Madras High Court
Aniruthan vs Union Of India on 26 July, 2021
W.P.No.645 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.07.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.645 of 2021
Aniruthan .. Petitioner
Vs.
1. Union of India
Rep. By the Secretary to Government
Ministry of Law and Justice
Department of Legal Affairs
North Block, New Delhi 110 003.
2. The President
Income Tax Appellate Tribunal
No.101, Maharishi Karve Marg
Mumbai 400 020.
3. The Secretary to Government
Ministry of Finance
Department of Revenue
North Block, New Delhi 110 001.
4. Rajpal Yadav
5. Mahavir Singh
6. Sushma Chowla .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Quo-warranto to show cause under what
authority respondents 4 and 5 are holding office of Vice President in
Income Tax Appellate Tribunal (ITAT) pursuant to the proceedings of
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W.P.No.645 of 2021
first respondent in F.No.A-12023/1/2019-Admin.III (LA)(II) dated
22.01.2020 after Rules in the Tribunal, Appellate Tribunal and other
Authorities (Qualification, Experience and other Conditions of Service
of Members) Rules, 2017 have been struck down by Hon'ble Supreme
Court by order dated 13.11.2019 reported in 2020 (6) SCC 1.
For Petitioner : Mr.R.Kannan
For Respondents : Mr.R.Rajesh Vivekananthan
SPCCG
for respondents 1 to 3
Mr.M.Kishore Kumar
for respondents 4 and 5
ORDER
(Made by SENTHILKUMAR RAMAMOORTHY, J.)
The petitioner challenges the appointment of respondents 4 and
5 to the office of the Vice President of the Income Tax Appellate
Tribunal.
2. The main basis of challenge is that the Tribunal, Appellate
Tribunal and Other Authorities (Qualification, Experience and other
Conditions of Service of Members) Rules 2017 were struck down by
the Supreme Court in Rojer Mathew vs. South Indian Bank Ltd.,
(2020) 6 SCC 1 (Rojer Mathew).
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W.P.No.645 of 2021
3. The contention on behalf of the petitioner is that the
constitution of the Search-cum-Selection Committee was not in
accordance with either the dictum of the Supreme Court in Rojer
Mathew or in accordance with the law existing previously. According to
the petitioner, the interim orders passed in Rojer Mathew would not
salvage the appointment of respondents 4 and 5 herein inasmuch as
those interim orders were only applicable to appointments made when
the writ petitions that were disposed of in Rojer Mathew were pending.
In support of this contention, learned counsel for the petitioner draws
our attention to paragraph 224 of the judgment in Rojer Mathew
wherein the court held as under:-
“224. As the Tribunal, Appellate Tribunal and Other
Authorities (Qualification, Experience and Other Conditions
of Service of Members) Rules, 2017 have been struck
down and several directions have been issued vide the
majority judgment for framing of fresh set of rules, we, as
an interim order, direct the appointments to the
Tribunal/Appellate Tribunal and the terms and conditions of
appointment shall be in terms of the respective statutes
before the enactment of the Finance Bill, 2017. However,
liberty is granted to the Union of India to seek modification
of this order after they have framed fresh rules in
accordance with the majority judgment. However, in case
any additional benefits concerning the salaries and
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W.P.No.645 of 2021
emoluments have been granted under the Finance Act,
they shall not be withdrawn and will be continued. These
would equally apply to all new Members.”
In addition, paragraph 341 of the said judgment is also referred to.
However, Paragraph 341 is evidently the conclusion in the dissenting
judgment of Justice Chandrachud in Rojer Mathew, and is therefore of
limited relevance.
4. By relying upon the aforesaid paragraphs, it is contended on
behalf of the petitioner that the appointments made on 22.01.2020
would not be saved by the interim orders passed in Rojer Mathew.
5. On the contrary, the Union submits that the Supreme Court
made it abundantly clear that appointments made pursuant to interim
directions are protected. For such purpose, the Union placed reliance
on paragraphs 50, 52 and 53 of the judgment in Madras Bar
Association vs. Union of India, 2020 SCC Online SC 962 (Madras Bar
Association II). In paragraph 50 thereof, the Supreme Court adverted
to the interim orders dated 09.02.2018, 20.03.2018 and 21.08.2018
in Rojer Mathew with regard to the constitution of a Search-cum-
Selection Committee and other issues in relation to the appointment of
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W.P.No.645 of 2021
the members of the tribunals. In paragraph 52, the Supreme Court
held, in relevant part, as under:
“.... The appointments made during the pendency of
Rojer Mathew (supra) on the date of interim orders passed
therein and the appointments made after the judgment
made of Rojer Mathew (supra) like the appointments made
prior to the 2017 Rules, are no doubt, to be governed by
the then existing parent Acts and Rules. In view of the
interim orders passed by this Court in Rojer Mathew
(supra), appointments made during the pendency of the
case in this Court are also to be governed by the parent
Acts and Rules and the clarifications issued by this Court in
Rojer Mathew (supra)....”
Finally, in paragraph 53 (xi), it was held as under:
“(xi) Appointments made prior to the
2017 Rules are governed by the parent Acts
and Rules which established the concerned
Tribunals. In view of the interim orders passed
by the Court in Rojer Mathew (supra),
appointments made during the pendency of
Rojer Mathew (supra) were also governed by
the parent Acts and Rules. Any appointments
that were made after the 2020 Rules came into
force i.e. on or after 12.02.2020 shall be
governed by the 2020 Rules subject to the
modifications directed in the preceding
paragraphs of this judgment.”
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W.P.No.645 of 2021
6. The appointments made on 22.01.2020 should be tested
against the dictum of the Supreme Court in Rojer Mathew and Madras
Bar Association-II, which were adverted to above. Upon perusal of the
minutes of the Search-cum-Selection Committee meeting on
08.04.2019, it is clear that the Search-cum-Selection Committee took
into account the interim order of the Supreme Court dated 09.02.2018
in W.P.(C) 279/2018 (Kudraj Sandhu vs. Union of India) which was
part of the Rojer Mathew batch, and proceeded to record that the said
interim order mandated that all appointments made pursuant to the
selection by the interim Search-cum-Selection Committee shall abide
by the conditions of service as per the old Act and the Rules. Thus, it is
evident that the interim Search-cum-Selection Committee acted
strictly in accordance with the interim orders passed in Rojer Mathew
as subsequently recorded in Madras Bar Association-II.
7. The principal objection of the petitioner is that these interim
orders do not apply to an appointment made on 22.01.2020. In other
words, the contention is that it could only apply to appointments made
while Rojer Mathew was pending consideration before the Supreme
Court. The express language of both paragraph 224 of Rojer Mathew
and paragraphs 52 and 53 (xi) of Madras Bar Association-II indicate
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W.P.No.645 of 2021
otherwise. Upon examining the aforesaid paragraphs, it leaves no
room for doubt that the interim directions would apply to all
appointments made prior to the 2020 Rules. In all such cases, the
Supreme Court mandated that the governing statute and Rules framed
thereunder would be applicable until the 2020 Rules came into effect.
The present appointment made on 22.01.2020 is squarely covered by
the Supreme Court's interim orders and dictum. The petitioner has
completely failed to establish that the appointments are contrary to
the relevant parent Act or the rules framed thereunder. Accordingly,
there is no merit in the petitioner’s challenge. Consequently,
W.P.No.645 of 2021 is dismissed. There will be no order as to costs.
W.M.P.No.709 and 710 of 2021 are also closed.
(S.B., CJ.) (S.K.R., J.)
26.07.2021
Index : yes
tar
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W.P.No.645 of 2021
To:
1. The Secretary to Government
Ministry of Law and Justice
Department of Legal Affairs
North Block, New Delhi 110 003.
2. The President
Income Tax Appellate Tribunal
No.101, Maharishi Karve Marg
Mumbai 400 020.
3. The Secretary to Government
Ministry of Finance, Department of Revenue
North Block, New Delhi 110 001.
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W.P.No.645 of 2021
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(tar)
W.P.No.645 of 2021
26.07.2021
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