The Tenure Of Tribunal Members Will Be 4 Yrs Plus Re-appointment: AG KK Venugopal Submits Before SC On Behalf of Centre

The Supreme Court on Friday 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. "A question was raised whether law officers, who are appointed as members of tribunals, would retain their license to practice...prior to 2001, Rule 49 of the Bar Council of India Rules, allowed even those with full-time salaries to retain their licenses. Post 2001, this category was taken away...", began ASG Balbir Singh, referring to the 2013 judgment of the apex court in Deepak Agarwal's case where the appointment of law officers of the government, who appear before courts on behalf of their employers, to the higher judicial services was considered."Officers of ILS are of two kinds- one, the members who practice in courts, and then there are those who don't. The former would come within the category of "advocates". So we don't have to say that ILS members are per se ineligible to be judicial members", observed Justice Hemant Gupta."Does ILS have any lawyers allowed to practice outside? Like in High Courts?", asked Justice L. Nageswara Rao. Mr. Singh relied on the 1987 S. P. Smpath Kumar and the 2002 Delhi High Court Bar Association cases to assert that ILS members have been held to be eligible."How do you respond to Justice Gupta's question? Only those who practice in courts can be considered "advocates", not others?", asked Justice Rao."Suppose a member of the ILS worked as a lawyer for 15 years and then he was deputed elsewhere. He will still qualify on completion of 25 years", advanced Mr. Singh."But only the lawyers who continue to practice and have proficiency in a field can be hired?", ventured Justice Rao."The specialisation is needed only for advocates and not for ILS members", replied Mr. Singh."How can you make this distinction for judicial members? Appoint an ILS member with no experience in that field at all?", asked the bench. "An advocate is required to have experience of appearing before the ITAT, but not an ILS member?", the court inquired."There was in fact a member of the ILS who was appointed as the judicial member of the ITAT, who went to become a High Court judge, and finally retired as the Chief justice of the Gujarat high court...", advanced Mr. Singh."If your effort is to have ILS members considered for judicial posts, will that not be contrary to the constitution bench decisions? How do you get over that?", asked Justice Rao. "Sampath Kumar upheld appointment of ILS members as members (judicial) of CAT. L. Chandra Kumar said we better leave it to the Search cum Selection Committee as to whether ILS officers can be judicial members or technical members...I suggest even if ILS officers cannot be considered for the posts of members (judicial), it be left to the SC", he advanced."It is first about finding them eligible, and then about whether they are suitable...Madras Bar Association says ILS members cannot be considered...", observed Justice Rao."The 2010 Madras Bar decision says that only judges and advocates can be considered for appointment, and that ILS Grade I officers cannot be considered....but they were dealing only with the NCLT/NCLAT there. And also, only Grade 1 is restricted, while the new Rules speak of Additional Secretary and above......if someone is found fit, and someone is working in the central agency of the Supreme Court as an employee, and has completed 25 years, I think we should leave the decision to the SCSC. The test is only that of judicial independence", he repeated.Mr. Singh concluded his submissions, raising the case of retired Delhi High Court Justice Manmohan Singh, having been appointed as the Chairman of the IPAB, whose term has been extended by 3 months recently by the Court, and if the 2020 rules sustain, he can continue uptil the age of 67 years, holding office till 2021.Next, ASG S. V. Raju drew the bench's attention to the CESTAT, having been constituted under section 129(1) of the Customs Act.He advanced that prior to the 2017 Rules, the recruitment to the tribunal was governed by the CESTAT Members (Recruitment and Conditions of Service) Rules. He referred to Rule 10 to indicate that the tenure was until the age of superannuation, that is, 62 years. Further, by operation of section 175 of the Finance Act 2017, a new sub-section (7) came to be added to section 129, stipulating that the qualifications, appointment, tenure, salaries, removal and terms and conditions 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,...

The Tenure Of Tribunal Members Will Be 4 Yrs Plus Re-appointment: AG KK Venugopal Submits Before SC On Behalf of Centre

Mehal Jain

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