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PETITIONER: S.P. SAMPATH KUMAR ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT09/12/1986

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. (CJ) KHALID, V. (J) OZA, G.L. (J) DUTT, M.M. (J)

CITATION:  1987 AIR  386            1987 SCR  (1) 435  1987 SCC  (1) 124        JT 1986   996  1986 SCALE  (2)960  CITATOR INFO :  F          1987 SC 357  (2)  F          1987 SC 663  (2)  APL        1989 SC  44  (4)  RF         1989 SC 653  (11)  F          1989 SC1185  (8)  R          1989 SC1933  (7)  RF         1990 SC1137  (3)

ACT:     Administrative  Tribunals  Act,  1985: ss.  4,  5,  6  & 28--Exclusion  of the jurisdiction of the High  Court  under Arts. 226 and 227 in service matters-Constitutional validity of--Chairman,  Vice-Chairman and Members-Qualifications  and mode of appointment to make the Tribunal equally efficacious and  effective alternative to the High Court--  Benches  and Circuits of Tribunal-Setting up of.     Constitution of India, Arts. 226, 227, 32, 136, 323A and 368--Judicial review-- Exclusion of-- When permissible.

HEADNOTE:     Clause  (1)  of Art. 323-A, brought in  by  Constitution (42nd Amendment) Act, 1976, authorised Parliament to provide by  law  for  the adjudication or  trial  by  administrative tribunals  of  disputes and complaints with respect  to  re- cruitment and conditions of service of persons appointed  to public  services.  Clause (2)(d) of that  Article  envisaged exclusion  of  the jurisdiction of all  courts,  except  the jurisdiction  of the Supreme Court under Art. 136  with  re- spect to the disputes or complaints referred to in cl. (1).     Section  28  of the Administrative Tribunals  Act,  1985 originally enacted within the ambit of Art. 323-A,  provided for  exclusion  of jurisdiction of the Supreme  Court  under Art. 32. The Act as amended by the Administrative  Tribunals (Amendment) Ordinance, 1986, replaced by Act No. 19 of  1987 now saves the jurisdiction of Supreme Court both under  Art. 32 in respect of original proceedings as also under Art. 136 for entertaining appeals. Section 6(1)of the Act which  lays down qualifications of Chairman, states that he should be or

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have  been  (a) a Judge of a High Court, or (b) has  for  at least two years held office of Vice-Chairman, or (c) has for at least two years held the post of Secretary to the Govern- ment of India. Sub-section (2) provides that a Vice-Chairman should  be or have been (a) a Judge of a High Court, or  (b) for  at least two years held the post of a Secretary to  the Government  of India, or (bb) for at least five  years  held the post of Additional Secretary to the Government of India, or (c) for a period of not less than three years held office as  a  Judicial Member of an Administrative  Tribunal.  Sub- section  (3) states that the Judicial Member (a)  should  or should have been qualified to be a Judge of a High 436 Court, or (b) has been a member of the Indian Legal Service, Grade 1, for at least three years. Sub-section (3A) provides that  a person to be appointed as Administrative Member  (a) should  have for at least two years held the post  of  Addi- tional Secretary to the Government of India, or (b) has  for at  least three years held the post of a Joint Secretary  to the Government of India.     The  petitioners  in these writ petitions  and  transfer petitions  challenged  the  vires of the 1985  Act.  It  was contended that the exclusion of the jurisdiction of the High Court  under Arts. 226 and 227 in service matters  specified in  s.28 of the Act was unconstitutional and void, and  that the  composition of the Tribunal and mode of appointment  of Chairman, Vice-Chairman and Members was outside the scope of the power conferred on Parliament under Art. 323-A. Allowing the petitions in part, the Court, By the Court     HELD: It is the High Court which is being supplanted  by Administrative  Tribunal.  The  office of  Chairman  of  the Tribunal,  therefore, for all practical purposes  should  be equated  with  the  office of the Chief Justice  of  a  High Court.  Judicial  discipline  generated  by  experience  and training  in an adequate dose is a  necessary  qualification for that post. It is thus essential that he should have been a Judge of the High Court or he should have for at least two years held office as Vice-Chairman. A person who has  merely held  the post of Secretary to the Government of  India  and who has no legal and judicial experience if appointed Chair- man would not only fail to inspire confidence in the  public mind  but  would also render the Administrative  Tribunal  a much less effective and efficacious mechanism than the  High Court.  Clause (c) of s.6(1) of the Act, therefore, must  be struck down as invalid. [445 C, 455 DE, 445 ABE] Per Bhagwati, CJ.     1.1 Judicial review is a basic and essential feature  of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away. It is,  however, within the competence of Parliament  to  amend the  Constitution so as to substitute in place of  the  High Court  another  alternative institutional mechanism  or  ar- rangement  for judicial review without in any way  violating the basic structure doctrine, provided it is no less effica- cious than the High Court. Then it would be another authori- ty  which would be exercising the power of  judicial  review with a view to enforcing the constitutional limitations  and maintaining the rule of law. [441 B, 443 BC] 437     Minerva  Mills  Ltd.  & Ors. v. Union of  India  &  Ors. [1981]1 SCR 206, referred to.     1.2  Clause (2Xd) of Art. 323-A specifically  authorises the  exclusion of the jurisdiction of the High  Court  under Arts.  226  and  227 by any law  made  by  Parliament  under

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cl.(1).  If this constitutional amendment were to  permit  a law to exclude the jurisdiction of the High Court under Art. 226  and  227  without sating up  an  effective  alternative institutional  mechanism or arrangement for judicial  review it  would be violative of the basic structure  doctrine  and hence outside the constitutent power of Parliament. It must, therefore, be read as implicit in the amendment that such  a law  to be coustitutionally valid must not leave a void  but it must set up another equally effective alternative author- ity and vest the power of judicial review in it. [443 F,  H, 44 A B]     2.1  What  is  needed in a judicial  tribunal  which  is intended  to supplant the High Court is legal  training  and experience.  Service  matters  which are  removed  from  the jurisdiction  of the High Court under Arts. 226 and 227  and entrusted to the Administrative Tribunal invariably  involve questions  of interpretation and applicability of Arts.  14, 15,  16  and 311 which require for their  determination  not only  judicial approach but also knowledge and expertise  in this particular branch of constitutional law. [445 D, 444 D]     2.2  The Chairman of the Administrative Tribunal  should be or should have been a Judge of a High Court or he  should have for at least two years held office as Vice-Chairman. It is the High Court which is being supplanted by the  Adminis- trative  Tribunal. Substituting the Chief Justice of a  High Court  by a Chairman of the Administrative Tribunal who  has merely  held  the post of a Secretary to the  Government  of India and who has no legal or judicial experience would  not only fall to inspire confidence in the public mind but would also  render the Administrative Tribunal a much less  effec- tive  and efficacious mechanism than the High Court.  Clause (c) of s.6(1) of the Act, therefore, must be struck down  as invalid. [445 A, C, B, E]     3. Since the Administrative Tribunal has been created in substitution  of the High Court, its Vice-Chairman would  be in the position of a High Court Judge. Therefore, a District Judge  or an advocate who is qualified to be a Judge of  the High  Court  should be regarded as digible for  being  Vice- Chairman  of the Administrative Tribunal. The provisions  of the  Act in regard to the composition of the  Administrative Tribunal are weighted in favour of members of the  Services. This value discounting of the judicial members does have the effect of making the Administrative Tribunal less  effective and efficacious than the High Court. Unless an amendment  to that effect is carried out on or before 31st March, 1987 the Act would have to be declared to be invalid because the 438 provision in regard to the composition of the Administrative Tribunal  cannot be severed from the other  provisions  con- tained in the Act. [445 F, 446 A, 445 G, 446 B]     4.1  Under the Act the sole and exclusive power to  make appointment  of Chairman, Vice-Chairman  and  Administrative Members  is  conferred on the Government. No  obligation  is cast on the Government to consult the Chief Justice of India or  to  follow any particular selection  procedure  in  this behalf. Total insulation of the judiciary from all forms  of interference from the coordinate branches of Government is a basic essential feature of the Constitution. In case of High Court  Judges  the  President cannot  make  any  appointment without  consultation  with the Chief Justice  of  the  High Court  and the Chief Justice of India. This check  or  safe- guard  is totally absent in the case of appointment  of  the Chairman,  Vice-Chairman and Administrative Members  of  the Administrative  Tribunal.  If  the Tribunal  is  created  in substitution  of the High Court and the jurisdiction of  the

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High Court under Arts. 226 and 227 is taken away and  vested in  it, it is but essential that the same independence  from possibility of executive pressure or influence must also  be ensured  to the Chairman, Vice-Chairman and Members  of  the Tribunal. [446 D, 447 D, B, E]     4.2  The  appointment  o[  Chairman,  Vice-Chairman  and Administrative  Members,  therefore, should be made  by  the concerned Government only after consultation with the  Chief Justice  of India and such consultation must  be  meaningful and  effective.  Alternatively,  a  High  Powered  Selection Committee headed by the Chief Justice of India or a  sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of India may be set up for making these appointments. If either of these two modes of appointment is adopted,  it would save the impunged Act from  invalidation. Otherwise,  it will be outside the scope of the  power  con- ferred on Parliament under Art. 323-A. [447 F, G, 448 B]     5. The Government should set up a permanent bench and if that  is not feasible having regard to the volume  of  work, then at least a circuit bench of the Administrative Tribunal wherever there is a seat of the High Court on or before 31st March  1987 so that the provisions of the Act could be  sus- tained. [448 D]      6.  Judgment to operate only prospectively and  not  to invalidate appointments already made. [448 B] Per Ranganath Misra, J.      1. The Administrative Tribunal Act, 1985, as amended by Act  No. 19 of 1986 saves jurisdiction of the Supreme  Court both under Article 32 in respect of original proceedings  as also  under Article 136 for entertaining appeals.  There  is thus a forum where matters of importance and grave injustice can be brought 439 for  determination  or rectification. The exclusion  of  the jurisdiction of the High Court, therefore, does not  totally bar judicial review. [451 C, 453 A]     2.1 It is open to Parliament to make effective  alterna- tive  institutional mechanisms or arrangements in  place  of the  High Court for providing judicial review. But  such  an authority  or tribunal must be a worthy successor  and  real substitute  of the High Court--not only in form and de  jure but in content and de facto so as to be effective and  effi- cient as also capable of upholding the constitutional  limi- tations enshrined in Articles 14, 15 and 16 of the Constitu- tion. [453 B, 454 C, 453 E]     2.2  The Tribunal under the scheme of the Act  has  been contemplated as a substitute and not as supplemental to  the High  Court. It is not designed as an additional froum  from where  parties could go to the High Court. Under ss. 14  and 15 of the Act all the powers of the Courts, except those  of the  Supreme Court, in regard to matters  specified  therein vest  in the Tribunal--either Central or State.  Barring  of the  jurisdiction of the High Court under Arts. 226 and  227 cannot,  therefore, be said to be ultra vires the  Constitu- tion. [443 CD, FG, 449 A]     Minerva  Mills  Ltd. & Ors. v. Union of  India  &  Ors., [1981]  1  SCR 206, 287 and K.K. Dutta v.  Union  of  India, [1980] 3 SCR 811, referred to.     3.1  The Office of Chairman of the Tribunal  should  for all  practical purposes be equated with the office of  Chief Justice  of a High Court. Judicial discipline  generated  by experience  and training in an adequate dose being a  neces- sary  qualification for that post, 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. In order that  the Tribunal  may be acceptable to the litigants, who are  them- selves members of the various Services, therefore, s.6(1)(c) of  the  Act, which makes a Secretary to the  Government  of India  also  eligible for the post of  Chairman,  should  be omitted. [455 D-F]     3.2 The selection of Vice-Chairman and Members, when  it is not of a sitting Judge or retired Judge of a High  Court, should  be done by a high powered committee with  a  sitting Judge  of  the Supreme Court, to be nominated by  the  Chief Justice  of India, as its Chairman. This will ensure  selec- tion  of proper and competent people to man these  high  of- fices  of trust and help to build up reputation and  accept- ability.  The Central Government to bring the provisions  of the Act in accord within a reasonable time not beyond  March 31, 1987. Or else, the constitution of Tribunal as a substi- tute  of the High Court would be open to challenge. [455  G, 456 A, H] 3.3 The judgment to operate prospectively and not to  affect the 440 appointments already made to the office of Vice-Chairman and Members. [456 B]     4.  The term of five years prescribed under s.8  of  the Act for Chairman, Vice-Chairman and Members of the  Tribunal requiting  them  to retire at the end of it  is  too  short, which  is neither convenient to the person selected for  the job nor expedient to the scheme. When amendments to the  Act are  undertaken  this aspect of the matter  deserves  to  be considered. [456 C, F, G]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 12437 of 1985 etc. (Under Article 32 of the Constitution of India)     Raju   Ramachandra, Mukul Mudgal, Mrs. R.  Ramachandran, N.J.  Mehta, P.H. Parekh, D. Krishnamurthy, K.N.  Rai,  K.R. Nagaraja, Ms. Malinio Poduval, N.N. Verma, S.K. Bhardwaj and P.D. Sharma for the Petitioners.     K.  Parasaran, Attorney General, V.P. Sarthy and Ms.  A. Subhashini for the Respondents. S.K. Sinha and S.K. Verma for the Respondents. The Judgment of the Court was delivered by     BHAGWATI, CJ. I am in entire agreement with the judgment prepared  by my learned brother Ranganath Misra,  but  since the questions involved in these writ petitions are of  semi- nal  importance affecting as they do, the structure  of  the judicial  system  and the principle of independence  of  the Judiciary,  I think I would be failing in my duty if  I  did not add a few words of my own.     There are two questions which arise for consideration in these  writ petitions and they have been succinctly set  out in the judgment of Ranganath Misra, J. The first question is whether the exclusion of the jurisdiction of the High  Court under  Articles 226 and 227 of the Constitution  in  service matters specified in section 218of the Administrative Tribu- nals Act, 1985 (hereinafter referred to as the impugned Act) and  the vesting of exclusive jurisdiction in  such  service matters  in  the Administrative Tribunal to  be  constituted under the impugend Act, subject to an exception in favour of the jurisdiction of this Court under Articles 32 and 136, is unconstitutional  and  void and in any event,  even  if  the first  question be answered against the petitioners  and  in favour of

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441 the  Government, the second question required to be  consid- ered  is,  whether  the composition  of  the  Administrative Tribunal  and  the mode of appointment  of  Chairman,  Vice- Chairmen  and members have the effect of introducing a  con- stitutional  infirmity  invalidating the provisions  of  the impugned  Act.  I  agreed with the answers  given  to  these questions  in  the judgment of Ranganath Misra, J.  I  would articulate my reasons as follows:--     It  is now well-settled as a result of the  decision  of this Court in Minerva Mills Ltd. & Others v. Union of  India and Ors. [1981] 1 S.C.R. 206 that judicial review is a basic and essential feature of the Constitution and no law  passed by  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  constitu- tional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitu- tion and has to act within the limits of such power. It is a limited Government which we have under the Constitution  and both  the executive and the legislature have to  act  within the  limits of the power conferred upon them under the  Con- stitution.  Now  a  question may arise as to  what  are  the powers of the executive and whether the executive has  acted within  the  scope of its power. Such a  question  obviously cannot  be left to the executive to decide and for two  very good  reasons.  First, the decision of  the  question  would depend  upon the interpretation of the Constitution and  the laws  and  this would pre-eminently be a matter  fit  to  be decided by the judiciary, because it is the judiciary  which alone  would  be possessed of expertise in  this  field  and secondly,  the constitutional and legal protection  afforded to the citizen would become illusory, if it were left to the executive  to determine the legality of its own  action.  So also  if  the legislature makes a law and a  dispute  arises whether in making the law, the legislature has acted outside the area of its legislative competence or the law is  viola- tive of the fundamental rights or of any other provisions of the  Constitution, its resolution cannot, for the same  rea- sons,  be left to the determination of the legislature.  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  con- ferred on each branch of Government, what are the limits  on the exercise of such power under the Constitution and wheth- er 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 442 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  judi- ciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for mainte- nance of the rule of law. The power of judicial review is an

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integral  part of our constitutional system and without  it, there  will  be no Government of laws and the  rule  of  law would become a teasing illusion and a promise of  unreality. That is why I observed in my judgment in Minerva  Mills’Ltd. case (supra) at pages 287 and 288:---               "I am of the view that if there is one feature               of  our  Constitution  which,  more  than  any               other, is basic and fundamental to the mainte-               nance of democracy and the rule of law, it  is               the power of judicial review and it is unques-               tionably, to my mind, part of the basic struc-               ture  of the Constitution. Of course,  when  I               say this I should not be taken to suggest that               however  effective  alternative  institutional               mechanisms or arrangements for judicial review               cannot be made by Parliament. But what I  wish               to  emphasise  is that judicial  review  is  a               vital  principle  of our Constitution  and  it               cannot  be  abrogated  without  affecting  the               basic  structure of the Constitution. If by  a               Constitutional  amendment, the power of  judi-               cial  review is taken away and it is  provided               that  the  validity  of any law  made  by  the               legislature  shall not be liable to be  called               in  question  on  any ground, even  if  it  is               outside  the  legislative  competence  of  the               legislature or is violative of any fundamental               rights,  it would be nothing short of  subver-               sion of the Constitution, for it would make  a               mockery  of  the distribution  of  legislative               powers  between the Union and the  States  and               render the fundamental rights meaningless  and               futile. So also if a constitutional  amendment               is  made which has the effect of  taking  away               the  power  of judicial review  and  providing               that  no  amendment made in  the  Constitution               shall  be  liable  to  be.questioned  on   any               ground, even if such amendment is violative of               the  basic structure and,  therefore,  outside               the  amendatory power of Parliament, it  would               be making Parliament sole judge of the consti-               tutional validity of what it has done and that               would,  in effect and substance,  nullify  the               limitation on the amending power of Parliament               and affect the basic structure of the  Consti-               tution. The conclusion must therefore inevita-               bly follow that clause (4) of the Article  368               is  unconstitutional and void as damaging  the               basic structure of the Constitution."               443 It  is  undoubtedly true that my judgment in  Minerva  Mills Ltd. case (supra) was a minority judgment but so far as this aspect is concerned, the majority Judges also took the  same view and held that judicial review is a basic and  essential feature  of  the  Constitution and it  cannot  be  abrogated without  affecting the basic structure of  the  Constitution and  it is equally clear from the same decision that  though judicial review cannot be altogether abrogated by Parliament by amending the Constitution in exercise of its  constituent power, Parliament can certainly, without in any way  violat- ing the basic structure doctrine, set up effective  alterna- tive  institutional mechanisms or arrangements for  judicial review.  The basic and essential feature of judicial  review cannot  be dispensed with but it would be within the  compe- tence  of  Parliament  to amend the Constitution  so  as  to

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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  insti- tutional  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  Parlia- ment  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 viola- tive of the basic structure doctrine, so long as the  essen- tial  condition  is fulfilled, namely that  the  alternative institutional  mechanism or authority set up by the  parlia- mentary amendment is no less effective than the High Court.     Here,  in  the present case, the impugned Act  has  been enacted by Parliament in exercise of the power conferred  by clause  (1)  of  Article 323A which was  introduced  in  the Constitution  by  Constitution (42nd Amendemnt)  Act,  1976. Clause  (2) (d) of this Article provides that a law made  by Parliament under clause (1) may exclude the jurisdiction  of courts,  except the jurisdiction of the Supreme Court  under Article  136,  with respect to the  disputes  or  complaints referred to in clause (1). The exclusion of the jurisdiction of the High Court under Articles 226 and 227 by any law made by  Parliament under clause (1 ) of Article 323A is,  there- fore,  specifically authorised by the constitutional  amend- ment  enacted in clause (2) (d) of that Article. It is  dear from  the  discussion in the preceding paragraph  that  this constitutional amendment authorising exclusion of the juris- diction of the High Court under Articles 226 and 227  postu- lates for its validity that the law made under clause (1) of Article  323A excluding the jurisdiction of the  High  Court under  Articles  226 and 227 must provide for  an  effective alternative  institutional mechanism or authority for  judi- cial review. If this constitutional amendment were to permit a  law made under clause (1) of Article 323A to exclude  the jurisdiction  of the High Court under Articles 226  and  227 without setting up an effective alternative 444 institutional mechanism or arrangement for judicial  review, it  would be violative of the basic structure  doctrine  and hence outside the constituent power of Parliament. It  must, therefore, be read as implicit in this constitutional amend- ment  that  the law excluding the jurisdiction of  the  High Court  under Articles 226 and 227 permissible under it  must not leave a void but it must set up another effective insti- tutional mechanism or authority and vest the power of  judi- cial review in it. Consequently, the impugned Act  excluding the  jurisdiction of the High Court under Articles  226  and 227 in respect of service matters and vesting such jurisdic- tion  in  the Administrative Tribunal can pass the  test  of constitutionality as being within the ambit and coverage  of clause (2) (d) of Article 323A, only if it can be shown that the Administrative Tribunal set up under the impugned Act is equally  efficacious as the High Court, so far as the  power of  judicial  review over service matter  is  concerned.  We must,  therefore, address ourselves to the question  whether the  Administrative Tribunal established under the  impugned Act can be regarded as equally effective and efficacious  in exercising  the power or judicial review as the  High  Court acting under Articles 226 and 227 of the Constitution.     It  is  necessary to bear in mind that  service  matters which  are removed from the jurisdiction of the  High  Court under Articles 226 and 227 of the Constitution and entrusted

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to the Administrative Tribunal set up under the impugned Act for  adjudication  involve questions of  interpretation  and applicability  of  Articles 14, 15, 16 and 311  in  quite  a large  number  of cases. These questions require  for  their determination not only judicial approach but also  knowledge and  expertise in this particular branch  of  constitutional law.  It is necessary that those who adjudicate  upon  these questions  should  have same modicum of legal  training  and judicial  experience  because  we find that  some  of  these questions are so difficult and complex that they baffle  the minds  of  even trained Judges in the High  Courts  and  the Supreme  Court.  That is the reason why at the time  of  the preliminary hearing of these writ petitions we insisted that every bench of the Administrative Tribunal should consist of one judicial member and  one administrative member and there should be no preponderance of administrative members on  any bench. Of course, the presence of the administrative  member would provide input of practical experience in the function- ing of the services and add to the efficiency of the  Admin- istrative  Tribunal but the legal input would undeniably  be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court. Now section 6 provides that the  Chairman of the Administrative Tribunal should be or should have been a Judge of the High Court or he should have for at least two years held office of Vice-Chairman or he should have for  at least two years held the post of 445 Secretary to the Government of India or any other post under the  Central  or State Government carrying a  scale  of  pay which is not less than that of a Secretary to the Government of India. I entirely agree with Ranganath Misra, J. that the Chairman of the Administrative Tribunal should be or  should have  been a Judge of a High Court or he should have for  at least two years held office as Vice-Chairman. If he has held office  as Vice-Chairman for a period of at least two  years he would have gathered sufficient experience and also within such  period of two years, acquired  reasonable  familiarity with  the  constitutional and legal  questions  involved  in service  matters,  But substituting the Chief Justice  of  a High Court by a Chairman of the Administrative Tribunal  who has  merely held the post of a Secretary to  the  Government and  who has no legal or judicial experience would not  only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the,High Court. We cannot  afford to forget that it is the High Court which is being supplant- ed  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  mem- bers  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 train- ing and experience. I am, therefore, of the view, in  agree- ment  with Ranganath Misra, J. that clause (c) of section  6 (1) must be struck down as invalid.     I  also fail to see why a District Judge or an  advocate who is qualified to be a Judge of a High Court should not be eligible  to be considered for appointment as  Vice-Chairman

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of  the Administrative Tribunal. It may be noted that  since the Administrative Tribunal has been created in substitution of  the High Court, the Vice-Chairman of the  Administrative Tribunal would be in the position of a High Court Judge  and if  a District Judge or an advocate qualified to be a  Judge of  the  High Court, is eligible to be a High  Court  Judge, there is no reason why he should not equally be eligible  to be  a Vice-Chairman of the Administrative Tribunal. Can  the position  of a Vice-Chairman of the Administrative  Tribunal be considered higher than that of a High Court Judge so that a person who is eligible to be a High Court Judge may yet be regarded  as ineligible for becoming a Vice-Chairman of  the Administrative Tribunal? It does appear that the  provisions of  the  impugned Act in regard to the  composition  of  the Administrative  Tribunal are a little weighted in favour  of members  of  the Services. This weightage in favour  of  the members  of the Services and value-discounting of the  judi- cial members does have the effect of 446 making the Administrative Tribunal less effective and  effi- cacious than the High Court. I would therefore suggest  that a  District  Judge or an Advocate who is qualified to  be  a Judge  of the High Court should be regarded as eligible  for being  Vice-Chairman  of  the  Administrative  Tribunal  and unless  an  amendment to that effect is carried  out  on  or before  31st March, 1987, the impugned Act would have to  be declared  to be invalid, because the provision in regard  to composition of the Administrative Tribunal cannot be severed from the other provisions contained in the impugned Act.     That takes me to another serious infirmity in the provi- sions of the impugned Act in regard to the mode of  appoint- ment  of  the  Chairman, Vice Chairman and  members  of  the Administrative Tribunal. So far as the appointment of  judi- cial  members of the Administrative Tribunal  is  concerned, there  is a provision introduced in the impugned Act by  way of amendment that the judicial members shall be appointed by the  Government  concerned in consultation  with  the  Chief Justice  of  India. Obviously no exception can be  taken  to this  provision, because even so far as Judges of  the  High Court  are  concerned, their appointment is required  to  be made  by the President inter alia in consultation  with  the Chief  Justice  of India. But so far as the  appointment  of Chairman,  Vice-Chairmen and administrative members is  con- cerned,  the sole and exclusive power to make such  appoint- ment is conferred on the Government under the impugned  Act. There is no obligation cast on the Government to consult the Chief Justice of India or to follow any particular selection procedure  in this behalf. The result is that it is left  to the  absolute  unfettered discretion of  the  Government  to appoint  such  person or persons as it  likes  as  Chairman, Vice-Chairman and administrative members of the  Administra- tive Tribunal. Now it may be noted that almost all cases  in regard to service matters which come before the  Administra- tive 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  adminis- trative  member  is looking forward to  promotion  as  Vice- Chairman  or Chairman, he would have to depend on the  good- will  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-a-vis promotion to the office of Chairman of the’ Admin- istrative Tribunal. The administrative members would also be

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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 447 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  influ- ence  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. That is  the  reason  why in case of appointment  of  High  Court Judges, the power of appointment vested in the executive  is not  an absolute unfettered power but it is hedged in  by  a wholesome check and safeguard and the President cannot  make an  appointment of a High Court Judge  without  consultation with  the  Chief  Justice of the High Court  and  the  Chief Justice of India and a healthy convention has grown up  that no appointment would be made by the Government which is  not approved by the Chief Justice of India. This check or  safe- guard  is totally absent in the case of appointment  of  the Chairman,  Vice-Chairmen and administrative members  of  the Administrative Tribunal and the possibility cannot be  ruled out-indeed  the  litigating public would certainly  carry  a feeling--that  the decisionmaking process of  the  Chairman, Vice-Chairmen  and  members of the  Administrative  Tribunal might  be likely to be affected by reason of  dependence  on the  executive  for  appointment and promotion.  It  can  no longer  be disputed that total insulation of  the  judiciary from all forms of interference from the coordinate  branches of Government is a basic essential feature of the  Constitu- tion. The Constitution makers have made anxious provision to secure  total independence of the judiciary  from  executive pressure or influence. Obviously, therefore if the  Adminis- trative  Tribunal  is created in substitution  of  the  High Court and the jurisdiction of the High Court under  Articles 226  and 227 is taken away and vested in the  Administrative Tribunal,  the same independence from possibility of  execu- tive  pressure  or  influence must also be  ensured  to  the Chairman,  Vice-Chairmen and members of  the  Administrative Tribunal. Or else the Administrative Tribunal would cease to be  an equally effective and efficacious substitute for  the High  Court and the provisions of the impugned Act would  be rendered  invalid.  I am, therefore, of the  view  that  the appointment  of Chairman, Vice-Chairmen  and  administrative members  should  be made by the  concerned  Government  only after consultation with the Chief Justice of India and  such consultation must be meaningful and effective and ordinarily the  recommendation  of the Chief Justice of India  must  be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India  and his response must be invited to such reasons. There is  also another  alternative which may be adopted by the  Government for making appointments of Chairman, Vice Chairmen and  mem- bers and that may be by setting up a High Powered  Selection Committee headed by the Chief Justice of India or a  sitting Judge of the Supreme Court or concerned High Court nominated by the Chief Justice of 448 India. Both these mOdes of appointment will ensure selection of  proper and competent persons to man  the  Administrative

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Tribunal  and  give it prestige and reputation  which  would inspire  confidence  in  the public mind in  regard  to  the competence,  objectivity and impartiality of  those  manning the Administrative Tribunal. If either of these two modes of appointment is adopted, it would save the impugned Act  from invalidation. Otherwise, it will be outside the scope of the power conferred on Parliament under Article 323-A. I  would, however  hasten to add that this judgment will operate  only prospectively  and will not invalidate appointments  already made to the Administrative Tribunal. But if any appointments of  Vice-Chairmen or administrative members are to  be  made hereafter,  the  same  shall be made by  the  Government  in accordance  with  either of the aforesaid two modes  of  ap- pointment.     I may also add that if the Administrative Tribunal is to be an equally effective and efficacious substitution for the High Court on the basis of which alone the impugned Act  can be  sustained, there must be a permanent or if there is  not sufficient work, then a Circuit Bench of the  Administrative Tribunal  at every place where there is a seat of  the  High Court. I would, therefore, direct the Government to set up a permanent bench and if that is not feasible having regard to the  volume  of work, then at least a Circuit Bench  of  the Administrative Tribunal wherever there is a seat of the High Court,  on or before 31st March, 1987. That would be  neces- sary  if the provisions of the impugned Act are to  be  sus- tained.  So  far  as rest of the points dealt  with  in  the judgment of Ranganath Misra, J. are concerned, I express  my entire agreement with the view taken by him.     RANGANATH MISRA J: The challenge raised to the vires  of the  Administrative  Tribunals Act, 1985,  (hereinafter  re- ferred  to as ’the Act’) in an application under Article  32 of the Constitution and the other connected matters has been referred to the Constitution Bench for adjudication.  Indis- putably the Act has been framed within the ambit of  Article 323A  which was brought into the Constitution by the  Forty- Second  Amendment Act in 1976. In exercise of  power  vested under  Section 1(3) of the Act, the Central  Government  ap- pointed 1.11.1985 as the date from which the Act would  come into force. Thereupon Sampat Kumar and others (W.P. 12460 of 1985)  moved  this  Court and  the  connected  matters  were brought  before  this Court or different High  Courts  which have since been transferred’ to this Court to be analogously heard.  On 31.10. 1985 a Division Bench of this  Court  gave certain interim directions including stay of transfer of the pending  applications under Article 32 which were liable  to be  transferred to the Tribunal and also for continuance  of exercise  of  jurisdiction  under Article 32  in  regard  to disputes  covered  under  the Act  notwithstanding  the  bar provided in Section 28. 449     In the writ applications as presented the main challenge was to the abolition of the Jurisdiction of this Court under Article  32 in respect of specified service disputes.  Chal- lenge was also raised against the taking away of the  juris- diction of the High Court under Articles 226 and 227. It was further  canvassed  that  establishment of  benches  of  the Tribunal at Allahabad, Bangalore, Bombay, Calcutta, Gauhati, Madras.  and Nagpur with the principal seat at  Delhi  would still prejudice the parties whose cases were already pending before  the respective High Courts located at  places  other than these places and unless at the seat of every High Court facilities for presentation of applications and for  hearing thereof were provided the parties and their lawyers would be adversely  affected. The interim order made on  October  31,

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1985,  made  provisions to meet  the  working  difficulties. Learned Attorney General on behalf of the Central Government assured  the Court that early steps would be taken to  amend the  law  so as to save the jurisdiction under  Article  32, remove  other  minor  anomalies and set up a  bench  of  the Tribunal at the seat of every High Court. By the Administra- tive Tribunals (Amendment) Ordinance, 1986, these amendments were brought about and by now an appropriate Act of  Parlia- ment  has  replaced  the Ordinance.  Most  of  the  original grounds  of attack thus do not survive and  the  contentions that were canvassed at the hearing by the counsel  appearing for different parties are these               (1) Judicial review is a fundamental aspect of               the  basic structure of our  Constitution  and               bar  of  the jurisdiction of  the  High  Court               under  Articles  226 and 227 as  contained  in               Section 28 of the Act cannot be sustained;               (2) Even if the bar of jurisdiction is upheld,               the  Tribunal being a substitute of  the  High               Court,  its constitution and set up should  be               such  that it would in fact function  as  such               substitute and become an institution in  which               the parties could repose faith and trust;               (3) Benches of the Tribunal should not only be               established  at the seat of every  High  Court               but  should be available at every place  where               the High Courts have permanent benches;                         (4) So far as Tribunals set up or to               be set up by the Central or the State  Govern-               ments  are  concerned,  they  should  have  no               jurisdiction  in respect of employees  of  the               Supreme  Court or members of  the  subordinate               judiciary and employees working in such estab-               lishments inasmuch as exercise of jurisdiction               of  the  Tribunal  would  interfere  with  the               control absolutely vested in               450               the  respective High Courts in regard  to  the               judicial and other subordinate officers  under               Article 235 of the Constitution.     After oral arguments were over, learned Attorney  Gener- al, after obtaining instructions from the Central Government filed  a memorandum to the effect that section 2(q)  of  the Act would be suitably amended so as to exclude officers  and servants in the employment of the Supreme Court and  members and  staff of the subordinate judiciary from the purview  of the  Act. In the same memorandum it has also been said  that Government would arrange for sittings of the benches of  the Tribunal  at  the seat or seats of each High  Court  on  the basis  that ’sittings’ will include ’circuit  sittings’  and the  details thereof would be worked out by the Chairman  or the Vice-Chairman concerned.     With  these  concessions made by  the  learned  Attorney General,  only  two aspects remain to be dealt with  by  us, namely,  those covered by the first and the  second  conten- tions.     Strong reliance was placed on the judgment of  Bhagwati, J  (one  of  us---presently the learned  Chief  Justice)  in Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206, 287 where it was said:               "The  power of judicial review is an  integral               part of our constitutional system and  without               it,  there will be no Government of  laws  and               the  rule of law would become a teasing  illu-               sion  and a promise of unreality. I am of  the

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             view  that  if  there is one  feature  of  our               Constitution  which, more than any  other,  is               basic  and fundamental to the  maintenance  of               democracy and the rule of law, it is the power               of  judicial review and it is  unquestionably,               to my mind, part of the basic structure of the               Constitution.  Of  course, when 1 say  this  I               should  not be taken to suggest that,  however               effective alternative institutional mechanisms               or arrangements for judicial review cannot  be               made by Parliament. But what I wish to  empha-               sise is that judicial review is a vital  prin-               ciple  of  our Constitution and it  cannot  be               abrogated  without affecting the basic  struc-               ture  of the Constitution. If by  a  constitu-               tional amendment, the power of judicial review               is  taken  away and it is  provided  that  the               validity  of any law made by  the  Legislature               shall  not be liable to be called in  question               on  any  ground,  even if it  is  outside  the               legislative  competence of the Legislature  or               is violative of any               451               fundamental rights, it would be nothing  short               of  subversion  of the  Constitution,  for  it               would  make a mockery of the  distribution  of               legislative  powers between the Union and  the               States  and  render  the  fundamental   rights               meaningless and futile. So also if a constitu-               tional amendment is made which has the  effect               of taking away the power of judicial review."     Article  32 was described by Dr. Ambedkar in  course  of the  debate  in the Constituent Assembly as the  ’soul’  and ’heart’ of the Constitution and it is in recognition of this position that though Article 323A(2)(d) authorised exclusion of jurisdiction under Article 32 and the original Act had in Section 28 provided for it, by amendment jurisdiction  under Article  32  has  been left untouched. The  Act  thus  saves jurisdiction of this Court both under Article 32 in  respect of original proceedings as also under Article 136 for enter- taining  appeals against decisions of the Tribunal on  grant of Special Leave. Judicial review by the apex court has thus been left in tact.     The question that arises, however, for consideration  is whether  bar  of  jurisdiction under Articles  226  and  227 affects the provision for judicial review. The right to move the  High  Court in its writ  jurisdiction--unlike  the  one under Article 32, is not a fundamental right. Yet, the  High Courts,  as the working experience of three and a half  dec- ades shows have in exercise of the power of judicial  review played a definite and positive role in the matter of preser- vation of fundamental and other rights and in keeping admin- istrative action under reasonable control. In these  thirty- six years following the enforcement of the Constitution, not only has India’s population been more than doubled but  also the  number of litigations before the courts  including  the High  Courts has greatly increased. 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 recommendations  suggesting  ways and means  for  effective,

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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  discipli- nary action. In certain States, Tribunals of this type  came into existence and started functioning. But the Central 452 Government  looked into the matter further as it  transpired that  the major chunk of service litigation related to  mat- ters other than disciplinary action. In May 1976, a  Confer- ence  of  Chief  Secretaries of the  States  discussed  this problem. Then came the Forty-Second Amendment of the Consti- tution bringing in Article 323A which authorised  Parliament to provide by law "for the adjudication or trial by adminis- trative tribunals of disputes and complaints with respect to recruitment  and conditions of service of persons  appointed to  public services and posts in connexion with the  affairs of  the Union or of any State or of any local or  other  au- thority  within the territory of India or under the  control of  the Government of India or of any Corporation  owned  or controlled by the Government." As already stated this  Arti- cle  envisaged exclusion of the jurisdiction of all  courts, except the jurisdiction of. the Supreme Court under  Article 136, with respect to the disputes or complaints referred  to in  clause  (1). Though the Constitution now  contained  the enabling power, no immediate steps were taken to set up  any Tribunal  as  contemplated by Article 323A.  A  Constitution Bench of this Court in K.K. Dutta v. Union of India,  [1980] 3 SCR 811 observed:               "There  are  few other litigative  areas  than               disputes  between members of various  services               inter  se,  where the  principle  that  public               policy requires that all litigation must  have               an  end can apply with greater  force.  Public               servants ought not to be driven or required to               dissipate their time and energy in  court-room               battles.  Thereby their attention is  diverted               from public to private affairs and their inter               se  disputes  affect their  sense  of  oneness               without  which  no  institution  can  function               effectively.   The  constitution  of   Service               Tribunals  by State GOvernments with  an  apex               Tribunal at the Centre which in the generality               of  the cases, should be the final arbiter  of               controversies relating to conditions of  serv-               ice, including the vexed question of  seniori-               ty, may save the courts from the avalanche  of               writ petitions and appeals in service matters.               The proceedings of such Tribunals can have the               merit  Of informality and if they will not  be               tied  down to strict rules of  evidence,  they               might be able to produce solutions which  will               satisfy many...."     In  the meantime the problem of the backlog of cases  in the High Courts becomes more acute and pressing and came  to be  further discussed in Parliament and in  conferences  and seminars. Ultimately in January 1985, both Houses of Parlia- ment  passed  the Bill and with the Presidential  assent  on 27th  February,  1985,  the law enabling  the  long  awaited

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Tribunal  to be constituted came into existence. As  already noticed,  the  Central Government notified the Act  to  come into force with effect from 1.11.1985. 453     Exclusion  of  the jurisdiction of the  High  Courts  in service matters and its propriety as also validity have thus to  be examined in the background indicated above.  We  have already  seen  that judicial review by this  Court  is  left wholly unaffected and thus there is a forum where matters of importance and grave injustice can be brought for determina- tion or rectification. Thus exclusion of the jurisdiction of the  High Court does not totally bar judicial  review.  This Court  in Minerva Mills’ case did point out that  "effective alternative  institutional  mechanisms or  arrangements  for judicial  review"  can  be made by Parliament.  Thus  it  is possible  to set up an alternative institution in  place  of the  High Court for providing judicial review.  The  debates and deliberations spread over almost two decades for explor- ing ways and means for relieving the High Courts of the load of  backlog  of cases and for assuring quick  settlement  of service  disputes in the interest of the public servants  as also  the country cannot be lost sight of while  considering this aspect. It has not been disputed before us--and perhaps could not..have been--that the Tribunal under the scheme  of the Act would take over a part of the existing backlog and a share  of the normal load of the High Courts.  The  Tribunal has been contemplated as a substitute and not as  supplemen- tal  to  the High Court in the scheme of  administration  of justice. To provide the Tribunal as an additional forum from where  parties  could go to the High Court  would  certainly have  been a retrograde step considering the  situation  and circumstances to meet which the innovation has been  brought about.  Thus barring of the jurisdiction of the  High  Court can indeed not be a valid ground of attack.     What, however, has to be kept in view is that the Tribu- nal should be a real substitute of the High Court--not  only in  form  and de jure but in content and de  facto.  As  was pointed out in Minerva’s Mills, the alternative  arrangement has to be effective and efficient as also capable of uphold- ing  the constitutional limitations. Article 16 of the  Con- stitution  guarantees equality of opportunity in matters  of public employment. Article 15 bars discrimination on grounds of religion, race, caste, sex or place of birth. The  touch- stone of equality enshrined in Article 14 is the greatest of guarantees for the citizen. Centering around these  articles in  the  Constitution a service  jurisprudence  has  already grown  in this country. Under Sections 14 and 15 of the  Act all  the powers of the Courts except those of this Court  in regard   to   matters   specified  therein   vest   in   the Tribunal--either Central or State. Thus the Tribunal is  the substitute  of the ’High Court and is entitled  to  exercise the powers thereof.     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 454 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 upto the High Court as the unfailing protec- tor of his person, property and honour. The institution  has served  its  purpose very well and the common man  has  thus

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come to repose great confidence therein. Disciplined,  inde- pendent  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 intended to convey when it spoke of an alternative mechanism in Minerva Mills’ case.     Chapter II of the Act deals with establishment of Tribu- nals and Benches thereof. Section 4 provides for  establish- ment while Section 5 deals with composition of the  Tribunal and Benches thereof. Section 6 lays down the  qualifications of Chairman, Vice-Chairman and members. So far as the Chair- man  is concerned, sub-section  (1) requires that he  should be or have been--               (a) a Judge of a High Court; or               (b) has for at least two years, held office as               Vice-Chairman; or               (c) has, for at least two years, held the post               of  a Secretary to the Government of India  or               any  other post under the Central or  a  State               Government  carrying a scale of pay  which  is               not  less  than  that of a  Secretary  to  the               Government of India.     Sub-section (2) prescribing the qualification for  Vice- Chairman provides that he should be or have been-               (a) a Judge of a High Court; or               (b) for at least two years, held the post of a               Secretary  to the Government of India  or  any               other  post under the Central or a State  Gov-               ernment  carrying a scale of pay which is  not               less  than that of a Secretary to the  Govern-               ment of India; or               (bb) for at least five years, held the post of               an Additional               455               Secretary to Government of India or any  other               post carrying equivalent pay; or               (c) for a period of not less than three  years               held office as a judicial member of an  Admin-               istrative Tribunal.     Sub-section (3) prescribes the qualification of a  judi- cial  member and requires that: (a) he should be  or  should have been or qualified to be a Judge of a High Court; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that service for at least three years.     Sub-section  (3-A)  provides the qualification  for  ap- pointment  as administrative member and lays down that  such person should have, for at least two years, held the post of an  Additional Secretary to the Government of India  or  any other post under the Central or a State Government  carrying a scale of pay not less than that of an Additional Secretary to  Government  of  India; or (b) has, for  at  least  three years, held the post of a Joint Secretary to the  Government of  India or any other post under the Central or  the  State Government  carrying a scale of pay which is not  less  than that of a Joint Secretary to Government of India. So far  as the Chairman is concerned, we are of the view that ordinari- ly  a retiring or retired Chief Justice of a High  Court  or when  such  a  person is not available, a  Senior  Judge  of

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proved  ability  either in office or retired should  be  ap- pointed.  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  intri- cate problems with understanding, detachment and  objective- ness  but  judicial discipline generated by  experience  and training in an adequate dose is, in our opinion, a necessary qualification  for  the post of Chairman. We  agree  that  a Vice-Chairman  with these qualifications and  experience  of two years may be considered for appointment as Chairman  but in  order that the Tribunal may be acceptable to  the  liti- gants  who are themselves members of the  various  services, section  6(1)(c)  should be omitted. We do not want  to  say anything about Vice-Chairman and members dealt with in  sub- sections (2), (3) or (3A) because so far as their  selection is concerned, we are of the view that such selection when it is  not of a sitting Judge or retired Judge of a High  Court should  be done by a high powered committee with  a  sitting Judge  of  the Supreme Court to be nominated  by  the  Chief Justice of India as its Chairman. This will ensure selection of proper and competent people to man these high offices  of trust  and  help to build up reputation  and  acceptability. Once the qualifications indicated for appointment of  Chair- man are adopted and the manner of selection of Vice-Chairman and  members is followed, we are inclined to think that  the manning  of  the Tribunal would be proper and  conducive  to appropriate functioning. We 456 do  not propose to strike down the prescriptions  containing different  requirements  but would commend  to  the  Central Government  to take prompt steps to bring the provisions  in accord  with  what  we have indicated. We  must  state  that unless the same be done, the constitution of the Tribunal as a  substitute of the High Court would be open to  challenge. We  hasten to add that our judgment shall  operate  prospec- tively and would not affect appointments already made to the offices  of Vice-Chairman and   Member--both  administrative and judicial.     Section  8 of the Act prescribes the term of office  and provides  that the term for Chairman, Vice-Chairman or  mem- bers 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 dis-incentive  for well-qualified people to accept the offer to join the Tribu- nal. 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 out on completing  the  five  year period but long before the superannuation age is reached  is bound to operate as a deterrent. Those who come to be Chair- man,  Vice-Chairman or members resign appointments, if  any, held by them before joining the Tribunal and, as such, there would  be no scope for their return to the place  or  places from where they come. A five year period is not a long  one. Ordinarily some time would be taken for most of the  members to get used to the service-jurisprudence and when the period is  only five years, many would have to go out by  the  time they  are fully acquainted with the law and have  good  grip

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over the job. To require retirement at the end of five years is  thus neither convenient to the person selected  for  the job  nor  expedient to the scheme. At the  hearing,  learned Attorney-General  referred  to the case of a member  of  the Public  Service Commission who is appointed for a  term  and even  suffers the disqualification in the matter of  further employment. We do not think that is a comparable  situation. On  the other hand, membership in other high-powered  Tribu- nals like the Income-tax Appellate Tribunal or the  Tribunal under the Customs Act can be referred to. When amendments to the  Act are undertaken, this aspect of the matter  deserves to  be considered, particularly because the choice  in  that event would be wide leaving scope for proper selection to be made. We hope and trust that within a reasonable period not beyond 31st 457 March, 1987, the amendments indicated shall be brought about so as to remove the defects found in the Act. Khalid, Oza and Dutt 3.3.     We have read both the Judgments just delivered--the main judgment of learned Brother Ranganath Misra and the other of Hon’ble the Chief Justice. We agree with both. P.S.S. 458