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 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 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 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 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.
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 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 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.”
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.
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 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.
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 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 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 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 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 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 (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 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 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 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.
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 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 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 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:
“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, 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 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 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 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 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 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.”
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, 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 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 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 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
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, “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]
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 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 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 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.”
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 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 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.
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 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 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.
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 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.
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”.
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.”
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 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.
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 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 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.
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 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 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 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 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.
(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.
New Delhi; May 6, 2010 . J.
(Dalveer Bhandari)