is
administered in a manner which might not conflict with the
constitutional requirements.”
42. Similar view was reiterated by this Court in number of
judgments24. In another judgment25, it was held as under:
24.  … It is also necessary to reiterate that a mere possibility of
abuse of a provision, does not, by itself, justify its invalidation. The
validity of a provision must be tested with reference to its operation
and efficiency in the generality of cases and not by the freaks or
exceptions that its application might in some rare cases possibly
produce. The affairs of government cannot be conducted on
principles of distrust. If the selectors had acted mala fide or
with oblique motives, there are administrative law remedies to
secure reliefs against such abuse of powers. Abuse vitiates any
power.” (Emphasis supplied)
43. Therefore, I am of the opinion that in case of failing to secure
reappointment, the candidate will not be able to resume practice is based
upon apprehensions. Whether they are good or valid grounds to refuse
reappointment can be subject matter of judicial review although I am of
the opinion that the decision of the high-power Search and Selection
Committee not to re-appoint a candidate may not warrant interference
in exercise of judicial review.
Legality and validity of the Second & Third proviso to Section
184(1) of the Ordinance
44. The said proviso reads thus:
“Provided
further that the allowances and benefits so payable
shall be to the extent as are admissible to a Central Government
officer holding the post carrying the same pay:
Provided also that where the Chairperson or Member takes
a house on rent, he may be reimbursed a house rent subject to
such limits and conditions as may be provided by rules.”
24 Government of Andhra Pradesh & Anr. v. G. Jaya Prasad Rao & Ors., (2007) 11 SCC
528; People’s Union for Civil Liberties & Anr. v. Union of India, (2004) 9 SCC 580;
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613
25 Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors., (1988) 3 SCC 241
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45. The second proviso is to the effect that allowances and benefits
shall be to the extent as are admissible to a Central Government officer
holding the post carrying the same pay. The third proviso to Section
184(1) is that where Chairperson or Members take a house on rent, he
may be reimbursed a house rent subject to such limits and conditions as
may be prescribed. In terms of third proviso, the Tribunal, Appellate
Tribunal and other Authorities (Qualifications, Experience and other
Conditions of Service of Members) (Amendment) Rules, 2021 have been
published. As per the Rules now notified, the Chairman, Chairperson,
President, Vice Chairman, Vice Chairperson or Vice President shall have
option to avail of accommodation to be provided by the Central
Government as per the rules for the time being in force or entitled to
house rent allowance subject to a limit of Rs. one lakh fifty thousand
rupees per month and the Members shall have option to avail of
accommodation to be provided by the Central Government as per the
rules for the time being in force or entitled to house rent allowance
subject to a limit of Rs. one lakh twenty-five thousand rupees per month
with effect from the 1st January, 2021. Therefore, the directions issued
stands complied with.
46. As a matter of fact, there is a common grievance of the
members of the Bar and the litigating parties other than from Delhi that
there is a concentration of
Tribunals in Delhi which deprives the advocates
from other parts of the country to deal with the matters entrusted to the
Tribunals. It is also expensive for the litigants to engage professional
services in Delhi, which is out of capacity for a large section of the
society. In fact, because of housing scarcity and expensive professional
services, it will be open to the Government/legislature to shift the principal
benches of the certain Tribunals outside Delhi so that concentration of
Tribunals in Delhi is minimized which will in turn help the Bar to grow at
different places, ensuring affordable administration of justice and
resolution of the challenge of scarcity of housing in Delhi.
Section 184(7)
47. The direction of this Court in Para 53(ix) was that the Union
shall make appointments to Tribunals within three months whereas the
Ordinance has used the expression that the Central Government shall
take a decision on the recommendations of the Committee “preferably
within three months”. Both the directions in sub-para (ix) and in sub-
section (7) are only directory.  It is well-settled that the use of expression
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‘shall’ or ‘may’ is not determinative of the fact that whether the condition
is mandatory or directory. Therefore, there is no reason to set aside the
expression ‘preferably’ used in sub-section (7) of Section 184. Such
directions were issued in terms of Article 142 of the Constitution which
stop at the four walls of the Parliament. The language to be used falls
within the legislative competence and do not violate any fundamental
right nor can be said to be manifestly arbitrary.
Whether the Ordinance nullifies the judgment of this Court in
MBA-III without removing the defect in the 2020 Rules?
48. The Petitioner herein has relied upon certain judicial
pronouncements to contend that the effect of the Ordinance is to nullify
the judgment of this Court in MBA-III without removing the defects in
the 2020 Rules. They are produced and analyzed hereinbelow.
49. In a judgment26 relied upon, the levy of the property tax was
found to be not legal in view of the language of the Statute. The State
legislature thus altered the basis of levy of property tax. Therefore, the
said judgment is not appliable to the facts of the present case where the
directions were issued dehors the legality of the 2020 Rules.
50. The reliance on another judgment of this Court27 is not tenable
wherein a settlement was arrived at regarding payment of bonus effective
from April 1, 1973 to March 31, 1977 with four different associations of
employees. A writ of Mandamus was issued by the
Calcutta High Court.
The Payment of Bonus (Amendment) Ordinance, 1975 was thereafter
promulgated in September, 1975. The Payment of Bonus Act was not
applicable to the Life Insurance Corporation by virtue of Section 32 of
the said impugned Act. This Court found that the impugned Act did not
set at naught the entire settlement relating to payment of annual cash
bonus of Class III and Class IV employees and that too from April, 1
1975. Since the settlement had attained finality as the same was approved
by the Board of Directors as well as by the Central Government, and
that the Writ of Mandamus was issued by the Calcutta High Court to
pay annual cash bonus to the employees, it was held that the judgment
can be remedied by way of an appeal or review, but it cannot be
disregarded or ignored and must be obeyed by Life Insurance Company.
26 Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors.,
(1969) 2 SCC 283
27 Madan Mohan Pathak & Anr. v. Union of India & Ors., (1978) 2 SCC 50
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In S.S. Bola & Ors. v. B.D. Sardana & Ors.28, this Court explained
the Judgment in Madan Mohan Pathak. It was found that in as much
as six Hon’ble Judges out of seven rested their decision on the ground
that the impugned Act violates Article 31(2) of the Constitution and did
not consider the enactment in question to be an act of usurpation of
judicial power by the legislature. It was held as under:
“189………The majority judgment came to hold that the impugned
Act is violative of Article 31 clause (2) as the effect of the Act
was to transfer ownership debts due owing to Class III and Class
IV employees in respect of annual cash bonus to the Life Insurance
Corporation and there has been no provision for payment of any
compensation for the compulsory acquisition of these debts. It
may be stated that the majority judgment did not consider the
question as to whether the legislatures by enacting the Act have
usurped the judicial power and have merely declared the judgment
of a competent court of law to be invalid.  Beg, CJ. in his concurring
judgement in para 32 of the judgment, however, has observed that
the real object of the Act was to set aside the result of the
mandamus issued by the Calcutta High Court, though, it does not
mention as such, and therefore, the learned Judge held that Section
3 of the Act would be invalid for trenching upon the judicial power.
190. Three other learned Judges, namely, Y.V. Chandrachud, S.
Murtaza Fazal Ali and P.N. Shinghal, JJ. agreed with the
conclusion of Bhagwati, J. but preferred to rest their decision on
the sole ground that the impugned Act violates the provisions of
Article 31(2) of the Constitution and in fact they considered it
unnecessary to express any opinion on the effect of the judgment
of the Calcutta High Court in Writ Petition No.371 of 1976.  Thus
out of seven learned Judges, six learned Judges rested their
decision on the ground that the impugned Act violates Article 31(2)
of the Constitution and did not consider the enactment in question
to be an act of usurpation of judicial power by the legislature.
The observation of Beg, C.J., in para 32 does not appear to be in
consonance with the several authorities of this Court on the point
to be discussed hereafter…….”
28 (1997) 8 SCC 522
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51. In B.K. Pavitra v. Union of India29, the judgment in Madan
Mohan Pathak has been considered. It was held that the said case did
not involve a situation where a law was held to be ultra vires and the
basis of the declaration of invalidity of the law was sought to be cured.
It was observed as under:
“83.2. Indian Aluminium Co. [Indian Aluminium Co. v. State
of Kerala, (1996) 7 SCC 637] , where it was held that : (SCC p.
660, para 49)
“49. In Madan Mohan Pathak v. Union of India [Madan
Mohan Pathak v. Union of India, (1978) 2 SCC 50 : 1978
SCC (L&S) 103] … From the observations made by Bhagwati,
J. per majority, it is clear that this Court did not intend to lay
down that Parliament, under no circumstance, has power
to amend the law removing the vice pointed out by the court.
Equally, the observation of Chief Justice Beg is to be understood
in the context that as long as the effect of mandamus issued
by the court is not legally and constitutionally made
ineffective, the State is bound to obey the directions. Thus
understood, it is unexceptionable. But it does not mean that the
learned Chief Justice intended to lay down the law that
mandamus issued by court cannot at all be made ineffective
by a valid law made by the legislature, removing the defect
pointed out by the court.”
(emphasis supplied)
84. Madan Mohan Pathak [Madan Mohan Pathak v. Union
of India, (1978) 2 SCC 50 : 1978 SCC (L&S) 103] involved a
situation where a parliamentary law was enacted to
override a
mandamus which was issued by the High Court for the payment
of bonus under an industrial settlement. The case did not involve
a situation where a law was held to be ultra vires and the basis of
the declaration of invalidity of the law was sought to be cured.”
52. Another judgment30 which has been relied upon dealt with an
inter-se water dispute between two states relating to the height of
Mullaperiyar Dam. Kerala Irrigation and Water Conservation Act, 200331
29 (2019) 16 SCC 129
30 State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696
31 For short, ‘2003 Act’
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was enacted by Kerala legislature, which came into force on 18.09.2003.
Such Act was neither referred to nor relied upon by the State of Kerala
at the time of hearing by this Court on 27.2.2006. On 18.03.2006, in less
than three weeks of the decision of this Court32, the Kerala State
legislature amended the 2003 Act by introducing Kerala Irrigation and
Water Conservation (Amendment) Act, 200633, which was the subject
matter of judgment in question. The said Act was challenged by the
State of Tamil Nadu in an original suit before this Court. An argument
was raised that the impugned legislation amounts to usurpation of judicial
power inasmuch as Kerala State Legislature has arrogated to itself the
role of a judicial body and has itself determined the questions regarding
the dam safety and raising the water level when such questions fall
exclusively within the province of the judiciary and have already been
determined by this Court in its judgment dated 27.02.2006. This Court in
an exhaustive judgment held as under:
“126. The decision of this Court on 27.02.2006 in the Mullaperiyar
Environmental Protection Forum case was the result of judicial
investigation, founded upon facts ascertained in the course of
hearing. It was strictly a judicial question. The claim of the State
of Kerala was that water level cannot be raised from its present
level of 136 ft. On the other hand, Tamil Nadu sought direction
for raising the water
level to 142 ft. and, after strengthening, to its
full level of 152 ft. The obstruction by Kerala to the water level in
the Mullaperiyar dam being raised to 142 ft. on the ground of
safety was found untenable, and, in its judgment, this Court so
pronounced.
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154. Where a dispute between two States has already been
adjudicated upon by this Court, which it is empowered to deal
with, any unilateral law enacted by one of the parties that results
in overturning the final judgment is bad not because it is affected
by the principles of res judicata but because it infringes the doctrine
of separation of powers and rule of law, as by such law, the
legislature has clearly usurped the judicial power.
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32 Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643
33 For short, ‘2006 (Amendment) Act’
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164. In light of the above legal position, if the 2006 judgment is
seen, it becomes apparent that after considering the contentions
of the parties and examining the reports of Expert Committee,
this Court posed the issue for determination about the safety of
the dam to increase the water level to 142 ft. and came to a
categorical finding that the dam was safe for raising the water
level to 142 ft. and, accordingly, in the concluding paragraph the
Court disposed of the writ petition and the connected matters by
permitting the water level of Mullaperiyar dam being raised to
142 ft. and also permitted further strengthening of the dam as per
the report of the Expert Committee appointed by the CWC. The
review petition filed against the said decision was dismissed by
this Court on 27.7.2006. The 2006 judgment having become final
and binding, the issues decided in the said proceedings definitely
operate as res judicata in the suit filed under Article 131 of the
Constitution.”
53. Ram Pravesh Singh is another case where the State law
was under consideration. It was not a case where the legislature had
intervened to enact a law contrary to the directions given by the High
Court. Similarly, Karnail Singh was a case of interpretation of statute
and not dealing with enactment by the legislature or Parliament
consequent to the directions issued by this Court. The law declared by
this Court is binding on all Courts within the territory of India under
Article 141 of the
Constitution whereas Article 142 of the Constitution
empowers this Court to issue directions to do complete justice. The
interpretation of law is binding under Article 141 of the Constitution even
if there is a direction under Article 142 but such direction is not all
pervasive and binding on the legislature.  Such is the consistent line of
judgments by this Court ending with three Judge Bench judgment in
Dr. Ashwani Kumar.
Proviso to Section 184 (11)
54. The inserted proviso to Section 184(11) by the Ordinance deals
with two situations. One is in respect of the candidates appointed from
26.5.2017 till the notified date that is 4.4.2021 in terms of sub-Section
(11) of Section 184. Second is in respect of the candidates who have not
been appointed falling within proviso to sub-Section (1) of Section 184,
which provides that a person who has not completed the age of fifty
years shall not be eligible for appointment as a Chairperson or Member.
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There is no doubt that this is a prospective provision as no candidate
who has not completed 50 years of age is eligible to seek appointment.
55. I do not find any merit in the argument raised by Mr. Krishnan
Venugopal that a selected candidate has a right to seek appointment and
that too within three months of the order of this Court. Firstly, a selected
candidate has no right to seek appointment. A Constitution Bench of this
Court34 had held that the successful candidates do not acquire an
indefeasible right to be appointed which cannot be legitimately denied.
This Court held as under:
“7. It is not correct to say that if a number of vacancies are notified
for appointment and adequate number of candidates are found fit,
the successful candidates acquire an indefeasible right to be
appointed which cannot be legitimately denied. Ordinarily the
notification merely amounts to an invitation to qualified candidates
to apply for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any of the
vacancies. However, it does not mean that the State has the licence
of acting in an arbitrary manner. The decision not to fill up the
vacancies has to be taken bona fide for appropriate reasons. And
if the vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the
candidates, as reflected at
the recruitment test, and no discrimination can be permitted. This
correct position has been consistently followed by this Court, and
we do not find any discordant note in the decisions in ………”
56. The fact that the legislation has intervened to prescribe a
particular age which is at variance with the condition in the advertisement
is a good reason not to appoint the candidates. The legality of Sections
174, 175 and 184 of the Finance Act, 2017 has been upheld in the matter
of Rojer Mathew. Therefore, after such an amendment, appointments
can be made only in terms of the Rules famed under Section 184 of the
Finance Act. Now, some of the Rules stand substituted by the Ordinance.
Therefore, candidates who have not been appointed will have to seek
appointment only in terms of the substituted Section 184 of the Finance
Act. The candidates who were selected cannot seek appointment on
the basis of their old selection and being in merit.
34 Shankarsan Dash v. Union of India, (1991) 3 SCC 47
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57. Some of the Chairpersons and Members of the Tribunals were
appointed between 26.5.2017 to 4.4.2021 in terms of the interim orders
passed by this Court in Kudrat Sandhu. The argument raised is that
such interim orders have been nullified though such orders were issued
on the basis of concession of the learned Attorney General and that
such orders are couched in the form of mandate, therefore such
mandatory orders cannot be nullified.
58. The concession of the learned Attorney General at the time
when interim orders were passed was in view of the prevalent situation
to keep the Tribunals functional. The interim orders in Rojer Mathew
have merged with the final orders wherein again, this Court directed the
appointments to the Tribunals and terms of conditions of appointment
shall be in terms of the respective statute before the enactment of the
Finance Bill, 2017. Liberty was granted to the Union to seek modification
of this order. Therefore, the interim order which permitted the
appointments now stands subsumed in the Ordinance which has defined
the tenure and the terms and conditions of appointment. The Ordinance
is in fact in terms of the liberty granted to Union to seek modification.
Mere fact that an application for modification is pending will not bar the
legislature to enact a statute by way of an Ordinance. The appointments
made after 26.5.2017 by virtue of Section 184(11) will be governed not
by the parent statute but by the terms and conditions
as enumerated in
the Ordinance. The consent of the learned Attorney General will not act
as an estoppel against the statute i.e. the Ordinance.
59. The interim orders which have been set aside by this Court
such as in Cauvery Water Disputes Tribunal, or the Medical Council
of India were the cases where the State Legislature had nullified interim
orders simpliciter without even attempting to cure the defects.
60. The judgment in Virender Singh Hooda is quite different.
The appellants before this Court were successful in an earlier round of
litigation and were thus appointed. It was thereafter that the Act in question
was enacted with retrospective effect. The appellants were falling in
the first category out of three category of candidates such as (i) those
who had been appointed in implementation of decision in Hooda and
Sandeep Singh’s cases before passing of the impugned Act (ii) those,
though not so appointed, who have judgments of High Court passed in
their favour relying upon Hooda and Sandeep Singh’s cases, and claim a
right to appointment but would be deprived of it if the validity of the Act
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is upheld and on that basis the judgments of the High Court upturned and
(iii) those, who would be covered by law laid down in Hooda’s case on
interpretation and applicability of the aforenoted two circulars. This Court
held as under:
“47. There is a distinction between encroachment on the judicial
power and nullification of the effect of a judicial decision by
changing the law retrospectively. The former is outside the
competence of the legislature but the latter is within its permissible
limits {M/s Tirath Ram Rajindra Nath, Lucknow v. State of U.P.
& Anr., [(1973) 3 SCC 585]}. The reason for this lies in the concept
of separation of powers adopted by our constitutional scheme.
The adjudication of the rights of the parties according to law is a
judicial function. The legislature has to lay down the law prescribing
norms of conduct which will govern parties and transactions and
to require the court to give effect to that law [I.N. Saksena’s
case (supra)].
48. The legislature can change the basis on which a decision is
given by the Court and thus change the law in general, which will
affect a class of persons and events at large. It cannot, however,
set aside an individual decision inter parties and affect their rights
and liabilities alone. Such an act on the part of the legislature
amounts to exercising the judicial power by the State and to
function as an appellate court or tribunal, which is against the
concept of
separation of powers. {Re : Cauvery Water Disputes
Tribunal [1993 Supp.(1) SCC 96(II)]}.
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52. It is not possible to accept the contention that vested rights
cannot be taken away by legislature by way of retrospective
legislation. Taking away of such right would, however, be
impermissible if violative of Articles 14, 16 and any other
constitutional provision. In State of Tamil Nadu v. Aroorran Sugars
Ltd., [(1997) 1 SCC 326], this Court held that whenever any
amendment is brought in force retrospectively or any provision of
the Act is deleted retrospectively, in this process rights of some
are bound to be affected one way or the other. In every case, it
cannot be urged that the exercise by the legislature while
introducing a new provision or deleting an existing provision with
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retrospective effect per se shall be violative of Article 14 of the
Constitution. If that stand is accepted, then the necessary corollary
shall be that legislature had no power to legislate retrospectively,
because in that event a vested right is affected.”
61. It is thereafter that this Court protected the appointment of
candidates falling in the first category i.e., those who were appointed
prior to the commencement of the Act in question. It was held as under:
“68. Despite the aforesaid conclusion, the Act [proviso to Section
4(3)] to the extent it takes away the appointments already made,
some of the petitioners had been appointed much before
enforcement of the Act (ten in number as noticed hereinbefore)
in implementation of this Court’s decision, would be unreasonable,
harsh, arbitrary and violative of Article 14 of the Constitution.
The law does not permit the legislature of take back what has
been granted in implementation of the court’s decision. Such a
course is impermissible”.
62. The candidates in question were appointed during the pendency
of lis. These appointments were not concluded appointments but were
subject to the provisions of the parent Act which has been amended by
the Finance Act, 2017. They cannot claim any right to continue on the
post till the age of retirement under the parent Act in terms of proviso to
sub-section (11) of Section 184 of the Finance Act as substituted. The
provisions of the parent Act cease to be in existence
with the order
passed in Rojer Mathew and subsequent legislative enactments
introduced by way of the Ordinance.
63. Thus, I find that the first, second and third proviso to Section
184(1), the use of expression ‘preferably’ in Section 184(7) and the
proviso to Section 184(11) are legal and valid as such provisions fall
within the exclusive domain of the legislature. The legislature has not
nullified the judgment of this Court on the above aspects as there were
no such corresponding provisions in the 2020 Rules, which were part of
judicial review process.
64. It is open to the legislature to fix tenure of the Chairperson
and the members other than four years as the tenure of four years was
found to be not tenable in MBA-III. Section 184(7) which contemplates
that Select Committee should recommend a panel of two names is
contrary to the directions of this Court in MBA-III. Thus, Section
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184(11)(i)(ii) and Section 184(7) is declared to be void as the Ordinance
has reiterated the provisions which were in 2020 Rules. The challenge
to other provisions is not legally sustainable. The writ petition is thus
dismissed except to the extent mentioned above.
Bibhuti Bhushan Bose
Writ Petiton disposed of.