MADRAS BAR ASSOCIATION versus UNION OF INDIA & ANR.

[2020] 2 S.C.R.

MADRAS BAR ASSOCIATION

UNION OF INDIA & ANR.

(Writ Petition (C) No. 804 of 2020)

BNOVEMBER 27, 2020

[L. NAGESWARA RAO, HEMANT GUPTA ANDS. RAVINDRA BHAT, JJ.]

Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofCMembers] Rules, 2020 – National Tribunals Commission –Constitution of – Held: The Union of India directed to constitute aNational Tribunals Commission which shall act as an independentbody to supervise the appointments and functioning of Tribunals,as well as to conduct disciplinary proceedings against members ofDTribunals and to take care of administrative and infrastructuralneeds of the Tribunals, in an appropriate manner – Till the NationalTribunals Commission is constituted, separate wing in the Ministryof Finance, Government of India shall be established to cater tothe requirements of the Tribunals.

ETribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Search-cum-Selection Committee –Composition of – Held: The Search-cum-Selection Committeesshould comprise of the following members: (i) The Chief Justice ofIndia or his nominee—Chairperson (with casting vote); (ii) TheFoutgoing Chairman or Chairperson or President of the Tribunal incase of appointment of the Chairman or Chairperson or Presidentof the Tribunal (or) the sitting Chairman or Chairperson or Presidentof the Tribunal in case of appointment of other members of theTribunal (or) retired Judge of the Supreme Court of India or aGretired Chief Justice of High Court in case the Chairman orChairperson or President of the Tribunal is not Judicial memberor if the Chairman or Chairperson or President of the Tribunal isseeking re-appointment—member; (iii) Secretary to the Ministry ofLaw and Justice, Government of India—member; (iv) Secretary tothe Government of India from department other than the parentH

or sponsoring department, nominated by the Cabinet Secretary––member; (v) Secretary to the sponsoring or parent Ministry orDepartment—Member Secretary/Convener (without vote) – Tillamendments are carried out, the 2020 Rules shall be read in themanner indicated – Further, r. 4(2) of the 2020 Rules shall beamended to provide that the Search-cum-Selection Committee shallrecommend the name of one person for appointment to each postinstead of panel of two or three persons for appointment to eachpost.

Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – rr.9(1) and 9(2) – Term of office of theChairpersons, vice-chairpersons and the members of the Tribunal– Modification of the Rules, 2020 – Held: In view of the law laiddown in the earlier judgments of the Supreme Court, the modificationof the tenure is directed in rr. 9(1) and 9(2) of the 2020 Rules asfive years in respect of Chairman or Chairperson, Vice Chairmanor Vice-Chairperson and the members – The Government to amendr. 9 (1) of the 2020 Rules by making the term of Chairman,Chairperson or President as five years or till they attain 70 years,whichever is earlier and other members dealt with in r. 9(2) as fiveyears or till they attain 67 years, whichever is earlier.Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – r. 15 – House Rent Allowance to theChairperson and other members of the Tribunals – The lack ofhousing in Delhi has been one of the reasons for retired judges ofthe High Courts and the Supreme Court to not accept appointmentsto Tribunals – Held: The Government of India directed to makeserious efforts to provide suitable housing to the Chairperson andthe members of the Tribunals and in case providing housing is notpossible, to enhance the house rent allowance to Rs.1,25,000/- formembers of Tribunals and Rs.1,50,000/- for the Chairman orChairperson or President and Vice Chairman or Vice Chairpersonor Vice President of Tribunals – In other words, an option shouldbe given to the Chairperson and the members of the Tribunals toeither apply for housing accommodation to be provided by theGovernment of India as per the existing rules or to accept theenhanced house rent allowance.

ATribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Advocates as Judicial members – Held:An Advocate of High Court with experience of ten years isqualified for appointment as Judge of the High Court as per Art.217 (2) of the Constitution of India – As the qualification for anBadvocate of High Court for appointment as Judge of HighCourt is only 10 years, thus, the experience at the bar should be onthe same lines for being considered for appointment as judicialmember of Tribunal – However, it is left open to the Search-cum-Selection Committee to take into account experience of theCAdvocates at the bar and the specialization of the Advocates in therelevant branch of law while considering them for appointment asjudicial members.

Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Members of Indian Legal Service –DEligibility of – Held: The members of Indian Legal Service areentitled to be appointed only as technical members – The membersof Indian Legal Service shall be entitled to be considered forappointment as judicial member subject to their fulfilling the othercriteria which advocates are subjected to – In addition, the natureEof work done by the members of the Indian Legal Service and theirspecialization in the relevant branches of law shall be consideredby the Search-cum-Selection Committee while evaluating theircandidature.

Tribunal, Appellate Tribunal and other AuthoritiesF[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Removal of members – r. 8 – Held: r. 8 ofthe 2020 Rules shall be amended to reflect that the recommendationsof the Search-cum-Selection Committee in matters of disciplinaryactions shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the CentralGGovernment.

Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Time Limit for appointment – Held: Thependency of cases in the Tribunals is increasing mainly due to theHlack of personnel in the Tribunals which is due to the delay in filling

up the vacancies as and when they arise due to the retirement of themembers – There is an imminent need for expediting the process ofselections and appointments to ensure speedy justice – TheGovernment of India directed to make the appointments to theTribunals within three months after the Search-cum-SelectionCommittee completes the selection and makes its recommendations.

Tribunal, Appellate Tribunal and other Authorities[Qualification, Experience and other conditions of service ofMembers] Rules, 2020 – Retrospectivity of the 2020 Rules – TheGovernment of India contended that the new Rules, 2020 have beenframed in exercise of powers under the Finance Act, 2017, the 2020Rules would be effective from 26.05.2017 – Held: The 2020 Ruleswhich came into force from the date of their publication in the OfficialGazette, i.e. 12.02.2020, cannot be given retrospective effect – Theintention of Government of India to make the 2020 Rules prospectiveis very clear from the notification dated 12.02.2020 – In any event,subordinate legislation cannot be given retrospective effect unlessthe parent statute specifically provides for the same – It is clarifiedthat all appointments made prior to the 2020 Rules which came intoforce on 12.02.2020 shall be governed by the parent Acts and Rules– Any appointment made after the 2020 Rules have come into forceshall be in accordance with the 2020 Rules subject to themodifications directed in the preceding paragraphs of this judgment.

Disposing of the writ petitions, Transfer Petitions, CivilAppeals, the Court

HELD: NATIONAL TRIBUNAL COMMISSION

1. The Union of India is directed to set up NationalTribunals Commission as suggested by this Court by its orderdated 07.05.2018 at the earliest. Setting up of such Commissionwould enhance the image of the Tribunals and instill confidencein the minds of the litigants. Dependence of the Tribunals for alltheir requirements on the parent Department will not extricatethem from the control of the executive. Judicial independence ofthe Tribunals can be achieved only when the Tribunals areprovided the necessary infrastructure and other facilities withouthaving to lean on the shoulders of the executive. This can beachieved by establishment of an independent National TribunalsCommission as suggested above. To stop the dependence of the

ATribunals on their parent Departments for routing theirrequirements and to ensure speedy administrative decisionmaking, as an interregnum measure, there should also be aseparate “tribunals wing” established in the Ministry of Finance,Government of India to take up, deal with and finalizerequirements of all the Tribunals till the National TribunalsBCommission is established. [Para 20][273-B-D]

SEARCH-CUM-SELECTION COMMITTEE

2. There is merit in the submission of the Attorney Generalthat the presence of the Secretary of the sponsoring or parentCdepartment in the Search-cum-Selection Committee will bebeneficial to the selection process. But, it is settled that theSecretary of the parent or sponsoring Department cannot have asay in the process of selection and service conditions of themembers of Tribunals. Ergo, the Secretary to the sponsoring orparent Department shall serve as the Member-Secretary/DConvener to the Search-cum-Selection Committee and shallfunction in the Search-cum-Selection Committee without vote.[Para 29][279-B-C]3. The Government of India is duty bound to implementthe directions issued in the earlier judgments and constitute theESearch-cum-Selection Committees in which the Chief Justice ofIndia or his nominee shall be the Chairperson along with theChairperson of the Tribunal if he is retired Judge of the SupremeCourt or retired Chief Justice of High Court and twoSecretaries to the Government of India. In case the Tribunal isheaded by Chairperson who is not judicial member, the Search-Fcum-Selection Committee shall consist of the Chief Justice ofIndia or his nominee as Chairperson and retired Judge of theSupreme Court or retired Chief Justice of High Court to benominated by the Chief Justice of India and Secretary to theGovernment of India from the Ministry of Law and Justice and aGSecretary of department other than the parent or sponsoringdepartment to be nominated by the Cabinet Secretary. As statedabove, the Secretary of the parent or sponsoring department shallserve as the Member-Secretary or Convener, without vote.[Para 30][279-D-F]

4. Rule 4 (2) of the Tribunal, Appellate Tribunal and otherAuthorities [Qualification, Experience and other conditions ofservice of Members] Rules, 2020 postulates that panel of twoor three persons shall be recommended by the Search-cum-Selection Committee from which the appointments to the postsof Chairperson or members of the Tribunal shall be made by theCentral Government. The Amicus Curiae voiced seriousobjections to Rule 4(2) on the ground that it would becompromising judicial independence. According to Amicus Curie,the procedure for appointment to the Tribunals should becompletely outside executive control. The Attorney Generalstated that panel of names consisting two or three persons isessential because their antecedents have to be examined by theIntelligence Bureau before appointing them to Tribunal. Hesuggested that the number of persons to be recommended canbe two instead of three to limit the discretion of the AppointmentsCommittee of the Cabinet. The recommendations forappointments by the Search-cum-Selection Committee should befinal and the executive should not be permitted to exercise theirdiscretion in the matter of appointments to the Tribunals.Accordingly, this Court directs that Rule 4(2) of the 2020 Rulesshall be amended and till so amended, that it be read asempowering the Search-cum-Selection Committee to recommendthe name of only one person for each post. However, taking noteof the submissions made by the Attorney General regarding therequirement of the reports of the selected candidates from theIntelligence Bureau, another suitable person can be selected bythe Search-cum-Selection Committee and placed in the waitinglist. In case, the report of the Intelligence Bureau regarding theselected candidate is not satisfactory, then the candidate in thewaiting list can be appointed. [Para 31][279-G-H; 280-A-D]

TERM OF OFFICE

5. The 2020 Rules are not in compliance with the principlesof law laid down in Union of India v. Madras Bar Association (2010)and Rojer Mathew in respect of the tenure of the members of theTribunals in spite of this Court repeatedly holding that shorttenure of members is detrimental to the efficiency and

Aindependence of the Tribunals. Rule 9(1) of the 2020 Rulesprovide for term of four years or till Chairman or Chairpersonor President attains the age of 70 years whichever is earlier. Norationale except that four years is more than three yearsprescribed in the 2017 Rules (described as too short, in RogerMathew ) was put forward on behalf of the Union of India. In soBfar as the posts of Vice Chairman or Vice-Chairperson or Vice-President and members are concerned, Rule 9(2) fixes the tenureas four years or till they attain the age of 65 years whichever isearlier. In view of the law laid down in the earlier judgments ofthe Supreme Court, the modification of the tenure is directed inCRules 9(1) and 9(2) of the 2020 Rules as five years in respect ofChairman or Chairperson, Vice Chairman or Vice-Chairpersonand the members. Rule 9(1) permits Chairman, Chairperson orPresident of the Tribunal to continue till 70 years which is inconformity with Parliamentary mandate in Section 184 of theFinance Act. However, Rule 9(2) provides that Vice ChairmanDand other members shall hold office till they attain 65 years. ThisCourt is in agreement with the submission made by the learnedAmicus Curiae that under the 2020 Rules, the Vice Chairman,Vice-Chairperson or Vice-President or members in almost all theTribunals will have only short tenure of less than three years ifEthe maximum age is 65 years. Therefore, the Government isdirected to amend Rule 9 (1) of the 2020 Rules by making theterm of Chairman, Chairperson or President as five years or tillthey attain 70 years, whichever is earlier and other membersdealt with in Rule 9(2) as five years or till they attain 67 years,whichever is earlier. [Para 35][281-F-H; 282-A-D]F

HOUSE RENT ALLOWANCE

6. Experience has shown that lack of housing in Delhi hasbeen one of the reasons for retired Judges of the High Courtsand the Supreme Court to not accept appointments to Tribunals.GAt the same time, scarcity of housing is also factor which needsto be kept in mind. The only way to find solution to this problemis to direct the Government of India to make serious efforts toprovide suitable housing to the Chairperson and the members ofthe Tribunals and in case providing housing is not possible, toenhance the house rent allowance to Rs.1,25,000/- for membersH

of Tribunals and Rs.1,50,000/- for the Chairman or Chairpersonor President and Vice Chairman or Vice Chairperson or VicePresident of Tribunals. In other words, an option should be givento the Chairperson and the members of the Tribunals to eitherapply for housing accommodation to be provided by theGovernment of India as per the existing rules or to accept theenhanced house rent allowance. This direction shall be effectivefrom 01.01.2021. [Para 38][283-D-E]

ADVOCATES AS JUDICIAL MEMBERS

7. In view of the submission of the Attorney General thatthe 2020 the Rules will be amended to make Advocates eligiblefor appointment to the post of judicial members of the Tribunals,the only question that remains is regarding their experience atthe bar. While the Attorney General suggested that an advocatewho has 25 years of experience should be considered forappointment as Judicial member, the learned Amicus Curiaesuggested that it should be 15 years. An Advocate of High Courtwith experience of ten years is qualified for appointment as aJudge of the High Court as per Article 217 (2) of the Constitutionof India. As the qualification for an advocate of High Court forappointment as Judge of High Court is only 10 years, thisCourt is of the opinion that the experience at the bar should beon the same lines for being considered for appointment as ajudicial member of Tribunal. Exclusion of Advocates in 10 outof 19 tribunals, for consideration as judicial members, is therefore,contrary to Union of India v. Madras Bar Association (2010) andMadras Bar Association v. Union of India (2015). However, it isleft open to the Search-cum-Selection Committee to take intoaccount in the experience of the Advocates at the bar and thespecialization of the Advocates in the relevant branch of law whileconsidering them for appointment as judicial members. [Para41][285-A-D]

ELIGIBILITY OF MEMBERS OF INDIAN LEGALSERVICE

8. As Advocates are entitled to be considered as judicialmembers of the Tribunals, there is no harm in members of theIndian Legal Service being considered as judicial members,

Aprovided they satisfy the criteria relating to the standing at thebar and specialization required. The judgment of Union of Indiav. Madras Bar Association (2010) did not take note of the abovepoints relating to the experience of members of Indian LegalService at the bar. The Indian Legal Service was considered alongBwith the other civil services for the purpose of holding that themembers of Indian Legal Service are entitled to be appointedonly as technical members. In the light of the submission madeby the Attorney General and the Amicus Curiae, this Court holdsthat the members of Indian Legal Service shall be entitled to be

considered for appointment as judicial member subject to theirCfulfilling the other criteria which advocates are subjected to. Inaddition, the nature of work done by the members of the IndianLegal Service and their specialization in the relevant branches oflaw shall be considered by the Search-cum-Selection Committeewhile evaluating their candidature. [Para 43][286-E-H]

DREMOVAL OF MEMBERS

9. Rule 8 of the 2020 Rules provides the procedure forinquiry of misbehavior or incapacity of member. According tothe said Rule, the preliminary scrutiny of the complaint is doneby the Central Government. If the Central Government finds thatEthere are reasonable grounds for conducting an inquiry into theallegations made against member in the complaint, it shall makea reference to the Search-cum-Selection Committee which shallconduct an inquiry and submit the report to the CentralGovernment. The Amicus Curiae argued that there is no clarityFin the Rules as to whether the reports submitted by the Search-cum-Selection Committee are binding on the CentralGovernment. According to Amicus Curiae, it is impermissiblefor the Central Government to further scrutinize the report ofthe Search-cum-Selection Committee which comprises of sittingand retired Judges. He submitted that the proper procedure toGbe followed in matters of complaints against the Presiding Officersand members of the Tribunals is that preliminary scrutiny maybe made by the Central Government and the report should beplaced before the Search-cum-Selection Committee. It is opento the Search-cum-Selection Committee to accept or reject theH

preliminary scrutiny. In case the Search-cum-Selection Committeeis of the opinion that the findings of the preliminary scrutiny arecorrect, then the Search-cum-Selection Committee should beentitled to proceed further to conduct an inquiry on its own, if itso choses. The findings of the Search-cum-Selection Committeeshall be final and the action recommended by the Search-cum-Selection Committee shall be implemented by the CentralGovernment. [Para 45][287-G-H; 288-A-D]

TIME LIMIT FOR APPOINTMENT

10. It has been brought to notice that there are largenumber of unfilled vacancies hampering the progress of thefunctioning of the Tribunals. The pendency of cases in theTribunals is increasing mainly due to the lack of personnel in theTribunals which is due to the delay in filling up the vacancies asand when they arise due to the retirement of the members. Thereis imminent need for expediting the process of selections andappointments to ensure speedy justice. The Government of Indiadirected to make the appointments to the Tribunals within threemonths after the Search-cum-Selection Committee completes theselection and makes its recommendations. [Para 47][288-H; 289-A-B]

RETROSPECTIVITY OF THE 2020 RULES

11. The 2017 Rules have been declared as being contraryto the parent enactment and the principles envisaged in theConstitution and hence struck down by this Court in RojerMathew. The Central Government was directed to reformulatethe Rules in conformity and in accordance with the principlesdelineated by this Court in its earlier judgment and theobservations made in Rojer Mathew. The 2020 Rules are made inexercise of the power conferred under Section 184 of the FinanceAct which came into force on their publication in the official Gazetteas per Rule 1(2). The date of publication of the 2020 Rules is12.02.2020. The submission of Attorney General that the 2020Rules which replaced the 2017 Rules shall come into force witheffect from 26.05.2017 which was the appointed day in accordancewith the 2017 Rules, is not accepted. It is true that the 2017Rules were brought into force from 26.05.2017 and Section 183

FGH

Aof the Finance Act provides for any appointment made after theappointed day shall be in accordance with the Rules made underSection 184 of the Finance Act, 2017. 2017 Rules which havecome into force with effect from 26.05.2017 in accordance withSection 183 have been struck down by this Court. The 2020 RulesBwhich came into force from the date of their publication in theOfficial Gazette, i.e. 12.02.2020, cannot be given retrospectiveeffect. The intention of Government of India to make the 2020Rules prospective is very clear from the notification dated12.02.2020. In any event, subordinate legislation cannot be givenretrospective effect unless the parent statute specifically providesCfor the same. [Para 51][290-H; 291-A-E]

12. The following directions were issued:

(i) The Union of India shall constitute National TribunalsCommission which shall act as an independent body to superviseDthe appointments and functioning of Tribunals, as well as toconduct disciplinary proceedings against members of Tribunalsand to take care of administrative and infrastructural needs ofthe Tribunals, in an appropriate manner. Till the National TribunalsCommission is constituted, separate wing in the Ministry ofFinance, Government of India shall be established to cater to theErequirements of the Tribunals; (ii) Instead of the four-memberSearch-cum-Selection Committees provided for in Column (4) ofthe Schedule to the 2020 Rules with the Chief Justice of India orhis nominee, outgoing or sitting Chairman or Chairperson orPresident of the Tribunal and two Secretaries to the Governmentof India, the Search-cum-Selection Committees should compriseFof the following members: (a)The Chief Justice of India or hisnominee—Chairperson (with casting vote); (b) The outgoingChairman or Chairperson or President of the Tribunal in case ofappointment of the Chairman or Chairperson or President of theTribunal (or) the sitting Chairman or Chairperson or PresidentGof the Tribunal in case of appointment of other members of theTribunal (or) retired Judge of the Supreme Court of India or aretired Chief Justice of High Court in case the Chairman orChairperson or President of the Tribunal is not Judicial memberor if the Chairman or Chairperson or President of the Tribunal isseeking re-appointment—member; (c) Secretary to the MinistryHof Law and Justice, Government of India—member; (d) Secretaryto the Government of India from department other than theparent or sponsoring department, nominated by the CabinetSecretary-—member; (e) Secretary to the sponsoring or parentMinistry or Department—Member Secretary/Convener (withouta vote). Till amendments are carried out, the 2020 Rules shall beread in the manner indicated; (iii) Rule 4(2) of the 2020 Rulesshall be amended to provide that the Search-cum-SelectionCommittee shall recommend the name of one person forappointment to each post instead of panel of two or three personsfor appointment to each post. Another name may be recommendedto be included in the waiting list; (iv)The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold officefor term of five years and shall be eligible for reappointment.Rule 9(2) of the 2020 Rules shall be amended to provide that theVice-Chairman, Vice-Chairperson and Vice President and othermembers shall hold office till they attain the age of sixty-sevenyears; (v) The Union of India shall make serious efforts to providesuitable housing to the Chairman or Chairperson or Presidentand other members of the Tribunals. If providing housing is notpossible, the Union of India shall pay the Chairman or Chairpersonor President and Vice-Chairman, Vice-Chairperson, VicePresident of the Tribunals an amount of Rs. 1,50,000/- per monthas house rent allowance and Rs. 1,25,000/- per month for othermembers of the Tribunals. This direction shall be effective from01.01.2021; (vi) The 2020 Rules shall be amended to makeadvocates with an experience of at least 10 years eligible forappointment as judicial members in the Tribunals. Whileconsidering advocates for appointment as judicial members inthe Tribunals, the Search-cum-Selection Committee shall takeinto account the experience of the Advocate at the bar and theirspecialization in the relevant branches of law. They shall beentitled for reappointment for at least one term by givingpreference to the service rendered by them for the Tribunals;(vii) The members of the Indian Legal Service shall be eligiblefor appointment as judicial members in the Tribunals, providedthat they fulfil the criteria applicable to advocates subject tosuitability to be assessed by the Search-cum-Selection Committeeon the basis of their experience and knowledge in the specialized

Abranch of law; (viii) Rule 8 of the 2020 Rules shall be amended toreflect that the recommendations of the Search-cum-SelectionCommittee in matters of disciplinary actions shall be final andthe recommendations of the Search-cum-Selection Committeeshall be implemented by the Central Government; (ix) The Unionof India shall make appointments to Tribunals within three monthsBfrom the date on which the Search-cum-Selection Committeecompletes the selection process and makes its recommendations;(x) The 2020 Rules shall have prospective effect and will beapplicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules;(xi) Appointments made prior to the 2017 Rules are governed byCthe parent Acts and Rules which established the concernedTribunals. In view of the interim orders passed by the Court inRojer Mathew, appointments made during the pendency of RojerMathew were also governed by the parent Acts and Rules. Anyappointments that were made after the 2020 Rules came intoforce i.e. on or after 12.02.2020 shall be governed by the 2020DRules subject to the modifications directed in the precedingparagraphs of this judgment; (xii) Appointments made under the2020 Rules till the date of this judgment, shall not be consideredinvalid, insofar as they conformed to the recommendations of theSearch-cum-Selection Committees in terms of the 2020 Rules.ESuch appointments are upheld, and shall not be called into questionon the ground that the Search-cum-Selection Committees whichrecommended the appointment of Chairman, Chairperson,President or other members were in terms of the 2020 Rules, asthey stood before the modifications directed in this judgment.They are, in other words, saved; (xiii) In case the Search-cum-FSelection Committees have made recommendations afterconducting selections in accordance with the 2020 Rules,appointments shall be made within three months from today andshall not be subject matter of challenge on the ground that theyare not in accord with this judgment; (xiv) The terms andGconditions relating to salary, benefits, allowances, house rentallowance etc. shall be in accordance with the terms indicated in,and directed by this judgment;(xv) The Chairpersons, ViceChairpersons and members of the Tribunals appointed prior to12.02.2020 shall be governed by the parent statutes and Rulesas per which they were appointed. The 2020 Rules shall beH

applicable with the modifications directed in the precedingparagraphs to those who were appointed after 12.02.2020. Whilereserving the matter for judgment on 09.10.2020, the term ofthe Chairpersons, Vice-Chairpersons and members of theTribunals is extended till 31.12.2020. In view of the final judgmenton the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be inaccordance with the applicable Rules as mentioned above. [Para53][292-B-H; 293-A-H; 294-A-H; 295-A-B]

L. Chandra Kumar v. Union of India (1997) 3 SCC261: [1997] 2 SCR 1186; Rojer Mathew v. South IndianBank Limited (2020) 6 SCC 1 – relied on.

S.P. Sampath Kumar v. Union of India (1987) 1 SCC124 : [1987] 1 SCR 435; R.K. Jain v. Union of India(1993) 4 SCC 119 : [1993] 3 SCR 802; Union of Indiav. R. Gandhi, President, Madras Bar Association (2010)11 SCC 1 : [2010] 6 SCR 857; Madras Bar Associationv. Union of India (2014) 10 SCC 1 : [2014] 10 SCR 1;Bidi Supply Co. v. Union of India [1956] SCR 267;Sundeep Kumar Bafna v. State of Maharashtra (2014)16 SCC 623 : [2014] 4 SCR 486; Union of India v.Madras Bar Association (2010) 11 SCC 1 : [2010] 6SCR 857; Madras Bar Association v. Union of India(2015) 8 SCC 583 : [2015] 6 SCR 638; SriVijayalakshmi Rice Mills v. State of A.P. (1976) 3 SCC37 : [1976] 3 SCR 775; ITO v. M.C. Ponnoose (1969)2 SCC 351 : [1970] 1 SCR 678 – referred to.

Hinds v. R (1976) 1 All ER 353 (PC) – referred to.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.804 of 2020.

[Under Article 32 of the Constitution of India]C

WITH

Misc. Application No.1058 of 2020 In Writ Petition (C) No.640 of2017, Misc. Application No.1152 of 2020 In Writ Petition (C) No. 279 of2017, Writ Petition (C) No. 867 Of 2020, Writ Petition (C) No.1431 of

D2019, Transfer Petition (C) Nos. 905-915 Of 2020, Civil Appeal Nos.3505-3506 of 2020 (@ SLP (C) Nos. 9587-9588 Of 2020), Transfer Petition(C) No. 1356-1360 of 2020 (@ Diary No. 18900 of 2020), Misc.Application No.1481 of 2020 In Writ Petition (C) No.279 of 2017, WritPetition (C) No.995 of 2020, Writ Petition (C) No.991 of 2020, Misc.EApplication No.1654 of 2020 In Writ Petition (C) No.279 of 2017, WritPetition (C) No.1085 of 2020, Misc. Application No.1811 of 2020 InWrit Petition (C) No.279 of 2017, Civil Appeal No.3598 of 2020 (@SLP (C) No.11612 of 2020)

K.K. Venugopal, AG, Balbir Singh, S.V.Raju, ASGs, Arvind P.FDatar, C.A. Sundaram, Ms. Priya Hingorani, Vikas Singh, Ms. AnithaShenoy, R Balasubramanium, A.S. Chandhiok, Virender Ganda, M.S.Ganesh, Sidharth Luthra, Balasubramanian, C.S. Vaidyanathan, GuruKrishnakumar, Rakesh Kumar Khanna, Gautam Misra, P.S.Narasimha,Sr.Advs., Rahul Unnikrishnan, T.V.S. Raghavendra Sreyas, NaveenGHegde, N Sai Vinod, A. K. Behera, V.K. Verma, Zafar Inayat, Ms.Rohini Musa, Abhishek Gupta, Mohan Kumar, Anil Kumar Trivedi, RajivManglik, Ankur Chibber, Sandeep Bansal, Ms. Rashmi Singh, Ms. NeetuSingh, Arun Kumar Vashisht, Piyush Sharma, Ms. Ritu Bhardwaj, RajeshJain, Mohit D. Ram, Ajay Bansal, Kuldip Singh, Gaurav Yadav, Ms.HVeena Bansal, Rupesh Kumar, Rajeev Sharma, Ms. Neelam Sharma,

Ms. Pankhuri Shrivastava, Alekshendra Sharma, Ms. Deepeika Kalia,Kapish Seth, Mrintyunjai Singh, Manjul Bajpai, Tushar Singh,Parthasarathy Bose, Mohd. Arif, Akhilesh Yadav, Nageshwara Rao, VivekSharma, Ms. Srishti Agnihotri, Ms. Meera Gopal, Ms. Sanjana GraceThomas, Ms. Anmol Gupta, Zoheb Hossain, Ankur Talwar, ChinmayeeChandra, Ms. Shraddha Deshmukh, Sanjeev Menon, Arvind KumarSharma, Raj Shekhar Rao, Mohit D. Ram, Ms. Aditi Gupta, Areeb Y.Amanullah, Avesh Chaudhary, Ms. Amita Singh Kalkal, Satyajit A. Desai,Vipul Ganda, Satya Kam Sharma, Ms. Anagha S. Desai, Ms. AasthaTrivedi, Ms. Guresha Bhambra, Ritesh Kumar, Ms. Simran Kohli, TejasviChaudhry, Ms. Rukhsana Choudhury, Seshachary Komanduri, Ms. SakshiKakkar, Shakti Singh, Ms. Ankita Tiwari, Ayush Kaushik, Manan Popli,B.K. Prasad, Arvind Kumar Sharma, Ms. Anil Katiyar, P NoorMuhamed, Ms. Giffara S., Bilal Niamathulla, Ms. Uxana P.N., SameerAbhyankar, Nalin Talwar, Amish Tandon, Ayush Beotra, Varun Tandon,Ms. Megha Choubey, M.S. Bharat, Madhan Babu, A. Prasanna Venkat,Deepayan Mandal, T. V. S. Raghavendra Sreyas, Rajesh Kumar, RishiJain, Sanjeev Bhandari, Amit Dhall, I.P.Singh, Sushant Bali, Ms. SprihaBhandari, Viresh B. Saharya, Himanshu Mehra, Anurag, Ms. NidhiJaswal, Sriram P., J.Sai Deepak, Guruswamy Nataraj, Ms. Pooja Dhar,Avinash K.Sharma, Surya Prakash, Ms. Sindoora, M/S. Kmnp Law,Kawaljit Singh Bhatia, Deepayan Mandal, Sonal Jain, Sameer Abhyankar,Ms. Sairica Raju, Advs. for the appearing parties.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

1. This Court is once again, within the span of year, called uponto decide the constitutionality of various provisions concerning theselection, appointment, tenure, conditions of service, and ancillary mattersrelating to various tribunals, 19 in number, which act in aid of the judicialbranch. That the judicial system and this Court in particular has to livethese déjà vu moments, time and again (exemplified by no less thanfour constitution bench judgments) in the last 8 years, speaks profoundvolumes about the constancy of other branches of governance, in theirinsistence regarding these issues. At the heart of this, however, are stakesfar greater: the guarantee of the rule of law to each citizen of the country,with the concomitant guarantee of equal protection of the law. This

Ajudgment is to be read as sequel, and together with the decision of theConstitution Bench in Rojer Mathew v. South Indian Bank Limited[1].

2. The core controversy arising for this Court’s consideration isthe constitutional validity of the “Tribunal, Appellate Tribunal and otherAuthorities [Qualification, Experience and Other Conditions of ServiceBof Members] Rules, 2020” (hereinafter referred to as “the 2020 Rules”).

3. Before considering the merits of the case, it is necessary torefer to the events preceding the issuance of the 2020 Rules for betterunderstanding of the dispute. Like many other nations, India recognizedthe need for Tribunalisation of justice to provide for adjudication by personsCwith ability to decide disputes in specific fields as well as to provideexpedited justice in certain kinds of cases. Part XIV-A was inserted inthe Constitution of India by the Constitution (42[nd] Amendment) Act, 1976.Article 323-A enables the Parliament to constitute administrative tribunalsfor adjudication of the disputes relating to the recruitment and conditionsof service of persons appointed to public posts in connection with theDaffairs of the Union or of any State or any local or other authority.According to Article 323-B, the appropriate Legislature may constituteTribunals for adjudication of any dispute, complaints, or other offenceswith respect to all or any of the matters specified in Clause (2) therein.The vires of the Administrative Tribunals Act, 1985 (enacted byEParliament in furtherance of Article 323A, for setting up administrativetribunals for adjudication of service disputes of public servants) waschallenged in proceedings under Article 32 of the Constitution of India.Two questions that were posed in the said Writ Petition related to theexclusion of jurisdiction of the High Court under Articles 226 and 227 ofthe Constitution in service matters, the composition of the administrativeFTribunal and the mode of appointment of Chairman, Vice-Chairman andMembers. While holding that the bar on jurisdiction of the High Courts’cannot be ground of attack, this Court in S.P. Sampath Kumar v.Union of India[2] held that the Tribunal “should be real substitute ofthe High Courts not only in form and de jure but in content and deGfacto”. The Central Government was directed to make modifications tothe Administrative Tribunals Act, 1985 pertaining to the composition ofthe Tribunal to ensure selection of proper and competent people to theposts of Presiding Officers of the Tribunal.

1 (2020) 6 SCC 1H2 (1987) 1 SCC 124

4. The judgment in S.P. Sampath Kumar (supra) was referredto larger Bench for re-consideration in view of later rulings, notablyR.K. Jain v. Union of India[3] which had called for review with respectto functioning of tribunals. In L. Chandra Kumar v. Union of India,[4]this Court held that the power of judicial review vested in the High Courtsand this Court under Articles 226 and 227, and 32 is part of the basicstructure of the Constitution. Therefore, the Court held that the Tribunalscannot act as substitutes of the High Courts and this Court, and thattheir functioning is only supplementary and that all decisions ofadministrative Tribunals will be subject to scrutiny before Division Benchof the respective High Courts. Addressing the issue of the dependenceof tribunals on the Executive for administrative requirements, arecommendation was made for creation of single umbrella organisationwhich will be an independent supervisory body to oversee the workingof the Tribunals. This Court was also of the opinion that the Ministry ofLaw and Justice, Government of India should be the nodal Ministry.

5. Part I-B and Part I-C were inserted in the Companies Act,1956 providing for the constitution of the National Company Law Tribunal(NCLT) and the National Company Law Appellate Tribunal (NCLAT).Madras Bar Association filed Writ Petition in the Madras High Courtchallenging the vires of the above provisions on the grounds of violationof rule of law, doctrine of separation of powers and the independence ofthe judiciary, which are essential features of the basic structure of theConstitution. The Madras High Court allowed the Writ Petition, whichwas subject matter of several appeals which were disposed of by thisCourt in Union of India v. R. Gandhi, President, Madras BarAssociation[5]. This Court was of the opinion that while it cannot be saidthat the Legislature is denuded the power to transfer judicial functionsperformed by courts to Tribunals, nevertheless independent judicialTribunals for determination of the rights of citizens, and for adjudicationof the disputes and complaints of the citizens, is necessary concomitantof the rule of law. It was held in the above judgment that judicialindependence and separation of judicial power from the executive, arepart of common law traditions implicit in Constitution like ours. Thecreation of the NCLT and NCLAT was upheld. However, the defectsfound in Parts I-B and I-C of the Companies Act, 1956 were directed to

3 [1993] 4 SCC 119

4 (1997) 3 SCC 261

5 (2010) 11 SCC 1

Abe rectified by suitable amendments with modifications suggested bythis Court in order to uphold the judicial independence of the Tribunals.The suggestions pertained to composition of the Search-cum-SelectionCommittee (for appointment of members of the tribunals), qualificationsfor appointment, and service conditions of members of the Tribunals.Later, Madras Bar Association had assailed the constitutional validity ofBthe National Tax Tribunal Act, 2005. This Court held the National TaxTribunal Act, 2005 to be unconstitutional.[6] Nonetheless, the vesting ofadjudicatory functions in Tribunals was held to be not violative of thebasic structure of the Constitution. The Companies Act, 2013 replacedthe earlier Act of 1956 in which amendments were made to provisionsCrelating to the establishment of NCLT and NCLAT. Writ Petition wasfiled under Article 32 by the Madras Bar Association questioning theamendedprovisions of Chapter XXVII of the Companies Act, 2013, andmore particularly Sections 408, 409, 411(3), 412, 413, 425, 431 and 434.The complaint of the Madras Bar Association in the said Writ Petitionwas that the offending provisions were analogous to the provisions inDthe 1956 Act which were found to be unconstitutional by this Court inUnion of India v. Madras Bar Association (2010) (supra). Theconstitutional validity of the provisions in Chapter XXVII of the CompaniesAct, 2013 was upheld by judgment in Madras Bar Association v.Union of India[7]. However, this Court was of the view that certainEprovisions relating to composition of the Search-cum-SelectionCommittee and qualification of Members of the Tribunals are invalid asthey are contrary to the directions issued by the earlier judgment in Unionof India v. Madras Bar Association (2010) (supra).

6. By the Finance Act, 2017, amendments were made to certain

FActs to provide for merger of Tribunals and other authorities, andconditions of service of Chairpersons, Members, etc. According to Section183 of the Finance Act, 2017, the provisions of Section 184 shall apply tothe Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,Vice-President, Presiding Officer or Member of the Tribunal or Appellate

Tribunal or other authorities, as specified under Column (2) of the EighthGSchedule to the Finance Act, 2017 on and from the appointed day i.e.26.05.2017. It was further provided that Section 184 shall not apply tothose holding such office immediately before the appointed day. Section

6 Madras Bar Association v. Union of India, (2014) 10 SCC 1.H7 (2015) 8 SCC 583

184 empowered the Central Government to make rules to provide forqualifications, appointment, term of office, salaries and allowances,resignation, removal and other terms and conditions of service of theChairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,Presiding Officer, Vice-President, or Member of the Tribunal or theAppellate Tribunal or other authorities as specified in Column (2) of theEighth Schedule to the 2020 Rules. Maximum tenure of theaforementioned persons was fixed as five years. Chairperson, Chairmanor Presiding Officer of the Tribunals cannot continue beyond 70 years.Likewise, the Vice-Chairperson, Vice-Chairman, Vice-President,Presiding Officer or any other Member shall be entitled to continue tillthey attain the age of 67 years. The validity of the Finance Act, 2017and the Tribunal, Appellate Tribunal and other Authorities (Qualification,Experience and Other Conditions of Service of Members) Rules, 2017(hereinafter referred to as “the 2017 Rules”) came up for considerationbefore this Court in Rojer Mathew v. South Indian Bank Limited[8].This Court formulated the following issues for consideration:

“86.1. (I.) Whether the “Finance Act, 2017” insofar as itamends certain other enactments and alters conditions ofservice of persons manning different Tribunals can be termedas “Money Bill” under Article 110 and consequently isvalidly enacted?

86.2. (II.) If the answer to the above is in the affirmative thenwhether Section 184 of the Finance Act, 2017 isunconstitutional on account of excessive delegation?”

86.3 III. If Section 184 is valid, Whether Tribunal, AppellateTribunal and other Authorities (Qualifications, Experienceand other Conditions of Service of Members) Rules, 2017are in consonance with the Principal Act and variousdecisions of this Court on functioning of Tribunals?

86.4 IV. Whether there should be Single Nodal Agency foradministration of all Tribunals?

86.5 V. Whether there is need for conducting JudicialImpact Assessment of all Tribunals in India?

A86.6 VI. Whether judges of Tribunals set up by Acts ofParliament under Articles 323-A and 323-B of the Constitutioncan be equated in ‘rank’ and ‘status’ with Constitutionalfunctionaries?

86.7 VII. Whether direct statutory appeals from Tribunals toBthe Supreme Court ought to be detoured?86.8 VIII. Whether there is need for amalgamation of existingTribunals and setting up of benches.”

7. The issue pertaining to whether the Finance Act, 2017 was a“Money Bill” (and if not, the need for it to be passed by the RajyaCSabha) was referred to larger Bench and it was held that Section 184of the Finance Act, 2017 does not suffer from excessive delegation oflegislative functions. The 2017 Rules were struck down as being contraryto the principles of the Constitution as interpreted by various decisionsof this Court (including those previously referred to herein). The CentralDGovernment was directed to re-formulate the Rules strictly in conformityand in accordance with the principles delineated by this Court in its earlierjudgments read with the observations made in the judgment in RojerMathew (supra). Non-discriminatory and uniform conditions of serviceincluding assured tenure were directed to be formulated by the CentralGovernment in the new set of Rules. Writ of Mandamus was issued toEthe Ministry of Law & Justice to carry out judicial impact assessmentfor all the Tribunals. Appointments to the Tribunals, Appellate Tribunalsand the other Authorities were directed to be held in accordance withthe respective statutes which governed the conditions of service ofmembers of Tribunals before the enactment of the Finance Act, 2017 tillFa fresh set of Rules were made by the Central Government. The Unionof India was granted liberty to seek modification of the said order afterfresh Rules are framed.

8. Thereafter, by Notification dated 12.02.2020, the CentralGovernment in exercise of the power conferred by Section 184 of theGFinance Act, 2017 made the impugned 2020 Rules. The 2020 Ruleswhich deal with the qualification and appointment of members byrecruitment, procedure for inquiry into misbehavior, House RentAllowance and other Conditions of Service are the subject matter ofchallenge in these cases before us and will be dealt with in detail in thesucceeding paragraphs.H

9. Pursuant to the liberty granted by this Court in the judgment ofRojer Mathew (supra), the Union of India filed Miscellaneous ApplicationNo.1152 of 2020 placing the 2020 Rules before this Court and seeking adirection that the 2020 Rules would apply to all persons appointed asMembers, President, Chairperson, etc. of Tribunals after the appointedday i.e. 26.05.2017. Several applications were filed by Bar Associationsand the Members of the Tribunals seeking directions to fill up the vacantposts by making appointments to the Tribunals and for clarifications relatingto the retrospective operation of the 2020 Rules. The Madras BarAssociation filed Writ Petition under Article 32 seeking declarationthat the 2020 Rules are ultra vires of Article 14, 21 and 50 of theConstitution apart from being violative of the principles of separation ofpowers and independence of the judiciary. According to the Writ Petitioner,the 2020 Rules were also contrary to the earlier judgments of this Courtin Union of India v. Madras Bar Association (2010) (supra)[9], MadrasBar Association v. Union of India (2014) (supra)[10] and RojerMathew(supra). Other Writ Petitions filed in the High Courts weretransferred to this Court.

10. We requested Mr. Arvind P. Datar, learned Senior Counselwho has been actively associated with the litigation from the beginningand who was appointed as Amicus Curiae in the earlier rounds to assistthis Court as Amicus Curiae to which he readily and graciously accepted.We have heard Mr. Arvind P. Datar, learned Senior Counsel (AmicusCuriae), Mr. Mukul Rohtagi, Mr. C.A. Sundaram, learned Senior Counsel,Mr. Vikas Singh, learned Senior Counsel, Ms. Anitha Shenoy, learnedSenior Counsel, Mr. K.K. Venugopal, learned Attorney General for India,Mr. Balbir Singh, learned Additional Solicitor General, Mr. S.V. Raju,learned Additional Solicitor General, Mr. R. Balasubramanium, learnedSenior Counsel, Mr. A.S. Chandhiok, learned Senior Counsel, Mr. VirenderGanda, learned Senior Counsel, Mr. M.S. Ganesh, learned SeniorCounsel, Mr. Sidharth Luthra, learned Senior Counsel, Mr. C.S.Vaidyanathan, learned Senior Counsel, Mr. Guru Krishnakumar, learnedSenior Counsel, Mr. Rakesh Kumar Khanna, learned Senior Counsel,Mr. Gautam Misra, learned Senior Counsel, Mr. P.S. Narasimha, learnedSenior Counsel and other learned counsel appearing for the parties. Forthe sake of convenience, Writ Petition (Civil) No.804 of 2020 filed by

9 (2010) 11 SCC 110 (2014) 10 SCC 1

Athe Madras Bar Association is taken as the lead case. The points raisedin the said Writ Petition will broadly cover all the issues that have beenthe subject matter of discussion during the course of the hearing of thiscase.

11. The main issues raised in the Writ Petition are that the 2020BRules are unconstitutional as:

a) The Search-cum-Selection Committees provided for in the 2020Rules did not conform to the principles of judicial dominance;

b) Appointment of persons without judicial experience to the postsof Judicial Members/ Presiding Officer/ Chairpersons is inCcontravention to the earlier judgments of this Court;

c) The term of office of the Members for four years is contraryto the earlier decisions of this Court;

d) Advocates are not being made eligible for appointment to mostDof the Tribunals;

e) Administrative control of the executive in matters relating toappointments and conditions of service is violative of theprinciples of separation of powers and independence of judiciaryand demonstrates_non-application of mind.

ENATIONALTRIBUNALS COMMISSION:

12. Mr. Datar, learned Amicus Curiae submitted that there is animperative need for the Tribunals to function independently and freefrom executive control. Tribunals which are exercising power once vestedwith the High Courts and adjudicating disputes should be completelyFindependent to infuse confidence in the mind of the litigant public. Herelied upon the observations of Vivian Bose, J. in Bidi Supply Co. v.Union of India[11] which are as follows:

“The heart and core of democracy lies in the judicialprocess, and that means independent and fearless judges freeGfrom executive control brought up in judicial traditions andtrained to judicial ways of working and thinking.”

13. Mr. Datar also referred to the Reports of the Franks[12] andLeggatt[13] Committees which describe the role of Tribunals in the UnitedKingdom in detailed manner. Mr. Datar brought to our notice that therecommendations of the Leggatt Committee were cited with approval inthe judgment of this Court in Union of India v. Madras Bar Association(2010) (supra). According to the learned Amicus Curiae, theadministrative support is provided by Department of the Governmentof India, the Secretary of which is Member of the Search-cum-SelectionCommittee. He cited the judgment of this Court in L. Chandra Kumar(supra) to argue that there should be wholly independent agency forthe administration of all the Tribunals. The learned Amicus Curiae alsobrought to our notice statement made by Mr. Arun Jaitley, the thenMinister of Law and Justice on the floor of the Parliament on 02.08.2001that there was proposal to set up Central Tribunals Division.According to the learned Amicus Curiae, setting up National TribunalsCommission as supervisory body over the Tribunals would go longway in improving the effective functioning of the Tribunals and enhancingthe public image of the Tribunals. The mounting arrears in the Tribunalsis mainly due to the delay in filling up the vacancies of the PresidingOfficers and members of the Tribunals. The learned Amicus Curiaesuggested that there should be National Tribunals Commission mannedby retired Judges of the Supreme Court, Chief Justices of the High Courtsand Members from the Executive which will have full-time Secretaryperforming the following functions:

a) Selection of candidates;

b) Re-appointment of candidates;

c) Conducting of inquiry against Members;

d) Sanction leave of Members wherever necessary;

12 the Franks Report of 1957 was issued by British committee of inquiry chaired bySir Oliver Franks; the committee was set up by the Lord Chancellor, in view of concernsvoiced with regard to the range, and diversity of tribunals, uncertainty regarding theprocedures they followed and lack of cohesion and supervision.

13 Finalized in 2001, the Sir Andrew Leggatt Committee reviewed the existing tribunalsystem in UK in its report ‘Tribunals for Users – One System, One Service ’. TheReport, highlighted concerns in the court system, such as delay, expense, technicalityand formality, lack of expertise etc and recommended, new ‘independent, coherent,professional, cost-effective, user friendly’ and structurally reformed Tribunal system

Ae) Monitor the functioning of the Tribunals, in particular,the_arrears and disposal of cases and filling up of vacanciesand ensuring adequate infrastructure; and

f) Ensure adequate infrastructure and IT support.

14. The learned Attorney General was also of the opinion thatBconstitution of National Tribunals Commission would provide solutionto the existing problems and ensure the smooth functioning of theTribunals.

15. Docket explosion and mounting arrears are serious problemsfaced by the justice system in this country. Initially, creation of TribunalsCwas understood to provide solution to the problems and to ease theburden on the Constitutional Courts. Specialized Tribunals were set upto meet the exigencies of adjudication of disputes in some branches oflaw. constant complaint has been that the Tribunals are not free fromthe Executive control and that they are not perceived to be independentDjudicial bodies. There is an imperative need to ensure that the Tribunalsdischarge the judicial functions without any interference of the Executivewhether directly or indirectly.

16. This Court has been repeatedly urging the Union of India toset up single umbrella organization which would be an independentEbody to supervise the functioning of the Tribunals and ensure that theindependence of the Members of the Tribunals is maintained. For thefirst time, this Court in its judgment in L. Chandra Kumar (supra)persuaded the Government of India to have the Ministry of Law as thenodal Ministry which would appoint an independent supervisory body tooversee the working of the Tribunals. The observations in L. ChandraFKumar are to the following effect:

“96. ...The situation at present is that different Tribunalsconstituted under different enactments are administered bydifferent administrative departments of the Central and theState Governments. The problem is compounded by the factGthat some Tribunals have been created pursuant to CentralLegislations and some others have been created by StateLegislations. However, even in the case of Tribunals createdby Parliamentary legislations, there is no uniformity inadministration. We are of the view that, until whollyindependent agency for the administration of all suchH

Tribunals can be set-up, it is desirable that all such Tribunalsshould be, as far as possible, under single nodal Ministrywhich will be in position to oversee the working of theseTribunals. For number of reasons that Ministry shouldappropriately be the Ministry of Law. It would be open forthe Ministry, in its turn, to appoint an independent supervisorybody to oversee the working of the Tribunals. This will ensurethat if the President or Chairperson of the Tribunal is forsome reason unable to take sufficient interest in the workingof the Tribunal, the entire system will not languish and theultimate consumer of justice will not suffer. The creation of asingle umbrella organisation will, in our view, remove manyof the ills of the present system. If the need arises, there canbe separate umbrella organisations at the Central and theState levels. Such supervisory authority must try to ensurethat the independence of the members of all such Tribunals ismaintained. To that extent, the procedure for the selection ofthe members of the Tribunals, the manner in which funds areallocated for the functioning of the Tribunals and all otherconsequential details will have to be clearly spelt out.”17. In para 70 of Union of India v. Madras Bar Association(2010) (supra), this Court deprecated the practice of administrativesupport from the Departments other than the Ministry of Law and Justice.Dependence on the parent Ministry or departments by the Members ofthe Tribunal for their facilities and administrative needs was found to becontrary to the principle of independence of the judiciary. Later, thelearned Amicus Curiae submitted ‘a concept note’ on the NationalTribunals Commission which was approved by this Court in RojerMathew v. South Indian Bank Limited[14]. This Court was of the opinionthat an autonomous oversight body should be established for recruitmentof members and functioning of the Tribunals. In fact, the Court in RojerMathew (supra) even held that control of the tribunals by the executiveis fraught and undermines their independence:

“168. We are in complete agreement with the analogy elucidatedby the Constitution Bench in the/Fourth Judges Case/(supra)for compulsory need for exclusion of control of the Executive

ABC

Aover quasi-judicial bodies of Tribunals discharging responsibilitiesakin to Courts. The Search-cum-Selection Committees asenvisaged in the Rules are against the constitutional schemeinasmuch as they dilute the involvement of judiciary in the processof appointment of members of tribunals which is in effect anencroachment by the executive on the judiciary.”B

18. The suggestions made by the learned Amicus Curiae regardingthe setting up of All India Tribunal Service on the pattern prevalent in theUnited Kingdom was accepted. This Court was convinced that theperformance and functioning of the Members of the Tribunals must bereviewed by the said independent body in the same way asCsuperintendence by the High Courts under Article 235 of the Constitution.By an order dated 07.05.2018, this Court in fact, recommendedconstitution of wholly independent agency to oversee the working ofthe Tribunals.

19. While considering the vires of validity of the 2017 Rules, thisDCourt in Rojer Mathew (supra) referred to the current problems facedby the Tribunals. Administration of the Tribunals by the sponsoring orparent Ministry or Department concerned and dependence for financial,administrative or other facilities by the Tribunals on the said Departmentwhich is litigant before them are some of the serious problems highlightedEby this Court. There is likelihood of the independence of adjudicationprocess being compromised in situation where the Tribunal is madedependent for its needs on litigant. The need for financial independenceof the Tribunals has been dealt with by this Court in Rojer Mathew(supra). direction was given to the Ministry of Finance to earmarkseparate and dedicated funds for the Tribunals from the ConsolidatedFFund of India so that the Tribunals will not be under the financial controlof the parent Departments. We reiterate the importance of the constitutionof an autonomous oversight body for recruitment and supervision of theperformance of the Tribunals. It is high time that the observations andsuggestions made in this regard by this Court shall be implemented byGthe Union of India. An independent body headed by retired Judge ofthe Supreme Court supervising the appointments and the functioning ofthe Tribunals apart from being in control of any disciplinary proceedingsagainst the Members would not only improve the functioning of theTribunals but would also be in accordance with the principles of judicialindependence. We also notice that in the final directions and conclusionsH

recorded in Roger Mathew (supra)[15], the wisdom or legality of settingup such an independent oversight body was not doubted and it wasnotreferred to larger Bench, since the view in L. Chandra Kumar onthis point was not doubted.

20. In view of the preceding discussion, we direct the Union ofIndia to set up National Tribunals Commission as suggested by thisCourt by its order dated 07.05.2018 at the earliest. Setting up of suchCommission would enhance the image of the Tribunals and instillconfidence in the minds of the litigants. Dependence of the Tribunals forall their requirements on the parent Department will not extricate themfrom the control of the executive. Judicial independence of the Tribunalscan be achieved only when the Tribunals are provided the necessaryinfrastructure and other facilities without having to lean on the shouldersof the executive. This can be achieved by establishment of an independentNational Tribunals Commission as suggested above. To stop thedependence of the Tribunals on their parent Departments for routingtheir requirements and to ensure speedy administrative decision making,as an interregnum measure, we direct that there should be separate“tribunals wing” established in the Ministry of Finance, Government ofIndia to take up, deal with and finalize requirements of all the Tribunalstill the National Tribunals Commission is established.

SEARCH-CUM-SELECTION COMMITTEE:

21. The contention of the learned Amicus Curiae is that thecomposition of the Search-cum-Selection Committees to makerecommendations for appointment as Chairman or Chairperson orPresident and the other members of the Tribunals is contrary to therequirements of judicial dominance as held by the judgments of this Court.Mr. Datar submitted that the Schedule to the 2020 Rules provides forthe Search-cum-Selection Committees for all the 19 Tribunals whichbroadly consist of the Chief Justice of India or Judge of the SupremeCourt nominated by him (who will serve as the Chairperson of the Search-cum-Selection committee), outgoing Chairman or Chairperson or Presidentof the Tribunal in case of appointment of the Chairman or Chairpersonor President of the Tribunal or the sitting Chairman or Chairperson orPresident of the Tribunal in case of appointment of other members ofthe Tribunal and two Secretaries to the Government of India. He stated

15 See para 238 of Rojer Mathew (supra), which refers only the issue relating to MoneyBills to larger bench.

Athat the Search-cum-Selection Committees cannot have the Secretariesof the sponsoring departments as its members, as held by this Court inMadras Bar Association v. Union of India (2014) (supra).

22. During the course of arguments, the learned Attorney Generalsubmitted that the 2020 Rules would be amended providing for castingBvote to the Chairperson of the Search-cum-Selection Committee to allaythe apprehension of the petitioner. In that event, judicial dominance inthe Search-cum-Selection Committee can be maintained as the ChiefJustice of India or his nominee and the Presiding Officer of the Tribunalwho is normally retired Judge of the Supreme Court or retired ChiefJustice of High Court, who represent the judiciary, along with castingCvote to the Chief Justice of India or his nominee, will be in majority in theSearch-cum-Selection Committee. In response to the submission of thelearned Attorney General, Mr. Datar argued that there are someTribunals where the Presiding Officer of the Tribunal is not retiredJudge of the Supreme Court or Chief Justice of the High Court or JudgeDof High Court. According to Mr. Datar, the Selection Committee shouldconsist of the Chief Justice of India or his nominee along with anotherJudge of the Supreme Court and two Secretaries who are not from thesponsoring departments with casting vote to the Chief Justice of Indiaor his nominee.E23. The learned Attorney General for India in his usual fairnesssubmitted that the composition of the Search-cum-Selection Committees,according to the 2020 Rules consist of the Chief Justice of India or hisnominee, the Chairman or Chairperson or President or the outgoingChairman or Chairperson or President of the Tribunal and two Secretariesto the Government of India. He submitted that there has been no instanceFwhere the Secretaries to Government disagreed with the views of theJudge of the Supreme Court. All the decisions of the Search-cum-Selection Committees till now have been unanimous. In any event, hesuggested that in case of dead lock, the Chairperson of the Search-cum-Selection Committee who is Chief Justice of India or his nomineeGshall have casting vote and the 2020 Rules will be amended accordinglyto include the casting vote to the Chairperson of the Search-cum-SelectionCommittee. The learned Attorney General further submitted that in casethe Chairman or Chairperson or President of the Tribunal is himselfseeking re-appointment, the Search-cum-Selection Committee shall haveanother Judge of the Supreme Court as Member. He submitted thatH

the acceptance of the request made by the petitioner that there shouldbe two Judges of the Supreme Court in the Search-cum-SelectionCommittee will lead to practical difficulties. There are 475 members inall the Tribunals put together and there will be frequent retirements andto fill up the said posts, the requirement for the meetings of the Search-cum-Selection Committees will arise on regular basis. It might not bepossible for two Judges of the Supreme Court to spare so much time inview of their already busy schedules. Countering the submission of thelearned Amicus Curiae that Rule 4 of the 2020 Rules is violative of thejudgments of this Court, the learned Attorney General submitted thatthis Court in Union of India v. Madras Bar Association (2010) (supra)accepted that the Secretary of the department concerned can be amember of the Search-cum-Selection Committee. It is to be noted thatthis Court held to the contrary in Madras Bar Association v. Union ofIndia (2014) (supra). He argued that in view of the law laid down bythis Court in Sundeep Kumar Bafna v. State of Maharashtra[16] that incase of conflict between decisions of two Coordinate Benches of thisCourt, the law laid down by the earlier Bench shall prevail. He furtherstated that in later judgment in Madras Bar Association v. Union ofIndia (2015) (supra) this Court approved the Search-cum-SelectionCommittee consisting of the Secretary of the sponsoring department.

24. The issue of constitution of the Search-cum-SelectionCommittees for appointment to the posts of Chairperson and Membersof the Tribunal has been dealt with by this Court earlier. Section 10 FXof the Companies Act, 1956 provided for constitution of Search-cum-Selection Committee consisting of the Chief Justice of India or his nomineeas the Chairperson and four Secretaries to the Government of Indiafrom the Ministry of Finance and Company Affairs, Ministry of Labour,and Ministry of Law and Justice respectively as Members. The validityof Section 10 FX was challenged by the Madras Bar Association asbeing violative of the principles of separation of powers and judicialindependence. This Court in Union of India v. Madras Bar Association(2010) (supra) while dealing with judgment of the Madras High Courtheld that Parts IB and IC of the Companies Act can be made operationalonly after making suitable amendments suggested therein. In respect ofthe Search-cum-Selection Committee, the amendment suggested by thisCourt was that it should consist of the Chief Justice of India or his nominee

ASecretaries of the Government of India from the Ministry of Financeand Company Affairs and the Ministry of Law and Justice. It is relevantto mention that in the said judgment, this Court took note of the fact thatthe Secretary of the sponsoring department is serving as member ofthe Search-cum-Selection Committee. This Court was of the opinionthat the Tribunals will not be considered independent unless reforms thatBwere implemented in the United Kingdom pursuant to the Report of theLeggatt Committee are implemented in the Tribunals in India.Nonetheless, this Court observed that the Secretary, Ministry of Financeand Company Affairs can be member of the Search-cum-SelectionCommittee for appointment of members to NCLT and NCLAT.C25. In the meanwhile, the Madras Bar Association filed anotherWrit Petition challenging the creation of the National Tax Tribunal. Withregard to the constitution of the Search-cum-Selection Committee forthe National Tax Tribunal, this Court in Madras Bar Association v.Union of India (2014) (supra) observed that party to litigation, i.e.Dthe Secretary of the concerned department, cannot be permitted toparticipate in the selection process for appointment to the posts ofChairperson and Members of the Tribunal. This Court was of the opinionthat the said procedure would be contrary to the recognised constitutionalconventions reiteratedby Lord Diplock in Hinds v. R[17], which is asfollows:E

“It would make mockery of the Constitution, if the legislaturecould transfer the jurisdiction previously exercisable byholders of judicial offices to holders of new court/Tribunal(to which some different name was attached) and to providethat persons holding the new judicial offices should not beFappointed in the manner and on the terms prescribed forappointment of members of the judicature”.

26. Provisions made for the NCLT and NCLAT in the CompaniesAct, 2013 were again the subject matter of challenge before this Courtin Madras Bar Association v. Union of India (2015) (supra). SectionG412 of the Companies Act, 2013 deals with the selection of the Membersof the NCLT and NCLAT. The President of the Tribunal, the Chairpersonand Judicial Members of the Appellate Tribunal shall be appointed afterconsultation with the Chief Justice of India. The Search-cum-SelectionCommittee for appointment of the Members of the Tribunal and the

H17 (1976) 1 All ER 353 (PC)

Technical Members of the Appellate Tribunal shall consist of the ChiefJustice of India or his nominee, Senior Judge of the Supreme Court orthe Chief Justice of High Court and the Secretaries of the Ministry ofCorporate Affairs, Ministry of Law and Justice and the Ministry ofFinance. In Madras Bar Association v. Union of India (2015) (supra),this Court expressed its displeasure in the constitution of the Search-cum-Selection Committee which is contrary to the principles laid downin its earlier judgment in Union of India v. Madras Bar Association(2010) (supra). Section 412 (2) of the Companies Act, 2013 was held tobe not valid as it was found to be against the binding precedents of thisCourt in Union of India v. Madras Bar Association (2010) (supra). Adirection was issued to remove the deficiency in the constitution of theSearch-cum-Selection Committee by bringing the same into accord withsub-para (viii) of para 120 of the judgment in Union of India v. MadrasBar Association (supra).27. The 2017 Rules were made in exercise of the powers conferredunder Section 184 of the Finance Act, 2017. Rule 4 provides for methodof recruitment to the post of Chairman or Chairperson or President andthe Members of the Tribunals. Under the 2017 Rules, the Search-cum-Selection Committee consisted of the Chief Justice of India or his nomineeas the Chairperson and the Chairman of the Tribunal along with theSecretaries to Government. While striking down the 2017 Rules, thisCourt in Rojer Mathew (supra) commented that the lack of judicialdominance in the Search-cum-Selection Committee is in directcontravention of the doctrine of separation of powers and is anencroachment on the judicial domain[18 ]This Court further observed thatexcessive interference by the executive in appointment of the memberswould be detrimental to the independence of judiciary and an affront tothe doctrine of separation of powers. The principles laid down in theaforementioned judgments are binding precedents which have to be

18 It was held that

“163. We are in agreement with the contentions of the Learned Counsel for thepetitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committeeis in direct contravention of the doctrine of separation of powers and is an encroach-ment on the judicial domain. The doctrine of separation of powers has been wellrecognised and re-interpreted by this Court as an important facet of the basic structureof the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala, and severalother later decisions. The exclusion of the Judiciary from the control and influence of theExecutive is not limited to traditional Courts alone, but also includes Tribunals sincethey are formed as an alternative to Courts and perform judicial functions.”

Aimplemented by the Respondent. However, the 2020 Rules which are inchallenge in the Writ Petitions replicate the 2017 Rules in respect of theconstitution of the Search-cum-Selection Committees, insofar as theydo not ensure judicial dominance. We appreciate the stand taken by thelearned Attorney General that casting vote will be given to the ChiefJustice of India or his nominee as the Chairperson of the Search-cum-BSelection Committee. We also accept the submission of the learnedAttorney General that normally the Chairperson of the Tribunal wouldbe retired Judge of the Supreme Court or the Chief Justice of HighCourt. As such, two members of the judiciary with casting vote to theChairperson of the Search-cum-Selection Committee should ensureCjudicial dominance over the selection process and take care of thegrievances of the Writ Petitioner. Mr. Datar submitted that there arecertain Tribunals in which the Chairperson may not be judicial member.In such Tribunals, we are of the opinion that the Search-cum-SelectionCommittee should have retired Judge of the Supreme Court or retired

Chief Justice of High Court nominated by the Chief Justice of India inDplace of the Chairperson of the Tribunal.

28. The learned Attorney General stated that the 2020 Rules wouldbe amended to reflect that whenever the re-appointment of the Chairmanor Chairperson or President of Tribunal is considered by the Search-cum-Selection Committee, the Chairman or Chairperson or President ofEthe Tribunal shall be replaced by retired Judge of the Supreme Courtor retired Chief Justice of High Court nominated by the Chief Justiceof India. We approve this submission of the Attorney General.

29. It has been repeatedly held by this Court that the Secretariesof the sponsoring departments should not be members of the Search-Fcum-Selection Committee. We are not in agreement with the submissionof the learned Attorney General that the Secretary of the sponsoringdepartment being member of the Search-cum-Selection Committeewas approved by this Court in Union of India v. Madras BarAssociation (2010) (supra) and it would prevail over the later judgmentGin Madras Bar Association v. Union of India (2014) (supra). Wehave already referred to the findings recorded in paragraph 70 of thejudgment in Union of India v. Madras Bar Association (2010) (supra)that the sponsoring department should not have any role to play in thematter of appointment to the posts of Chairperson and members of theTribunals. Though the ultimate direction of the Court was to constitute aH

Search-cum-Selection Committee for appointment of members to NCLTand NCLAT of which Secretary, Ministry of Finance and Company Affairsis member, the ratio of the judgment is categorical, which is to theeffect that Secretaries of the sponsoring departments cannot be membersof the Search-cum-Selection Committee. We, therefore, see no conflictof opinion in the two judgments as argued by the learned Attorney General.However, we find merit in the submission of the learned Attorney Generalthat the presence of the Secretary of the sponsoring or parent departmentin the Search-cum-Selection Committee will be beneficial to the selectionprocess. But, for reasons stated above, it is settled that the Secretary ofthe parent or sponsoring Department cannot have say in the processof selection and service conditions of the members of Tribunals. Ergo,the Secretary to the sponsoring or parent Department shall serve as theMember-Secretary/Convener to the Search-cum-Selection Committeeand shall function in the Search-cum-Selection Committee without avote.

30. The Government of India is duty bound to implement thedirections issued in the earlier judgments and constitute the Search-cum-Selection Committees in which the Chief Justice of India or his nomineeshall be the Chairperson along with the Chairperson of the Tribunal if heis retired Judge of the Supreme Court or retired Chief Justice of aHigh Court and two Secretaries to the Government of India. In case theTribunal is headed by Chairperson who is not judicial member, theSearch-cum-Selection Committee shall consist of the Chief Justice ofIndia or his nominee as Chairperson and retired Judge of the SupremeCourt or retired Chief Justice of High Court to be nominated by theChief Justice of India and Secretary to the Government of India fromthe Ministry of Law and Justice and Secretary of department otherthan the parent or sponsoring department to be nominated by the CabinetSecretary. As stated above, the Secretary of the parent or sponsoringdepartment shall serve as the Member-Secretary or Convener, withouta vote.

31. Rule 4 (2) of the Rules postulates that panel of two or threepersons shall be recommended by the Search-cum-Selection Committeefrom which the appointments to the posts of Chairperson or members ofthe Tribunal shall be made by the Central Government. The learnedAmicus Curiae voiced serious objections to Rule 4(2) on the ground thatit would be compromising judicial independence. According to Mr. Datar,

Athe procedure for appointment to the Tribunals should be completelyoutside executive control. The learned Attorney General stated that apanel of names consisting two or three persons is essential becausetheir antecedents have to be examined by the Intelligence Bureau beforeappointing them to Tribunal. He suggested that the number of personsto be recommended can be two instead of three to limit the discretion ofBthe Appointments Committee of the Cabinet. The recommendations forappointments by the Search-cum-Selection Committee should be finaland the executive should not be permitted to exercise their discretion inthe matter of appointments to the Tribunals. Accordingly, we direct thatRule 4(2) of the 2020 Rules shall be amended and till so amended, that itCbe read as empowering the Search-cum-Selection Committee torecommend the name of only one person for each post. However, takingnote of the submissions made by the learned Attorney General regardingthe requirement of the reports of the selected candidates from theIntelligence Bureau, another suitable person can be selected by theSearch-cum-Selection Committee and placed in the waiting list. In case,Dthe report of the Intelligence Bureau regarding the selected candidate isnot satisfactory, then the candidate in the waiting list can be appointed.

TERM OF OFFICE

32. Mr. Datar argued that the term of office of the ChairpersonEand the members of the Tribunal should be for minimum period of fiveyears by relying upon the judgments of this Court in S. P. SampathKumar (supra), Union of India v. Madras Bar Association (2010)(supra) and Rojer Mathew (supra). He referred to Section 184 of theFinance Act, 2017 which stipulated the term of office shall be for aperiod not exceeding five years. He submitted that in spite of this CourtFholding that the tenure should be between five to seven years, the 2020Rules have provided for only four years as the maximum term. Accordingto him, term of minimum five years for the members of the Tribunalswith right of re-appointment is mandatory. Citing Rule 9(2) of the 2020Rules which stipulates that the term of office shall be four years or till aGperson attains the age of 65 years whichever is earlier, the learned AmicusCuriae argued that Judge of High Court will not get more than threeyears as member of the Tribunal after his retirement at the age of 62years even if he is appointed immediately after his superannuation. Hementioned that in 18 out of the 19 Tribunals governed by the 2020 Rules,retired Judges of High Courts can be appointed either as Vice ChairpersonH

or as the member. In view of the delay in making appointments, most ofsuch retired Judges of High Courts will normally have very short tenureof not more than two years. Therefore, Mr. Datar submitted that Rule 9(2) requires to be struck down as being arbitrary.

33. According to the learned Attorney General, as the term offour years is subject to re-appointment, it would not make much of adifference if the term fixed is four years instead of five years. Hementioned that due to the provision for re-appointment, eligible lawyerswho shall be appointed at the age of 45 years will have the advantage offour or five extensions or till the said member reaches the age of 65years.

34. This Court directed the extension of the tenure of the membersof the Tribunal from three years to seven or five years subject to theireligibility in the case of Union of India v. Madras Bar Association(2010) (supra). This Court was of the opinion that the term of threeyears is very short and by the time the members achieve the requiredknowledge, expertise and efficiency, the term would be over. In the saidjudgment it was further observed that the Tribunals would functioneffectively and efficiently only when they are able to attract youngermembers who have reasonable period of service. In spite of the aboveprecedent, tenure of three years was fixed for the members of Tribunalsin the 2017 Rules. While setting aside the 2017 Rules, this Court in RojerMathew (supra) held that short period of service of three years is anti-merit as it would have the effect of discouraging meritorious candidatesto accept the posts of judicial members in the Tribunals. In addition, thisCourt was also convinced that the short tenure of members increasesinterference by the executive jeopardizing the independence of judiciary.

35. The 2020 Rules are not in compliance with the principles oflaw laid down in Union of India v. Madras Bar Association (2010)(supra) and Rojer Mathew (supra) in respect of the tenure of themembers of the Tribunals in spite of this Court repeatedly holding thatshort tenure of members is detrimental to the efficiency and independenceof the Tribunals. Rule 9(1) of the 2020 Rules provide for term of fouryears or till Chairman or Chairperson or President attains the age of70 years whichever is earlier. No rationaleexcept that four years is morethan three years prescribed in the 2017 Rules (described as too short, inRoger Mathew (supra)) was put forward on behalf of the Union ofIndia. In so far as the posts of Vice Chairman or Vice-Chairperson or

AVice-President and members are concerned, Rule 9(2) fixes the tenureas four years or till they attain the age of 65 years whichever is earlier.In view of the law laid down in the earlier judgments, we direct themodification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules asfive years in respect of Chairman or Chairperson, Vice Chairman orVice-Chairperson and the members. Rule 9(1) permits Chairman,BChairperson or President of the Tribunal to continue till 70 years whichis in conformity with Parliamentary mandate in Section 184 of the FinanceAct. However, Rule 9(2) provides that Vice Chairman and other membersshall hold office till they attain 65 years. We are in agreement with thesubmission made by the learned Amicus Curiae that under the 2020CRules, the Vice Chairman, Vice-Chairperson or Vice-President ormembers in almost all the Tribunals will have only short tenure of lessthan three years if the maximum age is 65 years. We, therefore, directthe Government to amend Rule 9 (1) of the 2020 Rules by making theterm of Chairman, Chairperson or President as five years or till theyattain 70 years, whichever is earlier and other members dealt with inDRule 9(2) as five years or till they attain 67 years, whichever is earlier.

36. Section 184 of the Finance Act, 2017 provides for reappointmentof Chairpersons, Vice-Chairpersons and members of the Tribunals oncompletion of their tenure. There is no mention of reappointment in the2020 Rules. However, the learned Attorney General submitted that theEmembers shall be entitled to seek reappointment. Reappointment for atleast one term shall be provided to the persons who are appointed to theTribunals at young age by giving preference to the service rendered bythem.

HOUSE RENT ALLOWANCEF

37. According to Rule 15 of the 2020 Rules, the Chairperson andthe other members of the Tribunals shall be entitled to house rentallowance at the same rate admissible to officers of the Government ofIndia holding grade ‘A’ posts carrying the same pay. The contention ofthe learned Amicus Curiae is that it is well-known fact that it is difficultGto get Judges of High Courts of merit and ability as members of Tribunals,particularly due to the absence of provision for housing. Lack of housingfacilities becomes deterrent for retired Judges from States outsideDelhi to accept appointments to the Tribunals. It will not be possible fora retired Judge of the Supreme Court or the Chief Justice of HighHCourt or Judge of High Court to get suitable accommodation in

Delhi, where most of the Tribunals are situated, for Rs. 75,000/- permonth which is paid as house rent allowance. Similarly, where tribunalshave benches, members (especially those drawn from amongstAdvocates) would find it hard put to find accommodation if there isinsufficient incentive, whenever they have to move to different cities.The learned Attorney General relied upon the observations made by thisCourt in Rojer Mathew (supra) that the retired Judges of the High Courtcannot be equated with the sitting Judges of the High Court and are notentitled to the same perquisites. It is also the submission of the learnedAttorney General that it is not possible to provide housing to all thePresiding Officers and members of the Tribunals in view of the acuteshortage of housing in Delhi.

38. Experience has shown that lack of housing in Delhi has beenone of the reasons for retired Judges of the High Courts and the SupremeCourt to not accept appointments to Tribunals. At the same time, scarcityof housing is also factor which needs to be kept in mind. The only wayto find solution to this problem is to direct the Government of India tomake serious efforts to provide suitable housing to the Chairperson andthe members of the Tribunals and in case providing housing is not possible,to enhance the house rent allowance to Rs.1,25,000/- for members ofTribunals and Rs.1,50,000/- for the Chairman or Chairperson or Presidentand Vice Chairman or Vice Chairperson or Vice President of Tribunals.In other words, an option should be given to the Chairperson and themembers of the Tribunals to either apply for housing accommodation tobe provided by the Government of India as per the existing rules or toaccept the enhanced house rent allowance. This direction shall beeffective from 01.01.2021.

ADVOCATES AS JUDICIAL MEMBERS

39. The learned Amicus Curiae complained of the deliberateexclusion of the Advocates from being considered for appointment asjudicial members in majority of Tribunals by the 2020 Rules. It wasargued that in respect of seven tribunals (such as Central AdministrativeTribunal, Income Tax Appellate Tribunal, Customs Excise and Sales TaxAppellate Tribunal, etc.), the 2020 Rules impose new condition wherebyAdvocates without 25 years of experience are ineligible. It is submittedthat there is nothing in the provisions of the Finance Act, 2017, withrespect to exclusion, from consideration, of Advocates, nor any restrictivecondition and, on the other hand, the parent enactments and previously

Aexisting rules enabled Advocates (who were eligible to be appointed asJudges of High Courts) to be considered for appointment for thesetribunals. The learned Amicus curiae argued that it would be very difficultfor competent and successful Advocates, in the concerned field, to uprootthemselves and accept membership of tribunals, if they are to be eligibleat the late age of 50 years and resultantly, those less competent wouldBbe willing, contrary to public interest. The Attorney General had submittedthat exclusion of Advocates was matter of policy and that the eligibilitycondition wherever they could be considered, in some tribunals of 25years practice, was to bring about parity with members of the IndianLegal Service, who could, in some instances be considered for appointmentCas judicial members. During the submissions, the Attorney General hadfairly stated that the 2020 Rules will be amended making Advocateseligible for appointment in the tribunals where they are presently excludedunder the 2020 Rules as judicial members provided, they have 25 yearsof experience. This is in line with the previous rulings of this Court thatadvocates and retired judges are to be considered as judicial membersDof tribunals. Furthermore, this Court notices that the 2017 Rules did notexclude Advocates from consideration; nor did they impose restrictiveeligibility conditions, such as 25 years of experience.

40. The learned Amicus Curiae submitted that stipulation of 25years of experience would be serious handicap in selecting meritoriousEcandidates from among advocates. He suggested that Advocates withthe standing of 15 years at the bar should be made eligible for beingconsidered for appointment as judicial members to the Tribunals. Thelearned Amicus Curiae further submitted that Advocates should be madeeligible for appointment to Single Member Tribunals, particularly to theFDebt Recovery Tribunals as their experience in law can be suitablyutilized. It is the submission of learned Attorney General that though theConstitution prescribes that an Advocate having experience of 10 yearscan be considered for appointment as Judge of High Court, normallyan Advocate is considered only after he attains the age of 45 years. He

suggested that an experience of 25 years at the Bar would makeGAdvocates at the age of 47-48 years eligible for appointment as judicialmembers of the Tribunals. It would be attractive for the Advocates toapply for appointment to the post of judicial members of the Tribunalsafter having experience of 25 years, especially due to the provision forre-appointment.H

41. In view of the submission of the learned Attorney Generalthat the 2020 the Rules will be amended to make Advocates eligible forappointment to the post of judicial members of the Tribunals, the onlyquestion that remains is regarding their experience at the bar. While theAttorney General suggested that an advocate who has 25 years ofexperience should be considered for appointment as Judicial member,the learned Amicus Curiae suggested that it should be 15 years. AnAdvocate of High Court with experience of ten years is qualified forappointment as Judge of the High Court as per Article 217 (2) of theConstitution of India. As the qualification for an advocate of HighCourt for appointment as Judge of High Court is only 10 years, weare of the opinion that the experience at the bar should be on the samelines for being considered for appointment as judicial member of aTribunal. Exclusion of Advocates in 10 out of 19 tribunals, forconsideration as judicial members, is therefore, contrary to Union ofIndia v. Madras Bar Association (2010)[19] and Madras BarAssociation v. Union of India (2015)[20]. However, it is left open to theSearch-cum-Selection Committee to take into account in the experienceof the Advocates at the bar and the specialization of the Advocates inthe relevant branch of law while considering them for appointment asjudicial members.

ELIGIBILITY OF MEMBERS OF INDIAN LEGALSERVICE

42. The grievance of the learned Amicus Curiae is that membersof the Indian Legal Service have been made eligible for appointment asjudicial members to some Tribunals in spite of the judgment of this Courtin Union of India v. Madras Bar Association (2010) (supra), whereinit was held that they can only be appointed as technical members. Thecontention of the Union of India is that there is conflict of opinion inUnion of India v. Madras Bar Association (2010) (supra) and thejudgment of this Court in S.P. Sampath Kumar(supra). It was arguedthat this Court in S.P. Sampath Kumar (supra) upheld the appointmentof the members of the Indian Legal Service as judicial members whereasin Union of India v. Madras Bar Association (2010) (supra), it washeld that the members of the Indian Legal Services can only be appointedas technical members of Tribunals. It was argued by the learned Attorney

19 Para 120 (i) @ page 65, 2010 (11) SCC 1 @ page 65

20 Para 27, page 608 (2015 (8) SCC 583)

ABCD

EFG

AGeneral that the judgment of this Court in S.P. Sampath Kumar (supra)shall prevail over later judgment as both the judgments are deliveredby Constitution Benches of five Judges. Further submission made by thelearned Attorney General is that members of Indian Legal Service arepracticing lawyers who have experience of 7 years to 13 years dependingupon the grade in which they were recruited. He also referred to theBdifferent cadres in the Indian Legal Service which are directly related tolaw such as Advocates-on-Record or instructing counsel working in theCentral Agency Section in this Court or holding the post of Director ofProsecution in the Central Bureau of Investigation or legal advisors inthe Ministry of Law and Justice. The learned Attorney General furtherCsubmitted that the experience of the members of Indian Legal Service invarious branches of law would stand in good stead for their appointmentas judicial members. The learned Amicus Curiae does not have anobjection to members of Indian Legal Service who are practicing inCourts as Government Advocates to be considered for appointment asjudicial members in Tribunals. But he suggested that this can be doneDonly by legislative amendment in light of the law laid down in Union ofIndia v. Madras Bar Association (2010) (supra). He also submittedthat specialization being mandatory requirement for Advocates shouldbe the same for members of the Indian Legal Service.

43. As we have already held that Advocates are entitled to beEconsidered as judicial members of the Tribunals, we see no harm inmembers of the Indian Legal Service being considered as judicialmembers, provided they satisfy the criteria relating to the standing at thebar and specialization required. The judgment of Union of India v.Madras Bar Association (2010) (supra) did not take note of the aboveFpoints relating to the experience of members of Indian Legal Service atthe bar. The Indian Legal Service was considered along with the othercivil services for the purpose of holding that the members of IndianLegal 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 ServiceGshall be entitled to be considered for appointment as judicial membersubject to their fulfilling the other criteria which advocates are subjectedto. In addition, the nature of work done by the members of the IndianLegal Service and their specialization in the relevant branches of lawshall be considered by the Search-cum-Selection Committee whileHevaluating their candidature.

44. We would wish to emphasize here that the setting up of tribunals,and the subject matters they are expected to deal with, having regard tothe challenges faced by growing modern economy, are matters ofexecutive policy. When it comes to personnel who would operate thesetribunals (given that the issues they decide would ultimately reach thisCourt, in appellate review or in some cases, judicial review), competence,especially in matters of law as well as procedure to be adopted by suchjudicialbodies, becomes matters of concern for this Court. These tribunalsdischarge judicial role, and with respect to matters entrusted to them,the jurisdiction of civil courts is usually barred. Therefore, whereverlegal expertise in the particular domain is implicated, it would be naturalthat advocates with experience in the same, or ancillary field wouldprovide the “catchment” for consideration for membership. This is alsothe case with selection of technical members, who would have expertisein the scientific or technical, or wherever required, policy background.These tribunals are expected to be independent, vibrant and efficient intheir functioning. Appointment of competent lawyers and technicalmembers is in furtherance of judicial independence. Younger advocateswho arearound 45 years old bring in fresh perspectives. Many statesinduct 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 thatthose practitioners with certain vitality, energy and enthusiasm areinducted. 25 years of practice even with five-year degree holder, wouldmean that the minimum age of induction would be 48 years: it may bemore, given the time taken to process recommendations. Therefore, atenure without assured re-engagements would not be feasible. youngerlawyer, who may not be suitable to continueafter one tenure (or isreluctant to continue), can still return, to the bar, than an older one, whomay not be able to piece her life together again.

REMOVAL OF MEMBERS

45. Rule 8 of the 2020 Rules provides the procedure for inquiry ofmisbehavior or incapacity of member. According to the said Rule, thepreliminary scrutiny of the complaint is done by the Central Government.If the Central Government finds that there are reasonable grounds forconducting an inquiry into the allegations made against member in thecomplaint, it shall make reference to the Search-cum-SelectionCommittee which shall conduct an inquiry and submit the report to the

ACentral Government. The learned Amicus Curiae argued that there isno 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 Governmentto further scrutinize the report of the Search-cum-Selection Committeewhich comprises of sitting and retired Judges. He submitted that theBproper procedure to be followed in matters of complaints against thePresiding Officers and members of the Tribunals is that preliminaryscrutiny may be made by the Central Government and the report shouldbe placed before the Search-cum-Selection Committee. It is open to theSearch-cum-Selection Committee to accept or reject the preliminaryCscrutiny. In case the Search-cum-Selection Committee is of the opinionthat the findings of the preliminary scrutiny are correct, then the Search-cum-Selection Committee should be entitled to proceed further to conductan inquiry on its own, if it so choses. The findings of the Search-cum-Selection Committee shall be final and the action recommended by theSearch-cum-Selection Committee shall be implemented by the CentralDGovernment.

46. The learned Attorney General submitted that the preliminaryscrutiny done by the Central Government, according to Rule 8 (1) is onlyfor the purpose of weeding out frivolous complaints. The learned AttorneyGeneral has also fairly submitted that the recommendations made by theESearch-cum-Selection Committee shall be implemented by the CentralGovernment. We are in agreement with the submissions of the learnedAttorney General.

TIME LIMIT FOR APPOINTMENT

F47. The learned Amicus Curiae brought to our notice that thereare several instances where appointments are delayed even after theselections are completed by the Search-cum-Selection Committee. Thelearned Attorney General also agreed that there is an imminent need forappointments to be made in an expeditious manner, but implored that notime be fixed for making appointments. The very reason for constitutingGTribunals is to supplement the functions of the High Courts and the otherCourts and to ensure that the consumer of justice gets speedy redressalto his grievances. This would be defeated if the Tribunals do not functioneffectively. It has been brought to our notice that there are large numberof unfilled vacancies hampering the progress of the functioning of theHTribunals. The pendency of cases in the Tribunals is increasing mainly

due to the lack of personnel in the Tribunals which is due to the delay infilling up the vacancies as and when they arise due to the retirement ofthe members. There is imminent need for expediting the process ofselections and appointments to ensure speedy justice. We, therefore,direct that the Government of India shall make the appointments to theTribunals within three months after the Search-cum-Selection Committeecompletes the selection and makes its recommendations.

RETROSPECTIVITY OF THE 2020 RULES

48. The learned Amicus Curiae submitted that the 2020 Ruleshave been made in exercise of the powers conferred by Section 184 ofthe Finance Act, 2017. Rule 1(2) provides that Rules shall come intoforce on the date of their publication in the Official Gazette. Accordingto the learned Amicus Curiae, the Rules have come into force on12.02.2020, the date on which they were notified. He stated that it is awell settled principle that delegated legislations such as Rules,notifications and circulars cannot have retrospective effect unless theparent statute itself permits such retrospective effect. He stated thatSection 183 of the Finance Act, 2017 enabled the notification of Rulesmade under Section 184 to take effect from the appointed day. UnderSection 157 (a) of the Finance Act, 2017, the appointed day means suchdate as the Central Government by notification in the Official Gazetteappoint. The date on which Rules were notified is 12.02.2020. Thelearned Amicus Curiae relied upon the judgment of this Court in SriVijayalakshmi Rice Mills v. State of A.P.[21] to argue that the Rulescannot be given retrospective effect. He stated that the 2017 Ruleshave become non est after being struck down in Rojer Mathew (supra)and the 2020 Rules cannot be treated as an amendment or modificationof the 2017 Rules. He stressed on the point that giving retrospectiveeffect to 2020 Rules would result in inequitable consequences and serioushardship. For instance, some Vice Chairpersons, Vice Presidents andVice Chairmen were appointed for period of three years with an upperage limit of 67 years under the 2017 Rules. However, under the 2020Rules their appointment period is four years with the upper age limit of65 years. The term of office of persons who are appointed under the2017 Rules would be altered if the 2020 Rules are given retrospectiveeffect. The learned Amicus Curiae was supported by other SeniorCounsel who vehemently argued that the 2020 Rules are only prospective.

A49. The Attorney General argued that Section 183 of the FinanceAct, 2017 provided that the Rules made under Section 184 shall haveeffect from the appointed day which was 26.05.2017. As per Section183, all persons appointed prior to 26.05.2017 would be governed by theold Acts and Rules under which the Tribunals were established and thosewho are appointed after 26.05.2017 would be governed by the 2017BRules. The Attorney General further argued that though the 2017 Ruleswere struck down by this Court in Rojer Mathew (supra), an opportunitywas given to the Government of India to frame new Rules and placethem before this Court. As the new Rules have been framed in exerciseof powers under the Finance Act, 2017, the 2020 Rules would beCeffective 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 directionthat 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 FinanceAct.D50. Before expressing our view on this point, it would be necessaryto refer to certain interim orders that were passed by this Court in RojerMathew (supra). By an order dated 09.02.2018, this Court gave certaininterim directions regarding constitution of the Search-cum-SelectionCommittee and other issues in relation to appointments to the post ofEmembers of the Central Administrative Tribunal. The direction with whichwe are concerned at present pertains to appointments that were directedto be made pursuant to the recommendations of the interim Search-cum-Selection Committee which shall abide by the conditions of servicestipulated in the old Acts and Rules. By an order dated 20.03.2018, theForder passed on 09.02.2018 was clarified by this Court and the tenure ofthe Chairperson and the members was directed to be for period of fiveyears. There is another order passed on 21.08.2018 by this Court in WritPetition (C) No. 279 of 2017 by which it was clarified that appointmentsmade to the post of members of the Customs Excise Sales Tax AppellateTribunal shall be for period of five years or till the member attains theGage of 62 years. This Court clarified that the President shall continue tillhe attains the age of 65 years. In respect of the Central AdministrativeTribunal, the old Rules were directed to be applied.

51. The 2017 Rules have been declared as being contrary to theparent enactment and the principles envisaged in the Constitution andH

hence struck down by this Court in Rojer Mathew (supra). The CentralGovernment was directed to reformulate the Rules in conformity and inaccordance with the principles delineated by this Court in its earlierjudgment and the observations made in Rojer Mathew (supra). The2020 Rules are made in exercise of the power conferred under Section184 of the Finance Act which came into force on their publication in theofficial Gazette as per Rule 1(2). The date of publication of the 2020Rules is 12.02.2020. We are unable to accept the submission of learnedAttorney General that the 2020 Rules which replaced the 2017 Rulesshall come into force with effect from 26.05.2017 which was the appointedday in accordance with the 2017 Rules. It is true that the 2017 Ruleswere brought into force from 26.05.2017 and Section 183 of the FinanceAct provides for any appointment made after the appointed day shall bein accordance with the Rules made under Section 184 of the FinanceAct, 2017. 2017 Rules which have come into force with effect from26.05.2017 in accordance with Section 183 have been struck down bythis Court. The 2020 Rules which came into force from the date of theirpublication in the Official Gazette, i.e. 12.02.2020, cannot be givenretrospective effect. The intention of Government of India to make the2020 Rules prospective is very clear from the notification dated12.02.2020. In any event, subordinate legislation cannot be givenretrospective effect unless the parent statute specifically provides forthe same.[22]

52. As we have held that the 2020 Rules are not retrospective,the point that remains to be determined is the applicable Rules forappointments that were made prior to the 2020 Rules. The appointmentsmade during the pendency of Rojer Mathew (supra) on the date ofinterim orders passed therein and appointments made after the judgmentof Rojer Mathew(supra), like the appointments made prior to the 2017Rules are, no doubt, to be governed by the then existing parent Acts andRules. In view of the interim orders passed by this Court in Rojer Mathew(supra), appointments made during the pendency of the case in this Courtare also to be governed by the parent Acts and Rules and the clarificationsissued by this Court in Rojer Mathew (supra). According to paragraph224 of the judgment in Rojer Mathew (supra), the appointments to theTribunals were directed to be in terms of the respective Acts and Ruleswhich governed appointments to Tribunals prior to the enactment of the

22 ITO v. M.C. Ponnoose, (1969) 2 SCC 351; Sri Vijayalakshmi Rice Mills v. State ofA.P., (1976) 3 SCC 37.

AFinance Act, 2017. For the purpose of clarity, we hold that allappointments made prior to the 2020 Rules which came into force on12.02.2020 shall be governed by the parent Acts and Rules. Anyappointment made after the 2020 Rules have come into force shall be inaccordance with the 2020 Rules subject to the modifications directed inthe preceding paragraphs of this judgment.B53. The upshot of the above discussion leads this court to issuethe following directions:

(i) The Union of India shall constitute National TribunalsCommission which shall act as an independent body to supervise theappointments and functioning of Tribunals, as well as to conductCdisciplinary proceedings against members of Tribunals and to take careof administrative and infrastructural needs of the Tribunals, in anappropriate manner. Till the National Tribunals Commission is constituted,a separate wing in the Ministry of Finance, Government of India shall beestablished to cater to the requirements of the Tribunals.D(ii) Instead of the four-member Search-cum-Selection Committees

(ii) Instead of the four-member Search-cum-Selection Committeesprovided for in Column (4) of the Schedule to the 2020 Rules with theChief Justice of India or his nominee, outgoing or sitting Chairman orChairperson or President of the Tribunal and two Secretaries to theGovernment of India, the Search-cum-Selection Committees shouldcomprise of the following members:E(a) The Chief Justice of India or his nominee—Chairperson (witha casting vote).

(b) The outgoing Chairman or Chairperson or President of theTribunal in case of appointment of the Chairman or Chairperson orPresident of the Tribunal (or) the sitting Chairman or Chairperson orFPresident of the Tribunal in case of appointment of other members ofthe Tribunal (or) retired Judge of the Supreme Court of India or aretired Chief Justice of High Court in case the Chairman or Chairpersonor President of the Tribunal is not Judicial member or if the Chairmanor Chairperson or President of the Tribunal is seeking re-appointment—Gmember;

(c) Secretary to the Ministry of Law and Justice, Government ofIndia—member;

(d) Secretary to the Government of India from department otherthan the parent or sponsoring department, nominated by the CabinetHSecretary-—member;

(e) Secretary to the sponsoring or parent Ministry or Department—Member Secretary/Convener (without vote).

Till amendments are carried out, the 2020 Rules shall be read inthe manner indicated.

(iii) Rule 4(2) of the 2020 Rules shall be amended to provide thatthe Search-cum-Selection Committee shall recommend the name of oneperson for appointment to each post instead of panel of two or threepersons for appointment to each post. Another name may berecommended to be included in the waiting list.

(iv) The Chairpersons, Vice-Chairpersons and the members ofthe Tribunal shall hold office for term of five years and shall be eligiblefor reappointment. Rule 9(2) of the 2020 Rules shall be amended toprovide that the Vice-Chairman, Vice-Chairperson and Vice Presidentand other members shall hold office till they attain the age of sixty-sevenyears.

(v) The Union of India shall make serious efforts to provide suitablehousing to the Chairman or Chairperson or President and other membersof the Tribunals. If providing housing is not possible, the Union of Indiashall 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/- permonth for other members of the Tribunals. This direction shall be effectivefrom 01.01.2021.

(vi) The 2020 Rules shall be amended to make advocates with anexperience of at least 10 years eligible for appointment as judicial membersin the Tribunals. While considering advocates for appointment as judicialmembers in the Tribunals, the Search-cum-Selection Committee shalltake into account the experience of the Advocate at the bar and theirspecialization in the relevant branches of law. They shall be entitled forreappointment for at least one term by giving preference to the servicerendered by them for the Tribunals.

(vii) The members of the Indian Legal Service shall be eligible forappointment as judicial members in the Tribunals, provided that theyfulfil the criteria applicable to advocates subject to suitability to beassessed by the Search-cum-Selection Committee on the basis of theirexperience and knowledge in the specialized branch of law.

A(viii) Rule 8 of the 2020 Rules shall be amended to reflect that therecommendations of the Search-cum-Selection Committee in mattersof disciplinary actions shall be final and the recommendations of theSearch-cum-Selection Committee shall be implemented by the CentralGovernment.B(ix) The Union of India shall make appointments to Tribunals withinthree months from the date on which the Search-cum-SelectionCommittee completes the selection process and makes itsrecommendations.

(x) The 2020 Rules shall have prospective effect and will beCapplicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.

(xi) Appointments made prior to the 2017 Rules are governed bythe 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 MathewD(supra) were also governed by the parent Acts and Rules. Anyappointments 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 tothe modifications directed in the preceding paragraphs of this judgment.

(xii) Appointments made under the 2020 Rules till the date of thisEjudgment, shall not be considered invalid, insofar as they conformed tothe recommendations of the Search-cum-Selection Committees in termsof the 2020 Rules. Such appointments are upheld, and shall not be calledinto question on the ground that the Search-cum-Selection Committeeswhich recommended the appointment of Chairman, Chairperson,President or other members were in terms of the 2020 Rules, as theyFstood before the modifications directed in this judgment. They are, inother words, saved.

(xiii) In case the Search-cum-Selection Committees have maderecommendations after conducting selections in accordance with the2020 Rules, appointments shall be made within three months from todayGand shall not be subject matter of challenge on the ground that they arenot in accord with this judgment.

(xiv) The terms and conditions relating to salary, benefits,allowances, house rent allowance etc. shall be in accordance with theterms indicated in, and directed by this judgment.H

(xv) The Chairpersons, Vice Chairpersons and members of theTribunals appointed prior to 12.02.2020 shall be governed by the parentstatutes and Rules as per which they were appointed. The 2020 Rulesshall be applicable with the modifications directed in the precedingparagraphs to those who were appointed after 12.02.2020. While reservingthe matter for judgment on 09.10.2020, we extended the term of theChairpersons, Vice-Chairpersons and members of the Tribunals till31.12.2020. In view of the final judgment on the 2020 Rules, theretirements of the Chairpersons, Vice-Chairpersons and the membersof the Tribunals shall be in accordance with the applicable Rules asmentioned above.

54. We will be failing in our duty unless we acknowledge theinvaluable 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 seniorcounsel and advocates.

55. For the aforementioned reasons, the Writ Petitions, TransferPetitions, Civil Appeals and all the Applications are disposed of.

Epilogue

Dispensation of justice by the Tribunals can be effective only whenthey function independent of any executive control: this renders themcredible and generates public confidence. We have noticed disturbingtrend of the Government not implementing the directions issued by thisCourt. To ensure that the Tribunals should not function as anotherdepartment under the control of the executive, repeated directions havebeen issued which have gone unheeded forcing the Petitioner to approachthis Court time and again. It is high time that we put an end to thispractice. Rules are framed which are completely contrary to the directionsissued by this Court. Upon the tribunals has devolved the task of markingboundaries of what is legally permissible and feasible (as opposed towhat is not lawful and is indefensible) conduct, in normative senseguiding future behavior of those subject to the jurisdictions of suchtribunals. This task is rendered even more crucial, given that appealsagainst their decisions lie directly to the Supreme Court and public lawintervention on the merits of such decisions is all but excluded. Also,these tribunals are expected to be consistent, and therefore, adhere totheir precedents, inasmuch as they oversee regulatory behavior in several

Akey areas of the economy. Therefore, it is crucial that these tribunalsare run by robust mix of experts, i.e. those with experience in policy inthe relevant field, and those with judicial or legal experience andcompetence in such fields. The functioning or non-functioning of anyofthese tribunals due to lack of competence or understanding has directadverse impact on those who expect effective and swift justice fromBthem. The resultant fallout is invariably an increased docket load,especially by recourse to Article 226 of the Constitution of India. Theseaspects are highlighted once again to stress that these tribunals do notfunction in isolation, but are part of the larger scheme of justicedispensation envisioned by the Constitution and have to functionCindependently, and effectively, to live up to their mandate. The involvementof this Court, in the series of decisions, rendered by no less than sixConstitution Benches, underscores the importance of this aspect. Therole of both the courts as upholders of judicial independence, and theexecutive as the policy making and implementing limb of governance, isto be concordat and collaborative. This Court expects that the presentDdirections are adhered to and implemented, so that future litigation isavoided.

The Government is, accordingly, directed to strictly adhere to thedirections given above and not force the Petitioner-Madras BarAssociation, which has been relentless in its efforts to ensure judicialEindependence of the Tribunals, to knock the doors of this Court again.

Ankit Gyan

Matters disposed of.