SC Tells Centre To Submit New Draft Rules On Appointment Of Tribunals’ Office-Bearers By Jan 4

The Supreme Court bench of Chief Justice Dipak Misra, Justice DY Chandrachud and Justice AM Khanwilkar on Friday directed the Centre to submit the new draft of the Tribunals, Appellate Tribunals and Other Authorities (Qualification, Experience and Other Conditions of Service) Rules by January 4, 2018.

The bench was hearing a string of writ petitions challenging sections 182, 183, 184 and 185 of the Finance Act of 2017 and the Rules framed under the said Section 184, in so far as the Rules leave the appointment, tenure and removal the presiding officers and members of 18 tribunals at the behest of the executive and dilute the qualification criterion in respect thereof.

Senior counsel Kapil Sibal submitted before the bench that the new Finance Act and the rules framed there “take away the right of the judiciary to appoint the chairman and members of tribunals and commissions”.

Advocate Vivek Chib, Counsel for Social Action for Forest and Environment  submitted that the apex court judgment in the Madras Bar Association matter [(2014) 10 SCC 1] has been ignored in so far as the impugned Rules provide that the chairman of the National Green Tribunal (NGT) could even be a person of non-judicial background.

 “A three months’ extension has been granted to the retiring members so far as the NCDRC and the CAT are concerned. What is so sacrosanct about these quasi judicial bodies that the NGT is being discriminated against? How could the government have been so selective? Either the new Rules must be stayed or the said extension also be made available to the NGT Chairman and members appointed as per the earlier rules that gave primacy to the CJI in the selection.”

In response, Justice Chandrachud explained, “The CAT and the NCDRC both address personal disputes of employees and individual grievances of consumers, respectively. The jurisdiction of the NGT is in the nature of PIL jurisdiction of the high courts.”

The opposition to the new Act of 2017 and the Rules framed thereunder continued: “It goes against the basic structure doctrine that the executive shall appoint the presiding officers and members of 18 tribunals possessing High Court jurisdiction. Further, such matters as the Yamuna pollution case have been transferred to the NGT. How can persons with a mere graduation in Arts be permitted to preside over the NGT?”

“Section 6 of the NGT Act of 2010 provides that the appointments can be made solely in consultation with the CJI. However, the Rules of 2017 contemplate a selection committee comprising 4 members of government ministries and departments in addition to the CJI. Please clarify if the primacy in the appointment still remains with the CJI. This is of great consequence as section 16 of the Act of 2010 requires appeals from the MoEF directions to lie to the NGT. Another disturbing feature is Rule 20 of the impugned Rules which permits the Central government to relax the provisions of the Rules of 2017 with respect to any person if it so deems fit,” Advocate Vivek further contended.

Attorney General KK Venugopal responded, “In addition to the main selection committee headed by the CJI and comprising 4 executive members, there are 3 additional committees under Justices AK Sikri, Ranjan Gogoi and Madan B Lokur. Besides, in the new draft rules that the government has formulated, the constitution of the selection Committee has been altered.”

Senior counsel Arvind Datar submitted, “The new draft rules must made compliant with the spirit of paragraph 120 of the apex court’s judgment in the Madras High Court Bar Association matter.”

Senior counsel Mohan Parasaran argued, “It is not about the amendment of the impugned rules. The question is whether these rules that are ultra vires the NGT Act of 2010 could even have been introduced.”

“Let us see the draft rules in January. Then we shall decide as to the statutory competence,” the bench concluded.