ORDER :

1. This Miscellaneous Application has been filed for clarification of the judgment of this Court dated 27.11.2020 in W.P.(C) No. 804/2020. Learned Attorney General for India submitted that the direction given in para 53(ii) of the judgment pertaining to constitution of Search-cum-Selection Committee needs modification. It is submitted that the Secretary to the Ministry of Law and Justice, Government of India who is made a member of the Search-cum-Selection Committee should be substituted by a Secretary to the Government of India nominated by the Cabinet Secretary from a Department other than the parent or sponsoring department.

2. Learned Attorney General submitted that there are 19 Tribunals and it will be difficult for the Secretary to the Ministry of Law and Justice to act as a Member of every Search-cum-Selection Committee which might hinder his other duties. He suggested that the composition of the Search-cum-Selection Committee should be changed and the Cabinet Secretary may be permitted to nominate two Secretaries to the Government of India from a Department other than the parent or sponsoring department instead of Secretary to Ministry of Law and Justice and another Secretary for a Department other than the parent or sponsoring department. Learned Amicus Curiae has no objection for this modification. Therefore, the constitution of the Search-cum-Selection Committee shall be as follows:

(a) The Chief Justice of India or his nominee- Chairperson (with a casting vote).

(b) The out-going Chairman or Chairperson or President of the Tribunal in case of appointment of the Chairman or Chairperson or President of the Tribunal (or) the sitting Chairman or Chairperson or President of the Tribunal in case of appointment of other Members of the Tribunal (or) a retired Judge of the Supreme Court of India or a retired Chief Justice of a High Court in case the Chairman or Chairperson or President of the Tribunal is not a Judicial member or if the Chairman or Chairperson or President of the Tribunal is seeking re-appointment – Member;

(c) Two Secretaries to the Government of India nominated by the Cabinet Secretary from a Department other than the parent or sponsoring department – Members.

(d) Secretary to the sponsoring or parent Ministry or Department – Member Secretary/Convener (without a vote).

3. Para 53(vi) of the judgment dated 27.11.2020 deals with the eligibility of Advocates for appointment as Judicial Members in the Tribunals. Advocates with 10 years’ experience were held to be eligible for appointment as Judicial Members and entitled for re-appointment for at least one term by giving preference to the service rendered by them. The modification sought by learned Attorney General for India is that instead of the word “entitled”, the word “eligible” may be substituted as it would provide more clarity for the Search-cum-Selection Committee when advocates are considered for re appointment. Mr. Arvind Datar, learned Amicus Curiae does not have any objection for such modification to be made. The last sentence of Para 53(vi) which is as follows:

“They shall be entitled for reappointment for at least one term by giving preference to the service rendered by them for the Tribunals.”

shall be substituted as under:

“They shall be eligible for being considered for re-appointment for at least one term by giving preference to the service rendered by them for the Tribunals.”

4. Para 53 (xv) pertains to the tenure of the Chairpersons, Vice Chairpersons and members of the Tribunals appointed prior to 12.02.2020 which shall be governed by the parent statute and Rules. Learned Attorney General for India seeks clarification of the direction relating to the tenure of the Members appointed prior to 12.02.2020 as, according to him, Section 184 of the Finance Act, 2017 which has been upheld by this Court in Rojer Mathew v. South Indian Bank Ltd. reported in (2020) 6 SCC 1, provides that a Member cannot continue beyond a period of five years. Whereas,