Supreme Court declares requirement of minimum age of 50 years for appointment in Tribunals as void and inoperative
ABCAUS Case Law Citation
ABCAUS 3528 (2021) (07) SC
Important case law relied referred:
Union of India vs. R. Gandhi, President Madras Bar Association
Madras Bar Association vs. Union of India & Anr.
Rojer Mathew vs. South Indian Bank Limited & Ors.
The Madras Bar Association filed a Writ Petition seeking a declaration that Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as ultra vires Articles 14, 21 and 50 of the Constitution of India inasmuch as these are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down by the Hon’ble Supreme Court.
Sections 183 to 189 of the Finance Act 2017 dealt with conditions of service of Chairperson and Members of Tribunals, Appellate Tribunals and other authorities.
The Central Government was empowered by Section 184 to make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of the Chairperson and Vice-Chairperson (and commensurate positions bearing different nomenclature) and other Members.
As per the first proviso, the Chairperson, Vice-Chairperson (and commensurate positions bearing different nomenclature) or Member of the Tribunal shall hold office for such term as may be specified by the rules made by the Central Government, not exceeding five years from the date on which such person enters office. The Chairperson, Chairman or President can hold office till they reach the age of 70 years and the Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer or any other Member can continue till the age of 67 years, as per the second proviso to Section 184. A Notification was issued by the Central Government by which the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (hereinafter referred to as the 2017 Rules) were made.
The Hon’ble Supreme Court upheld the validity of section 184 but directed the Government to modify 2017 rules. Following directions from the Hon’ble Supreme Court, the 2020 Rule were framed.
Later, the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 was promulgated and Chapter II thereof made amendments to the Finance Act, 2017.
The dispute raised in the Writ Petition was with respect to the first proviso to Section 184(1) according to which a person below the age of 50 years shall not be eligible for appointment as Chairperson or Member and also the second proviso, read with the third proviso, which stipulates that the allowances and benefits payable to Chairpersons and Members shall be the same as a Central Government officer holding a post carrying the same pay as that of the Chairpersons and Members.
Section 184(7) has also been challenged which stipulates that the Selection Committee shall recommend a panel of two names for appointment to the post of Chairperson or Member and the Central Government shall take a decision preferably within three months from the date of the recommendation of the Committee, notwithstanding any judgment, order or decree of any Court.
The term of office or the age of retirement of the Chairperson and Members is provided under section 184(11) which was also challenged in the instant Writ Petition.
The Hon’ble Supreme Court held as under:
(i)The first proviso to Section 184(1) of the Finance Act, 2017 declared void and inoperative. Similarly, the second proviso to Section 184(1) of the Finance Act, 2017 held to be void and inoperative.
(ii)Section 184(7) of the Finance Act, 2017 declared void and inoperative.
(iii) Section 184(11)(i) and (ii) declared void and unconstitutional.
(iv)The declaration in para 53(iv) of Madras Bar Association shall prevail and the term of Chairperson of a Tribunal shall be five years or till she or he attains the age of 70 years, whichever is earlier and the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.
(v) The retrospectivity given to the proviso to Section 184(11) as introduced by Section 12 of the Tribunals (Reforms Rationalisation and Conditions of Service) Ordinance, 2021 upheld; however, without in any manner affecting the appointments made to the post of Chairperson or members of various Tribunals, upto 04.04.2021. In other words, the retrospectivity of the provision shall not affect the tenures of the incumbents appointed as a consequence of Hon’ble Supreme Court various orders during the interregnum period.
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