Report No. 272

B. Qualifications and Appointment

5.8. Section 6 of the Administrative Tribunals Act, 1985 prescribes the qualifications. As per this section, a person shall not be qualified as Chairman unless he is or has been, a Judge of a High Court. The Chairman and every other Member of the Central Administrative Tribunal are appointed after consultation with the Chief Justice of India by the President. The Chairman and every other Member of the Administrative Tribunals for a State or of Joint Administrative Tribunal are appointed by the President after consultation with the Governor of the concerned State. Whereas, according to the Administrative Tribunals (Amendment) Bill, 2012, the qualifying criteria has been laid down as:

'To make Judges of the Supreme Court eligible for appointment as Chairman, in the Central Administrative Tribunal, the State Administrative Tribunal and any Joint Administrative Tribunal and to bring uniformity in appointment of the Chairman and other Members of these Tribunals, following amendments are proposed to be made in the Act, namely:

(a) to amend subsection (1) of section 6 of the Act so as to provide that a person shall not be qualified for the appointment as Chairman unless he is, or has been, a judge of the Supreme Court or the Chief Justice of the High Court;

(b) to substitute sub-sections (3) to (5) of section 6 of the Act with new sub-sections so as to provide for consultation by the President with the Chief Justice of India and the Governor of the respective States, in the case of State Administrative Tribunal and Joint Administrative Tribunals in addition to consultation by the President with the Chief Justice of India in the case of appointment of Chairman and every other Member of the Central Administrative Tribunal.'

5.9 One of the Constitutional requirement as outlined by the Supreme Court in numerous decisions is that persons qualified in law, having judicial training and adequate experience should be appointed to these Tribunals was to dispense effective justice. Since the Tribunals are entrusted with the duty of adjudicating the cases involving legal questions and nuances of law, adherence to principles of natural justice will enhance the public confidence in their working. The Judicial Member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. The objective of having uniformity in the appointment system can be achieved if the appointments are made to the respective posts as indicated below:

i. A person is or has been a Supreme Court Judge or Chief Justice of the High Court as Chairman.

ii. A person who has been a judge of the High Court as Vice Chairman.

iii. A person who has been a High Court judge or an Advocate who is eligible to be appointed as a Judge of High Court as Judicial Member.

5.10 If the jurisdiction of a High Court was transferred to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court. Similarly, in case if the jurisdiction and the functions transferred were exercised or performed by District Judges, the Members appointed to the Tribunal should possess equivalent qualifications and commensurate the stature of District Judges. The Supreme Court- a five judge bench in the case of Madras Bar Association v. Union of India, (2014) 10 SCC 1. considered various important questions. The two important questions considered by the court were:

1. Whether the transfer of adjudicatory functions vested in the superior court (i.e, high court) to an alternative court/tribunal (NTT in the instant case) violates recognized constitutional conventions?

2. Whether while transferring jurisdiction to a newly created court/tribunal, it is essential to maintain the standards and the stature of the court replaced?

5.11 The first question was answered in negative and the second one in affirmative. The court held that the enactment of a legislation to vest adjudicatory functions earlier vested in a superior court with an alternative court/tribunal does not per se violate any constitutional provision. But then, the court emphatically stated that, "[T]he 'basic structure' of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted." The court made it clear that whenever legislation is enacted to transfer adjudicatory functions it shall be ensured:

1. All conventions/customs/practices of the court sought to be replaced have to be incorporated in the court/tribunal created.

2. The Members of a court/tribunal to which adjudicatory functions are transferred must be manned by judges/members whose stature and qualifications are commensurate to the court from which the adjudicatory functions have been transferred.

5.12 The court referring to its earlier decision in sub-para VII of para 15 observed as under:

'tribunals vested with judicial power should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The Members of the tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law, and competent to discharge judicial functions. Technical Members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise. where the adjudicatory process transferred to tribunals, did not involve any specialized skill, knowledge or expertise, a provision for appointment of Technical Members (in addition to, or in substitution of Judicial Members) would constitute a clear case of delusion and encroachment upon the independence of the judiciary, and the "rule of law". The stature of the members, who would constitute the tribunal, would depend on the jurisdiction which was being transferred to the tribunal.' [Emphasis added]

5.13 The Court further observed that, 'Technical Members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise.'

5.14 For the post of Technical Member/Expert Member, the Commission is of the view that an appointment to this post should comprise of person of proven ability, integrity and standing having special knowledge and professional experience or expertise of not less than fifteen years in the particular field, i.e., the field to which the Tribunal relates. Technical Member / Expert Member should be appointed only where the Tribunals are intended to serve an area which requires specialised knowledge or expertise or professional experience and the exercise of jurisdiction involves consideration of, and decisions into, technical or special aspects.

5.15 Administrative Members, if required, should be such persons who have held the post of the Secretary to the Government of India or any other equivalent post under the Central or State Government, carrying the scale of pay of a Secretary to the Government of India, for two years or an Additional Secretary to the Government of India or any other equivalent post under the Central or State Government, carrying the scale of pay of an Additional Secretary to the Government of India, having an experience of such post for three years.

5.16 The Commission is of the view that a Selection Board / Committee, headed by the Chief Justice of India or a sitting Judge of the Supreme Court, as his nominee and comprising two nominees of the Central Government not below the rank of Secretary to the Government of India, shall be constituted for appointment of Chairman, Vice- Chairman and Judicial members of the Tribunal. For selection of Administrative Member, Accountant Member, Technical Member, Expert Member or Revenue Member, there shall be Selection Committee headed by the nominee of the Central Government, to be appointed in consultation with the Chief Justice of India.

5.17 On scrutiny of the various legislations that provide framework for constitution of various Tribunals, it may be stated that most of them deprive the High Court of such jurisdiction and bestows it upon the Tribunal in specific areas. However, the provisions relating to qualifications of persons to be appointed as chairpersons/members to these tribunals, manner of appointment, duration of appointment, etc., do not conform to the standards laid down in Madras Bar Association (supra) and various other decisions. Furthermore, no provisions for protecting/safeguarding their independence are found in these enactments. On the contrary, some of the provisions, like vesting of administrative control, contained in these legislations make the tribunal subservient to the executive, whose dispute they are deciding.

5.18 As a rule of prudence, the Committee constituted for the selection of chairperson/ members of the tribunal shall not be headed by the Secretary to the Government of India, for the reason the Central Government is a party to every litigation before such tribunal.

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