'They Can't Violate Court Order Again & Again': Madras Bar Association Seeks Stay Of Tribunals Ordinance; Supreme Court To Consider Next Week

The Supreme Court on Monday decided to hear after a week the plea filed by Madras Bar Association challenging the Tribunals Reforms (Rationalisation and Conditions Of Service) Ordinance 2021 to the extent it amends section 184 and 186 of the Finance Act 2017.

A bench comprising Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat observed that they will hear the main matter challenging the ordinance in one week and pass orders.

"It would be better if we finally hear this matter on Monday. As AG also said, once ordinance issue is decided, everything else will fall in place", the bench said.

The Court decided so, after asking Senior Counsel Arvind Datar appearing for the petitioner and Attorney General KK Venugopal, if they would be ready to argue the matter next week.

During the hearing, Senior Advocate Arvind Datar submitted that in the present matter, there is a very strong case for stay of the ordinance, even though a stay is an extraordinary step. However, considering the fact that the Ordinance contravenes several binding precedents of the Supreme Court, Datar said that a stay is called for to bring "some kind of sanctity to the system".

"This isn't permissible and they cannot violate order of this court again and again. There's a limit to any kind of disobedience of the Court's orders. This is not the way a government can function." Datar said.

It may be noted that in  November last year, the Supreme Court, finding several faults with the 2020 Tribunal Rules, issued a slew of directions to modify them in an earlier case Madras Bar Association vs Union of India.  Later, the Centre promulgated the 2021 Ordinance, purportedly in compliance with the SC directions. This Ordinance has been challenged by the Madras Bar Association contending that it violates the SC directions.

Datar also submitted that the ordinance need not be an impediment in continuing appointments. Whatever may be outcome of this ordinance, people appointed before this will continue.

The Bench noted that an interim application has been filed by the Union seeking some clarification.

The applications have both been listed along with the writ petition next week.

 Interim Application Filed Regarding Appointments to ITAT

Sr Adv Krishnan Venugopal appearing for Advocates Association Bangalore  informed the Bench that the application concerns appointment to the ITAT.

"The Court had previously asked the AG to consider making the appointment pursuant to process which had already been completed as of September 2019 and recommendations forwarded to the government by the search-cum-selection Committee."Sr Adv Krishnan Venugopal said

The Bench then asked about the number of posts advertised and the number of members appointed, if there was a selection in 2019.

Adv Rahul Kaushik apprised the court that 37 posts were advertised, including 21 Judicial Members and 16 Accounting members. The Search committee had recommended 30th November 2019 made the recommendations.

Sr Adv Krishnan Venugopal submitted that as of now, 76 posts out of 126 are filled. There are 50 vacancies including 24 judicial and 26 of accounting. In the next few months , further 10 people are going to retire.

Sr Adv Krishnan Venugopal pointed out that  Supreme court's order had noted the Attorney General's submission that recommendations of the search cum selection committee 'shall be implemented' by the Central Government. Further, he said that the Court had directed that the government shall make appointments to Tribunals within three months, after the Selection committee makes its recommendations.

Sr Adv Krishnan Venugopal submitted that once the court issued a mandamus after finding the law, then the Union has no option but to follow it.

Justice Nageswara Rao however stated that for this, the writ petition challenging the Ordinance needs to be heard.

Sr Adv Krishnan Venugopal stated that the fact of the matter is there is no overriding provision, that overrides the Supreme Court's judgement. He added that the Supreme Court's judgement came in and specifically issued a direction that appointments shall be made.

In response to the Court's query as to whether the advocates are eligible in terms of the 2020 rules, Mr Venugopal stated that at the time of the selection process, they were fully eligible, and the Supreme Court's judgement gives a direction in those terms 'at the time of selection'.

He added that those recommendations were made before the amendment, and the court expressly directed that these appointments be made, on the Attorney General's statement.

"Firstly, the act as it stands is completely prospective. Secondly , there is only one overriding effect provision as far as the judgement is concerned. "Sr Adv Krishnan Venugopal submitted.

"What you are not realising is that according to the ordinance, no one below 50 can be appointed, that's the point that they will argue and that has to be heard in the writ petition ( referring to Plea by Madras Bar Association). We thought in the meanwhile some appointments can be made that's why we were trying to hear the IA. We will list your IA with the writ" Justice Nageswara Rao said.

Mr Venugopal submitted that if there is a mandamus which has been issued, and could have been fulfilled in February, an ordinance which has come in April cannot override the judgement.

 The bench then asked Attorney General's response to Mr Krishnan Venugopal's argument that since selections were commenced early, they cannot be covered by this ordinance, as a mandamus had been issued by the court.

AG Venugopal said that he will respond to the application. The Bench therefore issued notice in the application, and asked AG to find out about this issue as well.

"We'll hear this matter and put an end to this" the Bench later noted.

Plea By Bar Association Railway Claim Tribunal :

The same Bench on Monday while hearing plea by the Bar Association of Railway Claim Tribunal seeking appointment to vacant post of judicial members of tribunal, directed the appointment of 4 Judicial members as approved by Appointment committee of Cabinet be made at the earliest. However, on the issue of term of such members, the Court said that there tenure shall be fixed subject to result of petition filed by Madras Bar Association.

The Bench noted that concern has been expressed in relation to tenure of members to be appointed. The ordinance promulgated states tenure of members as 4 years, while according to the Court's order it's 5 years. 

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