The Kerala High Court had issued notice in a Writ Petition filed by a lawyer challenging the exclusion of lawyers in the selection for the post of Judicial Members in the Central and the State Administrative Tribunals.
A division bench comprising Chief Justice S Manikumar and Justice Shaji P Chaly directed the Central Government to file counter affidavit in one month time.
The petition is in the form of a Public Interest Litigation filed by Advocate Sabu Pullan, challenging Rule 3 and 4 of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules 2020, which prescribes the qualification for the appointment of Judicial and Administrative Members in the Central Administrative Tribunal and Kerala State Administrative Tribunal.
The Disputed Rule
The Petitioner alleged that the Rule 3 and 4 of the Tribunal Rules 2020 are completely "unsustainable and unconstitutional".
According to the new rule, for the selection of a judicial member in Central and State Administrative tribunals the essential qualifications are:
a person must be or has been a judge of a High Court, or
the person must have for one year held the post of Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member Secretary, Law Commission of India, or
the person must have for two years held a post of Additional Secretary to the Government of India in the Department of Legal Affairs or Legislative Department, or
The person must for a combined period of 10 years, been a District Judge and Additional District Judge.
The petitioner points out that as per the earlier Rules, a person who is qualified to be appointed as a High Court judge was eligible for appointment as judicial member. This meant that a lawyer with more than 10 years of practice was eligible for such appointment.
However, the 2020 Rules omitted the clause 'qualified to be appointed as a High Court judge', resulting in exclusion of advocates from the zone of consideration.
Disregard to the 'experience in practice of law'
The petitioner alleges that the new rules are completely denying the experience of a lawyer in the field of law and giving "undeserved dominance" to the officers who hold executive posts. As per the petitioner, the qualification and method is prescribed in such a manner "to eliminate persons having legal knowledge and also to provide sinecure for a large number of Secretary level officers to serve upto 65 years in Tribunals exercising judicial functions". Thus the purpose of the Central Administrative Tribunals Act itself is defeated.
The petition points out that, "Instead of Advocates who are having 10 years or more experience for appointment as Judicial Member the same is now reserved for a Government Secretary having one year in the Department of Legal Affairs or Additional Secretary for two years in the Department of Legal Affairs. That apart as per Ext. P1 rules, a Judicial Member or Administrative Member having three years service can be appointed as the Chairman."
Belittling the status of a Judge.
One among major fallacies of the rules, according to the petitioner, is the "irrational and unreasonable" creation of conditions for the appointment of judicial and administrative members. As per the petitioner, the impugned rules are suggesting the condition that :
To become a Judicial Member a person holding the post of Government Secretary for one year in the Department of Legal Affairs is eligible.
Thus, a Judicial Member who functioned as the Secretary for one year can be appointed as the Judicial Member. On completion of three years as Judicial Member he can become the Chairman. At the same time, a person who is or has been a Judge of the High Court can also be appointed as a Judicial Member Thus a Government Secretary who functioned as a Secretary for one year on getting appointment as Judicial Member and continuing as three years can become the Chairman.
This will create an anomalous situation that, a High Court Judge will be legally forced to function as a Judicial Member under the Chairmanship of a Government Secretary who functioned for one year, as alleged by the Petitioner.
The petitioner had sought for the following reliefs :
To declare the qualifications prescribed for appointment as Chairman, Judicial Member and Administrative Member of Central Administrative Tribunal under the Administrative Tribunals Act 1985 included as Sl. No. 5 in the Schedule framed as per Rule 3 and 4 of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules 2020 as unconstitutional.
To declare that the Lawyers with 10 years of practice in the High Court are also eligible for appointment as Judicial Members in the Central Administrative Tribunal constituted under Administrative Tribunals Act 1985
To declare that the Secretaries and Additional Secretaries of Central or State Governments are ineligible to be appointed as Judicial Member or Administrative Member of Central Administrative Tribunal constituted under Administrative Tribunals Act unless they have a minimum service of 10 years in the cadre of Secretaries or Additional Secretaries.
The petition was represented by Senior Advocate Dr. K P Satheesan.