MADRAS BAR ASSOCIATION versus UNION OF INDIA & ANR.
[2020] 2 S.C.R. 246, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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SUPREME COURT REPORTS
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MADRAS BAR ASSOCIATION
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 804 of 2020)
NOVEMBER 27, 2020
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – National Tribunals Commission –
Constitution of – Held: The Union of India directed to constitute a
National Tribunals Commission which shall act as an independent
body to supervise the appointments and functioning of Tribunals,
as well as to conduct disciplinary proceedings against members of
Tribunals and to take care of administrative and infrastructural
needs of the Tribunals, in an appropriate manner – Till the National
Tribunals Commission is constituted, a separate wing in the Ministry
of Finance, Government of India shall be established to cater to
the requirements of the Tribunals.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Search-cum-Selection Committee –
Composition of – Held: The Search-cum-Selection Committees
should comprise of the following members: (i) The Chief Justice of
India or his nominee—Chairperson (with a casting vote); (ii) The
outgoing Chairman or Chairperson or President of the Tribunal in
case of appointment of the Chairman or Chairperson or President
of the Tribunal (or) the sitting Chairman or Chairperson
or President
of the Tribunal in case of appointment of other members of the
Tribunal (or) a retired Judge of the Supreme Court of India or a
retired Chief Justice of a High Court in case the Chairman or
Chairperson or President of the Tribunal is not a Judicial member
or if the Chairman or Chairperson or President of the Tribunal is
seeking re-appointment—member; (iii) Secretary to the Ministry of
Law and Justice, Government of India—member; (iv) Secretary to
the Government of India from a department other than the parent
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or sponsoring department, nominated by the Cabinet Secretary––
member; (v) Secretary to the sponsoring or parent Ministry or
Department—Member Secretary/Convener (without a vote) – Till
amendments are carried out, the 2020 Rules shall be read in the
manner indicated – Further, r. 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – rr.9(1) and 9(2) – Term of office of the
Chairpersons, vice-chairpersons and the members of the Tribunal
– Modification of the Rules, 2020 – Held: In view of the law laid
down in the earlier judgments of the Supreme Court, the modification
of the tenure is directed in rr. 9(1) and 9(2) of the 2020 Rules as
five years in respect of Chairman or Chairperson, Vice Chairman
or Vice-Chairperson and the members – The Government to amend
r. 9 (1) of the 2020 Rules by making the term of Chairman,
Chairperson or President as five years or till they attain 70 years,
whichever is earlier and other members dealt with in r. 9(2) as five
years or till they attain 67 years, whichever is earlier.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – r. 15
– House Rent Allowance to the
Chairperson and other members of the Tribunals – The lack of
housing in Delhi has been one of the reasons for retired judges of
the High Courts and the Supreme Court to not accept appointments
to Tribunals – Held: The Government of India directed to make
serious efforts to provide suitable housing to the Chairperson and
the members of the Tribunals and in case providing housing is not
possible, to enhance the house rent allowance to Rs.1,25,000/- for
members of Tribunals and Rs.1,50,000/- for the Chairman or
Chairperson or President and Vice Chairman or Vice Chairperson
or Vice President of Tribunals – In other words, an option should
be given to the Chairperson and the members of the Tribunals to
either apply for housing accommodation to be provided by the
Government of India as per the existing rules or to accept the
enhanced house rent allowance.
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Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Advocates as Judicial members – Held:
An Advocate of a High Court with experience of ten years is
qualified for appointment as a Judge of the High Court as per Art.
217 (2) of the Constitution of India – As the qualification for an
advocate of a High Court for appointment as a Judge of a High
Court is only 10 years, thus, the experience at the bar should be on
the same lines for being considered for appointment as a judicial
member of a Tribunal –  However, it is left open to the Search-cum-
Selection Committee to take into account experience of the
Advocates at the bar and the specialization of the Advocates in the
relevant branch of law while considering them for appointment as
judicial members.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Members of Indian Legal Service –
Eligibility of – Held: The members of Indian Legal Service are
entitled to be appointed only as technical members – The members
of Indian Legal Service shall be entitled to be considered for
appointment as a judicial member subject to their fulfilling the other
criteria which advocates are subjected to – In addition, the nature
of work done by the members of the Indian Legal Service and their
specialization in the relevant
branches of law shall be considered
by the Search-cum-Selection Committee while evaluating their
candidature.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Removal of members – r. 8 – Held: r. 8 of
the 2020 Rules shall be amended to reflect that the recommendations
of the Search-cum-Selection Committee in matters of disciplinary
actions shall be final and the recommendations of the Search-cum-
Selection Committee shall be implemented by the Central
Government.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Time Limit for appointment – Held: The
pendency of cases in the Tribunals is increasing mainly due to the
lack of personnel in the Tribunals which is due to the delay in filling
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up the vacancies as and when they arise due to the retirement of the
members – There is an imminent need for expediting the process of
selections and appointments to ensure speedy justice – The
Government of India directed to make the appointments to the
Tribunals within three months after the Search-cum-Selection
Committee completes the selection and makes its recommendations.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 – Retrospectivity of the 2020 Rules – The
Government of India contended that the new Rules, 2020 have been
framed in exercise of powers under the Finance Act, 2017, the 2020
Rules would be effective from 26.05.2017 – Held:  The 2020 Rules
which came into force from the date of their publication in the Official
Gazette, i.e. 12.02.2020, cannot be given retrospective effect – The
intention of Government of India to make the 2020 Rules prospective
is very clear from the notification dated 12.02.2020 – In any event,
subordinate legislation cannot be given retrospective effect unless
the parent statute specifically provides for the same –  It is clarified
that all appointments made prior to the 2020 Rules which came into
force on 12.02.2020 shall be governed by the parent Acts and Rules
– Any appointment made after the 2020 Rules have come into force
shall be in accordance with the 2020 Rules subject to the
modifications directed in the preceding
paragraphs of this judgment.
Disposing of the writ petitions, Transfer Petitions, Civil
Appeals, the Court
HELD: NATIONAL TRIBUNAL COMMISSION
1. The Union of India is directed to set up a National
Tribunals Commission as suggested by this Court by its order
dated 07.05.2018 at the earliest. Setting up of such a Commission
would enhance the image of the Tribunals and instill confidence
in the minds of the litigants. Dependence of the Tribunals for all
their requirements on the parent Department will not extricate
them from the control of the executive. Judicial independence of
the Tribunals can be achieved only when the Tribunals are
provided the necessary infrastructure and other facilities without
having to lean on the shoulders of the executive. This can be
achieved by establishment of an independent National Tribunals
Commission as suggested above. To stop the dependence of the
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Tribunals on their parent Departments for routing their
requirements and to ensure speedy administrative decision
making, as an interregnum measure, there should also be a
separate “tribunals wing” established in the Ministry of Finance,
Government of India to take up, deal with and finalize
requirements of all the Tribunals till the National Tribunals
Commission is established. [Para 20][273-B-D]
SEARCH-CUM-SELECTION COMMITTEE
2. There is merit in the submission of the Attorney General
that the presence of the Secretary of the sponsoring or parent
department in the Search-cum-Selection Committee will be
beneficial to the selection process. But, it is settled that the
Secretary of the parent or sponsoring Department cannot have a
say in the process of selection and service conditions of the
members of Tribunals. Ergo, the Secretary to the sponsoring or
parent Department shall serve as the Member-Secretary/
Convener to the Search-cum-Selection Committee and shall
function in the Search-cum-Selection Committee without a vote.
[Para 29][279-B-C]
3. The Government of India is duty bound to implement
the directions issued in the earlier judgments and constitute the
Search-cum-Selection Committees in which the Chief Justice of
India or his nominee shall be the Chairperson along with the
Chairperson of the Tribunal if he is a retired Judge of the Supreme
Court or a retired Chief Justice of a High Court and two
Secretaries to
the Government of India. In case the Tribunal is
headed by a Chairperson who is not a judicial member, the Search-
cum-Selection Committee shall consist of the Chief Justice of
India or his nominee as Chairperson and a retired Judge of the
Supreme Court or a retired Chief Justice of a High Court to be
nominated by the Chief Justice of India and Secretary to the
Government of India from the Ministry of Law and Justice and a
Secretary of a department other than the parent or sponsoring
department to be nominated by the Cabinet Secretary. As stated
above, the Secretary of the parent or sponsoring department shall
serve as the Member-Secretary or Convener, without a vote.
[Para 30][279-D-F]
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4. Rule 4 (2) of the Tribunal, Appellate Tribunal and other
Authorities [Qualification, Experience and other conditions of
service of Members] Rules, 2020 postulates that a panel of two
or three persons shall be recommended by the Search-cum-
Selection Committee from which the appointments to the posts
of Chairperson or members of the Tribunal shall be made by the
Central Government. The Amicus Curiae voiced serious
objections to Rule 4(2) on the ground that it would be
compromising judicial independence. According to Amicus Curie,
the procedure for appointment to the Tribunals should be
completely outside executive control. The Attorney General
stated that a panel of names consisting two or three persons is
essential because their antecedents have to be examined by the
Intelligence Bureau before appointing them to a Tribunal. He
suggested that the number of persons to be recommended can
be two instead of three to limit the discretion of the Appointments
Committee of the Cabinet. The recommendations for
appointments by the Search-cum-Selection Committee should be
final and the executive should not be permitted to exercise their
discretion in the matter of appointments to the Tribunals.
Accordingly, this Court directs that Rule 4(2) of the 2020 Rules
shall be amended and till so amended, that it be read as
empowering the Search-cum-Selection Committee to recommend
the name of only one person for each post. However, taking note
of the submissions made by
the Attorney General regarding the
requirement of the reports of the selected candidates from the
Intelligence Bureau, another suitable person can be selected by
the Search-cum-Selection Committee and placed in the waiting
list. In case, the report of the Intelligence Bureau regarding the
selected candidate is not satisfactory, then the candidate in the
waiting list can be appointed. [Para 31][279-G-H; 280-A-D]
TERM OF OFFICE
5. The 2020 Rules are not in compliance with the principles
of law laid down in Union of India v. Madras Bar Association (2010)
and Rojer Mathew  in respect of the tenure of the members of the
Tribunals in spite of this Court repeatedly holding that short
tenure of members is detrimental to the efficiency and
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independence of the Tribunals. Rule 9(1) of the 2020 Rules
provide for a term of four years or till a Chairman or Chairperson
or President attains the age of 70 years whichever is earlier. No
rationale except that four years is more than three years
prescribed in the 2017 Rules (described as too short, in Roger
Mathew ) was put forward on behalf of the Union of India. In so
far as the posts of Vice Chairman or Vice-Chairperson or Vice-
President and members are concerned, Rule 9(2) fixes the tenure
as four years or till they attain the age of 65 years whichever is
earlier.  In view of the law laid down in the earlier judgments of
the Supreme Court, the modification of the tenure is directed in
Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of
Chairman or Chairperson, Vice Chairman or Vice-Chairperson
and the members. Rule 9(1) permits a Chairman, Chairperson or
President of the Tribunal to continue till 70 years which is in
conformity with Parliamentary mandate in Section 184 of the
Finance Act. However, Rule 9(2) provides that Vice Chairman
and other members shall hold office till they attain 65 years. This
Court is in agreement with the submission made by the learned
Amicus Curiae that under the 2020 Rules, the Vice Chairman,
Vice-Chairperson or Vice-President or members in almost all the
Tribunals will have only a short tenure of less than three years if
the maximum age is 65 years. Therefore, the
Government is
directed to amend Rule 9 (1) of the 2020 Rules by making the
term of Chairman, Chairperson or President as five years or till
they attain 70 years, whichever is earlier and other members
dealt with in Rule 9(2) as five years or till they attain 67 years,
whichever is earlier. [Para 35][281-F-H; 282-A-D]
HOUSE RENT ALLOWANCE
6. Experience has shown that lack of housing in Delhi has
been one of the reasons for retired Judges of the High Courts
and the Supreme Court to not accept appointments to Tribunals.
At the same time, scarcity of housing is also a factor which needs
to be kept in mind.  The only way to find a solution to this problem
is to direct the Government of India to make serious efforts to
provide suitable housing to the Chairperson and the members of
the Tribunals and in case providing housing is not possible, to
enhance the house rent allowance to Rs.1,25,000/- for members
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of Tribunals and Rs.1,50,000/- for the Chairman or Chairperson
or President and Vice Chairman or Vice Chairperson or Vice
President of Tribunals. In other words, an option should be given
to the Chairperson and the members of the Tribunals to either
apply for housing accommodation to be provided by the
Government of India as per the existing rules or to accept the
enhanced house rent allowance. This direction shall be effective
from 01.01.2021. [Para 38][283-D-E]
ADVOCATES AS JUDICIAL MEMBERS
7. In view of the submission of the Attorney General that
the 2020 the Rules will be amended to make Advocates eligible
for appointment to the post of judicial members of the Tribunals,
the only question that remains is regarding their experience at
the bar. While the Attorney General suggested that an advocate
who has 25 years of experience should be considered for
appointment as a Judicial member, the learned Amicus Curiae
suggested that it should be 15 years. An Advocate of a High Court
with experience of ten years is qualified for appointment as a
Judge of the High Court as per Article 217 (2) of the Constitution
of India.  As the qualification for an advocate of a High Court for
appointment as a Judge of a High Court is only 10 years, this
Court is of the opinion that the experience at the bar should be
on the same lines for being considered for appointment as a
judicial member of a Tribunal. Exclusion of Advocates in 10 out
of 19 tribunals, for consideration as
judicial members, is therefore,
contrary to Union of India v. Madras Bar Association (2010) and
Madras Bar Association v. Union of India (2015). However, it is
left open to the Search-cum-Selection Committee to take into
account in the experience of the Advocates at the bar and the
specialization of the Advocates in the relevant branch of law while
considering them for appointment as judicial members. [Para
41][285-A-D]
ELIGIBILITY OF MEMBERS OF INDIAN LEGAL
SERVICE
8. As Advocates are entitled to be considered as judicial
members of the Tribunals, there is no harm in members of the
Indian Legal Service being considered as judicial members,
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provided they satisfy the criteria relating to the standing at the
bar and specialization required. The judgment of Union of India
v. Madras Bar Association (2010) did not take note of the above
points relating to the experience of members of Indian Legal
Service at the bar. The Indian Legal Service was considered along
with the other civil services for the purpose of holding that the
members of Indian Legal Service are entitled to be appointed
only as technical members. In the light of the submission made
by the Attorney General and the Amicus Curiae, this Court holds
that the members of Indian Legal Service shall be entitled to be
considered for appointment as a judicial member subject to their
fulfilling the other criteria which advocates are subjected to. In
addition, the nature of work done by the members of the Indian
Legal Service and their specialization in the relevant branches of
law shall be considered by the Search-cum-Selection Committee
while evaluating their candidature. [Para 43][286-E-H]
REMOVAL OF MEMBERS
9. Rule 8 of the 2020 Rules provides the procedure for
inquiry of misbehavior or incapacity of a member. According to
the said Rule, the preliminary scrutiny of the complaint is done
by the Central Government. If the Central Government finds that
there are reasonable grounds for conducting an inquiry into the
allegations made against a member in the complaint, it shall make
a reference to the
Search-cum-Selection Committee which shall
conduct an inquiry and submit the report to the Central
Government. The Amicus Curiae argued that there is no clarity
in the Rules as to whether the reports submitted by the Search-
cum-Selection Committee are binding on the Central
Government. According to Amicus Curiae, it is impermissible
for the Central Government to further scrutinize the report of
the Search-cum-Selection Committee which comprises of sitting
and retired Judges. He submitted that the proper procedure to
be followed in matters of complaints against the Presiding Officers
and members of the Tribunals is that a preliminary scrutiny may
be made by the Central Government and the report should be
placed before the Search-cum-Selection Committee. It is open
to the Search-cum-Selection Committee to accept or reject the
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preliminary scrutiny. In case the Search-cum-Selection Committee
is of the opinion that the findings of the preliminary scrutiny are
correct, then the Search-cum-Selection Committee should be
entitled to proceed further to conduct an inquiry on its own, if it
so choses. The findings of the Search-cum-Selection Committee
shall be final and the action recommended by the Search-cum-
Selection Committee shall be implemented by the Central
Government. [Para 45][287-G-H; 288-A-D]
TIME LIMIT FOR APPOINTMENT
10. It has been brought to notice that there are a large
number of unfilled vacancies hampering the progress of the
functioning of the Tribunals. The pendency of cases in the
Tribunals is increasing mainly due to the lack of personnel in the
Tribunals which is due to the delay in filling up the vacancies as
and when they arise due to the retirement of the members. There
is imminent need for expediting the process of selections and
appointments to ensure speedy justice. The Government of India
directed to make the appointments to the Tribunals within three
months after the Search-cum-Selection Committee completes the
selection and makes its recommendations. [Para 47][288-H; 289-
A-B]
RETROSPECTIVITY OF THE 2020 RULES
11. The 2017 Rules have been declared as being contrary
to the parent enactment and the principles envisaged in the
Constitution and hence struck down by this Court in Rojer
Mathew. The Central Government was directed to reformulate
the Rules in
conformity and in accordance with the principles
delineated by this Court in its earlier judgment and the
observations made in Rojer Mathew. The 2020 Rules are made in
exercise of the power conferred under Section 184 of the Finance
Act which came into force on their publication in the official Gazette
as per Rule 1(2). The date of publication of the 2020 Rules is
12.02.2020. The submission of Attorney General that the 2020
Rules which replaced the 2017 Rules shall come into force with
effect from 26.05.2017 which was the appointed day in accordance
with the 2017 Rules, is not accepted. It is true that the 2017
Rules were brought into force from 26.05.2017 and Section 183
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of the Finance Act provides for any appointment made after the
appointed day shall be in accordance with the Rules made under
Section 184 of the Finance Act, 2017. 2017 Rules which have
come into force with effect from 26.05.2017 in accordance with
Section 183 have been struck down by this Court. The 2020 Rules
which came into force from the date of their publication in the
Official Gazette, i.e. 12.02.2020, cannot be given retrospective
effect. The intention of Government of India to make the 2020
Rules prospective is very clear from the notification dated
12.02.2020. In any event, subordinate legislation cannot be given
retrospective effect unless the parent statute specifically provides
for the same. [Para 51][290-H; 291-A-E]
12. The following directions were issued:
(i) The Union of India shall constitute a National Tribunals
Commission which shall act as an independent body to supervise
the appointments and functioning of Tribunals, as well as to
conduct disciplinary proceedings against members of Tribunals
and to take care of administrative and infrastructural needs of
the Tribunals, in an appropriate manner. Till the National Tribunals
Commission is constituted, a separate wing in the Ministry of
Finance, Government of India shall be established to cater to the
requirements of the Tribunals; (ii) Instead of the four-member
Search-cum-Selection Committees provided for in Column (4) of
the Schedule to the 2020
Rules with the Chief Justice of India or
his nominee, outgoing or sitting Chairman or Chairperson or
President of the Tribunal and two Secretaries to the Government
of India, the Search-cum-Selection Committees should comprise
of the following members: (a)The Chief Justice of India or his
nominee—Chairperson (with a casting vote); (b) The outgoing
Chairman or Chairperson or President of the Tribunal in case of
appointment of the Chairman or Chairperson or President of the
Tribunal (or) the sitting Chairman or Chairperson or President
of the Tribunal in case of appointment of other members of the
Tribunal (or) a retired Judge of the Supreme Court of India or a
retired Chief Justice of a High Court in case the Chairman or
Chairperson or President of the Tribunal is not a Judicial member
or if the Chairman or Chairperson or President of the Tribunal is
seeking re-appointment—member; (c) Secretary to the Ministry
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of Law and Justice, Government of India—member; (d) Secretary
to the Government of India from a department other than the
parent or sponsoring department, nominated by the Cabinet
Secretary-—member; (e) Secretary to the sponsoring or parent
Ministry or Department—Member Secretary/Convener (without
a vote). Till amendments are carried out, the 2020 Rules shall be
read in the manner indicated; (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.
Rule 9(2) of the 2020 Rules shall be 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) 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
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branch of law; (viii) Rule 8 of the 2020 Rules shall be amended to
reflect that the recommendations of the Search-cum-Selection
Committee in matters of disciplinary actions shall be final and
the recommendations of the Search-cum-Selection Committee
shall be implemented by the Central Government; (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, appointments made during the pendency of Rojer
Mathew 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) Appointments made under the
2020 Rules till the date of this judgment, shall not be considered
invalid, insofar as they conformed to the recommendations of the
Search-cum-Selection Committees in terms of the 2020 Rules.
Such appointments are upheld, and shall not be called into question
on
the ground that the Search-cum-Selection Committees which
recommended the appointment of Chairman, Chairperson,
President or other members were in terms of the 2020 Rules, as
they stood before the modifications directed in this judgment.
They are, in other words, saved; (xiii) In case the Search-cum-
Selection Committees have made recommendations after
conducting selections in accordance with the 2020 Rules,
appointments shall be made within three months from today and
shall not be subject matter of challenge on the ground that they
are not in accord with this judgment; (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
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applicable with the modifications directed in the preceding
paragraphs to those who were appointed after 12.02.2020. While
reserving the matter for judgment on 09.10.2020, the term of
the Chairpersons, Vice-Chairpersons and members of the
Tribunals is extended 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. [Para
53][292-B-H; 293-A-H; 294-A-H; 295-A-B]
L. Chandra Kumar v. Union of India (1997) 3 SCC
261: [1997] 2 SCR 1186; Rojer Mathew  v. South Indian
Bank Limited (2020) 6 SCC 1 – relied on.
S.P. Sampath Kumar  v. Union of India (1987) 1 SCC
124 : [1987] 1 SCR 435; R.K. Jain v. Union of India
(1993) 4 SCC 119 : [1993] 3 SCR  802; Union of India
v. R. Gandhi, President, Madras Bar Association (2010)
11 SCC 1 : [2010] 6 SCR 857; Madras Bar Association
v. Union of India (2014) 10 SCC 1 : [2014] 10 SCR 1;
Bidi Supply Co. v. Union of India [1956] SCR 267;
Sundeep Kumar Bafna v. State of Maharashtra (2014)
16 SCC 623 : [2014] 4 SCR 486; Union of India v.
Madras Bar Association (2010) 11 SCC 1 : [2010] 6
SCR 857; Madras Bar Association v. Union of India
(2015) 8 SCC 583 : [2015] 6 SCR 638; Sri
Vijayalakshmi Rice Mills v. State of A.P. (1976) 3 SCC
37 : [1976] 3 SCR 775; ITO v. M.C. Ponnoose (1969)
2 SCC 351 : [1970] 1 SCR 678 – referred to.
Hinds v. R (1976) 1 All ER 353 (PC) – referred
to.
Case Law Reference
(2020) 6 SCC 1
relied on
Para 1
[1987] 1 SCR 435
referred to
Para 3
[1993] 3 SCR 802
referred to
Para 4
[1997] 2 SCR 1186
relied on
Para 4
[2010] 6 SCR 857
referred to
Para 5
[2014] 10 SCR 1
referred to
Para 5
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.

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(1956) SCR 267
referred to
Para 12
[2014] 4 SCR 486
referred to
Para 23
[2015] 6 SCR 638
referred to
Para  5
[1976] 3 SCR 775
referred to
Para 48
[1970] 1 SCR 678
referred to
Para  51
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
804 of 2020.
[Under Article 32 of the Constitution of India]
WITH
Misc. Application No.1058 of 2020 In Writ Petition (C) No.640 of
2017, Misc. Application No.1152 of 2020 In Writ Petition (C) No. 279 of
2017, Writ Petition (C) No. 867 Of 2020, Writ Petition (C) No.1431 of
2019, Transfer Petition (C) Nos. 905-915 Of 2020, Civil Appeal Nos.3505-
3506 of 2020 (@ SLP (C) Nos. 9587-9588 Of 2020), Transfer Petition
(C) No. 1356-1360 of 2020 (@ Diary No. 18900 of 2020), Misc.
Application No.1481 of 2020 In Writ Petition (C) No.279 of 2017, Writ
Petition (C) No.995 of 2020, Writ Petition (C) No.991 of 2020, Misc.
Application No.1654 of 2020 In Writ Petition (C) No.279 of 2017, Writ
Petition (C) No.1085 of 2020, Misc. Application No.1811 of 2020 In
Writ Petition (C) No.279 of 2017, Civil Appeal No.3598 of 2020 (@
SLP (C) No.11612 of 2020)
K.K. Venugopal, AG, Balbir Singh,  S.V.Raju, ASGs,  Arvind P.
Datar, C.A. Sundaram, Ms. Priya Hingorani, Vikas Singh, Ms. Anitha
Shenoy, R Balasubramanium, A.S. Chandhiok, Virender Ganda, M.S.
Ganesh, Sidharth Luthra, Balasubramanian, C.S. Vaidyanathan, Guru
Krishnakumar, Rakesh Kumar Khanna, Gautam Misra,  P.S.Narasimha,
Sr.Advs., Rahul Unnikrishnan, T.V.S. Raghavendra Sreyas, Naveen
Hegde, N Sai Vinod, A. K. Behera, V.K. Verma, Zafar Inayat, Ms.
Rohini Musa, Abhishek Gupta, Mohan Kumar, Anil Kumar Trivedi, Rajiv
Manglik, Ankur Chibber, Sandeep Bansal, Ms. Rashmi Singh, Ms. Neetu
Singh, Arun Kumar Vashisht, Piyush Sharma, Ms. Ritu Bhardwaj, Rajesh
Jain, Mohit D. Ram, Ajay Bansal, Kuldip Singh, Gaurav Yadav, Ms.
Veena Bansal, Rupesh Kumar, Rajeev Sharma, Ms. Neelam Sharma,
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261
Ms. Pankhuri Shrivastava, Alekshendra Sharma, Ms. Deepeika Kalia,
Kapish Seth, Mrintyunjai Singh, Manjul Bajpai, Tushar Singh,
Parthasarathy Bose, Mohd. Arif, Akhilesh Yadav, Nageshwara Rao, Vivek
Sharma, Ms. Srishti Agnihotri, Ms. Meera Gopal, Ms. Sanjana Grace
Thomas, Ms. Anmol Gupta, Zoheb Hossain, Ankur Talwar, Chinmayee
Chandra, Ms. Shraddha Deshmukh, Sanjeev Menon, Arvind Kumar
Sharma, Raj Shekhar Rao, Mohit D. Ram, Ms. Aditi Gupta, Areeb Y.
Amanullah, Avesh Chaudhary, Ms. Amita Singh Kalkal, Satyajit A. Desai,
Vipul Ganda, Satya Kam Sharma, Ms. Anagha S. Desai, Ms. Aastha
Trivedi, Ms. Guresha Bhambra, Ritesh Kumar, Ms. Simran Kohli, Tejasvi
Chaudhry, Ms. Rukhsana Choudhury, Seshachary Komanduri, Ms. Sakshi
Kakkar, Shakti Singh, Ms. Ankita Tiwari, Ayush Kaushik, Manan Popli,
B.K. Prasad, Arvind Kumar Sharma, Ms. Anil Katiyar, P A Noor
Muhamed, Ms. Giffara S., Bilal Niamathulla, Ms. Uxana P.N., Sameer
Abhyankar, Nalin Talwar, Amish Tandon, Ayush Beotra, Varun Tandon,
Ms. Megha Choubey, M.S. Bharat, Madhan Babu, A. Prasanna Venkat,
Deepayan Mandal, T. V. S. Raghavendra Sreyas, Rajesh Kumar, Rishi
Jain, Sanjeev Bhandari, Amit Dhall, I.P.Singh, Sushant Bali, Ms. Spriha
Bhandari, Viresh B. Saharya, Himanshu Mehra, Anurag, Ms. Nidhi
Jaswal, Sriram P., J.Sai Deepak, Guruswamy Nataraj, Ms. Pooja Dhar,
Avinash K.Sharma, Surya Prakash, Ms. Sindoora, M/S. Kmnp Law,
Kawaljit Singh Bhatia, Deepayan Mandal, Sonal Jain, Sameer Abhyankar,
Ms. Sairica Raju, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
1. This Court is once again, within the span of a year, called upon
to decide the constitutionality of various provisions concerning the
selection, appointment, tenure, conditions of service, and ancillary matters
relating to various tribunals, 19 in number, which act in aid of the judicial
branch. That the judicial system and this Court in particular has to live
these déjà vu moments, time and again (exemplified by no less than
four constitution bench judgments) in the last 8 years, speaks profound
volumes about the constancy of other branches of governance, in their
insistence regarding these issues. At the heart of this, however, are stakes
far greater: the guarantee of the rule of law to each citizen of the country,
with the concomitant guarantee of equal protection of the law. This
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
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judgment is to be read as a sequel, and together with the decision of the
Constitution Bench in Rojer Mathew v. South Indian Bank Limited1.
2. The core controversy arising for this Court’s consideration is
the constitutional validity of the “Tribunal, Appellate Tribunal and other
Authorities [Qualification, Experience and Other Conditions of Service
of Members] Rules, 2020” (hereinafter referred to as “the 2020 Rules”).
3. Before considering the merits of the case, it is necessary to
refer to the events preceding the issuance of the 2020 Rules for a better
understanding of the dispute. Like many other nations, India recognized
the need for Tribunalisation of justice to provide for adjudication by persons
with ability to decide disputes in specific fields as well as to provide
expedited justice in certain kinds of cases. Part XIV-A was inserted in
the Constitution of India by the Constitution (42nd Amendment) Act, 1976.
Article 323-A enables the Parliament to constitute administrative tribunals
for adjudication of the disputes relating to the recruitment and conditions
of service of persons appointed to public posts in connection with the
affairs of the Union or of any State or any local or other authority.
According to Article 323-B, the appropriate Legislature may constitute
Tribunals for adjudication of any dispute, complaints, or other offences
with respect to all or any of the matters specified in Clause (2)
therein.
The vires of the Administrative Tribunals Act, 1985 (enacted by
Parliament in furtherance of Article 323A, for setting up administrative
tribunals for adjudication of service disputes of public servants) was
challenged in proceedings under Article 32 of the Constitution of India.
Two questions that were posed in the said Writ Petition related to the
exclusion of jurisdiction of the High Court under Articles 226 and 227 of
the Constitution in service matters, the composition of the administrative
Tribunal and the mode of appointment of Chairman, Vice-Chairman and
Members.  While holding that the bar on jurisdiction of the High Courts’
cannot be a ground of attack, this Court in S.P. Sampath Kumar v.
Union of India2 held that the Tribunal “should be a real substitute of
the High Courts not only in form and de jure but in content and de
facto”. The Central Government was directed to make modifications to
the Administrative Tribunals Act, 1985 pertaining to the composition of
the Tribunal to ensure selection of proper and competent people to the
posts of Presiding Officers of the Tribunal.
1 (2020) 6 SCC 1
2 (1987) 1 SCC 124
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4. The judgment in S.P. Sampath Kumar (supra) was referred
to a larger Bench for re-consideration in view of later rulings, notably
R.K. Jain v. Union of India3 which had called for a review with respect
to functioning of tribunals.  In L. Chandra Kumar v. Union of India,4
this Court held that the power of judicial review vested in the High Courts
and this Court under Articles 226 and 227, and 32 is a part of the basic
structure of the Constitution. Therefore, the Court held that the Tribunals
cannot act as substitutes of the High Courts and this Court, and that
their functioning is only supplementary and that all decisions of
administrative Tribunals will be subject to scrutiny before a Division Bench
of the respective High Courts. Addressing the issue of the dependence
of tribunals on the Executive for administrative requirements, a
recommendation was made for creation of a single umbrella organisation
which will be an independent supervisory body to oversee the working
of the Tribunals. This Court was also of the opinion that the Ministry of
Law and Justice, Government of India should be the nodal Ministry.
5. Part I-B and Part I-C were inserted in the Companies Act,
1956 providing for the constitution of the National Company Law Tribunal
(NCLT) and the National Company Law Appellate Tribunal (NCLAT).
Madras Bar Association filed a Writ Petition in the Madras High Court
challenging the vires of the above provisions on the grounds of violation
of rule
of law, doctrine of separation of powers and the independence of
the judiciary, which are essential features of the basic structure of the
Constitution. The Madras High Court allowed the Writ Petition, which
was subject matter of several appeals which were disposed of by this
Court in Union of India v. R. Gandhi, President, Madras Bar
Association5. This Court was of the opinion that while it cannot be said
that the Legislature is denuded the power to transfer judicial functions
performed by courts to Tribunals, nevertheless independent judicial
Tribunals for determination of the rights of citizens, and for adjudication
of the disputes and complaints of the citizens, is a necessary concomitant
of the rule of law. It was held in the above judgment that judicial
independence and separation of judicial power from the executive, are
part of common law traditions implicit in a Constitution like ours. The
creation of the NCLT and NCLAT was upheld. However, the defects
found in Parts I-B and I-C of the Companies Act, 1956 were directed to
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
3 [1993] 4 SCC 119
4 (1997) 3 SCC 261
5 (2010) 11 SCC 1
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be rectified by suitable amendments with modifications suggested by
this Court in order to uphold the judicial independence of the Tribunals.
The suggestions pertained to composition of the Search-cum-Selection
Committee (for appointment of members of the tribunals), qualifications
for appointment, and service conditions of members of the Tribunals.
Later, Madras Bar Association had assailed the constitutional validity of
the National Tax Tribunal Act, 2005. This Court held the National Tax
Tribunal Act, 2005 to be unconstitutional.6 Nonetheless, the vesting of
adjudicatory functions in Tribunals was held to be not violative of the
basic structure of the Constitution. The Companies Act, 2013 replaced
the earlier Act of 1956 in which amendments were made to provisions
relating to the establishment of NCLT and NCLAT. A Writ Petition was
filed under Article 32 by the Madras Bar Association questioning the
amendedprovisions of Chapter XXVII of the Companies Act, 2013, and
more particularly Sections 408, 409, 411(3), 412, 413, 425, 431 and 434.
The complaint of the Madras Bar Association in the said Writ Petition
was that the offending provisions were analogous to the provisions in
the 1956 Act which were found to be unconstitutional by this Court in
Union of India v. Madras Bar Association (2010) (supra). The
constitutional validity of the provisions in Chapter XXVII of the Companies
Act, 2013 was upheld by a judgment in
Madras Bar Association v.
Union of India7. However, this Court was of the view that certain
provisions relating to composition of the Search-cum-Selection
Committee and qualification of Members of the Tribunals are invalid as
they are contrary to the directions issued by the earlier judgment in Union
of India v. Madras Bar Association (2010) (supra).
6. By the Finance Act, 2017, amendments were made to certain
Acts to provide for merger of Tribunals and other authorities, and
conditions of service of Chairpersons, Members, etc. According to Section
183 of the Finance Act, 2017, the provisions of Section 184 shall apply to
the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,
Vice-President, Presiding Officer or Member of the Tribunal or Appellate
Tribunal or other authorities, as specified under Column (2) of the Eighth
Schedule to the Finance Act, 2017 on and from the appointed day i.e.
26.05.2017. It was further provided that Section 184 shall not apply to
those holding such office immediately before the appointed day. Section
6 Madras Bar Association v. Union of India, (2014) 10 SCC 1.
7 (2015) 8 SCC 583
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184 empowered the Central Government to make rules to provide for
qualifications, appointment, term of office, salaries and allowances,
resignation, removal and other terms and conditions of service of the
Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,
Presiding Officer, Vice-President, or Member of the Tribunal or the
Appellate Tribunal or other authorities as specified in Column (2) of the
Eighth Schedule to the 2020 Rules. Maximum tenure of the
aforementioned persons was fixed as five years.  Chairperson, Chairman
or Presiding Officer of the Tribunals cannot continue beyond 70 years.
Likewise, the Vice-Chairperson, Vice-Chairman, Vice-President,
Presiding Officer or any other Member shall be entitled to continue till
they attain the age of 67 years. The validity of the Finance Act, 2017
and the Tribunal, Appellate Tribunal and other Authorities (Qualification,
Experience and Other Conditions of Service of Members) Rules, 2017
(hereinafter referred to as “the 2017 Rules”) came up for consideration
before this Court in Rojer Mathew v. South Indian Bank Limited8.
This Court formulated the following issues for consideration:
“86.1. (I.) Whether the “Finance Act, 2017” insofar as it
amends certain other enactments and alters conditions of
service of persons manning different Tribunals can be termed
as a “Money Bill” under Article 110 and consequently is
validly enacted?
86.2. (II.) If the answer to the above is in the affirmative then
whether Section 184 of the Finance Act, 2017 is
unconstitutional on account of excessive delegation?”
86.3 III. If Section 184 is valid, Whether Tribunal, Appellate
Tribunal and other Authorities (Qualifications, Experience
and other Conditions of Service of Members) Rules, 2017
are in consonance with the Principal Act and various
decisions of this Court on functioning of Tribunals?
86.4 IV. Whether there should be a Single Nodal Agency for
administration of all Tribunals?
86.5 V. Whether there is a need for conducting a Judicial
Impact Assessment of all Tribunals in India?
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
8 (2020) 6 SCC 1
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86.6 VI. Whether judges of Tribunals set up by Acts of
Parliament under Articles 323-A and 323-B of the Constitution
can be equated in ‘rank’ and ‘status’ with Constitutional
functionaries?
86.7 VII. Whether direct statutory appeals from Tribunals to
the Supreme Court ought to be detoured?
86.8 VIII. Whether there is a need for amalgamation of existing
Tribunals and setting up of benches.”
7. The issue pertaining to whether the Finance Act, 2017 was a
“Money Bill” (and if not, the need for it to be passed by the Rajya
Sabha) was referred to a larger Bench and it was held that Section 184
of the Finance Act, 2017 does not suffer from excessive delegation of
legislative functions. The 2017 Rules were struck down as being contrary
to the principles of the Constitution as interpreted by various decisions
of this Court (including those previously referred to herein). The Central
Government was directed to re-formulate the Rules strictly in conformity
and in accordance with the principles delineated by this Court in its earlier
judgments read with the observations made in the judgment in Rojer
Mathew (supra). Non-discriminatory and uniform conditions of service
including assured tenure were directed to be formulated by the Central
Government in the new set of Rules. A Writ of Mandamus was issued to
the Ministry of Law & Justice to carry out a judicial impact assessment
for all the Tribunals. Appointments to the Tribunals,
Appellate Tribunals
and the other Authorities were directed to be held in accordance with
the respective statutes which governed the conditions of service of
members of Tribunals before the enactment of the Finance Act, 2017 till
a fresh set of Rules were made by the Central Government.  The Union
of India was granted liberty to seek modification of the said order after
fresh Rules are framed.
8. Thereafter, by a Notification dated 12.02.2020, the Central
Government in exercise of the power conferred by Section 184 of the
Finance Act, 2017 made the impugned 2020 Rules. The 2020 Rules
which deal with the qualification and appointment of members by
recruitment, procedure for inquiry into misbehavior, House Rent
Allowance and other Conditions of Service are the subject matter of
challenge in these cases before us and will be dealt with in detail in the
succeeding paragraphs.
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9. Pursuant to the liberty granted by this Court in the judgment of
Rojer Mathew (supra), the Union of India filed Miscellaneous Application
No.1152 of 2020 placing the 2020 Rules before this Court and seeking a
direction that the 2020 Rules would apply to all persons appointed as
Members, President, Chairperson, etc. of Tribunals after the appointed
day i.e. 26.05.2017. Several applications were filed by Bar Associations
and the Members of the Tribunals seeking directions to fill up the vacant
posts by making appointments to the Tribunals and for clarifications relating
to the retrospective operation of the 2020 Rules. The Madras Bar
Association filed a Writ Petition under Article 32 seeking a declaration
that the 2020 Rules are ultra vires of Article 14, 21 and 50 of the
Constitution apart from being violative of the principles of separation of
powers and independence of the judiciary. According to the Writ Petitioner,
the 2020 Rules were also contrary to the earlier judgments of this Court
in Union of India v. Madras Bar Association (2010) (supra)9, Madras
Bar Association v. Union of India (2014) (supra)10 and Rojer
Mathew(supra). Other Writ Petitions filed in the High Courts were
transferred to this Court.
10. We requested Mr. Arvind P. Datar, learned Senior Counsel
who has been actively associated with the litigation from the beginning
and who was appointed as Amicus Curiae in the earlier rounds to assist
this Court as Amicus Curiae to which he
readily and graciously accepted.
We have heard Mr. Arvind P. Datar, learned Senior Counsel (Amicus
Curiae), Mr. Mukul Rohtagi, Mr. C.A. Sundaram, learned Senior Counsel,
Mr. Vikas Singh, learned Senior Counsel, Ms. Anitha Shenoy, learned
Senior Counsel, Mr. K.K. Venugopal, learned Attorney General for India,
Mr. Balbir Singh, learned Additional Solicitor General, Mr. S.V. Raju,
learned Additional Solicitor General, Mr. R. Balasubramanium, learned
Senior Counsel, Mr. A.S. Chandhiok, learned Senior Counsel, Mr. Virender
Ganda, learned Senior Counsel, Mr. M.S. Ganesh, learned Senior
Counsel, Mr. Sidharth Luthra, learned Senior Counsel, Mr. C.S.
Vaidyanathan, learned Senior Counsel, Mr. Guru Krishnakumar, learned
Senior Counsel, Mr. Rakesh Kumar Khanna, learned Senior Counsel,
Mr. Gautam Misra, learned Senior Counsel, Mr. P.S. Narasimha, learned
Senior Counsel and other learned counsel appearing for the parties.  For
the sake of convenience, Writ Petition (Civil) No.804 of 2020 filed by
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
9 (2010) 11 SCC 1
10 (2014) 10 SCC 1
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the Madras Bar Association is taken as the lead case.  The points raised
in the said Writ Petition will broadly cover all the issues that have been
the subject matter of discussion during the course of the hearing of this
case.
11. The main issues raised in the Writ Petition are that the 2020
Rules are unconstitutional as:
a) The Search-cum-Selection Committees provided for in the 2020
Rules did not conform to the principles of judicial dominance;
b) Appointment of persons without judicial experience to the posts
of Judicial Members/ Presiding Officer/ Chairpersons is in
contravention to the earlier judgments of this Court;
c) The term of office of the Members for four years is contrary
to the earlier decisions of this Court;
d) Advocates are not being made eligible for appointment to most
of the Tribunals;
e) Administrative control of the executive in matters relating to
appointments and conditions of service is violative of the
principles of separation of powers and independence of judiciary
and demonstrates_non-application of mind.
NATIONAL TRIBUNALS COMMISSION:
12. Mr. Datar, learned Amicus Curiae submitted that there is an
imperative need for the Tribunals to function independently and free
from executive control. Tribunals which are exercising power once vested
with the High Courts and adjudicating disputes should be completely
independent to infuse confidence in the mind of the litigant public.  He
relied upon
the observations of Vivian Bose, J. in Bidi Supply Co. v.
Union of India11 which are as follows:
“The heart and core of a democracy lies in the judicial
process, and that means independent and fearless judges free
from executive control brought up in judicial traditions and
trained to judicial ways of working and thinking.”
11 (1956) SCR 267
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13. Mr. Datar also referred to the Reports of the Franks12 and
Leggatt13 Committees which describe the role of Tribunals in the United
Kingdom in a detailed manner. Mr. Datar brought to our notice that the
recommendations of the Leggatt Committee were cited with approval in
the judgment of this Court in Union of India v. Madras Bar Association
(2010) (supra). According to the learned Amicus Curiae, the
administrative support is provided by a Department of the Government
of India, the Secretary of which is a Member of the Search-cum-Selection
Committee. He cited the judgment of this Court in L. Chandra Kumar
(supra) to argue that there should be a wholly independent agency for
the administration of all the Tribunals. The learned Amicus Curiae also
brought to our notice a statement made by Mr. Arun Jaitley, the then
Minister of Law and Justice on the floor of the Parliament on 02.08.2001
that there was a proposal to set up a Central Tribunals Division.
According to the learned Amicus Curiae, setting up a National Tribunals
Commission as a supervisory body over the Tribunals would go a long
way in improving the effective functioning of the Tribunals and enhancing
the public image of the Tribunals. The mounting arrears in the Tribunals
is mainly due to the delay in filling up the vacancies of the Presiding
Officers and members of the Tribunals. The learned Amicus Curiae
suggested that there should be a National Tribunals Commission manned
by retired Judges of
the Supreme Court, Chief Justices of the High Courts
and Members from the Executive which will have a full-time Secretary
performing the following functions:
a) Selection of candidates;
b) Re-appointment of candidates;
c) Conducting of inquiry against Members;
d) Sanction leave of Members wherever necessary;
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
12 the Franks Report of 1957 was issued by a British committee of inquiry chaired by
Sir Oliver Franks; the committee was set up by the Lord Chancellor, in view of concerns
voiced with regard to the range, and diversity of tribunals, uncertainty regarding the
procedures they followed and lack of cohesion and supervision.
13 Finalized in 2001, the  Sir Andrew Leggatt Committee reviewed the existing tribunal
system in UK in its report ‘Tribunals for Users – One System, One Service ’. The
Report, highlighted concerns in the court system, such as delay, expense, technicality
and formality, lack of expertise etc and recommended, a new ‘independent, coherent,
professional, cost-effective, user friendly’ and structurally reformed Tribunal system
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e) Monitor the functioning of the Tribunals, in particular,
the_arrears and disposal of cases and filling up of vacancies
and ensuring adequate infrastructure; and
f) Ensure adequate infrastructure and IT support.
14. The learned Attorney General was also of the opinion that
constitution of a National Tribunals Commission would provide a solution
to the existing problems and ensure the smooth functioning of the
Tribunals.
15. Docket explosion and mounting arrears are serious problems
faced by the justice system in this country. Initially, creation of Tribunals
was understood to provide a solution to the problems and to ease the
burden on the Constitutional Courts. Specialized Tribunals were set up
to meet the exigencies of adjudication of disputes in some branches of
law. A constant complaint has been that the Tribunals are not free from
the Executive control and that they are not perceived to be independent
judicial bodies. There is an imperative need to ensure that the Tribunals
discharge the judicial functions without any interference of the Executive
whether directly or indirectly.
16. This Court has been repeatedly urging the Union of India to
set up a single umbrella organization which would be an independent
body to supervise the functioning of the Tribunals and ensure that the
independence of the Members of the Tribunals is maintained. For the
first time, this Court in its judgment in L. Chandra Kumar (supra)
persuaded the Government of India to have the Ministry of Law as the
nodal Ministry which would appoint an independent supervisory body to
oversee the working of the Tribunals. The observations in L. Chandra
Kumar are to the following effect:
“96. ...The situation at present is that different Tribunals
constituted under different enactments are administered by
different administrative departments of the Central and the
State Governments. The problem is compounded by the fact
that some Tribunals have been created pursuant to Central
Legislations and some others have been created by State
Legislations. However, even in the case of Tribunals created
by Parliamentary legislations, there is no uniformity in
administration. We are of the view that, until a wholly
independent agency for the administration of all such
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Tribunals can be set-up, it is desirable that all such Tribunals
should be, as far as possible, under a single nodal Ministry
which will be in a position to oversee the working of these
Tribunals. For a number of reasons that Ministry should
appropriately be the Ministry of Law. It would be open for
the Ministry, in its turn, to appoint an independent supervisory
body to oversee the working of the Tribunals. This will ensure
that if the President or Chairperson of the Tribunal is for
some reason unable to take sufficient interest in the working
of the Tribunal, the entire system will not languish and the
ultimate consumer of justice will not suffer. The creation of a
single umbrella organisation will, in our view, remove many
of the ills of the present system. If the need arises, there can
be separate umbrella organisations at the Central and the
State levels. Such a supervisory authority must try to ensure
that the independence of the members of all such Tribunals is
maintained. To that extent, the procedure for the selection of
the members of the Tribunals, the manner in which funds are
allocated for the functioning of the Tribunals and all other
consequential details will have to be clearly spelt out.”
17. In para 70 of Union of India v. Madras Bar Association
(2010) (supra), this Court deprecated the practice of administrative
support from the Departments other than the Ministry of Law and Justice.
Dependence on the parent Ministry or departments by
the Members of
the Tribunal for their facilities and administrative needs was found to be
contrary to the principle of independence of the judiciary. Later, the
learned Amicus Curiae submitted ‘a concept note’ on the National
Tribunals Commission which was approved by this Court in Rojer
Mathew v. South Indian Bank Limited14.  This Court was of the opinion
that an autonomous oversight body should be established for recruitment
of members and functioning of the Tribunals. In fact, the Court in Rojer
Mathew (supra) even held that control of the tribunals by the executive
is fraught and undermines their independence:
“168. We are in complete agreement with the analogy elucidated
by the Constitution Bench in the/Fourth Judges Case/(supra)
for compulsory need for exclusion of control of the Executive
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
14 (2018) 16 SCC 341
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over quasi-judicial bodies of Tribunals discharging responsibilities
akin to Courts. The Search-cum-Selection Committees as
envisaged in the Rules are against the constitutional scheme
inasmuch as they dilute the involvement of judiciary in the process
of appointment of members of tribunals which is in effect an
encroachment by the executive on the judiciary.”
18. The suggestions made by the learned Amicus Curiae regarding
the setting up of All India Tribunal Service on the pattern prevalent in the
United Kingdom was accepted. This Court was convinced that the
performance and functioning of the Members of the Tribunals must be
reviewed by the said independent body in the same way as
superintendence by the High Courts under Article 235 of the Constitution.
By an order dated 07.05.2018, this Court in fact, recommended
constitution of a wholly independent agency to oversee the working of
the Tribunals.
19. While considering the vires of validity of the 2017 Rules, this
Court in Rojer Mathew (supra) referred to the current problems faced
by the Tribunals. Administration of the Tribunals by the sponsoring or
parent Ministry or Department concerned and dependence for financial,
administrative or other facilities by the Tribunals on the said Department
which is a litigant before them are some of the serious problems highlighted
by this Court. There is a likelihood of the independence of adjudication
process being compromised
in a situation where the Tribunal is made
dependent for its needs on a litigant. The need for financial independence
of the Tribunals has been dealt with by this Court in Rojer Mathew
(supra). A direction was given to the Ministry of Finance to earmark
separate and dedicated funds for the Tribunals from the Consolidated
Fund of India so that the Tribunals will not be under the financial control
of the parent Departments. We reiterate the importance of the constitution
of an autonomous oversight body for recruitment and supervision of the
performance of the Tribunals. It is high time that the observations and
suggestions made in this regard by this Court shall be implemented by
the Union of India. An independent body headed by a retired Judge of
the Supreme Court supervising the appointments and the functioning of
the Tribunals apart from being in control of any disciplinary proceedings
against the Members would not only improve the functioning of the
Tribunals but would also be in accordance with the principles of judicial
independence. We also notice that in the final directions and conclusions
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recorded in Roger Mathew (supra)15, the wisdom or legality of setting
up such an independent oversight body was not doubted and it was
notreferred to a larger Bench, since the view in L. Chandra Kumar on
this point was not doubted.
20. In view of the preceding discussion, we direct the Union of
India to set up a National Tribunals Commission as suggested by this
Court by its order dated 07.05.2018 at the earliest. Setting up of such
Commission would enhance the image of the Tribunals and instill
confidence in the minds of the litigants. Dependence of the Tribunals for
all their requirements on the parent Department will not extricate them
from the control of the executive. Judicial independence of the Tribunals
can be achieved only when the Tribunals are provided the necessary
infrastructure and other facilities without having to lean on the shoulders
of the executive. This can be achieved by establishment of an independent
National Tribunals Commission as suggested above. To stop the
dependence of the Tribunals on their parent Departments for routing
their requirements and to ensure speedy administrative decision making,
as an interregnum measure, we direct that there should be a separate
“tribunals wing” established in the Ministry of Finance, Government of
India to take up, deal with and finalize requirements of all the Tribunals
till the National Tribunals Commission is established.
SEARCH-CUM-SELECTION COMMITTEE:
21. The contention of the learned
Amicus Curiae is that the
composition of the Search-cum-Selection Committees to make
recommendations for appointment as Chairman or Chairperson or
President and the other members of the Tribunals is contrary to the
requirements of judicial dominance as held by the judgments of this Court.
Mr. Datar submitted that the Schedule to the 2020 Rules provides for
the Search-cum-Selection Committees for all the 19 Tribunals which
broadly consist of the Chief Justice of India or a Judge of the Supreme
Court nominated by him (who will serve as the Chairperson of the Search-
cum-Selection committee), outgoing Chairman or Chairperson or President
of the Tribunal in case of appointment of the Chairman or Chairperson
or President of the Tribunal or the sitting Chairman or Chairperson or
President of the Tribunal in case of appointment of other members of
the Tribunal and two Secretaries to the Government of India. He stated
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
15 See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money
Bills to a larger bench.
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that the Search-cum-Selection Committees cannot have the Secretaries
of the sponsoring departments as its members, as held by this Court in
Madras Bar Association v. Union of India (2014) (supra).
22. During the course of arguments, the learned Attorney General
submitted that the 2020 Rules would be amended providing for a casting
vote to the Chairperson of the Search-cum-Selection Committee to allay
the apprehension of the petitioner. In that event, judicial dominance in
the Search-cum-Selection Committee can be maintained as the Chief
Justice of India or his nominee and the Presiding Officer of the Tribunal
who is normally a retired Judge of the Supreme Court or a retired Chief
Justice of a High Court, who represent the judiciary, along with a casting
vote to the Chief Justice of India or his nominee, will be in majority in the
Search-cum-Selection Committee. In response to the submission of the
learned Attorney General, Mr. Datar argued that there are some
Tribunals where the Presiding Officer of the Tribunal is not a retired
Judge of the Supreme Court or Chief Justice of the High Court or Judge
of a High Court. According to Mr. Datar, the Selection Committee should
consist of the Chief Justice of India or his nominee along with another
Judge of the Supreme Court and two Secretaries who are not from the
sponsoring departments with a casting vote to the Chief Justice of India
or his nominee.
23. The learned Attorney
General for India in his usual fairness
submitted that the composition of the Search-cum-Selection Committees,
according to the 2020 Rules consist of the Chief Justice of India or his
nominee, the Chairman or Chairperson or President or the outgoing
Chairman or Chairperson or President of the Tribunal and two Secretaries
to the Government of India.  He submitted that there has been no instance
where the Secretaries to Government disagreed with the views of the
Judge of the Supreme Court. All the decisions of the Search-cum-
Selection Committees till now have been unanimous. In any event, he
suggested that in case of a dead lock, the Chairperson of the Search-
cum-Selection Committee who is Chief Justice of India or his nominee
shall have a casting vote and the 2020 Rules will be amended accordingly
to include the casting vote to the Chairperson of the Search-cum-Selection
Committee. The learned Attorney General further submitted that in case
the Chairman or Chairperson or President of the Tribunal is himself
seeking re-appointment, the Search-cum-Selection Committee shall have
another Judge of the Supreme Court as a Member. He submitted that
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the acceptance of the request made by the petitioner that there should
be two Judges of the Supreme Court in the Search-cum-Selection
Committee will lead to practical difficulties. There are 475 members in
all the Tribunals put together and there will be frequent retirements and
to fill up the said posts, the requirement for the meetings of the Search-
cum-Selection Committees will arise on a regular basis. It might not be
possible for two Judges of the Supreme Court to spare so much time in
view of their already busy schedules. Countering the submission of the
learned Amicus Curiae that Rule 4 of the 2020 Rules is violative of the
judgments of this Court, the learned Attorney General submitted that
this Court in Union of India v. Madras Bar Association (2010) (supra)
accepted that the Secretary of the department concerned can be a
member of the Search-cum-Selection Committee. It is to be noted that
this Court held to the contrary in Madras Bar Association v. Union of
India (2014) (supra). He argued that in view of the law laid down by
this Court in Sundeep Kumar Bafna v. State of Maharashtra16 that in
case of a conflict between decisions of two Coordinate Benches of this
Court, the law laid down by the earlier Bench shall prevail. He further
stated that in a later judgment in Madras Bar Association v. Union of
India (2015) (supra) this Court approved the Search-cum-Selection
Committee consisting of the Secretary of the sponsoring department.
24. The
issue of constitution of the Search-cum-Selection
Committees for appointment to the posts of Chairperson and Members
of the Tribunal has been dealt with by this Court earlier. Section 10 FX
of the Companies Act, 1956 provided for constitution of a Search-cum-
Selection Committee consisting of the Chief Justice of India or his nominee
as the Chairperson and four Secretaries to the Government of India
from the Ministry of Finance and Company Affairs, Ministry of Labour,
and Ministry of Law and Justice respectively as Members. The validity
of Section 10 FX was challenged by the Madras Bar Association as
being violative of the principles of separation of powers and judicial
independence.  This Court in Union of India v. Madras Bar Association
(2010) (supra) while dealing with a judgment of the Madras High Court
held that Parts IB and IC of the Companies Act can be made operational
only after making suitable amendments suggested therein. In respect of
the Search-cum-Selection Committee, the amendment suggested by this
Court was that it should consist of the Chief Justice of India or his nominee
as Chairperson and another Judge of the Supreme Court and two
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
16 (2014) 16 SCC 623
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Secretaries of the Government of India from the Ministry of Finance
and Company Affairs and the Ministry of Law and Justice.  It is relevant
to mention that in the said judgment, this Court took note of the fact that
the Secretary of the sponsoring department is serving as a member of
the Search-cum-Selection Committee. This Court was of the opinion
that the Tribunals will not be considered independent unless reforms that
were implemented in the United Kingdom pursuant to the Report of the
Leggatt Committee are implemented in the Tribunals in India.
Nonetheless, this Court observed that the Secretary, Ministry of Finance
and Company Affairs can be a member of the Search-cum-Selection
Committee for appointment of members to NCLT and NCLAT.
25. In the meanwhile, the Madras Bar Association filed another
Writ Petition challenging the creation of the National Tax Tribunal. With
regard to the constitution of the Search-cum-Selection Committee for
the National Tax Tribunal, this Court in Madras Bar Association v.
Union of India (2014) (supra) observed that a party to a litigation, i.e.
the Secretary of the concerned department, cannot be permitted to
participate in the selection process for appointment to the posts of
Chairperson and Members of the Tribunal. This Court was of the opinion
that the said procedure would be contrary to the recognised constitutional
conventions reiteratedby Lord Diplock in Hinds v. R17, which is
as
follows:
“It would make a mockery of the Constitution, if the legislature
could transfer the jurisdiction previously exercisable by
holders of judicial offices to holders of a new court/Tribunal
(to which some different name was attached) and to provide
that persons holding the new judicial offices should not be
appointed in the manner and on the terms prescribed for
appointment of members of the judicature”.
26. Provisions made for the NCLT and NCLAT in the Companies
Act, 2013 were again the subject matter of challenge before this Court
in Madras Bar Association v. Union of India (2015) (supra). Section
412 of the Companies Act, 2013 deals with the selection of the Members
of the NCLT and NCLAT.  The President of the Tribunal, the Chairperson
and Judicial Members of the Appellate Tribunal shall be appointed after
consultation with the Chief Justice of India. The Search-cum-Selection
Committee for appointment of the Members of the Tribunal and the
17 (1976) 1 All ER 353 (PC)
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Technical Members of the Appellate Tribunal shall consist of the Chief
Justice of India or his nominee, a Senior Judge of the Supreme Court or
the Chief Justice of a High Court and the Secretaries of the Ministry of
Corporate Affairs, Ministry of Law and Justice and the Ministry of
Finance. In Madras Bar Association v. Union of India (2015) (supra),
this Court expressed its displeasure in the constitution of the Search-
cum-Selection Committee which is contrary to the principles laid down
in its earlier judgment in Union of India v. Madras Bar Association
(2010) (supra). Section 412 (2) of the Companies Act, 2013 was held to
be not valid as it was found to be against the binding precedents of this
Court in Union of India v. Madras Bar Association (2010) (supra). A
direction was issued to remove the deficiency in the constitution of the
Search-cum-Selection Committee by bringing the same into accord with
sub-para (viii) of para 120 of the judgment in Union of India v. Madras
Bar Association (supra).
27. The 2017 Rules were made in exercise of the powers conferred
under Section 184 of the Finance Act, 2017. Rule 4 provides for method
of recruitment to the post of Chairman or Chairperson or President and
the Members of the Tribunals. Under the 2017 Rules, the Search-cum-
Selection Committee consisted of the Chief Justice of India or his nominee
as the Chairperson and the Chairman of the Tribunal along with the
Secretaries to Government. While striking down
the 2017 Rules, this
Court in Rojer Mathew (supra) commented that the lack of judicial
dominance in the Search-cum-Selection Committee is in direct
contravention of the doctrine of separation of powers and is an
encroachment on the judicial domain18 This Court further observed that
excessive interference by the executive in appointment of the members
would be detrimental to the independence of judiciary and an affront to
the doctrine of separation of powers. The principles laid down in the
aforementioned judgments are binding precedents which have to be
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
18 It was held that
 “163.  We are in agreement with the contentions of the Learned Counsel for the
petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee
is in direct contravention of the doctrine of separation of powers and is an encroach-
ment on the judicial domain. The doctrine of separation of powers has been well
recognised and re-interpreted by this Court as an important facet of the basic structure
of the Constitution, in its dictum in Kesavananda Bharati  v. State of Kerala, and several
other later decisions. The exclusion of the Judiciary from the control and influence of the
Executive is not limited to traditional Courts alone, but also includes Tribunals since
they are formed as an alternative to Courts and perform judicial functions.”
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implemented by the Respondent. However, the 2020 Rules which are in
challenge in the Writ Petitions replicate the 2017 Rules in respect of the
constitution of the Search-cum-Selection Committees, insofar as they
do not ensure judicial dominance. We appreciate the stand taken by the
learned Attorney General that a casting vote will be given to the Chief
Justice of India or his nominee as the Chairperson of the Search-cum-
Selection Committee. We also accept the submission of the learned
Attorney General that normally the Chairperson of the Tribunal would
be a retired Judge of the Supreme Court or the Chief Justice of a High
Court. As such, two members of the judiciary with a casting vote to the
Chairperson of the Search-cum-Selection Committee should ensure
judicial dominance over the selection process and take care of the
grievances of the Writ Petitioner. Mr. Datar submitted that there are
certain Tribunals in which the Chairperson may not be a judicial member.
In such Tribunals, we are of the opinion that the Search-cum-Selection
Committee should have a retired Judge of the Supreme Court or a retired
Chief Justice of a High Court nominated by the Chief Justice of India in
place of the Chairperson of the Tribunal.
28. The learned Attorney General stated that the 2020 Rules would
be amended to reflect that whenever the re-appointment of the Chairman
or Chairperson or President of a Tribunal is considered by the
Search-
cum-Selection Committee, the Chairman or Chairperson or President of
the Tribunal shall be replaced by a retired Judge of the Supreme Court
or a retired Chief Justice of a High Court nominated by the Chief Justice
of India. We approve this submission of the Attorney General.
29. It has been repeatedly held by this Court that the Secretaries
of the sponsoring departments should not be members of the Search-
cum-Selection Committee. We are not in agreement with the submission
of the learned Attorney General that the Secretary of the sponsoring
department being a member of the Search-cum-Selection Committee
was approved by this Court in Union of India v. Madras Bar
Association (2010) (supra) and it would prevail over the later judgment
in Madras Bar Association v. Union of India (2014) (supra). We
have already referred to the findings recorded in paragraph 70 of the
judgment in Union of India v. Madras Bar Association (2010) (supra)
that the sponsoring department should not have any role to play in the
matter of appointment to the posts of Chairperson and members of the
Tribunals. Though the ultimate direction of the Court was to constitute a
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Search-cum-Selection Committee for appointment of members to NCLT
and NCLAT of which Secretary, Ministry of Finance and Company Affairs
is a member, the ratio of the judgment is categorical, which is to the
effect that Secretaries of the sponsoring departments cannot be members
of the Search-cum-Selection Committee. We, therefore, see no conflict
of opinion in the two judgments as argued by the learned Attorney General.
However, we find merit in the submission of the learned Attorney General
that the presence of the Secretary of the sponsoring or parent department
in the Search-cum-Selection Committee will be beneficial to the selection
process. But, for reasons stated above, it is settled that the Secretary of
the parent or sponsoring Department cannot have a say in the process
of selection and service conditions of the members of Tribunals. Ergo,
the Secretary to the sponsoring or parent Department shall serve as the
Member-Secretary/Convener to the Search-cum-Selection Committee
and shall function in the Search-cum-Selection Committee without a
vote.
30. The Government of India is duty bound to implement the
directions issued in the earlier judgments and constitute the Search-cum-
Selection Committees in which the Chief Justice of India or his nominee
shall be the Chairperson along with the Chairperson of the Tribunal if he
is a retired Judge of the Supreme Court or a retired Chief Justice of a
High Court and two Secretaries to the Government of India.
In case the
Tribunal is headed by a Chairperson who is not a judicial member, the
Search-cum-Selection Committee shall consist of the Chief Justice of
India or his nominee as Chairperson and a retired Judge of the Supreme
Court or a retired Chief Justice of a High Court to be nominated by the
Chief Justice of India and Secretary to the Government of India from
the Ministry of Law and Justice and a Secretary of a department other
than the parent or sponsoring department to be nominated by the Cabinet
Secretary. As stated above, the Secretary of the parent or sponsoring
department shall serve as the Member-Secretary or Convener, without
a vote.
31. Rule 4 (2) of the Rules postulates that a panel of two or three
persons shall be recommended by the Search-cum-Selection Committee
from which the appointments to the posts of Chairperson or members of
the Tribunal shall be made by the Central Government. The learned
Amicus Curiae voiced serious objections to Rule 4(2) on the ground that
it would be compromising judicial independence. According to Mr. Datar,
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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the procedure for appointment to the Tribunals should be completely
outside executive control. The learned Attorney General stated that a
panel of names consisting two or three persons is essential because
their antecedents have to be examined by the Intelligence Bureau before
appointing them to a Tribunal. He suggested that the number of persons
to be recommended can be two instead of three to limit the discretion of
the Appointments Committee of the Cabinet. The recommendations for
appointments by the Search-cum-Selection Committee should be final
and the executive should not be permitted to exercise their discretion in
the matter of appointments to the Tribunals.  Accordingly, we direct that
Rule 4(2) of the 2020 Rules shall be amended and till so amended, that it
be read as empowering the Search-cum-Selection Committee to
recommend the name of only one person for each post. However, taking
note of the submissions made by the learned Attorney General regarding
the requirement of the reports of the selected candidates from the
Intelligence Bureau, another suitable person can be selected by the
Search-cum-Selection Committee and placed in the waiting list. In case,
the report of the Intelligence Bureau regarding the selected candidate is
not satisfactory, then the candidate in the waiting list can be appointed.
TERM OF OFFICE
32. Mr. Datar argued that the term of office of the Chairperson
and the members of the
Tribunal should be for a minimum period of five
years by relying upon the judgments of this Court in S. P. Sampath
Kumar (supra), Union of India v. Madras Bar Association (2010)
(supra) and Rojer Mathew (supra). He referred to Section 184 of the
Finance Act, 2017 which stipulated the term of office shall be for a
period not exceeding five years. He submitted that in spite of this Court
holding that the tenure should be between five to seven years, the 2020
Rules have provided for only four years as the maximum term. According
to him, a term of minimum five years for the members of the Tribunals
with a right of re-appointment is mandatory. Citing Rule 9(2) of the 2020
Rules which stipulates that the term of office shall be four years or till a
person attains the age of 65 years whichever is earlier, the learned Amicus
Curiae argued that a Judge of a High Court will not get more than three
years as a member of the Tribunal after his retirement at the age of 62
years even if he is appointed immediately after his superannuation. He
mentioned that in 18 out of the 19 Tribunals governed by the 2020 Rules,
retired Judges of High Courts can be appointed either as Vice Chairperson
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or as the member. In view of the delay in making appointments, most of
such retired Judges of High Courts will normally have a very short tenure
of not more than two years. Therefore, Mr. Datar submitted that Rule 9
(2) requires to be struck down as being arbitrary.
33. According to the learned Attorney General, as the term of
four years is subject to re-appointment, it would not make much of a
difference if the term fixed is four years instead of five years. He
mentioned that due to the provision for re-appointment, eligible lawyers
who shall be appointed at the age of 45 years will have the advantage of
four or five extensions or till the said member reaches the age of 65
years.
34. This Court directed the extension of the tenure of the members
of the Tribunal from three years to seven or five years subject to their
eligibility in the case of Union of India v. Madras Bar Association
(2010) (supra). This Court was of the opinion that the term of three
years is very short and by the time the members achieve the required
knowledge, expertise and efficiency, the term would be over.  In the said
judgment it was further observed that the Tribunals would function
effectively and efficiently only when they are able to attract younger
members who have a reasonable period of service. In spite of the above
precedent, a tenure of three years was fixed for the members of Tribunals
in the 2017 Rules. While setting aside the 2017 Rules, this Court in Rojer
Mathew
(supra) held that a short period of service of three years is anti-
merit as it would have the effect of discouraging meritorious candidates
to accept the posts of judicial members in the Tribunals. In addition, this
Court was also convinced that the short tenure of members increases
interference by the executive jeopardizing the independence of judiciary.
35. The 2020 Rules are not in compliance with the principles of
law laid down in Union of India v. Madras Bar Association (2010)
(supra) and Rojer Mathew (supra) in respect of the tenure of the
members of the Tribunals in spite of this Court repeatedly holding that
short tenure of members is detrimental to the efficiency and independence
of the Tribunals. Rule 9(1) of the 2020 Rules provide for a term of four
years or till a Chairman or Chairperson or President attains the age of
70 years whichever is earlier. No rationaleexcept that four years is more
than three years prescribed in the 2017 Rules (described as too short, in
Roger Mathew (supra)) was put forward on behalf of the Union of
India.  In so far as the posts of Vice Chairman or Vice-Chairperson or
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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Vice-President and members are concerned, Rule 9(2) fixes the tenure
as four years or till they attain the age of 65 years whichever is earlier.
In view of the law laid down in the earlier judgments, we direct the
modification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules as
five years in respect of Chairman or Chairperson, Vice Chairman or
Vice-Chairperson and the members. Rule 9(1) permits a Chairman,
Chairperson or President of the Tribunal to continue till 70 years which
is in conformity with Parliamentary mandate in Section 184 of the Finance
Act. However, Rule 9(2) provides that Vice Chairman and other members
shall hold office till they attain 65 years.  We are in agreement with the
submission made by the learned Amicus Curiae that under the 2020
Rules, the Vice Chairman, Vice-Chairperson or Vice-President or
members in almost all the Tribunals will have only a short tenure of less
than three years if the maximum age is 65 years. We, therefore, direct
the Government to amend Rule 9 (1) of the 2020 Rules by making the
term of Chairman, Chairperson or President as five years or till they
attain 70 years, whichever is earlier and other members dealt with in
Rule 9(2) as five years or till they attain 67 years, whichever is earlier.
36. Section 184 of the Finance Act, 2017 provides for reappointment
of Chairpersons, Vice-Chairpersons and members of the Tribunals on
completion of their tenure. There is no
mention of reappointment in the
2020 Rules. However, the learned Attorney General submitted that the
members shall be entitled to seek reappointment. Reappointment for at
least one term shall be provided to the persons who are appointed to the
Tribunals at a young age by giving preference to the service rendered by
them.
HOUSE RENT ALLOWANCE
37. According to Rule 15 of the 2020 Rules, the Chairperson and
the other members of the Tribunals shall be entitled to house rent
allowance at the same rate admissible to officers of the Government of
India holding grade ‘A’ posts carrying the same pay. The contention of
the learned Amicus Curiae is that it is a well-known fact that it is difficult
to get Judges of High Courts of merit and ability as members of Tribunals,
particularly due to the absence of a provision for housing. Lack of housing
facilities becomes a deterrent for retired Judges from States outside
Delhi to accept appointments to the Tribunals. It will not be possible for
a retired Judge of the Supreme Court or the Chief Justice of a High
Court or a Judge of a High Court to get suitable accommodation in
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Delhi, where most of the Tribunals are situated, for Rs. 75,000/- per
month which is paid as house rent allowance. Similarly, where tribunals
have benches, members (especially those drawn from amongst
Advocates) would find it hard put to find accommodation if there is
insufficient incentive, whenever they have to move to different cities.
The learned Attorney General relied upon the observations made by this
Court in Rojer Mathew (supra) that the retired Judges of the High Court
cannot be equated with the sitting Judges of the High Court and are not
entitled to the same perquisites. It is also the submission of the learned
Attorney General that it is not possible to provide housing to all the
Presiding Officers and members of the Tribunals in view of the acute
shortage of housing in Delhi.
38. Experience has shown that lack of housing in Delhi has been
one of the reasons for retired Judges of the High Courts and the Supreme
Court to not accept appointments to Tribunals. At the same time, scarcity
of housing is also a factor which needs to be kept in mind. The only way
to find a solution to this problem is to direct the Government of India to
make serious efforts to provide suitable housing to the Chairperson and
the members of the Tribunals and in case providing housing is not possible,
to enhance the house rent allowance to Rs.1,25,000/- for members of
Tribunals and Rs.1,50,000/- for the Chairman or Chairperson or President
and Vice Chairman or Vice
Chairperson or Vice President of Tribunals.
In other words, an option should be given to the Chairperson and the
members of the Tribunals to either apply for housing accommodation to
be provided by the Government of India as per the existing rules or to
accept the enhanced house rent allowance. This direction shall be
effective from 01.01.2021.
ADVOCATES AS JUDICIAL MEMBERS
39. The learned Amicus Curiae complained of the deliberate
exclusion of the Advocates from being considered for appointment as
judicial members in a majority of Tribunals by the 2020 Rules. It was
argued that in respect of seven tribunals (such as Central Administrative
Tribunal, Income Tax Appellate Tribunal, Customs Excise and Sales Tax
Appellate Tribunal, etc.), the 2020 Rules impose a new condition whereby
Advocates without 25 years of experience are ineligible. It is submitted
that there is nothing in the provisions of the Finance Act, 2017, with
respect to exclusion, from consideration, of Advocates, nor any restrictive
condition and, on the other hand, the parent enactments and previously
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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existing rules enabled Advocates (who were eligible to be appointed as
Judges of High Courts) to be considered for appointment for these
tribunals. The learned Amicus curiae argued that it would be very difficult
for competent and successful Advocates, in the concerned field, to uproot
themselves and accept membership of tribunals, if they are to be eligible
at the late age of 50 years and resultantly, those less competent would
be willing, contrary to public interest. The Attorney General had submitted
that exclusion of Advocates was a matter of policy and that the eligibility
condition wherever they could be considered, in some tribunals of 25
years practice, was to bring about parity with members of the Indian
Legal Service, who could, in some instances be considered for appointment
as judicial members. During the submissions, the Attorney General had
fairly stated that the 2020 Rules will be amended making Advocates
eligible for appointment in the tribunals where they are presently excluded
under the 2020 Rules as judicial members provided, they have 25 years
of experience. This is in line with the previous rulings of this Court that
advocates and retired judges are to be considered as judicial members
of tribunals. Furthermore, this Court notices that the 2017 Rules did not
exclude Advocates from consideration; nor did they impose restrictive
eligibility conditions, such as 25 years of experience.
40. The learned
Amicus Curiae submitted that stipulation of 25
years of experience would be a serious handicap in selecting meritorious
candidates from among advocates. He suggested that Advocates with
the standing of 15 years at the bar should be made eligible for being
considered for appointment as judicial members to the Tribunals. The
learned Amicus Curiae further submitted that Advocates should be made
eligible for appointment to Single Member Tribunals, particularly to the
Debt Recovery Tribunals as their experience in law can be suitably
utilized. It is the submission of learned Attorney General that though the
Constitution prescribes that an Advocate having experience of 10 years
can be considered for appointment as a Judge of a High Court, normally
an Advocate is considered only after he attains the age of 45 years. He
suggested that an experience of 25 years at the Bar would make
Advocates at the age of 47-48 years eligible for appointment as judicial
members of the Tribunals. It would be attractive for the Advocates to
apply for appointment to the post of judicial members of the Tribunals
after having experience of 25 years, especially due to the provision for
re-appointment.
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41. In view of the submission of the learned Attorney General
that the 2020 the Rules will be amended to make Advocates eligible for
appointment to the post of judicial members of the Tribunals, the only
question that remains is regarding their experience at the bar. While the
Attorney General suggested that an advocate who has 25 years of
experience should be considered for appointment as a Judicial member,
the learned Amicus Curiae suggested that it should be 15 years. An
Advocate of a High Court with experience of ten years is qualified for
appointment as a Judge of the High Court as per Article 217 (2) of the
Constitution of India. As the qualification for an advocate of a High
Court for appointment as a Judge of a High Court is only 10 years, we
are of the opinion that the experience at the bar should be on the same
lines for being considered for appointment as a judicial member of a
Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for
consideration as judicial members, is therefore, contrary to Union of
India v. Madras Bar Association (2010)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 law while considering them for appointment as
judicial members.
ELIGIBILITY OF MEMBERS OF INDIAN LEGAL
SERVICE
42. The grievance of the learned Amicus
Curiae is that members
of the Indian Legal Service have been made eligible for appointment as
judicial members to some Tribunals in spite of the judgment of this Court
in Union of India v. Madras Bar Association (2010) (supra), wherein
it was held that they can only be appointed as technical members. The
contention of the Union of India is that there is a conflict of opinion in
Union of India v. Madras Bar Association (2010) (supra) and the
judgment of this Court in S.P. Sampath Kumar(supra). It was argued
that this Court in S.P. Sampath Kumar (supra) upheld the appointment
of the members of the Indian Legal Service as judicial members whereas
in Union of India v. Madras Bar Association (2010) (supra), it was
held that the members of the Indian Legal Services can only be appointed
as technical members of Tribunals. It was argued by the learned Attorney
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
19 Para 120 (i) @ page 65, 2010 (11) SCC 1 @ page 65
20 Para 27, page 608 (2015 (8) SCC 583)
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General that the judgment of this Court in S.P. Sampath Kumar (supra)
shall prevail over a later judgment as both the judgments are delivered
by Constitution Benches of five Judges. Further submission made by the
learned Attorney General is that members of Indian Legal Service are
practicing lawyers who have experience of 7 years to 13 years depending
upon the grade in which they were recruited. He also referred to the
different cadres in the Indian Legal Service which are directly related to
law such as Advocates-on-Record or instructing counsel working in the
Central Agency Section in this Court or holding the post of Director of
Prosecution in the Central Bureau of Investigation or legal advisors in
the Ministry of Law and Justice. The learned Attorney General further
submitted that the experience of the members of Indian Legal Service in
various branches of law would stand in good stead for their appointment
as judicial members. The learned Amicus Curiae does not have an
objection to members of Indian Legal Service who are practicing in
Courts as Government Advocates to be considered for appointment as
judicial members in Tribunals. But he suggested that this can be done
only by a legislative amendment in light of the law laid down in Union of
India v. Madras Bar Association (2010) (supra). He also submitted
that specialization being a mandatory requirement for Advocates should
be the same for members of the
Indian Legal Service.
43. As we have already held that Advocates are entitled to be
considered as judicial members of the Tribunals, we see no harm in
members of the Indian Legal Service being considered as judicial
members, provided they satisfy the criteria relating to the standing at the
bar and specialization required. The judgment of Union of India v.
Madras Bar Association (2010) (supra) did not take note of the above
points relating to the experience of members of Indian Legal Service at
the bar. The Indian Legal Service was considered along with the other
civil services for the purpose of holding that the members of Indian
Legal Service are entitled to be appointed only as technical members.
In the light of the submission made by the learned Attorney General and
the Amicus Curiae, we hold that the members of Indian Legal Service
shall be entitled to be considered for appointment as a judicial member
subject to their fulfilling the other criteria which advocates are subjected
to. In addition, the nature of work done by the members of the Indian
Legal Service and their specialization in the relevant branches of law
shall be considered by the Search-cum-Selection Committee while
evaluating their candidature.
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44. We would wish to emphasize here that the setting up of tribunals,
and the subject matters they are expected to deal with, having regard to
the challenges faced by a growing modern economy, are matters of
executive policy. When it comes to personnel who would operate these
tribunals (given that the issues they decide would ultimately reach this
Court, in appellate review or in some cases, judicial review), competence,
especially in matters of law as well as procedure to be adopted by such
judicialbodies, becomes matters of concern for this Court. These tribunals
discharge a judicial role, and with respect to matters entrusted to them,
the jurisdiction of civil courts is usually barred. Therefore, wherever
legal expertise in the particular domain is implicated, it would be natural
that advocates with experience in the same, or ancillary field would
provide the “catchment” for consideration for membership. This is also
the case with selection of technical members, who would have expertise
in the scientific or technical, or wherever required, policy background.
These tribunals are expected to be independent, vibrant and efficient in
their functioning. Appointment of competent lawyers and technical
members is in furtherance of judicial independence. Younger advocates
who arearound 45 years old bring in fresh perspectives. Many states
induct lawyers just after 7 years of practice directly as District Judges.
If the justice delivery system by tribunals is to
be independent and vibrant,
absorbing technological changes and rapid advances, it is essential that
those practitioners with a certain vitality, energy and enthusiasm are
inducted. 25 years of practice even with a five-year degree holder, would
mean that the minimum age of induction would be 48 years: it may be
more, given the time taken to process recommendations. Therefore, a
tenure without assured re-engagements would not be feasible. A younger
lawyer, who may not be suitable to continueafter one tenure (or is
reluctant to continue), can still return, to the bar, than an older one, who
may not be able to piece her life together again.
REMOVAL OF MEMBERS
45. Rule 8 of the 2020 Rules provides the procedure for inquiry of
misbehavior or incapacity of a member. According to the said Rule, the
preliminary scrutiny of the complaint is done by the Central Government.
If the Central Government finds that there are reasonable grounds for
conducting an inquiry into the allegations made against a member in the
complaint, it shall make a reference to the Search-cum-Selection
Committee which shall conduct an inquiry and submit the report to the
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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Central Government. The learned Amicus Curiae argued that there is
no clarity in the Rules as to whether the reports submitted by the Search-
cum-Selection Committee are binding on the Central Government.
According to Mr. Datar, it is impermissible for the Central Government
to further scrutinize the report of the Search-cum-Selection Committee
which comprises of sitting and retired Judges. He submitted that the
proper procedure to be followed in matters of complaints against the
Presiding Officers and members of the Tribunals is that a preliminary
scrutiny may be made by the Central Government and the report should
be placed before the Search-cum-Selection Committee. It is open to the
Search-cum-Selection Committee to accept or reject the preliminary
scrutiny. In case the Search-cum-Selection Committee is of the opinion
that the findings of the preliminary scrutiny are correct, then the Search-
cum-Selection Committee should be entitled to proceed further to conduct
an inquiry on its own, if it so choses. The findings of the Search-cum-
Selection Committee shall be final and the action recommended by the
Search-cum-Selection Committee shall be implemented by the Central
Government.
46. The learned Attorney General submitted that the preliminary
scrutiny done by the Central Government, according to Rule 8 (1) is only
for the purpose of weeding out frivolous complaints. The learned Attorney
General has also fairly
submitted that the recommendations made by the
Search-cum-Selection Committee shall be implemented by the Central
Government. We are in agreement with the submissions of the learned
Attorney General.
TIME LIMIT FOR APPOINTMENT
47. The learned Amicus Curiae brought to our notice that there
are several instances where appointments are delayed even after the
selections are completed by the Search-cum-Selection Committee. The
learned Attorney General also agreed that there is an imminent need for
appointments to be made in an expeditious manner, but implored that no
time be fixed for making appointments. The very reason for constituting
Tribunals is to supplement the functions of the High Courts and the other
Courts and to ensure that the consumer of justice gets speedy redressal
to his grievances. This would be defeated if the Tribunals do not function
effectively. It has been brought to our notice that there are a large number
of unfilled vacancies hampering the progress of the functioning of the
Tribunals. The pendency of cases in the Tribunals is increasing mainly
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due to the lack of personnel in the Tribunals which is due to the delay in
filling up the vacancies as and when they arise due to the retirement of
the members. There is imminent need for expediting the process of
selections and appointments to ensure speedy justice. We, therefore,
direct that the Government of India shall make the appointments to the
Tribunals within three months after the Search-cum-Selection Committee
completes the selection and makes its recommendations.
RETROSPECTIVITY OF THE 2020 RULES
48. The learned Amicus Curiae submitted that the 2020 Rules
have been made in exercise of the powers conferred by Section 184 of
the Finance Act, 2017. Rule 1(2) provides that Rules shall come into
force on the date of their publication in the Official Gazette. According
to the learned Amicus Curiae, the Rules have come into force on
12.02.2020, the date on which they were notified. He stated that it is a
well settled principle that delegated legislations such as Rules,
notifications and circulars cannot have retrospective effect unless the
parent statute itself permits such retrospective effect. He stated that
Section 183 of the Finance Act, 2017 enabled the notification of Rules
made under Section 184 to take effect from the appointed day. Under
Section 157 (a) of the Finance Act, 2017, the appointed day means such
date as the Central Government by notification in the Official Gazette
appoint. The date on which Rules were notified is 12.02.2020. The
learned Amicus Curiae relied upon the judgment of this Court in Sri
Vijayalakshmi Rice Mills v. State of A.P.21 to argue that the Rules
cannot be given retrospective effect.  He stated that the 2017 Rules
have become non est after being struck down in Rojer Mathew (supra)
and the 2020 Rules cannot be treated as an amendment or modification
of the 2017 Rules. He stressed on the point that giving retrospective
effect to 2020 Rules would result in inequitable consequences and serious
hardship. For instance, some Vice Chairpersons, Vice Presidents and
Vice Chairmen were appointed for a period of three years with an upper
age limit of 67 years under the 2017 Rules. However, under the 2020
Rules their appointment period is four years with the upper age limit of
65 years. The term of office of persons who are appointed under the
2017 Rules would be altered if the 2020 Rules are given retrospective
effect. The learned Amicus Curiae was supported by other Senior
Counsel who vehemently argued that the 2020 Rules are only prospective.
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
21 (1976) 3 SCC 37
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49. The Attorney General argued that Section 183 of the Finance
Act, 2017 provided that the Rules made under Section 184 shall have
effect from the appointed day which was 26.05.2017. As per Section
183, all persons appointed prior to 26.05.2017 would be governed by the
old Acts and Rules under which the Tribunals were established and those
who are appointed after 26.05.2017 would be governed by the 2017
Rules. The Attorney General further argued that though the 2017 Rules
were struck down by this Court in Rojer Mathew (supra), an opportunity
was given to the Government of India to frame new Rules and place
them before this Court. As the new Rules have been framed in exercise
of powers under the Finance Act, 2017, the 2020 Rules would be
effective from 26.05.2017. The Government of India has filed M.A.
No. 1152 of 2020 in Writ Petition (C) No. 279 of 2017 seeking a direction
that the 2020 Rules would apply to all persons appointed as Members,
Presidents and Chairpersons to the Tribunals after appointed day i.e.
26.05.2017 in accordance with the mandate of Section 183 of the Finance
Act.
50. Before expressing our view on this point, it would be necessary
to refer to certain interim orders that were passed by this Court in Rojer
Mathew (supra). By an order dated 09.02.2018, this Court gave certain
interim directions regarding constitution of the Search-cum-Selection
Committee and other issues in relation to appointments
to the post of
members of the Central Administrative Tribunal. The direction with which
we are concerned at present pertains to appointments that were directed
to be made pursuant to the recommendations of the interim Search-
cum-Selection Committee which shall abide by the conditions of service
stipulated in the old Acts and Rules. By an order dated 20.03.2018, the
order passed on 09.02.2018 was clarified by this Court and the tenure of
the Chairperson and the members was directed to be for a period of five
years. There is another order passed on 21.08.2018 by this Court in Writ
Petition (C) No. 279 of 2017 by which it was clarified that appointments
made to the post of members of the Customs Excise Sales Tax Appellate
Tribunal shall be for a period of five years or till the member attains the
age of 62 years. This Court clarified that the President shall continue till
he attains the age of 65 years. In respect of the Central Administrative
Tribunal, the old Rules were directed to be applied.
51. The 2017 Rules have been declared as being contrary to the
parent enactment and the principles envisaged in the Constitution and
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hence struck down by this Court in Rojer Mathew (supra). The Central
Government was directed to reformulate the Rules in conformity and in
accordance with the principles delineated by this Court in its earlier
judgment and the observations made in Rojer Mathew (supra). The
2020 Rules are made in exercise of the power conferred under Section
184 of the Finance Act which came into force on their publication in the
official Gazette as per Rule 1(2). The date of publication of the 2020
Rules is 12.02.2020. We are unable to accept the submission of learned
Attorney General that the 2020 Rules which replaced the 2017 Rules
shall come into force with effect from 26.05.2017 which was the appointed
day in accordance with the 2017 Rules. It is true that the 2017 Rules
were brought into force from 26.05.2017 and Section 183 of the Finance
Act provides for any appointment made after the appointed day shall be
in accordance with the Rules made under Section 184 of the Finance
Act, 2017. 2017 Rules which have come into force with effect from
26.05.2017 in accordance with Section 183 have been struck down by
this Court. The 2020 Rules which came into force from the date of their
publication in the Official Gazette, i.e. 12.02.2020, cannot be given
retrospective effect. The intention of Government of India to make the
2020 Rules prospective is very clear from the notification dated
12.02.2020. In any event, subordinate legislation cannot be given
retrospective effect
unless the parent statute specifically provides for
the same.22
52. As we have held that the 2020 Rules are not retrospective,
the point that remains to be determined is the applicable Rules for
appointments that were made prior to the 2020 Rules. The appointments
made during the pendency of Rojer Mathew (supra) on the date of
interim orders passed therein and appointments made after the judgment
of Rojer Mathew(supra), like the appointments made prior to the 2017
Rules are, no doubt, to be governed by the then existing parent Acts and
Rules. In view of the interim orders passed by this Court in Rojer Mathew
(supra), appointments made during the pendency of the case in this Court
are also to be governed by the parent Acts and Rules and the clarifications
issued by this Court in Rojer Mathew (supra). According to paragraph
224 of the judgment in Rojer Mathew (supra), the appointments to the
Tribunals were directed to be in terms of the respective Acts and Rules
which governed appointments to Tribunals prior to the enactment of the
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
22 ITO v. M.C. Ponnoose, (1969) 2 SCC 351; Sri Vijayalakshmi Rice Mills v. State of
A.P., (1976) 3 SCC 37.
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Finance Act, 2017. For the purpose of clarity, we hold that all
appointments made prior to the 2020 Rules which came into force on
12.02.2020 shall be governed by the parent Acts and Rules. Any
appointment made after the 2020 Rules have come into force shall be in
accordance with the 2020 Rules subject to the modifications directed in
the preceding paragraphs of this judgment.
53. The upshot of the above discussion leads this court to issue
the following directions:
(i) The Union of India shall constitute a National Tribunals
Commission which shall act as an independent body to supervise the
appointments and functioning of Tribunals, as well as to conduct
disciplinary proceedings against members of Tribunals and to take care
of administrative and infrastructural needs of the Tribunals, in an
appropriate manner. Till the National Tribunals Commission is constituted,
a separate wing in the Ministry of Finance, Government of India shall be
established to cater to the requirements of the Tribunals.
(ii) Instead of the four-member Search-cum-Selection Committees
provided for in Column (4) of the Schedule to the 2020 Rules with the
Chief Justice of India or his nominee, outgoing or sitting Chairman or
Chairperson or President of the Tribunal and two Secretaries to the
Government of India, the Search-cum-Selection Committees should
comprise of the following members:
(a) The Chief Justice of India or his nominee—Chairperson
(with
a casting vote).
(b) The outgoing Chairman or Chairperson or President of the
Tribunal in case of appointment of the Chairman or Chairperson or
President of the Tribunal (or) the sitting Chairman or Chairperson or
President of the Tribunal in case of appointment of other members of
the Tribunal (or) a retired Judge of the Supreme Court of India or a
retired Chief Justice of a High Court in case the Chairman or Chairperson
or President of the Tribunal is not a Judicial member or if the Chairman
or Chairperson or President of the Tribunal is seeking re-appointment—
member;
(c) Secretary to the Ministry of Law and Justice, Government of
India—member;
(d) Secretary to the Government of India from a department other
than the parent or sponsoring department, nominated by the Cabinet
Secretary-—member;
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(e) Secretary to the sponsoring or parent Ministry or Department—
Member Secretary/Convener (without a vote).
Till amendments are carried out, the 2020 Rules shall be read in
the manner indicated.
(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. Rule 9(2) of the 2020 Rules shall be 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) 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.
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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(viii) Rule 8 of the 2020 Rules shall be amended to reflect that the
recommendations of the Search-cum-Selection Committee in matters
of disciplinary actions shall be final and the recommendations of the
Search-cum-Selection Committee shall be implemented by the Central
Government.
(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) Appointments made under the 2020 Rules till the date of this
judgment, shall not be considered invalid, insofar as they conformed to
the recommendations of the Search-cum-Selection Committees in terms
of the 2020 Rules. Such appointments are upheld, and shall not be called
into question on
the ground that the Search-cum-Selection Committees
which recommended the appointment of Chairman, Chairperson,
President or other members were in terms of the 2020 Rules, as they
stood before the modifications directed in this judgment. They are, in
other words, saved.
(xiii) In case the Search-cum-Selection Committees have made
recommendations after conducting selections in accordance with the
2020 Rules, appointments shall be made within three months from today
and shall not be subject matter of challenge on the ground that they are
not in accord with this judgment.
(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.
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(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 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.
54. We will be failing in our duty unless we acknowledge the
invaluable assistance of Mr. Arvind Datar, learned Amicus Curiae,
Mr. K. K. Venugopal, learned Attorney General, Mr. S.V. Raju and Mr.
Balbir Singh, learned Additional Solicitors General and the other senior
counsel and advocates.
55. For the aforementioned reasons, the Writ Petitions, Transfer
Petitions, Civil Appeals and all the Applications are disposed of.
Epilogue
Dispensation of justice by the Tribunals can be effective only when
they function independent of any executive control: this renders them
credible and generates public confidence. We have noticed a disturbing
trend of the Government not implementing the directions issued by this
Court. To ensure that the Tribunals should not function as another
department under the control of the executive, repeated directions have
been issued which have gone unheeded forcing the Petitioner to approach
this Court time and again. It is high time that we put an end to this
practice. Rules are framed which are completely contrary to the directions
issued by this Court. Upon the tribunals has devolved the task of marking
boundaries of what is legally permissible and feasible (as opposed to
what is not lawful and is indefensible) conduct, in a normative sense
guiding future behavior of those subject to the jurisdictions of such
tribunals. This task is rendered even more crucial, given that appeals
against their decisions lie directly to the Supreme Court and public law
intervention on the merits of such decisions is all but excluded. Also,
these tribunals are expected to be consistent, and therefore, adhere to
their precedents, inasmuch as they oversee regulatory behavior in several
MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.
[L. NAGESWARA RAO, J.]
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key areas of the economy. Therefore, it is crucial that these tribunals
are run by a robust mix of experts, i.e. those with experience in policy in
the relevant field, and those with judicial or legal experience and
competence in such fields. The functioning or non-functioning of anyof
these tribunals due to lack of competence or understanding has a direct
adverse impact on those who expect effective and swift justice from
them. The resultant fallout is invariably an increased docket load,
especially by recourse to Article 226 of the Constitution of India. These
aspects are highlighted once again to stress that these tribunals do not
function in isolation, but are a part of the larger scheme of justice
dispensation envisioned by the Constitution and have to function
independently, and effectively, to live up to their mandate. The involvement
of this Court, in the series of decisions, rendered by no less than six
Constitution Benches, underscores the importance of this aspect. The
role of both the courts as upholders of judicial independence, and the
executive as the policy making and implementing limb of governance, is
to be concordat and collaborative. This Court expects that the present
directions are adhered to and implemented, so that future litigation is
avoided.
The Government is, accordingly, directed to strictly adhere to the
directions given above and not force the Petitioner-Madras Bar
Association, which has
been relentless in its efforts to ensure judicial
independence of the Tribunals, to knock the doors of this Court again.
Ankit Gyan
Matters disposed of.