Supreme Court on appointment of Tribunal members

The Hon’ble Supreme Court by majority of 2:1 in the case of Madras Bar Association vs. Union of India & Anr. has struck down certain provisions of Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021 which provided minimum age limit for appointment as members in various tribunals to be 50 years. The majority observed that the minimum age requirement of 50 years proposed by the ordinance is in violation of the earlier directions given by the court in 2020 Madras Bar Association Case, that proposes that the advocates with minimum 10 years of experience should be rendered as eligible for the appointment of members of tribunal.

Background of the case

The Madras Bar Association has preferred a Writ Petition seeking a declaration to declare sections 12 & 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 and Sections 184 and 186 (2) of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 as ultra vires in respect to Article 14,21 and 50 of the Constitution, Since the said provisions are violative of the principles of separation of powers and independence of judiciary, besides being contrary to the principles laid down by the Apex Court in the cases of Union of India vs. R. Gandhi, President, Madras Bar Association 2010, Madras Bar Association vs. India & Anr. 2014, Roger Mathew vs. South Indian Bank Ltd. & Ors. 2020 & Madras Bar Association vs. Union of India & Anr. 2020.

Observation/Judgment of the court

Justice Nageswara Rao said that fixing a condition of minimum age of 50 years will act as a deterrent for competent advocates to seek membership. Practically, it will not be possible for an advocate appointed after attaining the age of 50 years to resume his/her practice upon completion of his one term, if he is not reappointed. Conditions of service & security of tenure are major parts of Independence of Judiciary, therefore, the first proviso to section 184(1) has been declared unconstitutional as it is in violation of doctrine of separation of powers and Article 14 of the Constitution.

Justice Ravindra Bhat pointed out that when as per the provisions pf the Constitution an Advocate becomes eligible to be appointed in High Court with a min. experience of 10 years and in District Court with min. experience of 7 years respectively. Hence, this requirement of 50 years as minimum age for appointment in tribunals is lacking rationale. The Hon’ble Justice further held that, the criteria of minimum age of 50 years will have a devastating effect on successful young advocates particularly those who might be qualified and experienced in the particular subject.  It was further held that, such an exclusion of eligible candidates while giving preference to those above 50 years is inexplicable and entirely arbitrary.

Majority held the following prerequisite of the Tribunal Ordinance 2021 through its amendment to the Finance Act 2017 as unconstitutional:

1. Provision of 4 years’ term of Tribunal members
2. Provision of prescribing 2 names for each post by search cum selection committee
3. Provision of making appointments in “preferably three months”

Hon’ble Mr. Justice Bhat concluded his judgment as:

• The first & second proviso to Section 184(1) of the Finance Act, 2017, introduced by Section 12 of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 is held to be void & inoperative.
• Section 184(7) of the Finance Act, 2017, introduced by of the Finance Act, 2017 introduced by Section 12 of the Tribunals Reforms Ordinance, 2021 is declared void and inoperative.
• Section 184(11) (i) and (ii) introduced by Section 12 of the Tribunals Ordinance, 2021 are hereby declared as void and unconstitutional.
• the term of Chairperson of a Tribunal shall be five years or the age of 70 years, whichever is earlier & the term of Member of a Tribunal shall be five years or till she or he attains the age of 67 years, whichever is earlier.

Comments

The Apex Court has rightly held that criteria for any appointment in service should be based on the person’s qualifications and eligibility rather than age, as one who is younger in age can have more extensive knowledge on the subject if he/she has gained special on it, rather a person who is just appointed on the basis of his age. Knowledge of a person on the subject is more important than his age factor.

The full judgment can be found here:-

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