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Govt. Seized Of Your Lordships' Judgment & Will Be Amending 2020 Tribunal Rules At Earliest: Attorney General Tells Supreme Court

Mehal Jain
10 Dec 2020 2:39 PM GMT
Govt. Seized Of Your Lordships Judgment & Will Be Amending 2020 Tribunal Rules At Earliest: Attorney General Tells Supreme Court
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AG K. K. Venugopal on Wednesday informed the Supreme Court that the government of India shall amend its Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 at the earliest to bring them in conformity with the November 27 judgment.The bench headed by Justice L. Nageswara Rao was hearing the writ petition by NCLT...

AG K. K. Venugopal on Wednesday informed the Supreme Court that the government of India shall amend its Tribunal, Appellate Tribunal and other Authorities [Qualification, Experience and Other Conditions of Service of Members] Rules, 2020 at the earliest to bring them in conformity with the November 27 judgment.

The bench headed by Justice L. Nageswara Rao was hearing the writ petition by NCLT and Appellate Tribunal Bar Association seeking a direction for extension of the tenure of Mr.B.S.V.Prakash Kumar as acting President of NCLT, Delhi till the regular President is appointed. The AG informed the bench that the tenure of Mr. Kumar has been extended for a period of one month from 5.12.2020. He further submitted that a request has been made to Chief Justice of India for nomination of suitable candidate for appointment of President, NCLT by the concerned Ministry.

"As regards the vacancies which still exist, the Search-cum-Selection Committee will be brought into existence straight-away, the nominations will be made in time and the Cabinet will also act within the time as per Your Lordships directions", assured the AG.

"The government is seized of Your Lordships' judgment and it will be amending the Rules as soon as possible. We have sent the requirements...so that the appointments are effective and yield results for the future", advanced the AG.

In its judgment dated November 27, a three-judge bench headed by Justice Rao had observed, "It has been brought 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"

The bench had, therefore, directed 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.

In the said judgment, the Supreme Court directed the Central Government to constitute a National Tribunal Commission for the appointment of members in various Tribunals.

Till the constitution of the National Tribunal Commission, a separate wing in the Ministry of Finance should be formed to cater to the needs of the Tribunals, ordered a bench comprising Justices Rao, Hemant Gupta and Ravindra Bhat.

The Court also directed the Centre to amend the rules to make advocates with 10 years practice eligible for appointment as judicial members in Tribunals

The Bench has pronounced the Judgment in a batch of petitions challenging the constitutionality of the 'Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 ('Tribunal Rules 2020)'.

The lead petition was filed by the Madras Bar Association.

The Court has issued several directions to the Central Government to amend the Tribunal Rules to ensure independence and efficiency of Tribunals.

Directions

National Judicial Commission

The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals.

Constitution of Search cum Selection committee changed

Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members :

a)The Chief Justice of India or his nominee—Chairperson (with a casting vote).

(b)The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment—member;

(c)Secretary to the Ministry of Law and Justice, Government of India—member;

(d)Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary—member;

(e)Secretary to the sponsoring or parent Ministry or Department—Member Secretary/Convener (without a vote).

Till amendments are carried out, the 2020 Rules shall be read in the manner indicated.

Recommendation of one name instead of a panel of three names

Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list.

Term increased

The Chairpersons, Vice-Chairpersons 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 year

Housing/allowances to Chairpersons

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 Rs. 1,50,000/-per month as house rent allowance and Rs. 1,25,000/-per month for other members of the Tribunals. This direction shall be effective from 01.01.2021.

Advocates with 10 years practice made eligible for appointment

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 their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.

The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law

Recommendation of search cum selection committee final as far as disciplinary proceedings are concerned

Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government.

Appointments within 3 months of recommendations

The Union of India shall make appointments toTribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations.

2020 Rules to have prospective effect

The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.(xi)Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court in Rojer Mathew(supra), appointments made during the pendency of Rojer Mathew(supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment.

Validity of appointments under 2020 Rules

Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointment sare upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved.

In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 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.

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.


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