Shanker Raju Vs UOI (Supreme Court) – CAT – Appointment of Member – A person who has completed ten years as a Member of Tribunal is ineligible to be re-appointed as Member even if he has not attained 65 years of age – Plain reading of proviso to sec. 10A makes it clear that the Chairman and Members appointed prior to Amending Act of 2006, on completion of either their term of service or on attainment of 65 years in the case of Chairman or 62 years in the case of Members of the Tribunal, whichever is earlier, may be considered for fresh appointment – Proviso to sec. 10A provides that such fresh appointment could be made only when the criteria prescribed under amended sec. 8 is satisfied and it is further subject to the condition that the total term of office of the Chairman shall not exceed 5 years and that of a Member, ten years.
Shanker Raju Vs. Union of India
H.L. Dattu, J.
1. Since the petitioner purports to invoke the jurisdiction of this Court under Article 32 of the Constitution of India, it is necessary to note the relevant facts and reliefs sought for in the petition.
2. The material facts which are essential to mention are very few and they lie within a narrow compass. Shri Shanker Raju, the petitioner, was appointed as a Judicial Member of the Central Administrative Tribunal (in short, “the Tribunal”) on 10.12.2000. After completion of his five-year term, he was reappointed for another term of five years and was due to complete his second term of five years on09.12.2010. In April, 2010, in response to an advertisement issued by the respondent regarding vacancies of Members in the Tribunal, Principal Bench, Delhi, he made application for the post of Judicial Member of the Tribunal, the post which he had held for nine and a half years at the time of making application. Though the petitioner was eligible for the appointment in terms of his qualification, the respondent refused to consider his claim for appointment for the vacancy, for the reason that the petitioner would complete his second term of 5 years on 09.12.2010 as a Judicial Member of the Tribunal vide the impugned communication dated 12-08-2010. The main premise of the petitioner’s challenge of the said communication is that after completion of a tenure of 10 years, he is eligible to apply for the post afresh and must be considered on merits for his appointment as a Member of the Tribunal and should not be disqualified for appointment merely because he has completed 10 years in that office. The petitioner seeks appropriate writ from this Court mainly in respect of the communication dated 12.08.2010 and for a direction to the respondent to consider his case for appointment to the post of Member(J) in Tribunal advertised vide D.O. No.A1103/9/2010-AT dated 20.04.2010 on its own merit sans eligibility.
3. The Administrative Tribunals Act, 1985 [hereinafter referred to as `the Act’] was amended in the year 2006 by the Administrative Tribunals (Amendment) Act 2006. The amendments were made effective from 19.02.2007. Some of the principal changes brought about, which are relevant for the purpose of the case are, the abolition of the post of Vice-Chairman; changes in the terms of office in the form of increase in the age of superannuation of the Chairman from 65 years to 68 years and that of the other Members from 62 years to 65 years; the term of the Members was fixed to 5 years, extendable by another term of 5 years; and, incorporation of Section 10A as a savings clause, for saving the term of office of the Chairman, Vice- Chairman and Members, who were appointed prior to the coming into force of the Amendment Act.
4. It was just a few months ago, a Bench of three learned Judges of this Court had the occasion to consider the legislative competence and validity of the Administrative Tribunals (Amendment) Act, 2006 in the case of A.K. Behra v. Union of India, (2010) 5 SCALE 472. The reliefs prayed for by the petitioner in that writ petition were:
i. Quash and set aside the decision of the respondent to abolish the posts of Vice-Chairman in the Central Administrative Tribunal as reflected in the Administrative Tribunal (Amendment) Act 2006 and direct the respondents to restore the said posts of Vice-Chairman in Central Administrative Tribunal forthwith;
ii. Declare that the newly inserted Section 10A of the Administrative Tribunals Act, 1985 to the extent it postulates different conditions of service for the Members of the Central Administrative Tribunal on the basis of their appointment under the Un-amended Rules and under the Amended Rules as unconstitutional, arbitrary and not legally sustainable;
iii. Direct the respondents to accord the conditions of service as applicable to the Judges of the High Court to all the Members of the Central Administrative Tribunal irrespective of their appointment under the Un-amended or amended Rules;
iv. Declare that the newly inserted Section 10A of the Administrative Tribunals Act is further unconstitutional to the extent it stipulates that the total term in office of the Members of the Tribunal shall not exceed 10 years;
v. Direct the respondents to continue all the Members appointed under the un-amended or amended rules till they attain the age of superannuation of 65 years;
vi. Declare the newly inserted qualifications for appointment as Administrative Members as reflected in the Amended Section 6(2) as arbitrary and unsustainable in the eyes of law and quash the same;
vii. Quash and set aside the newly added Sec. 12(2) of the Act which impinges upon the independence of judiciary;
viii. Pass any other order or direction which this Hon’ble Court thinks fit and proper in the facts and circumstances of the case.”
5. In the case of A.K. Behra (supra), two learned judges (K.G. Balakrishnan, CJI and J.M. Panchal, J.) upheld the validity of the impugned amendment and dismissed the writ petition, whereas, the other learned Judge (Dalveer Bhandari, J.) allowed the writ petition and struck down the impugned amendment as being arbitrary and violative of Fundamental Rights guaranteed under the Constitution.
6. In A.K. Behra’s case (supra), the court has noticed, apart from others, one of the reliefs sought for by the petitioner. It is relevant to notice the prayer made and discussion on that issue by the Court. They are as under:- “to declare that newly inserted Section 10 A of the Administrative Tribunals Act, 1985 as unconstitutional to the extent it stipulates that the term of office of the Member of the Central Administrative Tribunal shall not exceed 10 years.”
The Court while considering the said relief has concluded: “15. The plea that Section 10A, which restricts the total term of the Member of the Administrative Tribunal to ten years should be regarded as unconstitutional has also no substance at all. The age of retirement of a Government servant has been raised from 58 years to 60 years. Initially under the unamended provisions of the Act a retired Government servant had a tenure of only two years as a Member of the Tribunal and it was noticed that he was not able to contribute much while performing duties as a Member of the Tribunal. It was felt necessary that every Member of the Tribunal should have a tenure of five years. Therefore, the provisions relating to term of office incorporated in Section 8 of the Act were amended in the year 1987 and provision was made fixing term of office of Chairman, Vice-chairman and Members at five years period.
This Court, in S.P. Sampath Kumar v. Union of India and others [(1987) 1 SCC 124], expressed the view that the term of five years, for holding the posts mentioned in Section 8 of the Act was so short that it was neither convenient to the person selected for the job nor expedient to the scheme. This Court found that it became a disincentive for well qualified people as after five years, they had no scope to return to the place from where they had come. The constitutional validity of the provisions of Section 8, fixing term of office of Chairman, Vice-chairman and Members of the Tribunal at five years period was upheld by this Court in Durgadas Purkyastha v. Union of India and others [(2002) 6 SCC 242]. Therefore, now provision is made for extension of term of office by a further period of five years.
Thus the Government has decided to provide for extension in term of office by five years of a Member so that he can effectively contribute to speedy disposal of cases, on merits after gaining expertise in the service jurisprudence and having good grip over the subject. Under the unamended provisions of the Act also the term of Vice-Chairman and Member was extendable by a further period of five years and under the un-amended provisions also a Member of the Bar, who was appointed as Judicial Member of the Tribunal, had maximum tenure of ten years. It is not the case of the petitioners that the un-amended provisions of the Act, which prescribed total tenure of ten years for a Member of the Bar was/is unconstitutional.
The provisions of Section 8 fixing maximum term of office of the chairman at sixty eight years and of a Member of the Tribunal at 10 years, cannot be regarded as unconstitutional because concept of security of tenure does not apply to such appointments. Said provision cannot be assailed as arbitrary having effect of jeopardizing security of tenure. An Advocate practicing at the Bar is eligible to be appointed as Member of Tribunal subject to his fulfilling required qualifications. In all, such a Member would have term of office for ten years. On ceasing to hold office, a Member, subject to the other provisions of the Act, is eligible for appointment as the Chairman of the Tribunal or as the Chairman, Vice- chairman or other Member of any other Tribunal and is also eligible to appear, act or plead before any Tribunal except before the Tribunal of which he was Member. Under the circumstances, this Court fails to appreciate as to how the amended provisions restricting the total tenure of a Member of the Tribunal to ten years would be unconstitutional.
The unamended Section 6 of the Administrative Tribunals Act, 1985 indicated that the Chairman, Vice-Chairman and other Members, held respective offices in one capacity or the other, had reasonably spent sufficient number of years of service in those posts before they were appointed in the Tribunal and, therefore, the concept of security of tenure of service in respect of those whose term was reduced was not regarded as appropriate. The impugned provision, therefore, cannot be assailed on the ground of arbitrariness having the effect of jeopardizing the security of tenure of Members of the Bar beyond reasonable limits. An option is reserved to the Government to re-appoint a Member on the expiry of the first term beyond five years.
The outer limit for the Member is that he should be within the age of 65 years. Thus, it would not be in every case that the Government would put an end to the term of the office at the end of five years because such Chairman or Member is eligible for appointment for another period of five years after consideration of his case by a committee headed by a Judge of the Supreme Court to be nominated by the Chief Justice of India and two other Members, one of whom will be the Chairman of the Tribunal. Under the circumstances, it is difficult to conclude that the provision restricting the total tenure of a Member to ten years is either arbitrary or illegal.”
7. The decision of the aforesaid Bench of this Court is binding on us and is clearly applicable to the case before us. However, out of respect to the learned senior counsel, who pressed the contentions very seriously, we may briefly and independently examine the question in this case also.
8. Before we turn to the facts of the present petition, we would like to make certain general observations and explain the legal position with regard to them. The Doctrine of Stare Decisis
9. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim “stare decisis et non quieta movere”, which means “to stand by decisions and not to disturb what is settled.” Lord Coke aptly described this in his classic English version as “those things which have been so often adjudged ought to rest in peace.” The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. in Waman Rao v. Union of India, (1981) 2 SCC 362 at pg. 392 thus: “
. … for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.”
10. In Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) SCC 124, at page 127, it was opined that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.
11. In Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC 223 at page 233, this Court cautioned that, “the Judgments of this Court are decisional between litigants but declaratory for the nation.” This Court further observed:
“28. … Enlightened litigative policy in the country must accept as final the pronouncements of this Court… unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions.”
12. In Union of India v. Raghubir Singh, (1989) 2 SCC 754, at page 766, this Court has enunciated the importance of doctrine of binding precedent in the development of jurisprudence of law: “8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.”
13. In Krishena Kumar v. Union of India, (1990) 4 SCC 207, at page 233, this Court has explained the meaning and importance of sparing application of the doctrine of Stare Decisis: “33. Stare decisis et non quiet a movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it.”
14. In Union of India & Anr. v. Paras Laminates (P) Ltd, (1990) 4 SCC 453 at pg. 457, this Court observed as under :- “9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or 11 ground of the judicial decision in the earlier cases on identical matters”. It has been opined that in the absence of a strict rule of precedent, litigants would take every case to the highest court, in spite of a ruling to the contrary, in the hope that the decision may be overruled.
15. In Hari Singh v. State of Haryana, (1993) 3 SCC 114, at page 120, this Court stated the importance of consistent opinions in achieving harmony in Judicial System: “10. It is true that in the system of justice which is being administered by the courts, one of the basic principles which has to be kept in view, is that courts of coordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on a question of law. If courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy.”
16. In Tiverton Estates Ltd. v. Wear well Ltd., (1975) Ch 146 at page 371, Sorman L. J., while not agreeing with the view of Lord Denning, M.R. about desirability of not accepting previous decisions, said as follows: 12 “I decline to accept his lead only because I think it damaging to the law to the long term–though it would undoubtedly do justice in the present case. To some it will appear that justice is being denied by a timid, conservative adherence to judicial precedent. They would be wrong. Consistency is necessary to certainty–one of great objectives of law.”
17. The second observation we wish to make is, the doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions. The pronouncement of law by a larger Bench of the this Court is binding on a Division Bench of this court, especially where the particular determination by this Court not only disposes of the case, but also decides a principle of law. We further add that it would be inappropriate to reagitate the very issue or a particular provision, which this Court had already considered and upheld.
18. Faced with this situation, Shri. P.S. Narasimha, learned senior counsel appearing for the petitioner, submits that the issue before this Court in the present writ petition is different from the issue raised and canvassed in A.K. Behra’s case (supra) by pointing out that the relief sought for in the two cases are not identical. He contends that the case of A.K. Behra (supra) was limited to the challenge to Constitutional validity of the Administrative Tribunal (Amendment) Act, 2006, and further in that case, the question, whether a Member of the Tribunal appointed under the Act, prior to its amendment, is eligible for re-appointment after completion of a term of ten years, was neither argued, nor considered by this Court. It is further contended by Shri Narasimha that this Court was not called upon to decide the validity of Section 8 and Section 10A of the Act.
It is contended that in A.K. Behara’s case (supra), this Court did not deal with the question of appointment of a member afresh after completion of his term under Section 8 or of the appointment of the existing members protected under Section 10 of the pre-amended Act. According to the learned senior counsel, a person who is appointed as a Member of the Tribunal, is appointed for a term of five years, which is extendable by one more term of five years by the Government, if such person is found to be suitable and effective for the job, and there is no embargo for such a person to re-apply again after completion of his term of 10 years and such person can be appointed again on a fresh term, if the eligibility criteria prescribed in Section 6(2)(b) are met, till he attains the age of 65 years.
The learned senior counsel further submits that the “Terms of Office” for a Member as prescribed in Section 8, and Section 10A is merely a transitory provision meant only to save the terms and conditions of service of existing members, as on the date of amendment and not a substantive provision that regulates the eligibility for fresh appointment. In sum and substance, the argument of Shri Narasimha is that a person is eligible for appointment as a Member as many times as he is selected and appointed, but after a term of 10 years, he has to seek fresh appointment. He states that this can be done by a member till such time, he attains the age of 65 years.
19. Ms. Indira Jaising, learned Additional Solicitor General, per contra, would submit that Section 8 of the Amended Act is clear and unambiguous. The Legislature clearly declares the term of office for a member of the Tribunal as 10 years and, therefore, petitioner is ineligible for fresh appointment. However, on a pointed query by the Court, the learned ASG submits that a person, who has completed term of 10 years, is eligible for appointment as Chairman of such other Tribunal, but not member of the Tribunal. The learned ASG states that the Amended Act has put in clear terms that there is a limitation of 10 years for a person to hold office as a Member, and this amendment made explicit what was implicit earlier. In a nut- shell, the argument of the learned ASG is that once a person has completed 10 years in office as Member of the Tribunal, he is not eligible for re-appointment.
20. This Court was also assisted by Shri R. Venkataramani, learned senior counsel, in his role as Amicus Curiae. Shri Venkataramani, submits that the interpretation of Section 10A of the Amended Act did not come up for consideration before this Court in the case of A.K. Behra (supra.). He further submits that Section 10A of the Act was in the form of a transitory provision, which was made applicable to those persons who had been appointed prior to Amendment Act (Act No.1 of 2007). He further submits that the persons who are appointed after coming into force of the Amendment Act of 2006, Section 10A will have no application.
21. In order to appreciate the contentions urged, it will be necessary to have regard to some of the relevant provisions of the Act. Section 3(ia) defines `Member’ to mean a Member (whether Judicial or Administrative) of a Tribunal, and includes the Chairman. Section 6 of the Act prescribes qualification for appointment as Chairman, Vice- Chairman and other Members. We may now trace somewhat vacillating steps by which Section 8 reached its present form. For immediate reference, we may set out Section 8 of the Act prior to and after its amendment by Act 1 of 2007. We may set out the two Sections in juxt a position. :
