A.K.Behera Vs. Union of India & ANR. [2010] INSC 412 (6 May 2010)

A.K.Behera Vs. Union of India & ANR. [2010] INSC 412 (6 May 2010)

Judgment

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION Writ Petition (Civil) No. 261 of 2007 A.K. Behra ... Petitioner Versus Union of India and another ... Respondent With Writ Petition (Civil) No. 539 of 2007

J.M. Panchal, J.

1. In the Writ Petition (C) No. 261 of 2007, the petitioner, who is a practicing lawyer and Honorary Secretary of the Central Administrative Tribunal, Principal Bench, Bar Association, prays (1) to quash the decision of the respondents to abolish the post of Vice 2 Chairman in the Central Administrative Tribunal as reflected in the Administrative Tribunal (Amendment) Act, 2006 and to direct the respondents to restore the said post in the Central Administrative Tribunal, (2) to declare that the newly inserted Section 10A of the Administrative Tribunals Act, 1985 to the extent it prescribes different conditions of service for the Members of the Central Administrative Tribunal on the basis of their appointment under the unamended Rules and under the amended Rules, as unconstitutional, arbitrary and not legally sustainable, (3) to direct the respondents to accord all conditions of service as applicable to the Judges of High Court to all the members of the Central Administrative Tribunal irrespective of their appointment under the unamended or amended Rules, (4) to declare that the newly inserted Section 10A of the Administrative Tribunals Act, 1985 as unconstitutional to the extent it stipulates that the total term of office of the member of the Central Administrative Tribunal shall not exceed 10 years, (5) to direct the respondents to continue all the 3 members appointed under the unamended or amended Rules till they attain the age of superannuation of 65 years, (6) to declare, the newly inserted qualifications for appointment as administrative members as reflected in the amended Section 6(2), as arbitrary and unsustainable, and (7) to quash the newly added Section 12(2) of the Administrative Tribunals Act, 1985 authorising the appropriate Government to designate one or more members to be the Vice Chairman for exercise of financial and administrative powers as impinging upon the independence of judiciary.

2. Writ Petition (C) No. 539 of 2007 is filed by a judicial member of Maharashtra Administrative Tribunal and he prays to set aside the decision of the respondents requiring Members of the Administrative Tribunal appointed before the coming into force of Administrative Tribunals (Amendment) Act, 2006 to seek fresh appointment in accordance with the selection procedure laid down for such appointments as being arbitrary and 4 violative of Articles 14 and 16 of the Constitution. He also prays to declare that newly introduced Section 10A, so far as it relates to consideration of members of the Administrative Tribunal for reappointment by Selection Committee, is not applicable to those, who were duly appointed as members prior to February 19, 2007.

Another prayer made by him is to direct the respondents to restore his continuance as Member of Maharashtra Administrative Tribunal till he attains the age of superannuation of 65 years and to direct the respondents to accord all conditions of service, as applicable to the Judges of the High Court, to him.

3. Article 323A of the Constitution, stipulates that Parliament may by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and the conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority 5 within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. The establishment of Administrative Tribunals under the aforesaid provisions of the Constitution had become necessary since the large number of cases relating to service matters were pending before the various courts. It was expected that the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons coming under the jurisdiction of Administrative Tribunals, speedy relief in respect of their grievances.

Therefore, a Bill was introduced in the Parliament for setting up the Central Administrative Tribunal. The Bill sought to give effect to Article 323A by providing for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for a State or a joint Administrative Tribunal for two or more States.

6 The Bill inter alia provided for - (a) the jurisdiction, powers and authority to be exercised by each Tribunal, (b) the procedure to be followed by the State Tribunals, (c) exclusion of the jurisdiction of all courts, except that of the Supreme Court under Article 136 of the Constitution relating to service matters, and (d) the transfer to each Administrative Tribunal of any suit or other proceedings pending before any court or other authority immediately before the establishment of such Tribunal as would have been within the jurisdiction of such Tribunal the causes of action on which such suits or proceedings were based had arisen after such establishment.

4. The Parliament, thereafter enacted The Administrative Tribunals Act, 1985. It received the assent of the President on February 27, 1985.

5. The Central Administrative Tribunal with five Benches was established on November 1, 1985 in pursuance of the provisions of the Administrative 7 Tribunals Act, 1985. Prior to its establishment, writ petitions were filed in various High Courts as well as in the Supreme Court challenging the constitutional validity of Article 323A of the Constitution and the provisions of the Administrative Tribunals Act. The main contention in the writ petitions was that the writ jurisdiction of the Supreme Court under Article 32 of the Constitution as well as that of the High Court’s under Article 226 of the Constitution could not have been taken away even by an amendment of the Constitution. Although the Supreme Court, by an interim order stayed the transfer of writ petitions filed in the Supreme Court under Article 32 of the Constitution to the Central Administrative Tribunal, it did not stay transfer of writ petitions under Article 226 of the Constitution subject to the condition that the Government would make certain amendments in the Act.

One of the amendments suggested by the Supreme Court was that each case in the Tribunal must be heard by a Bench consisting of one judicial member and one non- judicial member and the appointment of judicial 8 members should be done in consultation with the Chief Justice of India. An undertaking was given to the Supreme Court that a Bill to make suitable amendments in the Act would be brought before the Parliament as early as possible. The Central Administrative Tribunal had also started functioning in Benches in accordance with the above directions of the Supreme Court. As the writ petitions referred to above were to come up for hearing in January, 1986, the President promulgated the Administrative Tribunals (Amendment) Ordinance, 1986 on January 22, 1986 so as to give effect to the assurance given to the Supreme Court and to make some other amendments found necessary in the administration of the Act. The Ordinance inter alia provided for the following matters, namely: - (a) The concept of Judicial Member and Administrative Member was introduced in the Act. The Bench of Administrative Tribunal was to consist of one Judicial Member and one Administrative Member 9 instead of three members Bench to be presided over by the Chairman or by the Vice Chairman. It was also provided that the appointment of a Judicial Member would be made after consultation with the Chief Justice of India.

(b) The jurisdiction of the Supreme Court in service matters under Article 32 of the Constitution was preserved. The Principal Act had intended to confer this jurisdiction also on the Tribunals.

(c) A provision was included to designate, with the concurrence of any State Government, all or any of the members of the Bench or Benches of the State Administrative Tribunal established for that State as Members of the Bench or Benches of the Central Administrative Tribunal in respect of that State.

(d) The jurisdiction of the Tribunal was also extended to persons, who were governed by the provisions of the Industrial Disputes Act, 1947 without affecting the rights of such persons under the Act.

10 Subsequent to the promulgation of the Ordinance, few doubts were expressed in respect of some of the provisions of the Act and the Ordinance. It was, therefore, proposed to include in the Bill a few clarificatory amendments, to make certain provisions included in the Ordinance retrospective from the date of establishment of the Central Administrative Tribunal and to validate certain actions taken by the said Tribunal.

The amendments included in the Bill were explained in the memorandum attached to the Bill. Accordingly, the Act of 1985 was amended by Act 19 of 1986 which was deemed to have come into force on January 22, 1986. By the amendment in the Act of 1985 it was proposed (1) to exclude from the jurisdiction of an Administrative Tribunal the powers to adjudicate disputes with respect to officers and employees of the subordinate courts and to make a provision for transfer of cases pending in the Administrative Tribunals to the Courts concerned; (2) that the appointment of the Chairman, Vice-Chairman and other Members of the Administrative Tribunals 11 would be made in consultation with the Chief Justice of India. The Act, before its amendment, provided for consultation with the Chief Justice of India only in respect of Judicial Members; (3) that the Chairman, Vice- Chairman and other Members of the Administrative Tribunals would be eligible for re-appointment for a second term of office; (4) that the Central Government and the appropriate Government should be empowered to frame rules relating to salary, allowances and conditions of service of the Chairman and other Members of the Tribunals and their officers, etc.

6. It may be mentioned that a writ petition under Article 32 of the Constitution was filed by a member of the Central Administrative Tribunal, contending that the decision in S.P. Sampath Kumar vs. Union of India and others [(1987) 1 SCC 124], equated the Central Administrative Tribunal with the High Court and, therefore, its Chairman should be equated with the Chief Justice of a High Court and the Vice-Chairman 12 and Members must be equated with the sitting Judges of the High Court in all respects. It was also contended that while the Vice-Chairmen have been equated with sitting Judges of the High Courts, the Members have not been so equated in their pay and other conditions of service and that a distinction was made in the conditions of service, particularly, the pay and age of superannuation between the Vice-Chairmen and the Members, which was arbitrary, as a result of which the Members also should be given the same pay as that of the Vice-Chairmen and their age of superannuation should also be the same, i.e., 65 years as that of the Vice-Chairmen. On interpretation of Article 323A of the Constitution, this Court took the view that Administrative Tribunals constituted thereunder are distinct from the High Courts and dismissed the writ petition.

7. The Administrative Tribunals Act, 1985 came to be amended by the Administrative Tribunals 13 (Amendment) Act, 2006. By the said amendment the post of Vice-Chairman in the Administrative Tribunal is abolished. A new provision, i.e., Section 6(2) is introduced which modifies the qualifications for appointment as Administrative Member in the Tribunal. Section 10A is inserted in the main Act, which provides that the conditions of services of the Judges of the High Court would be applicable only to the Members appointed after February 19, 2007. The newly inserted Section 10A restricts the total term of the Members of the Administrative Tribunals to ten years though by the said amendment the age of superannuation for a Members is raised from 62 to 65 years. Further, Section 10A postulates consideration of a case of a Member for re-appointment by Selection Committee after February 19, 2007. Section 12(2) of the Administrative Tribunals Act, 1985 is amended and power is conferred on the appropriate Government to designate a Vice-Chairman for the purpose of performing certain duties and functions of the 14 Chairman.

8. The case of the petitioner is that the post of Vice- Chairman was in existence in the Administrative Tribunals since its inception which enabled the Judges of various High Courts to opt for the Central Administrative Tribunal and provided an opportunity, in the nature of promotion to the Members of the Administrative Tribunals to the post of Vice-Chairman.

According to the petitioner, the abolition of the said post now would create anomalous situation in the structure as well as administration of the Tribunals, if any High Court Judge is to be appointed only as a Member and, therefore, the abolition of the post of the Vice-Chairman is unconstitutional. The petitioners have mentioned that the newly introduced Section 6(2) of the Administrative Tribunals Act, 1985 modifies the qualifications for appointment as Administrative Member in the Tribunal in such a manner that except the IAS officers no other civil servant would ever 15 become eligible for such appointment and as zone of consideration for appointment of Administrative Members has been confined to only IAS officers by colourable exercise of power, the said provision should be regarded as unconstitutional. What is asserted by the petitioner is that Section 10A does not extend the benefit of the conditions of service applicable to the Judges of the High Court, to all the Members of the Tribunals appointed prior to the appointed date, which is February 19, 2007, but confines the same to the Members, who would be appointed in future, i.e., after February 19, 2007 as Members of the Tribunals and as the Members appointed before February 19, 2007 would also be discharging the same duties and responsibilities, the provision stipulating that the conditions of service of the Judges of the High Court would be applicable only to the Members to be appointed after February 19, 2007 has no rational basis or nexus with any defined objective and, therefore, should be declared to be ultra vires. It is 16 contended that Section 10A restricting the total term of the Members of the Administrative Tribunals to ten years is arbitrary because the said provision has no objective nor any rational basis nor any nexus with defined objective of the Act. According to the petitioner a number of Judicial Members in the Tribunals have been appointed from the Bar at the age of 45 years or so, but now their tenure is sought to be curtailed only to ten years, which would discourage the members of the Bar from joining the Tribunals as a Member. What is claimed is that the Judicial Members appointed from the Bar since inception, have played a pivotal role in the judicial administration of the Tribunals and, therefore, the newly inserted Section 10A restricting the total term of the Members of the Administrative Tribunals to ten years should be struck down as arbitrary, unconstitutional and legally not sustainable.

9. The grievance by the petitioner in writ petition No. 539 of 2007 is that the decision of the respondents to subject a Member to a fresh selection procedure is arbitrary and violative of Articles 14 and 16 of the Constitution because, according to him, the provision requiring consideration of his case for re-appointment as Member of the Administrative Tribunal by Selection Committee should not have been made applicable to those, who were duly appointed as Members prior to February 19, 2007. The petitioner also claims that introduction of Section 12(2) in the Administrative Tribunals Act, 1985, which empowers the State Government to designate a Member as a Vice- Chairman for performing financial and administrative powers destroys the judicial independence of the Tribunals and as uncontrolled, unguided and unregulated power has been conferred on the Government to nominate a Member of the Tribunal as Vice-Chairman for performing those functions, the said provision should also be struck down. Under 18 these circumstances the petitioners have filed above numbered petitions and claimed reliefs to which reference is made earlier.

10.On service of notice, counter affidavit has been filed on behalf of the respondents by Ms. Manju Pandey, Under Secretary in the Ministry of Personnel, Government of India. In the counter affidavit it is stated that the Administrative Tribunals (Amendment) Act, 2006 was intended to achieve the following objects: - i) To abolish the post of Vice-Chairman in the Tribunals as it was creating an avoidable three tier institution and resulting in anomalies in qualifications, age of retirement, service conditions, etc. The Act was passed so that all the Members of the Central Administrative Tribunal can be elevated to the same status as of a High Court Judge and, therefore, the service conditions of the Members of the Tribunals were upgraded to that of a Judge of the High Court, 19 i.e., the same as was of a Vice-Chairman under the unamended Act.

ii) Only for discharging certain administrative functions, some of the Members in different Benches are to be designated as Vice-Chairmen, but the said designation is not to confer any special benefit to the Member so designated.

iii) Since the age of retirement of a Government servant was raised from 58 years to 60 years, a retired Government servant had a tenure of only two years as a Member of the Tribunal and he was not able to contribute much to the disposal of the cases.

Therefore, it was felt that every member of the Tribunal should have tenure of five years. Though it was not mentioned in the Statement of Objects and Reasons, it was also understood that since retired High Court Judges would be considered for appointment as Members of the Central Administrative Tribunal, the age of retirement should be increased to 20 65 years and correspondingly the age of retirement of the Chairman should be increased to 68 years so that the Chairman of the Tribunal could have a full term of five years.

iv) The post of Vice-Chairman under the Amended Act is only an executive designation for discharging administrative powers and though the Government has been given the power to nominate one of the members as Vice-Chairman of the Tribunal, said designation would obviously be made with the concurrence of the Chairman of the Tribunal.

After emphasizing the intended objects sought to be achieved by the Amending Act, it is stated in the reply that the post of Vice-Chairman of the Tribunal resulted in three different levels of functionaries in the Tribunal and, therefore, the Government of India took a policy decision that it would be beneficial and in the interest of uniformity of service that the hierarchy be reduced to just two posts, i.e., the Chairman and the Members of 21 the Tribunal, which cannot be said to be either discriminatory or arbitrary or illegal. It is further mentioned in the counter affidavit that Section 8 of the unamended Act provided that the maximum tenure of the Chairman, Vice-Chairmen or a member of the Administrative Tribunal would be ten years subject to the age of retirement, which was 65 years in the case of Chairman or Vice-Chairman and 62 years in the case of any other Member and it is not correct to say that Section 10A inserted by the Amending Act, for the first time restricts the term of the Members of the Tribunal to ten years. It is explained in the counter affidavit that the reason for raising the retirement age from 62 to 65 years was because the retirement age of Government servants had been increased from 58 years to 60 years and a retired Government servant had a tenure of only two years as a Member of the Tribunal as a result of which he was not able to contribute much while being Member of the Tribunal. As per the counter affidavit the qualifications required for being selected as 22 Administrative Member were the same as required for being chosen as Vice-Chairman of the Tribunal in the pre-amended Act and as no change by the amendment is effected so far as selection of a Member is concerned, the new provision should not be regarded as unconstitutional. What is asserted in the counter affidavit is that as per Section 12 of the Amended Act, the Chairman of the Tribunal would have all financial and administrative powers over the Benches, but the Vice- Chairman can be designated by the Central Government, obviously with concurrence of the Chairman, and a Member so designated would discharge such functions of the Chairman as the Chairman may direct and, therefore, it is wrong to contend that by introduction of Section 12(2) of the Act, the independence of judiciary and independence of Tribunal is sought to be curtailed by the Executive. It is explained in the counter affidavit that earlier the post of Vice-Chairman was not a promotional post for a Member of the Tribunal and the qualifications of the Vice-Chairman were different from a Member of the 23 Tribunal, but, by amendment the qualifications of Members of the Tribunal have been raised to that of the Vice-Chairman and this change in qualifications neither affects the status of a retired High Court Judge nor confers arbitrary benefits on the non-Judicial Members and, therefore, the said provision is perfectly legal. It is further pointed out in the counter affidavit that except the change in the nomenclature, a retired High Court Judge would get exactly the same facilities, if he is appointed today as Member of the Tribunal instead of designating him as Vice-Chairman of the Tribunal under the unamended Act and, therefore, it is wrong to contend that the amendments are violative of the provisions of the Constitution. It is explained in the reply that in the parent Act also the Members were eligible for re- appointment for a second term of five years and not further whereas in the Amended Act, appointment of a Member is for a period of five years extendable by one more term of five years provided he has not attained the age of 65 years, and this provision does not infringe any 24 of the rights of the Members of a Tribunal, who seek extension for a second term. It is stated in the counter that the qualifications for appointment as an Administrative Member of the Tribunal, prior to its amendment were on the lower side and a need was felt that persons, who were appointed as Administrative Members, should have sufficient experience of high posts so as to enable them to understand the complexities of service jurisprudence and, therefore, certain additional qualifications have been prescribed, which cannot be termed as affecting the independence of the Tribunals.

What is stated in the counter affidavit is that as a matter of policy it is now provided that all officers, who are in the pay-scale of Secretary or Additional Secretary, would be eligible for appointment and the Selection Committee would invariably choose the most eligible person for the said post. It is pointed out that the Amended Act substantially changes the qualifications for appointment as a Member of the Tribunal and now the post of a Member of the Tribunal is equivalent to the post of the 25 Vice-Chairman as it existed prior to the amendment and, therefore, in terms of status and service conditions the Members appointed after February 19, 2007 have been granted the status available to a Vice-Chairman before the amendment. What is stressed is that though the present Members and Members to be appointed in future would discharge similar functions, there is a marked distinction between the eligibility criteria and, therefore, it is wrong to contend that the two form one class and the provisions are arbitrary.

11.Similarly, on service of notice in Writ Petition (C) No. 539 of 2007, affidavit in reply has been filed on behalf of respondent Nos. 1 and 2 by Ms. Manju Pandey, Director in the Ministry of Personnel, Government of India. In the said petition affidavit in reply on behalf of Government of Maharashtra is filed by Mr. Vijay Dattatraya Shinde, Under Secretary, General Administration Deptt., State of Maharashtra. It may be mentioned that in both the above referred to two 26 replies it is stated that a member appointed prior to February 19, 2007 and seeking extension for second term has to fulfill qualifications prescribed by the Amended Act, which cannot be termed as arbitrary or unconstitutional.

12.This Court has heard the learned counsel for the parties at length and in great detail.

13. The contention that the abolition of the post of Vice- Chairman, which was in existence since inception of the Administrative Tribunals, is unconstitutional because it would create anomalous situation in the structure as well as administration of the Tribunals if any High Court Judge is appointed as Member of the Tribunal, cannot be accepted. As explained in the reply affidavit the post of Vice-Chairman in the Tribunal had created an avoidable three tier institution and resulted in anomalies in qualifications, age of retirement, service conditions etc. It is worth noticing that Members of the Tribunal had claimed 27 equality with the Judges of the High Court or even the Vice-chairman of the Tribunal, in the matter of pay and superannuation. That claim was rejected by this Court in M.B. Majumdar v. Union of India [(1990) 4 SCC 501] with an observation that it is for the Parliament to enact a law for equating Members of the Tribunal with Judges of High Court for the purposes of pay and superannuation. The Parliament, in exercise of powers under Article 323A of the Constitution, has amended the Administrative Tribunals Act, 1985 and equated its Members with Judges of High Court for the purposes of pay and superannuation. The Parliament, by enacting a law, has right to change the conditions of service of Members of the Administrative Tribunals.

While upgrading the conditions of service of the Members, the conditions of service of a Judicial Member are not changed to his detriment. By the amending Act all the Members of the Central Administrative Tribunal have been elevated to the status of a High Court Judge. The service conditions 28 of the Members of the Tribunal have been upgraded to that of a High Court Judge, which cannot be regarded as illegal or unconstitutional. The qualifications of the Vice-chairman provided in Section 6(2)(a), 6(2)(b) and 6(2)(bb) in the unamended Act were also to a large extent qualifications prescribed for appointment of a person as an Administrative Member. The only addition made by the Amending Act is that now the Secretary to the Government of India, in the Department of Legal Affairs or the Legislative Department including Member-Secretary, Law Commission of India or a person who has held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years, are made eligible for appointment as a Judicial Member. It is to be noted that though under the unamended Act, it was not specifically provided that person who held the post of a Secretary to the Government of India in the Department of Legal Affairs or the Legislative 29 Department including Member-Secretary, Law Commission of India for at least two years or persons who held post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years, was eligible to be appointed as an Administrative Member, but he was eligible to be appointed as Administrative Member in view of the qualifications which were laid down for a person to be appointed as Administrative Member. However, by the Amendment, such a person is declared to be eligible for being appointed as Judicial Member having regard to his experience and opportunity to deal with legal issues in his respective department. Section 6(3) and 6(3)(a) of the earlier Act provided a much lower qualification for a Member of the Tribunal. The amended qualifications for a Member of the Tribunal are nearly the same as Vice-Chairman of the Tribunal, which clearly reflects the intention of the Government to upgrade the post of an Administrative Member. In 30 such circumstances the need for having a Vice- Chairman was obviated and the Government, therefore, abolished the post of Vice-Chairman by the impugned enactment. By abolition of the post of the Vice-Chairman no anomalous situation is sought to be introduced in the structure as well as functioning and administration of the Tribunals. A retired High Court Judge would be eligible for appointment as Member of the Tribunal and on such appointment would be eligible to all the facilities as a Judge of the High Court. The Chairman of the Tribunal is normally a retired Chief Justice of the High Court and very rarely a retired Judge is appointed as Chairman of the Tribunal. In any event the Chairman would be senior to a retired Judge, who is appointed as a Member of the Tribunal. Therefore, this Court finds that no anomaly, as contended by the petitioners, would take place at all on the abolition of the post of Vice- Chairman. The petitioner could not establish before the Court that by upgrading the status of the 31 Administrative Member of the Tribunal to that of a High Court Judge a particular provision of the Constitution is infringed. The plea that abolition of post of Vice-Chairman will discourage a sitting or retired High Court Judge from joining the Tribunal cannot be appreciated. The composition of the Tribunal, after amendment of the Act, is such that there would be a Vice-Chairman if required as under Section 12, a Judicial Member and another member to be appointed from civil services. A High Court Judge, who opts for the post of judicial Member in the Tribunal, would not be lowering his status after the amendment because all the service conditions applicable to him as a High Court Judge have been saved. Therefore, the first contention that abolition of the post of Vice-Chairman except for the purposes of Section 12 of the Act would create anomalous situation in the structure as well as administration of the Tribunal, if any High Court Judge is appointed as a Member has no substance and is hereby rejected.

32 14.The argument that Section 6(2) of the Administrative Tribunals Act, 1985 modifies the qualifications for appointment as an Administrative Member of the Tribunal in such a manner that except the IAS officers no other civil servant would ever become eligible for such appointment is without any factual basis. The newly amended provision requires that a person shall not be qualified for appointment as an Administrative Member unless he has held for at least two years the post of Secretary to the Government of India or any other post in the Central or State Government and carrying the scale of pay, which is not less than that of a Secretary to the Government of India for at least two years or held post of Additional Secretary to the Government of India for at least five years or any other post under the Central or State Government carrying the scale of pay which is not less that that of an Additional Secretary to the Government at least for a period of five years. What is relevant to notice is the proviso to sub-Section (2) of Section 6 of the Act, 33 which stipulates that the officers belonging to All India Services, who were or are on Central deputation to a lower post shall be deemed to have held the post of Secretary or Additional Secretary as the case may be, from the date such officers were granted proforma promotion or actual promotion whichever is earlier, to the level of Secretary or Additional Secretary, as the case may be, and the period spent on Central deputation after such date shall count for qualifying service for the purposes of this clause. A reasonable reading of sub-Section (2) of Section 6 of the Act makes it very clear that by no stretch of imagination it can be said that the qualifications for appointment as Administrative Member of the Tribunal are laid down in such a manner that except an IAS officer no other civil servant would become eligible for such appointment. It is necessary to notice that officers belonging to All India services have been made eligible to be appointed as Administrative Member subject to the fulfillment of qualifications stipulated in Section 6 34 of the Act. It is wrong to contend that All India Services comprise only of the IAS officers. All India Services comprise IAS, IFS, IRS, etc. Merely because higher qualifications have been prescribed one need not conclude that except an IAS servant, no other civil servant would be eligible for appointment as a Member. The higher qualifications have been prescribed for the benefit and interest of uniformity of the two level cadres contemplated by the amended provisions. There is no manner of doubt that Government of India took a policy decision to prescribe higher qualification for better discharge of functions by the Members constituting the Tribunals and the said policy decision cannot be regarded as arbitrary or unreasonable. The qualifications of the Vice- Chairman were provided in Sections 6(2)(a), 6(2)(b), 6(2)(bb) and 6(2)(c) of the unamended Act. To a large extent, the qualifications laid down in the unamended Act are almost the same as are laid down in the amended provisions. Therefore, the contention that 35 the amended provisions lay down qualifications for appointment as Administrative Member in such a manner that except IAS officers no other civil servant would ever become eligible for such appointment cannot be accepted.

15. The plea that Section 10A, which restricts the total term of the Member of the Administrative Tribunal to ten years should be regarded as unconstitutional has also no substance at all. The age of retirement of a Government servant has been raised from 58 years to 60 years. Initially under the unamended provisions of the Act a retired Government servant had a tenure of only two years as a Member of the Tribunal and it was noticed that he was not able to contribute much while performing duties as a Member of the Tribunal. It was felt necessary that every Member of the Tribunal should have a tenure of five years. Therefore, the provisions relating to term of office incorporated in Section 8 of the Act were amended in the year 1987 36 and provision was made fixing term of office of Chairman, Vice-chairman and Members at five years period. This Court, in S.P. Sampath Kumar vs. Union of India and others [(1987) 1 SCC 124], expressed the view that the term of five years, for holding the posts mentioned in Section 8 of the Act was so short that it was neither convenient to the person selected for the job nor expedient to the scheme. This Court found that it became a disincentive for well qualified people as after five years, they had no scope to return to the place from where they had come. The constitutional validity of the provisions of Section 8, fixing term of office of Chairman, Vice-chairman and Members of the Tribunal at five years period was upheld by this Court in Durgadas Purkyastha vs. Union of India & others [(2002) 6 SCC 242]. Therefore, now provision is made for extension of term of office by a further period of five years. Thus the Government has decided to provide for extension in term of office by five years of a Member so that he can effectively contribute to speedy 37 disposal of cases, on merits after gaining expertise in the service jurisprudence and having good grip over the subject. Under the unamended provisions of the Act also the term of Vice-Chairman and Member was extendable by a further period of five years and under the unamended provisions also a Member of the Bar, who was appointed as Judicial Member of the Tribunal, had maximum tenure of ten years. It is not the case of the petitioners that the unamended provisions of the Act, which prescribed total tenure of ten years for a Member of the Bar was/is unconstitutional. The provisions of Section 8 fixing maximum term of office of the chairman at sixty eight years and of a Member of the Tribunal at 10 years, cannot be regarded as unconstitutional because concept of security of tenure does not apply to such appointments. Said provision cannot be assailed as arbitrary having effect of jeopardising security of tenure. An Advocate practising at the Bar is eligible to be appointed as Member of Tribunal subject to his 38 fulfilling required qualifications. In all, such a Member would have term of office for ten years. On ceasing to hold office, a Member, subject to the other provisions of the Act, is eligible for appointment as the Chairman of the Tribunal or as the Chairman, Vice- chairman or other Member of any other Tribunal and is also eligible to appear, act or plead before any Tribunal except before the Tribunal of which he was Member. Under the circumstances, this Court fails to appreciate as to how the amended provisions restricting the total tenure of a Member of the Tribunal to ten years would be unconstitutional. The unamended Section 6 of the Administrative Tribunals Act, 1985 indicated that the Chairman, Vice-Chairman and other Members, held respective offices in one capacity or the other, had reasonably spent sufficient number of years of service in those posts before they were appointed in the Tribunal and, therefore, the concept of security of tenure of service in respect of those whose term was reduced was not regarded as 39 appropriate. The impugned provision, therefore, cannot be assailed on the ground of arbitrariness having the effect of jeopardizing the security of tenure of Members of the Bar beyond reasonable limits. An option is reserved to the Government to re-appoint a Member on the expiry of the first term beyond five years. The outer limit for the Member is that he should be within the age of 65 years. Thus, it would not be in every case that the Government would put an end to the term of the office at the end of five years because such Chairman or Member is eligible for appointment for another period of five years after consideration of his case by a committee headed by a Judge of the Supreme Court to be nominated by the Chief Justice of India and two other Members, one of whom will be the Chairman of the Tribunal. Under the circumstances, it is difficult to conclude that the provision restricting the total tenure of a Member to ten years is either arbitrary or illegal.

40 16.The plea that Section 10A of the Act requiring a sitting Member of the Tribunal, who seeks extension for second term to possess the qualifications laid down by the amended Act and get himself selected through Selection Committee is arbitrary, is devoid of merits.

The selections to be made as an Administrative Member after February 19, 2007 are made applicable uniformly to those who would be appointed as Administrative Member after February 19, 2007. A Member, who was appointed prior to February 19, 2007, cannot claim that he has vested right of extension of his term for a further period of five years as per the qualifications laid down in the unamended Act and that qualifications prescribed by the amending Act should be ignored in his case while considering his case for extension of term for a further period of five years. Over a period of time the anomaly, if any, would get cleared itself and after a period of 4-5 years all the Members of the Tribunal would be equal in status and that every Member to be appointed will 41 have to qualify himself as per the qualifications laid down in the Amended Act and will have to get himself selected through Selection Committee. The eligibility conditions of the Members appointed prior to and after February 19, 2007 are different. Since the Members of the Administrative Tribunals appointed prior to February 19, 2007 form a different class from those appointed or to be appointed after February 19, 2007.

Article 14 of the Constitution would stand violated if they are treated differently in the matter of appointment or extension of service as a Member after February 19, 2007. Extension in service by a Member cannot be claimed as matter of right and would always be subject to fulfillment of qualifications and conditions stipulated in the Amended Act. As observed earlier, the petitioner in Writ Petition (C) 539 of 2007 could not have claimed, as a matter of right, automatic re-appointment as Judicial Member of the State Administrative Tribunal after his first term of five years was over. As is provided in the Amending Act, 42 under the old provisions also a Member of the Administrative Tribunal was eligible to be re- appointed, which was considered to be a fresh appointment for all the practical purposes. Under the provisions of unamended Act, at the end of five years, the Chairman, Vice-chairman and other Members were eligible for reappointment for another period of five years after consideration by a Committee headed by a Judge of the Supreme Court and two other members, one of whom was Chairman of the Tribunal. The petitioner can only be considered for appointment as a Member as per the fresh selection procedure provided by the Amended Act. The Selection Committee has to choose the best candidate available for the post. It is not the requirement of the law that the Selection Committee should inform the petitioner the reasons for not recommending his name. Merely, because there is a vacancy in the post of Member (Judicial) in the Maharashtra Administrative Tribunal, the petitioner cannot claim a right to be appointed to the said post 43 irrespective of the provisions of the amended Act. The petitioner can be appointed only if Selection Committee recommends his appointment and the recommendation is accepted by the President, after the consultation with the Governor of the State. In view of this position of law emerging from the provisions of the unamended and amended Act, the Writ Petition (C) No. 539 of 2007 filed by the petitioner will have to be rejected.

17.The argument that Section 12(2) of the amended Act enabling the appropriate Government to nominate one of the Members of the Tribunal to perform financial and administrative functions destroys independence of the Tribunal which is a Judicial Forum and, therefore, the said provision should be regarded as unconstitutional, is devoid of merits. As is clear from the provisions of Section 12 of the Amended Act, the Chairman of the Tribunal has to exercise all financial and administrative powers over the Benches.

44 Essentially the provision for delegating financial and administrative powers to one of the Members of a Bench is made, to lessen administrative burden lying on the shoulders of the Chairman who normally sits at Delhi and for effective and better administration of the Benches of the Tribunal located in different and far flung States of the country. It is not difficult to visualise the problems, complications, obstacles, delay, etc., faced by the Chairman, while exercising financial and administrative powers over the Benches.

The decentralisation of financial and administrative powers to tackle local needs and problems, in favour of a Member of Tribunal, for effective administration of the Tribunals, cannot be regarded as destroying the basic feature of the Constitution, namely independence of judiciary. The designation of the Vice-Chairman by the Central Government under Section 12(2) of the Act would obviously be in concurrence with the Chairman. Further, the Vice- Chairman would discharge such functions of the 45 Chairman as the Chairman may so direct. It is absolutely, completely and entirely for the Chairman to recommend to the Government as to designate which Member of the Tribunal as Vice-Chairman. The said provision is an enabling provision, which is clear from the use of the expression "may" in the said provision. If the Chairman of the Tribunal feels that no Member should be designated as Vice-Chairman, the Government suo motu cannot and would not be in a position to make designation contemplated by the said provision. The designation as Vice-Chairman would not entitle the Member so designated to any special benefits in service conditions. The only purpose of the said provision is to help the Chairman in discharge of his administrative functions as the Benches of the Tribunal are situated in different parts of the country. Section 12(2) of the Act, which enables the appropriate Government to designate one or more Members as Vice-Chairman and entitles the Members so designated to exercise such powers and perform 46 such functions of the Chairman as may be delegated to him by the Chairman by general or special order in writing cannot be regarded as destroying the principle independence of judiciary or of the Administrative Tribunals. This Court fails to understand as to how the appropriate Government would be able to destroy the independence of Tribunals by designating one or more Members to be the Vice-Chairman for the purposes of performing the functions of the Chairman to be delegated to him by the Chairman. The jurisdiction, powers and authority of the Central Administrative Tribunal are defined in the Act and, more particularly, in Sections 14, 15, 16, 17 and 18 of the Act. The petitioners have failed to demonstrate that by authorizing appropriate Government to designate one or more Members to be the Vice- Chairman for the purpose of performing financial and administrative powers of the Chairman, the independence of the Tribunals secured by the above referred to provisions is in any manner eroded. The 47 challenge to the constitutional validity of Section 12(2) of the Act to say the least is misconceived and without any basis and, therefore, must fail.

18.For the reasons stated in the Judgment, this Court does not find any merits in any of the abovementioned writ petitions and they are liable to be dismissed.

Accordingly, both the writ petitions fail and are dismissed. There shall be no order as to costs.

...................................CJI (K.G. Balakrishnan)

......................................J. (J.M. Panchal)

New Delhi;

May 06, 2010

48 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 261 OF 2007 A. K. Behera .. Petitioner Versus Union of India & Another .. Respondents 49 WITH WRIT PETITION (CIVIL) NO. 539 OF 2007 P. K. Gaikwad .. Petitioner Versus Union of India & Others .. Respondents

Dalveer Bhandari, J.

1. I have had the benefit of going through the judgment of my Brother Hon'ble Mr. Justice J.M. Panchal. Though Hon'ble Mr. Justice K.G. Balakrishnan, Chief Justice of India has agreed with his decision, however, I express my inability to agree with him, therefore, I am writing a separate judgment.

2. Writ Petition No. 261 of 2007 under Article 32 has been filed by a practicing Advocate and the President of the Central Administrative Tribunal, Principal Bench, Bar Association, New Delhi. The connected Writ Petition No. 539 of 2007 under Article 32 has been filed by a Member (Judicial) in the 50 Maharashtra Administrative Tribunal, Maharashtra. Most of the issues involved in both the petitions are identical, therefore, both these petitions are being disposed of by this common judgment.

3. The petitioners are aggrieved by certain amendments carried out in the Administrative Tribunal Act, 1985 (for short, `the Act').

4. The petitioners are particularly aggrieved by the abolition of the post of Vice-Chairman in the Central Administrative Tribunal by the Administrative Tribunal (Amendment) Act 2006 (for short, `Amendment Act') which came into force by Act No.1/2007 dated 19.2.2007. According to the petitioners, the said Amendment Act is constitutionally and legally untenable and unsustainable because no reason for such abolition has been spelt out by the respondents at any point of time while introducing the said Amendment Bill.

5. The petitioners are also aggrieved by the newly inserted Section 10A of the Act which creates a hostile discrimination 51 in the matter of conditions of service between the members of the Tribunal appointed before and after 19.2.2007 inasmuch as "conditions of service" of a High Court Judge have been granted to members appointed after 19.2.2007 while the same have been denied to other members appointed before 19.2.2007.

6. According to the petitioners, the newly inserted section 10A is discriminatory and arbitrary inasmuch as, on the one hand, vide section 8(2) of the Amendment Act, the age of retirement for members has been increased from 62 years to 65 years and, on the other hand, by the newly inserted Section 10A, the total tenure of members of the Administrative Tribunals has been restricted to ten years (two terms), in other words, compelling them to retire at the age of fifty five years is wholly irrational and discriminatory and has been designed to discourage promising and otherwise deserving, competent and successful members of the Bar from joining the Tribunal. The age of appointment as a judicial member of the Tribunal is 45 years and any member who is appointed at that age 52 necessarily has to retire at the age of 50 or 55 years, whereas other members retire at the age of 65 years. Insertion of section 10A would seriously discourage, deter and dissuade deserving members of the Bar from joining the Tribunal because it would totally frustrate their career planning. The member after demitting the office is debarred from practicing before any Bench of the Tribunal.

7. The petitioners also submitted that the judicial members appointed from the Bar since the inception of the Tribunal have played a pivotal role in the judicial functioning of the Tribunal. They have been in fact the backbone of the Tribunal. Thus the present amendment would greatly affect the efficiency, efficacy and credibility of the Tribunal. No reason, rationale or logic has been spelt out as to why the ceiling of ten years has been imposed particularly when the age of superannuation has been increased from 62 years to 65 years for other members.

8. The petitioners submitted that the amended section 12(2) of the Act amounts to interference of executive in the affairs of 53 the judiciary by which the power to designate one or more members as "Vice-Chairman" to exercise certain powers and perform certain functions of the Chairman in the outlying Benches of the Tribunal has been conferred upon the Government whereas, previously such powers were vested with the Chairman of the Tribunal.

9. The petitioners further submitted that the Amendment Act has abolished the post of "Vice-Chairman" in the Administrative Tribunals. The post of Vice-Chairman had been in existence in the Administrative Tribunal since its inception in 1985. The said post enabled the retired or retiring judges of various High Courts to join the Central Administrative Tribunal. Besides, it also provided an opportunity in the nature of promotion for the members of Administrative Tribunals. By abolition of the post of Vice- Chairman, the retired High Court judges would not find it attractive to join the Tribunal and, consequently, the judicial character of the Tribunal would suffer a serious setback.

10. It was also submitted that the newly introduced section 6(2) of the Administrative Tribunals Act, 1985 modifies the qualifications for appointment as Administrative Members in the Tribunal in such a manner that for all practical purposes, except for the officers of the Indian Administrative Service (for short, `IAS'), hardly any other civil servant would ever become eligible for such appointment. Earlier, even the Income Tax, Postal and Customs Officers etc. used to become members of the Tribunal. Now, after the amendment, they would hardly have any chance of becoming members of the Tribunal. In other words, by the 2006 Amendment, the zone of consideration for appointment of Administrative Members has been essentially confined only to IAS officers by a colourable exercise of power by depriving all other categories of civil servants for such appointment. The petitioners have not placed sufficient material on record to decide this controversy, therefore, I refrain from commenting on this grievance of the petitioners. However, I direct the respondents to look into the grievance of members of other services and if any merit is 55 found in the grievance then take appropriate remedial steps so that members of other services may get proper representation.

11. The petitioners further submitted that by introducing section 12(2) in the Act, the power to designate a "Vice- Chairman" in the Benches for the purposes of certain duties and functions of the Chairman has been usurped by the government. Previously such powers were vested with the Chairman of the Tribunal. Such a provision has the potentiality of destroying the judicial independence of the Tribunal particularly when such uncontrolled, unguided and unregulated powers have now been given to the Government.

12. In order to properly comprehend the controversy involved in the case, relevant newly inserted sections 10A and 12(2) along with unamended section 12 are reproduced as under:- Newly Inserted Section 10A of the Amended Act "10A. Saving terms and conditions of service of Vice-Chairman. - The Chairman, Vice- Chairman and Members of a Tribunal appointed before the commencement of the Administrative Tribunals (Amendment) Act, 2006 shall continue to 56 be governed by the provisions of the Act, and the rules made thereunder as if the Administrative Tribunals (Amendment) Act, 2006 had not come into force:

Provided that, however, such Chairman and the Members appointed before the coming into force of Administrative Tribunals (Amendment) Act, 2006, may on completion of their term or attainment of the age of sixty-five or sixty-two years, as the case may be, whichever is earlier may, if eligible in terms of section 8 as amended by the Administrative Tribunals (Amendment) Act, 2006 be considered for a fresh appointment in accordance with the selection procedure laid down for such appointments subject to the condition that the total term in office of the Chairman shall not exceed five years and that of the Members, ten years."

SECTION 12 SECTION 12 (2) (BEFORE AMENDMENT) (AFTER AMENDMENT) "12.Financial and administrative powers of the Chairman.- The 12. Financial and Chairman shall exercise such administrative powers of financial and administrative the Chairman.- (1) The powers over the Benches as may Chairman shall exercise be vested in him under the rules such financial and made by the appropriate administrative powers over Government: the Benches as may be vested in him under the Provided that the Chairman shall rules made by the have authority to delegate such of appropriate Government.

his financial and administrative (2)The appropriate powers as he may think fit to the Government may Vice-Chairman or any officer of the designate one or more Tribunal, subject to the condition Members to be the Vice- that the Vice-Chairman or such Chairman or, as the case 57 officer shall, while exercising such delegated powers, continue to act may be, Vice-Chairman under the direction, control and thereof and the Members supervision of the Chairman." so designated shall exercise such of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing.

13. In pursuance to the show cause notice issued by this Court, the respondents, through the Under Secretary in the Ministry of Personnel, Government of India, have filed counter affidavit incorporating therein that abolishing the post of Vice- Chairman in the Tribunal was intended as it was creating an avoidable three tier-system resulting in anomalies in qualifications, age of retirement, service conditions etc. It is further incorporated in the counter affidavit that the abolition of the post of Vice-Chairman and upgrading the post of members or increase of retirement age do not in any manner impinge upon the working of the Tribunal.

14. It is also incorporated in the counter affidavit that the post of Vice-Chairman under the amended Act is only an executive designation for discharging the administrative powers. Though the Government has been given the power to nominate one of the members as Vice-Chairman of the Tribunal, it is obvious that the said designation of a member as Vice-Chairman would obviously be made with the concurrence of the Chairman of the Tribunal.

15. In the counter affidavit, it is also stated that a retired High Court judge would be eligible for appointment as member of the Tribunal. Usually a retired Chief Justice of the High Court is appointed as the Chairman of the Tribunal and very rarely, a retired judge may also be appointed as the Chairman of the Tribunal. In any event, the Chairman would be a senior retired judge who is appointed as a member of the Tribunal.

Hence, there is no anomaly.

16. In the counter affidavit, it is specifically admitted that there is some substance in the contention of the petitioners that members appointed prior to 19.2.2007 would be at 59 disadvantage in terms of their service conditions inasmuch as they would not get the same benefits as the High Court judge.

However, this is a temporary anomaly. Over a period of time, the same anomaly would correct itself and after a period of 4-5 years, all the members of the Tribunal would be treated in