# A.K. BEHERA · v. UNION OF INDIA & ANR

- **Citation:** [2010] 6 S.C.R. 335
- **Court:** Supreme Court of India
- **Decided:** 2010-05-06
- **Bench:** K.G. Balakrishnan, Dalveer Bhandari, I J.M .. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-k-behera-v-union-of-india-anr-26849
- **Pages:** 84

## Headnote

Administrative Tribunals Act, 1985 - Administrative
A
B .
Tribunals (Amendment) Act, 2006:
c
Central. Administrative Tribunal - Abolition of post of
Vice-Chairman by the Amerldment Act - Constitutionality of
- Held: Cannot be regarded as unconstitutional - By abolition
. of post of Vice-Chairman no anomalous situation is sought
.to be introduced in the structure as well as functioning and D
· administration of the J Tribunals - Post of Vice-Chairman in
Tribunal had created al'I avoidable three tier institution and
resulted in anomalies in qualifications, age 'of retirement,
service conditions - By the amending Act all Members of
Central Administrative Tribunal have been elevated to the
E
status of a High Court Judge .:... Amended. qualifications for
Member bf Tribunal are nearly the same as Vice-Chairman
of Tribunal.
·
s. 6(2) (as amended) - Modification in the qualification
for appointment as Administrative Member in Tribunal -
F
Challenge to, on the ground that except for an /AS officer no
. other civil servant would become eligible for appointment -
Held: s. 6(2) not arbitrary and unsustainable - Officers
belonging to All India Services have been made eligible. to
be appointed as Administrative Member subject to fulfillment G
of qualifications - Higher qualifications have been prescribed
for better discharge of functions by Members of Tribunals and
cannot be· regarded as arbitrary or unreasonable.
335
H
336
SUPREME COURT REPORTS
[2010) 6 S.C.R.
A
s. 10A -
Total tenure of Member of Administrative
Tribunal restricted to 1 O years - Held: Cannot be regarded
as unconstitutional - Concept of security of tenure does not
apply to such appointments.
s. 1 OA - Prescribing different conditions of service for
B Members of Central Administrative Tribunal on basis of their
appointment under unamended Rules and amended Rules
- Requiring Members of Tribunal appointed before the
coming into force of Amendment Act to seek fresh
appointment by Selection Committee - Held: Is not arbitrary
C - Eligibility conditions of Members appointed prior to and after
February 19, 2007 are different - Members of Administrative
Tribunals appointed prior to February 19, 2007 form a different
class from those appointed or to be appointed after February
19, 2007 - Over a period of time, anomaly, if any, would get
D cleared itself and after a period of 4-5 years all Members of
Tribunal would be equal in status - Extension in service by
Member appointed cannot be claimed as matter of right and
would always be subject to fulfillment of qualifications and
conditions stipulated in the Amended Act - Aggrieved
E petitioner cannot claim, as a matter of right, automatic reappointment as Judicial Member of State Administrative
Tribunal after his first term of five years was over.
s. 12(2) - Enabling the appropriate Government to
designate one of the members to be Vice Chairman to
F
exercise the financial and administrative powers -
Constitutional validity of - Held: Is constitutionally valid and
cannot be regarded as impinging upon the independence of
judiciary.
Certain amendments were carried out in the
G Administrative Tribunals Act, 1985 by the Administrative
Tribunal (Amendment) Act, 2006. By the Amendment Act,
the post of Vice Chairman in the Central Administrative
Tribunal was abolished; that the newly inserted s. 10A of
the Act prescribed different conditions of service for the
H
A.K. BEHERA v. UNION OF INDIA & ANR.
337
Members of the Central Administrative Tribunal on the A
basis of their appointment under the unamended Rules
and under the amended Rules and that the members of
the Administrative Tribunal, who were duly appointed as
members prior to the commencement of the Amendment
Act, i.e. 19.02.2007, were to be considered for B
reappointment by Selection Committee; thats. 10A
stipulated that the total term of office of the member of, ..
the Central Administrative Tribunal shall not exceed 10
·years though by the said amendment the age of'
superannuation for

## Text

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j
.
[2010] 6 S.C.R: 335
A.K. BEHERA ·
V.
UNION OF INDIA & ANR.
(W. P. (C) No. 261 of 2007) E.TC.
MAY 6, 2010
[K.G. BALAKRISHNAN, CJI, DALVEER BHANDARI AND
I
J.M .. PANCHAL, JJ.]
Administrative Tribunals Act, 1985 - Administrative
A
B .
Tribunals (Amendment) Act, 2006:
c
Central. Administrative Tribunal - Abolition of post of
Vice-Chairman by the Amerldment Act - Constitutionality of
- Held: Cannot be regarded as unconstitutional - By abolition
. of post of Vice-Chairman no anomalous situation is sought
.to be introduced in the structure as well as functioning and D
· administration of the J Tribunals - Post of Vice-Chairman in
Tribunal had created al'I avoidable three tier institution and
resulted in anomalies in qualifications, age 'of retirement,
service conditions - By the amending Act all Members of
Central Administrative Tribunal have been elevated to the
E
status of a High Court Judge .:... Amended. qualifications for
Member bf Tribunal are nearly the same as Vice-Chairman
of Tribunal.
·
s. 6(2) (as amended) - Modification in the qualification
for appointment as Administrative Member in Tribunal -
F
Challenge to, on the ground that except for an /AS officer no
. other civil servant would become eligible for appointment -
Held: s. 6(2) not arbitrary and unsustainable - Officers
belonging to All India Services have been made eligible. to
be appointed as Administrative Member subject to fulfillment G
of qualifications - Higher qualifications have been prescribed
for better discharge of functions by Members of Tribunals and
cannot be· regarded as arbitrary or unreasonable.
335
H
336
SUPREME COURT REPORTS
[2010) 6 S.C.R.
A
s. 10A -
Total tenure of Member of Administrative
Tribunal restricted to 1 O years - Held: Cannot be regarded
as unconstitutional - Concept of security of tenure does not
apply to such appointments.
s. 1 OA - Prescribing different conditions of service for
B Members of Central Administrative Tribunal on basis of their
appointment under unamended Rules and amended Rules
- Requiring Members of Tribunal appointed before the
coming into force of Amendment Act to seek fresh
appointment by Selection Committee - Held: Is not arbitrary
C - Eligibility conditions of Members appointed prior to and after
February 19, 2007 are different - Members of Administrative
Tribunals appointed prior to February 19, 2007 form a different
class from those appointed or to be appointed after February
19, 2007 - Over a period of time, anomaly, if any, would get
D cleared itself and after a period of 4-5 years all Members of
Tribunal would be equal in status - Extension in service by
Member appointed cannot be claimed as matter of right and
would always be subject to fulfillment of qualifications and
conditions stipulated in the Amended Act - Aggrieved
E petitioner cannot claim, as a matter of right, automatic reappointment as Judicial Member of State Administrative
Tribunal after his first term of five years was over.
s. 12(2) - Enabling the appropriate Government to
designate one of the members to be Vice Chairman to
F
exercise the financial and administrative powers -
Constitutional validity of - Held: Is constitutionally valid and
cannot be regarded as impinging upon the independence of
judiciary.
Certain amendments were carried out in the
G Administrative Tribunals Act, 1985 by the Administrative
Tribunal (Amendment) Act, 2006. By the Amendment Act,
the post of Vice Chairman in the Central Administrative
Tribunal was abolished; that the newly inserted s. 10A of
the Act prescribed different conditions of service for the
H
A.K. BEHERA v. UNION OF INDIA & ANR.
337
Members of the Central Administrative Tribunal on the A
basis of their appointment under the unamended Rules
and under the amended Rules and that the members of
the Administrative Tribunal, who were duly appointed as
members prior to the commencement of the Amendment
Act, i.e. 19.02.2007, were to be considered for B
reappointment by Selection Committee; thats. 10A
stipulated that the total term of office of the member of, ..
the Central Administrative Tribunal shall not exceed 10
·years though by the said amendment the age of'
superannuation for a member is raised from 62 to 65 ·c
years; that the newly inserted s. 6(2) modified the
qualifications for appointment as administrative members;
that the newly added s. 12(2) authorised the appropriate
Government to designate one or more members to be the
Vice Chairman for exercise of financial and administrative 0
powers as impinging upon the independence of judiciary;
and that the Members of the Administrative Tribunal
appointed before the coming into force of the
Amendment Act were to seek fresh appointment in
accordance with the selection procedure laid down for
E
such appointments. The present petitioners are
aggrieved by the said amendments carried out in the
Administrative Tribunal Act, 1985. Hence the writ petitions.
Dismissing the writ petitions, the Court
HELD: Per Panchal J (For himself and Balakrishnan.
F
CJ!):
1.1. It cannot be accepted that the abolition of the
post of Vice-Chairman, which was in existence since
inception of the Administrative Tribunals, is
unconstitutional because it would create anomalous G
situation in the structure as well as administration of t~e
Tribunals if any High c·ourt Judge is appointed as
Member of the Tribunal. The post of Vice-Chairman in the
Tribunal had created an avoidable three tier institution
'1
H
338
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A and resulted in anomalies in qualifications, age of
retirement, service conditions etc. The Members of the
Tribunal had claimed equality with the Judges of the High
Court or even the Vice-chairman of the Tribunal, in the
matter of pay and superannuation. The Parliament, in
B exercise of powers under Article 323A of the Constitution,
has amended the Administrative Tribunals Act, 1985 and
equated its Members with Judges of High Court for the
purposes of pay and superannuation. The Parliament, by
enacting a law, has right to change the conditions of
c service of Members of the Administrative Tribunals. (Para
13) (367-F-H; 368-A-D]
M.B. Majumdar vs. Union of India (1990) 4 SCC 501,
referred to.
1.2. While upgrading the conditions of service of the
D Members, the conditions of service of a Judicial Member
are not changed to his detriment. By the amending Act
all the Members of the Central Administrative Tribunal
have been elevated to the status of a High Court Judge.
The service conditions of the Members of the Tribunal
E have been upgraded to that of a High Court Judge, which
cannot be regarded as illegal or unconstitutional. The
qualifications of the Vice-chairman provided in Section
6(2)(a), 6(2)(b) and 6(2)(bb) in the unamended Act were
also to a large extent qualifications prescribed for
F appointment of a person as an Administrative Member.
The only addition made by the Amending Act is that now
the Secretary to the Government of India, in the
Department of Legal Affairs or the Legislative Department
including Member-Secretary, Law Commission of India or
G a person who has held a post of Additional Secretary to
the Government ,of India in the Department of Legal
Affairs and Legislative Department at least for a period of
five years, are made eligible for appointment as a Judicial
Member. Though under the unamended Act, it was not
H specifically provided but he was eligible to be appointed
A.K. BEHERA v. UNION OF INDIA & ANR.
339
as Administrative Member in view of the qualifications A
which were laid down for a person to be appointed as
Administrative Member. However, by the Amendment,
such a person is declared to be eligible for being
appointed as Judicial Me,mber having regard to his
experience and opportunity to deal with legal issues· in B
his respective department. Section 6(3) and 6(3)(a) of the
earlier Act provided a much lower qualification for a
Member of the Tribunal. The amended qualifications for
·a Member of the Tribunal are nearly the same as ViceChairman of the Tribunal, which clearly reflects the c
intention of the Government to upgrade the post of an
Administrative Member. In such circumstances the need
for having a Vice-Chairman was obviated and the
Government, therefore, abolished the post of ViceChairman by the impugned enactment. [Para 13) [368-D0
H; 369-A-D]
1.3. By abolition of the post of the Vice-Chairman no
anomalous situation is sought to be introduced in the
structure as well as functioning and administration of the
Tribunals. A retired High Court Judge would be eligible E
for appointment as Member of the Tribunal and on such
·appointment would be eligible to all the facilities as a
Judge of the High Court. The Chairman of the Tribunal
is normally a retired Chief Justice of the High Court and
very rarely a retired Judge is appointed as Chairman of F
the Tribunal. In any event the Chairman would be senior
to a retired Judge, who is appointed as a Member of the
Tribunal. [Para 13] (369-E-F]
1.4. The petitioner could not establish before the
Court that by upgrading the status of the Administrative· G
Member of the Tribunal to that of a High Court Judge a
particular provision of the Constitution is infringed. The
plea that abolition of post of Vice-Chairman will
discourage a sitting or retired High Court Judge from
joining the Tribunal cannot be appreciated. The H
340
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A composition of the Tribunal, after amendment of the Act,
is such that there would be a Vice-Chairman if required
as under Section 12, a Judicial Member and another
member to be appointed from civil services. A High Court
Judge, who opts for the post of judicial Member in the
s Tribunal, would not be lowering his status after the
amendment because all the service conditions applicable
to him as a High Court Judge have been saved. [Para 13]
[369-G-H; 370-A-C]
2.1. A reasonable reading of sub-Section (2) of
C Section 6 of the Act makes it very clear that by no stretch
of imagination it can be said that the qualifications for
appointment as Administrative Member of the Tribunal
are laid down in such a manner that except an IAS officer
no other civil servant would become eligible for such
D appointment. The newly amended provision requires that
a person shall not be qualified for appointment as an
Administrative Member unless he has held for at least two
years the post of Secretary to the Government of India
or any other post in the Central or State Government and
E carrying the scale of pay, which is not less than that of a
Secretary to the Government of India for at least two
years or held post of Additional Secretary to the
Government of India for at least five years or any other
post under the Central or State Government carrying the
F scale of pay which is not less than th;\t of an Additional
Secretary to the Government at least for a period of five
years. The proviso to sub-Section (2) of Section 6 of the
Act, stipulates that the officers belonging to All India
Services, who were or are on Central deputation to a
G lower post shall be deemed to have held the post of
Secretary or Additional Secretary as the case may be,
from the date such officers were granted proforma
promotion or actual promotion whichever is earlier, to the
level of Secretary or Additional Secretary, as the case may
be, and the period spent on Central deputation after such
H
A.K. BEHERA v. UNION OF INDIA & ANR.
341
date shall count for qualifying service for the purposes A
of this clause. [Para 14) [371-B; 370-0-H; 371-A]
2.2. It is necessary to notice. that officers belonging
to All India services have been made eligible to be
appointed as Administrative Member subject to the
fulfillment of quallflcatlons stipulated in Section 6 of the B
Act. It is wrong to contend that All India Services
comprise only of the IAS officers. All India Services
comprise IAS, IFS, IRS, etc. Merely because higher
qualificatiQns have been prescribed one need not
conclude that except an IAS servant, no other civil C
servant would be eligible for appointment as a Member.
The higher qualifications have been prescribed for the
benefit and interest of uniformity of the two level cadres
contemplated by the amended provisions. There is no
manner of doubt that Government of India took a policy D
decision to prescribe higher qualification for better ·
discharge of functions by the Members constituting the
Tribunals and the said policy decision cannot be
regarded as arbitrary or unreasonable. The qualifications
of the Vice-Chairman were provided in ss. 6(2)(a), 6(2)(b), E
. 6(2)(bb) and 6(2)(c) of the unamended Act. To a large
extent, the qualifications laid down in the unamended Act
are almost the same as are laid down in the amended
provisions. [Para 14] (371-8-F]
3.1. The plea that section 10A, which restricts the total
F
term of the Member of the Administrative Tribunal to ten
years should be regarded as unconstitutional, has also
no substance at all. ·The age of retirement of a
Government servant has been raised from 58 years to 60
years. Initially under the unamended provisions of the Act G
a retired Government servant had a tenure of only two
years as a Member of the Tribunal and it was noticed that
he was not able to contribute much while performing
duties as a Member of the Tribunal. It was felt necessary
that every Member of the Tribunal should have a tenure H
342
. SUPREME COURT REPORTS
(2010] 6 S.C.R.
A of five years. Therefore, the provisions relating to term of
office incorporated in section 8 of the Act were amended
in the year 1987 and provision was made fixing term of
office of Chairman, Vice-chairman and Members at five
years period. Now provision is made for extension of
B term of office by a further period of five years. Thus the
Government has decided to provide for extension in term
of office by five years of a Member so that he can
effectively contribute to speedy disposal of cases, on
merits after gaining expertise in the service jurisprudence
c and having good grip over the subject. Under the
unamended provisions of the Act also the term of ViceChairman and Member was extendable by a further
period of five years and under the unamended provisions
also a Member of the Bar, who was appointed as Judicial
0
Member of the Tribunal, had maximum tenure of ten
. years. It is not the case of the petitioners that the
unamended provisions of the Act, which prescribed total
tenure ot'ten years for a Member of the Bar was/is
unconstitutional. The provisions of Section 8 fixing
maximum term of office of the chairman at sixty eight
E years and of a Member of the Tribunal at 10 years, cannot
be regarded as unconstitutional because concept of
security of tenure does not apply to such appointments.
Said provision cannot be assailed as arbitrar:r having
effect of jeopardising security of tenure. [Paras 15) [371F G-H;. 372-A-C; E-H; 373-A-B]
S. P. Sam path Kumar vs. Union of India and others
(1987) 1 SCC 124; Durgadas Purkyastha vs. Union of India
& others (2002) 6 sec 242, referred to.
G
3.2. An Advocate practising at the Bar is eligible to
be appointed as Member of Tribunal subject to his
fulfilling required qualifications. In all, such a Member
would have term of office for ten years. On ceasing to hold
office, a Member, subject to the other provisions of the
A· Act, is eligible for appointment as the Chairman of the
A.K. BEHERA v. UNION OF INDIA & ANR.
343
Tribunal or as the Chairman, Vice-chairman or other A
Member of any other Tribunal and is also eligible to
appear, act or plead before any Tribunal except before
the Tribunal of which he was Member. Under the
circumstances, it cannot be appreciated as to how the
amended provisions restricting the total tenure of a s
Member of the Tribunal to ten years would be
unconstitutional. The unamended s. 6 of the 1985 Act,
indicated that the Chairman, Vice-Chairman and other
Members, held respective offices in one capacity or the
other, had reasonably spent sufficient number of years c
of service in those posts before they were appointed in
the Tribunal and, therefore, the concept of security of
·tenure of service in respect of those whose term was
reduced was not regarded as appropriate. An option is
reserved to the Government to re-appoint a Member on 0
the expiry of the first term beyond five years. The outer
limit for the Member is that he should be within the age
of 65 years. Thus, it would not be in every case that the
Government would put an end to the term of the office at
the end of five years because such Chairman or Member
is eligible for appointment for another period of five years E
after consideration of his case by a committee headed by
a Judge of the Supreme Court to be nominated by the
Chief Justice of India and two other M~mbers, one of
whom-will be the Chairman of the Tribunal. [Para 15] [373A-H]
F
4. The plea that s.1 OA of the Act requiring a sitting
Member of the Tribunal, who seeks extension for second
term to possess the qualifications laid down by the
amended Act and get himself selected through Selection G
Committee is arbitrary, is devoid of merits. The selections
to be made as an Administrative Member after February.
19, 2007 are made applicable uniformly to those who
would be appointed as Administrative Member after
February 19, 2007. A Member, who was appointed prior H
344
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A to February 19, 2007, cannot claim that he has vested
right of extension of his term for a further period of five
years as per the qualifications laid down in the
unamended Act and that qualifications prescribed by the
amending Act should be ignored in his case while
B considering his case for extension of term for a further
period of five years. Over a period of time the anomaly, if
any, would get cleared itself and after a period of 4-5
years all the Members of the Tribunal would be equal in
status and that every Member to be appointed will have
c to qualify himself as per the qualifications laid down in
the Amended Act and will have to get himself selected
through Selection Committee. The eligibility conditions of
the Members appointed prior to and after February 19,
2007 are different. Since the Members of the
0 Administrative Tribunals appointed prior to February 19,
2007 form a different class from those appointed or to be
appointed after February 19, 2007. Article 14 would stand
violated if they are treated differently in the matter of
appointment or extension of service as a Member after
·February 19, 2007. Extension in service by a Member
E cannot be claimed as matter of right and would always
be subject to fulfillment of qualifications ;;1nd conditions
·stipulated in the Amended Act. The petitioner in second
writ petition could not have claimed, as a matter of right,
automatic re-appointment as Judicial Member of the State
F Administrative Tribunal after his first term of five years
was over. As is provided in the Amending Act, under the
old provisions also a Member of the Administrative
Tribunal was eligible to be re-appointed, which was
considered to be a fresh appointment for all the practical
G purposes. Under the provisions of unamended Act, at the
end of five years, the Chairman, Vice-chairman and other
Members were eligible for reappointment for another
period of five years after consideration by a Committee
headed by a .Judge of the Supreme Court and two other
H members, one of whom was Chairman of the Tribunal.
A.K. BEHERA v. UNION OF INDIA & ANR.
345
The petitioner can only be considered for appointment as
A
a Member as per the fresh selection procedure provided
by the Amended Act. The Selection Committee has to
choose the best candidate available for the post. It is not
the requirement of the law that the Selection Committee
should inform the petitioner the reasons for not B
recommending his name. Merely, because there is a
vacancy in the post of Member (Judicial) in the
Maharashtra Administrative Tribunal, tlie petitioner
cannot claim a right to be appointed to the said post
irrespective of the provisions of the amended Act. The c
petitioner can be appointed only if Selection Committee
recommends his appointment and the recommendation
is accepted by the President, after the consultation with
the Governor of the State. [Para 16) [374-B-H; 375-A-E]
5.1. The submission th;:it s. 12(2) of the amended Act D
enabling the appropriat~ Government to nominate one of
the Members of the Tribunal to perform financial and
administrative functions destroys independence of the
Tribunal which is a Judicial Forum and, therefore, the said
provision should be regarded as unconstitutional, is
E
devoid of merits. It is clear from the provisions of s. 12 of
the Amended Act, that the Chairman of the Tribunal has
to exercise all financial and administrative powers over
the Benches. Essentially the provision for delegating
financial and administrative powers to one of the
F
Members of a Bench is made, to lessen administrative
burden lying on the shoulders of the Chairman who
normally sits at Delhi and for effective and better
administration of the Benches of the Tribunal located in
different and far flung States of the country. It is not G
difficult to visualise the problems, complications,
obstacles, delay, etc., faced by the Chairman, while
exercising financial and administrative powers over the
Benches. The decentralisation of financial and
administrative powers to tackle local needs and
H
346
SUPREME COURT REPORTS
(2010] 6 S.C.R.
A problems, in favour of a Member of Tribunal, for effective
administration of the Tribunals, cannot be regarded as
destrQying the basic feature of the Constitution, namely
independence of judiciary. [Para 17) [375-F-H; 376-A-C]
5.2. The designation of the Vice-Chairman by the
B Central Governme'lt u/s. 12(2) of the Act would obviously
be in concurrence with the Chairman. Further, the ViceChai rman would discharge such functions of the
Chairman as the Chairman may so direct. It is absolutely,
completely and entirely for the Chairman to recommend
C to the Government as to designate which Member of the
Tribunal as Vice-Chairman. The said provision is an
enabling provision, which is clear from the use of the
expression "may" in the said provision. If the Chairman
of the Tribunal feels that no Member should be
D designated as Vice-Chairman, the Government suo motu
cannot and would not be in a position to make
designation contemplated by the said provision. The
designation as Vice-Chairman would not entitle the
Member so designated to any special benefits in service
E conditions. The only purpose of the said provision is to
help the Chairman in discharge of his administrative
functions as the Benches of the Tribunal are situated in
different parts of the country. Section 12(2) of the Act,
which enables the appropriate Government to designate
F one or more Members as Vice-Chairman and entitles the
Members so designated to exercise such powers and
perform such functions of the Chairman as may be
delegated to him by the Chairman by general or special
order in writing cannot be regarded as destroying the
principle independence of judiciary or of the
G Administrative Tribunals. It cannot be understood as to
how the appropriate Government would be able to
destroy the independence of Tribunals by designating
one or more Members to be the Vice-Chairman for the
H purposes of performing the functions of the Chairman to
A.K. BEHERA v. UNION OF IND1A & ANR.
347
be delegated to him by the Chairman. The jurisdiction, A
powers and authority of the Central Administrative .
Tribunal are defined in the Act and, more particularly, in
ss. 14, 15, 16, 17 and 18 of the Act. The petitioners have
· failed to demonstrate that by 'authorizing appropriate
· · · Government to designate one or more Members to be the . B · ·
Vice-Chairman for the purpose of performing financial
and administrative powers of th~e Chairman, the
indepe"dence of the Tribunals secured by the provisions
is in any manner eroded. [Para 17] [376-C-H; 377-A-C]
Per Bhandari, J (Dissenting) :
c
1. There is no anathema in the Tribunal exercising
jurisdiction of High Court and in that sense being
supplemental or additional to the High Court but, at the
same time, it is our bounden duty to ensure that the
Tribunal must inspire the same confidence and trust in D
the public mind. This can only be achieved by appointing
the deserving candidates with legal background and
judicial approach and objectivity. [Para 54] [400-F]
S.P. S8mpat Kumar v. Union of India and Ors. (1987) 1 . E
SCC 124; Minerva Mills Ltd. and Ors. v. Union of India and
Ors. (1980) 3 SCC 625; L. Chandra Kumar v. Union of India
and Ors. (1997) 3 sec 261, relied on.
R.K. Jain v. Union of India (1993) 4 SCC 119; Bidi
Supply Co. v. Union of India and Ors. 1956 SCR 267; His F
Holiness Kesavananda Bharati Sripadaga/varu v. State of
Kera/a and Anr. (1973) 4 SCC 225; M.L. Sachdev v. Union
of India and Anr. (1991) 1 SCC 605, referred to.
2.1. In view of the constitutional principles in the
Equal Remuneration Act, 1976 and Directive Principles of G
State Policy under the Constitution and the statutory and
mandatory provisions of overriding the 1976 Act, the
following principles are evolved for fixing the
governmental pay policy, whet~er executive or legislative
H
348
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A on the recommendation of the Pay Commissions, Pay
Committees by Executive Governments: (i) the,
governmental pay policy, whether executive or
legislative, cannot run contrary to constitutional
principles of constitutional law; (ii) the governmental pay
B policy, whether executive or legislative, cannot run
contrary to the overriding provisions of the 1976 Act; (iii)
the governmental pay policy must conform to the
overriding statutory command under ss. 13 and 14 read
withs. 1(2) of the 1976 Act which supports for uniformity
c between the pay policy of the State Governments and the
Central Government in the whole of India and such
uniformity in the pay policy of the State Governments and
the Central Government in the whole of India. Where all
things are equal that is, where all relevant considerations
0
are same, persons holding identical posts may not be
treated differentially of their pay. [Para 66] [406-D-H; 407A]
2.2. The principle underlying the guarantee of Article
14 is not that the same rules of law should be applicable
E to all persons within the Indian territory or that the same
remedies should be made available to them irrespective
of differences of circumstances. It only means that all
persons similarly circumstanced shall be treated alike
both in privileges conferred and liabilities imposed. [Para
F 84) [412-H; 413-A]
2.3. The law can make and set apart the classes
according to the needs and exigencies of the society and
as suggested by experience. It can recognize even
degree of evil, but the classification should never be
G arbitrary, artificial or evasive. The classification must not
be arbitrary but must be rational. It should be based on
some qualities or characteristics which are to be found
in all the persons grouped together and not in others who
are left out but those qualities or characteristics must
H have a reasonable relation to the object of the legislation.
A.K. BEHERA v. UNION OF INDIA & ANR.
349
In order to pass the test, two conditions must be fulfilled, A
namely, that the classification must be founded on an
intelligible differentia which distinguishes those that are
grouped together from others and that differentia must
have a rational relation to the object sought to be
achieved by the Act. [Paras 85 and 86) [413-B-D]
B
2.4. In the instant case, one fails to comprehend and
understand why the respondents are perpetuating
discrimination even for a period of four to five years. [Para
88) [413-G]
c
2.5. The High Court Judges are appointed from two
streams-213rd from the Bar and 113rd from the
Subordinate Judicial Service. After appointment, they are
assigned the task of discharging judicial functions. The
direct and inevitable impact of the amendment is to 0
dissuade and discourage both the members of the Bar
and Judiciary from becoming members of the Tribunal~
The Tribunal is discharging purely judicial work which
were earlier discharged by the judges of the High Courts.
The people's faith and confidence in the functioning of
the Tribunal would be considerably eroded if both the E
members of the Bar and judiciary are discouraged from
joining the Tribunal. In a democratic country governed by
rule of law, both the lawyers and judges cannot be
legitimately discouraged and dissuaded from manning
· the Tribunal discharging only judicial work.[Para 89) [413F
H; 414-A-C)
Randhir Singh v. Union of India and Ors. (1982) 1 SCC
618; State of West Bengal v. Anwar Ali Sarkar (1952) SCR
284; Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar G
and Ors. (1959) 1 SCR 279; The State of Jammu & Kashmir
v. Triloki Nath Khosa and Ors. (1974) 1 SCC 19; Indira Nehru
Gandhi v. Raj Narain and Anr. (1975) Supp. SCC 1; Maneka
Gandhi v. Union of India and Anr. (1978) 1 SCC 248; Surinder
Singh and Anr. v. Engineer-in-Chief, CPWD and Ors. (1986) H
350
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A 1 SCC 639; Mackinnon Mackenzie & Co. Ltd. v. Audrey D'
Costa and Anr. (1987) 2 SCC 469; Bhagwan Dass and Ors.
v: State of Haryana and Ors. (1987) 4 SCC 634; lnder Singh
and Ors. v. Vyas Muni Mishra and Ors. 1987 (Supp) SCC
257; Haryana State Adhyapak Sangh and Ors. v. State of
B Haryana and Ors. (1988) 4 SCC 571; U.P. Rajya Sahakari
Bhoomi Vikas Bank Ltd. v. Workmen 1989 Supp (2) SCC
424; Sita Devi and Ors. v. State of Haryana and Ors. (1996)
10 SCC 1 ; Su be Singh & Ors. v. State of Haryana and Ors.
(2001) 7 SCC 545; John Vallamattom and Anr. v. Union of
C India (2003) 6 SCC 611; State of Mizoram and Anr. v.
Mizoram Engineering Service Association and Anr. (2004) 6
SCC 218; Union of India v. Dineshan K.K. (2008) 1 SCC 586,
referred to.
3.1. There is no rationale or justification in providing
D different conditions of service for the members of the
Tribunal on the basis of their appointment under the
amended and the unamended rules, when even
according to the respondents it is nowhere denied that
both the categories of members are not discharging the
E same duties, obligations and responsibilities. [Para 94)
[414-H; 415-A]
3.2. Section 1 OA of the amended Act is declared
discriminatory, unconstitutional and ultra vires of the
Constitution so far as it does not provide uniform pay
F scales and service conditions on the basis of amended
and unamended rules. Consequently, all the members of
the Tribunal would be entitled to get the same pay scales
and service conditions from June 2010. [Para 95] [415-BC)
G
H
3.3. Section 10A of the amended Act is also declared
discriminatory because the direct and inevitable impact
of insertion of s. 10A is to prescribe different age of
retirement for the judicial and other mem;,,~rs. On the one
hand, the age of superannuation of the members has
A.K. BEHERA v. UNION OF INDIA & ANR.
351
been increased from 62 to 65 years and according to the A
amended Act, the administrative members would now
retire at the age of 65 years. The members can now get
maximum of two terms of 5 years each. A lawyer
appointed at the age of 45 years will have to retire at the
age of 55 years. Therefore, by this amendment, B
: administrative member would retire at the age of 65
whereas judicial member may retire even at the age of 55.
This is clearly discriminatory and violative of the
fundamental principle of equality. Consequently, s. 10A
of the amended Act is declared discriminatory and c
vi61ative of Article 14 of the Constitution and is declared
ultra vires of the Constitution, to the extent that it places
embargo of two terms of five years ea.ch leading to
different ages of retirements of -the members of the
Tribunal. Consequently, henceforth, all the members of 0
the Tribunal shall function till the age of 65 years. There
would be a uniform age of retirement for all the members
of the Tribunal. (Para 96) [415-D-G]
4.1. There is no logic, rationale or justification in
abolishing the post of Vice-Chairman in the Central E
Administrative Tribunal. No reason for such abolition has
been spelt out by the respondents even at the time of
introducing the Bitl. Before the amendment, ordinarily, the
retired judges of the High Courts used to be appointed
to the post of Vice-Chairman. It used to be in consonance F
with the status and positions of the retired judges .. In the
larger public interest the post of Vice-Chairinan is
restored and the procedure for appointment would be in
accordance with the unamended rules of the Act. (Paras
98 and 102) [416-B-C; 417-8)
4.2. One fails to comprehend that on the one hand,
the post of Vice-Chairman has been abolished and on the
other hand under the. newly inserted s. 12(2), the power
G
to designate Vice-Chairman has been given to the
approp.riate government. This is per se unt.enable and H
352
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A unsustainable. The executive has usurped the judicial
functions by inserting s. 12(2). The direct and inevitable
consequence of the amendment would affect the
independence of judiciary. [Para 99) [416-D-E]
·s
4.3. In the race of becoming the Vice-Chairman there
would be erosion of independence of judiciary. A judicial
member who is looking forward to promotion to the post
ofVice-Chairman would have to depend on the goodwill
and favourable instance of the executive and that would
directly affect independence and impartiality of the
C members of the Tribunal impinging upon the
independence of judiciary. [Para 100] [416-F-G]
S.P. Sampat Kumar v. Union 0f India and Ors. (1987) 1
sec 124, referred to.
D
4.4. The judicial work which the members of the
Tribunal discharge is one, which was earlier discharged
by the Judges of the High Court. The work is totally
judicial in nature, therefore, dispensation of justice should
be left primarily to the members of the Bar and Judges
E who have, by long experience and training acquired
judicial discipline, understanding of the principles of law,
art of interpreting laws, rules and regulations, legal
acumen, detachment and objectivity. Unless extreme
care is taken in the matter of appointments of the
F members of Tribunal, the justice delivery system may not
command confidence, credibility, acceptability and trust
of the people. [Para 103] [417-C-D]
4.5. Under s. 12(2) of the amended Act, the entire
power of designating Vice-Chairman has been usurped
G by the appropriate government. The amendment also has
the potentiality of disturbing the separation of powers.
· The power pertaining to judicial functioning of the
Tribunal which was earlier exercised by the judiciary has
been usurped by the executive. Thus, the newly inserted
H s. 12(2) is per se untenable and is declared null and void
A.K. BEHERA v. UNION OF INDIA & ANR.
353
[Para 101] [416-G-H; 417-A]
A
5.1. All the members of the Tribunal appointed either
by amended or unamended rules would be entitled to get
uniform pPy scales and s.ervice conditions from
01.06.201 O. however, they wou Id not be entitled to claim
any arrears on account of different pay scales and service B
conditions. [Para 104] [417-F]
5.2. All the members of the Tribunal would have
uniform age of retirement from 01.06.2010, meaning
thereby that all members of the Trib1.inal shall be C
permitted to function untll they attain the age of
superannuation of 65 years. Hence, s. 10A Is quashed
and set aside. [Para 104] [417-G-H; 418-A]
5.3. The post of Vice-Chairman in the Central
Administrative Tribunal is restored from 01.06.2010. D
However, the Vice-Chairmen, if already designated by the
Government is not disturbed, and permit them to continue
in their respect posts till they attain the age of
superannuation. Thereafter, the Vice-Chairman shall be
appointed in accordance with the unamended rules. E
Consequently, the newly inserted s. 12(2) of the amended
Act is also quashed and set aside. [Para 104] [418-B-C]
Indira Nehru Gandhi v. Raj Narain and Anr. (1975) Supp .
. SCC 1; l.R. Coelho (dead) by Lrs. v. State of Tamil Nadu and
Ors. (2007) 2 SCC; Minerva Mills Ltd. and Ors. v. Union of F
India and Ors. (1980) 3 SCC 625; Ashoka Kumar Thakur and
Ors. v. Union of India and Ors. (2008) 6 SCC 1; His Holiness
1 Kesavananda Bharati Sripadagalvaru v. State of Kera/a and
Anr. (1973) 4 SCC 225; Subhash Sharma and Ors. v. Union
of India 1991 Sup (1) 574; Pareena Swarup v. Union of India G
(2008) 14 sec 107, referred to.
Case Law Reference:
In the judgment of Panchal J:
(1990) 4 SCC 501
Referred to._.
Para 13
H
354
SUPREME COURT REPORTS
[2010] 6 S.C.R.
A
(1987) 1 sec 124
Referred to.
Para 15
(2002) 6 sec 242
Referred to.
Para 15
In the judgment of Bhandari J:
· (1987) 1 sec 124
Relied on.
Para 21, 30, 32, 33,
B
35, 36, 37' 39, 52,
100
(1980) 3 sec 625
Relied on.
Para 34, 52, 58, 62
c (1997) 3 sec 261
Relied on.
Para 42, 46
(1993) 4 sec 119
Referred to.
Para 43
1956 SCR 267
Referred to.
Para 44
(1973) 4 sec 225
Referred to.
Para 45, 61
D (1991) 1 sec 605
Referred to.
Para 50
(1975) supp. sec 1
Referred to.
Para 56, 70
(2001) 2 sec 1
Referred to.
Para 57
E
(2008) 6 sec 1
Referred to.
Para 59
1991 Sup (1) 574
Referred to.
Para 63
(2008) 14 sec 101
Referred to.
Para 64
F (1982) 1 sec 618
Referred to.
Para 66, 72
(1952) SCR 284
Referred to.
Para 67
(1959) 1 SCR 279
Referred to.
Para 68
(1974) 1 sec 19
Referred to.
Para 69
G
(1978) 1 sec 248
Referred to.
Para 71
(1986) 1 sec 639
Referred to.
Para 73 ·
(1987) 2 sec 469
Referred to.
Para 74
H (1987) 4 sec 634
Referred to.
Para 75
A.K. BEHERA v. UNION OF INDIA & ANR.
355
1987 (Supp) sec 257 Referred to.
Para 76
(1988) 4 sec 571
Referred to.
Para 77
1989 Supp (2) SCC 424 Referred to.
Para 78
(1996) 10 sec 1
Referred to.
Para 79
(2001) 1 sec 545
Referred to.
Para 80
(2003) 6 sec 611
Referred to.
Para 81
(2004) 6 sec 218
. Referred to.
Para 82
(2008) 1 sec 586
Referred to.
Para 83
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
261 of 2007;
Under Article 32 of the Constitution of India.
WITH
W.P. (C) No. 539 of 2007.
A
B
c
D
A.Saran, ASG, Raju Ramachandran, A.K. Behra, Lalit M. E
Harichandan, Saurabh Suman Sinha (for Satya Mitra Garg),
Ni~in S. Tambwekar, B.S. Sai. K. Rajeev, S. Wasim A. Qadri,
P, ~rmeswaran, B. Krishna Prasad, Sanjay V. Kharde, Asha
G.
ir, Advocates with them for appearing parties.
'
Th·e Judgment of the Court was delivered by
F
J.M. PANCHAL, J. 1. In the Writ Petition (C) No.