[2020 Tribunal Rules] SC Judgments Requiring 5-7 Yrs Tenure Don't Apply Where Right Of Re-Appointment Contemplated: AG Defends 4 Yr Term

The Supreme Court on Thursday resumed hearing on the plea by the Madras Bar Association challenging the Tribunal Rules of 2020, on the grounds that it is in the teeth of the principles of separation of power and independence of judiciary.The Bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat are hearing the matter.After Senior Advocate Arvind Datar, for the Madras Bar Association concluded his rejoinder submissions, AG K. K. Venugopal began by advancing that by the operation of section 175 of the Finance Act 2017, a new sub-section (7) came to be added to section 129 of the Customs Act, stipulating that the qualifications, appointment, tenure, salaries, removal and terms and conditions of service of the presiding officer and the members of the CESTAT shall be governed by section 184 of the Finance Act."Section 175 says two things- that from the date of commencement of part 14 of Chapter 6 of the Finance Act (AMENDMENTS TO CERTAIN ACTS TO PROVIDE FOR MERGER OF TRIBUNALS AND OTHER AUTHORITIES AND CONDITIONS OF SERVICE OF CHAIRPERSONS, MEMBERS, ETC.), the qualification, appointment and tenure will be governed by section 184. And for appointments made before the appointed day, the old Rules shall hold fort", he explained."Sections 183 and 184 of the Finance Act are the single most important ingredients..it is clear that on and from the appointed day, whatever rules are framed under 184, they shall apply. But they won't apply to those who were holding office immediately before the appointed day...so Mr. Datar's fears are wholly unjustified", he advanced."Further, the proviso to section 184 provides that the chairman and the other members shall hold office for a term as may be determined by the central government by any rules framed in this behalf, but such term may not be more than 5 years, or until the age of 70 years, in the case of the chairman, and 67 years, in the case of other members, whichever is earlier. This provision even contemplates re-appointment if found so eligible. 184 was challenged and upheld in entirety. It was given to exhibit that rules may so be framed such that the tenure does not exceed 5 years...if a lawyer, economist or other person is to be appointed before 25 years of experience - assuming they enter the profession at the age of 22-23 and are appointed after only 10-15 years of experience - then after just 5 years, their term would end and they would go away...so 4 years is a reasonable period to ask, when they are being given the right of reappointment till the maximum age of 70 or 65...4 years is a sufficient tenure to understand how competent the member is, whether the orders delivered by him are upheld by the appellate authorities, whether there is delay in rendering judgments, whether he is coming late- these are the parameters for reappointment....judgments of the Supreme Court which said that the tenure must be between 5-7 years do not apply where there is a right of reappointment at the behest of a Search Cum Selection Committee headed by a SC judge! And if a member is not found deserving of re-appointment based on the track record, then the SC judge shall control the affairs of the committee, as the secretary to a government cannot be expected to stand up and oppose him", he argued."As the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 have been struck down and several directions have been issued vide the majority judgment for framing of fresh set of Rules, we, as an interim order, direct that appointments to the Tribunal/Appellate Tribunal and the terms and conditions of appointment shall be in terms of the respective statutes before the enactment of the Finance Bill, 2017. However, liberty is granted to the Union of India to seek modification of this order after they have framed fresh Rules in accordance with the majority judgment.", Mr. Venugopal quoted from Roger Mathews. He pointed out that it was held that "in case any additional benefits concerning the salaries and emoluments have been granted under the Finance Act, they shall not be withdrawn and will be continued. These would equally apply to all new members.""It has been ensured again and again that no person appointed shall be deprived of any benefits which are better than those in the 2020 Rules! So no one can complain", insisted the AG.It may be noted that earlier in the day, Senior Advocate Arvind Datar for the Madras Bar Association had argued that members of tribunals, who are retired HC and SC judges, cannot be expected to hunt for houses post retirement and accordingly, the same must be provided, as it discourages good candidates from taking up the posts in the tribunals. In response, the AG cited from the Roger Mathews judgment that " there can be no doubt that executive action cannot confer status equivalent to that of either Supreme Court or High Court judges on any member or head of any Tribunal or...

[2020 Tribunal Rules] SC Judgments Requiring 5-7 Yrs Tenure Don't Apply Where Right Of Re-Appointment Contemplated: AG Defends 4 Yr Term

Mehal Jain

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