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TMI Blog2011 (1) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to ten years should be regarded as unconstitutional has also no substance at all. The age of retirement of a Government servant has been raised from 58 years to 60 years. Initially under the unamended provisions of the Act a retired Government servant had a tenure of only two years as a Member of the Tribunal and it was noticed that he was not able to contribute much while performing duties as a Member of the Tribunal. It was felt necessary that every Member of the Tribunal should have a tenure of five years. Therefore, the provisions relating to term of office incorporated in Section 8 of the Act were amended in the year 1987 and provision was made fixing term of office of Chairman, Vice-chairman and Members at five years period – statement made by learned senior counsel that we need to place our interpretation on the provisions of the Amended Act, which further principles of Judicial independence. Passage from the book, referred to by the learned senior counsel, pertains to the legal system in American Courts and Hybrid Tribunals, which has nothing to do with our legal system. Secondly, the statement relied on by the learned senior counsel is an extract from the book of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction to the respondent to consider his case for appointment to the post of Member (J) in Tribunal advertised vide D.O. No. AI103/9/2010-AT dated 20-4-2010 on its own merit sans eligibility. 3. The Administrative Tribunals Act, 1985 [hereinafter referred to as the Act ] was amended in the year 2006 by the Administrative Tribunals (Amendment) Act, 2006. The amendments were made effective from 19-2-2007. Some of the principal changes brought about, which are relevant for the purpose of the case are, the abolition of the post of Vice-Chairman; changes in the terms of office in the form of increase in the age of superannuation of the Chairman from 65 years to 68 years and that of the other Members from 62 years to 65 years; the term of the Members was fixed to 5 years, extendable by another term of 5 years; and, incorporation of Section 10A as a savings clause, for saving the term of office of the Chairman, Vice-Chairman and Members, who were appointed prior to the coming into force of the Amendment Act. 4. It was just a few months ago, a Bench of three learned Judges of this Court had the occasion to consider the legislative competence and validity of the Administrative Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from others, one of the reliefs sought for by the petitioner. It is relevant to notice the prayer made and discussion on that issue by the Court. They are as under :- to declare that newly inserted Section 10A of the Administrative Tribunals Act, 1985 as unconstitutional to the extent it stipulates that the term of office of the Member of the Central Administrative Tribunal shall not exceed 10 years. The Court while considering the said relief has concluded : 15. The plea that Section 10A, which restricts the total term of the Member of the Administrative Tribunal to ten years should be regarded as unconstitutional has also no substance at all. The age of retirement of a Government servant has been raised from 58 years to 60 years. Initially under the unamended provisions of the Act a retired Government servant had a tenure of only two years as a Member of the Tribunal and it was noticed that he was not able to contribute much while performing duties as a Member of the Tribunal. It was felt necessary that every Member of the Tribunal should have a tenure of five years. Therefore, the provisions relating to term of office incorporated in Section 8 of the Act were amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other Tribunal and is also eligible to appear, act or plead before any Tribunal except before the Tribunal of which he was Member. Under the circumstances, this Court fails to appreciate as to how the amended provisions restricting the total tenure of a Member of the Tribunal to ten years would be unconstitutional. The unamended Section 6 of the Administrative Tribunals Act, 1985 indicated that the Chairman, Vice-Chairman and other Members, held respective offices in one capacity or the other, had reasonably spent sufficient number of years of service in those posts before they were appointed in the Tribunal and, therefore, the concept of security of tenure of service in respect of those whose term was reduced was not regarded as appropriate. The impugned provision, therefore, cannot be assailed on the ground of arbitrariness having the effect of jeopardizing the security of tenure of Members of the Bar beyond reasonable limits. An option is reserved to the Government to re-appoint a Member on the expiry of the first term beyond five years. The outer limit for the Member is that he should be within the age of 65 years. Thus, it would not be in every case that the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. 10. In Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4 SCC 124, at page 127, it was opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so. 11. In Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned that, the Judgments of this Court are decisional between litigants but declaratory for the nation. This Court further observed : 28. ... Enlightened litigative policy in the country must accept as final the pronouncements of this Court... unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions. 12. In Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long standing and rights have been acquired under it, unless considerations of public policy demand it. 14. In Union of lndia Anr. v. Paras Laminates (P) Ltd., (1990) 4 SCC 453 at pg. 457, this Court observed as under :- 9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right lo expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters . It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled. 15. In Hari Singh v. State of Haryana, (1993) 3 SCC 114 at page 120 = 1993 (66) E.L.T. 23 (S.C.), this Court stated the importance of consistent opinions in achieving harmony in Judicial Sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri Narasimha that this Court was not called upon to decide the validity of Section 8 and Section 10A of the Act. It is contended that in A.K. Behra s case (supra), this Court did not deal with the question of appointment of a member afresh after completion of his term under Section 8 or of the appointment of the existing members protected under Section 10 of the pre-amended Act. According to the learned senior counsel, a person who is appointed as a Member of the Tribunal, is appointed for a term of five years, which is extendable by one more term of five years by the Government, if such person is found to be suitable and effective for the job, and there is no embargo for such a person to re-apply again after completion of his term of 10 years and such person can be appointed again on a fresh term, if the eligibility criteria prescribed in Section 6(2)(b) are met, till he attains the age of 65 years. The learned senior counsel further submits that the Terms of Office for a Member as prescribed in Section 8, and Section 10A is merely a transitory provision meant only to save the terms and conditions of service of existing members, as on the date of amendment and not a substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y set out Section 8 of the Act prior to and after its amendment by Act 1 of 2007. We may set out the two Sections in juxta position. : Section 8 (Before Amendment) Section 8 (After Amendment) 8. Term of office. - The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years : 8. Term of office. - (1) The Chairman shall hold office as such for a term of five years from the date on which he enters upon his office : Provided that no Chairman shall hold office as such after he has attained the age of sixty-eight years. Provided that no Chairman, Vice-Chairman or other Member shall hold (2) A Member shall hold office as such for a term of five years from the office as such after he has attained, date on which he enters upon his (a) in the case of the Chairman or Vice-Chairman, the age of sixty-five years, and office extendable by one more term of five years : (b) in the case of any other Member, the age of sixty-two years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso appended to the Section is couched in the negative language. It states that a person appointed as a Chairman cannot hold office as such after he has attained the age of sixty-eight years. Sub-section (2) of Section 8 speaks of the term of office of a Member of the tribunal. It only says that a person appointed as a Member of the Tribunal, if he is found eligible for the post in terms of Section 6, shall hold office, for a term of five years, in the normal course, this term of five years is extendable by a term of another five years, giving a person a total term of ten years. Continuation from 5 years to 10 years appears to be as a matter of course subject to exceptions as provided in service law jurisprudence. Further, if such person has attained the age of 65 years, then he will have to retire, irrespective of whether he has completed ten years in office as a Member or not. 25. Prior to and after its amendment, Section 8 speaks of Term of Office . In our view the Legislature has used this expression consciously. The expression Term signifies a fixed period or a determined or prescribed duration. The word term when used in reference to the tenure of office, means ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out an exception to the main provision and restricts a member for holding office after he has attained the age of sixty five years. The proviso takes care of a situation where a member whose term of office is extended for a further period of five years cannot hold such office if he has attained the age of 65 years during the extended period of five years. A combined reading of both parts of Section 8(2) of the Act clearly demonstrates that a member of a Tribunal can hold such office for a fixed and definite period of time, i.e. for a period of five years from the date on which he enters upon his office and that period may be extended for one more term of five years. What is contended before us by the learned counsel for the petitioner is that there is neither prohibition nor any embargo for a member who has completed 10 years as Member to participate in the selection process for being appointed as a Member of the Tribunal for another term of five years. This, in our opinion, is impermissible since the total term that a person can hold the office of the Member of the Tribunal is only for a period of 10 years. In our view, if the office is created by the Legislature under due author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term in the office of the Chairman shall not exceed five years and that of the members ten years. According to the learned counsel, reference of Section 8 in the proviso to Section 10A merely refers to the tenure and does not create any ineligibility in a Member only because he has once completed the tenure prescribed thereunder. We cannot agree with this contention. The proviso, if read plainly, the only conclusion that could be reached is that the Chairman and Members appointed prior to Amendment Act 1 of 2007 on completion of either their term of service or on attainment of 65 years in the case of Chairman or 62 years in the case of Members of the Tribunal, whichever is earlier, may be considered for fresh appointment. If they are eligible in terms of Section 8 of the Amended Act that only means if a member has not completed 10 years term as a member of the Tribunal, he is eligible for fresh appointment, provided he has not completed 65 years of age. The proviso makes it abundantly clear that such fresh appointment could be done provided they satisfy the criteria prescribed under the amended Section 8 of the Act and further, it is made subject to the condition that the total te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Shri Dhaliwal was the only a stray case in which this had happened, and attributed this to administrative lapses, rather than accede to the interpretation that a Member was eligible for fresh appointment after completion of 10 years. We are inclined to agree with the learned ASG that the appointment of Shri Dhaliwal for another term after completion of his 10 year tenure is an exception and not the rule as Shri Narasimha has put forth before us. 30. If we have to accept the construction suggested by Shri Narasimha, then it would lead to a situation where a person who has been a Member of the Tribunal for 10 years would have to start at the bottom of the ladder as a fresh appointee. In that circumstance, those persons who are appointed as Members such as the Petitioner, who were till the previous day junior to persons such as the Petitioner, would suddenly become senior to Members such as the Petitioner. This would lead to an anomalous situation where a person who would have presided over a bench in the Tribunal for years, would suddenly become the junior Member on the same Bench. This certainly cannot be the intention of the Legislature. A statute is designed to be workable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded Act, which further principles of Judicial independence. Reference is made to a passage from the book of an American author, Laurcnce H. Tribe named Constitutional Choices . The author, while offering his views on the topic Entrusting Federal Judicial Power to Hybrid Tribunals , has stated : The independence of the federal judiciary is at least as important a constitutional value today as it was when Hamilton articulated the need for it in Federalist 78 and 79 : {A}s liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments;...{permanence in office} may therefore be justly regarded as an indispensable ingredient in its constitution, and, in great measure, as the citadel of the public justice and the public security.: Next to life tenure, Hamilton argued, nothing can contribute more to the independence of judges than a fixed provision for their support [A] power over a man s subsistence amounts to a power over his will. 35. In our view, firstly, the passage from the book, referred to by the learned senior counsel, pertains to the legal system in American Courts and Hybrid Tribunals, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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