# MADRAS BAR ASSOCIATION v. UNION OF INDIA & ANR

- **Citation:** [2020] 2 S.C.R. 246
- **Court:** Supreme Court of India
- **Decided:** 2020-11-27
- **Case number:** Civil Appeal Nos.35053506 of 2020
- **Bench:** L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madras-bar-association-v-union-of-india-anr-34345
- **Pages:** 51

## Headnote

Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - National Tribunals Commission -
Constitution of - Held: The Union of India directed to 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Search-cum-Selection Committee -
Composition of - Held: The Search-cum-Selection Committees
should comprise of the following members: (i) The Chief Justice of
India or his nominee-Chairperson (with a casting vote); (ii) 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; (iii) Secretary to the Ministry of
Law and Justice, Government of India-member; (iv) Secretary to
the Government of India from a department other than the parent
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or sponsoring department, nominated by the Cabinet Secretary--
member; (v) 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 - Further, r. 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - rr.9(1) and 9(2) - Term of office of the
Chairpersons, vice-chairpersons and the members of the Tribunal
- Modification of the Rules, 2020 - Held: In view of the law laid
down in the earlier judgments of the Supreme Court, the modification
of the tenure is directed in rr. 9(1) and 9(2) of the 2020 Rules as
five years in respect of Chairman or Chairperson, Vice Chairman
or Vice-Chairperson and the members - The Government to amend
r. 9 (1) of the 2020 Rules by making the term of Chairman,
Chairperson or President as five years or till they attain 70 years,
whichever is earlier and other members dealt with in r. 9(2) as five
years or till they attain 67 years, whichever is earlier.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - r. 15 - House Rent Allowance to the
Chairperson and other members of the Tribunals - The lack of
housing in Delhi has been one of the reasons for retired judges of
the High Courts and the Supreme Court to not accept appointments
to Tribunals - Held: The Government of India directed to make
serious efforts to provide suitable housing to the Chairperson and
the members of the Tribunals and in case providing housing is not
possible, to enhance the house rent allowance to Rs.1,25,000/- for
members of Tribunals and Rs.1,50,000/- for the Chairman or
Chairperson or President and Vice Chairman or Vice Chairperson
or Vice President of Tribunals - In other words, an optio

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SUPREME COURT REPORTS
[2020] 2 S.C.R.
MADRAS BAR ASSOCIATION
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 804 of 2020)
NOVEMBER 27, 2020
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - National Tribunals Commission -
Constitution of - Held: The Union of India directed to 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Search-cum-Selection Committee -
Composition of - Held: The Search-cum-Selection Committees
should comprise of the following members: (i) The Chief Justice of
India or his nominee-Chairperson (with a casting vote); (ii) 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; (iii) Secretary to the Ministry of
Law and Justice, Government of India-member; (iv) Secretary to
the Government of India from a department other than the parent
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or sponsoring department, nominated by the Cabinet Secretary--
member; (v) 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 - Further, r. 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - rr.9(1) and 9(2) - Term of office of the
Chairpersons, vice-chairpersons and the members of the Tribunal
- Modification of the Rules, 2020 - Held: In view of the law laid
down in the earlier judgments of the Supreme Court, the modification
of the tenure is directed in rr. 9(1) and 9(2) of the 2020 Rules as
five years in respect of Chairman or Chairperson, Vice Chairman
or Vice-Chairperson and the members - The Government to amend
r. 9 (1) of the 2020 Rules by making the term of Chairman,
Chairperson or President as five years or till they attain 70 years,
whichever is earlier and other members dealt with in r. 9(2) as five
years or till they attain 67 years, whichever is earlier.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - r. 15 - House Rent Allowance to the
Chairperson and other members of the Tribunals - The lack of
housing in Delhi has been one of the reasons for retired judges of
the High Courts and the Supreme Court to not accept appointments
to Tribunals - Held: The Government of India directed to make
serious efforts to provide suitable housing to the Chairperson and
the members of the Tribunals and in case providing housing is not
possible, to enhance the house rent allowance to Rs.1,25,000/- for
members of Tribunals and Rs.1,50,000/- for the Chairman or
Chairperson or President and Vice Chairman or Vice Chairperson
or Vice President of Tribunals - In other words, an option should
be given to the Chairperson and the members of the Tribunals to
either apply for housing accommodation to be provided by the
Government of India as per the existing rules or to accept the
enhanced house rent allowance.
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SUPREME COURT REPORTS
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Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Advocates as Judicial members - Held:
An Advocate of a High Court with experience of ten years is
qualified for appointment as a Judge of the High Court as per Art.
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, thus, the experience at the bar should be on
the same lines for being considered for appointment as a judicial
member of a Tribunal - However, it is left open to the Search-cumSelection Committee to take into account 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.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Members of Indian Legal Service -
Eligibility of - Held: The members of Indian Legal Service are
entitled to be appointed only as technical members - The members
of Indian Legal Service shall be entitled to be considered for
appointment as a judicial member subject to their fulfilling the other
criteria which advocates are subjected to - In addition, the nature
of work done by the members of the Indian Legal Service and their
specialization in the relevant branches of law shall be considered
by the Search-cum-Selection Committee while evaluating their
candidature.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Removal of members - r. 8 - Held: r. 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-cumSelection Committee shall be implemented by the Central
Government.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Time Limit for appointment - Held: The
pendency of cases in the Tribunals is increasing mainly due to the
lack of personnel in the Tribunals which is due to the delay in filling
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up the vacancies as and when they arise due to the retirement of the
members - There is an imminent need for expediting the process of
selections and appointments to ensure speedy justice - The
Government of India directed to make the appointments to the
Tribunals within three months after the Search-cum-Selection
Committee completes the selection and makes its recommendations.
Tribunal, Appellate Tribunal and other Authorities
[Qualification, Experience and other conditions of service of
Members] Rules, 2020 - Retrospectivity of the 2020 Rules - The
Government of India contended that the new Rules, 2020 have been
framed in exercise of powers under the Finance Act, 2017, the 2020
Rules would be effective from 26.05.2017 - Held: The 2020 Rules
which came into force from the date of their publication in the Official
Gazette, i.e. 12.02.2020, cannot be given retrospective effect - The
intention of Government of India to make the 2020 Rules prospective
is very clear from the notification dated 12.02.2020 - In any event,
subordinate legislation cannot be given retrospective effect unless
the parent statute specifically provides for the same - It is clarified
that all appointments made prior to the 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 come into force
shall be in accordance with the 2020 Rules subject to the
modifications directed in the preceding paragraphs of this judgment.
Disposing of the writ petitions, Transfer Petitions, Civil
Appeals, the Court
HELD: NATIONAL TRIBUNAL COMMISSION
1. The Union of India is directed to set up a National
Tribunals Commission as suggested by this Court by its order
dated 07.05.2018 at the earliest. Setting up of such a Commission
would enhance the image of the Tribunals and instill confidence
in the minds of the litigants. Dependence of the Tribunals for all
their requirements on the parent Department will not extricate
them from the control of the executive. Judicial independence of
the Tribunals can be achieved only when the Tribunals are
provided the necessary infrastructure and other facilities without
having to lean on the shoulders of the executive. This can be
achieved by establishment of an independent National Tribunals
Commission as suggested above. To stop the dependence of the
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Tribunals on their parent Departments for routing their
requirements and to ensure speedy administrative decision
making, as an interregnum measure, there should also be a
separate "tribunals wing" established in the Ministry of Finance,
Government of India to take up, deal with and finalize
requirements of all the Tribunals till the National Tribunals
Commission is established. [Para 20][273-B-D]
SEARCH-CUM-SELECTION COMMITTEE
2. There is merit in the submission of the Attorney General
that the presence of the Secretary of the sponsoring or parent
department in the Search-cum-Selection Committee will be
beneficial to the selection process. But, it is settled that the
Secretary of the parent or sponsoring Department cannot have a
say in the process of selection and service conditions of the
members of Tribunals. Ergo, the Secretary to the sponsoring or
parent Department shall serve as the Member-Secretary/
Convener to the Search-cum-Selection Committee and shall
function in the Search-cum-Selection Committee without a vote.
[Para 29][279-B-C]
3. The Government of India is duty bound to implement
the directions issued in the earlier judgments and constitute the
Search-cum-Selection Committees in which the Chief Justice of
India or his nominee shall be the Chairperson along with the
Chairperson of the Tribunal if he is a retired Judge of the Supreme
Court or a retired Chief Justice of a High Court and two
Secretaries to the Government of India. In case the Tribunal is
headed by a Chairperson who is not a judicial member, the Searchcum-Selection Committee shall consist of the Chief Justice of
India or his nominee as Chairperson and a retired Judge of the
Supreme Court or a retired Chief Justice of a High Court to be
nominated by the Chief Justice of India and Secretary to the
Government of India from the Ministry of Law and Justice and a
Secretary of a department other than the parent or sponsoring
department to be nominated by the Cabinet Secretary. As stated
above, the Secretary of the parent or sponsoring department shall
serve as the Member-Secretary or Convener, without a vote.
[Para 30][279-D-F]
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4. Rule 4 (2) of the Tribunal, Appellate Tribunal and other
Authorities [Qualification, Experience and other conditions of
service of Members] Rules, 2020 postulates that a panel of two
or three persons shall be recommended by the Search-cumSelection Committee from which the appointments to the posts
of Chairperson or members of the Tribunal shall be made by the
Central Government. The Amicus Curiae voiced serious
objections to Rule 4(2) on the ground that it would be
compromising judicial independence. According to Amicus Curie,
the procedure for appointment to the Tribunals should be
completely outside executive control. The Attorney General
stated that a panel of names consisting two or three persons is
essential because their antecedents have to be examined by the
Intelligence Bureau before appointing them to a Tribunal. He
suggested that the number of persons to be recommended can
be two instead of three to limit the discretion of the Appointments
Committee of the Cabinet. The recommendations for
appointments by the Search-cum-Selection Committee should be
final and the executive should not be permitted to exercise their
discretion in the matter of appointments to the Tribunals.
Accordingly, this Court directs that Rule 4(2) of the 2020 Rules
shall be amended and till so amended, that it be read as
empowering the Search-cum-Selection Committee to recommend
the name of only one person for each post. However, taking note
of the submissions made by the Attorney General regarding the
requirement of the reports of the selected candidates from the
Intelligence Bureau, another suitable person can be selected by
the Search-cum-Selection Committee and placed in the waiting
list. In case, the report of the Intelligence Bureau regarding the
selected candidate is not satisfactory, then the candidate in the
waiting list can be appointed. [Para 31][279-G-H; 280-A-D]
TERM OF OFFICE
5. The 2020 Rules are not in compliance with the principles
of law laid down in Union of India v. Madras Bar Association (2010)
and Rojer Mathew in respect of the tenure of the members of the
Tribunals in spite of this Court repeatedly holding that short
tenure of members is detrimental to the efficiency and
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independence of the Tribunals. Rule 9(1) of the 2020 Rules
provide for a term of four years or till a Chairman or Chairperson
or President attains the age of 70 years whichever is earlier. No
rationale except that four years is more than three years
prescribed in the 2017 Rules (described as too short, in Roger
Mathew ) was put forward on behalf of the Union of India. In so
far as the posts of Vice Chairman or Vice-Chairperson or VicePresident and members are concerned, Rule 9(2) fixes the tenure
as four years or till they attain the age of 65 years whichever is
earlier. In view of the law laid down in the earlier judgments of
the Supreme Court, the modification of the tenure is directed in
Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of
Chairman or Chairperson, Vice Chairman or Vice-Chairperson
and the members. Rule 9(1) permits a Chairman, Chairperson or
President of the Tribunal to continue till 70 years which is in
conformity with Parliamentary mandate in Section 184 of the
Finance Act. However, Rule 9(2) provides that Vice Chairman
and other members shall hold office till they attain 65 years. This
Court is in agreement with the submission made by the learned
Amicus Curiae that under the 2020 Rules, the Vice Chairman,
Vice-Chairperson or Vice-President or members in almost all the
Tribunals will have only a short tenure of less than three years if
the maximum age is 65 years. Therefore, the Government is
directed to amend Rule 9 (1) of the 2020 Rules by making the
term of Chairman, Chairperson or President as five years or till
they attain 70 years, whichever is earlier and other members
dealt with in Rule 9(2) as five years or till they attain 67 years,
whichever is earlier. [Para 35][281-F-H; 282-A-D]
HOUSE RENT ALLOWANCE
6. Experience has shown that lack of housing in Delhi has
been one of the reasons for retired Judges of the High Courts
and the Supreme Court to not accept appointments to Tribunals.
At the same time, scarcity of housing is also a factor which needs
to be kept in mind. The only way to find a solution to this problem
is to direct the Government of India to make serious efforts to
provide suitable housing to the Chairperson and the members of
the Tribunals and in case providing housing is not possible, to
enhance the house rent allowance to Rs.1,25,000/- for members
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of Tribunals and Rs.1,50,000/- for the Chairman or Chairperson
or President and Vice Chairman or Vice Chairperson or Vice
President of Tribunals. In other words, an option should be given
to the Chairperson and the members of the Tribunals to either
apply for housing accommodation to be provided by the
Government of India as per the existing rules or to accept the
enhanced house rent allowance. This direction shall be effective
from 01.01.2021. [Para 38][283-D-E]
ADVOCATES AS JUDICIAL MEMBERS
7. In view of the submission of the Attorney General that
the 2020 the Rules will be amended to make Advocates eligible
for appointment 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 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, this
Court is 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) and
Madras Bar Association v. Union of India (2015). 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. [Para
41][285-A-D]
ELIGIBILITY OF MEMBERS OF INDIAN LEGAL
SERVICE
8. As Advocates are entitled to be considered as judicial
members of the Tribunals, there is no harm in members of the
Indian Legal Service being considered as judicial members,
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provided they satisfy the criteria relating to the standing at the
bar and specialization required. The judgment of Union of India
v. Madras Bar Association (2010) did not take note of the above
points relating to the experience of members of Indian Legal
Service at the bar. The Indian Legal Service was considered along
with the other civil services for the purpose of holding that the
members of Indian Legal Service are entitled to be appointed
only as technical members. In the light of the submission made
by the Attorney General and the Amicus Curiae, this Court holds
that the members of Indian Legal Service shall be entitled to be
considered for appointment as a judicial member subject to their
fulfilling the other criteria which advocates are subjected to. In
addition, the nature of work done by the members of the Indian
Legal Service and their specialization in the relevant branches of
law shall be considered by the Search-cum-Selection Committee
while evaluating their candidature. [Para 43][286-E-H]
REMOVAL OF MEMBERS
9. Rule 8 of the 2020 Rules provides the procedure for
inquiry of misbehavior or incapacity of a member. According to
the said Rule, the preliminary scrutiny of the complaint is done
by the Central Government. If the Central Government finds that
there are reasonable grounds for conducting an inquiry into the
allegations made against a member in the complaint, it shall make
a reference to the Search-cum-Selection Committee which shall
conduct an inquiry and submit the report to the Central
Government. The Amicus Curiae argued that there is no clarity
in the Rules as to whether the reports submitted by the Searchcum-Selection Committee are binding on the Central
Government. According to Amicus Curiae, it is impermissible
for the Central Government to further scrutinize the report of
the Search-cum-Selection Committee which comprises of sitting
and retired Judges. He submitted that the proper procedure to
be followed in matters of complaints against the Presiding Officers
and members of the Tribunals is that a preliminary scrutiny may
be made by the Central Government and the report should be
placed before the Search-cum-Selection Committee. It is open
to the Search-cum-Selection Committee to accept or reject the
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preliminary scrutiny. In case the Search-cum-Selection Committee
is of the opinion that the findings of the preliminary scrutiny are
correct, then the Search-cum-Selection Committee should be
entitled to proceed further to conduct an inquiry on its own, if it
so choses. The findings of the Search-cum-Selection Committee
shall be final and the action recommended by the Search-cumSelection Committee shall be implemented by the Central
Government. [Para 45][287-G-H; 288-A-D]
TIME LIMIT FOR APPOINTMENT
10. It has been brought to notice that there are a large
number of unfilled vacancies hampering the progress of the
functioning of the Tribunals. The pendency of cases in the
Tribunals is increasing mainly due to the lack of personnel in the
Tribunals which is due to the delay in filling up the vacancies as
and when they arise due to the retirement of the members. There
is imminent need for expediting the process of selections and
appointments to ensure speedy justice. The Government of India
directed to make the appointments to the Tribunals within three
months after the Search-cum-Selection Committee completes the
selection and makes its recommendations. [Para 47][288-H; 289A-B]
RETROSPECTIVITY OF THE 2020 RULES
11. The 2017 Rules have been declared as being contrary
to the parent enactment and the principles envisaged in the
Constitution and hence struck down by this Court in Rojer
Mathew. The Central Government was directed to reformulate
the Rules in conformity and in accordance with the principles
delineated by this Court in its earlier judgment and the
observations made in Rojer Mathew. The 2020 Rules are made in
exercise of the power conferred under Section 184 of the Finance
Act which came into force on their publication in the official Gazette
as per Rule 1(2). The date of publication of the 2020 Rules is
12.02.2020. The submission of Attorney General that the 2020
Rules which replaced the 2017 Rules shall come into force with
effect from 26.05.2017 which was the appointed day in accordance
with the 2017 Rules, is not accepted. It is true that the 2017
Rules were brought into force from 26.05.2017 and Section 183
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of the Finance Act provides for any appointment made after the
appointed day shall be in accordance with the Rules made under
Section 184 of the Finance Act, 2017. 2017 Rules which have
come into force with effect from 26.05.2017 in accordance with
Section 183 have been struck down by this Court. The 2020 Rules
which came into force from the date of their publication in the
Official Gazette, i.e. 12.02.2020, cannot be given retrospective
effect. The intention of Government of India to make the 2020
Rules prospective is very clear from the notification dated
12.02.2020. In any event, subordinate legislation cannot be given
retrospective effect unless the parent statute specifically provides
for the same. [Para 51][290-H; 291-A-E]
12. The following directions were issued:
(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
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
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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, ViceChairpersons 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;
(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
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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 shall 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, appointments made during the pendency of Rojer
Mathew 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-cumSelection 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; (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
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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, the term of
the Chairpersons, Vice-Chairpersons and members of the
Tribunals is extended till 31.12.2020. In view of the final judgment
on the 2020 Rules, the retirements of the Chairpersons, ViceChairpersons and the members of the Tribunals shall be in
accordance with the applicable Rules as mentioned above. [Para
53][292-B-H; 293-A-H; 294-A-H; 295-A-B]
L. Chandra Kumar v. Union of India (1997) 3 SCC
261: [1997] 2 SCR 1186; Rojer Mathew v. South Indian
Bank Limited (2020) 6 SCC 1 - relied on.
S.P. Sampath Kumar v. Union of India (1987) 1 SCC
124 : [1987] 1 SCR 435; R.K. Jain v. Union of India
(1993) 4 SCC 119 : [1993] 3 SCR 802; Union of India
v. R. Gandhi, President, Madras Bar Association (2010)
11 SCC 1 : [2010] 6 SCR 857; Madras Bar Association
v. Union of India (2014) 10 SCC 1 : [2014] 10 SCR 1;
Bidi Supply Co. v. Union of India [1956] SCR 267;
Sundeep Kumar Bafna v. State of Maharashtra (2014)
16 SCC 623 : [2014] 4 SCR 486; Union of India v.
Madras Bar Association (2010) 11 SCC 1 : [2010] 6
SCR 857; Madras Bar Association v. Union of India
(2015) 8 SCC 583 : [2015] 6 SCR 638; Sri
Vijayalakshmi Rice Mills v. State of A.P. (1976) 3 SCC
37 : [1976] 3 SCR 775; ITO v. M.C. Ponnoose (1969)
2 SCC 351 : [1970] 1 SCR 678 - referred to.
Hinds v. R (1976) 1 All ER 353 (PC) - referred to.
Case Law Reference
(2020) 6 SCC 1
relied on
Para 1
[1987] 1 SCR 435
referred to
Para 3
[1993] 3 SCR 802
referred to
Para 4
[1997] 2 SCR 1186
relied on
Para 4
[2010] 6 SCR 857
referred to
Para 5
[2014] 10 SCR 1
referred to
Para 5
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(1956) SCR 267
referred to
Para 12
[2014] 4 SCR 486
referred to
Para 23
[2015] 6 SCR 638
referred to

Para 5
[1976] 3 SCR 775
referred to
Para 48
[1970] 1 SCR 678
referred to
Para 51
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
804 of 2020.
[Under Article 32 of the Constitution of India]
WITH
Misc. Application No.1058 of 2020 In Writ Petition (C) No.640 of
2017, Misc. Application No.1152 of 2020 In Writ Petition (C) No. 279 of
2017, Writ Petition (C) No. 867 Of 2020, Writ Petition (C) No.1431 of
2019, Transfer Petition (C) Nos. 905-915 Of 2020, Civil Appeal Nos.35053506 of 2020 (@ SLP (C) Nos. 9587-9588 Of 2020), Transfer Petition
(C) No. 1356-1360 of 2020 (@ Diary No. 18900 of 2020), Misc.
Application No.1481 of 2020 In Writ Petition (C) No.279 of 2017, Writ
Petition (C) No.995 of 2020, Writ Petition (C) No.991 of 2020, Misc.
Application No.1654 of 2020 In Writ Petition (C) No.279 of 2017, Writ
Petition (C) No.1085 of 2020, Misc. Application No.1811 of 2020 In
Writ Petition (C) No.279 of 2017, Civil Appeal No.3598 of 2020 (@
SLP (C) No.11612 of 2020)
K.K. Venugopal, AG, Balbir Singh, S.V.Raju, ASGs, Arvind P.
Datar, C.A. Sundaram, Ms. Priya Hingorani, Vikas Singh, Ms. Anitha
Shenoy, R Balasubramanium, A.S. Chandhiok, Virender Ganda, M.S.
Ganesh, Sidharth Luthra, Balasubramanian, C.S. Vaidyanathan, Guru
Krishnakumar, Rakesh Kumar Khanna, Gautam Misra, P.S.Narasimha,
Sr.Advs., Rahul Unnikrishnan, T.V.S. Raghavendra Sreyas, Naveen
Hegde, N Sai Vinod, A. K. Behera, V.K. Verma, Zafar Inayat, Ms.
Rohini Musa, Abhishek Gupta, Mohan Kumar, Anil Kumar Trivedi, Rajiv
Manglik, Ankur Chibber, Sandeep Bansal, Ms. Rashmi Singh, Ms. Neetu
Singh, Arun Kumar Vashisht, Piyush Sharma, Ms. Ritu Bhardwaj, Rajesh
Jain, Mohit D. Ram, Ajay Bansal, Kuldip Singh, Gaurav Yadav, Ms.
Veena Bansal, Rupesh Kumar, Rajeev Sharma, Ms. Neelam Sharma,
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Ms. Pankhuri Shrivastava, Alekshendra Sharma, Ms. Deepeika Kalia,
Kapish Seth, Mrintyunjai Singh, Manjul Bajpai, Tushar Singh,
Parthasarathy Bose, Mohd. Arif, Akhilesh Yadav, Nageshwara Rao, Vivek
Sharma, Ms. Srishti Agnihotri, Ms. Meera Gopal, Ms. Sanjana Grace
Thomas, Ms. Anmol Gupta, Zoheb Hossain, Ankur Talwar, Chinmayee
Chandra, Ms. Shraddha Deshmukh, Sanjeev Menon, Arvind Kumar
Sharma, Raj Shekhar Rao, Mohit D. Ram, Ms. Aditi Gupta, Areeb Y.
Amanullah, Avesh Chaudhary, Ms. Amita Singh Kalkal, Satyajit A. Desai,
Vipul Ganda, Satya Kam Sharma, Ms. Anagha S. Desai, Ms. Aastha
Trivedi, Ms. Guresha Bhambra, Ritesh Kumar, Ms. Simran Kohli, Tejasvi
Chaudhry, Ms. Rukhsana Choudhury, Seshachary Komanduri, Ms. Sakshi
Kakkar, Shakti Singh, Ms. Ankita Tiwari, Ayush Kaushik, Manan Popli,
B.K. Prasad, Arvind Kumar Sharma, Ms. Anil Katiyar, P A Noor
Muhamed, Ms. Giffara S., Bilal Niamathulla, Ms. Uxana P.N., Sameer
Abhyankar, Nalin Talwar, Amish Tandon, Ayush Beotra, Varun Tandon,
Ms. Megha Choubey, M.S. Bharat, Madhan Babu, A. Prasanna Venkat,
Deepayan Mandal, T. V. S. Raghavendra Sreyas, Rajesh Kumar, Rishi
Jain, Sanjeev Bhandari, Amit Dhall, I.P.Singh, Sushant Bali, Ms. Spriha
Bhandari, Viresh B. Saharya, Himanshu Mehra, Anurag, Ms. Nidhi
Jaswal, Sriram P., J.Sai Deepak, Guruswamy Nataraj, Ms. Pooja Dhar,
Avinash K.Sharma, Surya Prakash, Ms. Sindoora, M/S. Kmnp Law,
Kawaljit Singh Bhatia, Deepayan Mandal, Sonal Jain, Sameer Abhyankar,
Ms. Sairica Raju, Advs. for the appearing parties.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
1. This Court is once again, within the span of a year, called upon
to decide the constitutionality of various provisions concerning the
selection, appointment, tenure, conditions of service, and ancillary matters
relating to various tribunals, 19 in number, which act in aid of the judicial
branch. That the judicial system and this Court in particular has to live
these déjà vu moments, time and again (exemplified by no less than
four constitution bench judgments) in the last 8 years, speaks profound
volumes about the constancy of other branches of governance, in their
insistence regarding these issues. At the heart of this, however, are stakes
far greater: the guarantee of the rule of law to each citizen of the country,
with the concomitant guarantee of equal protection of the law. This
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judgment is to be read as a sequel, and together with the decision of the
Constitution Bench in Rojer Mathew v. South Indian Bank Limited1.
2. The core controversy arising for this Court's consideration is
the constitutional validity of the "Tribunal, Appellate Tribunal and other
Authorities [Qualification, Experience and Other Conditions of Service
of Members] Rules, 2020" (hereinafter referred to as "the 2020 Rules").
3. Before considering the merits of the case, it is necessary to
refer to the events preceding the issuance of the 2020 Rules for a better
understanding of the dispute. Like many other nations, India recognized
the need for Tribunalisation of justice to provide for adjudication by persons
with ability to decide disputes in specific fields as well as to provide
expedited justice in certain kinds of cases. Part XIV-A was inserted in
the Constitution of India by the Constitution (42nd Amendment) Act, 1976.
Article 323-A enables the Parliament to constitute administrative tribunals
for adjudication of the disputes relating to the recruitment and conditions
of service of persons appointed to public posts in connection with the
affairs of the Union or of any State or any local or other authority.
According to Article 323-B, the appropriate Legislature may constitute
Tribunals for adjudication of any dispute, complaints, or other offences
with respect to all or any of the matters specified in Clause (2) therein.
The vires of the Administrative Tribunals Act, 1985 (enacted by
Parliament in furtherance of Article 323A, for setting up administrative
tribunals for adjudication of service disputes of public servants) was
challenged in proceedings under Article 32 of the Constitution of India.
Two questions that were posed in the said Writ Petition related to the
exclusion of jurisdiction of the High Court under Articles 226 and 227 of
the Constitution in service matters, the composition of the administrative
Tribunal and the mode of appointment of Chairman, Vice-Chairman and
Members. While holding that the bar on jurisdiction of the High Courts'
cannot be a ground of attack, this Court in S.P. Sampath Kumar v.
Union of India2 held that the Tribunal "should be a real substitute of
the High Courts not only in form and de jure but in content and de
facto". The Central Government was directed to make modifications to
the Administrative Tribunals Act, 1985 pertaining to the composition of
the Tribunal to ensure selection of proper and competent people to the
posts of Presiding Officers of the Tribunal.
1 (2020) 6 SCC 1
2 (1987) 1 SCC 124
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4. The judgment in S.P. Sampath Kumar (supra) was referred
to a larger Bench for re-consideration in view of later rulings, notably
R.K. Jain v. Union of India3 which had called for a review with respect
to functioning of tribunals. In L. Chandra Kumar v. Union of India,4
this Court held that the power of judicial review vested in the High Courts
and this Court under Articles 226 and 227, and 32 is a part of the basic
structure of the Constitution. Therefore, the Court held that the Tribunals
cannot act as substitutes of the High Courts and this Court, and that
their functioning is only supplementary and that all decisions of
administrative Tribunals will be subject to scrutiny before a Division Bench
of the respective High Courts.