2010 Supreme(SC) 422

Supreme Court of India
THE HONOURABLE CHIEF JUSTICE MR. K.G. BALAKRISHNAN & THE HONOURABLE MR. JUSTICE J.M. PANCHAL
A.K. Behra & Another
Versus
Union of India & Others
Writ Petition (Civil) No. 261 of 2007 With Writ Petition (Civil) No. 539 of 2007
Decided on : 06-05-2010

Headnote:Per J.M. Panchal, J. for himself and the CJI

       (a) Administrative Tribunals Act, 1985 – Section 6(2), and 12 – Post of Vice-Chairman creating an avoidable three tier institution resulting in anomalies in qualifications, age of retirement, service conditions etc. – Parliament has right to change conditions of service of Members of Administrative Tribunals – While upgrading conditions of service of the Members, conditions of service of Judicial Members are not detrimentally changed – All Members of Central Administrative Tribunal elevated to the status of a High Court Judge – Cannot be regarded as illegal or unconstitutional – Contention that appointment of High Court Judge as Member will create anomalous situation rejected. (Para 13)

       (1987) 1 SCC 124; (1990) 4 SCC 501 – Relied upon

       (b) Administrative Tribunals Act, 1985 – Section 6(2) – Contention 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 – Without any factual basis – All India Services do not comprise only of the IAS officers – Amendment not arbitrary or unreasonable. (Para 14)

       (c) Administrative Tribunals Act, 1985 – Section 10A – Term of a Member – Ten years – Provision cannot be assailed as arbitrary having effect of jeopardising security of tenure. (Para 15)

       (1987) 1 SCC 124; (2002) 6 SCC 242 – Relied upon

       (d) Administrative Tribunals Act, 1985 – Section 10A – Challenge to provision requiring a sitting Member to face selection for second term – Cut-off date – Classification as pre- and post- cut-off date – Not arbitrary – Reasonable classification. (Para 16)

       (e) Administrative Tribunals Act, 1985 – Section 12(2) – Nominating one Member as Vice Chairman for specific function – Validity – Consultation with Chairman and on his recommendation – Challenge misconceived. (Para 17)

       Per Dalveer Bhandari, J. Dissenting

       (f) Administrative Tribunals Act, 1985 – Section 10A – Members appointed prior to and after amendment – No change in duties, obligations and responsibilities – Differential treatment – Discriminatory – Anomaly, even if temporary, is not acceptable being violative of Articles 14 and 16 of the Constitution. (Para 25, 26)

       (g) Administrative Tribunals Act, 1985 – Section 10A – Tribunals are supplemental or additional to the High Court – It is a basic structure of the Constitution – Likewise equity and equality as enshrined in Article 14 is also basic structure of the Constitution – It is imperative therefore to appoint persons with legal background and judicial approach and objectivity to the Tribunals – 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 – Separation of powers. (Para 54, 57, 58, 63, 64)

       (1980) 3 SCC 625; (1997) 3 SCC 261; (1993) 4 SCC 119; 1956 SCR 267; (1973) 4 SCC 225; (1991) 1 SCC 605; (1975) Supp. SCC 1; (2007) 2 SCC 1; (2008) 6 SCC 1; 1991 Sup (1) 574; (2008) 14 SCC 107 – Relied upon

       (h) Constitution of India – Article 39 – Administrative Tribunals Act, 1985 – Section 12(2) – Different conditions of service for pre- and post- amendment Members – Equal pay for equal work – Arbitrariness – Principles discussed and restated – Anomaly being temporary is no excuse. (Para 67 to 89)

       (1952) SCR 284; (1959) 1 SCR 279; (1974) 1 SCC 19; (1975) Supp. SCC 1; (1978) 1 SCC 248; (1986) 1 SCC 639; (1987) 2 SCC 469; (1987) 4 SCC 634; 1987 (Supp) SCC 257; (1988) 4 SCC 571; 1989 Supp (2) SCC 424; (1996) 10 SCC 1; (2001) 7 SCC 545; (2003) 6 SCC 611; (2004) 6 SCC 218; (2008) 1 SCC 586 – Relied upon

       (i) Administrative Tribunals Act, 1985 – Section 10A – Members categorized as pre- and post- amendment – Both discharging same duties – Conditions of service different – Section 10A declared discriminatory and ultra vires. (Para 96)

       (j) Administrative Tribunals Act, 1985 – Section 12(2) –Abolition of post of Vice Chairman – On the other hand making provision for nominating one Member as Vice Chairman – No logic or rationale – Appropriate Government usurping power of judiciary – Not tenable – Declared null and void – Post of Vice Chairman restored. (Para 99, 101)

       Facts of the case:

       1. In the Writ Petition (C) No. 261 of 2007, the petitioner, 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 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 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. 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.

       Finding of the Court:

       Petitions are misconceived.

       Result:

       Writ petitions dismissed (Majority view).

       Writ petitions allowed (Per Dalveer Bhandari, J.).