Breaking: cj bench order Madras High Court issues notice in plea by Revenue Bar Association challenging Tribunal Rules, 2020

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Breaking: Madras High Court issues notice in plea by Revenue Bar Association challenging Tribunal Rules, 2020

The 2020 Rules were introduced after the Supreme Court quashed the Tribunal Rules, 2017 in the Rojer Mathew case. The RBA has now contended that the new Rules also suffer from the same defects.Meera EmmanuelMar 9, 2020, 3:46 PM IST

The Madras High Court on Monday issued notice in a plea moved by the Revenue Bar Association (RBA) challenging the constitutionality of the recently notified Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (“Rules”).

The Bench of Chief Justice AP Sahi and Justice Subramonium Prasad also today directed that any order made pursuant to the challenged rules would be subject to the outcome of the RBA’s writ petition.

The Court has further directed the Union Government to file its counter in the matter within 6 weeks. The matter has been posted to be taken up next on April 22.

Senior Advocate Arvind Datar appeared for the RBA before the High Court today, briefed by Advocates Rahul Unnikrishnan and Karthik Sundaram.

The 2020 Rules were notified in February this year, after the Supreme Court struck down the 2017 Rules in this regard, last November in the Rojer Mathew case (Rojer Mathew v. South Indian Bank Ltd. Civil Appeal No.8588 of 2019).Also Read[Breaking] Tribunals: Supreme Court refers passage of Finance Act as Money Bill to larger bench, strikes down Rules framed under Section 184

At the time, the Supreme Court had directed the Government to redraft the rules strictly in accordance with the principles laid down earlier by the Supreme Court in cases such as Union of India v. R. Gandhi, Madras Bar Association v. Union of India, S. P. Sampath Kumar v. Union of India, Kesavananda Bharati v. State of Keralaand Minerva Mills Ltd. v. Union of India,

However, the RBA has now contended that,”…the impugned rules also suffer from the same defects and are violative of the principles laid down in R. Gandhi and Rojer Mathew decisions.”Revenue Bar Association

Inter alia, the petitioner highlights the following provisions to argue that the new Rules adversely affects the separation of powers, the independence of the judiciary and violates Articles 14, 21 and 50 of the Constitution of India.

Short tenure of members

Rule 9 of the 2020 rules provides that a member can hold office for a 4 year term or till he attains 65 years of age, whichever is earlier.

The RBA points out that a similar short tenureof 3 years in the 2017 Rules was criticised by the Supreme Court in the Rojer Mathew case, since it would have the effect of discouraging meritorious candidates from accepting posts of Judicial Members in Tribunals.

The petitioner points out that earlier, in the R Gandhi case as well, the Supreme Court had called for an increase in term from 3 to 5 years or 7 years. This being the case, the RBA contends,

“… the Central Government cannot, as a cosmetic change, increase the tenure from 3 years in the 2017 Rules to 4 years in the 2020 Rules… it is submitted that rule 9 of the impugned rules is violative of the directions given in both R. Gandhi and Rojer Mathew decisions.”

Revenue Bar Association

Salary prescription left to the Executive

Rule 11 of the new Rules deals with the provision of salaries to Tribunal members. The RBA argues that the rule ”suffers from severe infirmity and is against the doctrine of separation of powers and independence of judiciary, which forms the basic structure of the constitution.”

The RBA contends that, in the interest of ensuring independence, the salaries of Tribunal members must be fixed in the parent statute itself. As explained in the petition,

“… the salaries of the members of the tribunals and appellate tribunals cannot be, in any circumstance, provided by way of a delegated legislation. It must be provided in the parent statute, and as such, must be protected from the rule-making powers of the Executive. Fixed salary and fixed tenure, that are hallmarks of independent judiciary, must also be followed in the cases of tribunals.”

Revenue Bar Association

Leave made subject to Central Government sanction

Rule 14 of the new rules provides for the Chairman to apply to the Central Government for sanction of leave. The RBA contends that the same is violative of principles of independence of judiciary, as outline in Article 50 of the Constitution.

Service Conditions of members not on par with that of High Court judges

Rules 15 and 18 classify the Chairman and Tribunal members as Group ‘A’ officers of the Government of India.

As such, service conditions of the members – including salaries, leave, pay, TA, HRA and other benefits, is made equivalent to those of corresponding Group ‘A’ officers. The RBA contends that this is also violative of the independence of the judiciary.

“… the Supreme Court has repeatedly stated that the service conditions admitted to Members of Tribunals should be equivalent or comparable to that of High Court Judges.”

Revenue Bar Association

Judicial primacy lost in Selection Committee

The RBA has emphasised that the Supreme Court has always intended for at least two judges to be part of the selection committee responsible to appoint members.

“… the Supreme Court always intended to have two judges of the Supreme Court or one judge of Supreme Court and Chief Justice of the High Court and 2 secretaries of the Government of India.”

Revenue Bar Association

In the new Rules, however, in place of the second judge, the Central Government has now included the President (or the outgoing President, as the case may be) as a member of the selection committee. This may entail in reducing the number of judges on the committee to a minority, the RBA argues. As explained in the petition,

“…in certain cases, a non-judicial member can become the President (or Chairman/Chairperson, as the case may be) of the tribunal. When this happens, the only remaining judge will become a numerical minority, giving primacy to the Executive in the appointment of members.”

Effective exclusion of Advocates from being appointed Judicial members

The RBA points out that in the R Gandhi case, the Court has already held that members of the Indian Legal Service cannot be appointed as judicial members. This was reiterated by the Madras High Court last year in the case ofRevenue Bar Association v. Union of India.Also ReadMadras High Court holds composition of GST Appellate Tribunals is Unconstitutional [Read Judgment]

The 2020 rules, however, involves the active promotion of Indian Legal Service candidates for the post of judicial member, argues the RBA.

This is more so in view of new Rules laying down that only advocates having more than 25 years’ of experience can apply for the post of judicial member. “Such a requirement is not required even to become a High Court judge”, the RBA points out.

In the case of some Tribunals, advocates are totally excluded from being eligible to apply for the post of judicial member, including tribunals like Central Administrative Tribunal and the Railway Claims Tribunals.

Moreover, under Rule 18(ii), the members cannot practice before the Rribunal after retirement from service. In view of these submissions, the RBA contends,

… the net effect is that, there will not be any good applicants from advocates to the post of judicial members. Consequently, all these posts will be manned by members of the Indian Legal Service. This, it is submitted that, the impugned rules are completely contrary to the explicit directions and spirit of the judgment of the Supreme Court in R. Gandhi, Madras Bar Association and Rojer Mathew.”

“With 25-year experience requirement and no option of reappointment, it can be safely said that no meritorious advocate will apply to these posts.”

Revenue Bar Association

The petitioner adds that this is despite the express direction given in the R Gandhi casethat only “judges and advocates” can be considered for appointment as judicial members. Further it is argued,

“.. advocates have a right to be considered for the post of judicial members as they are qualified to become both High Court and Supreme Court judges. The exclusion of advocates is thus arbitrary, and is liable to be struck down for being manifestly arbitrary.

Tribunals still dependent on parent Ministry for administrative support

The RBA points out that the new Rules still provide for the respective Tribunals to depend on their Nodal Ministry for administrative suppose. This, it is argued, is against the guidelines prescribed in the R Gandhi case, “wherein it was categorically held that the administrative support has to come from the Department of Law & Justice.”

The petitioner contends that,

“… the dependence of Tribunals on their ‘parent’ Ministry/Department is not only a clear case of conflict of interest, but has an enduring and debilitating effect on the independence of the Tribunal.”

Revenue Bar Association

In view of these submissions, the RBA has prayed that the Madras High Court strike down the 2020 Rules as void, defective and unconstitutional for being violative of Articles 14, 21 and 50 of the Constitution, the doctrine of separation of powers and the independence of the Judiciary.

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