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

J U D G M E N T

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

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  

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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  

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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  

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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.  

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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  

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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  

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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  

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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.

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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  

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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  

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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  

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(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  

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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  

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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  

15

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.   

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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  

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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,  

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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  

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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  

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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  

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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  

22

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  

23

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  

24

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  

25

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  

26

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  

27

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  

28

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  

29

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  

30

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.

31

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,  

32

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  

33

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  

34

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  

35

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  

36

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  

37

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  

38

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.

39

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  

40

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,  

41

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  

42

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.  

43

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  

44

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  

45

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  

46

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

47

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

48

WITH

WRIT PETITION (CIVIL) NO. 539 OF 2007

P. K. Gaikwad .. Petitioner

Versus

Union of India & Others .. Respondents

J U D G M E N T

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  

49

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  

50

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  

51

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  

52

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.     

53

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  

54

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  

55

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  (BEFORE AMENDMENT)

SECTION 12 (2) (AFTER AMENDMENT)

“12.Financial  and  administrative  powers  of  the  Chairman.-  The  Chairman  shall  exercise  such  financial  and  administrative  powers  over  the  Benches  as  may  be vested in him under the rules  made  by  the  appropriate  Government:

Provided that the  Chairman shall  have authority to delegate such of  his  financial  and  administrative  powers as he may think fit to the  Vice-Chairman or any officer of the  Tribunal,  subject  to the condition  that  the  Vice-Chairman  or  such  

12.  Financial  and  administrative  powers  of  the  Chairman.-  (1)  The  Chairman  shall  exercise  such  financial  and  administrative powers over  the  Benches  as  may  be  vested  in  him  under  the  rules  made  by  the  appropriate Government.

(2)The  appropriate  Government  may  designate  one  or  more  Members to be the Vice- Chairman or, as the case  

56

officer shall, while exercising such  delegated powers,  continue to act  under  the  direction,  control  and  supervision of the Chairman.”

may  be,  Vice-Chairman  thereof and the Members  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.

57

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  

58

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.    

59

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  

60

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  

61

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  

62

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  

63

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  

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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  

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(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  

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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  

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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  

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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.

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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  

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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  

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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  

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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:

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“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-à-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,  

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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  

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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  

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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  

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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  

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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  

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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,  

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objectivity  and acumen.  Unless we take  utmost  care  in  the  

matter 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  

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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  

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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  

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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

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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,

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“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]

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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  

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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  

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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  

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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

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