SABU PULLAN V. UNION OF INDIA

WP(C)/13593/2020

AI Insights

The case involves two writ petitions filed by C.R. Sivakumar and Sabu Pullan challenging the constitutional validity of certain provisions related to the appointment of judicial and administrative members in the Central Administrative Tribunal (CAT). The petitions contested the Finance Act, 2017, and the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, arguing that they unconstitutionally restrict the eligibility of advocates for appointment as judicial members in tribunals. The High Court of Kerala, referencing a Supreme Court decision, upheld the amendments to the 2020 Rules which allow advocates with 10 years of practice to be considered for judicial member positions, thereby dismissing the petitions.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 675707 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 02-12-2020
• Assessment Year: misc
• Other Referred Cases: Madras Bar Association v. Union of India and another
• Laws Referred To: Finance Act, 2017, Administrative Tribunals Act, 1985
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR; SURIN IPE; ARAVINDAKUMAR BABU
• Assessee Lawyers: O V RADHAKRISHNAN; AVINASH RAVEENDRAN; K RADHAMANI AMMA
• Keywords: Appointment; Central Administrative Tribunal; Constitutional Validity; Qualification; Judicial members; Administrative members
• Section: 184; 183; 176; 6(2)(b)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942 WP(C).No.14794 OF 2020 (Y) PETITIONER: C.R.SIVAKUMAR, AGED 48 YEARS ADVOCATE, S/O.THE LATE G.RAVEENDRAKURUP, CRS ASSOCIATES, PADMA JUNCTION, M.G.ROAD, KOCHI, PIN - 682 035, RESIDING AT 16 JDD SILVER STONE APARTMENT, VADUTHALA VALAVU, VADUTHALA P.O., ERNAKULAM, PIN - 682023. BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.) SRI.AVINASH P RAVEENDRAN SMT.K.RADHAMANI AMMA RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF LAW AND JUSTICE (LEGISLATIVE DEPARTMENT), NEW DELHI - 110 001. 2 SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, NEW DELHI - 110 001. R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.12.2020, ALONG WITH WP(C).13593/2020(S), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942 WP(C).No.13593 OF 2020 (S) PETITIONER: SABU PULLAN, AGED 54 YEARS ADVOCATE, HOUSE NO.44/2000, PUTHIYA ROAD, L.F.C.ROAD VIA, KALOOR, ERNAKULAM, KOCHI-682017. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.S.K.ADHITHYAN SRI.GOKUL D. SUDHAKARAN RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001. 2 THE SECRETARY, MINISTRY OF LAW AND JUSTICE, A WING, RAJENDRA PRASAD ROAD, SASTHRI BHAVAN, NEW DELHI-110 001. 3 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4 THE SECRETARY(TRG. AND ADMN.) GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSIONS, NORTH BLOCK, NEW DELHI – 110 001 IS IMPLEADED AS ADDL R4 AS PER ORDER DATED 8/9/2020 IN I.A. NO. 1/2020 IN WPC R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R3 BY SRI.SURIN GEORGE IPE, SR.GOVT. PLEADER SRI.ARAVINDAKUMAR BABU, SR.GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.12.2020, ALONG WITH WP(C).14794/2020(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).14794/2020 & WP(C).13593/2020 :: 3 :: JUDGMENT [ WP(C).14794/2020 & WP(C).13593/2020] Dated this the 2nd day of December 2020 S.MANIKUMAR, C.J. The challenge involved in these public interest litigations is with respect to the constitutional validity of qualification and method of appointment of judicial and administrative members in Central Administrative Tribunal. Reliefs sought for in W.P.(C)No.14794 of 2020 are as follows: “ i) to declare that Sections 176, 183, 184 of the Finance Act, 2017 and Serial No.5-Central Administrative Tribunal under the Administrative Tribunals Act, 1985 in the Eighth Schedule appended to the Finance Act, 2017 in so far as they relate to the Administrative Tribunals Act, 1985 and the Central Administrative Tribunals as unconstitutional, ultra vires, void and inoperative; ii) to declare that Rules 3 and 4 of Exhibit P3 the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 and Serial No.5 - Central Administrative Tribunal under the Administrative Tribunals Act, 1985 (13 of 1985) insofar as they relate to the Central Administrative Tribunal as ultra vires, unconstitutional, void and unenforceable; iii) issue a writ of Mandamus or appropriate writ, direction or order directing the 1st respondent – the Union of India to strictly adhere to Section 6(2)(b) of the Administrative Tribunals Act, 1985 in the matter of appointment as Judicial Member without regard to Exhibit P3 Rules, 2020 and the Schedule thereunder insofar as they relate to appointment as Judicial Member under the Central Administrative Tribunal. ” 2. Reliefs sought for in W.P.(C)No.13593/2020 are as follows: “i) to declare that the qualification prescribed for appointment as Chairman, Judicial Member and Administrative Member of Central Administrative Tribunal under the Administrative Tribunals Act 1985 included as Sl.No. 5 in the Schedule framed as per Rule 3 and 4 of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules 2020 as unconstitutional; WP(C).14794/2020 & WP(C).13593/2020 :: 4 :: ii) to declare that the Lawyers with 10 years of practice in the High Court are also eligible for appointment as Judicial Members in the Central Administrative Tribunal constituted under Administrative Tribunals Act 1985; iii) to declare that the Secretaries and Additional Secretaries of Central and State Governments are ineligible to be appointed as Judicial Member or Administrative Member of Central Administrative Tribunal constituted under Administrative Tribunals Act unless they have a minimum service of 10 years in the cadre of Secretaries or Additional Secretaries.” 3. Learned counsel for the petitioners in these writ petitions submitted that the prayers sought for in both these writ petitions are covered by a decision of the Hon'ble Supreme Court in W.P.(C)No.804 of 2020 [Madras Bar Association v. Union of India and another]. 4. Heard learned counsel for the parties and perused the materials available on record. 5. We have gone through the judgment of the Hon'ble Supreme Court in W.P. (C)No.804 of 2020 [Madras Bar Association v. Union of India and another]. Relevant portion of the said judgment, reads as under: “ADVOCATES AS JUDICIAL MEMBERS 39. The learned Amicus Curiae complained of the deliberate exclusion of the Advocates from being considered for appointment as judicial members in a majority of Tribunals by the 2020 Rules. It was argued that in respect of seven tribunals (such as Central Administrative Tribunal, Income Tax Appellate Tribunal, Customs Excise and Sales Tax Appellate Tribunal, etc.), the 2020 Rules impose a new condition whereby Advocates without 25 years of experience are ineligible. It is submitted that there is nothing in the provisions of the Finance Act, 2017, with respect to exclusion, from consideration, of Advocates, nor any restrictive condition and, on the other hand, the parent enactments and previously existing rules enabled Advocates (who were eligible to be appointed as Judges of High Courts) to be considered for appointment for these tribunals. The WP(C).14794/2020 & WP(C).13593/2020 :: 5 :: learned Amicus curiae argued that it would be very difficult for competent and successful Advocates, in the concerned field, to uproot themselves and accept membership of tribunals, if they are to be eligible at the late age of 50 years and resultantly, those less competent would be willing, contrary to public interest. The Attorney General had submitted that exclusion of Advocates was a matter of policy and that the eligibility condition wherever they could be considered, in some tribunals of 25 years practice, was to bring about parity with members of the Indian Legal Service, who could, in some instances be considered for appointment as judicial members. During the submissions, the Attorney General had fairly stated that the 2020 Rules will be amended making Advocates eligible for appointment in the tribunals where they are presently excluded under the 2020 Rules as judicial members provided, they have 25 years of experience. This is in line with the previous rulings of this Court that advocates and retired judges are to be considered as judicial members of tribunals. Furthermore, this Court notices that the 2017 Rules did not exclude Advocates from consideration; nor did they impose restrictive eligibility conditions, such as 25 years of experience. 40. The learned Amicus Curiae submitted that stipulation of 25 meritorious candidates from among advocates. He suggested that Advocates with the standing of 15 years at the bar should be made eligible for being considered for appointment as judicial members to the Tribunals. The learned Amicus Curiae further submitted that Advocates should be made eligible for appointment to Single Member Tribunals, particularly to the Debt Recovery Tribunals as their experience in law can be suitably utilized. It is the submission of learned Attorney General that though the Constitution prescribes that an Advocate having experience of 10 years can be considered for appointment as a Judge of a High Court, normally an Advocate is considered only after he attains the age of 45 years. He suggested that an experience of 25 years at the Bar would make Advocates at the age of 47-48 years eligible for appointment as judicial members of the Tribunals. It would be attractive for the Advocates to apply for appointment to the post of judicial members of the Tribunals after having experience of 25 years, especially due to the provision for re- appointment. 41. In view of the submission of the learned Attorney General that the 2020 the Rules will be amended to make Advocates eligible for 45 | P a g eappointment to the post of judicial members of the Tribunals, the only question that remains is regarding their experience at the bar. While the Attorney General suggested that an advocate who has 25 years of experience should be considered for appointment as a Judicial member, the learned Amicus Curiae suggested that it should be 15 years. An WP(C).14794/2020 & WP(C).13593/2020 :: 6 :: Advocate of a High Court with experience of ten years is qualified for appointment as a Judge of the High Court as per Article 217 (2) of the Constitution of India. As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010) 19 and Madras Bar Association v. Union of India (2015) 20. However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53.The upshot of the above discussion leads this court to issue the following directions: (i) The Union of India shall constitute a National Tribunals Commission which shall act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against members of Tribunals and to take care of administrative and infrastructural needs of the Tribunals, in an appropriate manner. Till the National Tribunals Commission is constituted, a separate wing in the Ministry of Finance, Government of India shall be established to cater to the requirements of the Tribunals. (ii) Instead of the four-member Search-cum-Selection Committees provided for in Column (4) of the Schedule to the 2020 Rules with the Chief Justice of India or his nominee, outgoing or sitting Chairman or Chairperson or President of the Tribunal and two Secretaries to the Government of India, the Search-cum-Selection Committees should comprise of the following members: (a) The Chief Justice of India or his nominee—Chairperson (with a casting vote). (b) The outgoing Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or WP(C).14794/2020 & WP(C).13593/2020 :: 7 :: Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment—member; (c) Secretary to the Ministry of Law and Justice, Government of India — member; (d) Secretary to the Government of India from a department other than the parent or sponsoring department, nominated by the Cabinet Secretary—member; (e) Secretary to the sponsoring or parent Ministry or Department— Member Secretary/Convener (without a vote). Till amendments are carried out, the 2020 Rules shall be read in the manner indicated. (iii) Rule 4(2) of the 2020 Rules shall be amended to provide that the Search-cum-Selection Committee shall recommend the name of one person for appointment to each post instead of a panel of two or three persons for appointment to each post. Another name may be recommended to be included in the waiting list. (iv) The Chairpersons, Vice-Chairpersons and the members of the Tribunal shall hold office for a term of five years and shall be eligible for reappointment. Rule 9(2) of the 2020 Rules shall be amended to provide that the Vice-Chairman, Vice-Chairperson and Vice President and other members shall hold office till they attain the age of sixty-seven years. (v) The Union of India shall make serious efforts to provide suitable housing to the Chairman or Chairperson or President and other members of the Tribunals. If providing housing is not possible, the Union of India shall pay the Chairman or Chairperson or President and Vice-Chairman, Vice-Chairperson, Vice President of the Tribunals an amount of Rs.1,50,000/- per month as house rent allowance and Rs.1,25,000/- per month for other members of the Tribunals. This direction shall be effective from 01.01.2021. (vi) The 2020 Rules shall be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the Tribunals. While considering advocates for appointment as judicial members in the Tribunals, the Search-cum-Selection Committee shall take into account the experience of the Advocate at the bar and their specialization in the relevant branches of law. They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals. WP(C).14794/2020 & WP(C).13593/2020 :: 8 :: (vii) The members of the Indian Legal Service shall be eligible for appointment as judicial members in the Tribunals, provided that they fulfil the criteria applicable to advocates subject to suitability to be assessed by the Search-cum-Selection Committee on the basis of their experience and knowledge in the specialized branch of law. (viii) Rule 8 of the 2020 Rules shall be amended to reflect that the recommendations of the Search-cum-Selection Committee in matters of disciplinary actions s3hall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government. (ix) The Union of India shall make appointments to Tribunals within three months from the date on which the Search-cum-Selection Committee completes the selection process and makes its recommendations. (x) The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules. (xi) Appointments made prior to the 2017 Rules are governed by the parent Acts and Rules which established the concerned Tribunals. In view of the interim orders passed by the Court in Rojer Mathew (supra), appointments made during the pendency of Rojer Mathew (supra) were also governed by the parent Acts and Rules. Any appointments that were made after the 2020 Rules came into force i.e. on or after 12.02.2020 shall be governed by the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. (xii) Appointments made under the 2020 Rules till the date of this judgment, shall not be considered invalid, insofar as they conformed to the recommendations of the Search-cum- Selection Committees in terms of the 2020 Rules. Such appointments are upheld, and shall not be called into question on the ground that the Search-cum-Selection Committees which recommended the appointment of Chairman, Chairperson, President or other members were in terms of the 2020 Rules, as they stood before the modifications directed in this judgment. They are, in other words, saved. (xiii) In case the Search-cum-Selection Committees have made recommendations after conducting selections in accordance with the 2020 Rules, appointments shall be made within three months from today and shall not be subject matter of challenge on the ground that they are not in accord with this judgment. WP(C).14794/2020 & WP(C).13593/2020 :: 9 :: (xiv) The terms and conditions relating to salary, benefits, allowances, house rent allowance etc. shall be in accordance with the terms indicated in, and directed by this judgment. (xv) The Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 shall be governed by the parent statutes and Rules as per which they were appointed. The 2020 Rules shall be applicable with the modifications directed in the preceding paragraphs to those who were appointed after 12.02.2020. While reserving the matter for judgment on 09.10.2020, we extended the term of the Chairpersons, Vice-Chairpersons and members of the Tribunals till 31.12.2020. In view of the final judgment on the 2020 Rules, the retirements of the Chairpersons, Vice-Chairpersons and the members of the Tribunals shall be in accordance with the applicable Rules as mentioned above.” Considering the entire facts and circumstances of the case, we are of the view that the issues involved in these writ petitions are covered by the decision of the Hon'ble Supreme Court in W.P.(C)No.804 of 2020. In the light of the aforementioned decision of the Hon'ble Supreme Court and placing on record the submission of learned counsel for the parties, writ petitions are disposed of. SD/- S.MANIKUMAR CHIEF JUSTICE SD/- SHAJI P. CHALY JUDGE jes WP(C).14794/2020 & WP(C).13593/2020 :: 10 :: APPENDIX OF WP(C) 14794/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF PRACTICE DATED 18/07/2020 ISSUED BY THE SECRETARY, KERALA HIGH COURT ADVOCATE'S ASSOCIATION. EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE FINANCE ACT, 2017 AND THE EIGHTH SCHEDULE DATED 31/03/2017 OF THE SECRETARY TO THE GOVERNMENT INDIA, MINISTRY OF LAW AND JUSTICE. EXHIBIT P3 TRUE COPY OF THE TRIBUNAL, APPELLATE TRIBUNAL, AND OTHER AUTHORITIES (QUALIFICATIONS, EXPERIENCE AND OTHER CONDITIONS OF SERVICE OF MEMBERS) RULES 2020 AS PER NOTIFICATION NO.G.S.R.109(E) DATED 12/02/2020 OF THE JOINT SECRETARY, MINISTRY OF FINANCE. WP(C).14794/2020 & WP(C).13593/2020 :: 11 :: APPENDIX OF WP(C) 13593/2020 PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT AS G.S.R.109(E) DATED 12.2.2020. EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO A-11013/1/2019-AT DATED 27.7.2020 ISSUED BY THE ADDITIONAL 4TH RESPONDENT. // TRUE COPY // P.S. TO JUDGE "