# SHANKER RAJU v. UNION OF INDIA

- **Citation:** [2011] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2011-01-04
- **Bench:** D.K. Jain, H.L. Datiu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shanker-raju-v-union-of-india-27310
- **Pages:** 32

## Headnote

A
B
Administrative Tribunals Act, 1985 - ss.10A and B -
"Term of Office" of a Member of the Tribunal - Whether a
Member of the Tribunal is eligible for re-appointment after C
completion of term of ten years - Held: A member of a
Tribunal can hold such office for a fixed and definite period
of time, i.e. for a period of five years from the date on which
he enters upon his office and that period may be extended
for one more term of five years - Thus the total term that a o
person can hold the office of the Member of the Tribunal is
only for a period of 10 years - After completion of 10 years,
he does not superannuate but goes out of the office.
Doctrines/Principles:
Doctrine of stare decisis - Held: A judgment, which has
held the field for a long time, should not be unsettled only
because another view is possible :... The underlying logic of
this doctrine is to maintain consistency and avoid uncertainty
- Maxim "stare decisis et non quieta movere".
Doctrine of binding precedent - Held: The doctrine of
binding precedent has the merit of promoting certainty and
consistency in judicial decisions.
E
F
Words and Phrases - "Term of Office" - Expressions G
'term' and 'tenure' - . Meaning of - Held: The expresslon'term'
signifies a fixed period or a determined or prescribed duration
-
T~e word 'term' when used in reference to the tenure of
office, means ordinarily 'a fixed and definite time - There is
1
H
2
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A distinction b~•-·words 'term' and 'tenure' as applied to
a pub/le officer ot'employee - The 'term', as applied to an
office, refers to a fixed and definite period of time ~ The word
· 'tenure' has more extended meaning than the word 'term' and
'tenure'.of an office means the manner in which the office is
s held especially with regard to time.
Interpretation of Statutes - Legislative intention -
. Ascertainment of - Duty of the Court - Held: In a court of law
or equity, what the legislature intended to be done or not to
C be done can only be legitimately ascertained from what it has
chosen to enact either in express words or by reasonable and
necessary implication - Where the Legislature clearly
declares its intent in the scheme of a language of Statute, it
is the duty of the Court to give full effect to the same without
scanning its wisdom or policy and without engrafting, adding
i) or implying anything which is not congenial to or consistent
with such express intent of legislature.
Interpretation of Statutes - Held: A statute is designed
to be workable, and the interpretation thereof by Court should
E be to secure that object unless crucial omission or clear
direction makes that end unattainable.
The petitioner was appointed as a Judicial Member
of the Central Administrative Tribunal on 10.12.2000. After
F completion of his five-year term, he was re-appointed for
another term of five years and was due to complete his
second term of five years on 09.12.2010. In April, 2010, in
response to an advertisement issued by the respondent .
regarding vacancies of Members in the Tribunal, Principal
Bench, Delhi, the Petitioner made application for the post
G of Judicial Member of the Tribunal, the post which he had
held for nine and a half years at the time of making
application. Though the petitioner was eligible for the
appointment in terms of his qualification, the respondent
vide the impugned communication dated 12-08-2010
H
SHANKER RAJU v. UNION OF INDIA
3
refused to consider his claim for appointment for the A
vacancy, on the ground that the petitioner was to
complete his second term of 5 years as a Judicial Member
of the Tribunal on 09.12.2010.
The petitioner challenged the said communication 8
contending that after completion of a tenure of 10 years,
he was eligible to apply for the post afresh and should
be considered on merits and should not be disqualified
for appointment merely because he had completed 10
years in that office. The petitioner sought appropriate writ C
from this Court mainly i

## Text

_Characters 0–39,927 of 61,754. This is a partial read: ask again with offset=39927 for what follows._

[2011] 2 S.C.R. 1
SHANKER RAJU
v.
UNION OF INDIA
(W.P. (C) No. 311 of 2010)
JANUARY 04, 2011
[D.K. JAIN AND H.L. DATIU, JJ.]
A
B
Administrative Tribunals Act, 1985 - ss.10A and B -
"Term of Office" of a Member of the Tribunal - Whether a
Member of the Tribunal is eligible for re-appointment after C
completion of term of ten years - Held: A member of a
Tribunal can hold such office for a fixed and definite period
of time, i.e. for a period of five years from the date on which
he enters upon his office and that period may be extended
for one more term of five years - Thus the total term that a o
person can hold the office of the Member of the Tribunal is
only for a period of 10 years - After completion of 10 years,
he does not superannuate but goes out of the office.
Doctrines/Principles:
Doctrine of stare decisis - Held: A judgment, which has
held the field for a long time, should not be unsettled only
because another view is possible :... The underlying logic of
this doctrine is to maintain consistency and avoid uncertainty
- Maxim "stare decisis et non quieta movere".
Doctrine of binding precedent - Held: The doctrine of
binding precedent has the merit of promoting certainty and
consistency in judicial decisions.
E
F
Words and Phrases - "Term of Office" - Expressions G
'term' and 'tenure' - . Meaning of - Held: The expresslon'term'
signifies a fixed period or a determined or prescribed duration
-
T~e word 'term' when used in reference to the tenure of
office, means ordinarily 'a fixed and definite time - There is
1
H
2
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A distinction b~•-·words 'term' and 'tenure' as applied to
a pub/le officer ot'employee - The 'term', as applied to an
office, refers to a fixed and definite period of time ~ The word
· 'tenure' has more extended meaning than the word 'term' and
'tenure'.of an office means the manner in which the office is
s held especially with regard to time.
Interpretation of Statutes - Legislative intention -
. Ascertainment of - Duty of the Court - Held: In a court of law
or equity, what the legislature intended to be done or not to
C be done can only be legitimately ascertained from what it has
chosen to enact either in express words or by reasonable and
necessary implication - Where the Legislature clearly
declares its intent in the scheme of a language of Statute, it
is the duty of the Court to give full effect to the same without
scanning its wisdom or policy and without engrafting, adding
i) or implying anything which is not congenial to or consistent
with such express intent of legislature.
Interpretation of Statutes - Held: A statute is designed
to be workable, and the interpretation thereof by Court should
E be to secure that object unless crucial omission or clear
direction makes that end unattainable.
The petitioner was appointed as a Judicial Member
of the Central Administrative Tribunal on 10.12.2000. After
F completion of his five-year term, he was re-appointed for
another term of five years and was due to complete his
second term of five years on 09.12.2010. In April, 2010, in
response to an advertisement issued by the respondent .
regarding vacancies of Members in the Tribunal, Principal
Bench, Delhi, the Petitioner made application for the post
G of Judicial Member of the Tribunal, the post which he had
held for nine and a half years at the time of making
application. Though the petitioner was eligible for the
appointment in terms of his qualification, the respondent
vide the impugned communication dated 12-08-2010
H
SHANKER RAJU v. UNION OF INDIA
3
refused to consider his claim for appointment for the A
vacancy, on the ground that the petitioner was to
complete his second term of 5 years as a Judicial Member
of the Tribunal on 09.12.2010.
The petitioner challenged the said communication 8
contending that after completion of a tenure of 10 years,
he was eligible to apply for the post afresh and should
be considered on merits and should not be disqualified
for appointment merely because he had completed 10
years in that office. The petitioner sought appropriate writ C
from this Court mainly in respect of the communication
dated 12-08-2010 and for a direction to the respondent to
consider his case for appointment to the advertised post
of Judicial Member in Tribunal on its own merit sans
eligibility.
The
question which,· therefore, arose for
consideration in the present petition was whether a
Member of the Tribunal is eligible for re-appointment after
completion of term of ten years.
Dismissing the petition, the Court
D
E
HELD:1. The Administrative Tribunals Act, 1985 was
amended in. the year 2006 by the Administrative Tribunals
(Amendment) Act 2006. The amendments were made
effective from 19.02.2007. Some of the principal changes
F ··
brought about were, the abolition of the post of Vice·
Chairman; changes in the terms of office in the form of
increase fn the age of superannuation of the Chairman
from .,65. years to 68 years and that of the other Members
·.from:&~ years to 65 years; the.term of the Members was G
· fixed :to'S. years, extendabfe by another term of 5 years;
and, Incorporation of.Section 10A,as a savings clause, for
saving the terni of office of the Chairman, Vice.Chairman
and Members, who were appointed prior to the coming
into force of the Amendment Act. [Para 3] [11-E-G]
H
4
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
2.1. In the case of A.K. Behra, a three Judges Bench
of this Court had the occasion to consider the legislative
competence and validity of the Administrative Tribunals
(Amendment) Act, 2006. In that case, one of the reliefs
sought for by the petitioner was to declare the newly
s inserted Section 10A of the Administrative Tribunals Act,
1985 as unconstitutional to the extent it stipulated that
the term of office of the Member of the Central
Administrative Tribunal shall n'ot exceed 1 O years. The
Court declined to grant the said relief holding that the
c provision restricting the total tenure of a Member to ten
years could not be held either arbitrary or illegal. The said
decision of this Court is binding and is clearly applicable
to the instant case. [Paras 4, 6 and 7] [11-H; 13-D-E; 16·
A·B]
D
2. It is a settled principle of law that a judgment, which
has held the field for a long time, should not be unsettled.
The doctrine of stare decisis is expressed in the maxim
"stare decisis et non quieta movere", which means "to
stand by decisions and not to disturb what is settled."
E The underlying logic of this doctrine is to maintain
consistency and avoid uncertainty. The guiding
philosophy is that a view which has held the field for a
long time should not be disturbed only because another
view is possible. The doctrine of binding precedent has
F the merit of promoting certainty and consistency in
judicial decisions. The pronouncement of law by a larger
Bench of this Court is binding on a Division Bench of this
Court, especlally where the particular determination by
this Court not only disposes of the case, but also decides
G a principle of law. Further It would be Inappropriate to re·
agitate the very Issue or a particular provision, which this
Court .had already considered and upheld. [Paras 9, 17]
[16·D·F; 20·D·E]
Waman Rao v. Union of Ind/a, (1981) 2 SCC 362;
H Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4
SHANKER RAJU v. UNION OF INDIA
5
SCC 124; Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC . Al
223; Union of India v, Raghubir Singh, (1989) 2 SCC 754;
Krishena Kumar v. Union of India, (1990) 4 SCC 207; Union
of India & Anr. v. Paras Laminates (P) Ltd, (1990) 4 SCC 453; .
Harl Singh v. State of Haryana, (1993) 3 SCC 114 - relied
on.
A.K. EJehra v. Union of India, (2010) 5 SCALE 472 -
referred to.
Tiverton Estates Ltd. v. Wearwell Ltd., (1975) Ch 146 -
B
referred to.
C
3. In any event, both prior to and after Its amendment,
Section 8 of the Act speaks of "Term of Office" (of the
Chairman and other Members of the Tribunal). The
Legislature has used this expression consciously. The 0
expression 'term' signifies a fixed period or a determined
or prescribed duration. The word 'term' when used in
reference to the tenure of office,. means ordinarily a fixed
and definite time. There is a distinction between the words
'term' and 'tenure' as applied to a public officer or E
employee. The 'term', as applied to an office, refers to a
fixed and definite period of time. The word 'tenure' has
more extended meaning than the word 'term' and 'tenure'
of an office means the manner in which the office !s held
especially with regard to time. [Para 25) [25-D-E]
F
4. The language employed in Section 8 of the Act
does not admit any ambiguity. Section 8(1) of the Act
provides the term of office of Chairman of the Tribunal,
which shall be five years from the date he assumes his
office. The proviso quallfles and carves out an exception G
to the main enactment. The exception Is, though a
Chairman can hold office as such for a term of five years,
he cannot hold such office after he attains the age of
sixty-eight years. Sub-section (2) of Section 8 of the Act
H
6
SUPREME COURT REPORTS
(2011] 2 S.C.R.
A provides the "Term of Office" of a Member of the Tribunal.
First part of the Section envisages that a member of the
Tribunal shall hold the office for a 'term of five years'. The
term as applied to an office, refers to a fixed and definite
period of time that an appointee is authorised to serve
B .in office. Alternatively, it can be said that the term of office
that Is used by the Legislature could only mean the
period or limit of time during which the Incumbent Is
permitted to hold the office. The second part of the
Section gives discretion to the appointing authority to
C extend the term of office of a member of the Tribunal to
one more term of five years. The expression 'extendable',
that finds a place in the sub-section, could only mean that
the term of office of an Incumbent as a member of the
Tribunal can be extended If the parties agree. The
0 proviso appended to the sub-section again carves out
an exception to the main provision and restricts a
member for holding office after he has attained the age
of sixty five years. The proviso takes care of a situation
where a member whose term of office is extended for a
further period of five years cannot hold such office if he
E has attained the age of 65 years during the extended
period of five years. A combined reading of both parts
of Section 8(2) of the Act clearly demonstrates that a
member of a Tribunal can hold such office for a fixed and
definite period of time, i.e. for a period of five years from
F the date on which he enters upon his office and that
period may be extended for one more term of five years.
The contention raised by the petitioner that there is
neither prohibition nor any embargo for a member who•
has completed 10 years as Member to participate ln the
G selection process for being appointed as a Member of
the Tribunal for another term of five years, Is not
acceptable since the total term that a person can hold the
office of the Member of the Tribunal is only for a period
of 1 O years. If the office is created by the Legislature
H under due authority, it may fix the term and alter it. One 1
SHANKER RAJU v. UNION OF INDIA
7
can understand the heart burn of a person who has
A
served. as Member of the Tribunal for ten years and
thereafter, is ineligible for being appointed as a Member
of the Tribunal, but one cannot help this situation. In a
court of law or equity, what the legislature intended to be
done or not to be done can only be legitimately
B
. ascertained from what it has chosen to enact either in
express words or by reasonable and necessary
Implication. Where the Legislature clearly declares Its
intent in the scheme of a language of Statute, It is the duty
of the Court to give full effect to the same without C
scanning its wisdom or policy and without engrafting,
adding or implying anything which is not congenial to or
consistent with such express intent of legislature.
Hardship or inconvenience cannot alter the meaning
employed by the Legislature if such meaning is clear on
the face of the Statute. If the Statutory provisions do not D
go far enough to relieve the hardship of the member, the
remedy lies with the Legislature and not in the hand.s of
the Court. [Para 26] [25-H; 26-A-H; 27 ·A·E]
/RC v. Ross Minister Ltd. (1979) 52 TC 160 (HL) -
E
referred to.
5. Section 10A of the Amended Act is the saving
clause. By virtue of this Section, the Chairman, ViceChairman and Members of a Tribunal appointed prior to
F
the commencement of the Administrative Tribunals
{Amendment) Act, 2006, are to be governed by the
provisions of the unamended Act, and the rules made
thereunder, thereby their conditions of service are
:-irotected. From a plain reading of the proviso appended
G
to ~ection 10A, it is clear that the only conclusion that
coula ..... reached is that the Chairman and Members
appointed prior to the Amendment of 2007 on completion
of either their term of service or on attainment of 65 years
in the case of Chairman or 62 years in the case of
H
8
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A Members of the Tribunal, whichever is earlier, may be
considered for fresh appointment. If they are eligible in
terms of Section 8 of the Amended Act that only means
if a member has not completed 10 years term as a
member of the Tribunal, he is eligible for fresh
B appointment, provided he has not completed 65 years of
age. The proviso makes it abundantly clear that such
fresh appointment could be done provided they satisfy
the criteria prescribed under the amended Section 8 of
the Act and further, it is made subject to the condition that
C the total term of office of the Chairman shall not exceed
5 years and that of the Member, ten years. [Para 27) [27F-H; 28·A·F]
6. Section 6 of the Act provides for qualification for
appointment as Chairman, Vice-Chairman anr' -:ther
D Members. Section 8 of the Amended Act provides for
"Term of Office". These provisions are required to be read
harmoniously. The term of office of a Member of a
Tribunal is 10 years and after completion of 10 years, he
does not superannuate but he goes out of the office. The
E language of Section 10A is plain and unambiguous,
hence there is no need to call in aid any of the rules of
construction. [Para 28) [28·G·H; 29·A·C]
7. If the construction suggested by the petitioner is
F accepted, then it would lead to a situation where a person
who has been a Member of the Tribunal for 10 years
would have to start at the bottom of the ladder as a fresh
appointee. In that circumstance, those persons who are
appointed as Members such as the Petitioner, who were
till the previous day junior to persons such as the
G Petitioner, would suddenly become senior to Members
such as the Petitioner. This would lead to an anomalous
situation where a person who would have presided over
a Bench in the Tribunal for years, would suddenly
become the junior Member on the same Bench. This
H
SHANKER RAJU v. UNION OF INDIA
9
certainly cannot be the intention of the Legislature. A
A
statute is designed to be workable, and the interpretation
thereof by Court should be to secure that object unless
crucial omission or clear direction makes that end
unattainable., The doctrine of 'independence of judiciary'
has nothing to do when the tenure js fixed by a statute.
B
[Paras 30, 32] [30 A-D; 32-D·E]
Nelson Motis Vs. Union of India & Anr. (1992) 4 SCC
711; Oswal ~gro Mills Ltd. Vs. CCE, 1993 Supp. 3 SCC 316;
Omvalika Das Vs. Hulisa Shaw, (2002) 4 SCC 539; Natni
Devi Vs. Radha Devi Gupta, (2005) 2 SCC 271; Tirath Singh C
v. Bachittar Singh,(1955) 2 SCR 457; Nasiruddin v. STAT,
(1975) 2 SCC 671 and Kashmir Singh v. Union of India,
(2008) 7 sec 259 - relied on.
Holmes v. Bradfield Rural District Council, (1949) 1 A!I
D
ER 381 - referred to.··
Case law reference:
(2010) 5 SCALE 472
referred to
Para 4
(1981) 2 sec 362
relied on
Para 9
E
(1976) 4 sec 124
relied on
Para 10
(1980) 1 sec 223
relied on
Para 11
(1989) 2 sec 754
relied on
para 12
F
(1990) 4 sec 201
relied on
Para 13
(1990) 4 sec 453
relied on
Para 14
(1993) 3 sec 114
relied on
Para 15
G·
(197c; i;h'146
referred to
Para 16
(1979) 52 TC 160 (HL) referred to
·Para 26
(1992) 4 sec 111
relied on
Para 30
H
10
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
1993 Supp. 3 SCC 316 relied on
Para 30
(2002) 4 sec 539
relied on
Para 30
(2005) 2 sec 211
relied on
Para 30
B
(1949) 1 All ER 381
referred to
Para 31
(1955) 2 SCR 457
relied on
· Para 32
(1975) 2 sec 671
relied on
Para 33
(2008) 1 sec 259
relied on
Para 35
c
CIVIL ORIGINAL JURISDICTION
Under Article 32 of the Constitution of India.
Indira Jaising, R. Venkataramani (A.C) .:ind P.S.
D Narasimha, Aljo K. Joseph, Vinay Kumar Garg, Fazal Ahmad,
Namarata Singh, Sonam Anand, Anil Katiyar and Samridhi
Sinha for the appearing parties.
E
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. Since the petitioner purports to invoke
the jurisdiction of this Court under Article 32 of the Constitution
of India, it is necessary to note the relevant facts and reliefs
sought for in the petition.
F
2. The material facts which are essential to mention are
very few and they lie within a narrow compass. Shri Shanker
Raju, the petitioner, was appointed as a Judicial Member of
the Central Administrative Tribunal (in short, "the Tribunal") on
10.12.2000. After completion of his five-year term, he was
G reappointed for another term of five years and was due to
complete his second term of five years on 09.12.2010. In April,
2010, in response to an advertisement issued by the
respondent regarding vacancies of Members in the Tribunal,
Principal Bench, Delhi, he made application for the post of
H Judicial Member of the Tribunal, the post which he had held for
SHANKER RAJU v. UNION OF INDIA
11
[H.L. DATTU, J.]
nine and a half years at the time of making application. Though
A
the petitioner was eligible for the appointment in terms of his
qualification,· the respondent refused to consider his claim for
appointment for the vacancy, for the reason that the petitioner
would complete his second term of 5 years on 09.12.2010 as
a Judicial Member of the Tribunal vide the impugned
B
communication dated 12-08-2010. The main premise of the
petitioner's challenge of the said communication is that after
completion of a tenure of 10 years, he is eligible to apply for
the post afresh and must be considered on merits for his
appointment as a Member of the Tribunal and should not be
C
disqualified for appointment merely because he has completed
10 years in that office. The petitioner seeks appropriate writ
from this Court mainly in respect of the communication dated
12.08.2010 and for a direction to the respondent to consider
his case for appointment to the post of Member (J) in Tribunal o
advertised vide D.O. No.A1103/9/2010·AT dated 20.04.2010
on its own merit sans eligibility.
3. The Administrative Tribunals Act, 1985 [hereinafter
referred to as 'the Act') was amended in the year 2006 by the
E
Administrative Tribunals (Amendment) Act 2006. The
amendments were made effective from 19.02.2007. Some of
the principal changes brought about, which are relevant for the
purpose of the case are, the abolition of the post of ViceChairman; changes in the terms of office in the form of increase
F
in the age of superannuation of the Chairman from 65 years to
68 years and that of the other Members from 62 years to 65
years; the term of the Members was fixed to 5 years, extendable
by another term of 5 years; and, incorporation of Section 10A
1
as a savings clause, for saving the term of office of the
1
Chairman, Vice-Chairman and Members, who were appointed
G
prior to the coming into force of the Amendment Act.
4. It was just a few months ago, a Bench of three learned
Judges of this Court had the occasion to consider the legislative
H
12
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A competence and validity of the Administrative Tribunals
(Amendment) Act, 2006 in the case of A.K. Behra v. Union of
India, (2010) 5 SCALE 472. The reliefs prayed for by the
petitioner in that writ petition were:
B
c
D
E
F
G
H
(i) Quash and set aside the decision of the respondent to
abolish the posts of Vice-Chairman in the Central
Administrative Tribunal as reflected in the Administrative
Tribunal (Amendment) Act 2006 and direct the respondents
to restore the said posts of Vice-Chairman in Central
Administrative Tribunal forthwith;
(ii) Declare that the newly inserted Section 1 OA of the
Administrative Tribunals Act, 1985 to the extent it
postulates different conditions of service for the Members
of the Central Administrative Tribunal on the basis of their
appointment under the Un-amended Rules and under the
Amended Rules as unconstitutional, arbitrary and not
legally sustainable;
(iii) Direct the respondents to accord the conditions of
service as applicable to the Judges of the High Court to
all the Members of the Central Administrative Tribunal
irrespective of their appointment under the Un-amended
or amended Rules;
(iv) Declare that the newly inserted Section 1 OA of the
1
Administrative Tribunals Act is further unconstitutional to the
extent it stipulates that the total term in office of the
Members of the Tribunal shall not exceed 1 O years;
(v) Direct the respondents to continue all the Members
appointed under the un-amended or amended rules till they
attain the age of superannuation of 65 years;
(vi) Declare the newly inserted qualifications for
appointment as Administrative Members as reflected in
SHANKER RAJU v. UNION OF INDIA
13
[H.L. DATTU, J.]
,,
the Amended Section 6(2) as arbitrary and unsustainable A
in the eyes of law and quash the same;
(vii) Quash and set aside the newly added Sec. 12(2) of
the Act which impinges upon the independence of
judiciary;
B
(viii) Pass any other order or direction which this Hon'ble
Court thinks fit and proper in the facts and circumstances
of the case.h
5. In the case of A.K. Behra (supra), two learned judges C
(K.G. Balakrishnan, CJI and J.ty1. Panchal, J.) upheld the validity
of the impugned amendment and dismissed the writ petition,
whereas, the other learned Judge (Dalveer Bhandari, J.)
I allowed the writ petition and struck down the impugned
amendment as being arbitrary and violative of Fundamental
D
Rights guaranteed under the Constitution.
6. In AK. Behra's case (supra), the court has noticed,
apart from others, one of the reliefs sought for by the petitioner.
It is relevant to notice the prayer made and discussion on that
E
issue by the Court. They are as under:-
"to declare that newly inserted Section 10 A of the
Administrative Tribunals Act, 1985 as unconstitutional .to
the extent it stipulates that the tenn of office of the Member
of the Central Administrative· Tribunal shall not exceed
F
10 years."
The Court while considering the said relief has concluded:
"15. The plea that Section 10A, which restricts the total G
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 a retired
H
14
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
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 of five years.
B
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. This Court, in S.P. Sampath Kumar v. Union of
C
India and others [(1987) 1 SCC 124], expressed the view
that the term of five years, for holding the posts mentioned
in Section 8 of the Act was so short that it was neither
convenient to the person selected for the job nor expedient
to the scheme. This Court found that it became a
D
disincentive for well qualified people as after five years,
they had no scope to return to the place from where they
had come. The constitutional validity of the provisions of
Section 8, fixing term of office of Chairman, Vice-chairman
and Members of the Tribunal at five years period was
E
upheld by this Court in Durgadas Purkyastha v. Union of
India and others [(2002) 6 sec 242]. Therefore, now
provision is made for extension of 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
F
years of a Member so that he can effectively contribute to
speedy disposal of cases, on merits after gaining expertise
in the service jurisprudence and having good grip over the
subject. Under the unamended provisions of the Act also
the term of Vice-Chairman and Member was extendable
G
by a further period of five years and under the unamended
provisions also a Member of the Bar, who was appointed
as Judicial 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
H
tenure of ten years for a Member of the Bar was/is
SHANKER RAJU v. UNION OF INDIA
15
[H.L. DATIU, J.)
unconstitutional. The provisions of Section 8 fixing A
maximu_m term of office of the chairman at sixty eight 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 ... uch appointments. Said
provision cannot be assailed as arbitrary having effect of
B
jeopardizing security of tenure. 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 c
provisions of the Act, is eligible for appointment as the
Chairman of the Tribun-al or as the Chairman, Vicechairman or other 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 o
circumstances, this Court fails to appreciate as to how the
amended provisions restricting the total tenure of a
Member of the Tribunal to ten years would be
unconstitutional. The unamended Section 6 of the
Administrative Tribunals Act, 1985 indicated !hat the
E
Chairman, Vice-Chairman and other Members, held
respective offices in one capacity or the other, had
reasonably spent sufficient number of years of service in
those posts before they were appointed in the Tribunal and,
therefore, the concept of security of tenure of service in
F
respect of those whose term was reduced was not
regarded as appropriate. The impugned provision,
therefore, cannot be assailed on the ground of
arbitrariness having the effect of jeopardizing the security
of tenure of Members of the Bar beyond reasonable limits.
G
An option is reserved to the Government to re-appoint a
Member on 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
H
16
SUPREME COURT REPORTS
(2011) 2 S.C.R.
A
office at the end of five years because such Chairman or
Member is eligible for appointment for another period of
five years 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 Members, one
B
of whom will be the Chairman of the Tribunal. Under the
circumstances, it is difficult to conclude that the provision
restricting the total tenure of a Member to ten years is either
arbitrary or illegal.•
C
7. The decision of the aforesaid Bench of this Court is
binding on us and is clearly applicable to the. case before us .
•
However, out of respect to the learned senior counsel, who
pressed the contentions very seriously, we may briefly and
independently examine the question in this case also.
D
8. Before we turn to the facts of the present petition, we
E
would like to make certain general observations and explain
the legal position with regard to them.
The Doctrine of Stare Decisis
9. It is a settled principle of law that a judgment, which has
held the field for a long time, should not be unsettled. The
doctrine of stare decisis is expressed in the maxim "stare
decisis et non quieta moveren, which means "to stand by
F decisions and not to disturb what is settled." Lord Coke aptly
described this in his classic English version as "those things
which have been so often adjudged ought to rest in peace."
The underlying logic of this doctrine is to maintain consistency
and avoid uncertainty. The guiding philosophy is that a view
G which has held the field for a long time should not be disturbed
only because another view is possible. This has been aptly
pointed out by Chandrachud, C.J. in Waman Rao v. Union of
India, (1981) 2 SCC 362 at pg. 392 thus:
"40 .... for the application of the rule of stare decisls, it is
H
SHANKER RAJU v. UNION OF INDIA
17
. [H.L. DATTU, J.]
not necessary that the earlier decision or decisions of A
longstanding should have considered and either accepted
or rejected the particular argument which is advanced in
the case on hand. Were it so, the previous decisions could
more easily be treated as bindi~g by applying the law of
. precedent and it will be unnecessary to take resort to the
B
principle of stare decisis. It is, therefore, sufficient for
invoking the rule of stare decisis that a certain decision
was arrived at on a question which arose or was argued,
no matter on what reason the decision rests or what is the
basis of the decision. In other words, for the purpose of C
applying the rule of stare decisis, it is unnecessary to
enquire or determine as to what was the rationale of the
earlier decision which is said to operate as stare decisis."
10. In Manganese Ore (India) Ltd. v. Regional Asstt. CST,
0
. (1976) 4 sec 124, at page 127, it was opined that the doctrine
of stare decisis is a very valuable principle of precedent which
cannot be departed from unless there are extraordinary or
special reasons to do so.
11. In Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC
223 at page 233, this Court cautioned that, "the Judgments of
this Court are decisional between litigants but declaratory for
the nation.· This Court further observed:
El
"28 .... Enlightened litigative policy in the country must
F
accept as final the pronouncements of this Court ... unless · ·
the subject be of such fundamental importance to national
life or the reasoning is so plainly erroneous in the light of
. later thought that it is wiser to be ultimately right rather than
to be consistently wrong. Stare decisis is not a ritual of G
convenience but a rule with limited exceptions."
12. In Union of India v. Raghubir Singh, (1989) 2 SCC
754, at page 766, this Court has enunciated the importance of
doctrine of binding precedent in the development of H
18
SUPREME COURT REPORTS
[2011) 2 S.C.R.
A jurisprudence of law:
B
c
D
E
F
"8. Taking note of the hierarchical character of the judicial
system in India, it is of paramount importance that the law
declared by this Court should be certain, clear and
consistent. It is commonly known that most decisions of
the courts are of significance not merely because they
constitute an adjudication on the rights of the parties and
resolve the dispute between them, but also because in
doing so they embody a declaration of law operating as a
binding principle in future cases. In this latter aspect lies
their particular value in developing the jurisprudence of the
law.
9. The doctrine of binding precedent has the merit of
promoting a certainty and consistency in judicial decisions,
and enables an organic development of the law, besides
providing assurance to the individual as to the
consequence of transactions forming part of his daily
affairs. And, therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a court."
13. In Krishena Kumar v. Union of India, (1990) 4 SCC
207, at page 233, this Court has explained the meaning and
importance of sparing application of the doctrine of Stare
Decisis:
"33. Stare decisis et non quieta movere. To adhere to
precedent and not to unsettle things which are settled. But
it applies to litigated facts and necessarily decided
questions. Apart from Article 141 of the Constitution of
G
India, the policy of courts is to stand by precedent and
not to disturb settled point. When court has once laid
down a principle of law as applicable to certain state of
facts, it will adhere to that principle, and apply it to all
future cases where facts are substantially the same. A
H ·
deliberate and solemn decision of court made after
SHANKER RAJU v. UNION OF INDIA
19
[H.L. DATIU, J.]
argument on question of law fairly arising in the case, and A
necessary to its determination, is an authority, or binding
precedent in the same court, or in other courts of equai
or lower rank in subsequent cases where the very point
is again in controversy unless there are occasions when
departure is rendered necessary to vindicate plain,
B
obvious principles o_f law and remedy continued injustice.
It should be invariably applied and should not ordinarily
be departed from where decision is of long standing and
rights have been acquired under it, unless considerations
of public policy demand it."
c
14. In Union of India & Anr. v. Paras Laminates (P) Ltd,
(1990) 4 SCC 453 at pg. 457, this Court observed as under:-
"9. It is true that a bench of two members must not lightly
disregard the decision of another bench of the same
D
Tribunal on an identical question. This is particularly true
when the earlier decision is rendered by a larger bench.
The rationale of this rule is the need for continuity,
certainty and predictability in the administration of justice.
Persons affected by decisions of tribunals or courts have
E
a right to ex;>ect that those exercising judicial functions
will follow the reason or ground of the judicial decision in
the earlier cases on identical matters".
It has been opined that in the absence of a strict rule of
F
precedent, litigants would take every case to the highest court,
in spite of a ruling to the contrary, in the hope that the decision
may be overruled.
15. In Hari Singh v. State of Haryana, (1993) 3 SCC 114,
G
at page 120, this Court stated the importance of consistent
opinions in achieving harmony in Judicial System:
"10. It is true that in the system of justice which is being
administered by the courts, one of the basic principles
which has to be kept in view, is that courts of coordinate
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20
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A
jurisdiction, should have consistent opinions in respect
of an identical set of facts or on a question of law. If courts
express different opinions on the identical sets of facts
or question of law while exercising the same jurisdiction,
then instead of achieving hannony in the judicial system,
B
it will lead to judicial anarchy."
16. In Tiverton Estates Ltd. v. Wearwell Ltd., (1975) Ch
146 at page 371, Sorman L. J., while not agreeing with the view
of Lord Denning, M.R. about desirability of not accepting
c previous decisions, said as follows:
D
"I decline to accept his lead only because I think it
damaging to the law to the long term-though it would
undoubtedly do justice in the present case. To some it
will appear that justice is being denied by a timid,
conservative adherence to judicial precedent. They
would be wrong. Consistency is necessary to certaintyone of great objectives of law."
17. The second observation we wish to make Is, the
E doctrine of binding precedent has the merit of promoting
certainty and consistency in judicial decisions. The
pronouncement of law by a larger Bench of the this Court is
binding on a Division Bench of this court, especially where the
particular determination by this Court not only disposes of the
F case, but also decides a principle of law. We further add ~hat
it would be inappropriate to reagitate the very issue o~ a
particular provision, which this Court had already considered
and upheld.
G ·
18. Faced with this situation, Shri. P.S. Narasimha, reamed
senior counsel appearing for the petitioner, submits that the
, issue before this Court in the present writ pe•:tion is different
from the issue raised and canvassed in A.K. Behra's case
(supra} by pointing out that the relief sought for in the two cases
H are not identical. He contends that the case of A.K. Behra
SHANKER RAJU v. UNION OF INDIA ·
21
[H.L. DATIU, J.]
(supra) was limited to the challenge to Constitutional validity of A
the Administrative Tribunal (Amendment) Act, 2006, and further
in that case, the question, whether a Member of the Tribunal
appointed under the Act, prior to its amendment, is eligible for
re-appointment after completion of a term of ten years, was
neither argued, nor considered by this Court. It is further
B
contended by Shri Narasimha that this Court was not called
upon to decide the validity of Section 8 and Section 1 OA of the
Act. It is contended that in AK Behara's case (supra), this Court
did not deal with the question of appointment of a member
afresh after completion of his term under Section 8 or of the c
appointment of the existing members protected under Section
10 of the pre-amended Act. According to the learned senior
counsel, a person who is appointed as a Member of the
Tribunal, is appointed for a term of five years, which is
extendable by one more term of five years by the Government, o
if such person is found to be suitable and effective for the job,
and there is no embargo for such a person to re-apply again
after completion of his term of 1 O years and such person can
be appointed again on a fresh term, if the eligibility criteria
prescribed in Section 6(2)(b) are met, till he attains the age of E
65 years. The learned senior counsel further submits that the
"Terms of Office" for a Member as prescribed in Section 8, and
Section 1 OA is merely a transitory provision meant only to save
the terms and conditions of service of existing members, as
on the date of amendment and not a substantive provision that
F
regulates the eligibility for fresh appointment. In sum and
substance, the argument of Shri Narasimha is that a person is
eligible for appointment as a Member as many times as he is
selected and appointed, but after a term of 10 years, he has
to seek fresh appointment. He states that this can be done by G
a member till such time, he attains the age of 65 years.
19. Ms. Indira Jaising, learned Additional Solicitor General,
per contra, would submit that Section 8 of the Amended Act is
clear and unambiguous. The ~egislature clearly declar,s the
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22
SUPREME COURT REPORTS
[2011] 2 S.C.R.
A term of office for a member of the Tribunal as 10 years and,
therefore, petitioner is ineligible for fresh appointment. However,
on a pointed query by the Court, the learned ASG submits that
a person, who has completed term of 10 years, is eligible for
appointment as Chairman of such other Tribunal, but not
B member of the Tribunal. The learned ASG states that the
Amended Act has put in clear terms that there is a limitation of
10 years for a person to hold office as a Member, and this
amendment made explicit what was implicit earlier. In a nutshell, the argument of the learned ASG is that once a person
c has completed 1 O years in office as Member of the Tribunal,
he is not eligible for re-appointment.
20. This Court was also assisted by Shri R. Venkataramani,
learned senior counsel, in his role as Amicus Curiae.