CHAPTER-5. Composition and Structure of the Central Administrative Tribunal. Chapter-2 of the Administrative Tribunals Act, 1985 deal

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1 124 CHAPTER-5 Composition and Structure of the Central Administrative Tribunal 5.1 Establishment of the Tribunal Chapter-2 of the Administrative Tribunals Act, 1985 deal with the establishment of the Tribunals and the Benches thereof.* The Act envisages setting up of three kinds of Administrative Tribunals, namely, the Central Administrative Tribunal, the p State Administrative Tribunals, and the Joint Administrative Tribunals. Furthermore, the Act also contains provision for constituting a common Bench or Benches of the Central Administrative Tribunal and a State Administrative Tribunal. It is, however, important to note that these Tribunals do not constitute a hierarchy of Administrative Tribunals and, therefore, no appeal lies from a State/Joint Administrative Tribunal to the Central Administrative Tribunal. They are independent of each other having jurisdiction, powers and authority over different categories of employees. The competent authority to establish any Tribunal under the Act is the Central Government. In so far as the establishment of Administrative Tribunals for the States is concerned the relevant provisions of the Act are merely enabling and 1. Section 4(1 ) 2. Section 4(2) 3. Section 4(3). A Tribunal under this clause may be established only 1f two or more States enter Into an agreement to that effect and the same 1s approved by the Central Government. 4. Clause (5) of Section 4 empowers the Central Government to designate, with the concurrence of any State Government, a Bench or Benches of the State Administrative Tribunal as a Bench or Benches of the Central Administrative Tribunal and conversely, on a request from any State Government may designate a Bench or Benches of the Central Administrative Tribunal as a Bench or Benches of the State Administrative Tribunal for that State.

2 125 permissive in nature. The Central Government is empowered to establish a Tribunal for any State on the receipt of a request, in this behalf, from the State Government concerned. On the face of it, or a literal construction of the provision of sub-section (5) of section 4 may lead to the conclusion that it is not obligatory for the Central Government to exercise its power under this sub-section. But, such a construction cannot be considered to be sound and proper. The word "ma.y" in the context ought to be interpreted as "shall", thus making it obligatory for the Central Government to establish a Tribunal for any State if a formal request, to that effect, has been made by the State Government concerned. There should not be, in principle, any valid reason or justification for the Central Government to refuse to act and exercise its power when the establishment of a proposed Tribunal for a State, hardly involves any financial or other administrative implications to the Central Government. In contrast to the permissive provisions of sub-sections (2) and (3) relating to the establishment of State Administrative Tribunals and the Joint Administrative Tribunals, sub-section (1) of section 4 contains a mandatory provision, which makes it obligatory for the Central Government to establish the central Administrative Tribunal, with different Benches all over the country, to deal with and 5. Sub-Sections (2) and (3) of Section 4, providing for the establishment, by the Central Government of the State Administrative Tribunals and the Joint Administrative Tribunals, respectively, use the word "may", whereas the corresponding provision of sub-section (1), which contains provision for the establishment of the Central Administrative Tribunal, uses the word "shall".

3 126 adjudicate upon disputes relating to recruitment and all service matters of the Central Government employees, the members of All India services, the employees of any local or other authorities or of any corporation owned or controlled by the Government. And in fulfilment of the mandate of section 4(1) of the Act the Central Government established the Central Administrative Tribunal with effect from November 1, 19^5 5.2 Composition of the Tribunal According to the provisions of section 5(D of the Act the central Administrative Tribunal is to be composed of a Chairman and such number of Vice-Chairmen and the Judicial and Administrative Members, as the Government may, from time to time, deem necessary and proper. The Tribunal is, however, contemplated to be divided into several Benches with Principal Bench in Delhi and Additional Benches at such other places as 7 the Central Government may, by notification, specify. The entire jurisdiction, powers and authority of the Tribunal is exercisable by these Benches operating in different parts of the country. Initially, the Central Administrative Tribunal had its Benches at five placed only including the Principal Bench at o New Delhi. In the very first batch of writ petitions filed before the Supreme Court and the different High Courts, 6. Vide Notification No. GSR 764(E), dated 28th bseptember 1985, superseding the earlier notification No. 667(E) dated which Inturn had superseded an earlier notification No.608(E) dated Section 5(7). 8. Allahabad, Bombay, Calcutta and Madras were the other four places where the Tribunal had its Benches.

4 127 challenging the vires of the Act, one of the main grounds of challenge was that the establishment of the Benches of the Tribunal, selectively, at a very few places only would prejudice the parties whose cases were pending before the respective High Courts located at places other than these. In view of the assurance given by the Attorney General, on behalf of the Central Government, that early steps would be taken to set-up a Bench of the Tribunal at the seat of every High Court, the Supreme Court, by an interim order- 7, made on Q October 31, 1985, made certain temporary arrangements to meet the working difficulties till such time as new Benches were established. By the time the main petition came up for final hearing and disposal in December, 1986, the central Government had not fully acted upon its assurance to establish a Bench of the Tribunal at the seat or seats of each High Court. The Attorney General again filed a memorandum which contained an assurance that the Government would soon arrange for sittings of the Tribunal at the seat or seats of each High Court on the basis that 'sittings' will include 'Circuit Sittings' and the details thereof would be worked out by the Chairman or the Vice- Chairman concerned. It may be observed that through this memorandum the Government had slightly changed its earlier stand or undertaking to set up a permanent Bench of the Tribunal at the seat or seats of every High Court. 9. Sampath Kumar Vs. Union of India (1985) 4 SCC These Included, 1nter-al1a, filing of an application or petition 1n the Registry of the High Court, periodic visit by a Member of the concerned Bench at short Intervals to deal with urgent matters; holding of circuit Benches for regular hearing and disposal, etc. Ibid., at page Sampath Kumar and other Vs. Union of India, AIR 1987 S.C. 368 at p. 393.

5 128 In the light of the assurance given on behalf of the Central Government the Supreme Court did not think it necessary to pronounce upon the validity of this ground of challenge. In his separate but concurring judgement Chief Justice Bhagwati, P.N., observed that for the Administrative Tribunal to be an equally effective and efficacious substitution of the High Court, on the basis of which alone the impugned Act could be sustained, there must be a permanent or if there is not sufficient work, then a Circuit Bench of the Administrative Tribunal at every place where there is a seat of the High Courts and the Central Government was, accordingly, directed to do the needful and before March 31, I establish the Benches of the Tribunal on or In compliance with the directions of the Supreme Court and in fulfilment of its own undertaking to this effect the Central Government has increased the number of Benches of the Tribunal by establishing permanent Benches at many other new places and adding more Benches to the existing ones where the 13 work load has been found to be high. Yet, in as many as seven places or the seats of the High Courts there do not exist permanent Benches of the Tribunal. At these and other places Circuit Benches are held periodically- Subject to any order or direction, issued by the Chairman, in this regard, the Vice-Chairman of a Bench concerned regulates the conduct of Circuit sittings at places falling within its territorial jurisdiction. 12. Ibid., at p At present the Tribunal has permanent Benches at seventeen different places 1n the country. The total strength of the Tribunal 1s of 66 Members, including the Chairman and Vice-Chairman.

6 129 5«3 Composition of the Benches Section 5 of the Act deals, inter alia, with the composition of the Benches of the Tribunal. It provides for the constitution of the following kinds of the Benches of the Tribunal Division Bench 'This is the normal Bench of the Tribunal, ordinarily constituted to hear and decide all kinds of service disputes which fall within the jurisdiction of the Tribunal, except those in respect of which the Chairman is authorised to provide otherwise. The expression "Division Bench", as such, has not been used anywhere in the Act but, the nomenclature is adopted here on the analogy of the practice followed by the Courts to designate a two member Bench of the Court as a Division Bench. A Division Bench of the Tribunal is constituted under sub-section (2) of section 5 of the Act. According to the provision of this sub-section a Division Bench must consist of one judicial Member and one Administrative Member. Prior to its amendment in 1986,section 5, however, did not contain any requirement of including a judicial member in any Bench of the Tribunal, thereby permitting the preponderance of Administrative Members in a Bench or Benches. The Supreme Court of India took a very serious note of this flaw in the Act and by the interim order, issued in the

7 130 Sampath Kumar's case, it directed the Government to provide, by way of suitable amendment in the Act, for the inclusion of a judicial Member in a Bench of the Tribunal. In the Court's opinion the proposed amendment was necessary to make the Tribunal, set up under the Act, a real substitute of the High Court, in service matters. The presence of a judicial member in a Bench was deemed absolutely necessary because the service matters, which have been removed from the jurisdiction of the High Court under Article 226 of the Constitution and entrusted to the Administrative Tribunal set up under the Act, often involve questions of interpretation and applicability of Articlesl4,15,16 and 311 of the Constitution. These questions require for their determination not only judicial approach but also knowledge and expertise in this particular branch of Constitutional law. The presence of Administrative Member would, of course, provide input of practical experience in the functioning of services and add to the efficiency of the Tribunal but, in the opinion of the Court, the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage, would definitely impair the efficacy or effectiveness of the Administrative 15 Tribunal as compared to High Court. 14. Supra note 9, at p Supra note 11, at p. 390.

8 Larger Bench or Full Bench Clause (d) of sub-section (5) provides for the Constitution of a Larger or Full Bench consisting of more than two members to hear and decide a case or cases in the following situations - (i) If the case falls within the category or categories of cases specified by the Chairman under any general order issued by him, in this regard. The Chairman may issue such an order either of his own or in pursuance of any rules that may be framed by the Central Government in this connection. It is submitted that there seems to be no need or justification for the provision enabling the Government to frame rules in this context. It is the Chairman who, alone, is the more appropriate and competent authority to exercise his judgement or discretion in this regard. It may be pointed that no such general order has been issued by the Chairman so far. Neither has the Central Government made any rules in this regard. (ii) If the Chairman, having regard to the nature of question involved in a particular case, is of the opinion that it ought to be decided by a Larger Bench of more than two members, and issues a special order to that effect. In Gulab Choudhary Vs. Union of India, it was observed by the Cuttak Bench of the Central Administrative Tribunal that the constitution of a 16. (1990) 13 ATC 287.

9 132 Larger Bench becomes necessary only when there are conflicting views of two Benches on question of law and not merely because an important issue is involved. It is important to note here that a Larger Bench or Full Bench must always include at least one Judicial Member and one 17 Administrative Member '. 5«33 Single Member Bench Sub-section (6) of section 5 provides for a Single- Member of the Tribunal to function as Bench and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may, by general or special order specify. The provision is intended to entrust simple cases or routine matters, to the Single-Member Benches. In exercise of the power under this sub-section a general order 1 o has already been Issued by the Chairman, whereby all members of the central Administrative Tribunal have been authorised to function as a Bench consisting of single member to exericse the jurisdiction, powers and authority of the Tribunal in respect of cases falling in any of the eleven categories specified therein. 17. Proviso to sub-section (4) of Section 5, Inserted by the Amendment Act of Order No. 1/32/87-JA/5302 dated June 26, These Include cases relating to change of date of birth,* posting, transfers; allotmentt and eviction from Government accommodation J fixation of pay? crossing of efficiency bar; grant of family pensions advances or loans; stagnation 1n Increment; passes to Railway employees; claims of TA, LTC, Medical reimbursement? leaves; joining time and overtime; entry 1n character rolls made otherwise than as a measure of penalty.

10 133 - Apart from the consideration of economic expediency the provision for constituting Single-Member Benches have, apparently, been incorporated with a view to accelerating the rate of disposal and thus, provide quick relief to the employees. But, at the same time these considerations have not been allowed to affect, adversly the quality of justice to be delivered by the Tribunal. The proviso to sub-section (6) further stipulates that if at any stage of the hearing of any such case or matter it appears to the Member constituting the Bench that the case or matter is of such a nature that it- ought to be heard by a Bench, consisting of two Members he may refer the case to the Chairman for being transferred to such Bench as he may deem fit. The recent decision of the Supreme Court in Shri Amulya 20 Chandra Kalita Vs. Union of India doubts regarding the validity of constituting has, however, cast some Single-Member Benches. In this case an order passed by a Single-Member Bench, constituted in pursuance of the general order issued by the Chairman, was set-aside and the Court remanded the matter to the Tribunal 'for disposal in accordance with law by a Bench properly constituted as required by section 5(2) of the Statute.' Though a review petition is already pending before the Supreme Court but, in the light of certain peculiarities of the case, uncertainty exists about the scope and effect of 20. Judgement Today 1990(1) S.C. 558 Decided on

11 134 judgment. It appears that the provisions of sub-section (6) of section 5 and the order issued by the Chairman thereunder, providing for the constitution of a Single-Member Bench, were not brought to the notice of the Hon'ble Court. This inference may be drawn from the following observations of the Supreme Court. "3... Section 5(1) sets out the Constitution of the Tribunal and adds that 'the jurisdiction, powers and authority of the Tribunal may be exercised by Benches thereof. Sub-section 2 of that section next provides that 'a Bench shall consist of one Judicial Member and one Administrative Member 1. No provision to the contrary 1s shown to us. It 1s, therefore, statutory recognised that every Bench of the Tribunal must consist of a Judicial Member and an Administrative Member, It 1s, therefore, obvious that the 21 Administrative Member alone could not have heard and decided the matter". The fact that the Court did not pronounce any judgement on the point of the validity of section 5(6) and the order issued by the Chairman, thereunder, leaves open the question about the validity of the constitution of Single-Member Bench. It may, however, be submitted that keeping in view the judicial character of the Tribunal it is essential that a Single Member Bench should always consist of the Judicial Member. However, trival or simple the case or matter may be the requirement of justice must be met both, in fact and appearance. Hence, an Administrative Member should not be allowed to sit and function as a Single-Member Bench. 21. Ibid., at p. 559.

12 ^ Principal Bench Section 5 of the Act, as originally enacted,maintained a distinction between the Principal Bench and the Additional Benches. According to the provisions of sub-section (3) of the unamended section 5, the Bench of the Tribunal for which the Chairman was appointed as the Presiding Officer was to be known as the Principal Bench. It was to consist of at least two other member's. The Act did not anywhere lay the requirement of including a Judicial Member in the Bench. The Act also did not specify the place where the Principal bench was to sit, rather 22 the matter was left to the discretion of the Government However, after the amendment of the Act in 1986 the old distinction between the Principal Bench and the Additional Benches has been practically abolished. The only ground of distinction, based upon their composition, that earlier existed, no longer holds good, because under the amended provisions of section 5 the composition of all Benches of the Tribunal are to be similar, that is, one Judicial Member and one Administrative Member. Even the Chairman or a Vice-Chairman while sitting in any Bench does so in the capacity of a Judicial Member or the Administrative Member, as the case may be. He does not enjoy any superior status in the bench. Yet the Act still retains the expression "Principal Bench" to designate the Bench of the Tribunal sitting at New Delhi. 22. Sub-section (7) of Section 5 of the unamended Act.

13 Additional Bench The expression "Additional Bench" was originally used in the Act to refer to any Bench other than the Principal Bench of the Tribunal. It was required to be presided over by the Vice- Chairman and was to consist of at least any two other members. Thus, the only point of distinction between a Principal Bench and the Additional Benches was that whereas the Principal Bench was to be presided over by the Chairman, in all other Benches or Additional Benches, Vice-Chairmen were to act as the presiding officers. In all other respects they were alike, enjoying the equal status and exercising similar jurisdiction, power and authority. However, as already observed, the above distinction between the Principal Bench and an Additional Bench* based upon their respective Presiding Officers, no longer holds good subsequent to the Amendment Act of The Act, in its present form, does not at all require a Bench to have a Presiding Officer. In fact the expression "Additional bench" does not, as such, occur in any part of the Act. Of course, in certain Government notifications J this term has been used in relation to any Bench of the Tribunal located at any place other than Delhi. A Bench other than the Principal Bench is now called as the other Bench, or the Bench of the place where it is located, or the Bench, simpliciter. 23. For example the notification Issued under section 18(1) of the Act.

14 Circuit Bench As already observed the Central Administrative Tribunal exercises its jurisdiction through the Benches which have been set-up in the different parts of the country* The territorial jurisdiction of these Benches is determined by the Central Government by issuing the necessary notifications in this 24 regard, from time to time. At present, the Tribunal has its permanent Benches in seventeen places only. The jurisdictional 25 limits of these 'Benches extend over vast territories. As many as six Benches exercise their jurisdiction over the territories of more than one State or Union Territory. In seven other cases, each bench exercises jurisdiction within the geographical limits of the respective State or the Union Territory. Uttar Pradesh and Rajasthan are the only two States in the country which have permanent Benches of the Tribunal at more than one place. Keeping in view the fact that the Tribunal is the 'Court of first instance' to hear original applications or petitions, in respect of all kinds of service disputes, aggrieved parties will have to travel long distances to file the application/ petition before the concerned Bench. In order to mitigate such hardships and inconveniences to the parties Circuit Benches or Circuit sittings are conducted in different places, falling within the jurisdictional limits of a particular permanent 24. See Section 18(1) 25. See Annexure II.

15 Bench concerned. The place(s) and frequency of these Circuit Benches are, normally determined by the Vice-Chalrman of the Bench concerned subject to the overall control and supervision by the Chairman.In doing so a Vice-Chairman has to take into account various factors, such as, the number of Members available in the Bench, workload of cases at a particular place, convenience of the litigants, availability of accommodation, etc As a result no uniform or consistent pattern is 27 to seen in this regard '. Apparently, due to the insufficient number of Members at most of the places where the Tribunal has its permanent Benches,very few Circuits are conducted both,in terms of periodicity and the number of places. In order, therefore, to streamline the conduct of Circuit Benches, and, thus, to improve the efficacy and efficiency of the Tribunal, the following steps have to be taken at the earliest, (i) In pursuance of the provisions of section 5(7) of the Act the Central Government should, specify,by rules, the places where Circuit Benches of the Tribunal should be held. Every effort should be made to make a gradual increase in the number of such places. This,evidently,requires the simultaneous increase in the number of Members of the Tribunal. Hence, the number and strength of the existing permanent Benches must be increased. The Central Government should also make suitable arrangements for the accommodation at every such places where the Circuit benches are to be held. 26. However, 1n accordance with the directions Issued by the Supreme Court (supra note 11) Circuit Benches must be conducted at all places or seats of the High Courts-where "the Tribunal does not have any permanent Bench. 27 For example, 1n Madhya Pradesh, the Circuits at Gwallor and Indore were conducted by the same Bench of two members which sat 1n Jabalpur, 1n U.P., prior to the 1 establishment of the permanent Bench at Lucknow, the Benches of the Tribunal used to sit 1n Allahabad for three weeks and then one Bench used to go on circuit for one week 1n a month to Lucknow.

16 139 (li) The Chairman of the Tribunal should also ensure that Circuit Benches are held at regular intervals. General or special orders may be issued, for the purpose, specifying the (minimum) frequency and duration of each Circuit Bench. 5.4 Qualifications for Appointment Section 6 of the Act lays down the qualifications for being eligible to be appointed as the Chairman, Vice-Chairman, Judicial Member and Administrative Member of the Tribunal. The provisions of this section have been recast in the light of the observations made by the Supreme Court in the famous Sampath 27A Kumar's case. It was stressed by the Court that the Tribunal must be so manned as to inspire confidence in the public mind that it is a highly competent and expert mechanism with judicial approach and objectivity as is to be found in the High 28 court. This is possible only if well qualified persons are appointed as the Chairman, Vice-Chairman, and Members of the Tribunal. However, as shall be pointed out at the appropriate places, the provisions of the Act prescribing eligibility qualifications in respect of the Chairman, Vice-Chairman and Members, still suffer from certain defects. 5.4l Chairman In order to be eligible to be appointed as the Chairman of the Tribunal a person must possess either of the following 27A. AIR 1987 S.C Ibid., at p.390.

17 HO qualifications ": i. He should be or should have been a judge of a High Court, ii. He has, for at least two years, held the office of Vice- Chairman. Prior to the passing of the Amendment Act of 1987 a person was also qualified for being appointed as the Chairman of the Tribunal if he had, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a stale of pay not less than that of a Secretary to the Government of India. However, after the Supreme Court decision in the above mentioned Sampath Kumar's case, sub-section (3) of section 6, embodying this qualification has been deleted from the Act. In so far the first qualification is concerned it may be observed that a sitting judge of a High Court is less likely to accept the office of Chairmanship of the Tribunal^0. The only additional advantage to a judge would be that he would be able to continue in that position or office upto sixty five years of age whereas as a High Court Judge he would have retired at the age of sixty-two years. This is also possible only if he is offered the appointment in the Tribunal at an age of sixty years so that he could avail a full term of five years. In case it is done at the age of, say, years he would complete 29. Section 6(1). 30. Professor B.K.Gupta has beautifully analysed this aspect; see, Administrative tribunals and Administrative Justice 1985, 31, IJPA 626, at pp

18 141 his five years around the same time as he would have retired as a judge of the High Court. Though a provision has now been made in the Act for reappointment for another term of five years but, this again in subject to the same superannuation age...of 65 years. There is little likelihood of any sitting judge of a High Court accepting the assignment of Chairmanship at some earlier age in the mere hope of serving two full terms, because he would not like to take any chance at the cost of losing part of his service tenure in the High Court. 31 any In the light of these facts, it is doubtful whether a sitting judge would prefer an assignment of Chairmanship in the Tribunal-'. There may be a remote possibility in a case where a judge is transferred to another High Court where he is not at all inclined to go and would, instead prefer either to resign or accept the office of the Chairman of the Tribunal. Retired judges of the High Court would, of course, be generally available for appointment as Chairman but, it may not be much fruitful to do so because he would not be in a position to complete a full term of five years J. It would not be a rewarding exercise to appoint him for a short period of 2-3 years. Even this term is possible only if a judge is appointed as the Chairman soon after his retirement. Under these circumstances there are high probabilities of a Vice-Chalrman, who has served, as such, for the requisite period of two years, being appointed as the Chairman of the 31. Section 8, as amended by the Act of It may be pointed here that the first two Incumbents of the office joined the Tribunal, just about 2-3 months before their retirement as Chief Justices of the Bombay High Court and the Allahabad High Court, respectively. 33. In view of the Superannuation age limit at 65 years. There may, however, be certain rare cases where a judge has sought, premature retirement. But, even then 1t 1s doubtful whether he would accept the Chairmanship of the Tribunal.

19 M2 Tribunal. The Act does not require the Vice-Chairman to possess any legal qualifications for this purpose. In upholding the validity of this provision it was observed by the Supreme Court that if a person has held office as Vice-Chairman for a period of at least two years he would have gathered sufficient experience and acquired reasonable familiarity with the constitutional and legal questions involved in service matters-'. It may be observed here that the Chairman of the Tribunal has to discharge both, the judicial and administrative functions. He exercises his judicial functions in the capacity of a judicial or an Administrative Member, as the case may be, while sitting in a Bench. As such Member his position is in no way different from the other Members. He is not required to possess any additional qualifications. Similarly, for the discharge of his administrative functions hardly any specialised knowledge or experience is called for. Yet, it has to be borne in mind that the Administrative Tribunal has been created as a judicial institution in substitution of the High Court. Hence, it should, apparently, be able to inspire a feeling of confidence, faith and reverence in the minds of the civil servants. It is, therefore, of utmost importance that the person who occupies the highest position of the Chairman of the Tribunal, which is comparable to the office of the Chief Justice of a High Court, must have a legal background. 34. Supra note 11, at p. 390.

20 H3 Preferably a sitting or a retired judge of a High Court should be appointed to the post. If such a person is not available a Vice-Chairman with legal qualifications may only be considered for appointment. In fact it has been suggested elsewhere that every Vice-Chairman must possess legal qualifications Vice-Chairman Under the provisions of the Act~^ the Tribunal is to have such number of Vice-Chairmen as the Central Government considers fit and necessary. Though, subsequent to the passing of the Amendment Act of 1986, there does not exist any need for a Vice-Chairman to preside over an Additional Bench but, the provisions for having Vice-Chairmen in the Tribunal have been apparently retained for administrative reasons. In order to be eligible to be appointed as a Vice- Chairman of the Tribunal a person must possess any one of the following qualifications prescribed by the Act' 3. (1) He is, or has been or is qualified to be a judge of a High Court. It may be observed that the scope of this provision is wider as compared to the parallel provision of section 6(1) (a) defining the qualifications for the Chairman of the Tribunal because, it enables not only a sitting or a retired judge of a 35. Section 5(1). 36. Section 6(2).

21 144 High Court but, also a person qualified to be a judge of a High Court, to become a Vice-Chairman of the Tribunal. This part of the provision was added in the Act in 1987^' in the light of the Supreme Court decision in the Sampath Kumar's case^5 wherein it was observed: "... that since the Administrative Tribunal has been created 1n substitution of the High Court, the Vice-Chairman of the Administrative Tribunal would be 1n the position of a High Court judge and 1f a District Judge or an advocate qualified to be a judge of the High Court, 1s eligible to be a judge of the High Court Judge, there 1s no reason why he should not equally he eligible to be a Vice-Chairman of the Administrative Tribunal". It iias already been observed that a sit-ting judge of the High Court is less likely to accept the Chairmanship cjf the Tribunal. Obviously, there would be stronger reasons for him not to accept office of Vice-Chairmanship. A retired judge on the other hand, cannot serve a full term of five years, either as a Chairman or a Vice-Chairman. Under these circumstances, the third alternative qualification in this category, offers the best solution. A person who is qualified to be a judge of the High Court may be considered for appointment as a Vice-Chairman. According to the provisions of Article 217(2) of the Constitution a person is qualified for appointment as a judge of a High Court if he has, for at least ten years, held either any judicial office or been an advocate of the High Court. Accordingly, under this provision senior judges in the District Courts and the 37. Administrative Tribunals (Amendment) Act, Supra note 11, at p. 391.

22 145 practising lawyers of High Court could be appointed as Vice-Chairmen. The association of these persons with legal background and training could prove greatly useful to the Tribunal. (ii) A person is, in the second place, qualified for appointment as a Vice-Chairman of the Tribunal if he has, for at least two years, held the post of Secretary; or for at least five years, held the post of Additional Secretary to the Government of India; or any equivalent posts under the Central 39 or a State Government. It may be observed that since the office of a Vice- Chairman is comparable to the judge of a High Court, legal qualifications should be a necessary requisite for its incumbent. He holds the same position vis-a-vis an Additional Bench as the Chairman holds in the Principal Bench. It would not be compatible with the status and dignity of this office if an officer from the administrative services is appointed as a Vice-Chairman. (iii) In the last place, the Act qualifies a Judicial Member as well as an Administrative Member for appointment as a Vice- Chairman provided, he has held office as such Member for a 40 period of not less than three years 39. Clause (bb) to sub-section (2) of Section Clause (c) to sub-sections (2) of section 6.

23 146 It is again pointed that for reason discussed above an Administrative Member ought not to be made eligible for appointment as a Vice-Chairman Judicial Member For appointment as a Judicial Member of the Tribunal a person must possess either of the following two qualifications: (i) (ii) He is, or has been, or is qualified to be a judge of a High Court. He has been a Member of the Indian Legal Service and has held a post in grade I of that service for at least three 42 years In so far as the first qualification is concerned, it is the same as for the Vice-Chairman and for reasons already explained, which apply with, greater force here, Judges of the High Court, sitting as well as retired, would scarcely accept to be a simple Member of the Tribunal. Hence, the choice under this category is, practically, reduced to the third alternative qualification which makes a person "qualified to be a judge of a High Court" to be eligible for appointment as a Judicial Member. It is suggested that while making any appointment, under this provision, from amongst the practising lawyers, preference may made in favour of a person who has, generally, been dealing in service law cases. 41. Section 6(3)(a) as amended by the Amendment Act of Section 6(3)(b).

24 147 Sub-section (3) of section 6, next provide for a member of the Indian Legal Service to be eligible for appointment as a.hi'] 1 f 1ftl M^rnbT. T \. may ho r,hf. n rvnd that the provision of thin sub-section is unduly restrictive in nature. There exists a highly limited number of officers in Grade I of the Indian Legal Service (which is not an all-india service, as the name might suggest, but a Central service). It is, therefore submitted that the provision of section 6(3)(b) may suitably be amended to include any officer from the Central or State Legal Services, who is holding any post equivalent to that of an officer mentioned under sub-section (3-A) of section 6 of the 43 Act. In determining the equivalence, for the present purpose, the pay-scales of the officers concerned might to taken into account. 5.M Administrative Member According to the provisions of section 6(3)(A) a person is qualified to be appointed as an Administrative Member of the Tribunal if he possesses the following qualifications - (i) He has, for at least two years, held the post of an Additional Secretary to the Government of India, or any other equivalent post either under the Central or a State Government; or 43. Sub-section (3-A) of Section 6, specifies the categories of officers who could be considered for appointment as Administrative Members of a Tribunal.

25 148 (ii) He has, for at least three years, held the post of a Joint Secretary to the Government of India, or any other equivalent post under the Centre or a State Government. In either case mentioned above, a person must also, in addition, have adequate administrative experience as well. It is submitted that possession of mere administrative experience would not be sufficient for a person to enable him to discharge his functions as a member of the Tribunal. Hence, the sub-section should be amended to further provide that such a person must have sufficient experience in quasi-judicial work. Because with this background an Administrative Member will be able to discharge his functions with full competence right from the beginning. It may be pointed that the Act has completely ignored the members from academic sphere for being considered for any appointment in the Tribunal. It is submitted that a distinguished jurist should be made eligible for appointment as a Vice-Chairman or Judicial Member of a Tribunal. The teaching and research experience gained by such a person in Constitutional and Administrative Law makes him an expert in these fields. It would be in the interest of the efficiency of a Tribunal if such a person is given an appointment in the Tribunal. This wil also help in the development of such a service jurisprudence which could be easily integrated with the global service jurisprudence. It may also be relevant to point

26 149 here that such a provision was there in Article 217 of the Constitution, which lays down the qualifications for appointment as a Judge of a High Court. But, unfortunately the provision has been deleted by the Forty-fourth Amendment Act, Yet, the provision for appointing a distinguished jurist as a Judge of the Supreme Court still exists in Article 124(3) of the Constitution Mode of Appointment The competent authority under the Act to make appointments of the Chairman, Vice-Chairman, and the Judicial and Administrative Members, is the President of India. But, it is not his discretionary power and he exercises this power on 44 the aid and advice of his Council of Minister The Act, as originally enacted, conferred an absolute and unbridled power on the Government in making these appointments. No obligation was cast on the Government to consult or involve any other person in the process. Even the Chief Justice of India, who is required to be consulted in making any appointment to the High Courts and the Supreme Court, was left out of the process completely. The Act did not, at all, lay down any particular selection procedure to be followed by the Government. Reacting strongly against the conferment of such unfettered discretionary power on the Government, with no 44. See Article 74 of the Constitution.

27 150 checks and safeguards the Supreme Court observed that it would have a prejudicial effect on the independence of the Tribunal. In the absence of any check or safeguard in the case of the appointment of the Chairman, Vice-Chairman and Members of the Tribunal the possibility cannot be ruled out and indeed the litigating public would certainly carry a feeling that the decision making process of the Chairman, Vice-Chairman and Members of the Tribunal might be likely to be affected by reason of their dependence on the Government for appointment 46 and promotion. If the Administrative Tribunals has been created in substitution of the High Court, as held by the Court, the same Independence from the possibility of executive pressure or influence must also be ensured to the Chairman, Vice-Chairman and Members of the Tribunal as is available to the judge of a High Court. On this basis it was held by the Court that the appointment of Chairman, Vice-Chairman and Members should be made by the Government only after consultation with the Chief Justice of India and such consultation must be "meaningful and effective" and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons in which event the reasons must be disclosed to the Chief Justice of India and his 47 response must be invited to such reasons. The Court also gave an alternative mode to be followed by the Government in making 45. S.P.Sampath Kumar Vs. Union of India, AIR 1987 SC Ibid., at p Ibid.

28 151 appointments of Chairman, Vice-Chairman and Members. This postulates the setting up a High powered selection committee headed by the Chief Justice of India or a sitting Judge of 48 Supreme Court nominated by the Chief Justice of India In the light of the observations made by the Supreme Court, amendments have been made in section 6 of the Act whereby it has been made obligatory for the Government to have consultation with the Chief Justice of India before making any appointment of the Chairman, Vice-Chairman and Member of the Tribunal. the In the It is, however, submitted that even in its present form procedure of appointment suffers from certain drawbacks. first place the Chairman of the Tribunal has been completely left out of the entire selection process. As a matter of fact the Chairman of the Tribunal can play a key role at various levels or stages of the selection process. In so far as the appointment of a Vice-Chairman (Judicial) and a Judicial Member is concerned the Chairman may initiate the process by submitting a panel of names to the Chief Justice of India. In preparing such a list, the Chairman may seek the assistance of any Vice-Chairman by asking him to suggest any name(s) for the purpose. As regards the appointment of a Vice-Chairman (Administrative) and an Administrative Member is concerned, though the process would originate at Government level but, the 48. Ibid. It 1s gratltylng to note that Chief Justice Ranganath M1sra, while dealing with a writ petition, disclosed 1n the Court that a secreenlng committee, presided over by a Supreme Court Judge, will get recommendations for appointments for vacancies 1n the Central Administrative Tribunal and further that the Chairman of the Tribunal would also be a member of this screening committee; Indian Express, (Delhi edition)

29 152 Chairman of the Tribunal should be consulted before the Government sends any name or panel to the Chief Justice of India. His (Chairman) views, if any, should also be incorporated in the proposal to be placed before the Chief Justice of India. It would be pertinent to note here that the Chief Justice of a High Court plays a vital role in the appointment of Judges to the High Court. It has, secondly, been noticed that the appointment of a Vice-Chairman or a Member is made by the Government not to the Tribunal as such but, to a particular Bench of the Tribunal. This is not in tune with the letters and spirit of the provisions of section 6 of the Act which speaks about appointment of the Vice-Chairman and the Judicial and Administrative Members to the Tribunal. In fact the task of assigning a particular Bench to a Vice-Chairman and a Member, should be left to the discretion of the Chairman. It is the prerogative of the Chairman to deal with matters relating to the posting and transfer of a Vice-Chairman and a Member of the Tribunal because he is the most suitable person to take such decisions according to the exigencies of place and time. In the third place, it is submitted that the suggestion of the Supreme Court to constitute a High powered selection Committee as an alternative mode of selection for appointment of Vice-Chairmen and Members may be adopted for its relative merits. Such a Committee must include in it the Chief Justice of India, Chairman of the Tribunal and a nominee of the

30 153 Government. The Committee must receive all proposals for consideration, before it meets. Proposals for Vice-Chairman and Judicial Members should generally, come from the Chairman's office and for the Administrative Members through the concerned Ministry of the Government. After examining and deliberating upon each and every proposal the :ommittee should prepare a panel of names for the three categories, namely, of Vice-Chairman, Judicial Members and Administrative Members, to be submitted to the Government for making appointment as and when any vacancy would arise in any category. A panel thus prepared would remain valid and operative till a fresh panel is made. This may be done after every two years unless a need is felt earlier. There would be two main advantages in adopting this mode. Firstly, each and every proposal would be thoroughly examined and discussed by all the participating members and, resultantly, the final selection would be largely merit-based. Secondly, by preparing a panel of names for all the three categories of Vice-Chairman, Judicial Members and Administrative Members, appointment in any category may immediately be made as and when any vacancy would arise. This would solve not only the problem of vacancies lying unfilled for a long time but, also obviate the chances of imbalances in the proportion of Judicial and Administrative Members in the Benches - a problem frequently faced by the Tribunal. It is hoped that if this method is incorporated in the Act, it would 49. As per the suggestions made earlier the term 'Vice-Chairman' here means Vice-Chairman with legal qualification. A person without any legal qualification should not be made eligible for appointment as a Vice-Chairman.

31 154 greatly help in streamlining the functioning of the Tribunal and improve its efficiency. 50 In the last place, as suggested by Professor B.K.Gupta-^ it may be worth while to consider to constitute Indian Administrative Tribunal Service. Keeping in view the fact that India has a large army of Civil Servants, there would be a need for a large number of Benches of different Tribunals. This, obviously, requires a good number of persons to man these Tribunals. It would be quite useful to pick up young and talented persons through a competitive examination on the All India basis. After giving them extensive training they should be prepared well for the task. It may be pertinent to note here that such a system has been in existence and working quite satisfactory, in France, now for almost two hundred years-'. If the system is adopted here, with certain necessary changes in the Act, it is hoped that the functioning of Tribunal would definitely improve. Some of the important changes, which may consequently be introduced in the Act are as under. (i) A two-tier hierarchy of Administrative Tribunals may be constituted both, at the Centre and State levels, (ii) At the lower level there would be a Central Administrative Tribunal and Administrative Tribunals for the States, to hear all original applications. Each Tribunal of original jurisdiction shall consist of as many Members as the 50. Supra note 30, at p See, Brown,L.N. and Garner,J.F., French Administrative Law (1973) 31-42;

32 155 appropriate Government may, from time to time, deem necessary. The jurisdiction, powers and authority of a Tribunal would be exercised by the Benches thereof, which would be located at different places within the geographical limits of the Tribunal. Appointment of Members to the Tribunals may be made through an open competition on all-india basis. As suggested, an All India Administrative Tribunals Service may be constituted for the purpose by introducing necessary amendments in the Constitution and the Administrative Tribunals Act, (lii) Next above each Tribunal of original jurisdiction, may be constituted another Tribunal of appellate jurisdiction to hear appeals, in all cases, against the decisions of the lower Tribunal concerned. It would consist of a Chairman and such number of other Members as the appropriate Government may dee.m necessary and proper.the Chairman of an appellate Tribunal may be vested with the power of posting/transfer of a Member of the lower Tribunal concerned, to a particular Bench thereof. (iv) In the alternative to (iii) above the expediency of establishing a single appellate Administrative Tribunal, to hear appeals from all the lower Tribunals (Central as well as State Administrative Tribunals of original jurisdiction), may be considered. Such a Tribunal would consist of a Chairman and such number of Vice-Chairmen and other Members (Judicial and

33 156 Administrative) as the Central Government may, from time to time, deem necessary. The jurisdiction, powers and authority of such a Tribunal would be exercised by the Benches, which would be located at all such places where the High Courts have their seats/benches. (v) The Members of a Tribunal of original jurisdiction may enjoy a status equivalent to a District Judge. 5.5 Conditions of Service In order to ensure that the Tribunal is manned by competent persons who are able to discharge their functions objectively and impartially, it is absolutely necessary that they enjoy good service conditions. They should neither be made dependent upon the mercy of the Government for seeking any benefit or favour nor should they be allowed to labour under the fear of any kind of detriment or harm that may be caused by the Government to their careers. Thus, the independence of the Tribunals is directly linked with the matters relating to the conditions of service of the Chairman, Vice-Chalrman and Members of the Tribunal. The following are some of the important factors relating to the conditions of service, which need be examined.