[Tribunal Rules] Exclusion of Advocates From Being Considered For Appointment in DRTs Is Absolutely Unconstitutional: Aravind Datar Tells SC

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. Senior Advocate Arvind Datar, for the Madras Bar...

The Bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat are hearing the matter. Senior Advocate Arvind Datar, for the Madras Bar Association concluded his rejoinder submissions on Thursday.

Mr. Datar drew the bench's attention to Rule 9(2) of the impugned Rules which provides that the vice-chairman, vice-president or other member of the tribunals shall hold office until the age of 65 years or for a term of 4 years, whichever is earlier.

"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. Now if a judge retires at the age of 62 years, then by virtue of this Rule, he would only get 3 years in office! Nobody is going to join prior to retirement! And it is not like the incumbent would assume office immediately upon selection. In an instance, the retired Allahabad HC judge who was selected lost almost 9 months in the modalities of receiving the appointment letter etc before he could join office...so this Rule needs to be struck down....the 2017 Rules granted a tenure until the age of 67 years to the vice-chairman. I don't know why it has been brought down to 65 now?", he advanced.

Next, he opposed the exclusion of advocates from being considered for appointment as Presiding Officers of the DRT-

"For the last 25-27 years, advocates have been regularly appointed. There has been no problem. This provision requiring appointment of only judicial officers is irregular. It is absolutely unconstitutional that even in case of a one-member tribunal, lawyers are excluded. There are no Law Commission reports that lawyers have done any disservice"

Thereupon, he moved to discuss Rule 4(2), which stipulates that

"The Search-cum-Selection Committee shall determine its procedure for making its recommendation and, after taking into account the suitability, record of past performance, integrity as well as adjudicatory experience keeping in view the requirements of the Tribunal, Appellate Tribunal or, as the case may be, Authority, recommend a panel of two or three persons for appointment to each post."

"This needs to be struck down. 2-3 candidates per post is not permissible. Even in the IAS, where there are 5 vacancies, the zone of consideration is 10 candidates...", he contended.

As regards Rule 4(3), which says that "No appointment of Chairperson, Vice-Chairperson, etc or any Member of the Tribunal, Appellate Tribunal or Authorities shall be invalid merely by reason of any vacancy or absence in the Search- cum-Selection Committee", he submitted,

"Each tribunal is treated as part of the department of a ministry...tomorrow, the government may say that we have made the appointment but sorry, the post of the SC judge in the committee was vacant...so 4(3) has to go! Also, a secretary to the Ministry under which the tribunal functions cannot be on the Committee as it undermines independence"

On the aspect of retrospective application of the 2020 Rules, he advanced,

"The 2017 Rules were quashed. It was the mandate of the SC that new Rules be framed. That was not done. And now they say that the 2020 Rules would apply retrospectively. If it is allowed, then all judges who were earlier recruited till the age of 67 years would go out of service as the age has now been reduced to 65 years...the law is settled that once the old Rules have gone and the new Rules are brought in, the latter shall apply prospectively!" he stressed.

"But the appointments made prior to the appointed day are preserved by the finance Act", pointed out Justice Bhat.

Mr. Datar referred to the persons appointed under the 2017 Rules in the small window that was available-

"By virtue of an interim order of the SC, members of the ITAT and the members (judicial), CESTAT have been allowed to continue till the age of superannuation of 62 years- which means there will no 3 years or 5 years...it will be manifestly inappropriate if their term now stalls prior to 62 years, upon completion of either 3 or 5 years...persons appointed during the pendency of the Rules are deemed to have been appointed under the old Acts and Rules. So whoever has been selected now shall, in the case of ITAT and CESTAT, continue till the age of 62 years...even the appointments after Roger Mathews are not to be disturbed if the incumbent is found qualified under the new Rules. Otherwise, they shall continue until normal retirement", advanced Mr. Datar.

"Those appointed under the 2017 Rules are to complete tenure. Retirement is to be read that way", observed Justice Gupta.

"And this is due to the Proviso to the provision in the Finance Act. Otherwise, normal retirement would be under the Parent Act", noted Justice Bhat.

"The interim orders direct that the appointment to the tribunal or the appellate tribunals can be as per the Old act and rules which held fort before the 2017 Rules. So the tenure is to be determined as per the statute, which in case of NGT would be until the age of 67 or 5 years....if the Rules were quashed, there can't be a vacuum", contended Mr. Dtaar.

"Even now the submission is textual. The non-obstante clause (in section 183 of the Finance Act) cannot operate in isolation. It can work only if the Rules and the terms and conditions of service are there", reflected Justice Bhat.

Finally, Mr Datar advanced that a major fallacy of the system is that from the Chairman and the vice-chairman, every one is deemed to be a "member" and that no distinction is made. "Would a retired SC or HC judge come before the SCSC for an interview? 9 out of the 19 tribunals require a SC judge as the chairman...SC judges are recommended by the CJ or the collegium...there is no question of them going to the SCSC, which comprises secretaries to ministries, to answer questions. It is completely unconstitutional", he argued.

Continuing further, he advanced that based on the feedback he has received from the relevant persons, the greatest difficulty associated with the All-India tribunals is housing.

"Many judges were offered posts but they refused on this account. If housing is not sorted, the Rules won't work", he argued.

Indicating Rule 15 on housing and Residence, he advanced that there is no provision of housing, but only HRA.

"In the Competition Commission, there is no provision for giving housing or even a vehicle. But the salaries of the Chairman and the members are 4,25,000 and 3,75,000 respectively which are substantial amounts. Why can the Rules not be the same for the Tribunals? Compensation in money can be given as an alternative to accommodation?", asked Justice Gupta.

"Is it practical to tell retired judges to take 1 lakh and find their own homes? Especially in places like Mumbai, Delhi, Chennai? Would good people want to come then? Would anyone leave their family and come?', contendend Mr. Datar.

"For obtaining housing in the All-India services, there is a website that one has to log into, then fill an application online, then they are given an application number, and then there is a waiting list...can a retired SC judge be expected to hunt for a house after retirement?", asked Mr. Datr.

"In the All India Judges case, the government was to refer 10,000 houses but managed merely 5,000. The court said making arrangements for 5,000 more houses all over India is not difficult. Subsequently, in 2001, the court stressed that accomodation had to be given, and the provision regarding payment of 12.5% of salary as rent was struck down. And this was for district judges, while these are retired SC judges we are talking about! Here, the question is of only 18 SC judges, all of whom are in Delhi. The total number of members of all the tribunals would be at most 500! The government can't find houses?", argued Mr. Datar.

He concluded his submissions, urging that the 2020 Rules be struck down, that the bench direct the rules to be framed per Roger Mathews, and make observations regarding housing.

[Tribunal Rules] Exclusion of Advocates From Being Considered For Appointment in DRTs Is Absolutely Unconstitutional: Aravind Datar Tells SC

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