[2020 Tribunal Rules] AG Defends Exclusion Of Advocates From Appointment To Single-Member Tribunals, SC Reserves Judgment [Read Order]

The Supreme Court on Friday reserved judgment 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 were hearing the matter. The bench on Friday directed that the terms of all chairpersons, vice-chairperson and other members of all 19 tribunals, which are due to expire, shall be extended till December 31.At the outset, the AG defended the four year tenure as stipulated under Rule 9(2) of the 2020 Rules- "Mr. (Arvind) Datar (Senior Advocate, Amicus Curiae) argued that the tenure cannot be less than 5 years because one judgment requires 5-7 years and another stipulates 5 years. But section 184 (of the Finance Act) says that any Rules that are framed governing the tenure cannot provide for a term exceeding 5 years. And in Roger Mathew, section 184 was upheld in entirety. So any tenure fixed by the Rules cannot exceed 5 years. Besides, in addition to the 4 years term, it is open for the Search Cum Selection Committee (SCSC) to reappoint the person. And the committee being headed by a SC judge, it is not an arbitrary reappointment", argued the AG.In context of even the provision of re-appointment having been challenged for compromising the independence of the tribunals, he explained that having joined the legal profession at the age of 23, one is appointed after 25 years of substantial experience, when one is generally around the age of 48. So if after a 5 year term, no provision for reappointment is made, he will have to step down. In such an situation, nobody would come forward to apply and accept the post. The AG added that the same was true for other categories of persons also, for appointments to technical posts etc. "If one serves his tenure well, he is competent, he has integrity, he doesn't come late, he delivers his judgments on time, then there is no reason why he would not be reappointed. The deserving candidates will get to continue for a long term- from the age of 48 to 65. And if one is lucky enough to be promoted as chairman or vice-chairman, he may even continue till 70! The same SCSC is to decide the reappointment", he advanced."Reappointment is essential on account of this provision which provides for a tenure of 4 years or until the age of 65 or 70, whichever is earlier. Without reappointment, not a single person would apply...also, in making the reappointment, the SC judge is to get inputs from the chairman of the tribunal himself, on factors of competence, polite behaviour to lawyers and litigants and other parameters of a good judge", said the AG.Moving further, the AG addressed the contention that out of the 19 tribunals, in all the18, with the exception of the DRT, the Vice Chairman and the Member can only be a HC judge, and considering that a judge retires at the age of 62 years, then by virtue of this Rule, he would only get 3 years in office.Quoting from Roger Mathew, he argued that the court had, in that case, been of the view that the tenure of Members of Tribunals as prescribed under the Schedule of the 2017 Rules (of 3 years) is anti-merit and attempts to create equality between unequals. "A tenure of three years may be suitable for a retired Judge of High Court or the Supreme Court or even in case of a judicial officer on deputation. However, it will be illusory to expect a practising advocate to forego his well-established practice to serve as a Member of a Tribunal for a period of three years...In the light of the discussion as aforesaid, we hold that the Rules would require a second look since the extremely short tenure of the Members of Tribunals is anti-merit and has the effect of discouraging meritorious candidates to accept posts of Judicial Members in Tribunals", he recited from the 2019 judgment."They said that the tenure should be longer. So we made it 4 years. If you serve well, you could continue indefinitely...on the contrary, suppose a man is 45 when he is appointed, and if we were to give him a 7 year tenure, he would retire at the age of 52!", contended the AG. "But one cannot be appointed at the age of 45", pointed out the bench.Besides, the provision in the 2020 Rules allowing the Committee to recommend a panel of 2-3 suitable candidates to the government for each post was challenged. "There is no substance in the argument that if the government is given the choice to select, it will affect the independence of the tribunal...There are 50-60 applicants. There is no IB inquiry report at that initial stage. It is only when the candidate is shortlisted by the Committee that the inquiry report is looked at. And the panel so recommended need not have 3 candidates, even 2 can be selected...you have to give the government some credit, that it is not doing anything wrong", advanced the AG.Moreover, Rule 4(3) provides that no appointment shall be called into question...

[2020 Tribunal Rules] AG Defends Exclusion Of Advocates From Appointment To Single-Member Tribunals, SC Reserves Judgment [Read Order]

Mehal Jain

Supreme Court has extended the terms of Members, Vice- Chairperson and Chairperson of Tribunals which are about to expire stand extended till 31st December, 2020.

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