Report No. 272

E. Tenure and Service Conditions

5.21 At present, there is no uniformity in the retirement age of the members of a Tribunal which shows that there is an imperative need to fix the uniform age of retirement of such members. The Commission in its 232nd Report on 'Retirement Age of Chairpersons and Members of Tribunals - Need for Uniformity', while taking note of the fact that there is no uniformity in the age of retirement, observed:

'If the Judges or Chief Justices of the High Courts, who retire at the age of 62 years, wish to take up assignment in Tribunals... after their retirement, their work-period in Tribunals may be 2- 3 years. Obviously, when Judges of the Supreme Court are appointed in any Tribunal, their retirement age must at the least be 70 years, their date of retirement as a Supreme Court Judge being 65 years.

there should also be no difference in the retirement ages for Chairpersons and Members, who come from the judicial stream i.e. High Courts or the Supreme Court, and it should uniformly be 70 years. A distinction may be made insofar as Members are concerned form another perspective. Members in Tribunals have two streams - judicial and administrative. The retirement age from the government, of those who join the administrative stream is 60 years and the term of 5 years as a Member of Tribunal may be sufficient in their case. However, no distinction can be made in the retirement age of the Members whether coming from judicial stream or administrative stream. Irrespective of the stream, the retirement age needs to be uniformly fixed.'

5.22 The Commission is of the opinion that uniformity in the service conditions of the Chairman and other Members of the Tribunals is one of the most significant requirements to ensure smooth working of the system. The Chairman should hold office for a period of three years or till he attains the age of seventy years, whoever is earlier. Whereas, Vice-Chairman and members should hold the office for a period of three years or till they attain the age of sixty seven years whichever is earlier. It will be appropriate to have uniformity in the service conditions of the Chairman, Vice- Chairman and other members of the Tribunal to ensure smooth working of the system.

5.23 It would be appropriate to have the terms and conditions of service, other allowances and benefits of the Chairman be such as are admissible to a Central Government Officer holding posts carrying the pay of Rs.2,50,000/-, as revised from time to time. The terms and conditions of service, other allowances and benefits of a Member of a Tribunal shall be such as are admissible to a Central Government officer holding posts carrying the pay of Rs.2,25,000/-, as revised from time to time. The terms and conditions of service, other allowances and benefits of Presiding Officer / Member of a Tribunal (to which the jurisdiction and functions exercised or performed by the District Judges are transferred) shall be such as are admissible to a Central Government officer drawing the corresponding pay of a District Judge.

5.24 In view of the provisions of section 6(2)(b) of the Central Administrative Tribunal Act, 1985, an advocate, who is qualified to be a Judge of a High Court, can be appointed as a judicial member. His tenure would be five years and can be reappointed for another term, i.e., for a further period of five years and no more. In case he is appointed at the age of 40 years, he would cease to be a judicial member at the age of 45 years and if the term is renewed, at the age of 50. Thereafter, it would be difficult for such member to rebuild his practice after working maximum for 10 years in the Tribunal.

It discourages a person having good practice to join such Tribunal. It is desirable that, initially, an advocate be appointed for a period of two years as an ad hoc member and later be confirmed after assessing his performance and suitability, and he may be allowed to continue till he reaches the age of superannuation. In the alternative, the initial appointment should be for a reasonably long tenure and may also be subject to renewal, in suitable cases.

5.25 The procedure for removal of the Chairman and Members provided in statutes under which the Tribunal has been established are given in Annexure II. It is settled legal proposition that in view of the provisions of section 16 of the General Clause Act, 1897, the expression, 'appointment' includes termination of or removal from service also82.

82 See: Pradyat Kumar Bose v. The Hon'ble The Chief Justice of Calcutta High Court, AIR 1956 SC 285; Chief Justice of Andhra Pradesh and Ors. v. L.V.A. Dixitulu and Ors. AIR 1979 SC 193; The Manager, Government Branch Press and Anr. v. D.B. Belliappa, AIR 1979 SC 429; and State of Tamil Nadu and Ors. v. M.N. Sundararajan AIR 1980 SC 2084

5.26 In Income Tax Appellate Tribunal, under the provisions of the Income Tax Act, 1961 an advocate is appointed as a member and he continues to hold the office till he reaches the age of superannuation. The relevant provisions stand amended by the Act of 2017 whereby section 252-A is inserted. Under this provision all the terms of appointments and service conditions are to be laid down by the Central Government as provided under Section 184 of the Finance Act, 2017. The Central Government has notified the 'Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members), Rules 2017'.

By the aforesaid arrangement not only the status of the Tribunal is downgraded but also the eligibility criteria for the post of the Chairman as well as the Administrative members are reduced. The validity thereof has been challenged in the case of Central Administrative Tribunal (Principal Bench) Bar Association through its President v. Union of India, W.P. No. 640 of 2017 and the Supreme Court has issued show cause notice to the Union of India and other respondents vide order dated 21 August 2017. In the matter of salary and allowances, 84 Pension, Gratuity and Provident Fund85 with other benefits like house rent allowance, transport allowance and other terms and conditions shall be uniform as far as practical and possible for all the members of the Tribunals.

84 The Finance Act, 2017, s. 11, Salary and allowances.

85 Id., s. 12, Pension, Gratuity and Provident Fund.