MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR.

A General that the judgment of this Court in S.P. Sampath Kumar (supra) shall prevail over a later judgment as both the judgments are delivered by Constitution Benches of five Judges. Further submission made by the learned Attorney General is that members of Indian Legal Service are practicing lawyers who have experience of 7 years to 13 years depending upon the grade in which they were recruited. He also referred to the different cadres in the Indian Legal Service which are directly related to law such as Advocates-on-Record or instructing counsel working in the Central Agency Section in this Court or holding the post of Director of Prosecution in the Central Bureau of Investigation or legal advisors in the Ministry of Law and Justice. The learned Attorney General further submitted that the experience of the members of Indian Legal Service in various branches of law would stand in good stead for their appointment as judicial members. The learned Amicus Curiae does not have an objection to members of Indian Legal Service who are practicing in Courts as Government Advocates to be considered for appointment as judicial members in Tribunals. But he suggested that this can be done only by a legislative amendment in light of the law laid down in Union of India v. Madras Bar Association (2010) (supra). He also submitted that specialization being a mandatory requirement for Advocates should be the same for members of the Indian Legal Service.

43Copy pinpoint43. As we have already held that Advocates are entitled to be considered as judicial members of the Tribunals, we see no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The judgment of Union of India v. Madras Bar Association (2010) (supra) did not take note of the above points relating to the experience of members of Indian Legal Service at the bar. The Indian Legal Service was considered along with the other civil services for the purpose of holding that the members of Indian Legal Service are entitled to be appointed only as technical members. In the light of the submission made by the learned Attorney General and the Amicus Curiae, we hold that the members of Indian Legal Service G shall be entitled to be considered for appointment as a judicial member subject to their fulfilling the other criteria which advocates are subjected to. In addition, the nature of work done by the members of the Indian Legal Service and their specialization in the relevant branches of law shall be considered by the Search-cum-Selection Committee while evaluating their candidature.

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44Copy pinpoint44. We would wish to emphasize here that the setting up of tribunals, and the subject matters they are expected to deal with, having regard to the challenges faced by a growing modern economy, are matters of executive policy. When it comes to personnel who would operate these tribunals (given that the issues they decide would ultimately reach this Court, in appellate review or in some cases, judicial review), competence, especially in matters of law as well as procedure to be adopted by such judicialbodies, becomes matters of concern for this Court. These tribunals discharge a judicial role, and with respect to matters entrusted to them, the jurisdiction of civil courts is usually barred. Therefore, wherever legal expertise in the particular domain is implicated, it would be natural that advocates with experience in the same, or ancillary field would provide the “catchment” for consideration for membership. This is also the case with selection of technical members, who would have expertise in the scientific or technical, or wherever required, policy background. These tribunals are expected to be independent, vibrant and efficient in their functioning. Appointment of competent lawyers and technical members is in furtherance of judicial independence. Younger advocates who arearound 45 years old bring in fresh perspectives. Many states induct lawyers just after 7 years of practice directly as District Judges. If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy and enthusiasm are inducted. 25 years of practice even with a five-year degree holder, would mean that the minimum age of induction would be 48 years: it may be more, given the time taken to process recommendations. Therefore, a tenure without assured re-engagements would not be feasible. A younger lawyer, who may not be suitable to continueafter one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again. REMOVAL OF MEMBERS

45Copy pinpoint45. Rule 8 of the 2020 Rules provides the procedure for inquiry of misbehavior or incapacity of a member. According to the said Rule, the preliminary scrutiny of the complaint is done by the Central Government. If the Central Government finds that there are reasonable grounds for conducting an inquiry into the allegations made against a member in the complaint, it shall make a reference to the Search-cum-Selection Committee which shall conduct an inquiry and submit the report to the H

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A Central Government. The learned Amicus Curiae argued that there is no clarity in the Rules as to whether the reports submitted by the Search- cum-Selection Committee are binding on the Central Government. According to Mr. Datar, it is impermissible for the Central Government to further scrutinize the report of the Search-cum-Selection Committee which comprises of sitting and retired Judges. He submitted that the proper procedure to be followed in matters of complaints against the Presiding Officers and members of the Tribunals is that a preliminary scrutiny may be made by the Central Government and the report should be placed before the Search-cum-Selection Committee. It is open to the Search-cum-Selection Committee to accept or reject the preliminary scrutiny. In case the Search-cum-Selection Committee is of the opinion that the findings of the preliminary scrutiny are correct, then the Search- cum-Selection Committee should be entitled to proceed further to conduct an inquiry on its own, if it so choses. The findings of the Search-cum- Selection Committee shall be final and the action recommended by the Search-cum-Selection Committee shall be implemented by the Central D Government.

46Copy pinpoint46. The learned Attorney General submitted that the preliminary scrutiny done by the Central Government, according to Rule 8 (1) is only for the purpose of weeding out frivolous complaints. The learned Attorney General has also fairly submitted that the recommendations made by the E Search-cum-Selection Committee shall be implemented by the Central Government. We are in agreement with the submissions of the learned Attorney General. TIME LIMIT FOR APPOINTMENT

47Copy pinpoint47. The learned Amicus Curiae brought to our notice that there are several instances where appointments are delayed even after the selections are completed by the Search-cum-Selection Committee. The learned Attorney General also agreed that there is an imminent need for appointments to be made in an expeditious manner, but implored that no time be fixed for making appointments. The very reason for constituting G Tribunals is to supplement the functions of the High Courts and the other Courts and to ensure that the consumer of justice gets speedy redressal to his grievances. This would be defeated if the Tribunals do not function effectively. It has been brought to our notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the H Tribunals. The pendency of cases in the Tribunals is increasing mainly

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due to the lack of personnel in the Tribunals which is due to the delay in A filling up the vacancies as and when they arise due to the retirement of the members. There is imminent need for expediting the process of selections and appointments to ensure speedy justice. We, therefore, direct that the Government of India shall make the appointments to the Tribunals within three months after the Search-cum-Selection Committee B completes the selection and makes its recommendations. RETROSPECTIVITY OF THE 2020 RULES

48Copy pinpoint48. The learned Amicus Curiae submitted that the 2020 Rules have been made in exercise of the powers conferred by Section 184 of the Finance Act, 2017. Rule 1(2) provides that Rules shall come into C force on the date of their publication in the Official Gazette. According to the learned Amicus Curiae, the Rules have come into force on 12.02.2020, the date on which they were notified. He stated that it is a well settled principle that delegated legislations such as Rules, notifications and circulars cannot have retrospective effect unless the parent statute itself permits such retrospective effect. He stated that D Section 183 of the Finance Act, 2017 enabled the notification of Rules made under Section 184 to take effect from the appointed day. Under Section 157 (a) of the Finance Act, 2017, the appointed day means such date as the Central Government by notification in the Official Gazette appoint. The date on which Rules were notified is 12.02.2020. The E learned Amicus Curiae relied upon the judgment of this Court in Sri Vijayalakshmi Rice Mills v. State of A.P.21 to argue that the Rules cannot be given retrospective effect. He stated that the 2017 Rules have become non est after being struck down in Rojer Mathew (supra) and the 2020 Rules cannot be treated as an amendment or modification of the 2017 Rules. He stressed on the point that giving retrospective F effect to 2020 Rules would result in inequitable consequences and serious hardship. For instance, some Vice Chairpersons, Vice Presidents and Vice Chairmen were appointed for a period of three years with an upper age limit of 67 years under the 2017 Rules. However, under the 2020 Rules their appointment period is four years with the upper age limit of G 65 years. The term of office of persons who are appointed under the 2017 Rules would be altered if the 2020 Rules are given retrospective effect. The learned Amicus Curiae was supported by other Senior Counsel who vehemently argued that the 2020 Rules are only prospective. 21 (1976) 3 SCC 37 H

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49Copy pinpoint49. The Attorney General argued that Section 183 of the Finance Act, 2017 provided that the Rules made under Section 184 shall have effect from the appointed day which was 26.05.2017. As per Section 183, all persons appointed prior to 26.05.2017 would be governed by the old Acts and Rules under which the Tribunals were established and those who are appointed after 26.05.2017 would be governed by the 2017 B Rules. The Attorney General further argued that though the 2017 Rules were struck down by this Court in Rojer Mathew (supra), an opportunity was given to the Government of India to frame new Rules and place them before this Court. As the new Rules have been framed in exercise of powers under the Finance Act, 2017, the 2020 Rules would be C effective from 26.05.2017. The Government of India has filed M.A. No. 1152 of 2020 in Writ Petition (C) No. 279 of 2017 seeking a direction that the 2020 Rules would apply to all persons appointed as Members, Presidents and Chairpersons to the Tribunals after appointed day i.e. 26.05.2017 in accordance with the mandate of Section 183 of the Finance Act. D

50Copy pinpoint50. Before expressing our view on this point, it would be necessary to refer to certain interim orders that were passed by this Court in Rojer Mathew (supra). By an order dated 09.02.2018, this Court gave certain interim directions regarding constitution of the Search-cum-Selection Committee and other issues in relation to appointments to the post of members of the Central Administrative Tribunal. The direction with which we are concerned at present pertains to appointments that were directed to be made pursuant to the recommendations of the interim Search- cum-Selection Committee which shall abide by the conditions of service stipulated in the old Acts and Rules. By an order dated 20.03.2018, the order passed on 09.02.2018 was clarified by this Court and the tenure of the Chairperson and the members was directed to be for a period of five years. There is another order passed on 21.08.2018 by this Court in Writ Petition (C) No. 279 of 2017 by which it was clarified that appointments made to the post of members of the Customs Excise Sales Tax Appellate Tribunal shall be for a period of five years or till the member attains the age of 62 years. This Court clarified that the President shall continue till he attains the age of 65 years. In respect of the Central Administrative Tribunal, the old Rules were directed to be applied.

51Copy pinpoint51. The 2017 Rules have been declared as being contrary to the parent enactment and the principles envisaged in the Constitution and H

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hence struck down by this Court in Rojer Mathew (supra). The Central A Government was directed to reformulate the Rules in conformity and in accordance with the principles delineated by this Court in its earlier judgment and the observations made in Rojer Mathew (supra). The 2020 Rules are made in exercise of the power conferred under Section 184 of the Finance Act which came into force on their publication in the B official Gazette as per Rule 1(2). The date of publication of the 2020 Rules is 12.02.2020. We are unable to accept the submission of learned Attorney General that the 2020 Rules which replaced the 2017 Rules shall come into force with effect from 26.05.2017 which was the appointed day in accordance with the 2017 Rules. It is true that the 2017 Rules were brought into force from 26.05.2017 and Section 183 of the Finance C Act provides for any appointment made after the appointed day shall be in accordance with the Rules made under Section 184 of the Finance Act, 2017. 2017 Rules which have come into force with effect from 26.05.2017 in accordance with Section 183 have been struck down by this Court. The 2020 Rules which came into force from the date of their D publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect. The intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.22 E

52Copy pinpoint52. As we have held that the 2020 Rules are not retrospective, the point that remains to be determined is the applicable Rules for appointments that were made prior to the 2020 Rules. The appointments made during the pendency of Rojer Mathew (supra) on the date of interim orders passed therein and appointments made after the judgment F of Rojer Mathew(supra), like the appointments made prior to the 2017 Rules are, no doubt, to be governed by the then existing parent Acts and Rules. In view of the interim orders passed by this Court in Rojer Mathew (supra), appointments made during the pendency of the case in this Court are also to be governed by the parent Acts and Rules and the clarifications issued by this Court in Rojer Mathew (supra). According to paragraph G 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the

ITO v. M.C. Ponnoose, (1969) 2 SCC 351; Sri Vijayalakshmi Rice Mills v. State of 22

A.P., (1976) 3 SCC 37. H

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A Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. B

53Copy pinpoint53. The upshot of the above discussion leads this court to issue the following directions: (i) The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct C disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals. D (ii) Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members: E (a) The Chief Justice of India or his nominee—Chairperson (with a casting vote). (b) The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or F President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment— G member; (c) Secretary to the Ministry of Law and Justice, Government of India—member; (d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet H Secretary-—member;

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(e) Secretary to the sponsoring or parent Ministry or Department— A Member Secretary/Convener (without a vote). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated. (iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list. (iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years. (v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount of Rs. 1,50,000/- per month as house rent allowance and Rs. 1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021. (vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals. G (vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law. H

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A (viii) Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government. B (ix) The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations. (x) The 2020 Rules shall have prospective effect and will be C applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules. (xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court in Rojer Mathew (supra), appointments made during the pendency of Rojer Mathew D (supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. (xii) Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum-Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved. (xiii) In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment. (xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in, and directed by this judgment. H

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(xv) The Chairpersons, Vice Chairpersons and members of the A Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after 12.02.2020. While reserving the matter for judgment on 09.10.2020, we extended the term of the B Chairpersons, Vice-Chairpersons and members of the Tribunals till 31.12.2020. In view of the final judgment on the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as mentioned above.

54Copy pinpoint54. We will be failing in our duty unless we acknowledge the C invaluable assistance of Mr. Arvind Datar, learned Amicus Curiae, Mr. K. K. Venugopal, learned Attorney General, Mr. S.V. Raju and Mr. Balbir Singh, learned Additional Solicitors General and the other senior counsel and advocates.

55Copy pinpoint55. For the aforementioned reasons, the Writ Petitions, Transfer D Petitions, Civil Appeals and all the Applications are disposed of. Epilogue Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence. We have noticed a disturbing trend of the Government not implementing the directions issued by this Court. To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner to approach this Court time and again. It is high time that we put an end to this practice. Rules are framed which are completely contrary to the directions issued by this Court. Upon the tribunals has devolved the task of marking boundaries of what is legally permissible and feasible (as opposed to what is not lawful and is indefensible) conduct, in a normative sense guiding future behavior of those subject to the jurisdictions of such tribunals. This task is rendered even more crucial, given that appeals against their decisions lie directly to the Supreme Court and public law intervention on the merits of such decisions is all but excluded. Also, these tribunals are expected to be consistent, and therefore, adhere to their precedents, inasmuch as they oversee regulatory behavior in several H

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A key areas of the economy. Therefore, it is crucial that these tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience and competence in such fields. The functioning or non-functioning of anyof these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India. These aspects are highlighted once again to stress that these tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect. The role of both the courts as upholders of judicial independence, and the executive as the policy making and implementing limb of governance, is to be concordat and collaborative. This Court expects that the present directions are adhered to and implemented, so that future litigation is avoided. The Government is, accordingly, directed to strictly adhere to the directions given above and not force the Petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court again.

Ankit Gyan Matters disposed of.