Stuck between bad rules & no appointments, tribunals finally get much-needed judicial boost

No new judicial appointments have been made to tribunals since 2017 when the government first framed rules for a uniform appointment procedure to these quasi-judicial bodies.

The Supreme Court | Manisha Mondal | ThePrint

New Delhi: The Supreme Court judgment striking down certain provisions of the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021 is likely to end a four-year stalemate in judicial appointments to tribunals, which has been reeling under a vacancy crisis.

A three-judge bench led by Justice L.N. Rao Wednesday held that the rule prescribing a minimum age of 50 for appointment of lawyers to tribunals as judicial members was “arbitrary and discriminatory”.

The bench also noted that a judicial member’s tenure in a tribunal should be five years and not four, as mentioned in the ordinance.

The government, the court further said, must notify appointments within three months of receiving the recommendation or names from the selection committees.

Tribunals are quasi-judicial institutions that deal with a variety of disputes such as taxes, service matters, administrative decisions on the environment or commercial law among others. At present, there are 19 tribunals that are functional and each has a parent law that governs its operations. The primary objective of a tribunal is to streamline justice delivery by involving experts and making quicker decisions.

A tribunal bench is supposed to comprise one judicial member — a lawyer with requisite expertise — and an administrative member who can be a retired bureaucrat. There are multiple such benches in a tribunal.

However, no fresh judicial appointments have been made to any tribunal since April 2017.

4 years of litigation

The Wednesday judgment of the top court follows an almost four-year-long litigation process on three separate petitions against government rules on tribunals.

It began in April 2017 when the central government first framed rules that laid down a uniform procedure for the appointment, tenure and service of tribunal members.

The rules sought to curtail the tenure of a judicial member, restrict the age-related eligibility criteria for a lawyer who could have applied for the post, did away with House Rent Allowance (HRA) for such a member and allowed the Executive to remove a judicial member.

They also tweaked the constitution of the search-cum-selection committee, which recommended members to the tribunal, to allow more government nominees in the panel.

Consequently, the rules were viewed as an attempt by the government to gain the dominant hand in the appointment process of tribunal members and the rules were challenged in the Supreme Court.

In November 2019, a five-judge constitution bench quashed the rules and directed the government to reformulate them within six months, strictly conforming to the principles laid down by the top court to maintain the independence of tribunals.

However, in February 2020, the government came out with a set of new rules that made lawyers ineligible for the post of tribunal members. These rules were also questioned before the SC, which directed the government to modify them in November 2020.

In its judgment, the court laid down specific rules regarding appointments to tribunals, including allowing a lawyer with 10 years of experience to apply as a judicial member, increasing the tenure of the member from four to five years, fixing Rs 1.5 lakh as HRA for the tribunal chairman and Rs 1.25 lakh for the member. It also said that judicial members shall be considered for re-appointment after the end of their tenure.

The government then introduced a bill with these rules in February 2021 but later referred it to a standing committee.

Later, in April 2021, it promulgated the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021, which had provisions similar to the 2020 appointment rules that were declared invalid by SC.

The Madras Bar Association filed a petition in the apex court against the ordinance, submitting that it was an affront to the 2020 Supreme Court verdict. This week’s judgment was made on this petition.

The top court had earlier reserved its judgment on the petition and in the interim, the government amended the February 2020 rules, in consonance with the November 2020 Supreme Court judgment.

A common thread in all the three occasions the government rules were challenged in SC was the alleged excessive powers of the Executive when it came to the appointment and removal of tribunal members.

This, the three petitioners argued, would interfere with the independence of the judiciary, as tribunals are an integral part of the institution.

Judicial members blame govt for delay

Meanwhile, several lawyers practising in the tribunals blamed the government for dragging the litigation for four years.

“The government’s refusal to accept the earlier two SC verdicts, striking down the arbitrary rules, and, instead, re-introducing them through the Ordinance in April this year delayed the new recruitments. It has been a criminal wastage of court’s time,” a lawyer practising in the Central Administrative Tribunal told ThePrint.

“Induction of new members got stalled due to the pending litigation, even though there was never a stay on appointment procedure. This has led to a crisis in tribunals whose functioning has got jeopardised with rising number of cases and less members to hear them,” said a member of an Income Tax Appellate Tribunal (ITAT), who wished to remain unnamed.

Lawyers also noted that a few appointments were made to some bodies, but those were in response to vacancies that arose prior to 2017 and those also took place after SC’s intervention.

In its Wednesday judgment, the top court also addressed the vacancy crisis across multiple tribunals and urged the central government to expedite the process of appointments to  ensure swift and efficacious justice delivery.

The bench also specifically took note of the vacancies and pendency of cases in some tribunals to assert that appointments must be made within three months from the date of the selection committee’s recommendations.

In the National Company Law Tribunal, the bench noted, there were more than 21,000 cases pending, while there were only 38 members out of the sanctioned strength of 63.

Similarly, in the Armed Forces Tribunal, only 11 out of 34 posts are filled, while more than 18,800 cases are pending for disposal. In the Central Administrative Tribunal (CAT), which deals with service matters, there were only 36 members against a sanctioned strength of 65 and over 48,000 pending matters.

At the ITAT, there are only 66 members in office against a sanctioned strength of 138, with over 88,000 appeals pending there.

“The sheer volume of pendency is an indicator of the substantial judicial functions carried out by tribunals, necessitating that they be manned by efficient and well qualified judicial and technical members,” the bench said.

(Edited by Rachel John)