A.K.Behera
Vs. Union of India & ANR. [2010] INSC 412 (6 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION Writ Petition (Civil) No.
261 of 2007 A.K. Behra ... Petitioner Versus Union of India and another ...
Respondent With Writ Petition (Civil) No. 539 of 2007
J.M.
Panchal, J.
1. In the
Writ Petition (C) No. 261 of 2007, the petitioner, who is a practicing lawyer
and Honorary Secretary of the Central Administrative Tribunal, Principal Bench,
Bar Association, prays (1) to quash the decision of the respondents to abolish
the post of Vice 2 Chairman in the Central Administrative Tribunal as reflected
in the Administrative Tribunal (Amendment) Act, 2006 and to direct the
respondents to restore the said post in the Central Administrative Tribunal,
(2) to declare that the newly inserted Section 10A of the Administrative
Tribunals Act, 1985 to the extent it prescribes
different conditions of service for the Members of the Central Administrative
Tribunal on the basis of their appointment under the unamended Rules and under
the amended Rules, as unconstitutional, arbitrary and not legally sustainable,
(3) to direct the respondents to accord all conditions of service as applicable
to the Judges of High Court to all the members of the Central Administrative
Tribunal irrespective of their appointment under the unamended or amended
Rules, (4) to declare that the newly inserted Section 10A of the Administrative
Tribunals Act, 1985 as unconstitutional to the extent it stipulates that the
total term of office of the member of the Central Administrative Tribunal shall
not exceed 10 years, (5) to direct the respondents to continue all the 3
members appointed under the unamended or amended Rules till they attain the age
of superannuation of 65 years, (6) to declare, the newly inserted
qualifications for appointment as administrative members as reflected in the
amended Section 6(2), as arbitrary and unsustainable, and (7) to quash the
newly added Section 12(2) of the Administrative Tribunals Act, 1985 authorising the appropriate Government to designate one or
more members to be the Vice Chairman for exercise of financial and
administrative powers as impinging upon the independence of judiciary.
2. Writ
Petition (C) No. 539 of 2007 is filed by a judicial member of Maharashtra
Administrative Tribunal and he prays to set aside the decision of the
respondents requiring Members of the Administrative Tribunal appointed before
the coming into force of Administrative Tribunals (Amendment) Act, 2006 to seek
fresh appointment in accordance with the selection procedure laid down for such
appointments as being arbitrary and 4 violative of Articles 14 and 16 of the
Constitution. He also prays to declare that newly introduced Section 10A, so
far as it relates to consideration of members of the Administrative Tribunal
for reappointment by Selection Committee, is not applicable to those, who were
duly appointed as members prior to February 19, 2007.
Another
prayer made by him is to direct the respondents to restore his continuance as
Member of Maharashtra Administrative Tribunal till he attains the age of
superannuation of 65 years and to direct the respondents to accord all
conditions of service, as applicable to the Judges of the High Court, to him.
3.
Article 323A of the Constitution, stipulates that Parliament may by law,
provide for the adjudication or trial by Administrative Tribunals of disputes
and complaints with respect to recruitment and the conditions of service of
persons appointed to public services and posts in connection with the affairs
of the Union or of any State or of any local or other authority 5 within the
territory of India or under the control of the Government of India or of any
Corporation owned or controlled by the Government. The establishment of
Administrative Tribunals under the aforesaid provisions of the Constitution had
become necessary since the large number of cases relating to service matters
were pending before the various courts. It was expected that the setting up of
such Administrative Tribunals to deal exclusively with service matters would go
a long way in not only reducing the burden of various courts and thereby giving
them more time to deal with other cases expeditiously but would also provide to
the persons coming under the jurisdiction of Administrative Tribunals, speedy
relief in respect of their grievances.
Therefore,
a Bill was introduced in the Parliament for setting up the Central
Administrative Tribunal. The Bill sought to give effect to Article 323A by
providing for the establishment of an Administrative Tribunal for the Union and
a separate Administrative Tribunal for a State or a joint Administrative
Tribunal for two or more States.
6 The
Bill inter alia provided for - (a) the jurisdiction, powers and authority to be
exercised by each Tribunal, (b) the procedure to be followed by the State
Tribunals, (c) exclusion of the jurisdiction of all courts, except that of the
Supreme Court under Article 136 of the Constitution relating to service
matters, and (d) the transfer to each Administrative Tribunal of any suit or
other proceedings pending before any court or other authority immediately
before the establishment of such Tribunal as would have been within the jurisdiction
of such Tribunal the causes of action on which such suits or proceedings were
based had arisen after such establishment.
4. The
Parliament, thereafter enacted The Administrative Tribunals Act, 1985. It received the assent of the President on February 27,
1985.
5. The
Central Administrative Tribunal with five Benches was established on November
1, 1985 in pursuance of the provisions of the Administrative 7 Tribunals Act,
1985. Prior to its establishment, writ petitions were filed in various High
Courts as well as in the Supreme Court challenging the constitutional validity
of Article 323A of the Constitution and the provisions of the Administrative
Tribunals Act. The main contention in the writ
petitions was that the writ jurisdiction of the Supreme Court under Article 32
of the Constitution as well as that of the High Court’s under Article 226 of
the Constitution could not have been taken away even by an amendment of the
Constitution. Although the Supreme Court, by an interim order stayed the
transfer of writ petitions filed in the Supreme Court under Article 32 of the
Constitution to the Central Administrative Tribunal, it did not stay transfer
of writ petitions under Article 226 of the Constitution subject to the
condition that the Government would make certain amendments in the Act.
One of
the amendments suggested by the Supreme Court was that each case in the Tribunal
must be heard by a Bench consisting of one judicial member and one non-
judicial member and the appointment of judicial 8 members should be done in
consultation with the Chief Justice of India. An undertaking was given to the
Supreme Court that a Bill to make suitable amendments in the Act would be
brought before the Parliament as early as possible. The Central Administrative
Tribunal had also started functioning in Benches in accordance with the above
directions of the Supreme Court. As the writ petitions referred to above were
to come up for hearing in January, 1986, the President promulgated the
Administrative Tribunals (Amendment) Ordinance, 1986 on January 22, 1986 so as
to give effect to the assurance given to the Supreme Court and to make some other
amendments found necessary in the administration of the Act. The Ordinance
inter alia provided for the following matters, namely: - (a) The concept of
Judicial Member and Administrative Member was introduced in the Act. The Bench
of Administrative Tribunal was to consist of one Judicial Member and one
Administrative Member 9 instead of three members Bench to be presided over by
the Chairman or by the Vice Chairman. It was also provided that the appointment
of a Judicial Member would be made after consultation with the Chief Justice of
India.
(b) The
jurisdiction of the Supreme Court in service matters under Article 32 of the
Constitution was preserved. The Principal Act had intended to confer this
jurisdiction also on the Tribunals.
(c) A
provision was included to designate, with the concurrence of any State
Government, all or any of the members of the Bench or Benches of the State
Administrative Tribunal established for that State as Members of the Bench or
Benches of the Central Administrative Tribunal in respect of that State.
(d) The
jurisdiction of the Tribunal was also extended to persons, who were governed by
the provisions of the Industrial
Disputes Act, 1947 without affecting the rights of
such persons under the Act.
10
Subsequent to the promulgation of the Ordinance, few doubts were expressed in
respect of some of the provisions of the Act and the Ordinance. It was,
therefore, proposed to include in the Bill a few clarificatory amendments, to
make certain provisions included in the Ordinance retrospective from the date
of establishment of the Central Administrative Tribunal and to validate certain
actions taken by the said Tribunal.
The
amendments included in the Bill were explained in the memorandum attached to
the Bill. Accordingly, the Act of 1985 was amended by Act 19 of 1986 which was
deemed to have come into force on January 22, 1986. By the amendment in the Act
of 1985 it was proposed (1) to exclude from the jurisdiction of an
Administrative Tribunal the powers to adjudicate disputes with respect to
officers and employees of the subordinate courts and to make a provision for
transfer of cases pending in the Administrative Tribunals to the Courts
concerned; (2) that the appointment of the Chairman, Vice-Chairman and other
Members of the Administrative Tribunals 11 would be made in consultation with
the Chief Justice of India. The Act, before its amendment, provided for
consultation with the Chief Justice of India only in respect of Judicial
Members; (3) that the Chairman, Vice- Chairman and other Members of the
Administrative Tribunals would be eligible for re-appointment for a second term
of office; (4) that the Central Government and the appropriate Government
should be empowered to frame rules relating to salary, allowances and
conditions of service of the Chairman and other Members of the Tribunals and
their officers, etc.
6. It may
be mentioned that a writ petition under Article 32 of the Constitution was
filed by a member of the Central Administrative Tribunal, contending that the
decision in S.P. Sampath Kumar vs. Union of India and others [(1987) 1 SCC
124], equated the Central Administrative Tribunal with the High Court and,
therefore, its Chairman should be equated with the Chief Justice of a High
Court and the Vice-Chairman 12 and Members must be equated with the sitting
Judges of the High Court in all respects. It was also contended that while the
Vice-Chairmen have been equated with sitting Judges of the High Courts, the
Members have not been so equated in their pay and other conditions of service
and that a distinction was made in the conditions of service, particularly, the
pay and age of superannuation between the Vice-Chairmen and the Members, which
was arbitrary, as a result of which the Members also should be given the same
pay as that of the Vice-Chairmen and their age of superannuation should also be
the same, i.e., 65 years as that of the Vice-Chairmen. On interpretation of
Article 323A of the Constitution, this Court took the view that Administrative
Tribunals constituted thereunder are distinct from the High Courts and
dismissed the writ petition.
7. The Administrative
Tribunals Act, 1985 came to be amended by the
Administrative Tribunals 13 (Amendment) Act, 2006. By the said amendment the
post of Vice-Chairman in the Administrative Tribunal is abolished. A new
provision, i.e., Section 6(2) is introduced which modifies the qualifications
for appointment as Administrative Member in the Tribunal. Section 10A is
inserted in the main Act, which provides that the conditions of services of the
Judges of the High Court would be applicable only to the Members appointed
after February 19, 2007. The newly inserted Section 10A restricts the total
term of the Members of the Administrative Tribunals to ten years though by the
said amendment the age of superannuation for a Members is raised from 62 to 65
years. Further, Section 10A postulates consideration of a case of a Member for
re-appointment by Selection Committee after February 19, 2007. Section 12(2) of
the Administrative Tribunals Act, 1985 is
amended and power is conferred on the appropriate Government to designate a
Vice-Chairman for the purpose of performing certain duties and functions of the
14 Chairman.
8. The
case of the petitioner is that the post of Vice- Chairman was in existence in
the Administrative Tribunals since its inception which enabled the Judges of
various High Courts to opt for the Central Administrative Tribunal and provided
an opportunity, in the nature of promotion to the Members of the Administrative
Tribunals to the post of Vice-Chairman.
According
to the petitioner, the abolition of the said post now would create anomalous
situation in the structure as well as administration of the Tribunals, if any
High Court Judge is to be appointed only as a Member and, therefore, the
abolition of the post of the Vice-Chairman is unconstitutional. The petitioners
have mentioned that the newly introduced Section 6(2) of the Administrative
Tribunals Act, 1985 modifies the qualifications for
appointment as Administrative Member in the Tribunal in such a manner that
except the IAS officers no other civil servant would ever 15 become eligible
for such appointment and as zone of consideration for appointment of
Administrative Members has been confined to only IAS officers by colourable
exercise of power, the said provision should be regarded as unconstitutional.
What is asserted by the petitioner is that Section 10A does not extend the
benefit of the conditions of service applicable to the Judges of the High Court,
to all the Members of the Tribunals appointed prior to the appointed date,
which is February 19, 2007, but confines the same to the Members, who would be
appointed in future, i.e., after February 19, 2007 as Members of the Tribunals
and as the Members appointed before February 19, 2007 would also be discharging
the same duties and responsibilities, the provision stipulating that the
conditions of service of the Judges of the High Court would be applicable only
to the Members to be appointed after February 19, 2007 has no rational basis or
nexus with any defined objective and, therefore, should be declared to be ultra
vires. It is 16 contended that Section 10A restricting the total term of the
Members of the Administrative Tribunals to ten years is arbitrary because the
said provision has no objective nor any rational basis nor any nexus with
defined objective of the Act. According to the petitioner a number of Judicial
Members in the Tribunals have been appointed from the Bar at the age of 45
years or so, but now their tenure is sought to be curtailed only to ten years,
which would discourage the members of the Bar from joining the Tribunals as a
Member. What is claimed is that the Judicial Members appointed from the Bar
since inception, have played a pivotal role in the judicial administration of
the Tribunals and, therefore, the newly inserted Section 10A restricting the
total term of the Members of the Administrative Tribunals to ten years should
be struck down as arbitrary, unconstitutional and legally not sustainable.
9. The
grievance by the petitioner in writ petition No. 539 of 2007 is that the
decision of the respondents to subject a Member to a fresh selection procedure
is arbitrary and violative of Articles 14 and 16 of the Constitution because,
according to him, the provision requiring consideration of his case for
re-appointment as Member of the Administrative Tribunal by Selection Committee
should not have been made applicable to those, who were duly appointed as
Members prior to February 19, 2007. The petitioner also claims that
introduction of Section 12(2) in the Administrative Tribunals Act, 1985, which
empowers the State Government to designate a Member as a Vice- Chairman for
performing financial and administrative powers destroys the judicial
independence of the Tribunals and as uncontrolled, unguided and unregulated
power has been conferred on the Government to nominate a Member of the Tribunal
as Vice-Chairman for performing those functions, the said provision should also
be struck down. Under 18 these circumstances the petitioners have filed above
numbered petitions and claimed reliefs to which reference is made earlier.
10.On
service of notice, counter affidavit has been filed on behalf of the
respondents by Ms. Manju Pandey, Under Secretary in the Ministry of Personnel,
Government of India. In the counter affidavit it is stated that the
Administrative Tribunals (Amendment) Act, 2006 was intended to achieve the
following objects: - i) To abolish the post of Vice-Chairman in the Tribunals
as it was creating an avoidable three tier institution and resulting in
anomalies in qualifications, age of retirement, service conditions, etc. The
Act was passed so that all the Members of the Central Administrative Tribunal
can be elevated to the same status as of a High Court Judge and, therefore, the
service conditions of the Members of the Tribunals were upgraded to that of a
Judge of the High Court, 19 i.e., the same as was of a Vice-Chairman under the
unamended Act.
ii) Only
for discharging certain administrative functions, some of the Members in
different Benches are to be designated as Vice-Chairmen, but the said
designation is not to confer any special benefit to the Member so designated.
iii)
Since the age of retirement of a Government servant was raised from 58 years to
60 years, a retired Government servant had a tenure of only two years as a
Member of the Tribunal and he was not able to contribute much to the disposal
of the cases.
Therefore,
it was felt that every member of the Tribunal should have tenure of five years.
Though it was not mentioned in the Statement of Objects and Reasons, it was
also understood that since retired High Court Judges would be considered for
appointment as Members of the Central Administrative Tribunal, the age of
retirement should be increased to 20 65 years and correspondingly the age of
retirement of the Chairman should be increased to 68 years so that the Chairman
of the Tribunal could have a full term of five years.
iv) The
post of Vice-Chairman under the Amended Act is only an executive designation
for discharging administrative powers and though the Government has been given
the power to nominate one of the members as Vice-Chairman of the Tribunal, said
designation would obviously be made with the concurrence of the Chairman of the
Tribunal.
After
emphasizing the intended objects sought to be achieved by the Amending Act, it
is stated in the reply that the post of Vice-Chairman of the Tribunal resulted
in three different levels of functionaries in the Tribunal and, therefore, the
Government of India took a policy decision that it would be beneficial and in
the interest of uniformity of service that the hierarchy be reduced to just two
posts, i.e., the Chairman and the Members of 21 the Tribunal, which cannot be
said to be either discriminatory or arbitrary or illegal. It is further
mentioned in the counter affidavit that Section 8 of the unamended Act provided
that the maximum tenure of the Chairman, Vice-Chairmen or a member of the
Administrative Tribunal would be ten years subject to the age of retirement,
which was 65 years in the case of Chairman or Vice-Chairman and 62 years in the
case of any other Member and it is not correct to say that Section 10A inserted
by the Amending Act, for the first time restricts the term of the Members of
the Tribunal to ten years. It is explained in the counter affidavit that the
reason for raising the retirement age from 62 to 65 years was because the
retirement age of Government servants had been increased from 58 years to 60
years and a retired Government servant had a tenure of only two years as a
Member of the Tribunal as a result of which he was not able to contribute much
while being Member of the Tribunal. As per the counter affidavit the
qualifications required for being selected as 22 Administrative Member were the
same as required for being chosen as Vice-Chairman of the Tribunal in the
pre-amended Act and as no change by the amendment is effected so far as
selection of a Member is concerned, the new provision should not be regarded as
unconstitutional. What is asserted in the counter affidavit is that as per
Section 12 of the Amended Act, the Chairman of the Tribunal would have all
financial and administrative powers over the Benches, but the Vice- Chairman
can be designated by the Central Government, obviously with concurrence of the
Chairman, and a Member so designated would discharge such functions of the
Chairman as the Chairman may direct and, therefore, it is wrong to contend that
by introduction of Section 12(2) of the Act, the independence of judiciary and
independence of Tribunal is sought to be curtailed by the Executive. It is
explained in the counter affidavit that earlier the post of Vice-Chairman was
not a promotional post for a Member of the Tribunal and the qualifications of
the Vice-Chairman were different from a Member of the 23 Tribunal, but, by
amendment the qualifications of Members of the Tribunal have been raised to
that of the Vice-Chairman and this change in qualifications neither affects the
status of a retired High Court Judge nor confers arbitrary benefits on the
non-Judicial Members and, therefore, the said provision is perfectly legal. It
is further pointed out in the counter affidavit that except the change in the
nomenclature, a retired High Court Judge would get exactly the same facilities,
if he is appointed today as Member of the Tribunal instead of designating him
as Vice-Chairman of the Tribunal under the unamended Act and, therefore, it is
wrong to contend that the amendments are violative of the provisions of the
Constitution. It is explained in the reply that in the parent Act also the
Members were eligible for re- appointment for a second term of five years and
not further whereas in the Amended Act, appointment of a Member is for a period
of five years extendable by one more term of five years provided he has not
attained the age of 65 years, and this provision does not infringe any 24 of
the rights of the Members of a Tribunal, who seek extension for a second term.
It is stated in the counter that the qualifications for appointment as an
Administrative Member of the Tribunal, prior to its amendment were on the lower
side and a need was felt that persons, who were appointed as Administrative
Members, should have sufficient experience of high posts so as to enable them
to understand the complexities of service jurisprudence and, therefore, certain
additional qualifications have been prescribed, which cannot be termed as
affecting the independence of the Tribunals.
What is
stated in the counter affidavit is that as a matter of policy it is now
provided that all officers, who are in the pay-scale of Secretary or Additional
Secretary, would be eligible for appointment and the Selection Committee would
invariably choose the most eligible person for the said post. It is pointed out
that the Amended Act substantially changes the qualifications for appointment
as a Member of the Tribunal and now the post of a Member of the Tribunal is
equivalent to the post of the 25 Vice-Chairman as it existed prior to the
amendment and, therefore, in terms of status and service conditions the Members
appointed after February 19, 2007 have been granted the status available to a
Vice-Chairman before the amendment. What is stressed is that though the present
Members and Members to be appointed in future would discharge similar
functions, there is a marked distinction between the eligibility criteria and,
therefore, it is wrong to contend that the two form one class and the provisions
are arbitrary.
11.Similarly,
on service of notice in Writ Petition (C) No. 539 of 2007, affidavit in reply
has been filed on behalf of respondent Nos. 1 and 2 by Ms. Manju Pandey,
Director in the Ministry of Personnel, Government of India. In the said
petition affidavit in reply on behalf of Government of Maharashtra is filed by
Mr. Vijay Dattatraya Shinde, Under Secretary, General Administration Deptt.,
State of Maharashtra. It may be mentioned that in both the above referred to
two 26 replies it is stated that a member appointed prior to February 19, 2007
and seeking extension for second term has to fulfill qualifications prescribed
by the Amended Act, which cannot be termed as arbitrary or unconstitutional.
12.This
Court has heard the learned counsel for the parties at length and in great
detail.
13. The
contention that the abolition of the post of Vice- Chairman, which was in
existence since inception of the Administrative Tribunals, is unconstitutional
because it would create anomalous situation in the structure as well as
administration of the Tribunals if any High Court Judge is appointed as Member
of the Tribunal, cannot be accepted. As explained in the reply affidavit the
post of Vice-Chairman in the Tribunal had created an avoidable three tier
institution and resulted in anomalies in qualifications, age of retirement,
service conditions etc. It is worth noticing that Members of the Tribunal had
claimed 27 equality with the Judges of the High Court or even the Vice-chairman
of the Tribunal, in the matter of pay and superannuation. That claim was
rejected by this Court in M.B. Majumdar v. Union of India [(1990) 4 SCC 501]
with an observation that it is for the Parliament to enact a law for equating
Members of the Tribunal with Judges of High Court for the purposes of pay and
superannuation. The Parliament, in exercise of powers under Article 323A of the
Constitution, has amended the Administrative Tribunals Act, 1985 and equated its Members with Judges of High Court for the purposes of
pay and superannuation. The Parliament, by enacting a law, has right to change
the conditions of service of Members of the Administrative Tribunals.
While
upgrading the conditions of service of the Members, the conditions of service
of a Judicial Member are not changed to his detriment. By the amending Act all
the Members of the Central Administrative Tribunal have been elevated to the
status of a High Court Judge. The service conditions 28 of the Members of the
Tribunal have been upgraded to that of a High Court Judge, which cannot be
regarded as illegal or unconstitutional. The qualifications of the
Vice-chairman provided in Section 6(2)(a), 6(2)(b) and 6(2)(bb) in the
unamended Act were also to a large extent qualifications prescribed for
appointment of a person as an Administrative Member. The only addition made by
the Amending Act is that now the Secretary to the Government of India, in the
Department of Legal Affairs or the Legislative Department including
Member-Secretary, Law Commission of India or a person who has held a post of
Additional Secretary to the Government of India in the Department of Legal
Affairs and Legislative Department at least for a period of five years, are made
eligible for appointment as a Judicial Member. It is to be noted that though
under the unamended Act, it was not specifically provided that person who held
the post of a Secretary to the Government of India in the Department of Legal
Affairs or the Legislative 29 Department including Member-Secretary, Law
Commission of India for at least two years or persons who held post of
Additional Secretary to the Government of India in the Department of Legal
Affairs and Legislative Department at least for a period of five years, was
eligible to be appointed as an Administrative Member, but he was eligible to be
appointed as Administrative Member in view of the qualifications which were
laid down for a person to be appointed as Administrative Member. However, by the
Amendment, such a person is declared to be eligible for being appointed as
Judicial Member having regard to his experience and opportunity to deal with
legal issues in his respective department. Section 6(3) and 6(3)(a) of the
earlier Act provided a much lower qualification for a Member of the Tribunal.
The amended qualifications for a Member of the Tribunal are nearly the same as
Vice-Chairman of the Tribunal, which clearly reflects the intention of the
Government to upgrade the post of an Administrative Member. In 30 such
circumstances the need for having a Vice- Chairman was obviated and the
Government, therefore, abolished the post of Vice-Chairman by the impugned
enactment. By abolition of the post of the Vice-Chairman no anomalous situation
is sought to be introduced in the structure as well as functioning and
administration of the Tribunals. A retired High Court Judge would be eligible
for appointment as Member of the Tribunal and on such appointment would be
eligible to all the facilities as a Judge of the High Court. The Chairman of
the Tribunal is normally a retired Chief Justice of the High Court and very
rarely a retired Judge is appointed as Chairman of the Tribunal. In any event
the Chairman would be senior to a retired Judge, who is appointed as a Member
of the Tribunal. Therefore, this Court finds that no anomaly, as contended by
the petitioners, would take place at all on the abolition of the post of Vice-
Chairman. The petitioner could not establish before the Court that by upgrading
the status of the 31 Administrative Member of the Tribunal to that of a High
Court Judge a particular provision of the Constitution is infringed. The plea
that abolition of post of Vice-Chairman will discourage a sitting or retired
High Court Judge from joining the Tribunal cannot be appreciated. The
composition of the Tribunal, after amendment of the Act, is such that there
would be a Vice-Chairman if required as under Section 12, a Judicial Member and
another member to be appointed from civil services. A High Court Judge, who
opts for the post of judicial Member in the Tribunal, would not be lowering his
status after the amendment because all the service conditions applicable to him
as a High Court Judge have been saved. Therefore, the first contention that
abolition of the post of Vice-Chairman except for the purposes of Section 12 of
the Act would create anomalous situation in the structure as well as
administration of the Tribunal, if any High Court Judge is appointed as a
Member has no substance and is hereby rejected.
32 14.The
argument that Section 6(2) of the Administrative Tribunals Act, 1985 modifies
the qualifications for appointment as an Administrative Member of the Tribunal
in such a manner that except the IAS officers no other civil servant would ever
become eligible for such appointment is without any factual basis. The newly
amended provision requires that a person shall not be qualified for appointment
as an Administrative Member unless he has held for at least two years the post
of Secretary to the Government of India or any other post in the Central or
State Government and carrying the scale of pay, which is not less than that of
a Secretary to the Government of India for at least two years or held post of
Additional Secretary to the Government of India for at least five years or any
other post under the Central or State Government carrying the scale of pay
which is not less that that of an Additional Secretary to the Government at
least for a period of five years. What is relevant to notice is the proviso to
sub-Section (2) of Section 6 of the Act, 33 which stipulates that the officers
belonging to All India Services, who were or are on Central deputation to a
lower post shall be deemed to have held the post of Secretary or Additional
Secretary as the case may be, from the date such officers were granted proforma
promotion or actual promotion whichever is earlier, to the level of Secretary
or Additional Secretary, as the case may be, and the period spent on Central
deputation after such date shall count for qualifying service for the purposes
of this clause. A reasonable reading of sub-Section (2) of Section 6 of the Act
makes it very clear that by no stretch of imagination it can be said that the
qualifications for appointment as Administrative Member of the Tribunal are
laid down in such a manner that except an IAS officer no other civil servant
would become eligible for such appointment. It is necessary to notice that
officers belonging to All India services have been made eligible to be
appointed as Administrative Member subject to the fulfillment of qualifications
stipulated in Section 6 34 of the Act. It is wrong to contend that All India
Services comprise only of the IAS officers. All India Services comprise IAS,
IFS, IRS, etc. Merely because higher qualifications have been prescribed one
need not conclude that except an IAS servant, no other civil servant would be
eligible for appointment as a Member. The higher qualifications have been
prescribed for the benefit and interest of uniformity of the two level cadres
contemplated by the amended provisions. There is no manner of doubt that
Government of India took a policy decision to prescribe higher qualification
for better discharge of functions by the Members constituting the Tribunals and
the said policy decision cannot be regarded as arbitrary or unreasonable. The
qualifications of the Vice- Chairman were provided in Sections 6(2)(a),
6(2)(b), 6(2)(bb) and 6(2)(c) of the unamended Act. To a large extent, the
qualifications laid down in the unamended Act are almost the same as are laid
down in the amended provisions. Therefore, the contention that 35 the amended
provisions lay down qualifications for appointment as Administrative Member in
such a manner that except IAS officers no other civil servant would ever become
eligible for such appointment cannot be accepted.
15. The
plea that Section 10A, which restricts the total term of the Member of the
Administrative Tribunal to ten years should be regarded as unconstitutional has
also no substance at all. The age of retirement of a Government servant has
been raised from 58 years to 60 years. Initially under the unamended provisions
of the Act a retired Government servant had a tenure of only two years as a
Member of the Tribunal and it was noticed that he was not able to contribute
much while performing duties as a Member of the Tribunal. It was felt necessary
that every Member of the Tribunal should have a tenure of five years.
Therefore, the provisions relating to term of office incorporated in Section 8
of the Act were amended in the year 1987 36 and provision was made fixing term
of office of Chairman, Vice-chairman and Members at five years period. This
Court, in S.P. Sampath Kumar vs. Union of India and others [(1987) 1 SCC 124],
expressed the view that the term of five years, for holding the posts mentioned
in Section 8 of the Act was so short that it was neither convenient to the
person selected for the job nor expedient to the scheme. This Court found that
it became a disincentive for well qualified people as after five years, they
had no scope to return to the place from where they had come. The
constitutional validity of the provisions of Section 8, fixing term of office
of Chairman, Vice-chairman and Members of the Tribunal at five years period was
upheld by this Court in Durgadas Purkyastha vs. Union of India & others
[(2002) 6 SCC 242]. Therefore, now provision is made for extension of term of
office by a further period of five years. Thus the Government has decided to
provide for extension in term of office by five years of a Member so that he
can effectively contribute to speedy 37 disposal of cases, on merits after
gaining expertise in the service jurisprudence and having good grip over the
subject. Under the unamended provisions of the Act also the term of
Vice-Chairman and Member was extendable by a further period of five years and
under the unamended provisions also a Member of the Bar, who was appointed as
Judicial Member of the Tribunal, had maximum tenure of ten years. It is not the
case of the petitioners that the unamended provisions of the Act, which
prescribed total tenure of ten years for a Member of the Bar was/is
unconstitutional. The provisions of Section 8 fixing maximum term of office of
the chairman at sixty eight years and of a Member of the Tribunal at 10 years,
cannot be regarded as unconstitutional because concept of security of tenure
does not apply to such appointments. Said provision cannot be assailed as
arbitrary having effect of jeopardising security of tenure. An Advocate
practising at the Bar is eligible to be appointed as Member of Tribunal subject
to his 38 fulfilling required qualifications. In all, such a Member would have
term of office for ten years. On ceasing to hold office, a Member, subject to
the other provisions of the Act, is eligible for appointment as the Chairman of
the Tribunal or as the Chairman, Vice- chairman or other Member of any other
Tribunal and is also eligible to appear, act or plead before any Tribunal
except before the Tribunal of which he was Member. Under the circumstances,
this Court fails to appreciate as to how the amended provisions restricting the
total tenure of a Member of the Tribunal to ten years would be
unconstitutional. The unamended Section 6 of the Administrative Tribunals Act,
1985 indicated that the Chairman, Vice-Chairman and other Members, held
respective offices in one capacity or the other, had reasonably spent
sufficient number of years of service in those posts before they were appointed
in the Tribunal and, therefore, the concept of security of tenure of service in
respect of those whose term was reduced was not regarded as 39 appropriate. The
impugned provision, therefore, cannot be assailed on the ground of
arbitrariness having the effect of jeopardizing the security of tenure of
Members of the Bar beyond reasonable limits. An option is reserved to the
Government to re-appoint a Member on the expiry of the first term beyond five
years. The outer limit for the Member is that he should be within the age of 65
years. Thus, it would not be in every case that the Government would put an end
to the term of the office at the end of five years because such Chairman or
Member is eligible for appointment for another period of five years after
consideration of his case by a committee headed by a Judge of the Supreme Court
to be nominated by the Chief Justice of India and two other Members, one of
whom will be the Chairman of the Tribunal. Under the circumstances, it is
difficult to conclude that the provision restricting the total tenure of a
Member to ten years is either arbitrary or illegal.
40 16.The
plea that Section 10A of the Act requiring a sitting Member of the Tribunal,
who seeks extension for second term to possess the qualifications laid down by
the amended Act and get himself selected through Selection Committee is
arbitrary, is devoid of merits.
The
selections to be made as an Administrative Member after February 19, 2007 are
made applicable uniformly to those who would be appointed as Administrative
Member after February 19, 2007. A Member, who was appointed prior to February
19, 2007, cannot claim that he has vested right of extension of his term for a
further period of five years as per the qualifications laid down in the
unamended Act and that qualifications prescribed by the amending Act should be
ignored in his case while considering his case for extension of term for a
further period of five years. Over a period of time the anomaly, if any, would
get cleared itself and after a period of 4-5 years all the Members of the
Tribunal would be equal in status and that every Member to be appointed will 41
have to qualify himself as per the qualifications laid down in the Amended Act
and will have to get himself selected through Selection Committee. The
eligibility conditions of the Members appointed prior to and after February 19,
2007 are different. Since the Members of the Administrative Tribunals appointed
prior to February 19, 2007 form a different class from those appointed or to be
appointed after February 19, 2007.
Article
14 of the Constitution would stand violated if they are treated differently in
the matter of appointment or extension of service as a Member after February
19, 2007. Extension in service by a Member cannot be claimed as matter of right
and would always be subject to fulfillment of qualifications and conditions
stipulated in the Amended Act. As observed earlier, the petitioner in Writ
Petition (C) 539 of 2007 could not have claimed, as a matter of right,
automatic re-appointment as Judicial Member of the State Administrative
Tribunal after his first term of five years was over. As is provided in the
Amending Act, 42 under the old provisions also a Member of the Administrative
Tribunal was eligible to be re- appointed, which was considered to be a fresh
appointment for all the practical purposes. Under the provisions of unamended
Act, at the end of five years, the Chairman, Vice-chairman and other Members
were eligible for reappointment for another period of five years after
consideration by a Committee headed by a Judge of the Supreme Court and two
other members, one of whom was Chairman of the Tribunal. The petitioner can
only be considered for appointment as a Member as per the fresh selection
procedure provided by the Amended Act. The Selection Committee has to choose
the best candidate available for the post. It is not the requirement of the law
that the Selection Committee should inform the petitioner the reasons for not
recommending his name. Merely, because there is a vacancy in the post of Member
(Judicial) in the Maharashtra Administrative Tribunal, the petitioner cannot
claim a right to be appointed to the said post 43 irrespective of the
provisions of the amended Act. The petitioner can be appointed only if
Selection Committee recommends his appointment and the recommendation is
accepted by the President, after the consultation with the Governor of the
State. In view of this position of law emerging from the provisions of the
unamended and amended Act, the Writ Petition (C) No. 539 of 2007 filed by the
petitioner will have to be rejected.
17.The
argument that Section 12(2) of the amended Act enabling the appropriate
Government to nominate one of the Members of the Tribunal to perform financial
and administrative functions destroys independence of the Tribunal which is a
Judicial Forum and, therefore, the said provision should be regarded as
unconstitutional, is devoid of merits. As is clear from the provisions of
Section 12 of the Amended Act, the Chairman of the Tribunal has to exercise all
financial and administrative powers over the Benches.
44
Essentially the provision for delegating financial and administrative powers to
one of the Members of a Bench is made, to lessen administrative burden lying on
the shoulders of the Chairman who normally sits at Delhi and for effective and
better administration of the Benches of the Tribunal located in different and
far flung States of the country. It is not difficult to visualise the problems,
complications, obstacles, delay, etc., faced by the Chairman, while exercising
financial and administrative powers over the Benches.
The
decentralisation of financial and administrative powers to tackle local needs
and problems, in favour of a Member of Tribunal, for effective administration
of the Tribunals, cannot be regarded as destroying the basic feature of the
Constitution, namely independence of judiciary. The designation of the
Vice-Chairman by the Central Government under Section 12(2) of the Act would
obviously be in concurrence with the Chairman. Further, the Vice- Chairman
would discharge such functions of the 45 Chairman as the Chairman may so
direct. It is absolutely, completely and entirely for the Chairman to recommend
to the Government as to designate which Member of the Tribunal as Vice-Chairman.
The said provision is an enabling provision, which is clear from the use of the
expression "may" in the said provision. If the Chairman of the
Tribunal feels that no Member should be designated as Vice-Chairman, the
Government suo motu cannot and would not be in a position to make designation
contemplated by the said provision. The designation as Vice-Chairman would not
entitle the Member so designated to any special benefits in service conditions.
The only purpose of the said provision is to help the Chairman in discharge of
his administrative functions as the Benches of the Tribunal are situated in
different parts of the country. Section 12(2) of the Act, which enables the
appropriate Government to designate one or more Members as Vice-Chairman and
entitles the Members so designated to exercise such powers and perform 46 such
functions of the Chairman as may be delegated to him by the Chairman by general
or special order in writing cannot be regarded as destroying the principle
independence of judiciary or of the Administrative Tribunals. This Court fails
to understand as to how the appropriate Government would be able to destroy the
independence of Tribunals by designating one or more Members to be the
Vice-Chairman for the purposes of performing the functions of the Chairman to
be delegated to him by the Chairman. The jurisdiction, powers and authority of
the Central Administrative Tribunal are defined in the Act and, more
particularly, in Sections 14, 15, 16, 17 and 18 of the Act. The petitioners
have failed to demonstrate that by authorizing appropriate Government to
designate one or more Members to be the Vice- Chairman for the purpose of
performing financial and administrative powers of the Chairman, the
independence of the Tribunals secured by the above referred to provisions is in
any manner eroded. The 47 challenge to the constitutional validity of Section
12(2) of the Act to say the least is misconceived and without any basis and,
therefore, must fail.
18.For
the reasons stated in the Judgment, this Court does not find any merits in any
of the abovementioned writ petitions and they are liable to be dismissed.
Accordingly,
both the writ petitions fail and are dismissed. There shall be no order as to
costs.
...................................CJI (K.G. Balakrishnan)
......................................J. (J.M. Panchal)
New Delhi;
May 06, 2010
48
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT
PETITION (CIVIL) NO. 261 OF 2007 A. K. Behera .. Petitioner Versus Union of
India & Another .. Respondents 49 WITH WRIT PETITION (CIVIL) NO. 539 OF
2007 P. K. Gaikwad .. Petitioner Versus Union of India & Others ..
Respondents
Dalveer
Bhandari, J.
1. I have
had the benefit of going through the judgment of my Brother Hon'ble Mr. Justice
J.M. Panchal. Though Hon'ble Mr. Justice K.G. Balakrishnan, Chief Justice of
India has agreed with his decision, however, I express my inability to agree
with him, therefore, I am writing a separate judgment.
2. Writ
Petition No. 261 of 2007 under Article 32 has been filed by a practicing
Advocate and the President of the Central Administrative Tribunal, Principal
Bench, Bar Association, New Delhi. The connected Writ Petition No. 539 of 2007
under Article 32 has been filed by a Member (Judicial) in the 50 Maharashtra
Administrative Tribunal, Maharashtra. Most of the issues involved in both the
petitions are identical, therefore, both these petitions are being disposed of
by this common judgment.
3. The
petitioners are aggrieved by certain amendments carried out in the
Administrative Tribunal Act, 1985 (for short, `the Act').
4. The
petitioners are particularly aggrieved by the abolition of the post of
Vice-Chairman in the Central Administrative Tribunal by the Administrative
Tribunal (Amendment) Act 2006 (for short, `Amendment Act') which came into
force by Act No.1/2007 dated 19.2.2007. According to the petitioners, the said
Amendment Act is constitutionally and legally untenable and unsustainable
because no reason for such abolition has been spelt out by the respondents at
any point of time while introducing the said Amendment Bill.
5. The
petitioners are also aggrieved by the newly inserted Section 10A of the Act
which creates a hostile discrimination 51 in the matter of conditions of
service between the members of the Tribunal appointed before and after
19.2.2007 inasmuch as "conditions of service" of a High Court Judge
have been granted to members appointed after 19.2.2007 while the same have been
denied to other members appointed before 19.2.2007.
6.
According to the petitioners, the newly inserted section 10A is discriminatory
and arbitrary inasmuch as, on the one hand, vide section 8(2) of the Amendment
Act, the age of retirement for members has been increased from 62 years to 65
years and, on the other hand, by the newly inserted Section 10A, the total
tenure of members of the Administrative Tribunals has been restricted to ten
years (two terms), in other words, compelling them to retire at the age of
fifty five years is wholly irrational and discriminatory and has been designed
to discourage promising and otherwise deserving, competent and successful
members of the Bar from joining the Tribunal. The age of appointment as a
judicial member of the Tribunal is 45 years and any member who is appointed at
that age 52 necessarily has to retire at the age of 50 or 55 years, whereas
other members retire at the age of 65 years. Insertion of section 10A would
seriously discourage, deter and dissuade deserving members of the Bar from
joining the Tribunal because it would totally frustrate their career planning.
The member after demitting the office is debarred from practicing before any
Bench of the Tribunal.
7. The
petitioners also submitted that the judicial members appointed from the Bar
since the inception of the Tribunal have played a pivotal role in the judicial
functioning of the Tribunal. They have been in fact the backbone of the
Tribunal. Thus the present amendment would greatly affect the efficiency,
efficacy and credibility of the Tribunal. No reason, rationale or logic has
been spelt out as to why the ceiling of ten years has been imposed particularly
when the age of superannuation has been increased from 62 years to 65 years for
other members.
8. The
petitioners submitted that the amended section 12(2) of the Act amounts to
interference of executive in the affairs of 53 the judiciary by which the power
to designate one or more members as "Vice-Chairman" to exercise
certain powers and perform certain functions of the Chairman in the outlying
Benches of the Tribunal has been conferred upon the Government whereas,
previously such powers were vested with the Chairman of the Tribunal.
9. The
petitioners further submitted that the Amendment Act has abolished the post of
"Vice-Chairman" in the Administrative Tribunals. The post of
Vice-Chairman had been in existence in the Administrative Tribunal since its
inception in 1985. The said post enabled the retired or retiring judges of
various High Courts to join the Central Administrative Tribunal. Besides, it
also provided an opportunity in the nature of promotion for the members of
Administrative Tribunals. By abolition of the post of Vice- Chairman, the
retired High Court judges would not find it attractive to join the Tribunal
and, consequently, the judicial character of the Tribunal would suffer a
serious setback.
10. It
was also submitted that the newly introduced section 6(2) of the Administrative
Tribunals Act, 1985 modifies the qualifications for
appointment as Administrative Members in the Tribunal in such a manner that for
all practical purposes, except for the officers of the Indian Administrative
Service (for short, `IAS'), hardly any other civil servant would ever become
eligible for such appointment. Earlier, even the Income Tax, Postal and Customs
Officers etc. used to become members of the Tribunal. Now, after the amendment,
they would hardly have any chance of becoming members of the Tribunal. In other
words, by the 2006 Amendment, the zone of consideration for appointment of
Administrative Members has been essentially confined only to IAS officers by a
colourable exercise of power by depriving all other categories of civil
servants for such appointment. The petitioners have not placed sufficient
material on record to decide this controversy, therefore, I refrain from
commenting on this grievance of the petitioners. However, I direct the
respondents to look into the grievance of members of other services and if any
merit is 55 found in the grievance then take appropriate remedial steps so that
members of other services may get proper representation.
11. The
petitioners further submitted that by introducing section 12(2) in the Act, the
power to designate a "Vice- Chairman" in the Benches for the purposes
of certain duties and functions of the Chairman has been usurped by the
government. Previously such powers were vested with the Chairman of the
Tribunal. Such a provision has the potentiality of destroying the judicial
independence of the Tribunal particularly when such uncontrolled, unguided and
unregulated powers have now been given to the Government.
12. In
order to properly comprehend the controversy involved in the case, relevant
newly inserted sections 10A and 12(2) along with unamended section 12 are
reproduced as under:- Newly Inserted Section 10A of the Amended Act "10A.
Saving terms and conditions of service of Vice-Chairman. - The Chairman, Vice-
Chairman and Members of a Tribunal appointed before the commencement of the
Administrative Tribunals (Amendment) Act, 2006 shall continue to 56 be governed
by the provisions of the Act, and the rules made thereunder as if the
Administrative Tribunals (Amendment) Act, 2006 had not come into force:
Provided
that, however, such Chairman and the Members appointed before the coming into
force of Administrative
Tribunals (Amendment) Act, 2006, may on completion of
their term or attainment of the age of sixty-five or sixty-two years, as the
case may be, whichever is earlier may, if eligible in terms of section 8 as
amended by the Administrative Tribunals (Amendment) Act, 2006 be considered for
a fresh appointment in accordance with the selection procedure laid down for
such appointments subject to the condition that the total term in office of the
Chairman shall not exceed five years and that of the Members, ten years."
SECTION
12 SECTION 12 (2) (BEFORE AMENDMENT) (AFTER AMENDMENT) "12.Financial and
administrative powers of the Chairman.- The 12. Financial and Chairman shall
exercise such administrative powers of financial and administrative the
Chairman.- (1) The powers over the Benches as may Chairman shall exercise be
vested in him under the rules such financial and made by the appropriate
administrative powers over Government: the Benches as may be vested in him
under the Provided that the Chairman shall rules made by the have authority to
delegate such of appropriate Government.
his
financial and administrative (2)The appropriate powers as he may think fit to
the Government may Vice-Chairman or any officer of the designate one or more
Tribunal, subject to the condition Members to be the Vice- that the Vice-Chairman
or such Chairman or, as the case 57 officer shall, while exercising such
delegated powers, continue to act may be, Vice-Chairman under the direction,
control and thereof and the Members supervision of the Chairman." so
designated shall exercise such of the powers and perform such of the functions
of the Chairman as may be delegated to him by the Chairman by a general or
special order in writing.
13. In
pursuance to the show cause notice issued by this Court, the respondents,
through the Under Secretary in the Ministry of Personnel, Government of India,
have filed counter affidavit incorporating therein that abolishing the post of
Vice- Chairman in the Tribunal was intended as it was creating an avoidable
three tier-system resulting in anomalies in qualifications, age of retirement,
service conditions etc. It is further incorporated in the counter affidavit
that the abolition of the post of Vice-Chairman and upgrading the post of
members or increase of retirement age do not in any manner impinge upon the
working of the Tribunal.
14. It is
also incorporated in the counter affidavit that the post of Vice-Chairman under
the amended Act is only an executive designation for discharging the
administrative powers. Though the Government has been given the power to
nominate one of the members as Vice-Chairman of the Tribunal, it is obvious
that the said designation of a member as Vice-Chairman would obviously be made
with the concurrence of the Chairman of the Tribunal.
15. In
the counter affidavit, it is also stated that a retired High Court judge would
be eligible for appointment as member of the Tribunal. Usually a retired Chief
Justice of the High Court is appointed as the Chairman of the Tribunal and very
rarely, a retired judge may also be appointed as the Chairman of the Tribunal.
In any event, the Chairman would be a senior retired judge who is appointed as
a member of the Tribunal.
Hence,
there is no anomaly.
16. In
the counter affidavit, it is specifically admitted that there is some substance
in the contention of the petitioners that members appointed prior to 19.2.2007
would be at 59 disadvantage in terms of their service conditions inasmuch as
they would not get the same benefits as the High Court judge.
However,
this is a temporary anomaly. Over a period of time, the same anomaly would
correct itself and after a period of 4-5 years, all the members of the Tribunal
would be treated in an equal manner.
17. In
the counter affidavit it is denied that ceiling on the terms has the effect of
stopping members of the Bar from being appointed for the post of Vice-Chairman.
In the counter affidavit it is also incorporated that the tenure of ten years
was prescribed way back in the year 1985.
18. The
petitioners have also filed the rejoinder affidavit. It is reiterated that
under the un-amended Act, members of the Tribunal were eligible for multiple
terms and it was not restricted to two terms. In fact, a number of members were
given multiple extensions under the unamended Act. Thus the restriction of ten
years has been imposed for the first time under the amended Act.
19. In
the rejoinder affidavit, it is reiterated that the discriminatory treatment
being given to the members of Administrative Tribunal appointed prior to
19.2.2007 is untenable and unsustainable. Law does not allow temporary
discrimination even for a few years. It is clearly violative of Articles 14 and
16 of the Constitution.
20. In
the rejoinder, it is further asserted that under the unamended Act the High
Court Judges were being appointed as Vice-Chairman and, therefore, they enjoyed
higher status than that of the members. Thus, when a Bench was being
constituted consisting of a High Court Judge as Vice- Chairman and other
members, the High Court Judge used to preside over the Bench as the
Vice-Chairman. Now under the Amended Act the posts of Vice-Chairman having been
abolished, the High Court Judges are also appointed as Member (Judicial) and
the seniority among members has to be on the basis of date of appointment as a
member. In such an eventuality, many High Court Judges who would be appointed
as Member (Judicial) could be lower in the seniority creating 61 an anomalous
situation for the constitution of Benches in the Tribunal. Besides, if for any
reason a retired High Court Judge presides over the Bench as the Vice-Chairman,
even though he may have joined as a member much later, it would create a lot of
heart-burning amongst all previously appointed members as the class of members
has now been made one.
21. It is
also incorporated in the rejoinder that the amendment has placed the members of
the Bar in a totally disadvantageous position as previously the members of the
Bar were being selected as Member (Judicial), but with the amendment now the
retiring and retired High Court Judges are competing for the post of Member
(Judicial) thereby the members of the Bar are totally ignored. Theoretically,
the members of the Bar are eligible for appointment as Member (Judicial),
practically competent and otherwise deserving lawyers have been eliminated from
the scene. The Tribunal which is discharging judicial powers which were earlier
exercised by the High Courts should be predominantly manned by the members of
the Bar and Judiciary but after the 62 amendment till date only two members
have been appointed from the Bar in so many years. This is the direct and
inevitable impact of the amendment. This goes against the letter and spirit of
the law declared in the case of S.P. Sampat Kumar v. Union of India &
Others (1987) 1 SCC 124.
22. The
petitioners further submitted in the rejoinder that the designation of
Vice-Chairman is still in existence under Amended Act also but the power of
nomination for the said post in all additional Benches under the amended Act
has been given to the appropriate Government which is not a healthy development
and thus needs to be quashed.
23. The
petitioners submitted that the effort of the Central Government to increase the
age of retirement of the members of Tribunal from 62 to 65 years is undoubtedly
a welcome step. However, by this effort every member of Tribunal will not have
a tenure of 5 years as asserted by the respondents. The High Court Judges
retire at the age of 62 years. Under the amended Act members of the Tribunal
retire at the age of 65 years thereby effectively serving the Tribunal only for
a 63 maximum period of three years. The increase in the age of retirement will
give a minimum tenure of 5 years to the Administrative Members but not to the
retired High Court Judges who are appointed as Judicial Members. They would get
maximum of three years only.
24. The
petitioners also made grievance that as to why it became imperative to snatch
the powers of the Chairman to delegate his financial and administrative powers
to any Vice- Chairman/Member. In the rejoinder, it is submitted that the
respondents have clearly admitted that the discriminatory treatment is being
given to the members of the Administrative Tribunal appointed prior to
19.2.2007.
25. The
respondents have nowhere denied that both the categories of members are not
discharging the same duties, obligations and responsibilities, therefore, the
conditions of service for both of them are different. This is a clear
discrimination and violation of Articles 14 & 16 of the Constitution of
India. Thus, even on the basis of reply given by the respondents it is proved
beyond any shadow of doubt that 64 section 10A of the amended Act is clearly
discriminatory and unsustainable.
26. The
contention of the respondents that the `temporary anomaly' would not make the
provision unconstitutional is clearly wrong and is denied. Discrimination even
for a temporary period of 4 to 5 years is also violative of Articles 14 and 16
of the Constitution of India. There is no law under which a temporary
discrimination can be saved.
27. It is
also stated that because of this discriminatory provision anomalous situation
has already arisen in the Central Administrative Tribunal. The petitioners have
given an example that under the unamended Act, only the Secretaries and the
Additional Secretaries to the Government of India were eligible for appointment
as Member (Administrative). Under the said unamended provisions, a number of
former Secretaries to Government of India were appointed as Member
(Administrative). They have been continuing as such till date and have acquired
experience of a number of years. They are till now continuing under the old 65
conditions of service. Now under the amended provisions, selection has already
been held and a number of retired judges and officers at the level of the
Additional Secretaries to Government of India have been selected and appointed
as members under the new conditions of service. Thus, while retired Judges and
Secretaries to the Government of India now working as members are not given the
benefit of the `conditions of service' of a High Court Judge but subsequently
appointed retired Additional Secretaries to the Government of India now
appointed as Member (Administrative) are given service conditions of a High
Court Judge. The Administrative Members, though junior both while in the
government service as well as an Administrative Member are entitled to get
service conditions of a High Court Judge.
28. The
situation is becoming more and more acute with more and more newly selected
Members (Administrative) joining the Tribunal. Similar situation is prevailing
amongst Member (Judicial) also. While persons appointed as Member (Judicial)
and senior to some newly appointed Member 66 (Judicial) would not get the
benefit of the service conditions of a High Court Judge and the later
appointees would get service conditions of a High Court Judge.
29. The
petitioners are aggrieved by the newly inserted section 10A of the Act to the
extent it postulates different conditions of service for the members of the
Central Administrative Tribunal on the basis of their dates of appointments
under the amended and the unamended Rules as unconstitutional, arbitrary and
legally unsustainable.
30. A
Constitution Bench of this Court in Sampath Kumar's case (supra) has clearly
laid down that the Central Administrative Tribunal has been created in
substitution of the High Court. This Court in para 15 of the judgment observed
as under:
".........
As the pendency in the High Courts increased and soon became the pressing
problem of backlog, the nation's attention came to be bestowed on this aspect.
Ways and means to relieve the High Courts of the load began to engage the
attention of the Government at the centre as also in the various States. As
early as 1969, a Committee was set up by the Central Government under the
chairmanship of Mr. Justice Shah of this Court to make 67 recommendations
suggesting ways and means for effective, expeditious and satisfactory disposal
of matters relating to service disputes of Government servants as it was found
that a sizable portion of pending litigations related to this category. The
Committee recommended the setting up of an independent Tribunal to handle the
pending cases before this Court and the High Courts. While this report was
still engaging the attention of Government, the Administrative Reforms Commission
also took note of the situation and recommended the setting up of Civil
Services Tribunals to deal with appeals of Government servants against
disciplinary action......."
31. The
judicial work which is now being dealt with by the members of the Tribunal was
earlier discharged by the judges of the High Court before the Tribunal was
established. In most of the High Courts, a large number of cases had got piled
up awaiting adjudication. The High Courts were taking years and in some cases
decades in deciding these cases. The Union of India had an option either to
suitably increase the strength of the High Courts or to create a separate
Tribunal for expeditious disposal of these cases. The Union of India decided to
create a separate Tribunal. Once the Tribunal is discharging the functions of
the judiciary, then both judges and members of the Bar have to be an integral
part of the 68 Tribunal. The functioning of the Tribunal may become difficult
in case Members of Judiciary and Bar have no incentive to join the Tribunal or
they are deliberately discouraged and dissuaded from joining the Tribunal
because of newly inserted amendments in the Act. The non-descript and otherwise
non-deserving candidates would always be available but in order to have public
trust and confidence in the functioning of the Tribunal, it is absolutely
imperative that the respondents must endeavour to attract really deserving,
competent and promising members of the Bar with high caliber and integrity to
join the Tribunal. In order to attract such talent, the service conditions have
to be improved and made attractive because these members are discharging the
functions of the High Court.
32. In
Sampath Kumar's case (supra), the Constitution Bench has dealt with this aspect
of the matter in some detail.
This
Court in para 21 observed as under:
"......So
far as the Chairman is concerned, we are of the view that ordinarily a retiring
or retired Chief Justice of a High Court or when such a person is not
available, a Senior Judge of proved ability either 69 in office or retired
should be appointed. That office should for all practical purposes be equated
with the office of Chief Justice of a High Court. We must immediately point out
that we have no bias, in any manner, against members of the Service. Some of
them do exhibit great candour, wisdom, capacity to deal with intricate problems
with understanding, detachment and objectiveness but judicial discipline
generated by experience and training in an adequate dose is, in our opinion, a
necessary qualification for the post of Chairman....."
Similarly,
other members also discharge the same judicial functions. In order to preserve
public confidence, acceptability and trust, members of the Bar and Judiciary
must be encouraged to man the Tribunal. Discouraging or killing the incentive
of members of the Bar and Judiciary to accept the appointment of the Tribunal
would have serious repercussions about the credibility, confidence, trust and
acceptability of the Tribunal particularly when according to Sampath Kumar's
case (supra), the High Court is being supplanted by the Administrative
Tribunal. In a democratic country governed by the rule of law no institution
discharging judicial functions can properly survive without public confidence,
credibility, trust and acceptability.
33. The
Constitution Bench in Sampath Kumar's case (supra) observed that what we really
need is the judicial Tribunal. The judicial functions which, before setting up
of the Central Administrative Tribunal, were discharged by the judges of the
High Courts, would now be discharged by the members of the Tribunal, therefore,
it is imperative that the judicial work of the Tribunal should be handled by
talented and competent members who have legal background and judicial
experience. Any amendment of the Statute which discourages the members of the
Bar and Judiciary from joining the Administrative Tribunal deserves to be
discarded.
34. The
Tribunal has the power of judicial review. It is now well settled by this Court
in the case of Minerva Mills Ltd. & Ors. v. Union of India & Ors.
(1980) 3 SCC 625 that judicial review is a basic and essential feature of the
Constitution and no law passed by the Parliament in exercise of its constituent
power can abrogate it or take it away. If the power of judicial review is
abrogated or taken away, the Constitution will cease to be what it is. It is a
fundamental principle of our 71 constitutional scheme that every organ of the
State and every authority under the Constitution derives its power and authority
from the Constitution and has to act within the limits of such powers.
35. In
Sampath Kumar's case (supra) the court observed as under:
"3
....The Constitution has, therefore created an independent machinery for
resolving these disputes and this independent machinery is the judiciary which
is vested with the power of judicial review to determine the legality of
executive action and the validity of legislation passed by the legislature. The
judiciary is constituted the ultimate interpreter of the Constitution and to it
is assigned the delicate task of determining what is the extent and scope of
the power conferred on each branch of Government, what are the limits on the
exercise of such power under the Constitution and whether any action of any
branch transgresses such limits. It is also a basic principle of the rule of
law which permeates every provision of the Constitution and which forms its
very core and essence that the exercise of power by the executive or any other
authority must not only be conditioned by the Constitution but also be in
accordance with law and it is the judiciary which has to ensure that the law is
observed and there is compliance with the requirements of law on the part of
the executive and other authorities. This function is discharged by the
judiciary by exercise of the power of judicial review which is a most potent
weapon in the hands of the judiciary for maintenance of the rule of law. The
power of judicial 72 review is an integral part of our constitutional system
and without it, there will be no Government or laws and the rule of law would
become a teasing illusion and a promise of unreality....."
36.
Bhagwati, CJ in a concurring judgment in Sampath Kumar's case (supra) observed
as under:
"3.
........The basic and essential feature of judicial review cannot be dispensed
with but it would be within the competence of Parliament to amend the
Constitution so as to substitute in place of the High Court, another
alternative institutional mechanism or arrangement for judicial review,
provided it is no less efficacious than the High Court. Then, instead of the
High Court, it would be another institutional mechanism or authority which
would be exercising the power of judicial review with a view to enforcing the
constitutional limitations and maintaining the rule of law. Therefore, if any
constitutional amendment made by Parliament takes away from the High Court the
power of judicial review in any particular area and vests it in any other
institutional mechanism or authority, it would not be violative of the basic
structure doctrine, so long as the essential condition is fulfilled, namely,
that the alternative institutional mechanism or authority set up by the
parliamentary amendment is no less effective than the High Court."
Justice
Bhagwati, in the said judgment, effectively reminded us that the Administrative
Tribunal is to carry out the functions of the High Court. In order to inspire
confidence in 73 the public mind it is essential that it should be manned by
people who have judicial and/or legal background, approach and objectivity.
This court in Sampath Kumar (supra) further observed as under:
"5.
We cannot afford to forget that it is the High Court which is being supplanted
by the Administrative Tribunal and it must be so manned as to inspire
confidence in the public mind that it is a highly competent and expert
mechanism with judicial approach and objectivity. Of course, I must make it
clear that when I say this, I do not wish to cast any reflection on the members
of the Civil Services because fortunately we have, in our country, brilliant
civil servants who possess tremendous sincerity, drive and initiative and who
have remarkable capacity to resolve and overcome administrative problems of
great complexity. But what is needed in a judicial tribunal which is intended
to supplant the High Court is legal training and experience..."
37.
Justice Bhagwati, in his judgment in Sampath Kumar's case has also cautioned
that in service matters, the Government is always the main contesting or opposite
party, therefore, it would not be conducive to judicial independence to leave
unfettered and unrestricted discretion to the executive in the matter of
appointments of Chairman, Vice-Chairman and Administrative Members. The court
observed as under:
74
"7. .... Now it may be noted that almost all cases in regard to service
matters which come before the Administrative Tribunal would be against the
Government or any of its officers and it would not at all be conducive to
judicial independence to leave unfettered and unrestricted discretion in the
executive to appoint the Chairman, Vice-Chairmen and administrative members; if
a judicial member or an administrative member is looking forward to promotion
as Vice-Chairman or Chairman, he would have to depend on the goodwill and
favourable stance of the executive and that would be likely to affect the
independence and impartiality of the members of the Tribunal. The same would be
the position vis-`-vis promotion to the office of Chairman of the Administrative
Tribunal. The administrative members would also be likely to carry a sense of
obligation to the executive for having been appointed members of the
Administrative Tribunal and that would have a tendency to impair the
independence and objectivity of the members of the Tribunal. There can be no
doubt that the power of appointment and promotion vested in the executive can
have prejudicial effect on the independence of the Chairman, Vice-Chairmen and
members of the Administrative Tribunal, if such power is absolute and
unfettered. If the members have to look to the executive for advancement, it
may tend, directly or indirectly, to influence their decision-making process
particularly since the Government would be a litigant in most of the cases
coming before the Administrative Tribunal and it is the action of the
Government which would be challenged in such cases..."
38. In
order to inspire public confidence, it is imperative that the deserving persons
with competence, objectivity, 75 impartiality and integrity with judicial
and/or legal background are appointed as members of the Tribunal.
39.
Ranganath Misra, J. who wrote the main judgment of the Constitution Bench in
Sampath Kumar (supra) observed as under:
"18.
The High Courts have been functioning over a century and a quarter and until
the Federal Court was established under the Government of India Act, 1935, used
to be the highest courts within their respective jurisdiction subject to an
appeal to the Privy Council in a limited category of cases. In this long period
of about six scores of years, the High Courts have played their role
effectively, efficiently as also satisfactorily. The litigant in this country
has seasoned himself to look up to the High Court as the unfailing protector of
his person, property and honour. The institution has served its purpose very
well and the common man has thus come to repose great confidence therein.
Disciplined, independent and trained Judges well-versed in law and working with
all openness in an unattached and objective manner have ensured dispensation of
justice over the years. Aggrieved people approach the Court-- the social
mechanism to act as the arbiter--not under legal obligation but under the
belief and faith that justice shall be done to them and the State's authorities
would implement the decision of the Court. It is, therefore, of paramount
importance that the substitute institution--the Tribunal--must be a worthy
successor of the High Court in all respects. That is exactly what this Court 76
intended to convey when it spoke of an alternative mechanism in Minerva Mills'
case."
40. In
the later part of the judgment, while clarifying that this court has no bias
against the members of service, the court observed as under:
"21.
....We must immediately point out that we have no bias, in any manner, against
members of the Service. Some of them do exhibit great candour, wisdom, capacity
to deal with intricate problems with understanding, detachment and
objectiveness but judicial discipline generated by experience and training in
an adequate dose is, in our opinion, a necessary qualification for the post of
Chairman..."
41. While
commenting on section 8, the court further observed as under:
"22.
Section 8 of the Act prescribes the term of office and provides that the term
for Chairman, Vice-Chairman or members shall be of five years from the date on
which he enters upon his office or until he attains the age of 65 in the case
of Chairman or Vice-Chairman and 62 in the case of member, whichever is
earlier. The retiring age of 62 or 65 for the different categories is in accord
with the pattern and fits into the scheme in comparable situations. We would,
however, like to indicate that appointment for a term of five years may
occasionally operate as a disincentive for well qualified people to accept the
offer to join the Tribunal. There may be competent people belonging to younger
age groups who would have more than five years to reach the prevailing age of
retirement.
The fact
that such people would be required to go 77 out on completing the five year
period but long before the superannuation age is reached is bound to operate as
a deterrent..."
42. In L.
Chandra Kumar v. Union of India & Others (1997) 3 SCC 261, the Court dealt
with the origin of judicial review. The origin of the power of judicial review
of legislative action may well be traced to the classic enunciation of the
principle by Chief Justice John Marshall of the US Supreme Court in Marbury v.
Madison. (But the origins of the power of judicial review of legislative action
have not been attributed to one source alone). So when the framers of our
Constitution set out their monumental task, they were well aware that the
principle that courts possess the power to invalidate duly- enacted
legislations had already acquired a history of nearly a century and a half.
43. In
R.K. Jain v. Union of India (1993) 4 SCC 119 (para 8) the court observed as
under:- "...(T)he time is ripe for taking stock of the working of the various
Tribunals set up in the country after the insertion of Articles 323A and 323B
in the Constitution. A sound justice delivery system is a sine qua non for the
efficient governance of a 78 country wedded to the rule of law. An independent
and impartial justice delivery system in which the litigating public has faith
and confidence alone can deliver the goods..."
44. In
Bidi Supply Co. v. Union of India & Ors. 1956 SCR 267, the Court observed
as under:
"The
heart and core of democracy lies in the judicial process, and that means
independent and fearless judges free from executive control brought up in
judicial traditions and trained to judicial ways of working and thinking. The
main bulwarks of liberty of freedom lie there and it is clear to me that uncontrolled
powers of discrimination in matters that seriously affect the lives and
properties of people cannot be left to executive or quasi executive bodies even
if they exercise quasi judicial functions because they are then invested with
an authority that even Parliament does not possess. Under the Constitution,
Acts of Parliament are subject to judicial review particularly when they are
said to infringe fundamental rights, therefore, if under the Constitution
Parliament itself has not uncontrolled freedom, of action, it is evident that
it cannot invest lesser authorities with that power."
45. In
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr.
(1973) 4 SCC 225, Khanna, J. (at para 1529 at page 818) observed as under:
"...The
power of judicial review is, however, confined not merely to deciding whether
in making the impugned laws the Central or State Legislatures 79 have acted
within the four corners of the legislative lists earmarked for them; the courts
also deal with the question as to whether the laws are made in conformity with
and not in violation of the other provisions of the Constitution. ........As
long as some fundamental rights exist and are a part of the Constitution, the
power of judicial review has also to be exercised with a view to see that the
guarantees afforded by those rights are not contravened...
Judicial
review has thus become an integral part of our constitutional system and a
power has been vested in the High Courts and the Supreme Court to decide about
the constitutional validity of provisions of statutes. If the provisions of the
statute are found to be violative of any article of the Constitution, which is
touchstone for the validity of all laws, the Supreme Court and the High Courts
are empowered to strike down the said provisions."
46. In L.
Chandra Kumar's case (supra), the Court observed as under:
"81.
If the power under Article 32 of the Constitution, which has been described as
the "heart" and "soul" of the Constitution, can be
additionally conferred upon "any other court", there is no reason why
the same situation cannot subsist in respect of the jurisdiction conferred upon
the High Courts under Article 226 of the Constitution.
So long
as the jurisdiction of the High Courts under Articles 226/227 and that of this
Court under Article 32 is retained, there is no reason why the power to test
the validity of legislations against the provisions of the Constitution cannot
be conferred upon Administrative Tribunals created under the Act or upon
Tribunals created under Article 323-B of the Constitution. It is to be
remembered that, apart 80 from the authorization that flows from Articles 323-A
and 323-B, both Parliament and the State Legislatures possess legislative
competence to effect changes in the original jurisdiction of the Supreme Court
and the High Courts..."
47. The
Report of the Arrears Committee (1989-90) popularly known as the Malimath
Committee Report, in Chapter VIII of the second volume under the heading
"Alternative Modes and Forums for Dispute Resolution" dealt with the
functioning of the Tribunals in the following words:
"Functioning
of Tribunals 8.63 Several tribunals are functioning in the country. Not all of
them, however, have inspired confidence in the public mind. The reasons are not
far to seek. The foremost is the lack of competence, objectivity and judicial
approach. The next is their constitution, the power and method of appointment
of personnel thereto, the inferior status and the casual method of working. The
last is their actual composition; men of caliber are not willing to be
appointed as presiding officers in view of the uncertainty of tenure,
unsatisfactory conditions of service, executive subordination in matters of
administration and political interference in judicial functioning. For these
and other reasons, the quality of justice is stated to have suffered and the
cause of expedition is not found to have been served by the establishment of
such tribunals."
48. The
Tribunals were established to inspire confidence in the public mind for
providing speedy and quality justice to the litigants. The Tribunals were set
up to reduce the increasing burden of the High Courts. The High Courts'
judicial work was in fact entrusted to these Tribunals. The judicial work
should be adjudicated by legally trained minds with judicial experience or at
least by a legally trained mind. The public has faith and confidence in the
judiciary and they approach the judiciary for just and fair decisions.
Therefore, to maintain the trust and confidence in the judicial system, the
government should ensure that the person adjudicating the disputes is a person
having legal expertise, modicum of legal training and knowledge of law apart
from an impeccable integrity and ability. The persons who have no legal
expertise and modicum of legal training may find it difficult to deal with
complicated and complex questions of law which at times even baffle the minds
of well trained lawyers and judges. Therefore, dispensation of justice should
be left primarily to the members of the Bar and the Judges who have by long
judicial and legal training and experience have acquired understanding, 82
objectivity and acumen. Unless we take utmost care in the matter of
appointments in the Tribunal, our justice delivery system may not command
credibility, confidence and the trust of the people of this country.
49. In
all constitutional matters where amendments of certain legislations have been
challenged, the approach of this Court has always been to examine the
constitutional scheme of every enactment of the State. It is clear that the
Court had never tried to pick holes or searched for defects of drafting but has
sustained the enactments if found fit on the anvil of truth and has struck down
the enactments only whenever an enactment was found wholly unsustainable. The
Courts have always been very conscious of the demarked functions of the three
organs of the State. The Courts have also recognized the concept of checks and
balances under the Constitution.
50. The
Courts constitute an inbuilt mechanism within the framework of the Constitution
for purposes of social audit and to ensure compliance of the Rule of Law. This
Court seeks only to ensure that the majesty of this great institution may 83
not be lowered and the functional utility of the constitutional edifice may not
be rendered ineffective. This principle was articulated by this Court in the
case of M.L. Sachdev v. Union of India & Another (1991) 1 SCC 605.
51. There
are plethora of cases where challenges have been made to various enactments of
the State constituting expert bodies/Tribunals on the ground that in such
Tribunals the positions required to be occupied by the persons of judicial
background are being filled in by those who are bureaucrats and others who are
not having judicial expertise and objectivity. In such cases, it has been a
ground of challenge that the bodies/Tribunals being judicial forums having
adjudicatory powers on the questions of importance and legalistic in nature and
in the background of the doctrine of separation of powers recognized by the
Indian Constitution, the head of the judiciary should always be consulted for
such appointments and the main substance behind such challenge has been that
the persons who are appointed to such bodies 84 should belong to the judiciary
because those members have to discharge judicial functions.
52. In
Sampath Kumar's case (supra), Bhagwati, C.J. relying on Minerva Mills' case
declared that it was well settled that judicial review was a basic and
essential feature of the Constitution. If the power of judicial review is taken
away, the Constitution would cease to be what it is. The court further declared
that if a law made under Article 323-A(1) were to exclude the jurisdiction of
the High Court under Articles 226 and 227 without setting up an efficient
alternative institutional mechanism or arrangement for judicial review, it
would violate the basic structure and hence outside the constituent power of
Parliament.
53. The
Parliament was motivated to create new adjudicatory for a to provide new,
inexpensive and fast-track adjudicatory systems and permitting them to function
by tearing of the conventional shackles of strict rule of pleadings, strict
rule of evidence, tardy trials, three/four-tier appeals, endless revisions and
reviews - creating hurdles in fast flow of stream 85 of justice. The
Administrative Tribunals as established under Article 323-A and the Administrative
Tribunals Act, 1985 are an alternative institutional
mechanism or authority, designed to be not less effective than the High Court,
consistently with the amended constitutional scheme but at the same time not to
negate judicial review jurisdiction of the constitutional courts.
54. I am,
therefore, clearly of the opinion that there is no anathema in the Tribunal
exercising jurisdiction of High Court and in that sense being supplemental or
additional to the High Court but, at the same time, it is our bounden duty to
ensure that the Tribunal must inspire the same confidence and trust in the
public mind. This can only be achieved by appointing the deserving candidates
with legal background and judicial approach and objectivity.
55. I
deem it appropriate to briefly discuss the theory of basic structure and
separation of power in the Constitution to properly comprehend the controversy
involved in this case.
EQUALITY
AND BASIC STRUCTURE 86
56.
Initially when the doctrine of basic structure was laid down there was no
specific observation with respect to whether Article 14 forms part of basic
structure or not. In fact the confusion was to such an extent as to whether
fundamental rights as a whole form part of basic structure or not? It was in
this light that Khanna, J., had to clarify in his subsequent decision in Indira
Nehru Gandhi v. Raj Narain & Anr. (1975) Supp. SCC 1 in the following
words:- ".......What has been laid down in that judgment is that no
article of the Constitution is immune from the amendatory process because of
the fact that it relates to a fundamental right and is contained in Part III of
the Constitution.....The above observations clearly militate against the
contention that according to my judgment fundamental rights are not a part of
the basic structure of the Constitution. I also dealt with the matter at length
to show that the right to property was not a part of the basic structure of the
Constitution. This would have been wholly unnecessary if none of the
fundamental rights was a part of the basic structure of the Constitution".
[Paras 251-252] Further, though not directly quoting Article 14 of the
constitution Chandrachud, J. in the above mentioned case held that, 87 "I
consider it beyond the pale of reasonable controversy that if there be any
unamendable features of the Constitution on the score that they form a part of
the basic structure of the Constitution, they are that: (i) Indian sovereign
democratic republic; (ii) Equality of status and opportunity shall be secured
to all its citizens;
(iii) The
State shall have no religion of its own and all persons shall be equally
entitled to freedom of conscience and the right freely to profess, practise and
propagate religion and that (iv) the nation will be governed by a Government of
laws, not of men. These, in my opinion, are the pillars of our constitutional
philosophy, the pillars, therefore, of the basic structure of the
Constitution." [Para 664]
57. Thus,
from the above observations it is very clear that at no point of time there was
the intention to exclude the mandate of equality from the basic structure. The
I.R. Coelho (dead) by Lrs. v. State of Tamil Nadu & Others (2007) 2 SCC 1
rightly observed that in Indira Gandhi's case, Chandrachud, J. posits that
equality embodied in Article 14 is part of the basic structure of the
constitution and, therefore, cannot be abrogated by observing that the
provisions impugned in that case are an outright negation of the right of equality
conferred by Article 14, a right which more than any other is a basic postulate
of our constitution [Para 108] 88
58. In
the above case relying on the observations in the Minerva mills's case the
question of Article 14 coming under the purview of Basic structure has been
brought at rest. Since it has been a settled question per the judgment of I.R.
Coelho that the arbitrariness of a legislation, Rules, Policies and amendment
would be subject to the test of reasonableness, rule of law and broad principle
of equality as per Article 14.
59. In
Ashoka Kumar Thakur & Ors. v. Union of India & Ors. (2008) 6 SCC 1,
Balakrishnan, CJ. observed that, "118. Equality is a multicolored concept
incapable of a single definition as is also the fundamental right under Article
19(1)(g). The principle of equality is a delicate, vulnerable and supremely
precious concept for our society. It is true that it has embraced a critical
and essential component of constitutional identity. The larger principles of
equality as stated in Articles 14, 15 and 16 may be understood as an element of
the "basic structure"
of the
Constitution and may not be subject to amendment, although, these provisions,
intended to configure these rights in a particular way, may be changed within
the constraints of the broader principle.
The
variability of changing conditions may necessitate the modifications in the
structure and design of these rights, but the transient characters of formal
arrangements must reflect the larger purpose and principles that are the
continuous and unalterable thread of constitutional identity. It is not the
introduction of significant and far-reaching change that is 89 objectionable,
rather it is the content of this change insofar as it implicates the question
of constitutional identity."
SEPARATION
OF POWERS
60. The
Constitution has very carefully separated the powers of executive, judiciary
and legislature and maintained a very fine balance.
61.
Sikri, C.J. in Kesavananda Bharati's case (supra) stated that separation of
powers between the legislature, executive and the judiciary is basic structure
of the constitution. The learned judge further observed that, "The above
structure is built on the basic foundation i.e. the dignity and freedom of the
individual. This is of supreme importance. This cannot by any form of amendment
be destroyed." (Para 293) "The above foundation and the above basic
features are easily discernible not only from the preamble but the whole scheme
of the Constitution, which I have already discussed." [Para 294]
62. In
Minerva Mills Ltd. (supra), the court observed thus:- "87......every organ
of the State, every authority under the Constitution, derives its power from
the Constitution and has to act within the limits of such power. But then 90 the
question arises as to which authority must decide what are the limits on the
power conferred upon each organ or instrumentality of the State and whether
such limits are transgressed or exceeded. Now there are three main departments
of the State amongst which the powers of government are divided; the executive,
the legislature and the judiciary. Under our Constitution we have no rigid
separation of powers as in the United States of America, but there is a broad
demarcation, though, having regard to the complex nature of governmental
functions, certain degree of overlapping is inevitable. The reason for this
broad separation of powers is that "the concentration of powers in any one
organ may" to quote the words of Chandrachud, J., (as he then was) in
Indira Gandhi case (supra) "by upsetting that fine balance between the
three organs, destroy the fundamental premises of a democratic government to
which we are pledged".
63. This
court in Subhash Sharma & Ors. v. Union of India 1991 Sup (1) 574 observed
as under:- ".......The constitutional phraseology would require to be read
and expounded in the context of the constitutional philosophy of separation of
powers to the extent recognised and adumbrated and the cherished values of
judicial independence." [Para 31]
64. In
Pareena Swarup v. Union of India (2008) 14 SCC 107 the court observed as
under:- "9. It is necessary that the court may draw a line which the
executive may not cross in their 91 misguided desire to take over bit by bit
and (sic) judicial functions and powers of the State exercised by the duly
constituted courts. While creating new avenue of judicial forums, it is the
duty of the Government to see that they are not in breach of basic
constitutional scheme of separation of powers and independence of the judicial
function."
In the
said case, it was also observed as under:- "10.................The
Constitution guarantees free and independent judiciary and the constitutional
scheme of separation of powers can be easily and seriously undermined, if the
legislatures were to divest the regular courts of their jurisdiction in all
matters, and entrust the same to the newly created Tribunals which are not
entitled to protection similar to the constitutional protection afforded to the
regular courts. The independence and impartiality which are to be secured not
only for the court but also for Tribunals and their members, though they do not
belong to the "judicial service" but are entrusted with judicial
powers. The safeguards which ensure independence and impartiality are not for
promoting personal prestige of the functionary but for preserving and
protecting the rights of the citizens and other persons who are subject to the
jurisdiction of the Tribunal and for ensuring that such Tribunal will be able
to command the confidence of the public. Freedom from control and potential
domination of the executive are necessary preconditions for the independence
and impartiality of Judges. To make it clear that a judiciary free from control
by the executive and legislature is essential if there is a right to have
claims decided by Judges who are free from potential domination by other
branches of Government. With this background, let us consider the defects
pointed out by the petitioner and amended/proposed provisions of the Act and
the Rules."
92 EQUAL
PAY FOR EQUAL WORK
65. The Equal Remuneration
Act, 1976 and in particular its preamble declares the
Act to provide for payment of equal remuneration and prevention of any kind of
discrimination on the ground of sex or otherwise in the matter of employment.
The Equal Remuneration
Act, 1976 extends to the whole of India by virtue of
Section 1(2) and there cannot be different pay scales for different employees
carrying out exactly same work. Section 4(3) states that "where, in an
establishment or employment, the rates of remuneration payable before the
commencement of this Act for men and women workers for the same work or work of
a similar nature are different only on the ground of sex, then the higher (in
cases where there are only two rates), or, as the case may be, the highest (in
cases where there are more than two rates), of such rates shall be the rate at
which remuneration shall be payable, on and from such commencement, to such men
and women workers."
66. In
view of the above constitutional principles and Directive Principles of State
Policy under the Constitution and 93 the statutory and mandatory provisions of
overriding Equal Remuneration Act, 1976, the following principles are evolved
for fixing the governmental pay policy, whether executive or legislative on the
recommendation of the Pay Commissions, Pay Committees by Executive Governments,
which are broadly stated as under:- (1) The governmental pay policy, whether
executive or legislative, cannot run contrary to constitutional principles of
constitutional law;
(2) The
governmental pay policy, whether executive or legislative, cannot run contrary
to the overriding provisions of Equal Remuneration Act, 1976.
xxx xxx
xxx (12) The governmental pay policy must conform to the overriding statutory
command under Sections 13 and 14 read with Section 1(2) of the Equal Remuneration
Act, 1976, which supports for uniformity between the
pay policy of the State Governments and the Central Government in the whole of
India and such uniformity in the pay policy of the State Governments and the
Central Government in the whole of 94 India has already found further support
from the Judgment of this Court in the case of Randhir Singh v. Union of India
& Others (1982) 1 SCC 618. I must hasten to say that where all things are
equal that is, where all relevant considerations are same, persons holding
identical posts may not be treated differentially of their pay.
67. As
early as in 1952, in a celebrated case decided by this court in State of West
Bengal v. Anwar Ali Sarkar v. (1952) SCR 284, this court laid down that in
order to pass the test, two conditions must be fulfilled, namely, that the
classification must be founded on an intelligible differentia which
distinguishes those that are grouped together from others and that said
differentia must have a rational relation to the object sought to be achieved
by the Act. The differentia which is the basis of the classification and the
object of the Act are distinct things and what is necessary is that there must
be a nexus between them.
68. In
1959, in a celebrated case of Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar & Others (1959) 1 SCR 279 at p.296, this Court observed as under:
".........It
is now well established that while article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and, (ii) that differentia must have
a rational relation to the object sought to be achieved by the statute in
question........."
69. In
The State of Jammu & Kashmir v. Triloki Nath Khosa and Ors. (1974) 1 SCC
19, this court observed as under:- "........Discrimination is the essence
of classification and does violence to the constitutional guarantee of equality
only if it rests on an unreasonable basis......"
70. In
Indira Nehru Gandhi (supra), the court observed as under:- "This Court, at
least since the days of Anwar Ali Sarkar's case, has consistently taken the
view that the 96 classification must be founded on an intelligible differentia
which distinguishes those who are grouped together from those who are left out
and that the differentia must have a rational relation to the object sought to
be achieved by the particular law. The first test may be assumed to be
satisfied since there is no gainsaying that in our system of Government, the
Prime Minister occupies a unique position. But what is the nexus of that
uniqueness with the law which provides that the election of the Prime Minister
and the Speaker to the Parliament will be above all laws, that the election
will be governed by no norms or standards applicable to all others who contest
that election and that a election declared to be void by a High Court judgment
shall be deemed to be valid, the judgment and its findings being themselves
required to be deemed to be void? Such is not the doctrine of classification
and no facet of that doctrine can support the favoured treatment accorded by
the 39th Amendment to two high personages. It is the common man's sense of
justice which sustains democracies and there is a fear that the 39th Amendment,
by its impugned part, may outrage that sense of justice.
Different
rules may apply to different conditions and classes of men and even a single
individual may, by his uniqueness, form a class by himself. But in the absence
of a differentia reasonably related to the object of the law, justice must be
administered with an even hand to all.
71. In
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248 it was observed as
follows:
"....Equality
is a dynamic concept with many aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire limits.... Article 14 strikes at
arbitrariness in state 97 action and ensures fairness and quality of treatment.
The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness pervades Article 14 like
a brooding omnipresence."
72. In
Randhir Singh (supra), it was held as under:
"8.
........Article 39(d) of the Constitution proclaims "equal pay for equal
work for both men and women" as a directive principle of State Policy.
"Equal
pay for equal work for both men and women"
means
equal pay for equal work for everyone and as between the sexes. Directive
principles, as has been pointed out in some of the judgments of this Court have
to be read into the fundamental rights as a matter of interpretation. Article
14 of the Constitution enjoins the State not to deny any person equality before
the law or the equal protection of the laws and Article 16 declares that there
shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.........Construing
Articles 14 and 16 in the light of the Preamble and Article 39(d) we are of the
view that the principle 'Equal pay for Equal work' is 'deducible from those
Article and may be properly applied to cases of unequal scales of pay based on
no classification or irrational classification though these drawing the
different scales of pay do identical work under the same employer."
73. In
Surinder Singh & Anr. v. Engineer-in-Chief, CPWD & Others (1986) 1 SCC
639 it was observed that the Central Government like all organs of State is
committed to the Directive Principles of State Policy and Article 39 enshrines the
principle of equal pay for equal work.
74. In
Mackinnon Mackenzie & Co. Ltd. v. Audrey D' Costa & Another (1987) 2
SCC 469 it was observed that the term "same work" or "work of
similar nature" under Section 2(h) of the Act that "whether a
particular work is same or similar in nature as another work can be determined
on the three considerations. In deciding whether the work is same or broadly
similar, the authority should take broad view; next in ascertaining whether any
differences are of practical importance, the authority should take an equally
broad approach for the very concept of similar work implies differences in
detail, but these should not defeat a claim for equality on trivial grounds. It
should look at the duties actually performed, not those theoretically possible.
In making comparison the authority should look at the duties generally
performed by men and women."
75. In
Bhagwan Dass & Others v. State of Haryana & Others (1987) 4 SCC 634
this court held that the mode of selection and period of appointment is
irrelevant and immaterial for the applicability of equal pay for equal work 99
once it is shown that the nature of duties and functions discharged and work
done is similar.
76. In
Inder Singh & Others v. Vyas Muni Mishra & Others 1987 (Supp) SCC 257
this court also held the view that when two groups of persons are in the same
or similar posts performing same kind of work, either in the same or in the
different departments, the court may in suitable cases, direct equal pay by way
of removing unreasonable discrimination and treating the two groups, similarly
situated, equally.
77. In
Haryana State Adhyapak Sangh & Others v. State of Haryana & Ors. (1988)
4 SCC 571 this court enforced the principle of equal pay for equal work for
Aided School teachers at par with government school teachers and held that the
teachers of Aided Schools must be paid same pay scale and dearness allowance as
teachers of the government schools.
100 78.
In U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v. Workmen 1989 Supp (2) SCC 424,
this court observed as under:- "The Tribunal's finding that both the
groups were doing the same type of work has rightly not been challenged by the
employer Bank as it is a pure finding of fact. If irrespective of classification
of junior and senior groups, the same work was done by both, the principle of
equal pay for equal work is definitely attracted and on the finding of fact the
Tribunal was justified in applying the principle to give the same benefit to
those who had been left out."
79. In
the case of Sita Devi & Others v. State of Haryana & Others (1996) 10
SCC 1 this court held: "The doctrine of "equal pay for equal
work" is recognized by this Court as a facet of the equality clause
contained in Article 14 of the Constitution."
80. In
Sube Singh & Ors. v. State of Haryana & Ors.
(2001) 7
SCC 545 (para 10), this court observed as under:- "....whether the
classification is reasonable having an intelligible differentia and a rational
basis germane to the purpose, the classification has to be held arbitrary and
discriminatory".
101
81. In
John Vallamattom & Another v. Union of India (2003) 6 SCC 611, the
constitutionality of Section 118 of the Indian Succession Act, 1925 was challenged. Section 118 was declared unconstitutional
and violative of Article 14 of the Constitution. In that case, this court
observed thus:- "Although Indian Christians form a class by themselves but
there is no justifiable reason to hold that the classification made is either
based on intelligible differentia or the same has any nexus with the object
sought to be achieved. The underlying purpose of the impugned provision having
adequately been taken care of by Section 51, the purport and object of that
provision must be held to be non-existent."
82. In
State of Mizoram & Another. v. Mizoram Engineering Service Association
& Another (2004) 6 SCC 218 while dealing with case of this nature, this
court observed as under:- "The fact that the revised pay scale was being
allowed to Mr Robula in tune with the recommendations of the Fourth Central Pay
Commission, shows that the State Government had duly accepted the
recommendations of the Fourth Central Pay Commission. Having done so, it cannot
be permitted to discriminate between individuals and not allow the same to the
rest."
102 In
this case, this Court clearly stated that the State cannot be permitted to
discriminate similarly placed persons.
83. This
court in Union of India v. Dineshan K.K. (2008) 1 SCC 586 at page 591 (para 12)
observed as under:- "The principle of "equal pay for equal work"
has been considered, explained and applied in a catena of decisions of this
Court. The doctrine of "equal pay for equal work" was originally
propounded as part of the directive principles of the State policy in Article
39(d) of the Constitution. In Randhir Singh v. Union of India a Bench of three
learned Judges of this Court had observed that principle of equal pay for equal
work is not a mere demagogic slogan but a constitutional goal, capable of being
attained through constitutional remedies and held that this principle had to be
read under Articles 14 and 16 of the Constitution. This decision was affirmed
by a Constitution Bench of this Court in D.S. Nakara v. Union of India. Thus,
having regard to the constitutional mandate of equality and inhibition against
discrimination in Articles 14 and 16, in service jurisprudence, the doctrine of
"equal pay for equal work" has assumed status of a fundamental right."
84. The
principle underlying the guarantee of Article 14 is not that the same rules of
law should be applicable to all persons within the Indian territory or that the
same remedies should be made available to them irrespective of differences of
circumstances. It only means that all persons similarly 103 circumstanced shall
be treated alike both in privileges conferred and liabilities imposed.
85. The
law can make and set apart the classes according to the needs and exigencies of
the society and as suggested by experience. It can recognize even degree of
evil, but the classification should never be arbitrary, artificial or evasive.
86. The
classification must not be arbitrary but must be rational, that is to say, it
should be based on some qualities or characteristics which are to be found in
all the persons grouped together and not in others who are left out but those
qualities or characteristics must have a reasonable relation to the object of
the legislation. In order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from others and
(2) that differentia must have a rational relation to the object sought to be
achieved by the Act.
87. In
the instant case, in the counter-affidavit the respondents admitted clear
discrimination, but I fail to comprehend why the respondents are perpetuating
discrimination. I deem it proper to quote the relevant portion from the counter
affidavit as under:
"However
this is a temporary anomaly. Over a period of time, the said anomaly would
correct itself and after a period of 4-5 years all the members of the Tribunal
would be treated in an equal manner."
88. One
fails to comprehend and understand why the respondents are perpetuating
discrimination even for a period of four to five years.
89. The
High Court Judges are appointed from two streams - 2/3rd from the Bar and 1/3rd
from the Subordinate Judicial Service. After appointment, they are assigned the
task of discharging judicial functions. The direct and inevitable impact of the
amendment is to dissuade and discourage both the members of the Bar and
Judiciary from becoming members of the Tribunal. The Tribunal is discharging
purely judicial work which were earlier discharged by the judges of 105 the
High Courts. The people's faith and confidence in the functioning of the Tribunal
would be considerably eroded if both the members of the Bar and judiciary are
discouraged from joining the Tribunal. In a democratic country governed by rule
of law, both the lawyers and judges cannot be legitimately discouraged and
dissuaded from manning the Tribunal discharging only judicial work.
90. The
petitioners are aggrieved by the decision of the respondents to abolish the
post of Vice-Chairman in the Central Administrative Tribunal and pray that it
should be restored.
91. The
petitioners are further aggrieved by the newly inserted Section 10A of the
Administrative Tribunal Act, 1985 to the extent that it postulates different
pay scales and conditions of service for the members of the Central
Administrative Tribunal on the basis of their appointment under the amended and
the unamended rules and pray that 106 uniform conditions of service be made
applicable to all members.
92. The
petitioners are also aggrieved by the newly inserted Section 10A that it is
unconstitutional to the extent that it stipulates that the total term of the
office of the members of the Tribunal shall not exceed 10 years. They pray that
this embargo be removed.
93. The
petitioners further pray that all members be permitted to function till they
attain the age of superannuation of 65 years.
NEWLY
INSERTED SECTION 10A
94. I see
no rationale or justification in providing different conditions of service for
the members of the Tribunal on the basis of their appointment under the amended
and the unamended rules, particularly when even according to the respondents it
is nowhere denied that both the categories of members are not discharging the
same duties, obligations and responsibilities.
95.
Amended Section 10A is clearly discriminatory and violative of basic principles
of equality. Section 10A of the amended Act is declared discriminatory,
unconstitutional and ultra vires of the Constitution so far as it does not
provide uniform pay scales and service conditions on the basis of amended and
unamended rules. Consequently, all the members of the Tribunal would be
entitled to get the same pay scales and service conditions from June 2010.
96.
Section 10A of the amended Act is also declared discriminatory because the
direct and inevitable impact of insertion of Section 10A is to prescribe
different age of retirement for the judicial and other members. On the one
hand, the age of superannuation of the members has been increased from 62 to 65
years and according to the amended Act, the administrative members would now
retire at the age of 65 years. The members can now get maximum of two terms of
5 years each. A lawyer appointed at the age of 45 years will have to retire at
the age of 55 years. Therefore, by this 108 amendment, administrative member
would retire at the age of 65 whereas judicial member may retire even at the
age of 55.
This is
clearly discriminatory and violative of the fundamental principle of equality.
Consequently, section 10A of the amended Act is declared discriminatory and
violative of Article 14 of the Constitution and is declared ultra vires of the
Constitution, to the extent that it places embargo of two terms of five years
each leading to different ages of retirements of the members of the Tribunal.
Consequently, henceforth, all the members of the Tribunal shall function till
the age of 65 years.
In other
words, there would be a uniform age of retirement for all the members of the
Tribunal.
97. The
petitioners pray that the newly added Section 12(2) be quashed as it impinges
upon the independence of judiciary.
NEWLY
INSERTED SECTION 12(2)
98. I see
no logic, rationale or justification in abolishing the post of Vice-Chairman in
the Central Administrative Tribunal.
No reason
for such abolition has been spelt out by the 109 respondents even at the time
of introducing the Bill. Before the amendment, ordinarily, the retired judges
of the High Courts used to be appointed to the post of Vice-Chairman. It used
to be in consonance with the status and positions of the retired judges.
99. There
seems to be no basis or rational explanation of abolishing the post of
Vice-Chairman. I fail to comprehend that on the one hand, the post of
Vice-Chairman has been abolished and on the other hand under the newly inserted
section 12(2) the power to designate Vice-Chairman has been given to the
appropriate government. This is per se untenable and unsustainable. The
executive has usurped the judicial functions by inserting section 12(2). The
direct and inevitable consequence of the amendment would affect the
independence of judiciary.
100. In
the race of becoming the Vice-Chairman there would be erosion of independence
of judiciary. As aptly observed in Sampath Kumar's case (supra) that a judicial
member who is 110 looking forward to promotion to the post of Vice-Chairman
would have to depend on the goodwill and favourable instance of the executive
and that would directly affect independence and impartiality of the members of
the Tribunal impinging upon the independence of judiciary.
101. Now,
under section 12(2) of the amended Act, the entire power of designating
Vice-Chairman has been usurped by the appropriate government. This amendment
also has the potentiality of disturbing the separation of powers. The power
pertaining to judicial functioning of the Tribunal which was earlier exercised
by the judiciary has been usurped by the executive. On the aforesaid
considerations, the newly inserted section 12(2) is per se untenable and
consequently declared null and void.
102. In
the larger public interest the post of Vice-Chairman is restored and the
procedure for appointment would be in accordance with the unamended rules of
the Act.
103. It
must be clearly understood by all concerned that the judicial work which the
members of the Tribunal discharge is one, which was earlier discharged by the
Judges of the High 111 Court. The work is totally judicial in nature,
therefore, dispensation of justice should be left primarily to the members of
the Bar and Judges who have, by long experience and training acquired judicial
discipline, understanding of the principles of law, art of interpreting laws,
rules and regulations, legal acumen, detachment and objectivity. Unless extreme
care is taken in the matter of appointments of the members of Tribunal, our
justice delivery system may not command confidence, credibility, acceptability
and trust of the people.
104. I
deem it appropriate to reiterate the impact of conclusions of my judgment:
(i) All
the members of the Tribunal appointed either by amended or unamended rules
would be entitled to get uniform pay scales and service conditions from
01.06.2010. However, in the facts of this case, they would not be entitled to
claim any arrears on account of different pay scales and service conditions.
112 (ii)
All the members of the Tribunal would have uniform age of retirement from
01.06.2010, meaning thereby that all members of the Tribunal shall be permitted
to function until they attain the age of superannuation of 65 years. Hence,
Section 10A is quashed and set aside.
(iii) The
post of Vice-Chairman in the Central Administrative Tribunal is restored from
01.06.2010.
However,
I do not want to disturb the Vice-Chairmen, if already designated by the
Government, and permit them to continue in their respect posts till they attain
the age of superannuation. Thereafter, the Vice- Chairman shall be appointed in
accordance with the unamended rules. Consequently, the newly inserted section
12(2) of the amended Act is also quashed and set aside.
105. The
Writ Petitions are accordingly allowed in aforementioned terms and disposed of,
leaving the parties to bear their own costs.
..................................J. (Dalveer Bhandari)
New Delhi;
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