Rajasthan HC Issues Notice In Plea Challenging Vires of Age Restriction of 50 Years Under Tribunals Reforms Act, 2021 For Appointment of Chairperson(s)/ Member(s)

The Rajasthan High Court has issued notice in a plea challenging vires of age restriction of 50 years prescribed by proviso to Section 3 (1) of Tribunals Reforms Act, 2021 for appointment of Chairperson(s) or Member(s) of the Tribunals.

The plea has been filed by one Jaipur based advocate Rekha Madnani, who claims to have put in more than 20 years of professional practice and is thus alleged to have qualified to be appointed as Judicial 26 Member in Railway Claim Tribunal.

According to proviso to Section 3(1) of Tribunal Reforms Act, 2021, eligibility qua age has to be seen on the date of appointment. The plea states that vacancy circular issued by Respondent No.2 did not indicate any cut-off date on which age of candidate is to be seen, which only meant age of incumbent has to be seen on the date of appointment and not at any time prior to it and because

Clause 3 of the vacancy circular dated 18.9.2021 stated that qualifications, eligibility, salary and other terms and conditions of the appointment will be governed by provisions of Tribunal Reforms Act, 2021 and Tribunal (Conditions of Service ) Rules, 2021, which, as per the petitioner, meant that age is to be seen on the date of appointment and not at any time prior to it. The petitioner states that she applied for the post of Judicial Member by submitting an application on 11.11.2021,when she was 49 years 7 months and a few days of age, while th e last date of receipt of application was 18.11.2021.

Apprehending that case of petitioner may be excluded from consideration on the premise that she had not completed 50 years of age on the last date of receipt of application form, petitioner sent a letter to Under Secretary (Service Matters), Railway Board on 1.5.2022 inviting his attention towards the fact that eligibility of the candidate has to be seen on the date of appointment and not any time prior to it and that she was eligible to apply.

The plea states that the petitioner have learnt that certain candidates who had applied for the post of Judicial Member, RCT have been sent "Attestation Form" to be filled in by them, whereas petitioner has not been sent any such form to be filled in by her, which clearly indicate that her candidature is not being considered by the Respondent No.2.

Further, the plea alleged that an identical provision was declared unconstitutional, void and inoperative in the eyes of law by the Apex Court in Madras Bar Association Vs Union of India, ]wherein Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021 was under challenge. Thus, the petitioner argued that when identical provisions have been declared unconstitutional, void and inoperative under Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021, the same could not have been reintroduced by way of enactment.

Moreover, the plea states,

"That, the impugned provision is contrary to the basic structure doctrine and is therefore invalid in eyes of law. Independence of Judiciary is one of the tenets of basic structure doctrine. Once highest court of land has declared a particular provision unconstitutional, legislature or the executive could not have transgressed the judgment passed by the Honourable Supreme Court of India. Impugned provision being in teeth of judgment passed by Honourable Supreme Court is void and inoperative in eye of law and thus deserves to be declared unconstitutional."

The plea also states,

"That, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training has also issued a vacancy circular on 4.4.2022 for appointment of Judicial Members in Central Administrative Tribunal wherein it has been specifically stated that age of 50 years has to be seen on the last date of receipt of application whereas there is no such restriction under the vacancy circular dated 18.9.2021. Thus, in absence of any restrictions under the latter, petitioner's candidature cannot be refused to be considered on the premise that on the last date of receipt of application, she was not 50 years of age."

Case Title: Rekha Madnani v. Union of India

Counsel for Petitioner: Advocate Sunil Samdaria

Case No.: CMS/ 6974/ 2022