[2020 Tribunal Rules] AG Defends Exclusion Of Advocates From Appointment To Single-Member Tribunals, SC Reserves Judgment [Read Order]

The Bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat were hearing the matter. The bench on Friday directed that the terms of all chairpersons, vice-chairperson and other members of all 19 tribunals, which are due to expire, shall be extended till December 31.

At the outset, the AG defended the four year tenure as stipulated under Rule 9(2) of the 2020 Rules- "Mr. (Arvind) Datar (Senior Advocate, Amicus Curiae) argued that the tenure cannot be less than 5 years because one judgment requires 5-7 years and another stipulates 5 years. But section 184 (of the Finance Act) says that any Rules that are framed governing the tenure cannot provide for a term exceeding 5 years. And in Roger Mathew, section 184 was upheld in entirety. So any tenure fixed by the Rules cannot exceed 5 years. Besides, in addition to the 4 years term, it is open for the Search Cum Selection Committee (SCSC) to reappoint the person. And the committee being headed by a SC judge, it is not an arbitrary reappointment", argued the AG.

In context of even the provision of re-appointment having been challenged for compromising the independence of the tribunals, he explained that having joined the legal profession at the age of 23, one is appointed after 25 years of substantial experience, when one is generally around the age of 48. So if after a 5 year term, no provision for reappointment is made, he will have to step down. In such an situation, nobody would come forward to apply and accept the post. The AG added that the same was true for other categories of persons also, for appointments to technical posts etc. "If one serves his tenure well, he is competent, he has integrity, he doesn't come late, he delivers his judgments on time, then there is no reason why he would not be reappointed. The deserving candidates will get to continue for a long term- from the age of 48 to 65. And if one is lucky enough to be promoted as chairman or vice-chairman, he may even continue till 70! The same SCSC is to decide the reappointment", he advanced.

"Reappointment is essential on account of this provision which provides for a tenure of 4 years or until the age of 65 or 70, whichever is earlier. Without reappointment, not a single person would apply...also, in making the reappointment, the SC judge is to get inputs from the chairman of the tribunal himself, on factors of competence, polite behaviour to lawyers and litigants and other parameters of a good judge", said the AG.

Moving further, the AG addressed the contention that out of the 19 tribunals, in all the18, with the exception of the DRT, the Vice Chairman and the Member can only be a HC judge, and considering that a judge retires at the age of 62 years, then by virtue of this Rule, he would only get 3 years in office.

Quoting from Roger Mathew, he argued that the court had, in that case, been of the view that the tenure of Members of Tribunals as prescribed under the Schedule of the 2017 Rules (of 3 years) is anti-merit and attempts to create equality between unequals. "A tenure of three years may be suitable for a retired Judge of High Court or the Supreme Court or even in case of a judicial officer on deputation. However, it will be illusory to expect a practising advocate to forego his well-established practice to serve as a Member of a Tribunal for a period of three years...In the light of the discussion as aforesaid, we hold that the Rules would require a second look since the extremely short tenure of the Members of Tribunals is anti-merit and has the effect of discouraging meritorious candidates to accept posts of Judicial Members in Tribunals", he recited from the 2019 judgment.

"They said that the tenure should be longer. So we made it 4 years. If you serve well, you could continue indefinitely...on the contrary, suppose a man is 45 when he is appointed, and if we were to give him a 7 year tenure, he would retire at the age of 52!", contended the AG. "But one cannot be appointed at the age of 45", pointed out the bench.

Besides, the provision in the 2020 Rules allowing the Committee to recommend a panel of 2-3 suitable candidates to the government for each post was challenged. "There is no substance in the argument that if the government is given the choice to select, it will affect the independence of the tribunal...There are 50-60 applicants. There is no IB inquiry report at that initial stage. It is only when the candidate is shortlisted by the Committee that the inquiry report is looked at. And the panel so recommended need not have 3 candidates, even 2 can be selected...you have to give the government some credit, that it is not doing anything wrong", advanced the AG.

Moreover, Rule 4(3) provides that no appointment shall be called into question on account of any vacancy in the search-cum-selection committee. Last week, it was argued that there may be a situation where an appointment is made by the government, even though the post of the SC judge itself is vacant and on that ground, it was sought that the Rule be struck down. "The absence of the chairman of the SCSC can't be contemplated. The Committee is convened only when the SC judge directs the date, time and the place of meeting. It is he who controls the affairs of the committee, not the secretaries to the government...if on any day, the SC judge is unwell, the secretaries would adjourn the meeting...one can't think of an extra-ordinary circumstance and create a bogie...one can't contemplate an event of the SC judge being absent and any appointment still being made and argued to be valid...", he argued.

In response to the impropriety of a retired HC judge being interviewed by the secretaries to the government, the AG advanced that retired HC judges even come to the SC to practice, and as such fall in the category of advocates and accordingly, have to be treated alike. "When we advocates can answer questions in an interview, why can't they? Anyway, the SC judge, presiding over the committee would ensure that they are treated with respect", advanced the AG.

"They cannot claim the status of a HC judge. They cannot claim housing etc. Otherwise, the advocates who are being recruited as members would also demand a house, car etc same as the retired HC judge...though they will be treated with respect, they are as good as advocates now...even if it is a retired SC judge (who is presiding a tribunal), his decisions would be subject to judicial review by a division bench of the HC", submitted the AG.

He indicated that in Roger Mathew, the Constitution Bench had observed that it is hence essential that the Union of India abide by the spirit of the Constitution in respecting the difference between constitutional functionaries and statutory authorities, and ensure that judges of High Courts and the Supreme Court are kept on a separate pedestal distanced from any other Tribunal or quasi-judicial Authority. "Your Lordships had reiterated the observation in L. Chandra Kumar that Tribunals are not substitutes of Superior Courts and are only supplemental to them. Your Lordships noted that the status of members of such Tribunals cannot be equated with that of the sitting judges of Constitutional Courts else, as V.R. Krishna Iyer, J. aptly pointed in his article titled 'Why Stultify Judges' Status?', 'Creating deemed Justices of High Courts with equal status and salaries suggests an oblique bypassing of the Constitution….'", urged the AG in reference to the 2019 decision.

"After retirement, one is not entitled to the perquisites of a HC judge. There are 19 tribunals, with branches all over the country. It is not possible to find houses for the members all over the country. It will be a drain on the resources... Even SC judges, when they first come to Delhi, have to live in guesthouses, or their Bhavans, and have to wait before they get a house...", argued the AG.

On the objection to the presence of two secretaries on the SCSC, the AG argued that the 2017 Rules, which were struck down, provided for a SC judge and two secretaries. The Rules have now been amended to provide for a SC judge, the Chairman/outgoing chairman of the tribunal and two secretaries to the government, and the casting vote is given to the SC judge. "To have 2 SC judges on the committee would impede the disposal of cases and the work of judicial adjudication in the SC. There are 19 tribunals, and as and when a chairman, vice-chairman or other member retires in any of them, the vacancy has to be filled in then and there...we cannot allow the present situation to prevail. Right now there is a delay on the part of the government...but in the case where the chairman himself has asked for reappointment, a judge from the SC may be brought in to meet the necessity", argued the AG.

"A National Tribunals Commission was suggested by L. Chandra Kumar? Why don't you suggest that to the government?", asked Justice Rao.

"The NTC would be conducive to the effective and independent functioning of the tribunals. It will know when a vacancy arises and an appointment needs to be made, when the budget is over and more funding is needed. I think it is necessary. I will suggest this to the government" assured the AG.

In so far as the new Rules exclude advocates from considered for appointment to single-member tribunals like the DRT, DRAT, Airport Appellate Tribunal and the Industrial Tribunals, the AG explained that since these tribunals comprise only of the chairman, a lawyer with no experience in adjudication is not deemed suitable. "But when a judicial officer, having dealt with all sorts of disputes, is made the member, he learns over time and becomes competent to adjudicate such matters", added the AG. "Sampath Kumar said that he can then even become chairman or vice-chairman...even lawyers elevated as HC judges are made to sit as juniors and circulated among benches to procure experience in commercial law etc. So to get an advocate directly in the seat of chairman of a tribunal, without any experience of adjudication would be counter-productive", he advanced.

"DRATs were originally to have ILS officers. We struck that out and now only HC judges are considered. In addition, to be presiding officer of a DRT, one needs 4 years' experience as a district judge or 6 years' as as an ADJ. So even a ADJ with sufficient experience can be considered...So far as the Industrial tribunals are concerned, the Industrial Disputes Act itself calls for a retired DJ or a HC judge", pressed the AG.

On the issue of retrospective application of the 2020 Rules, the AG advanced that the 2017 Rules themselves were notified on 1.6.2017, while the Appointed Date per the Finance Act is 26.5.2017. "So there was an effective gap of 6-7 days before the Rules were published. But by virtue of section 183 of the Act, these Rules came into force from the Appointed Day itself! It is this provision which carries the retrospectivity. There need not be an independent section to provide for retrospectivity (as is the case with the CGST Act, which was pointed out by Mr. Datar)...so the 2020 Rules, published on 12.2.2020, have to take effect from 26.5.2017...the whole set of 2017 Rules was wiped out, which created a vacuum that the court had filled temporarily by the Parent Acts and the old Rules made thereunder . It is now to be filled by these 2020 Rules", urged the AG.

"The purpose is to integrate the varied rules governing the conditions of appointment, selection, qualifications, tenure, salaries, removal and other terms of service in the different tribunals, and to provide a homogenous set of rules for all tribunals on an equal basis", he stressed.

On the eligibility of ILS officials to be appointed as judicial members, he advanced, "We gave them the right to be appointed, but the 2010 R. Gandhi judgment said they can be considered only for technical posts. To be appointed as an ILS officer, one needs to have an experience of 10-13 years as an advocate. These are persons who then subsequently acquire varied experience, as AORs and having the right to argue before courts, besides additional qualifications and reach the status of the Additional Secretary to the government, which takes 20-25 years. So considering a person joins the profession at 23 and is recruited into the ILS after 13 years, he will be 55 by the time he reaches this stature. One is even appointed as a HC judge when one crosses the age of 45!", he argued.

"These are people who come and instruct us everyday. Now the Rules qualify them to be appointed as Judicial Members, but some people are arguing against it?", he urged, pointing out that even the present Director of Prosecution, CBI is an ILS officer.

At this point, Justice Rao asked about a bar officer who had been appointed to the DRT. "If he went to the DRT, he would have gone as an advocate?", asked Justice Bhat. "Yes, previously", replied the AG. "So what is the logic in deleting advocates now?', asked the judge. "The new regime is an improvement. It has a district judge doing similar work at the helm of the DRT", replied the AG