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TMI Blog2020 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 - 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 - HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - HELD THAT:- 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 MADRAS BAR ASSOCIATION VERSUS UNION OF INDIA [ 2015 (5) TMI 501 - SUPREME COURT] . However, it is left open to the Search-cum-Selection Committee to take into account in the experienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2020 Rules - HELD THAT:- ll 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. Petition disposed off. - Writ Petition (C) No.804 of 2020 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 - - - Dated:- 27-11-2020 - HON'BLE MR.JUSTICE L.NAGESWARA RAO, HON BLE MR.JUSTICE HEMANT GUPTA AND HON BLE MR.JUSTICE S.RAVINDRA BHAT. Writ Petition (C) No.804 of 2020 WITH Misc. Application No.1058 of 2020 In Writ Petition (C) No.640 of 2017 Misc. Application No.1152 of 2020 In Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajay Veer Singh, Adv. Ms. Divya Garg, Adv. Mr. Shubham Singh, Adv. Mr. Sonal Jain, Adv. Mr. Tushar Mandlekar, Adv. Mr. Rishi Jain, AOR Mr. P.S.Narasimha, Sr. Adv. Mr. J.Sai Deepak, Adv Mr. Guruswamy Nataraj, Adv. Ms. Pooja Dhar, Adv. Mr. V.Shyamohan, Adv. Mr. Avinash K. Sharma, Adv. Mr. Surya Prakash, Adv. Ms. Sindoora, Adv. For M/S KMNP LAW AOR Ms. Anitha Shenoy, Sr. Adv. Ms. Srishti Agnihotri, AOR Ms. Kanika Sood, Adv. Ms. Sanjana Grace Thomas, Adv. Ms. Anmol Gupta, Adv. Ms. Priya Hingorani, Sr. Adv. Mr. A. K. Behera, Adv. Mr. V. K. Verma, AOR Mr. B. Krishna Prasad, Adv. Mr. Zoheb Hossain, Adv. Mr. Rupesh Kumar, Adv. Mr. Sonal Jain, Adv. Mr. Sameer Abhyanka, Adv. Ms. Anagha S. Desai, Adv. Mr. Anil Katiyar, AOR Mr. Rajesh Kumar, Adv. Mr. Mohan Kumar AOR Mr. Anil Kumar Trivedi, Adv. Mr. Rajiv Manglik, Adv. Mr. Ankur Chibber, Adv. Mr. Sandeep Bansal, Adv. Ms. Rashmi Singh,, Adv. Ms. Neetu Singh, Adv. Mr. Arun Kumar Vashisht, Adv. Mr. Piyush Sharma, Adv. Ms. Ritu Bhardwaj, Adv. Mr. Rajesh Jain, Adv. Mr. Devashish Mitra, Adv. Mr. Kawaljit Singh Bhatia, Adv. Mr. Mohit D. Ram, Adv. Mr. Deepayan Mandal, Adv. Mr. Anil Katiyar, Adv. Mr. Rajesh Kumar, Adv. Mr. Rishi Jain, Adv. Ms. Rukh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 India (1987) 1 SCC 124 held that the Tribunal should be a real substitute of the High Courts not only in form and de jure but in content and de facto . The Central Government was directed to make modifications to the Administrative Tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of the rule of law. It was held in the above judgment that judicial independence and separation of judicial power from the executive, are part of common law traditions implicit in a Constitution like ours. The creation of the NCLT and NCLAT was upheld. However, the defects found in Parts I-B and I-C of the Companies Act, 1956 were directed to be rectified by suitable amendments with modifications suggested by this Court in order to uphold the judicial independence of the Tribunals. The suggestions pertained to composition of the Search-cum-Selection Committee (for appointment of members of the tribunals), qualifications for appointment, and service conditions of members of the Tribunals. Later, Madras Bar Association had assailed the constitutional validity of the National Tax Tribunal Act, 2005. This Court held the National Tax Tribunal Act, 2005 to be unconstitutional. Madras Bar Association v. Union of India, (2014) 10 SCC 1. Nonetheless, the vesting of adjudicatory functions in Tribunals was held to be not violative of the basic structure of the Constitution. The Companies Act, 2013 replaced the earlier Act of 1956 in which amendments were made to provisions relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an, 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 Limited (2020) 6 SCC 1. This Court formulated the following issues for consideration: 86.1. (I.) Whether the Finance Act, 2017 insofar as it amends certain other enactments and alters conditions of service of persons manning different Tribunals can be termed as a Money Bill under Article 110 and consequently is validly enacted? 86.2. (II.) If the answer to the above is in the affirmative then whether Section 184 of the Finance Act, 2017 is unconstitutional on account of excessive delegation? 86.3 III. If Section 184 is valid, Whether Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 are in consonance with the Principal Act and various decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sbehavior, House Rent Allowance and other Conditions of Service are the subject matter of challenge in these cases before us and will be dealt with in detail in the succeeding paragraphs. 9. Pursuant to the liberty granted by this Court in the judgment of Rojer Mathew (supra), the Union of India filed Miscellaneous Application No.1152 of 2020 placing the 2020 Rules before this Court and seeking a direction that the 2020 Rules would apply to all persons appointed as Members, President, Chairperson, etc. of Tribunals after the appointed day i.e. 26.05.2017. Several applications were filed by Bar Associations and the Members of the Tribunals seeking directions to fill up the vacant posts by making appointments to the Tribunals and for clarifications relating to the retrospective operation of the 2020 Rules. The Madras Bar Association filed a Writ Petition under Article 32 seeking a declaration that the 2020 Rules are ultra vires of Article 14, 21 and 50 of the Constitution apart from being violative of the principles of separation of powers and independence of the judiciary. According to the Writ Petitioner, the 2020 Rules were also contrary to the earlier judgments of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 India (1956) SCR 267 which are as follows: The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. 13. Mr. Datar also referred to the Reports of the Franks 1 and Leggatt 2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. 18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals. 19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 reiterated by Lord Diplock in Hinds v. R (1976) 1 All ER 353 (PC), which is as follows: It would make a mockery of the Constitution, if the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court in Rojer Mathew (supra) commented that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain 4 . This Court further observed that excessive interference by the executive in appointment of the members would be detrimental to the independence of judiciary and an affront to the doctrine of separation of powers. The principles laid down in the aforementioned judgments are binding precedents which have to be implemented by the Respondent. However, the 2020 Rules which are in challenge in the Writ Petitions replicate the 2017 Rules in respect of the constitution of the Search-cum-Selection Committees, insofar as they do not ensure judicial dominance. We appreciate the stand taken by the learned Attorney General that a casting vote will be given to the Chief Justice of India or his nominee as the Chairperson of the Search-cum-Selection Committee. We also accept the submission of the learned Attorney General that normally the Chairperson of the Tribunal would be a retired Judge of the Supreme Court or the Chief Justice of a High Court. As such, two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or as the member. In view of the delay in making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi 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 ₹ 1,25,000/- for members of Tribunals and ₹ 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reappointment. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 continue after 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought to our notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the Tribunals. The pendency of cases in the Tribunals is increasing mainly due to the lack of personnel in the Tribunals which is due to the delay in filling up the vacancies as and when they arise due to the retirement of the members. There is imminent need for expediting the process of selections and appointments to ensure speedy justice. 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, notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79 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 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dency of Rojer Mathew (supra) on the date of interim orders passed therein and appointments made after the judgment of Rojer Mathew (supra), like the appointments made prior to the 2017 Rules are, no doubt, to be governed by the then existing parent Acts and Rules. In view of the interim orders passed by this Court in Rojer Mathew (supra), appointments made during the pendency of the case in this Court are also to be governed by the parent Acts and Rules and the clarifications issued by this Court in Rojer Mathew (supra). According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. 53. The upshot of the above discussion leads this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons 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 ₹ 1,50,000/- per month as house rent allowance and ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, 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. ------------------------ Notes: 1. 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. 2. Finalized in 2001, the Sir Andrew Leggatt Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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