27 Nov 2020 5:39 AM GMT
[Updated with judgment]In a notable judgment, the Supreme Court on Friday 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...
[Updated with judgment]
In a notable judgment, the Supreme Court on Friday 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 L Nageswara Rao, Hemant Gupta and S 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.
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.
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
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.
The Madras Bar Association filed the writ petition in the Supreme Court 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)'.
Senior Advocate Arvind P Datar had made elaborate arguments for the Madras Bar Association.
It is contended that the Rules are in "contravention of the principles of separation of powers, independence of the judiciary (both being part of the basic structure of our Constitution), and are against efficient and effective administration of justice".
The Rules were notified by the Central Government in February 2020, exercising powers under Section 184 of the Finance Act 2017, after the Supreme Court set aside the similar rules made in 2017 in the decision Rojer Mathew v. South Indian Bank Ltd delivered on November 13, 2019.
The Constitution Bench held in Rojer Mathew that the 2017 Rules were ultra vires ""for contravening the principles of separation of powers, diluting the independence of the Judiciary and for being against previous decisions of this Hon'ble Court."
The petition stated that the very same problem is present in the new 2020 Rules as well.
Tribunal Rules 2020 : Old Wine In New Bottle?
On 9th October, the Court had reserved judgment in the matter, while directing that the terms of all Chairpersons, Vice-Chairpersons and other members of all the 19 Tribunals, which were due to expire, would be extended till December 31st, 2020. On 1st October, Senior Advocate Arvind Datar, appearing for the Madras Bar Association, had argued that members of Tribunals, who were retired High Court and Supreme Court judges, could not 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 other judicial fora".
The AG had also advanced the submission 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.
As regards the date of applicability of the 2020 Rules, whose purported retrospective application was being challenged, the AG indicated Section 183 of the Finance Act to submit that notwithstanding anything to the contrary contained in any of the 19 parents Acts under which the tribunals are constituted, on and from the appointed day, the provision of Section 184 shall apply in matters of appointment, qualifications, removal, tenure, salaries and terms and conditions of service. "So 184 Rules, when made, shall apply", said the AG.
On 15th September, Senior Advocate Arvind Datar had argued that not allowing advocates to be appointed as judicial officers in Tribunals was an arbitrary decision. Further, the 2010 judgement of Union of India v. Madras Bar Association had struck down the Selection Committee. Additionally, the 2017 Finance Bill did not contain any provisions with regard to Tribunals. However, the Bill had been passed, there was a complete chapter on the same.
During the course of the proceedings, the Supreme Court had also stayed the operation of a Kerala High Court judgement which had restrained V. Vijaykumar from functioning as the Presiding Officer of the Central Government Industrial-cum-Labour Court, Ernakulam. Notice had also been issued.
Click here to download the judgment