The Tenure Of Tribunal Members Will Be 4 Yrs Plus Re-appointment: AG KK Venugopal Submits Before SC On Behalf of Centre

The Bench of Justices L. Nageswara Rao, Hemant Gupta and Ravindra Bhat are hearing the matter.

"A question was raised whether law officers, who are appointed as members of tribunals, would retain their license to practice...prior to 2001, Rule 49 of the Bar Council of India Rules, allowed even those with full-time salaries to retain their licenses. Post 2001, this category was taken away...", began ASG Balbir Singh, referring to the 2013 judgment of the apex court in Deepak Agarwal's case where the appointment of law officers of the government, who appear before courts on behalf of their employers, to the higher judicial services was considered.

"Officers of ILS are of two kinds- one, the members who practice in courts, and then there are those who don't. The former would come within the category of "advocates". So we don't have to say that ILS members are per se ineligible to be judicial members", observed Justice Hemant Gupta.

"Does ILS have any lawyers allowed to practice outside? Like in High Courts?", asked Justice L. Nageswara Rao.

Mr. Singh relied on the 1987 S. P. Smpath Kumar and the 2002 Delhi High Court Bar Association cases to assert that ILS members have been held to be eligible.

"How do you respond to Justice Gupta's question? Only those who practice in courts can be considered "advocates", not others?", asked Justice Rao.

"Suppose a member of the ILS worked as a lawyer for 15 years and then he was deputed elsewhere. He will still qualify on completion of 25 years", advanced Mr. Singh.

"But only the lawyers who continue to practice and have proficiency in a field can be hired?", ventured Justice Rao.

"The specialisation is needed only for advocates and not for ILS members", replied Mr. Singh.

"How can you make this distinction for judicial members? Appoint an ILS member with no experience in that field at all?", asked the bench. "An advocate is required to have experience of appearing before the ITAT, but not an ILS member?", the court inquired.

"There was in fact a member of the ILS who was appointed as the judicial member of the ITAT, who went to become a High Court judge, and finally retired as the Chief justice of the Gujarat high court...", advanced Mr. Singh.

"If your effort is to have ILS members considered for judicial posts, will that not be contrary to the constitution bench decisions? How do you get over that?", asked Justice Rao.

"Sampath Kumar upheld appointment of ILS members as members (judicial) of CAT. L. Chandra Kumar said we better leave it to the Search cum Selection Committee as to whether ILS officers can be judicial members or technical members...I suggest even if ILS officers cannot be considered for the posts of members (judicial), it be left to the SC", he advanced.

"It is first about finding them eligible, and then about whether they are suitable...Madras Bar Association says ILS members cannot be considered...", observed Justice Rao.

"The 2010 Madras Bar decision says that only judges and advocates can be considered for appointment, and that ILS Grade I officers cannot be considered....but they were dealing only with the NCLT/NCLAT there. And also, only Grade 1 is restricted, while the new Rules speak of Additional Secretary and above......if someone is found fit, and someone is working in the central agency of the Supreme Court as an employee, and has completed 25 years, I think we should leave the decision to the SCSC. The test is only that of judicial independence", he repeated.

Mr. Singh concluded his submissions, raising the case of retired Delhi High Court Justice Manmohan Singh, having been appointed as the Chairman of the IPAB, whose term has been extended by 3 months recently by the Court, and if the 2020 rules sustain, he can continue uptil the age of 67 years, holding office till 2021.

Next, ASG S. V. Raju drew the bench's attention to the CESTAT, having been constituted under section 129(1) of the Customs Act.

He advanced that prior to the 2017 Rules, the recruitment to the tribunal was governed by the CESTAT Members (Recruitment and Conditions of Service) Rules. He referred to Rule 10 to indicate that the tenure was until the age of superannuation, that is, 62 years. Further, by operation of section 175 of the Finance Act 2017, a new sub-section (7) came to be added to section 129, stipulating that the qualifications, appointment, tenure, salaries, removal and terms and conditions shall be governed by section 184 of the Finance Act.

"Section 175 says two things- that from the date of commencement of part 14 of Chapter 6 of the Finance Act (AMENDMENTS TO CERTAIN ACTS TO PROVIDE FOR MERGER OF TRIBUNALS AND OTHER AUTHORITIES AND CONDITIONS OF SERVICE OF CHAIRPERSONS, MEMBERS, ETC.), the qualification, appointment and tenure will be governed by section 184. And before the appointed day, the old Rules shall hold fort", he explained.

"Section 184 is on the power of the central government to make rules governing qualifications, tenure, salaries, removal, appointment, terms and conditions of service...the tenure of service may be such which is fixed by the rules of the central government, but cannot be more than 5 years, subject to reappointment, and the age of 70 years, as in the case of the chairman, and the age of 67 years, in the case of members...", he advanced.

"Now, the 2017 Rules were struck down in Roger Mathews. As regards the inapplicability of the 2020 Rules because of their restrospectivity, I wish to submit that they don't provide for their coming into force from an earlier date", conteded Mr. Raju.

"The AG said they are dated back to before the date of notification", pointed out Justice Rao.

"Assuming that the Rules date back to the appointed date, it is not provided in the Rules but in the statute", contended Mr. Raju.

"Section 183 of the Finance Act provides that the provisions pertaining to the making of rules shall apply on and from the appointed date. And the provisions for making the rules are contained in section 184. So a combined reading of section 183 and 184 would suggest that it is the statute which makes the rules operate from an earlier date", argued Mr. Raju.

"And 184 was upheld while the Rules were struck down (in Roger Mathews)", confirmed Justice Rao.

"Yes, but not on the ground of retrospectivity", said Mr. Raju.

"We are still not clear on this. 183 provides for 184 to apply from the appointed day. 184 empowers the Central government to make rules. So the 184 Rules would apply from the appointed day because of 183? But those Rules are not there now!", noted Justice Rao.

"No, but the new Rules are also under section 183", replied .Mr. Raju.

"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 that 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.", Mr. Raju quoted from Rojer Mathews.

"So liberty was granted to seek modification, which means the Rules come into force on the appointed date...Acts of legislature can be retrospective, either in plain terms or by necessary implication...if the intention was not to give the rules retrospective effect, the Act would not have said 'appointed day' but the day the Rules are framed...the legislature know that the Rules are not in existence and that they would come into existence on a later date, and it was the intent of the legislature to give them retrospective effect", suggested Mr. Raju.

He sought to cite a case-law to show that curative legislation, which these Rules are, is always retrospective.

"Is the case about curative subordinate legislation? Because if it's about curative plenary legislation, it is already established that the same would be retrospective...", observed Justice Bhat, adding that Mr. Raju's argument was based on a textual interpretation of 'appointed day'.

"All these District Judges who are appointed to Tribunals, can they continue to hold their post in the parent department (where their tenure ends before the age of superannuation, and they are not eligible for re-appointment)", asked Justice Rao.

"Like members of the Indian Revenue Services hold lien on their parent department and they can go back. Would it apply to District Judges also?", asked Justice Bhat.
The bench was informed that the DJs come only on deputation and for specific-periods.

Thereupon, Senior Advocate Arvind Datar began his rejoinder submissions: "The tenure of members cannot be less than 5 years. The 5 years' term is non-negotiable. From Sampath Kumar, the Supreme Court has been saying the term has to be between 5 to 7 years. And now the government has brought it down to 4 years...", he advanced.

"Can you agree on 5 years? 184 says maximum 5 years or till the age of 62, whichever is earlier. So why not consider the 5 years' term?", the bench inquired from AG K . K. Venugopal.

"We have made the provision of 4 years, with re-appointment. One shall be eligible for re-appointment unless adverse remarks, pertaining to independence etc, have been made...so an advocate who joins the profession at the age of 23, is eligible to be appointed after 25 years of experience, at the age of 48, and can continue to hold the post till 65 years of age", responded the AG.

"The AG is saying 4 years plus re-appointment. 25 years of experience is the eligibility for a lawyer who starts his career at 22, 23. So he will be appointed by the time he is 47, 48, and he can hold the post for 2-3 tenures", explained Justice Rao.

"I think we should give credit to the AG, who is heeding suggestions and agreeing to make amendments in the course of the hearing", Justice Rao added.

"What is the point in making the tenure 3 years first, then 4 and then 4 plus renewal? I am grateful he said that 4 can be 5. Roger Mathews also says that 5 is needed. But since an advocate who joins at 47 is not going out at 51, 4 is justified..", submitted Mr. Datar.

"Rule 9 of the 2017 Rules provides that the appointee would be eligible for re-appointment. But that is missing in the 2020 Rules", he continued.

"Does 184 provide for reappointment?", asked Justice Gupta.

"No. And this provision can't be read into the Rules", replied Mr. Datar.

At this point, the AG interjected to sumit, "There will be reappointment. My submission may be recorded on behalf of the Government of India. The tenure will be 4 years plus reappointment by a Committee headed by a Supreme Court judge".

Mr. Datar continued, "Rule 1(2) of the 2020 Rules says that Rules come into force with effect from 12.2.2020,. There is nothing in the Finance Act, 2017 which allows retrospective application of the Rules. In contrast, see section 164 of the CGST Act, 2017, which provides specific powers for Rules to be brought into effect with retrospective operation. In the absence of such specific power, retrospective applicability is not possible", he urged.

Next, Mr. Datar argued that the prerequisite of 25 years of substantial experience in the relevant field may be reduced, considering that advocates are not the only ones appointed.

"To be appointed as High Court judges, 10 years' experience as a lawyer is needed. But that does not mean that people are immediately appointed on completion of 10 years. At 25 years of experience, the pool of consideration is substantially reduced. Reducing 25 to 10-15 years would increase the number of candidates substantially...the importance of advocates' experience was emphasised in Sampath Kumar which said that lawyers who could become HC judges should not be barred from applying for the post of Tribunal members", he advanced.

"Many members of the bar have called me to urge that the years of experience is reduced to 15 years. An advocate, at the age of 50, will be reluctant to leave the profession. As people with 15-16 years of experience would be eligible for appointment at the age of 41-42, they may opt to leave Also, at 15 years of experience at the bar, more lawyers would be interested, and their tenure would also be longer...there will be a wider pool of talent to pick from", he advanced.

"Besides, the SEBI Appellate Tribunal, the TDSAT, the Electricity Appellate Tribunal, the NGT are not even 25 years old...so how to have substantial experience of 25 years in these fields?", he asked.

"Also, experience in company law broadly should count and not just before the NCLT/NCLAT", he continued.

"Even those dealing in Securities law would go to the NCLT", noted Justice bhat.

"In places like Madras, Cochin, Ahmedabad, Janbalpur, all lawyers engage in a wide range of fields of practice...there is no survival otherwise...so there is no specialization...", Mr. Datar pointed out.

Proceeding further, Mr. Datar submitted that even lawyers practicing regularly before the Armed Forces Tribunal cannot become members.

"That provision was never there. The SG explained that they don't want civilians at the AFT", said the bench.

"Your Lordships may give it a thought as only 5-6 % of matters are of a critical nature of court martial. 80-85% of the matters are service-oriented...", replied Mr. Datar.

"ILS has 3 categories- one, cadre of legal advisors in the main secretariat and branch secretariats; two, officers in the Law Commission; three, government advocates in the central agency section, that is, the supreme court.

"There are government advocates of the senior cadre in the Central Agency, who don't appear before the court, and only instruct the panel counsel and law officers", advanced Mr. Datar.

"Instructing is also practicing", ventured Justice gupta.

"Would Your Lordships consider procuring brief or chamber work as practice? And then in that case, since practising advocates are required to have 25 years' experience, would an ILS member who is not in domain practice also be considered to have that much experience? ...Madras Bar Association said they can be technical members but not judicial members", argued Mr. Datar.

"A member of ILS, being a government advocate, will be at par with the advocate practising for 25 years in that field. Only the judicial window is closed", he advanced.

The hearing remained inconclusive on Friday