Filling vacancies in tribunals: Supreme Court orders setting up of National Tribunals Commission [Read Judgment]

New Delhi (ILNS): The Supreme Court has passed directions for setting up of the National Tribunals Commission for appointment of members in various tribunals.

A three-judge bench of Justices L. Nageswara Rao, Hemant Gupta and S Ravindra Bhat has directed Centre to constitute a separate wing in the Ministry of Finance to deal with the appointments till the Commission is set up.

The bench has issued these directives on a plea challenging the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 for contravening the principle of separation of powers. The Court had reserved its order on October 9, last month. 

The Supreme Court has hold that all appointments made prior to 2020 Rules which came into force on 12/02/2020 shall be governed by the Parent Acts and Rules. Any appointment made after the 2020 Rules have came into force shall be in accordance with the 2020 Rules subject to the modifications directed below;

• 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.
• 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 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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 shall be final and the recommendations of the Search-cum-Selection Committee shall be implemented by the Central Government.
• 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.
• The 2020 Rules shall have prospective effect and will be applicable from 12.02.2020, as per Rule 1(2) of the 2020 Rules.
•  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.
•  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.
• 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.
• 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.
• 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.

The Apex Court has said, “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.”

During the course of hearing Attorney General KK Venugopal had submitted to the apex court that in Rojer Mathew v. South Indian Bank Ltd the court had upheld Section 184 of the Finance Act, according to which the tenure should not exceed five years.

Venugopal had further said: “Reappointment is made by the same selection committee. This is an entirely safe procedure where if a member is writing judgments in time and is working with integrity, then the member can be reappointed.”

With respect to the provision for housing for Tribunal members, the AG submitted that if the members are not accorded with the status of High Court Judges then as per Rojer Mathew case, housing facility cannot be given to such members.

On a plea for a separate Judge on the Search and Selection Committee, the AG submitted: “There are 19 Tribunals. Every time a vacancy arises, it has to be filled then and there. Having one more judge will affect the judicial functioning and judicial time.”

Concluding his submissions AG Venugopal submitted that Rules of 2017 were completely struck down and a vacuum was created which was later filled by 2020 Rules.

Senior Counsels Siddharth Luthra and CS Vaidanathan appeared for two applicants.

The central government had already notified rules on the same in the year 2017 under the Finance Act, 2017. Both the rules and the act were challenged before the court.

In the case of Rojer Mathew Vs South Indian Bank Ltd., a five-judge bench of the Supreme Court had struck down the rules. These rules, providing the terms and conditions for service of members for at least 19 tribunals, were held to be “overstepping into the powers of the judiciary.”

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The writ petition states that the 2020 rules are in violation of several orders that upheld the non-interference of the executive in the appointments of the judiciary.

The judgment has come as a relief for those who have been appointed after February 12, 2020, but those whose appointment has been extended before this date have to be ended up.

Read the judgment here;