Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. 261 of 2007
A.K. Behra ... Petitioner
Versus
Union of India and another ... Respondent
With
Writ Petition (Civil) No. 539 of 2007
JUDGMENT
J.M. Panchal, J.
1. In the Writ Petition (C) No. 261 of 2007, the
petitioner, who is a practicing lawyer and Honorary
Secretary of the Central Administrative Tribunal,
Principal Bench, Bar Association, prays (1) to quash the
decision of the respondents to abolish the post of Vice
2
Chairman in the Central Administrative Tribunal as
reflected in the Administrative Tribunal (Amendment)
Act, 2006 and to direct the respondents to restore the
said post in the Central Administrative Tribunal, (2) to
declare that the newly inserted Section 10A of the
Administrative Tribunals Act, 1985 to the extent it
prescribes different conditions of service for the Members
of the Central Administrative Tribunal on the basis of
their appointment under the unamended Rules and
under the amended Rules, as unconstitutional, arbitrary
and not legally sustainable, (3) to direct the respondents
to accord all conditions of service as applicable to the
Judges of High Court to all the members of the Central
Administrative Tribunal irrespective of their appointment
under the unamended or amended Rules, (4) to declare
that the newly inserted Section 10A of the Administrative
Tribunals Act, 1985 as unconstitutional to the extent it
stipulates that the total term of office of the member of
the Central Administrative Tribunal shall not exceed 10
years, (5) to direct the respondents to continue all the
3
members appointed under the unamended or amended
Rules till they attain the age of superannuation of 65
years, (6) to declare, the newly inserted qualifications for
appointment as administrative members as reflected in
the amended Section 6(2), as arbitrary and
unsustainable, and (7) to quash the newly added Section
12(2) of the Administrative Tribunals Act, 1985
authorising the appropriate Government to designate one
or more members to be the Vice Chairman for exercise of
financial and administrative powers as impinging upon
the independence of judiciary.
2. Writ Petition (C) No. 539 of 2007 is filed by a
judicial member of Maharashtra Administrative Tribunal
and he prays to set aside the decision of the respondents
requiring Members of the Administrative Tribunal
appointed before the coming into force of Administrative
Tribunals (Amendment) Act, 2006 to seek fresh
appointment in accordance with the selection procedure
laid down for such appointments as being arbitrary and
4
violative of Articles 14 and 16 of the Constitution. He
also prays to declare that newly introduced Section 10A,
so far as it relates to consideration of members of the
Administrative Tribunal for reappointment by Selection
Committee, is not applicable to those, who were duly
appointed as members prior to February 19, 2007.
Another prayer made by him is to direct the respondents
to restore his continuance as Member of Maharashtra
Administrative Tribunal till he attains the age of
superannuation of 65 years and to direct the respondents
to accord all conditions of service, as applicable to the
Judges of the High Court, to him.
3. Article 323A of the Constitution, stipulates that
Parliament may by law, provide for the adjudication or
trial by Administrative Tribunals of disputes and
complaints with respect to recruitment and the
conditions of service of persons appointed to public
services and posts in connection with the affairs of the
Union or of any State or of any local or other authority
5
within the territory of India or under the control of the
Government of India or of any Corporation owned or
controlled by the Government. The establishment of
Administrative Tribunals under the aforesaid provisions
of the Constitution had become necessary since the large
number of cases relating to service matters were pending
before the various courts. It was expected that the
setting up of such Administrative Tribunals to deal
exclusively with service matters would go a long way in
not only reducing the burden of various courts and
thereby giving them more time to deal with other cases
expeditiously but would also provide to the persons
coming under the jurisdiction of Administrative
Tribunals, speedy relief in respect of their grievances.
Therefore, a Bill was introduced in the Parliament for
setting up the Central Administrative Tribunal. The Bill
sought to give effect to Article 323A by providing for the
establishment of an Administrative Tribunal for the
Union and a separate Administrative Tribunal for a State
or a joint Administrative Tribunal for two or more States.
6
The Bill inter alia provided for – (a) the jurisdiction,
powers and authority to be exercised by each Tribunal,
(b) the procedure to be followed by the State Tribunals,
(c) exclusion of the jurisdiction of all courts, except that
of the Supreme Court under Article 136 of the
Constitution relating to service matters, and (d) the
transfer to each Administrative Tribunal of any suit or
other proceedings pending before any court or other
authority immediately before the establishment of such
Tribunal as would have been within the jurisdiction of
such Tribunal the causes of action on which such suits
or proceedings were based had arisen after such
establishment.
4. The Parliament, thereafter enacted The
Administrative Tribunals Act, 1985. It received the
assent of the President on February 27, 1985.
5. The Central Administrative Tribunal with five
Benches was established on November 1, 1985 in
pursuance of the provisions of the Administrative
7
Tribunals Act, 1985. Prior to its establishment, writ
petitions were filed in various High Courts as well as in
the Supreme Court challenging the constitutional validity
of Article 323A of the Constitution and the provisions of
the Administrative Tribunals Act. The main contention
in the writ petitions was that the writ jurisdiction of the
Supreme Court under Article 32 of the Constitution as
well as that of the High Courts under Article 226 of the
Constitution could not have been taken away even by an
amendment of the Constitution. Although the Supreme
Court, by an interim order stayed the transfer of writ
petitions filed in the Supreme Court under Article 32 of
the Constitution to the Central Administrative Tribunal,
it did not stay transfer of writ petitions under Article 226
of the Constitution subject to the condition that the
Government would make certain amendments in the Act.
One of the amendments suggested by the Supreme Court
was that each case in the Tribunal must be heard by a
Bench consisting of one judicial member and one non-
judicial member and the appointment of judicial
8
members should be done in consultation with the Chief
Justice of India. An undertaking was given to the
Supreme Court that a Bill to make suitable amendments
in the Act would be brought before the Parliament as
early as possible. The Central Administrative Tribunal
had also started functioning in Benches in accordance
with the above directions of the Supreme Court. As the
writ petitions referred to above were to come up for
hearing in January, 1986, the President promulgated the
Administrative Tribunals (Amendment) Ordinance, 1986
on January 22, 1986 so as to give effect to the assurance
given to the Supreme Court and to make some other
amendments found necessary in the administration of
the Act. The Ordinance inter alia provided for the
following matters, namely: –
(a) The concept of Judicial Member and Administrative
Member was introduced in the Act. The Bench of
Administrative Tribunal was to consist of one
Judicial Member and one Administrative Member
9
instead of three members Bench to be presided over
by the Chairman or by the Vice Chairman. It was
also provided that the appointment of a Judicial
Member would be made after consultation with the
Chief Justice of India.
(b) The jurisdiction of the Supreme Court in service
matters under Article 32 of the Constitution was
preserved. The Principal Act had intended to confer
this jurisdiction also on the Tribunals.
(c) A provision was included to designate, with the
concurrence of any State Government, all or any of
the members of the Bench or Benches of the State
Administrative Tribunal established for that State
as Members of the Bench or Benches of the Central
Administrative Tribunal in respect of that State.
(d) The jurisdiction of the Tribunal was also extended
to persons, who were governed by the provisions of
the Industrial Disputes Act, 1947 without affecting
the rights of such persons under the Act.
10
Subsequent to the promulgation of the Ordinance, few
doubts were expressed in respect of some of the
provisions of the Act and the Ordinance. It was,
therefore, proposed to include in the Bill a few
clarificatory amendments, to make certain provisions
included in the Ordinance retrospective from the date of
establishment of the Central Administrative Tribunal and
to validate certain actions taken by the said Tribunal.
The amendments included in the Bill were explained in
the memorandum attached to the Bill. Accordingly, the
Act of 1985 was amended by Act 19 of 1986 which was
deemed to have come into force on January 22, 1986. By
the amendment in the Act of 1985 it was proposed (1) to
exclude from the jurisdiction of an Administrative
Tribunal the powers to adjudicate disputes with respect
to officers and employees of the subordinate courts and
to make a provision for transfer of cases pending in the
Administrative Tribunals to the Courts concerned; (2)
that the appointment of the Chairman, Vice-Chairman
and other Members of the Administrative Tribunals
11
would be made in consultation with the Chief Justice of
India. The Act, before its amendment, provided for
consultation with the Chief Justice of India only in
respect of Judicial Members; (3) that the Chairman, Vice-
Chairman and other Members of the Administrative
Tribunals would be eligible for re-appointment for a
second term of office; (4) that the Central Government
and the appropriate Government should be empowered to
frame rules relating to salary, allowances and conditions
of service of the Chairman and other Members of the
Tribunals and their officers, etc.
6. It may be mentioned that a writ petition under Article
32 of the Constitution was filed by a member of the
Central Administrative Tribunal, contending that the
decision in S.P. Sampath Kumar vs. Union of India
and others [(1987) 1 SCC 124], equated the Central
Administrative Tribunal with the High Court and,
therefore, its Chairman should be equated with the
Chief Justice of a High Court and the Vice-Chairman
12
and Members must be equated with the sitting Judges
of the High Court in all respects. It was also
contended that while the Vice-Chairmen have been
equated with sitting Judges of the High Courts, the
Members have not been so equated in their pay and
other conditions of service and that a distinction was
made in the conditions of service, particularly, the pay
and age of superannuation between the Vice-Chairmen
and the Members, which was arbitrary, as a result of
which the Members also should be given the same pay
as that of the Vice-Chairmen and their age of
superannuation should also be the same, i.e., 65 years
as that of the Vice-Chairmen. On interpretation of
Article 323A of the Constitution, this Court took the
view that Administrative Tribunals constituted
thereunder are distinct from the High Courts and
dismissed the writ petition.
7. The Administrative Tribunals Act, 1985 came to be
amended by the Administrative Tribunals
13
(Amendment) Act, 2006. By the said amendment the
post of Vice-Chairman in the Administrative Tribunal
is abolished. A new provision, i.e., Section 6(2) is
introduced which modifies the qualifications for
appointment as Administrative Member in the
Tribunal. Section 10A is inserted in the main Act,
which provides that the conditions of services of the
Judges of the High Court would be applicable only to
the Members appointed after February 19, 2007. The
newly inserted Section 10A restricts the total term of
the Members of the Administrative Tribunals to ten
years though by the said amendment the age of
superannuation for a Members is raised from 62 to 65
years. Further, Section 10A postulates consideration
of a case of a Member for re-appointment by Selection
Committee after February 19, 2007. Section 12(2) of
the Administrative Tribunals Act, 1985 is amended
and power is conferred on the appropriate Government
to designate a Vice-Chairman for the purpose of
performing certain duties and functions of the
14
Chairman.
8. The case of the petitioner is that the post of Vice-
Chairman was in existence in the Administrative
Tribunals since its inception which enabled the Judges
of various High Courts to opt for the Central
Administrative Tribunal and provided an opportunity,
in the nature of promotion to the Members of the
Administrative Tribunals to the post of Vice-Chairman.
According to the petitioner, the abolition of the said
post now would create anomalous situation in the
structure as well as administration of the Tribunals, if
any High Court Judge is to be appointed only as a
Member and, therefore, the abolition of the post of the
Vice-Chairman is unconstitutional. The petitioners
have mentioned that the newly introduced Section 6(2)
of the Administrative Tribunals Act, 1985 modifies the
qualifications for appointment as Administrative
Member in the Tribunal in such a manner that except
the IAS officers no other civil servant would ever
15
become eligible for such appointment and as zone of
consideration for appointment of Administrative
Members has been confined to only IAS officers by
colourable exercise of power, the said provision should
be regarded as unconstitutional. What is asserted by
the petitioner is that Section 10A does not extend the
benefit of the conditions of service applicable to the
Judges of the High Court, to all the Members of the
Tribunals appointed prior to the appointed date, which
is February 19, 2007, but confines the same to the
Members, who would be appointed in future, i.e., after
February 19, 2007 as Members of the Tribunals and
as the Members appointed before February 19, 2007
would also be discharging the same duties and
responsibilities, the provision stipulating that the
conditions of service of the Judges of the High Court
would be applicable only to the Members to be
appointed after February 19, 2007 has no rational
basis or nexus with any defined objective and,
therefore, should be declared to be ultra vires. It is
16
contended that Section 10A restricting the total term
of the Members of the Administrative Tribunals to ten
years is arbitrary because the said provision has no
objective nor any rational basis nor any nexus with
defined objective of the Act. According to the
petitioner a number of Judicial Members in the
Tribunals have been appointed from the Bar at the age
of 45 years or so, but now their tenure is sought to be
curtailed only to ten years, which would discourage
the members of the Bar from joining the Tribunals as a
Member. What is claimed is that the Judicial
Members appointed from the Bar since inception, have
played a pivotal role in the judicial administration of
the Tribunals and, therefore, the newly inserted
Section 10A restricting the total term of the Members
of the Administrative Tribunals to ten years should be
struck down as arbitrary, unconstitutional and legally
not sustainable.
17
9. The grievance by the petitioner in writ petition No. 539
of 2007 is that the decision of the respondents to
subject a Member to a fresh selection procedure is
arbitrary and violative of Articles 14 and 16 of the
Constitution because, according to him, the provision
requiring consideration of his case for re-appointment
as Member of the Administrative Tribunal by Selection
Committee should not have been made applicable to
those, who were duly appointed as Members prior to
February 19, 2007. The petitioner also claims that
introduction of Section 12(2) in the Administrative
Tribunals Act, 1985, which empowers the State
Government to designate a Member as a Vice-
Chairman for performing financial and administrative
powers destroys the judicial independence of the
Tribunals and as uncontrolled, unguided and
unregulated power has been conferred on the
Government to nominate a Member of the Tribunal as
Vice-Chairman for performing those functions, the
said provision should also be struck down. Under
18
these circumstances the petitioners have filed above
numbered petitions and claimed reliefs to which
reference is made earlier.
10.On service of notice, counter affidavit has been filed
on behalf of the respondents by Ms. Manju Pandey,
Under Secretary in the Ministry of Personnel,
Government of India. In the counter affidavit it is
stated that the Administrative Tribunals (Amendment)
Act, 2006 was intended to achieve the following
objects: –
i) To abolish the post of Vice-Chairman in the Tribunals
as it was creating an avoidable three tier institution
and resulting in anomalies in qualifications, age of
retirement, service conditions, etc. The Act was
passed so that all the Members of the Central
Administrative Tribunal can be elevated to the same
status as of a High Court Judge and, therefore, the
service conditions of the Members of the Tribunals
were upgraded to that of a Judge of the High Court,
19
i.e., the same as was of a Vice-Chairman under the
unamended Act.
ii) Only for discharging certain administrative functions,
some of the Members in different Benches are to be
designated as Vice-Chairmen, but the said designation
is not to confer any special benefit to the Member so
designated.
iii) Since the age of retirement of a Government servant
was raised from 58 years to 60 years, a retired
Government servant had a tenure of only two years as
a Member of the Tribunal and he was not able to
contribute much to the disposal of the cases.
Therefore, it was felt that every member of the
Tribunal should have tenure of five years. Though it
was not mentioned in the Statement of Objects and
Reasons, it was also understood that since retired
High Court Judges would be considered for
appointment as Members of the Central Administrative
Tribunal, the age of retirement should be increased to
20
65 years and correspondingly the age of retirement of
the Chairman should be increased to 68 years so that
the Chairman of the Tribunal could have a full term of
five years.
iv) The post of Vice-Chairman under the Amended Act is
only an executive designation for discharging
administrative powers and though the Government
has been given the power to nominate one of the
members as Vice-Chairman of the Tribunal, said
designation would obviously be made with the
concurrence of the Chairman of the Tribunal.
After emphasizing the intended objects sought to be
achieved by the Amending Act, it is stated in the reply
that the post of Vice-Chairman of the Tribunal resulted
in three different levels of functionaries in the Tribunal
and, therefore, the Government of India took a policy
decision that it would be beneficial and in the interest of
uniformity of service that the hierarchy be reduced to
just two posts, i.e., the Chairman and the Members of
21
the Tribunal, which cannot be said to be either
discriminatory or arbitrary or illegal. It is further
mentioned in the counter affidavit that Section 8 of the
unamended Act provided that the maximum tenure of the
Chairman, Vice-Chairmen or a member of the
Administrative Tribunal would be ten years subject to the
age of retirement, which was 65 years in the case of
Chairman or Vice-Chairman and 62 years in the case of
any other Member and it is not correct to say that
Section 10A inserted by the Amending Act, for the first
time restricts the term of the Members of the Tribunal to
ten years. It is explained in the counter affidavit that the
reason for raising the retirement age from 62 to 65 years
was because the retirement age of Government servants
had been increased from 58 years to 60 years and a
retired Government servant had a tenure of only two
years as a Member of the Tribunal as a result of which he
was not able to contribute much while being Member of
the Tribunal. As per the counter affidavit the
qualifications required for being selected as
22
Administrative Member were the same as required for
being chosen as Vice-Chairman of the Tribunal in the
pre-amended Act and as no change by the amendment is
effected so far as selection of a Member is concerned, the
new provision should not be regarded as
unconstitutional. What is asserted in the counter
affidavit is that as per Section 12 of the Amended Act, the
Chairman of the Tribunal would have all financial and
administrative powers over the Benches, but the Vice-
Chairman can be designated by the Central Government,
obviously with concurrence of the Chairman, and a
Member so designated would discharge such functions of
the Chairman as the Chairman may direct and, therefore,
it is wrong to contend that by introduction of Section
12(2) of the Act, the independence of judiciary and
independence of Tribunal is sought to be curtailed by the
Executive. It is explained in the counter affidavit that
earlier the post of Vice-Chairman was not a promotional
post for a Member of the Tribunal and the qualifications
of the Vice-Chairman were different from a Member of the
23
Tribunal, but, by amendment the qualifications of
Members of the Tribunal have been raised to that of the
Vice-Chairman and this change in qualifications neither
affects the status of a retired High Court Judge nor
confers arbitrary benefits on the non-Judicial Members
and, therefore, the said provision is perfectly legal. It is
further pointed out in the counter affidavit that except
the change in the nomenclature, a retired High Court
Judge would get exactly the same facilities, if he is
appointed today as Member of the Tribunal instead of
designating him as Vice-Chairman of the Tribunal under
the unamended Act and, therefore, it is wrong to contend
that the amendments are violative of the provisions of the
Constitution. It is explained in the reply that in the
parent Act also the Members were eligible for re-
appointment for a second term of five years and not
further whereas in the Amended Act, appointment of a
Member is for a period of five years extendable by one
more term of five years provided he has not attained the
age of 65 years, and this provision does not infringe any
24
of the rights of the Members of a Tribunal, who seek
extension for a second term. It is stated in the counter
that the qualifications for appointment as an
Administrative Member of the Tribunal, prior to its
amendment were on the lower side and a need was felt
that persons, who were appointed as Administrative
Members, should have sufficient experience of high posts
so as to enable them to understand the complexities of
service jurisprudence and, therefore, certain additional
qualifications have been prescribed, which cannot be
termed as affecting the independence of the Tribunals.
What is stated in the counter affidavit is that as a matter
of policy it is now provided that all officers, who are in
the pay-scale of Secretary or Additional Secretary, would
be eligible for appointment and the Selection Committee
would invariably choose the most eligible person for the
said post. It is pointed out that the Amended Act
substantially changes the qualifications for appointment
as a Member of the Tribunal and now the post of a
Member of the Tribunal is equivalent to the post of the
25
Vice-Chairman as it existed prior to the amendment and,
therefore, in terms of status and service conditions the
Members appointed after February 19, 2007 have been
granted the status available to a Vice-Chairman before
the amendment. What is stressed is that though the
present Members and Members to be appointed in future
would discharge similar functions, there is a marked
distinction between the eligibility criteria and, therefore,
it is wrong to contend that the two form one class and
the provisions are arbitrary.
11.Similarly, on service of notice in Writ Petition (C) No.
539 of 2007, affidavit in reply has been filed on behalf
of respondent Nos. 1 and 2 by Ms. Manju Pandey,
Director in the Ministry of Personnel, Government of
India. In the said petition affidavit in reply on behalf
of Government of Maharashtra is filed by Mr. Vijay
Dattatraya Shinde, Under Secretary, General
Administration Deptt., State of Maharashtra. It may
be mentioned that in both the above referred to two
26
replies it is stated that a member appointed prior to
February 19, 2007 and seeking extension for second
term has to fulfill qualifications prescribed by the
Amended Act, which cannot be termed as arbitrary or
unconstitutional.
12.This Court has heard the learned counsel for the
parties at length and in great detail.
13. The contention that the abolition of the post of Vice-
Chairman, which was in existence since inception of
the Administrative Tribunals, is unconstitutional
because it would create anomalous situation in the
structure as well as administration of the Tribunals if
any High Court Judge is appointed as Member of the
Tribunal, cannot be accepted. As explained in the
reply affidavit the post of Vice-Chairman in the
Tribunal had created an avoidable three tier
institution and resulted in anomalies in qualifications,
age of retirement, service conditions etc. It is worth
noticing that Members of the Tribunal had claimed
27
equality with the Judges of the High Court or even the
Vice-chairman of the Tribunal, in the matter of pay
and superannuation. That claim was rejected by this
Court in M.B. Majumdar v. Union of India [(1990) 4
SCC 501] with an observation that it is for the
Parliament to enact a law for equating Members of the
Tribunal with Judges of High Court for the purposes of
pay and superannuation. The Parliament, in exercise
of powers under Article 323A of the Constitution, has
amended the Administrative Tribunals Act, 1985 and
equated its Members with Judges of High Court for the
purposes of pay and superannuation. The Parliament,
by enacting a law, has right to change the conditions
of service of Members of the Administrative Tribunals.
While upgrading the conditions of service of the
Members, the conditions of service of a Judicial
Member are not changed to his detriment. By the
amending Act all the Members of the Central
Administrative Tribunal have been elevated to the
status of a High Court Judge. The service conditions
28
of the Members of the Tribunal have been upgraded to
that of a High Court Judge, which cannot be regarded
as illegal or unconstitutional. The qualifications of the
Vice-chairman provided in Section 6(2)(a), 6(2)(b) and
6(2)(bb) in the unamended Act were also to a large
extent qualifications prescribed for appointment of a
person as an Administrative Member. The only
addition made by the Amending Act is that now the
Secretary to the Government of India, in the
Department of Legal Affairs or the Legislative
Department including Member-Secretary, Law
Commission of India or a person who has held a post
of Additional Secretary to the Government of India in
the Department of Legal Affairs and Legislative
Department at least for a period of five years, are made
eligible for appointment as a Judicial Member. It is to
be noted that though under the unamended Act, it was
not specifically provided that person who held the post
of a Secretary to the Government of India in the
Department of Legal Affairs or the Legislative
29
Department including Member-Secretary, Law
Commission of India for at least two years or persons
who held post of Additional Secretary to the
Government of India in the Department of Legal Affairs
and Legislative Department at least for a period of five
years, was eligible to be appointed as an
Administrative Member, but he was eligible to be
appointed as Administrative Member in view of the
qualifications which were laid down for a person to be
appointed as Administrative Member. However, by the
Amendment, such a person is declared to be eligible
for being appointed as Judicial Member having regard
to his experience and opportunity to deal with legal
issues in his respective department. Section 6(3) and
6(3)(a) of the earlier Act provided a much lower
qualification for a Member of the Tribunal. The
amended qualifications for a Member of the Tribunal
are nearly the same as Vice-Chairman of the Tribunal,
which clearly reflects the intention of the Government
to upgrade the post of an Administrative Member. In
30
such circumstances the need for having a Vice-
Chairman was obviated and the Government,
therefore, abolished the post of Vice-Chairman by the
impugned enactment. By abolition of the post of the
Vice-Chairman no anomalous situation is sought to be
introduced in the structure as well as functioning and
administration of the Tribunals. A retired High Court
Judge would be eligible for appointment as Member of
the Tribunal and on such appointment would be
eligible to all the facilities as a Judge of the High
Court. The Chairman of the Tribunal is normally a
retired Chief Justice of the High Court and very rarely
a retired Judge is appointed as Chairman of the
Tribunal. In any event the Chairman would be senior
to a retired Judge, who is appointed as a Member of
the Tribunal. Therefore, this Court finds that no
anomaly, as contended by the petitioners, would take
place at all on the abolition of the post of Vice-
Chairman. The petitioner could not establish before
the Court that by upgrading the status of the
31
Administrative Member of the Tribunal to that of a
High Court Judge a particular provision of the
Constitution is infringed. The plea that abolition of
post of Vice-Chairman will discourage a sitting or
retired High Court Judge from joining the Tribunal
cannot be appreciated. The composition of the
Tribunal, after amendment of the Act, is such that
there would be a Vice-Chairman if required as under
Section 12, a Judicial Member and another member to
be appointed from civil services. A High Court Judge,
who opts for the post of judicial Member in the
Tribunal, would not be lowering his status after the
amendment because all the service conditions
applicable to him as a High Court Judge have been
saved. Therefore, the first contention that abolition of
the post of Vice-Chairman except for the purposes of
Section 12 of the Act would create anomalous
situation in the structure as well as administration of
the Tribunal, if any High Court Judge is appointed as
a Member has no substance and is hereby rejected.
32
14.The argument that Section 6(2) of the Administrative
Tribunals Act, 1985 modifies the qualifications for
appointment as an Administrative Member of the
Tribunal in such a manner that except the IAS officers
no other civil servant would ever become eligible for
such appointment is without any factual basis. The
newly amended provision requires that a person shall
not be qualified for appointment as an Administrative
Member unless he has held for at least two years the
post of Secretary to the Government of India or any
other post in the Central or State Government and
carrying the scale of pay, which is not less than that of
a Secretary to the Government of India for at least two
years or held post of Additional Secretary to the
Government of India for at least five years or any other
post under the Central or State Government carrying
the scale of pay which is not less that that of an
Additional Secretary to the Government at least for a
period of five years. What is relevant to notice is the
proviso to sub-Section (2) of Section 6 of the Act,
33
which stipulates that the officers belonging to All India
Services, who were or are on Central deputation to a
lower post shall be deemed to have held the post of
Secretary or Additional Secretary as the case may be,
from the date such officers were granted proforma
promotion or actual promotion whichever is earlier, to
the level of Secretary or Additional Secretary, as the
case may be, and the period spent on Central
deputation after such date shall count for qualifying
service for the purposes of this clause. A reasonable
reading of sub-Section (2) of Section 6 of the Act
makes it very clear that by no stretch of imagination it
can be said that the qualifications for appointment as
Administrative Member of the Tribunal are laid down
in such a manner that except an IAS officer no other
civil servant would become eligible for such
appointment. It is necessary to notice that officers
belonging to All India services have been made eligible
to be appointed as Administrative Member subject to
the fulfillment of qualifications stipulated in Section 6
34
of the Act. It is wrong to contend that All India
Services comprise only of the IAS officers. All India
Services comprise IAS, IFS, IRS, etc. Merely because
higher qualifications have been prescribed one need
not conclude that except an IAS servant, no other civil
servant would be eligible for appointment as a
Member. The higher qualifications have been
prescribed for the benefit and interest of uniformity of
the two level cadres contemplated by the amended
provisions. There is no manner of doubt that
Government of India took a policy decision to prescribe
higher qualification for better discharge of functions by
the Members constituting the Tribunals and the said
policy decision cannot be regarded as arbitrary or
unreasonable. The qualifications of the Vice-
Chairman were provided in Sections 6(2)(a), 6(2)(b),
6(2)(bb) and 6(2)(c) of the unamended Act. To a large
extent, the qualifications laid down in the unamended
Act are almost the same as are laid down in the
amended provisions. Therefore, the contention that
35
the amended provisions lay down qualifications for
appointment as Administrative Member in such a
manner that except IAS officers no other civil servant
would ever become eligible for such appointment
cannot be accepted.
15. The plea that Section 10A, which restricts the total
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 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. Therefore, the
provisions relating to term of office incorporated in
Section 8 of the Act were amended in the year 1987
36
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 vs. Union
of 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 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 upheld by this Court
in Durgadas Purkyastha vs. Union of India & others
[(2002) 6 SCC 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 years of a
Member so that he can effectively contribute to speedy
37
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 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 tenure of
ten years for a Member of the Bar was/is
unconstitutional. The provisions of Section 8 fixing
maximum term of office of the chairman at sixty eight
years and of a Member of the Tribunal at 10 years,
cannot be regarded as unconstitutional because
concept of security of tenure does not apply to such
appointments. Said provision cannot be assailed as
arbitrary having effect of jeopardising security of
tenure. An Advocate practising at the Bar is eligible to
be appointed as Member of Tribunal subject to his
38
fulfilling required qualifications. In all, such a
Member would have term of office for ten years. On
ceasing to hold office, a Member, subject to the other
provisions of the Act, is eligible for appointment as the
Chairman of the Tribunal or as the Chairman, Vice-
chairman 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 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 that the 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 respect of
those whose term was reduced was not regarded as
39
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. 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 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 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.
40
16.The plea that Section 10A of the Act requiring a sitting
Member of the Tribunal, who seeks extension for
second term to possess the qualifications laid down by
the amended Act and get himself selected through
Selection Committee is arbitrary, is devoid of merits.
The selections to be made as an Administrative
Member after February 19, 2007 are made applicable
uniformly to those who would be appointed as
Administrative Member after February 19, 2007. A
Member, who was appointed prior to February 19,
2007, cannot claim that he has vested right of
extension of his term for a further period of five years
as per the qualifications laid down in the unamended
Act and that qualifications prescribed by the amending
Act should be ignored in his case while considering his
case for extension of term for a further period of five
years. Over a period of time the anomaly, if any,
would get cleared itself and after a period of 4-5 years
all the Members of the Tribunal would be equal in
status and that every Member to be appointed will
41
have to qualify himself as per the qualifications laid
down in the Amended Act and will have to get himself
selected through Selection Committee. The eligibility
conditions of the Members appointed prior to and after
February 19, 2007 are different. Since the Members of
the Administrative Tribunals appointed prior to
February 19, 2007 form a different class from those
appointed or to be appointed after February 19, 2007.
Article 14 of the Constitution would stand violated if
they are treated differently in the matter of
appointment or extension of service as a Member after
February 19, 2007. Extension in service by a Member
cannot be claimed as matter of right and would always
be subject to fulfillment of qualifications and
conditions stipulated in the Amended Act. As
observed earlier, the petitioner in Writ Petition (C) 539
of 2007 could not have claimed, as a matter of right,
automatic re-appointment as Judicial Member of the
State Administrative Tribunal after his first term of five
years was over. As is provided in the Amending Act,
42
under the old provisions also a Member of the
Administrative Tribunal was eligible to be re-
appointed, which was considered to be a fresh
appointment for all the practical purposes. Under the
provisions of unamended Act, at the end of five years,
the Chairman, Vice-chairman and other Members were
eligible for reappointment for another period of five
years after consideration by a Committee headed by a
Judge of the Supreme Court and two other members,
one of whom was Chairman of the Tribunal. The
petitioner can only be considered for appointment as a
Member as per the fresh selection procedure provided
by the Amended Act. The Selection Committee has to
choose the best candidate available for the post. It is
not the requirement of the law that the Selection
Committee should inform the petitioner the reasons for
not recommending his name. Merely, because there is
a vacancy in the post of Member (Judicial) in the
Maharashtra Administrative Tribunal, the petitioner
cannot claim a right to be appointed to the said post
43
irrespective of the provisions of the amended Act. The
petitioner can be appointed only if Selection
Committee recommends his appointment and the
recommendation is accepted by the President, after the
consultation with the Governor of the State. In view of
this position of law emerging from the provisions of the
unamended and amended Act, the Writ Petition (C) No.
539 of 2007 filed by the petitioner will have to be
rejected.
17.The argument that Section 12(2) of the amended Act
enabling the appropriate Government to nominate one
of the Members of the Tribunal to perform financial
and administrative functions destroys independence of
the Tribunal which is a Judicial Forum and, therefore,
the said provision should be regarded as
unconstitutional, is devoid of merits. As is clear from
the provisions of Section 12 of the Amended Act, the
Chairman of the Tribunal has to exercise all financial
and administrative powers over the Benches.
44
Essentially the provision for delegating financial and
administrative powers to one of the Members of a
Bench is made, to lessen administrative burden lying
on the shoulders of the Chairman who normally sits at
Delhi and for effective and better administration of the
Benches of the Tribunal located in different and far
flung States of the country. It is not difficult to
visualise the problems, complications, obstacles,
delay, etc., faced by the Chairman, while exercising
financial and administrative powers over the Benches.
The decentralisation of financial and administrative
powers to tackle local needs and problems, in favour of
a Member of Tribunal, for effective administration of
the Tribunals, cannot be regarded as destroying the
basic feature of the Constitution, namely
independence of judiciary. The designation of the
Vice-Chairman by the Central Government under
Section 12(2) of the Act would obviously be in
concurrence with the Chairman. Further, the Vice-
Chairman would discharge such functions of the
45
Chairman as the Chairman may so direct. It is
absolutely, completely and entirely for the Chairman
to recommend to the Government as to designate
which Member of the Tribunal as Vice-Chairman. The
said provision is an enabling provision, which is clear
from the use of the expression “may” in the said
provision. If the Chairman of the Tribunal feels that
no Member should be designated as Vice-Chairman,
the Government suo motu cannot and would not be in
a position to make designation contemplated by the
said provision. The designation as Vice-Chairman
would not entitle the Member so designated to any
special benefits in service conditions. The only
purpose of the said provision is to help the Chairman
in discharge of his administrative functions as the
Benches of the Tribunal are situated in different parts
of the country. Section 12(2) of the Act, which enables
the appropriate Government to designate one or more
Members as Vice-Chairman and entitles the Members
so designated to exercise such powers and perform
46
such functions of the Chairman as may be delegated
to him by the Chairman by general or special order in
writing cannot be regarded as destroying the principle
independence of judiciary or of the Administrative
Tribunals. This Court fails to understand as to how
the appropriate Government would be able to destroy
the independence of Tribunals by designating one or
more Members to be the Vice-Chairman for the
purposes of performing the functions of the Chairman
to be delegated to him by the Chairman. The
jurisdiction, powers and authority of the Central
Administrative Tribunal are defined in the Act and,
more particularly, in Sections 14, 15, 16, 17 and 18 of
the Act. The petitioners have failed to demonstrate
that by authorizing appropriate Government to
designate one or more Members to be the Vice-
Chairman for the purpose of performing financial and
administrative powers of the Chairman, the
independence of the Tribunals secured by the above
referred to provisions is in any manner eroded. The
47
challenge to the constitutional validity of Section 12(2)
of the Act to say the least is misconceived and without
any basis and, therefore, must fail.
18.For the reasons stated in the Judgment, this Court
does not find any merits in any of the abovementioned
writ petitions and they are liable to be dismissed.
Accordingly, both the writ petitions fail and are
dismissed. There shall be no order as to costs.
……………………………..CJI
(K.G. Balakrishnan)
………………………………..J.
(J.M. Panchal)
New Delhi;
May 06, 2010
48
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 261 OF 2007
A. K. Behera .. Petitioner
Versus
Union of India & Another .. Respondents
49
WITH
WRIT PETITION (CIVIL) NO. 539 OF 2007
P. K. Gaikwad .. Petitioner
Versus
Union of India & Others .. Respondents
JUDGMENT
Dalveer Bhandari, J.
1. I have had the benefit of going through the judgment of
my Brother Hon’ble Mr. Justice J.M. Panchal. Though Hon’ble
Mr. Justice K.G. Balakrishnan, Chief Justice of India has
agreed with his decision, however, I express my inability to
agree with him, therefore, I am writing a separate judgment.
2. Writ Petition No. 261 of 2007 under Article 32 has been
filed by a practicing Advocate and the President of the Central
Administrative Tribunal, Principal Bench, Bar Association,
New Delhi. The connected Writ Petition No. 539 of 2007 under
Article 32 has been filed by a Member (Judicial) in the
50
Maharashtra Administrative Tribunal, Maharashtra. Most of
the issues involved in both the petitions are identical,
therefore, both these petitions are being disposed of by this
common judgment.
3. The petitioners are aggrieved by certain amendments
carried out in the Administrative Tribunal Act, 1985 (for short,
`the Act’).
4. The petitioners are particularly aggrieved by the abolition
of the post of Vice-Chairman in the Central Administrative
Tribunal by the Administrative Tribunal (Amendment) Act
2006 (for short, `Amendment Act‘) which came into force by
Act No.1/2007 dated 19.2.2007. According to the petitioners,
the said Amendment Act is constitutionally and legally
untenable and unsustainable because no reason for such
abolition has been spelt out by the respondents at any point of
time while introducing the said Amendment Bill.
5. The petitioners are also aggrieved by the newly inserted
Section 10A of the Act which creates a hostile discrimination
51
in the matter of conditions of service between the members of
the Tribunal appointed before and after 19.2.2007 inasmuch
as “conditions of service” of a High Court Judge have been
granted to members appointed after 19.2.2007 while the same
have been denied to other members appointed before
19.2.2007.
6. According to the petitioners, the newly inserted section
10A is discriminatory and arbitrary inasmuch as, on the one
hand, vide section 8(2) of the Amendment Act, the age of
retirement for members has been increased from 62 years to
65 years and, on the other hand, by the newly inserted Section
10A, the total tenure of members of the Administrative
Tribunals has been restricted to ten years (two terms), in other
words, compelling them to retire at the age of fifty five years is
wholly irrational and discriminatory and has been designed to
discourage promising and otherwise deserving, competent and
successful members of the Bar from joining the Tribunal. The
age of appointment as a judicial member of the Tribunal is 45
years and any member who is appointed at that age
52
necessarily has to retire at the age of 50 or 55 years, whereas
other members retire at the age of 65 years. Insertion of
section 10A would seriously discourage, deter and dissuade
deserving members of the Bar from joining the Tribunal
because it would totally frustrate their career planning. The
member after demitting the office is debarred from practicing
before any Bench of the Tribunal.
7. The petitioners also submitted that the judicial members
appointed from the Bar since the inception of the Tribunal
have played a pivotal role in the judicial functioning of the
Tribunal. They have been in fact the backbone of the
Tribunal. Thus the present amendment would greatly affect
the efficiency, efficacy and credibility of the Tribunal. No
reason, rationale or logic has been spelt out as to why the
ceiling of ten years has been imposed particularly when the
age of superannuation has been increased from 62 years to 65
years for other members.
8. The petitioners submitted that the amended section 12(2)
of the Act amounts to interference of executive in the affairs of
53
the judiciary by which the power to designate one or more
members as “Vice-Chairman” to exercise certain powers and
perform certain functions of the Chairman in the outlying
Benches of the Tribunal has been conferred upon the
Government whereas, previously such powers were vested
with the Chairman of the Tribunal.
9. The petitioners further submitted that the Amendment
Act has abolished the post of “Vice-Chairman” in the
Administrative Tribunals. The post of Vice-Chairman had
been in existence in the Administrative Tribunal since its
inception in 1985. The said post enabled the retired or
retiring judges of various High Courts to join the Central
Administrative Tribunal. Besides, it also provided an
opportunity in the nature of promotion for the members of
Administrative Tribunals. By abolition of the post of Vice-
Chairman, the retired High Court judges would not find it
attractive to join the Tribunal and, consequently, the judicial
character of the Tribunal would suffer a serious setback.
54
10. It was also submitted that the newly introduced section
6(2) of the Administrative Tribunals Act, 1985 modifies the
qualifications for appointment as Administrative Members in
the Tribunal in such a manner that for all practical purposes,
except for the officers of the Indian Administrative Service (for
short, `IAS’), hardly any other civil servant would ever become
eligible for such appointment. Earlier, even the Income Tax,
Postal and Customs Officers etc. used to become members of
the Tribunal. Now, after the amendment, they would hardly
have any chance of becoming members of the Tribunal. In
other words, by the 2006 Amendment, the zone of
consideration for appointment of Administrative Members has
been essentially confined only to IAS officers by a colourable
exercise of power by depriving all other categories of civil
servants for such appointment. The petitioners have not
placed sufficient material on record to decide this controversy,
therefore, I refrain from commenting on this grievance of the
petitioners. However, I direct the respondents to look into the
grievance of members of other services and if any merit is
55
found in the grievance then take appropriate remedial steps so
that members of other services may get proper representation.
11. The petitioners further submitted that by introducing
section 12(2) in the Act, the power to designate a “Vice-
Chairman” in the Benches for the purposes of certain duties
and functions of the Chairman has been usurped by the
government. Previously such powers were vested with the
Chairman of the Tribunal. Such a provision has the
potentiality of destroying the judicial independence of the
Tribunal particularly when such uncontrolled, unguided and
unregulated powers have now been given to the Government.
12. In order to properly comprehend the controversy involved
in the case, relevant newly inserted sections 10A and 12(2)
along with unamended section 12 are reproduced as under:-
Newly Inserted Section 10A of the Amended Act
“10A. Saving terms and conditions of
service of Vice-Chairman. – The Chairman, Vice-
Chairman and Members of a Tribunal appointed
before the commencement of the Administrative
Tribunals (Amendment) Act, 2006 shall continue to
56
be governed by the provisions of the Act, and the
rules made thereunder as if the Administrative
Tribunals (Amendment) Act, 2006 had not come
into force:
Provided that, however, such Chairman and
the Members appointed before the coming into force
of Administrative Tribunals (Amendment) Act, 2006,
may on completion of their term or attainment of
the age of sixty-five or sixty-two years, as the case
may be, whichever is earlier may, if eligible in terms
of section 8 as amended by the Administrative
Tribunals (Amendment) Act, 2006 be considered for
a fresh appointment in accordance with the
selection procedure laid down for such
appointments subject to the condition that the total
term in office of the Chairman shall not exceed five
years and that of the Members, ten years.”
SECTION 12 SECTION 12 (2)
(BEFORE AMENDMENT) (AFTER AMENDMENT)
"12.Financial and administrative
powers of the Chairman.- The 12. Financial and
Chairman shall exercise such administrative powers of
financial and administrative the Chairman.- (1) The
powers over the Benches as may Chairman shall exercise
be vested in him under the rules such financial and
made by the appropriate administrative powers over
Government: the Benches as may be
vested in him under the
Provided that the Chairman shall rules made by the
have authority to delegate such of appropriate Government.
his financial and administrative (2)The appropriate
powers as he may think fit to the Government may
Vice-Chairman or any officer of the designate one or more
Tribunal, subject to the condition Members to be the Vice-
that the Vice-Chairman or such Chairman or, as the case
57
officer shall, while exercising such
delegated powers, continue to act may be, Vice-Chairman
under the direction, control and thereof and the Members
supervision of the Chairman.” so designated shall
exercise such of the
powers and perform such
of the functions of the
Chairman as may be
delegated to him by the
Chairman by a general or
special order in writing.
13. In pursuance to the show cause notice issued by this
Court, the respondents, through the Under Secretary in the
Ministry of Personnel, Government of India, have filed counter
affidavit incorporating therein that abolishing the post of Vice-
Chairman in the Tribunal was intended as it was creating an
avoidable three tier-system resulting in anomalies in
qualifications, age of retirement, service conditions etc. It is
further incorporated in the counter affidavit that the abolition
of the post of Vice-Chairman and upgrading the post of
members or increase of retirement age do not in any manner
impinge upon the working of the Tribunal.
58
14. It is also incorporated in the counter affidavit that the
post of Vice-Chairman under the amended Act is only an
executive designation for discharging the administrative
powers. Though the Government has been given the power to
nominate one of the members as Vice-Chairman of the
Tribunal, it is obvious that the said designation of a member
as Vice-Chairman would obviously be made with the
concurrence of the Chairman of the Tribunal.
15. In the counter affidavit, it is also stated that a retired
High Court judge would be eligible for appointment as member
of the Tribunal. Usually a retired Chief Justice of the High
Court is appointed as the Chairman of the Tribunal and very
rarely, a retired judge may also be appointed as the Chairman
of the Tribunal. In any event, the Chairman would be a senior
retired judge who is appointed as a member of the Tribunal.
Hence, there is no anomaly.
16. In the counter affidavit, it is specifically admitted that
there is some substance in the contention of the petitioners
that members appointed prior to 19.2.2007 would be at
59
disadvantage in terms of their service conditions inasmuch as
they would not get the same benefits as the High Court judge.
However, this is a temporary anomaly. Over a period of time,
the same anomaly would correct itself and after a period of 4-5
years, all the members of the Tribunal would be treated in an
equal manner.
17. In the counter affidavit it is denied that ceiling on the
terms has the effect of stopping members of the Bar from
being appointed for the post of Vice-Chairman. In the counter
affidavit it is also incorporated that the tenure of ten years was
prescribed way back in the year 1985.
18. The petitioners have also filed the rejoinder affidavit. It is
reiterated that under the un-amended Act, members of the
Tribunal were eligible for multiple terms and it was not
restricted to two terms. In fact, a number of members were
given multiple extensions under the unamended Act. Thus
the restriction of ten years has been imposed for the first time
under the amended Act.
60
19. In the rejoinder affidavit, it is reiterated that the
discriminatory treatment being given to the members of
Administrative Tribunal appointed prior to 19.2.2007 is
untenable and unsustainable. Law does not allow temporary
discrimination even for a few years. It is clearly violative of
Articles 14 and 16 of the Constitution.
20. In the rejoinder, it is further asserted that under the
unamended Act the High Court Judges were being appointed
as Vice-Chairman and, therefore, they enjoyed higher status
than that of the members. Thus, when a Bench was being
constituted consisting of a High Court Judge as Vice-
Chairman and other members, the High Court Judge used to
preside over the Bench as the Vice-Chairman. Now under the
Amended Act the posts of Vice-Chairman having been
abolished, the High Court Judges are also appointed as
Member (Judicial) and the seniority among members has to be
on the basis of date of appointment as a member. In such an
eventuality, many High Court Judges who would be appointed
as Member (Judicial) could be lower in the seniority creating
61
an anomalous situation for the constitution of Benches in the
Tribunal. Besides, if for any reason a retired High Court
Judge presides over the Bench as the Vice-Chairman, even
though he may have joined as a member much later, it would
create a lot of heart-burning amongst all previously appointed
members as the class of members has now been made one.
21. It is also incorporated in the rejoinder that the
amendment has placed the members of the Bar in a totally
disadvantageous position as previously the members of the
Bar were being selected as Member (Judicial), but with the
amendment now the retiring and retired High Court Judges
are competing for the post of Member (Judicial) thereby the
members of the Bar are totally ignored. Theoretically, the
members of the Bar are eligible for appointment as Member
(Judicial), practically competent and otherwise deserving
lawyers have been eliminated from the scene. The Tribunal
which is discharging judicial powers which were earlier
exercised by the High Courts should be predominantly
manned by the members of the Bar and Judiciary but after the
62
amendment till date only two members have been appointed
from the Bar in so many years. This is the direct and
inevitable impact of the amendment. This goes against the
letter and spirit of the law declared in the case of S.P. Sampat
Kumar v. Union of India & Others (1987) 1 SCC 124.
22. The petitioners further submitted in the rejoinder that
the designation of Vice-Chairman is still in existence under
Amended Act also but the power of nomination for the said
post in all additional Benches under the amended Act has
been given to the appropriate Government which is not a
healthy development and thus needs to be quashed.
23. The petitioners submitted that the effort of the Central
Government to increase the age of retirement of the members
of Tribunal from 62 to 65 years is undoubtedly a welcome
step. However, by this effort every member of Tribunal will not
have a tenure of 5 years as asserted by the respondents. The
High Court Judges retire at the age of 62 years. Under the
amended Act members of the Tribunal retire at the age of 65
years thereby effectively serving the Tribunal only for a
63
maximum period of three years. The increase in the age of
retirement will give a minimum tenure of 5 years to the
Administrative Members but not to the retired High Court
Judges who are appointed as Judicial Members. They would
get maximum of three years only.
24. The petitioners also made grievance that as to why it
became imperative to snatch the powers of the Chairman to
delegate his financial and administrative powers to any Vice-
Chairman/Member. In the rejoinder, it is submitted that the
respondents have clearly admitted that the discriminatory
treatment is being given to the members of the Administrative
Tribunal appointed prior to 19.2.2007.
25. The respondents have nowhere denied that both the
categories of members are not discharging the same duties,
obligations and responsibilities, therefore, the conditions of
service for both of them are different. This is a clear
discrimination and violation of Articles 14 & 16 of the
Constitution of India. Thus, even on the basis of reply given by
the respondents it is proved beyond any shadow of doubt that
64
section 10A of the amended Act is clearly discriminatory and
unsustainable.
26. The contention of the respondents that the `temporary
anomaly’ would not make the provision unconstitutional is
clearly wrong and is denied. Discrimination even for a
temporary period of 4 to 5 years is also violative of Articles 14
and 16 of the Constitution of India. There is no law under
which a temporary discrimination can be saved.
27. It is also stated that because of this discriminatory
provision anomalous situation has already arisen in the
Central Administrative Tribunal. The petitioners have given
an example that under the unamended Act, only the
Secretaries and the Additional Secretaries to the Government
of India were eligible for appointment as Member
(Administrative). Under the said unamended provisions, a
number of former Secretaries to Government of India were
appointed as Member (Administrative). They have been
continuing as such till date and have acquired experience of a
number of years. They are till now continuing under the old
65
conditions of service. Now under the amended provisions,
selection has already been held and a number of retired judges
and officers at the level of the Additional Secretaries to
Government of India have been selected and appointed as
members under the new conditions of service. Thus, while
retired Judges and Secretaries to the Government of India now
working as members are not given the benefit of the
`conditions of service’ of a High Court Judge but subsequently
appointed retired Additional Secretaries to the Government of
India now appointed as Member (Administrative) are given
service conditions of a High Court Judge. The Administrative
Members, though junior both while in the government service
as well as an Administrative Member are entitled to get service
conditions of a High Court Judge.
28. The situation is becoming more and more acute with
more and more newly selected Members (Administrative)
joining the Tribunal. Similar situation is prevailing amongst
Member (Judicial) also. While persons appointed as Member
(Judicial) and senior to some newly appointed Member
66
(Judicial) would not get the benefit of the service conditions of
a High Court Judge and the later appointees would get service
conditions of a High Court Judge.
29. The petitioners are aggrieved by the newly inserted
section 10A of the Act to the extent it postulates different
conditions of service for the members of the Central
Administrative Tribunal on the basis of their dates of
appointments under the amended and the unamended Rules
as unconstitutional, arbitrary and legally unsustainable.
30. A Constitution Bench of this Court in Sampath
Kumar’s case (supra) has clearly laid down that the Central
Administrative Tribunal has been created in substitution of
the High Court. This Court in para 15 of the judgment
observed as under:
“……… As the pendency in the High Courts
increased and soon became the pressing problem of
backlog, the nation’s attention came to be bestowed
on this aspect. Ways and means to relieve the High
Courts of the load began to engage the attention of
the Government at the centre as also in the various
States. As early as 1969, a Committee was set up by
the Central Government under the chairmanship of
Mr. Justice Shah of this Court to make
67
recommendations suggesting ways and means for
effective, expeditious and satisfactory disposal of
matters relating to service disputes of Government
servants as it was found that a sizable portion of
pending litigations related to this category. The
Committee recommended the setting up of an
independent Tribunal to handle the pending cases
before this Court and the High Courts. While this
report was still engaging the attention of
Government, the Administrative Reforms
Commission also took note of the situation and
recommended the setting up of Civil Services
Tribunals to deal with appeals of Government
servants against disciplinary action…….”
31. The judicial work which is now being dealt with by the
members of the Tribunal was earlier discharged by the judges
of the High Court before the Tribunal was established. In
most of the High Courts, a large number of cases had got piled
up awaiting adjudication. The High Courts were taking years
and in some cases decades in deciding these cases. The Union
of India had an option either to suitably increase the strength
of the High Courts or to create a separate Tribunal for
expeditious disposal of these cases. The Union of India decided
to create a separate Tribunal. Once the Tribunal is
discharging the functions of the judiciary, then both judges
and members of the Bar have to be an integral part of the
68
Tribunal. The functioning of the Tribunal may become
difficult in case Members of Judiciary and Bar have no
incentive to join the Tribunal or they are deliberately
discouraged and dissuaded from joining the Tribunal because
of newly inserted amendments in the Act. The non-descript
and otherwise non-deserving candidates would always be
available but in order to have public trust and confidence in
the functioning of the Tribunal, it is absolutely imperative that
the respondents must endeavour to attract really deserving,
competent and promising members of the Bar with high
caliber and integrity to join the Tribunal. In order to attract
such talent, the service conditions have to be improved and
made attractive because these members are discharging the
functions of the High Court.
32. In Sampath Kumar’s case (supra), the Constitution
Bench has dealt with this aspect of the matter in some detail.
This Court in para 21 observed as under:
“……So far as the Chairman is concerned, we are of
the view that ordinarily a retiring or retired Chief
Justice of a High Court or when such a person is
not available, a Senior Judge of proved ability either
69
in office or retired should be appointed. That office
should for all practical purposes be equated with
the office of Chief Justice of a High Court. We must
immediately point out that we have no bias, in any
manner, against members of the Service. Some of
them do exhibit great candour, wisdom, capacity to
deal with intricate problems with understanding,
detachment and objectiveness but judicial
discipline generated by experience and training in
an adequate dose is, in our opinion, a necessary
qualification for the post of Chairman…..”
Similarly, other members also discharge the same judicial
functions. In order to preserve public confidence, acceptability
and trust, members of the Bar and Judiciary must be
encouraged to man the Tribunal. Discouraging or killing the
incentive of members of the Bar and Judiciary to accept the
appointment of the Tribunal would have serious repercussions
about the credibility, confidence, trust and acceptability of the
Tribunal particularly when according to Sampath Kumar’s
case (supra), the High Court is being supplanted by the
Administrative Tribunal. In a democratic country governed by
the rule of law no institution discharging judicial functions
can properly survive without public confidence, credibility,
trust and acceptability.
70
33. The Constitution Bench in Sampath Kumar’s case
(supra) observed that what we really need is the judicial
Tribunal. The judicial functions which, before setting up of
the Central Administrative Tribunal, were discharged by the
judges of the High Courts, would now be discharged by the
members of the Tribunal, therefore, it is imperative that the
judicial work of the Tribunal should be handled by talented
and competent members who have legal background and
judicial experience. Any amendment of the Statute which
discourages the members of the Bar and Judiciary from
joining the Administrative Tribunal deserves to be discarded.
34. The Tribunal has the power of judicial review. It is now
well settled by this Court in the case of Minerva Mills Ltd. &
Ors. v. Union of India & Ors. (1980) 3 SCC 625 that judicial
review is a basic and essential feature of the Constitution and
no law passed by the Parliament in exercise of its constituent
power can abrogate it or take it away. If the power of judicial
review is abrogated or taken away, the Constitution will cease
to be what it is. It is a fundamental principle of our
71
constitutional scheme that every organ of the State and every
authority under the Constitution derives its power and
authority from the Constitution and has to act within the
limits of such powers.
35. In Sampath Kumar’s case (supra) the court observed as
under:
“3 ….The Constitution has, therefore created an
independent machinery for resolving these disputes
and this independent machinery is the judiciary
which is vested with the power of judicial review to
determine the legality of executive action and the
validity of legislation passed by the legislature. The
judiciary is constituted the ultimate interpreter of
the Constitution and to it is assigned the delicate
task of determining what is the extent and scope of
the power conferred on each branch of Government,
what are the limits on the exercise of such power
under the Constitution and whether any action of
any branch transgresses such limits. It is also a
basic principle of the rule of law which permeates
every provision of the Constitution and which forms
its very core and essence that the exercise of power
by the executive or any other authority must not
only be conditioned by the Constitution but also be
in accordance with law and it is the judiciary which
has to ensure that the law is observed and there is
compliance with the requirements of law on the part
of the executive and other authorities. This function
is discharged by the judiciary by exercise of the
power of judicial review which is a most potent
weapon in the hands of the judiciary for
maintenance of the rule of law. The power of judicial
72
review is an integral part of our constitutional
system and without it, there will be no Government
or laws and the rule of law would become a teasing
illusion and a promise of unreality…..”
36. Bhagwati, CJ in a concurring judgment in Sampath
Kumar’s case (supra) observed as under:
“3. ……..The basic and essential feature of judicial
review cannot be dispensed with but it would be
within the competence of Parliament to amend the
Constitution so as to substitute in place of the High
Court, another alternative institutional mechanism
or arrangement for judicial review, provided it is no
less efficacious than the High Court. Then, instead
of the High Court, it would be another institutional
mechanism or authority which would be exercising
the power of judicial review with a view to enforcing
the constitutional limitations and maintaining the
rule of law. Therefore, if any constitutional
amendment made by Parliament takes away from
the High Court the power of judicial review in any
particular area and vests it in any other
institutional mechanism or authority, it would not
be violative of the basic structure doctrine, so long
as the essential condition is fulfilled, namely, that
the alternative institutional mechanism or authority
set up by the parliamentary amendment is no less
effective than the High Court.”
Justice Bhagwati, in the said judgment, effectively reminded
us that the Administrative Tribunal is to carry out the
functions of the High Court. In order to inspire confidence in
73
the public mind it is essential that it should be manned by
people who have judicial and/or legal background, approach
and objectivity. This court in Sampath Kumar (supra)
further observed as under:
“5. We cannot afford to forget that it is the High
Court which is being supplanted by the
Administrative Tribunal and it 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. Of course, I must
make it clear that when I say this, I do not wish to
cast any reflection on the members of the Civil
Services because fortunately we have, in our
country, brilliant civil servants who possess
tremendous sincerity, drive and initiative and who
have remarkable capacity to resolve and overcome
administrative problems of great complexity. But
what is needed in a judicial tribunal which is
intended to supplant the High Court is legal
training and experience…”
37. Justice Bhagwati, in his judgment in Sampath Kumar’s
case has also cautioned that in service matters, the
Government is always the main contesting or opposite party,
therefore, it would not be conducive to judicial independence
to leave unfettered and unrestricted discretion to the executive
in the matter of appointments of Chairman, Vice-Chairman
and Administrative Members. The court observed as under:
74
“7. …. Now it may be noted that almost all
cases in regard to service matters which come
before the Administrative Tribunal would be against
the Government or any of its officers and it would
not at all be conducive to judicial independence to
leave unfettered and unrestricted discretion in the
executive to appoint the Chairman, Vice-Chairmen
and administrative members; if a judicial member
or an administrative member is looking forward to
promotion as Vice-Chairman or Chairman, he
would have to depend on the goodwill and
favourable stance of the executive and that would
be likely to affect the independence and impartiality
of the members of the Tribunal. The same would be
the position vis-`-vis promotion to the office of
Chairman of the Administrative Tribunal. The
administrative members would also be likely to
carry a sense of obligation to the executive for
having been appointed members of the
Administrative Tribunal and that would have a
tendency to impair the independence and objectivity
of the members of the Tribunal. There can be no
doubt that the power of appointment and promotion
vested in the executive can have prejudicial effect on
the independence of the Chairman, Vice-Chairmen
and members of the Administrative Tribunal, if such
power is absolute and unfettered. If the members
have to look to the executive for advancement, it
may tend, directly or indirectly, to influence their
decision-making process particularly since the
Government would be a litigant in most of the cases
coming before the Administrative Tribunal and it is
the action of the Government which would be
challenged in such cases…”
38. In order to inspire public confidence, it is imperative that
the deserving persons with competence, objectivity,
75
impartiality and integrity with judicial and/or legal
background are appointed as members of the Tribunal.
39. Ranganath Misra, J. who wrote the main judgment of the
Constitution Bench in Sampath Kumar (supra) observed as
under:
“18. The High Courts have been functioning over a
century and a quarter and until the Federal Court
was established under the Government of India Act,
1935, used to be the highest courts within their
respective jurisdiction subject to an appeal to the
Privy Council in a limited category of cases. In this
long period of about six scores of years, the High
Courts have played their role effectively, efficiently
as also satisfactorily. The litigant in this country
has seasoned himself to look up to the High Court
as the unfailing protector of his person, property
and honour. The institution has served its purpose
very well and the common man has thus come to
repose great confidence therein. Disciplined,
independent and trained Judges well-versed in law
and working with all openness in an unattached
and objective manner have ensured dispensation of
justice over the years. Aggrieved people approach
the Court– the social mechanism to act as the
arbiter–not under legal obligation but under the
belief and faith that justice shall be done to them
and the State’s authorities would implement the
decision of the Court. It is, therefore, of paramount
importance that the substitute institution–the
Tribunal–must be a worthy successor of the High
Court in all respects. That is exactly what this Court
76
intended to convey when it spoke of an alternative
mechanism in Minerva Mills’ case.”
40. In the later part of the judgment, while clarifying that
this court has no bias against the members of service, the
court observed as under:
“21. ….We must immediately point out that we
have no bias, in any manner, against members of
the Service. Some of them do exhibit great candour,
wisdom, capacity to deal with intricate problems
with understanding, detachment and objectiveness
but judicial discipline generated by experience and
training in an adequate dose is, in our opinion, a
necessary qualification for the post of Chairman…”
41. While commenting on section 8, the court further
observed as under:
“22. Section 8 of the Act prescribes the term of
office and provides that the term for Chairman,
Vice-Chairman or members shall be of five years
from the date on which he enters upon his office or
until he attains the age of 65 in the case of
Chairman or Vice-Chairman and 62 in the case of
member, whichever is earlier. The retiring age of 62
or 65 for the different categories is in accord with
the pattern and fits into the scheme in comparable
situations. We would, however, like to indicate that
appointment for a term of five years may
occasionally operate as a disincentive for well
qualified people to accept the offer to join the
Tribunal. There may be competent people belonging
to younger age groups who would have more than
five years to reach the prevailing age of retirement.
The fact that such people would be required to go
77
out on completing the five year period but long
before the superannuation age is reached is bound
to operate as a deterrent…”
42. In L. Chandra Kumar v. Union of India & Others
(1997) 3 SCC 261, the Court dealt with the origin of judicial
review. The origin of the power of judicial review of legislative
action may well be traced to the classic enunciation of the
principle by Chief Justice John Marshall of the US Supreme
Court in Marbury v. Madison. (But the origins of the power of
judicial review of legislative action have not been attributed to
one source alone). So when the framers of our Constitution
set out their monumental task, they were well aware that the
principle that courts possess the power to invalidate duly-
enacted legislations had already acquired a history of nearly a
century and a half.
43. In R.K. Jain v. Union of India (1993) 4 SCC 119 (para 8)
the court observed as under:-
“…(T)he time is ripe for taking stock of the working
of the various Tribunals set up in the country after
the insertion of Articles 323A and 323B in the
Constitution. A sound justice delivery system is a
sine qua non for the efficient governance of a
78
country wedded to the rule of law. An independent
and impartial justice delivery system in which the
litigating public has faith and confidence alone can
deliver the goods…”
44. In Bidi Supply Co. v. Union of India & Ors. 1956 SCR
267, the Court observed as under:
“The heart and core of democracy lies in the judicial
process, and that means independent and fearless
judges free from executive control brought up in
judicial traditions and trained to judicial ways of
working and thinking. The main bulwarks of liberty
of freedom lie there and it is clear to me that
uncontrolled powers of discrimination in matters
that seriously affect the lives and properties of
people cannot be left to executive or quasi executive
bodies even if they exercise quasi judicial functions
because they are then invested with an authority
that even Parliament does not possess. Under the
Constitution, Acts of Parliament are subject to
judicial review particularly when they are said to
infringe fundamental rights, therefore, if under the
Constitution Parliament itself has not uncontrolled
freedom, of action, it is evident that it cannot invest
lesser authorities with that power.”
45. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. (1973) 4 SCC
225, Khanna, J. (at para 1529 at page 818) observed as under:
“…The power of judicial review is, however, confined
not merely to deciding whether in making the
impugned laws the Central or State Legislatures
79
have acted within the four corners of the legislative
lists earmarked for them; the courts also deal with
the question as to whether the laws are made in
conformity with and not in violation of the other
provisions of the Constitution. ……..As long as some
fundamental rights exist and are a part of the
Constitution, the power of judicial review has also to
be exercised with a view to see that the guarantees
afforded by those rights are not contravened…
Judicial review has thus become an integral part of
our constitutional system and a power has been
vested in the High Courts and the Supreme Court to
decide about the constitutional validity of provisions
of statutes. If the provisions of the statute are
found to be violative of any article of the
Constitution, which is touchstone for the validity of
all laws, the Supreme Court and the High Courts are
empowered to strike down the said provisions.”
46. In L. Chandra Kumar’s case (supra), the Court observed
as under:
“81. If the power under Article 32 of the
Constitution, which has been described as the
“heart” and “soul” of the Constitution, can be
additionally conferred upon “any other court”, there
is no reason why the same situation cannot subsist
in respect of the jurisdiction conferred upon the
High Courts under Article 226 of the Constitution.
So long as the jurisdiction of the High Courts under
Articles 226/227 and that of this Court under Article
32 is retained, there is no reason why the power to
test the validity of legislations against the provisions
of the Constitution cannot be conferred upon
Administrative Tribunals created under the Act or
upon Tribunals created under Article 323-B of the
Constitution. It is to be remembered that, apart
80
from the authorization that flows from Articles 323-A
and 323-B, both Parliament and the State
Legislatures possess legislative competence to effect
changes in the original jurisdiction of the Supreme
Court and the High Courts…”
47. The Report of the Arrears Committee (1989-90) popularly
known as the Malimath Committee Report, in Chapter VIII of
the second volume under the heading “Alternative Modes and
Forums for Dispute Resolution” dealt with the functioning of
the Tribunals in the following words:
“Functioning of Tribunals
8.63 Several tribunals are functioning in the
country. Not all of them, however, have inspired
confidence in the public mind. The reasons are not far
to seek. The foremost is the lack of competence,
objectivity and judicial approach. The next is their
constitution, the power and method of appointment of
personnel thereto, the inferior status and the casual
method of working. The last is their actual
composition; men of caliber are not willing to be
appointed as presiding officers in view of the
uncertainty of tenure, unsatisfactory conditions of
service, executive subordination in matters of
administration and political interference in judicial
functioning. For these and other reasons, the quality
of justice is stated to have suffered and the cause of
expedition is not found to have been served by the
establishment of such tribunals.”
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48. The Tribunals were established to inspire confidence in
the public mind for providing speedy and quality justice to the
litigants. The Tribunals were set up to reduce the increasing
burden of the High Courts. The High Courts’ judicial work
was in fact entrusted to these Tribunals. The judicial work
should be adjudicated by legally trained minds with judicial
experience or at least by a legally trained mind. The public
has faith and confidence in the judiciary and they approach
the judiciary for just and fair decisions. Therefore, to
maintain the trust and confidence in the judicial system, the
government should ensure that the person adjudicating the
disputes is a person having legal expertise, modicum of legal
training and knowledge of law apart from an impeccable
integrity and ability. The persons who have no legal expertise
and modicum of legal training may find it difficult to deal with
complicated and complex questions of law which at times even
baffle the minds of well trained lawyers and judges. Therefore,
dispensation of justice should be left primarily to the members
of the Bar and the Judges who have by long judicial and legal
training and experience have acquired understanding,
82
objectivity and acumen. Unless we take utmost care in thematter of appointments in the Tribunal, our justice delivery
system may not command credibility, confidence and the trust
of the people of this country.
49. In all constitutional matters where amendments of
certain legislations have been challenged, the approach of this
Court has always been to examine the constitutional scheme
of every enactment of the State. It is clear that the Court had
never tried to pick holes or searched for defects of drafting but
has sustained the enactments if found fit on the anvil of truth
and has struck down the enactments only whenever an
enactment was found wholly unsustainable. The Courts have
always been very conscious of the demarked functions of the
three organs of the State. The Courts have also recognized the
concept of checks and balances under the Constitution.
50. The Courts constitute an inbuilt mechanism within the
framework of the Constitution for purposes of social audit and
to ensure compliance of the Rule of Law. This Court seeks
only to ensure that the majesty of this great institution may
83
not be lowered and the functional utility of the constitutional
edifice may not be rendered ineffective. This principle was
articulated by this Court in the case of M.L. Sachdev v. Union
of India & Another (1991) 1 SCC 605.
51. There are plethora of cases where challenges have been
made to various enactments of the State constituting expert
bodies/Tribunals on the ground that in such Tribunals the
positions required to be occupied by the persons of judicial
background are being filled in by those who are bureaucrats
and others who are not having judicial expertise and
objectivity. In such cases, it has been a ground of challenge
that the bodies/Tribunals being judicial forums having
adjudicatory powers on the questions of importance and
legalistic in nature and in the background of the doctrine of
separation of powers recognized by the Indian Constitution,
the head of the judiciary should always be consulted for such
appointments and the main substance behind such challenge
has been that the persons who are appointed to such bodies
84
should belong to the judiciary because those members have to
discharge judicial functions.
52. In Sampath Kumar’s case (supra), Bhagwati, C.J.
relying on Minerva Mills’ case declared that it was well
settled that judicial review was a basic and essential feature of
the Constitution. If the power of judicial review is taken away,
the Constitution would cease to be what it is. The court
further declared that if a law made under Article 323-A(1) were
to exclude the jurisdiction of the High Court under Articles
226 and 227 without setting up an efficient alternative
institutional mechanism or arrangement for judicial review, it
would violate the basic structure and hence outside the
constituent power of Parliament.
53. The Parliament was motivated to create new adjudicatory
fora to provide new, inexpensive and fast-track adjudicatory
systems and permitting them to function by tearing of the
conventional shackles of strict rule of pleadings, strict rule of
evidence, tardy trials, three/four-tier appeals, endless
revisions and reviews – creating hurdles in fast flow of stream
85
of justice. The Administrative Tribunals as established under
Article 323-A and the Administrative Tribunals Act, 1985 are
an alternative institutional mechanism or authority, designed
to be not less effective than the High Court, consistently with
the amended constitutional scheme but at the same time not
to negate judicial review jurisdiction of the constitutional
courts.
54. I am, therefore, clearly of the opinion that there is no
anathema in the Tribunal exercising jurisdiction of High Court
and in that sense being supplemental or additional to the High
Court but, at the same time, it is our bounden duty to ensure
that the Tribunal must inspire the same confidence and trust
in the public mind. This can only be achieved by appointing
the deserving candidates with legal background and judicial
approach and objectivity.
55. I deem it appropriate to briefly discuss the theory of basic
structure and separation of power in the Constitution to
properly comprehend the controversy involved in this case.
EQUALITY AND BASIC STRUCTURE
86
56. Initially when the doctrine of basic structure was laid
down there was no specific observation with respect to
whether Article 14 forms part of basic structure or not. In fact
the confusion was to such an extent as to whether
fundamental rights as a whole form part of basic structure or
not? It was in this light that Khanna, J., had to clarify in his
subsequent decision in Indira Nehru Gandhi v. Raj Narain
& Anr. (1975) Supp. SCC 1 in the following words:-
“…….What has been laid down in that judgment is that
no article of the Constitution is immune from the
amendatory process because of the fact that it relates to
a fundamental right and is contained in Part III of the
Constitution…..The above observations clearly militate
against the contention that according to my judgment
fundamental rights are not a part of the basic structure
of the Constitution. I also dealt with the matter at length
to show that the right to property was not a part of the
basic structure of the Constitution. This would have been
wholly unnecessary if none of the fundamental rights was
a part of the basic structure of the Constitution”. [Paras
251-252]Further, though not directly quoting Article 14 of the
constitution Chandrachud, J. in the above mentioned case
held that,
87
“I consider it beyond the pale of reasonable controversy
that if there be any unamendable features of the
Constitution on the score that they form a part of the
basic structure of the Constitution, they are that: (i)
Indian sovereign democratic republic; (ii) Equality of
status and opportunity shall be secured to all its citizens;
(iii) The State shall have no religion of its own and all
persons shall be equally entitled to freedom of conscience
and the right freely to profess, practise and propagate
religion and that (iv) the nation will be governed by a
Government of laws, not of men. These, in my opinion,
are the pillars of our constitutional philosophy, the
pillars, therefore, of the basic structure of the
Constitution.” [Para 664]
57. Thus, from the above observations it is very clear that at
no point of time there was the intention to exclude the
mandate of equality from the basic structure. The I.R. Coelho
(dead) by Lrs. v. State of Tamil Nadu & Others (2007) 2
SCC 1 rightly observed that in Indira Gandhi’s case,
Chandrachud, J. posits that equality embodied in Article 14 is
part of the basic structure of the constitution and, therefore,
cannot be abrogated by observing that the provisions
impugned in that case are an outright negation of the right of
equality conferred by Article 14, a right which more than any
other is a basic postulate of our constitution [Para 108]
88
58. In the above case relying on the observations in the
Minerva mills’s case the question of Article 14 coming under
the purview of Basic structure has been brought at rest. Since
it has been a settled question per the judgment of I.R. Coelho
that the arbitrariness of a legislation, Rules, Policies and
amendment would be subject to the test of reasonableness,
rule of law and broad principle of equality as per Article 14.
59. In Ashoka Kumar Thakur & Ors. v. Union of India &
Ors. (2008) 6 SCC 1, Balakrishnan, CJ. observed that,
“118. Equality is a multicolored concept incapable of a
single definition as is also the fundamental right under
Article 19(1)(g). The principle of equality is a delicate,
vulnerable and supremely precious concept for our
society. It is true that it has embraced a critical and
essential component of constitutional identity. The larger
principles of equality as stated in Articles 14, 15 and 16
may be understood as an element of the “basic structure”
of the Constitution and may not be subject to
amendment, although, these provisions, intended to
configure these rights in a particular way, may be
changed within the constraints of the broader principle.
The variability of changing conditions may necessitate
the modifications in the structure and design of these
rights, but the transient characters of formal
arrangements must reflect the larger purpose and
principles that are the continuous and unalterable
thread of constitutional identity. It is not the introduction
of significant and far-reaching change that is
89
objectionable, rather it is the content of this change
insofar as it implicates the question of constitutional
identity.”
SEPARATION OF POWERS
60. The Constitution has very carefully separated the powers
of executive, judiciary and legislature and maintained a very
fine balance.
61. Sikri, C.J. in Kesavananda Bharati’s case (supra)
stated that separation of powers between the legislature,
executive and the judiciary is basic structure of the
constitution. The learned judge further observed that,
“The above structure is built on the basic foundation i.e.
the dignity and freedom of the individual. This is of
supreme importance. This cannot by any form of
amendment be destroyed.” (Para 293)
“The above foundation and the above basic features are
easily discernible not only from the preamble but the
whole scheme of the Constitution, which I have already
discussed.” [Para 294]
62. In Minerva Mills Ltd. (supra), the court observed thus:-
“87……every organ of the State, every authority under
the Constitution, derives its power from the Constitution
and has to act within the limits of such power. But then
90
the question arises as to which authority must decide
what are the limits on the power conferred upon each
organ or instrumentality of the State and whether such
limits are transgressed or exceeded. Now there are three
main departments of the State amongst which the powers
of government are divided; the executive, the legislature
and the judiciary. Under our Constitution we have no
rigid separation of powers as in the United States of
America, but there is a broad demarcation, though,
having regard to the complex nature of governmental
functions, certain degree of overlapping is inevitable. The
reason for this broad separation of powers is that “the
concentration of powers in any one organ may” to quote
the words of Chandrachud, J., (as he then was) in Indira
Gandhi case (supra) “by upsetting that fine balance
between the three organs, destroy the fundamental
premises of a democratic government to which we are
pledged”.
63. This court in Subhash Sharma & Ors. v. Union of
India 1991 Sup (1) 574 observed as under:-
“…….The constitutional phraseology would require to be
read and expounded in the context of the constitutional
philosophy of separation of powers to the extent
recognised and adumbrated and the cherished values of
judicial independence.” [Para 31]
64. In Pareena Swarup v. Union of India (2008) 14 SCC
107 the court observed as under:-
“9. It is necessary that the court may draw a line
which the executive may not cross in their
91
misguided desire to take over bit by bit and (sic)
judicial functions and powers of the State exercised
by the duly constituted courts. While creating new
avenue of judicial forums, it is the duty of the
Government to see that they are not in breach of
basic constitutional scheme of separation of powers
and independence of the judicial function.”
In the said case, it was also observed as under:-
“10……………..The Constitution guarantees free
and independent judiciary and the constitutional
scheme of separation of powers can be easily and
seriously undermined, if the legislatures were to
divest the regular courts of their jurisdiction in all
matters, and entrust the same to the newly created
Tribunals which are not entitled to protection
similar to the constitutional protection afforded to
the regular courts. The independence and
impartiality which are to be secured not only for
the court but also for Tribunals and their
members, though they do not belong to the
“judicial service” but are entrusted with judicial
powers. The safeguards which ensure
independence and impartiality are not for
promoting personal prestige of the functionary but
for preserving and protecting the rights of the
citizens and other persons who are subject to the
jurisdiction of the Tribunal and for ensuring that
such Tribunal will be able to command the
confidence of the public. Freedom from control and
potential domination of the executive are necessary
preconditions for the independence and
impartiality of Judges. To make it clear that a
judiciary free from control by the executive and
legislature is essential if there is a right to have
claims decided by Judges who are free from
potential domination by other branches of
Government. With this background, let us consider
the defects pointed out by the petitioner and
amended/proposed provisions of the Act and the
Rules.”
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EQUAL PAY FOR EQUAL WORK
65. The Equal Remuneration Act, 1976 and in particular its
preamble declares the Act to provide for payment of equal
remuneration and prevention of any kind of discrimination on
the ground of sex or otherwise in the matter of employment.
The Equal Remuneration Act, 1976 extends to the whole of
India by virtue of Section 1(2) and there cannot be different
pay scales for different employees carrying out exactly same
work. Section 4(3) states that “where, in an establishment or
employment, the rates of remuneration payable before the
commencement of this Act for men and women workers for the
same work or work of a similar nature are different only on the
ground of sex, then the higher (in cases where there are only
two rates), or, as the case may be, the highest (in cases where
there are more than two rates), of such rates shall be the rate
at which remuneration shall be payable, on and from such
commencement, to such men and women workers.”
66. In view of the above constitutional principles and
Directive Principles of State Policy under the Constitution and
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the statutory and mandatory provisions of overriding Equal
Remuneration Act, 1976, the following principles are evolved
for fixing the governmental pay policy, whether executive or
legislative on the recommendation of the Pay Commissions,
Pay Committees by Executive Governments, which are broadly
stated as under:-
(1) The governmental pay policy, whether executive or
legislative, cannot run contrary to constitutional principles of
constitutional law;
(2) The governmental pay policy, whether executive or
legislative, cannot run contrary to the overriding provisions of
Equal Remuneration Act, 1976.
xxx xxx xxx
(12) The governmental pay policy must conform to the
overriding statutory command under Sections 13 and 14 read
with Section 1(2) of the Equal Remuneration Act, 1976, which
supports for uniformity between the pay policy of the State
Governments and the Central Government in the whole of
India and such uniformity in the pay policy of the State
Governments and the Central Government in the whole of
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India has already found further support from the Judgment of
this Court in the case of Randhir Singh v. Union of India &
Others (1982) 1 SCC 618. I must hasten to say that where all
things are equal that is, where all relevant considerations are
same, persons holding identical posts may not be treated
differentially of their pay.
67. As early as in 1952, in a celebrated case decided by this
court in State of West Bengal v. Anwar Ali Sarkar v. (1952)
SCR 284, this court laid down that in order to pass the test,
two conditions must be fulfilled, namely, that the classification
must be founded on an intelligible differentia which
distinguishes those that are grouped together from others and
that said differentia must have a rational relation to the object
sought to be achieved by the Act. The differentia which is the
basis of the classification and the object of the Act are distinct
things and what is necessary is that there must be a nexus
between them.
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68. In 1959, in a celebrated case of Shri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar & Others (1959) 1
SCR 279 at p.296, this Court observed as under:
“………It is now well established that while
article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from others left out of the group and, (ii)
that differentia must have a rational relation to the
object sought to be achieved by the statute in
question………”
69. In The State of Jammu & Kashmir v. Triloki Nath
Khosa and Ors. (1974) 1 SCC 19, this court observed as
under:-
“……..Discrimination is the essence of
classification and does violence to the
constitutional guarantee of equality only if it
rests on an unreasonable basis……”
70. In Indira Nehru Gandhi (supra), the court observed as
under:-
“This Court, at least since the days of Anwar Ali
Sarkar’s case, has consistently taken the view that the
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classification must be founded on an intelligible
differentia which distinguishes those who are grouped
together from those who are left out and that the
differentia must have a rational relation to the object
sought to be achieved by the particular law. The first
test may be assumed to be satisfied since there is no
gainsaying that in our system of Government, the Prime
Minister occupies a unique position. But what is the
nexus of that uniqueness with the law which provides
that the election of the Prime Minister and the Speaker
to the Parliament will be above all laws, that the
election will be governed by no norms or standards
applicable to all others who contest that election and
that a election declared to be void by a High Court
judgment shall be deemed to be valid, the judgment
and its findings being themselves required to be
deemed to be void? Such is not the doctrine of
classification and no facet of that doctrine can support
the favoured treatment accorded by the 39th
Amendment to two high personages. It is the common
man’s sense of justice which sustains democracies and
there is a fear that the 39th Amendment, by its
impugned part, may outrage that sense of justice.
Different rules may apply to different conditions and
classes of men and even a single individual may, by his
uniqueness, form a class by himself. But in the absence
of a differentia reasonably related to the object of the
law, justice must be administered with an even hand to
all.
71. In Maneka Gandhi v. Union of India & Anr. (1978) 1
SCC 248 it was observed as follows:
“….Equality is a dynamic concept with many
aspects and dimensions and it cannot be
imprisoned within traditional and doctrinaire
limits…. Article 14 strikes at arbitrariness in state
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action and ensures fairness and quality of
treatment. The principle of reasonableness, which
legally as well as philosophically, is an essential
element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence.”
72. In Randhir Singh (supra), it was held as under:
“8. ……..Article 39(d) of the Constitution
proclaims “equal pay for equal work for both men
and women” as a directive principle of State Policy.
“Equal pay for equal work for both men and women”
means equal pay for equal work for everyone and as
between the sexes. Directive principles, as has been
pointed out in some of the judgments of this Court
have to be read into the fundamental rights as a
matter of interpretation. Article 14 of the
Constitution enjoins the State not to deny any
person equality before the law or the equal
protection of the laws and Article 16 declares that
there shall be equality of opportunity for all citizens
in matters relating to employment or appointment
to any office under the State………Construing
Articles 14 and 16 in the light of the Preamble and
Article 39(d) we are of the view that the principle
‘Equal pay for Equal work’ is ‘deducible from those
Article and may be properly applied to cases of
unequal scales of pay based on no classification or
irrational classification though these drawing the
different scales of pay do identical work under the
same employer.”
73. In Surinder Singh & Anr. v. Engineer-in-Chief, CPWD
& Others (1986) 1 SCC 639 it was observed that the Central
Government like all organs of State is committed to the
Directive Principles of State Policy and Article 39 enshrines the
principle of equal pay for equal work.
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74. In Mackinnon Mackenzie & Co. Ltd. v. Audrey D’
Costa & Another (1987) 2 SCC 469 it was observed that the
term “same work” or “work of similar nature” under Section
2(h) of the Act that “whether a particular work is same or
similar in nature as another work can be determined on the
three considerations. In deciding whether the work is same or
broadly similar, the authority should take broad view; next in
ascertaining whether any differences are of practical
importance, the authority should take an equally broad
approach for the very concept of similar work implies
differences in detail, but these should not defeat a claim for
equality on trivial grounds. It should look at the duties
actually performed, not those theoretically possible. In
making comparison the authority should look at the duties
generally performed by men and women.”
75. In Bhagwan Dass & Others v. State of Haryana &
Others (1987) 4 SCC 634 this court held that the mode of
selection and period of appointment is irrelevant and
immaterial for the applicability of equal pay for equal work
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once it is shown that the nature of duties and functions
discharged and work done is similar.
76. In Inder Singh & Others v. Vyas Muni Mishra &
Others 1987 (Supp) SCC 257 this court also held the view
that when two groups of persons are in the same or similar
posts performing same kind of work, either in the same or in
the different departments, the court may in suitable cases,
direct equal pay by way of removing unreasonable
discrimination and treating the two groups, similarly situated,
equally.
77. In Haryana State Adhyapak Sangh & Others v. State
of Haryana & Ors. (1988) 4 SCC 571 this court enforced the
principle of equal pay for equal work for Aided School teachers
at par with government school teachers and held that the
teachers of Aided Schools must be paid same pay scale and
dearness allowance as teachers of the government schools.
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78. In U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v.
Workmen 1989 Supp (2) SCC 424, this court observed as
under:-
“The Tribunal’s finding that both the groups were
doing the same type of work has rightly not been
challenged by the employer Bank as it is a pure
finding of fact. If irrespective of classification of
junior and senior groups, the same work was
done by both, the principle of equal pay for equal
work is definitely attracted and on the finding of
fact the Tribunal was justified in applying the
principle to give the same benefit to those who
had been left out.”
79. In the case of Sita Devi & Others v. State of Haryana
& Others (1996) 10 SCC 1 this court held: “The doctrine of
“equal pay for equal work” is recognized by this Court as a
facet of the equality clause contained in Article 14 of the
Constitution.”
80. In Sube Singh & Ors. v. State of Haryana & Ors.
(2001) 7 SCC 545 (para 10), this court observed as under:-
“….whether the classification is reasonable having
an intelligible differentia and a rational basis
germane to the purpose, the classification has to be
held arbitrary and discriminatory”.
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81. In John Vallamattom & Another v. Union of India
(2003) 6 SCC 611, the constitutionality of Section 118 of the
Indian Succession Act, 1925 was challenged. Section 118
was declared unconstitutional and violative of Article 14 of the
Constitution. In that case, this court observed thus:-
“Although Indian Christians form a class by
themselves but there is no justifiable reason to hold
that the classification made is either based on
intelligible differentia or the same has any nexus
with the object sought to be achieved. The
underlying purpose of the impugned provision
having adequately been taken care of by Section 51,
the purport and object of that provision must be
held to be non-existent.”
82. In State of Mizoram & Another. v. Mizoram
Engineering Service Association & Another (2004) 6 SCC
218 while dealing with case of this nature, this court observed
as under:-
“The fact that the revised pay scale was being
allowed to Mr Robula in tune with the
recommendations of the Fourth Central Pay
Commission, shows that the State Government had
duly accepted the recommendations of the Fourth
Central Pay Commission. Having done so, it cannot
be permitted to discriminate between individuals
and not allow the same to the rest.”
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In this case, this Court clearly stated that the State cannot be
permitted to discriminate similarly placed persons.
83. This court in Union of India v. Dineshan K.K. (2008) 1
SCC 586 at page 591 (para 12) observed as under:-
“The principle of “equal pay for equal work” has
been considered, explained and applied in a
catena of decisions of this Court. The doctrine of
“equal pay for equal work” was originally
propounded as part of the directive principles of
the State policy in Article 39(d) of the
Constitution. In Randhir Singh v. Union of India a
Bench of three learned Judges of this Court had
observed that principle of equal pay for equal
work is not a mere demagogic slogan but a
constitutional goal, capable of being attained
through constitutional remedies and held that
this principle had to be read under Articles 14
and 16 of the Constitution. This decision was
affirmed by a Constitution Bench of this Court in
D.S. Nakara v. Union of India. Thus, having
regard to the constitutional mandate of equality
and inhibition against discrimination in Articles
14 and 16, in service jurisprudence, the doctrine
of “equal pay for equal work” has assumed status
of a fundamental right.”
84. The principle underlying the guarantee of Article 14 is
not that the same rules of law should be applicable to all
persons within the Indian territory or that the same remedies
should be made available to them irrespective of differences of
circumstances. It only means that all persons similarly
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circumstanced shall be treated alike both in privileges
conferred and liabilities imposed.
85. The law can make and set apart the classes according to
the needs and exigencies of the society and as suggested by
experience. It can recognize even degree of evil, but the
classification should never be arbitrary, artificial or evasive.
86. The classification must not be arbitrary but must be
rational, that is to say, it should be based on some qualities or
characteristics which are to be found in all the persons
grouped together and not in others who are left out but those
qualities or characteristics must have a reasonable relation to
the object of the legislation. In order to pass the test, two
conditions must be fulfilled, namely, (1) that the classification
must be founded on an intelligible differentia which
distinguishes those that are grouped together from others and
(2) that differentia must have a rational relation to the object
sought to be achieved by the Act.
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87. In the instant case, in the counter-affidavit the
respondents admitted clear discrimination, but I fail to
comprehend why the respondents are perpetuating
discrimination. I deem it proper to quote the relevant portion
from the counter affidavit as under:
“However this is a temporary anomaly. Over a
period of time, the said anomaly would correct itself
and after a period of 4-5 years all the members of
the Tribunal would be treated in an equal manner.”
88. One fails to comprehend and understand why the
respondents are perpetuating discrimination even for a period
of four to five years.
89. The High Court Judges are appointed from two streams –
2/3rd from the Bar and 1/3rd from the Subordinate Judicial
Service. After appointment, they are assigned the task of
discharging judicial functions. The direct and inevitable
impact of the amendment is to dissuade and discourage both
the members of the Bar and Judiciary from becoming
members of the Tribunal. The Tribunal is discharging purely
judicial work which were earlier discharged by the judges of
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the High Courts. The people’s faith and confidence in the
functioning of the Tribunal would be considerably eroded if
both the members of the Bar and judiciary are discouraged
from joining the Tribunal. In a democratic country governed
by rule of law, both the lawyers and judges cannot be
legitimately discouraged and dissuaded from manning the
Tribunal discharging only judicial work.
90. The petitioners are aggrieved by the decision of the
respondents to abolish the post of Vice-Chairman in the
Central Administrative Tribunal and pray that it should be
restored.
91. The petitioners are further aggrieved by the newly
inserted Section 10A of the Administrative Tribunal Act, 1985
to the extent that it postulates different pay scales and
conditions of service for the members of the Central
Administrative Tribunal on the basis of their appointment
under the amended and the unamended rules and pray that
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uniform conditions of service be made applicable to all
members.
92. The petitioners are also aggrieved by the newly inserted
Section 10A that it is unconstitutional to the extent that it
stipulates that the total term of the office of the members of
the Tribunal shall not exceed 10 years. They pray that this
embargo be removed.
93. The petitioners further pray that all members be
permitted to function till they attain the age of superannuation
of 65 years.
NEWLY INSERTED SECTION 10A
94. I see no rationale or justification in providing different
conditions of service for the members of the Tribunal on the
basis of their appointment under the amended and the
unamended rules, particularly when even according to the
respondents it is nowhere denied that both the categories of
members are not discharging the same duties, obligations and
responsibilities.
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95. Amended Section 10A is clearly discriminatory and
violative of basic principles of equality. Section 10A of the
amended Act is declared discriminatory, unconstitutional and
ultra vires of the Constitution so far as it does not provide
uniform pay scales and service conditions on the basis of
amended and unamended rules. Consequently, all the
members of the Tribunal would be entitled to get the same pay
scales and service conditions from June 2010.
96. Section 10A of the amended Act is also declared
discriminatory because the direct and inevitable impact of
insertion of Section 10A is to prescribe different age of
retirement for the judicial and other members. On the one
hand, the age of superannuation of the members has been
increased from 62 to 65 years and according to the amended
Act, the administrative members would now retire at the age of
65 years. The members can now get maximum of two terms of
5 years each. A lawyer appointed at the age of 45 years will
have to retire at the age of 55 years. Therefore, by this
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amendment, administrative member would retire at the age of
65 whereas judicial member may retire even at the age of 55.
This is clearly discriminatory and violative of the fundamental
principle of equality. Consequently, section 10A of the
amended Act is declared discriminatory and violative of Article
14 of the Constitution and is declared ultra vires of the
Constitution, to the extent that it places embargo of two terms
of five years each leading to different ages of retirements of the
members of the Tribunal. Consequently, henceforth, all the
members of the Tribunal shall function till the age of 65 years.
In other words, there would be a uniform age of retirement for
all the members of the Tribunal.
97. The petitioners pray that the newly added Section 12(2)
be quashed as it impinges upon the independence of judiciary.
NEWLY INSERTED SECTION 12(2)
98. I see no logic, rationale or justification in abolishing the
post of Vice-Chairman in the Central Administrative Tribunal.
No reason for such abolition has been spelt out by the
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respondents even at the time of introducing the Bill. Before
the amendment, ordinarily, the retired judges of the High
Courts used to be appointed to the post of Vice-Chairman. It
used to be in consonance with the status and positions of the
retired judges.
99. There seems to be no basis or rational explanation of
abolishing the post of Vice-Chairman. I fail to comprehend
that on the one hand, the post of Vice-Chairman has been
abolished and on the other hand under the newly inserted
section 12(2) the power to designate Vice-Chairman has been
given to the appropriate government. This is per se untenable
and unsustainable. The executive has usurped the judicial
functions by inserting section 12(2). The direct and inevitable
consequence of the amendment would affect the independence
of judiciary.
100. In the race of becoming the Vice-Chairman there would
be erosion of independence of judiciary. As aptly observed in
Sampath Kumar’s case (supra) that a judicial member who is
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looking forward to promotion to the post of Vice-Chairman
would have to depend on the goodwill and favourable instance
of the executive and that would directly affect independence
and impartiality of the members of the Tribunal impinging
upon the independence of judiciary.
101. Now, under section 12(2) of the amended Act, the entire
power of designating Vice-Chairman has been usurped by the
appropriate government. This amendment also has the
potentiality of disturbing the separation of powers. The power
pertaining to judicial functioning of the Tribunal which was
earlier exercised by the judiciary has been usurped by the
executive. On the aforesaid considerations, the newly
inserted section 12(2) is per se untenable and consequently
declared null and void.
102. In the larger public interest the post of Vice-Chairman is
restored and the procedure for appointment would be in
accordance with the unamended rules of the Act.
103. It must be clearly understood by all concerned that the
judicial work which the members of the Tribunal discharge is
one, which was earlier discharged by the Judges of the High
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Court. The work is totally judicial in nature, therefore,
dispensation of justice should be left primarily to the members
of the Bar and Judges who have, by long experience and
training acquired judicial discipline, understanding of the
principles of law, art of interpreting laws, rules and
regulations, legal acumen, detachment and objectivity. Unless
extreme care is taken in the matter of appointments of the
members of Tribunal, our justice delivery system may not
command confidence, credibility, acceptability and trust of the
people.
104. I deem it appropriate to reiterate the impact of
conclusions of my judgment:
(i) All the members of the Tribunal appointed either by
amended or unamended rules would be entitled to get
uniform pay scales and service conditions from
01.06.2010. However, in the facts of this case, they
would not be entitled to claim any arrears on account
of different pay scales and service conditions.
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(ii) All the members of the Tribunal would have uniform
age of retirement from 01.06.2010, meaning thereby
that all members of the Tribunal shall be permitted to
function until they attain the age of superannuation of
65 years. Hence, Section 10A is quashed and set
aside.
(iii) The post of Vice-Chairman in the Central
Administrative Tribunal is restored from 01.06.2010.
However, I do not want to disturb the Vice-Chairmen,
if already designated by the Government, and permit
them to continue in their respect posts till they attain
the age of superannuation. Thereafter, the Vice-
Chairman shall be appointed in accordance with the
unamended rules. Consequently, the newly inserted
section 12(2) of the amended Act is also quashed and
set aside.
105. The Writ Petitions are accordingly allowed in
aforementioned terms and disposed of, leaving the parties to
bear their own costs.
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…………………………….J.
(Dalveer Bhandari)
New Delhi;
May 6, 2010