REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 311 OF 2010

Shanker Raju ………….. Petitioner

Versus

Union of India …………..Respondent

J U D G M E N T

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

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years and was due to complete his second term of five years on

09.12.2010. 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

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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:

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(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.”

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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

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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 unamended

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 unamended

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

practising 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

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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

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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:

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“40. … 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) 4

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

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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.

9. 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.”

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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 quieta 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. Wearwell 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:

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“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

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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,

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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

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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

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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 juxta position. :

Section 8

(Before Amendment)

Section 8

(After Amendment)

8. Term of office. – The

Chairman, Vice-Chairman

or other Member shall hold

office as such for a term of

five years from the date on

which he enters upon his

office, but shall be eligible

for re-appointment for

another term of five years:

Provided that no Chairman,

Vice-Chairman or other

Member shall hold office as

such after he has attained, –

(a)in the case of the

Chairman or Vice-

Chairman, the age of

sixty-five years, and

(b)in the case of any

other Member, the

age of sixty-two

years.

8. Term of office. – (1) The

Chairman shall hold office as

such for a term of five years

from the date on which he

enters upon his office:

Provided that no Chairman

shall hold office as such after

he has attained the age of

sixty-eight years.

(2) A Member shall hold

office as such for a term of

five years from the date on

which he enters upon his

office extendable by one

more term of five years:

Provided that no Member

shall hold office as such after

he has attained the age of

sixty-five years.

(3) The conditions of service

of Chairman and Members

shall be the same as

applicable to Judges of the

High Court.

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22) Since some emphasis was laid on Section 10A of the Amended

Provision by the Amendment Act of 2006, we notice that provision

also and it reads as under:

“10A. Saving terms and conditions of service of Vice-

Chairman. – The Chairman, Vice-Chairman and Member of

the 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), 2006 be considered for fresh

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.”

23) Section 8 of the Act, prior to its amendment, provided for the

term of office of Chairman, Vice Chairman and other Members of the

Tribunal. By virtue of this provision, they would hold the office as

such for a term of five years from the date they enter upon such office.

However, they are eligible for re-appointment for another term of five

years. The proviso that is appended to the Section, provides some sort

of restriction of ‘age bar’ in the case of Chairman, Vice-Chairman and

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Members. The Chairman and Vice Chairman shall not hold their

offices as such after they have attained the age of sixty five years and

in the case of any other Member, he shall not hold office after the age

of sixty-two years.

24) Section 8 was amended by Act 1 of 2007. The amended

provision also provides the “Term of Office” of the Chairman and

Members of the Tribunal. From the language employed in the Section,

what we can decipher is that the Chairman of the Tribunal shall hold

office as such for a term of five years from the date on which he

enters upon his office. The proviso appended to the Section is

couched in the negative language. It states that a person appointed as

a Chairman cannot hold office as such after he has attained the age of

sixty eight years. Sub section (2) of Section 8 speaks of the term of

office of a Member of the Tribunal. It only says that a person

appointed as a Member of the Tribunal, if he is found eligible for the

post in terms of Section 6, shall hold office, for a term of five years. In

the normal course, this term of five years is extendable by a term of

another five years, giving a person a total term of ten years.

Continuation from 5 years to 10 years appears to be as a matter of

course subject to exceptions as provided in service law jurisprudence.

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Further, if such person has attained the age of 65 years, then he will

have to retire, irrespective of whether he has completed ten years in

office as a Member or not.

25) Prior to and after its amendment, Section 8 speaks of “Term of

Office”. In our view the Legislature has used this expression

consciously. The expression ‘Term’ signifies a fixed period or a

determined or prescribed duration. The word ‘term’ when used in

reference to the tenure of office, means ordinarily a fixed and definite

time. There is a distinction between the words ‘term’ and ‘tenure’ as

applied to a public officer or employee. The ‘term’, as applied to an

office, refers to a fixed and definite period of time. The word ‘tenure’

has more extended meaning than the word ‘term’ and ‘tenure’ of an

office means the manner in which the office is held especially with

regard to time.

26) The learned counsel Shri Narasimha submits that the

Legislature, while amending Section 8 of the Act, has not placed any

bar or embargo or any outer limit of number of years that can be

served by a Member of the Tribunal. Therefore, a Member of the

Tribunal who has served for ten years as a Member is still eligible to

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apply and participate in the selection process for being appointed as a

Member. Though the argument advanced looks attractive, but on a

deeper consideration, we find no merit in the contention canvassed by

the learned counsel. In our view, the language employed in the

Section does not admit any ambiguity. The language of the Statute is

clear and unambiguous. Section 8(1) of the Act provides the term of

office of Chairman of the Tribunal, which shall be five years from the

date he assumes his office. The proviso qualifies and carves out an

exception to the main enactment. The exception is, though a Chairman

can hold office as such for a term of five years, he cannot hold such

office after he attains the age of sixty-eight years. Sub-section (2) of

Section 8 of the Act provides the “Term of Office” of a Member of

the Tribunal. First part of the Section envisages that a member of the

Tribunal shall hold the office for a ‘term of five years’. The term as

applied to an office, refers to a fixed and definite period of time that

an appointee is authorised to serve in office. Alternatively, it can be

said that the term of office that is used by the Legislature could only

mean the period or limit of time during which the incumbent is

permitted to hold the office. The second part of the Section gives

discretion to the appointing authority to extend the term of office of a

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member of the Tribunal to one more term of five years. The

expression ‘extendable’, that finds a place in the sub-section, could

only mean that the term of office of an incumbent as a member of the

Tribunal can be extended if the parties agree. The proviso appended

to the sub-section again carves out an exception to the main provision

and restricts a member for holding office after he has attained the age

of sixty five years. The proviso takes care of a situation where a

member whose term of office is extended for a further period of five

years cannot hold such office if he has attained the age of 65 years

during the extended period of five years. A combined reading of both

parts of Section 8(2) of the Act clearly demonstrates that a member of

a Tribunal can hold such office for a fixed and definite period of time,

i.e. for a period of five years from the date on which he enters upon

his office and that period may be extended for one more term of five

years. What is contended before us by the learned counsel for the

petitioner is that there is neither prohibition nor any embargo for a

member who has completed 10 years as Member to participate in the

selection process for being appointed as a Member of the Tribunal for

another term of five years. This, in our opinion, is impermissible

since the total term that a person can hold the office of the Member of

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the Tribunal is only for a period of 10 years. In our view, if the office

is created by the Legislature under due authority, it may fix the term

and alter it. We can understand the heart burn of a person who has

served as Member of the Tribunal for ten years and thereafter, is

ineligible for being appointed as a Member of the Tribunal. We

cannot help this situation. In a court of law or equity, what the

legislature intended to be done or not to be done can only be

legitimately ascertained from what it has chosen to enact either in

express words or by reasonable and necessary implication. It is apt to

remember the words of Lord Salmon in IRC Vs. Ross Minister Ltd.

(1979) 52 TC 160 (HL). It is stated, “however, much the courts may

deprecate an Act, they must apply it. It is not possible by torturing its

language or by any other means to construe it so as to give it a

meaning which Parliament clearly intend it to bear.” We may also

add that where the Legislature clearly declares its intent in the scheme

of a language of Statute, it is the duty of the Court to give full effect to

the same without scanning its wisdom or policy and without

engrafting, adding or implying anything which is not congenial to or

consistent with such express intent of legislature. Hardship or

inconvenience cannot alter the meaning employed by the Legislature

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if such meaning is clear on the face of the Statute. If the Statutory

provisions do not go far enough to relieve the hardship of the member,

the remedy lies with the Legislature and not in the hands of the Court.

27) Section 10 A of the Amended Act is the saving clause. By

virtue of this Section, the Chairman, Vice-Chairman and Members of

a Tribunal appointed prior to the commencement of the

Administrative Tribunals (Amendment) Act, 2006, are to be governed

by the provisions of the unamended Act, and the rules made

thereunder, thereby their conditions of service are protected. The

proviso appended to the Section fell for discussion at the time of

hearing of the petition. According to Shri Venkataramani, learned

Amicus and Shri Narasimha, proviso to Section 10A of the Act

provides that the Chairman and Members appointed prior to coming

into force of the Amendment Act may, on completion of their term or

attainment of the age of sixty five or sixty two years, as the case may

be, be considered for a fresh appointment, provided they are eligible

in terms of Section 8 of the Amendment Act. The other condition that

requires to be satisfied is that the total term in the office of the

Chairman shall not exceed five years and that of the members ten

years. According to the learned counsel, reference of Section 8 in the

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proviso to Section 10A merely refers to the tenure and does not create

any ineligibility in a Member only because he has once completed the

tenure prescribed thereunder. We cannot agree with this contention.

The proviso, if read plainly, the only conclusion that could be reached

is that the Chairman and Members appointed prior to Amendment Act

1 of 2007 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. If they are eligible in terms of Section 8 of the

Amended Act that only means if a member has not completed 10

years term as a member of the Tribunal, he is eligible for fresh

appointment, provided he has not completed 65 years of age. The

proviso makes it abundantly clear that such fresh appointment could

be done provided they satisfy the criteria prescribed under the

amended Section 8 of the Act and further, it is made subject to the

condition that the total term of office of the Chairman shall not exceed

5 years and that of the Member, ten years.

28) Section 6 of the Act provides for qualification for appointment

as Chairman, Vice-Chairman and other Members. Section 8 of the

Amended Act provides for “Term of Office”. These provisions

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require to be read harmoniously. However, the learned counsel for

the petitioner wants us to read both these Sections separately, if so

read according to him, since the petitioner satisfies all the conditions

prescribed under Section 6(2)(b) of the Amended Act, the

requirements of Section 8 of the Act should not be put against the

Petitioner and make him ineligible for fresh appointment. It is

difficult for us to accept this argument. In our view, if the argument

now put forward is accepted, it would mean that the amendment

achieved no purpose whatsoever. Undoubtedly, the words of the

amendment, on their plain reading, are sufficient to hold that the term

of office of a Member of a Tribunal is 10 years and after completion

of 10 years, he does not superannuate but he goes out of the office. In

our view, the language of Section 10A is plain and unambiguous,

hence there is no need to call in aid any of the rules of construction.

We wish to add that the Constitutional validity of the proviso to

Section 10A pertaining to the eligibility of a Member for being

considered for a fresh appointment after completing his term of office

as a member was specifically pleaded in A.K. Behra’s case (supra)

and the Constitutional validity of the said proviso has been upheld by

the said decision in para 16 of the Judgment.

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29) Shri Narasimha, learned senior counsel, contends that a

member, who has completed a term of five years, can get an extension

of another term of five years. Even after completing a term of ten

years in office, he is still eligible for fresh appointment and this can

continue till such person attains the age of 65 years. He contends that

the embargo, if any, is on the tenure of a Member and not on the

person applying for the post of Member. The only embargo on such

person is the age limit prescribed by Section 8 of the Act. In support

of his contention, Shri Narasimha pointed out to the Court that one

Shri J.S. Dhaliwal was re-appointed as a Member of the Tribunal for a

fresh term, after completion of his 10 year tenure. However, the

learned ASG was quick to point out that the case of Shri Dhaliwal was

the only a stray case in which this had happened, and attributed this to

administrative lapses, rather than accede to the interpretation that a

Member was eligible for fresh appointment after completion of 10

years. We are inclined to agree with the learned ASG that the

appointment of Shri Dhaliwal for another term after completion of his

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10 year tenure is an exception and not the rule as Shri Narasimha has

put forth before us.

30) If we have to accept the construction suggested by Shri

Narasimha, then it would lead to a situation where a person who has

been a Member of the Tribunal for 10 years would have to start at the

bottom of the ladder as a fresh appointee. In that circumstance, those

persons who are appointed as Members such as the Petitioner, who

were till the previous day junior to persons such as the Petitioner,

would suddenly become senior to Members such as the Petitioner.

This would lead to an anomalous situation where a person who would

have presided over a Bench in the Tribunal for years, would suddenly

become the junior Member on the same Bench. This certainly cannot

be the intention of the Legislature. A statute is designed to be

workable, and the interpretation thereof by Court should be to secure

that object unless crucial omission or clear direction makes that end

unattainable. [see Nelson Motis Vs. Union of India & Anr. (1992) 4

SCC 711, Oswal Agro Mills Ltd. Vs. CCE, 1993 Supp. 3 SCC 316,

Omvalika Das Vs. Hulisa Shaw, (2002) 4 SCC 539, Natni Devi Vs.

Radha Devi Gupta, (2005) 2 SCC 271].

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31) This principle is stated in the case of Holmes v. Bradfield Rural

District Council, (1949) 1 All ER 381 at pg. 384, in which Finnemore,

J. held:

“The mere fact that the results of a statute may

be unjust or absurd does not entitle this Court to

refuse to give it effect, but, if there are two

different interpretations of the words in an Act,

the Court will adopt that which is just,

reasonable and sensible rather than that which is

none of those things.”

32) In the case of Tirath Singh v. Bachittar Singh,(1955) 2 SCR

457, this Court observed:

“5. …But it is a rule of interpretation well-established that,

“Where the language of a statute, in its ordinary meaning and

grammatical construction, leads to a manifest contradiction of

the apparent purpose of the enactment, or to some

inconvenience or absurdity, hardship or injustice, presumably

not intended, a construction may be put upon it which

modifies the meaning of the words, and even the structure of

the sentence..........”

33) In the case of Nasiruddin v. STAT, (1975) 2 SCC 671, this Court

held:

“27. …If the precise words used are plain and unambiguous,

they are bound to be construed in their ordinary sense. The

mere fact that the results of a statute may be unjust does not

entitle a court to refuse to give it effect. If there are two

different interpretations of the words in an Act, the Court will

adopt that which is just, reasonable and sensible rather than

that which is none of those things. If the inconvenience is an

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absurd inconvenience, by reading an enactment in its

ordinary sense, whereas if it is read in a manner in which it is

capable, though not in an ordinary sense, there would not be

any inconvenience at all; there would be reason why one

should not read it according to its ordinary grammatical

meaning. Where the words are plain the Court would not

make any alteration.”

34) Before we conclude, we intend to notice the statement made by

learned senior counsel that we need to place our interpretation on the

provisions of the Amended Act, which further principles of Judicial

independence. Reference is made to a passage from the book of an

American author, Laurence H. Tribe named “Constitutional Choices”. The

author, while offering his views on the topic “Entrusting Federal Judicial

Power to Hybrid Tribunals”, has stated:

“The independence of the federal judiciary is at least as

important a constitutional value today as it was when

Hamilton articulated the need for it in Federalist 78 and 79:

“{A}s liberty can have nothing to fear from the judiciary

alone, but would have everything to fear from its union with

either of the other departments;...{permanence in office} may

therefore be justly regarded as an indispensable ingredient in

its constitution, and, in great measure, as the citadel of the

public justice and the public security.: Next to life tenure,

Hamilton argued, “nothing can contribute more to the

independence of judges than a fixed provision for their

support..... [A] power over a man’s subsistence amounts to a

power over his will.”

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35) In our view, firstly, the passage from the book, referred to by

the learned senior counsel, pertains to the legal system in American Courts

and Hybrid Tribunals, which has nothing to do with our legal system.

Secondly, the statement relied on by the learned senior counsel is an extract

from the book of a jurist, which in our view has neither any persuasive value

nor legal binding on us. If the suggestion made by an American author suits

our legal system, it is for the Legislature to take note of it and at any rate not

for us. This Court, in the case of Kashmir Singh vs. Union of India (2008) 7

SCC 259 at page 273, has observed that “the doctrine of ‘independence of

judiciary’ has nothing to do when the tenure is fixed by a statute”. We are

in agreement with this view.

36) In view of the above discussion, we do not see any merit in this writ

petition filed under Article 32 of the Constitution of India.

37) Before parting with the case, we place on record our deep appreciation

for the assistance rendered by Shri Venkataramani, the learned Amicus

Curiae in understanding and appreciating the nuances of the controversy

involved in this petition.

38) For the foregoing reasons, we dismiss the petition. No order as to

costs.

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…………………

……J.

[D.K. JAIN]

.………………………J.

[H.L. DATTU]

New Delhi,

January 04, 2011.

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