'Excludes Young Successful Advocates; Arbitrary & Discriminatory' : Supreme Court Strikes Down Minimum Age Limit Of 50 Years For Appointment As Tribunal Members

The Supreme Court has held by 2:1 majority that the minimum age limit of 50 years prescribed by the Tribunals Reforms(Rationalization and Conditions of Service) Ordinance 2021 for appointment as members in various tribunals to be "arbitrary and discriminatory".

The majority comprising Justices L Nageswara Rao and S Ravindra Bhat observed that this minimum age stipulation of 50 years introduced by the Ordinance violated the earlier direction given by the Court in the 2020 Madras Bar Association case that advocates with minimum experience of 10 years should be made eligible for appointment as members of tribunals.

The 3-judge was delivering judgment in the fresh writ petition filed by Madras Bar Association this year challenging the Tribunals Reforms Ordinance. Justice Hemant Gupta dissented from the majority and dismissed the writ petition.

This minimum age stipulation was brought in through first proviso to Section 184(1) of the Finance Act 2017 which was added through the amendment effected by the Tribunals Reforms Ordinance passed in 2021.

Holding this provision to be unconstitutional, the judgment authored by Justice Nageswara Rao said :

"Fixing a minimum age for recruitment of Members as 50years would act as a deterrent for competent advocates to seek appointment. Practically, it would be difficult for an advocate appointed after attaining the age of 50 years to resume legal practice after completion of one term, in case he is not reappointed. Security of tenure and conditions of service are recognised as core components of independence of the judiciary. Independence of the judiciary can be sustained only when the incumbents are assured of fair and reasonable conditions of service, which include adequate renumeration and security of tenure. Therefore, the first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in MBA-III has been frustrated by an impermissible legislative override. Resultantly, the first proviso to Section 184 (1) is declared as unconstitutional as it is violative of Article 14 of the Constitution".

Also Read - Tribunals Reforms Ordinance : Certain Points Of Concern

Age limit of 50 years excludes young successful advocates from the zone of consideration

Justice Ravindra Bhat wrote a separate but concurring judgment, which elaborated why the minimum age limit for 50 years for appointment as members in tribunals is arbitrary and irrational. Justice Bhat pointed out that as per the Constitution, an advocate with experience of 10 years is eligible to be appointed as a High Court. An advocate with 7 years' practice with the Bar can be considered for appointment to the position of a District Judge. Hence, this prescription of 50 years as minimum age for appointment in tribunals was lacking in rationale.

"Prescribing 50 years as a minimum age limit for consideration of advocates has the devastating effect of entirely excluding successful young advocates, especially those who might be trained and competent in the particular subject(such as Indirect Taxation, Anti-Dumping, Income-Tax, International Taxation and Telecom Regulation). The exclusion of such eligible candidates in preference to those who are more than 50 years of age is inexplicable and therefore entirely arbitrary", Justice Bhat said.

"Prescribing 50 years' minimum age as a condition for appointment to these tribunals is arbitrary also because absolutely no reason is forthcoming about what impelled Parliament to divert from the long-established criteria of giving weigh-age to actual practice, reputation, integrity and subject expertise, without a mini-mum age criterion, in the pleadings in this case, nor in any other cases", he added.

Justice Bhat said that the consideration of such younger advocates in the age group of 40-45 years would have long term benefits since the do-main knowledge and expertise in such areas (Telecom Regulation, Taxation –both Direct and Indirect, GATT Rules, International Taxation etc.) would be useful in adjudication in these tribunals and lead to a body of jurisprudence. Depending on how such counsel/advocates fare as members of the Tribunal, having regard to their special knowledge of these laws, at a later and appropriate stage, they may even be considered for appointment to High Courts.

Anomalous results of the age limit of 50 years

"The age criteria, impugned in this case also leads to wholly anomalous and absurd results. For instance, an advocate with 18- or 20-years' practice, aged 44years, with expertise in the field of indirect taxation, telecom, or other regulatory laws, would be conversant with the subject matter. Despite being eligible, (as she or he would fulfil the parameters of at least 10 years' practice, in the light of the decision in MBA-III) such a candidate would be excluded. On the other hand, an individual who might have practiced law for 10 years, and later served as a private or public sector executive in an entirely unrelated field, but who might be 50 years of age, would be considered eligible, and can possibly secure appointment as a member of a tribunal. Thus, the age criterion would result in filtering out candidates with more relevant experience and qualifications, in preference to those with lesser relevant experience, only on the ground of age"

Age limit 'virtually picked from a hat' and has no 'rational nexus'.

"..the qualification of a minimum age of 50 years as essential for appointment, is discriminatory because it is neither shown to have a rational nexus with the object sought to be achieved, i.e. appointing the most meritorious candidates; nor is it shown to be based on any empirical study or data that such older candidates fare better, or that younger candidates with more relevant experience would not be as good, as members of tribunals. It is plain and simple, discrimination based on age. The criterion (of minimum 50 years of age) is virtually "picked out from a hat"40 and wholly arbitrary".

No equivalence between members of civil service and legal professionals

The Attorney General sought to justify the condition by arguing that it was intended to bring parity with the members of civil service. Justice Bhat said that legal professionals and members of civil service cannot be equated.

"..a civil servant's experience,though varied and diverse – ranging from co-ordination and administration at taluk, district and state levels, to devising, framing and implementing thegovernment's policies and programmes, to managing statutory corporations and even commercial enterprises of the state, does not always entail adjudicator yfunctions. However, legal practitioners, chartered accountants and one segment of civil servants, i.e. tax administrators and adjudicators are involved in the day today interpretation of law, leading to adjudicatory outcomes. Such being the case,the equivalence of "status" of members of tribunals cannot be compared in a linear or rigid manner"

Justice Bhat's judgment issued the following declaration :

"As a result of the above discussion, the proviso to Section 184 (1), inserted by the impugned ordinance is declared void. A declaration is issued that all candidates, otherwise eligible on their merit, based on qualifications and experience in the relevant field, are entitled to be considered, without reference to the impugned "minimum" age (of 50 years) criteria"

It may be noted that the Union Government on June 30 issued a notification enabling appointment of Advocates with ten years experience as Judicial Members of various Tribunals. The said notification amended the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 in terms of the 2020 judgment in the Madras Bar Association case.

 In the Madras Bar Association judgment delivered in November 2020, the Supreme Court had observed that the exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members is contrary to the judgments in Union of India v. Madras Bar Association (2010) and Madras Bar Association v. Union of India. The court had opined that, since the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal.

Other provisions of Tribunals Ordinance 2021 held unconstitutional

The majority also held the following conditions laid down by the Tribunals Ordinance 2021 through its amendment to the Finance Act 2017 as unconstitutional :

• The provisions fixing the term of Tribunal Members as 4 years struck down being contrary to the direction in earlier cases that the term should be 5 years.
• The provision prescribing that the Search cum Selection Committee will recommend two names for each post struck down being contrary to the direction in previous judgments that the committee should only recommend one name for each post.
• The provision prescribing that the Union Government should make appointments "preferably within three months" of recommendation by the Search-cum-Selection committee struck down as the earlier judgment in Madras Bar Association Case had issued a mandatory direction that the appointments should be made within 3 months of recommendation by the Search-cum-Selection Committee.
  
  
  

Justice Rao concluded his judgment by saying :

"...the first proviso and the second proviso,read with the third proviso, to Section 184 overriding the judgment of this Court in MBA-III in respect of fixing 50years as minimum age for appointment and payment of HRA,Section 184(7) relating to recommendation of two names for each post by the SCSC and further, requiring the decision to be taken by the Government preferably within three months are declared to be unconstitutional. Section 184(11)prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule oflaw and Article 14 of the Constitution of India. Though, we have upheld the proviso to Section 184(11), the appointments made to the CESTAT pursuant to the interim orders passed by this Court shall be governed by the relevant statute and the rules framed thereunder that existed prior to26.05.2017. We have already taken notice of the notification dated 30.06.21 by way of which Rule 15 of the 2020 Rules dealing with HRA has been amended in conformity with our directions in MBA-II".

Justice Bhat concluded his judgment as :

(i) The first proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service)Ordinance, 2021 is hereby declared void and inoperative. Similarly, the second proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is held to be void and inoperative.

(ii)Section 184(7) of the Finance Act, 2017, introduced by of the Finance Act,2017 introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is hereby declared void and inoperative.

(iii) Section 184(11)(i) and (ii) introduced by Section 12 of the Tribunals(Reforms Rationalisation and Conditions of Service) Ordinance, 2021 are hereby declared as void and unconstitutional.

(iv)Consequently, the declaration of this Court in para 53(iv) of MBA-III shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of aTribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.

(v)The retrospectivity given to the proviso to Section 184(11) – introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service)Ordinance, 2021 is hereby upheld; however, without in any manner affecting the appointments made to the post of Chairperson or members of various Tribunals,upto 04.04.2021. In other words, the retrospectivity of the provision shall not in any manner affect the tenures of the incumbents appointed as a consequence of this Court's various orders during the interregnum period.

Senior Advocate Arvind P Datar led the arguments for Madras Bar Association. Attorney General for India KK Venugopal appeared for the Union Government.