)-

S.P. SAMPATH KUMAR ETC.

v.

UNION OF INDIA & ORS.

DECEMBER 9, 1986

[P.N. BHAGWATI, CJ!, RANGANATH MISRA, V KHALID, B

G.L. OZA AND M.M. DUTT, JJ.]

Administrative Tribunals Act, 1985: ss. 4, 5, 6 & 28-Exclusion of the

jurisdiction

of the High Court under Arts. 226 and 227 in service

matters­

C~nstllutional ·validity of-Chairman, Vice-Chairman and Members­

Qua/ifications and mode of appointment to make the TribunaJ equally

efficacious and effective alternative

to the High Court-Benches

pnd Circuits of C

Tribunal-Setting up of. .

Constitution of India, Arts. 226, 227, 32, 136, 323A and 368-Judicia/

review-Exclusion of-When permissible. •

Clause (1) of Art. 323-A, brought in by Constitution ( 42nd Amendment)

Act, 1976, authorised Parliament

to provide by law for the adjudication or trial

D

by administrative tribunals of disputes and

complaints; with respect to

recruitment and conditions of service of persons appointed to public services.

Clause (2)( d) of that Article envisaged exclusi1,1n of the jurisdiction of all courts,

except the jurisdiction

of the

Supreme Court under Art. 136 with respect to the E

disputes

or complaints referred to in cl. (1 ).

Section 28 of the Administrative Tribunals Act, 1985 originally enacted

within the ambit

of Art. 323-A, provided for exclusion of jurisdiction of the Supreme Court under Art. 32. The Act as amended by the Administrative

Tribunals (Amendment) Ordinance, 1986, replaced by Act No.19of1987 now F

saves the jurisdiction

of

Supreme Court both under Art. 32 in respect of original

proceedings as also ·under Art. 136 for entertaining appeals. Section 6(1) of the

Act which lays down qualifications

of

Chairman, states tha.t he should be or

have been (a) a Judge of a High Court, or (b) has for at least two years held

office of Vice-Chairman, or (c) has for at least two years held the post of ·

Secretary to the Government of India. Sub-section (2) provides that a Vice-G

Chairynan should be or have been (a) a Judge ofa High Court, or(b)for at least

two years held the post

of a

Secretary to the Government oflndia, or (bb) for at

least

five

years held the post of Additional Secretary to the Government of

India, or (c) for a. period of not less than three years held office as a Judicial

Member·of an Administrative Tribunal. Sub-section (3) states that the Judicial

Member (a) should or should have been qualified

to be a Judge of a High H

435

'

436 SUPREME COURT REPORTS [ 1987] 1 S.C. R.

A Court, or (b) has been a member of the Indian Legal Service, Grade 1; for at

least three years. Sub-section (3A) provides that a person to he appointed

as

Administrative Member (a) should

~ave for at least two years held the post of

Additional Secretary to ,the Government of India, or (b) has for at least three

years held the post of a Joint Secretary to the Government

of India.

B The petitioners in these writ petitions and transfer petitions challenged

the vires

of the 1985 Act. It was contended that the exclusion of the jurisdiction

of the High

Cou_rt under Arts. 226 anil 227 in service matters specified in s.28 of

the Act was unconstitutional and void, and that the composition of the

Tribunal and mode

of appointmmt of Chairman, Vice-Chairman and

. - -

Members

was outside the scope of the power conferred on Parliament under

C Art. 323-A.

D

Allowing the petitions in part, the Court,

By the

Court

HELD: It is the High Court which is being supplanted by Administrative

Tribunal. The office of Chairman of the Tribunal, therefore, for all practical

purposes should be equated with the o llice of the Chief Justice of a High Court.

Judicial discipline generated by experimce and training in an adequate dose is a

necessary qualification for that post.

It is thus essential that he should have been

E a Judge

of the High Court or he should have for at

le~sttwoyears held office as

Vice-Chairman. A person who has merely held the post

of Secretary to the

Government of India and who has no

le\:"l and judicial experience if appointed

Chairman would not only

fail to inspire confidence in the public mind but

would also render the Administrath e Tribunal a much

less effective and

efficacious mechanism than the High Court. Clause (c)

of s.6(1) of the Act,

F therefore, must be struck down

as imalid. [445 C, 455 DE, 445 ABE]

j.

Per Bhagwati, C.J.

1.1 Judicial review is a basic and essential feature of the Constitution and

no law passed by Parliament in exercis" of its constituent power can abrogate it

G or take it away. It is, however, 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 without

in any way violating the basic strudure doctrine, provided

it is no less

efficacious than the High Court. Theu it would be another authority which

would be exercising the power of judidal review with a

view to enforcing the

H

. constitutional limitations and maintaining the rule of law. [441 B, 443 BC]

,.

S.P. SAMPATH KUMAR v. UNION OF JNDIA 437

Minerva Mills Ltd. &·Ors. v. Union oflndia & Ors. [1981]1 SCR206, A

referred to.

1.2 Clause (2X d) of Art. 323-A specifically authorises the exclusion of the

jurisdiction

of the High Court under Arts. 226 and 227 by any

:aw made by

Parliament under cl.(l). If this constitutional amendment were to permit a law

to exclude the jurisdiction of the High Court under Art. 226 and 227 without

setting

up an effective alternative institutional mechanism or arrangement for

judicial review it would,be violative

of the basic structure doctrine and hence

outside the

·constitutent power of Parliament. It must, therefore, be read as

implicit in the amendment that such a law

to be constitutionally valid must not

leave a void but it must set

up another equally effective olternative outhority

and' vest the power of judicial review in it. [ 443

F, H, 44 A

_BJ

2.1 Whot is needed in a judicial tribunal which is intended to supplant the

High Court

is legal training and experience. Service matters which are removed

from the jurisdiction of the High Court under Arts. 226 and 227 and entrusted

to the Administrative Tribunal invariably involve questions

of interpretation

B

c

and applicability of Arts .. 14, 15, 16 and 311 which require for their D

determination not only judiciol approach but also knowledge and expertise in

this particulor branch

of constitutional law: [445 D, 444 D]

2.2 The Chairman of the Administrative Tribunal should be or

shouJd

have been a Judge of a High Court or he should have for at least two years held

office as Vice-Chairman.

It is the High Court which is being supplanted by the . E

Administrative Tribunol. Substituting the Chief Justice

of a High

Court by a

Chairmon of the Administrative Tribunal who has merely held the post

of a

Secretary

to the

Gcivemment of India and who has no legol or judicial

experience would not only fail

to inspire confidence in the public mind but

would also render the Administrative Tn'bunal a much less effective and

efficacious mechanism than the High

Court. Clause (c) of s.6(1) of the Act, F

therefore, must be struck down as invalid. [ 445 A, C, B, E]

3. Since the Administrative Tribunal has been created in substitution of

the High Court, its Vice-Chairman would be-in the position of a High Court

Judge. Therefore, a District Judge or an advocate who

is qualified to be a Judge

of the High Court should be regarded as eligible for being Vice-Chairman of the G

Administrative Tribunal. The provisions

of the Act in regard to the

composition of the Administrative Tribunal are weighted in favour of members

of the Services. This value discounting of the judicial members does have the

effect of making the Administrative Tribunal less effective

and efficacious than

the High Court. Unless an

amendm_ent to that effect is carried out on or before

31st March, 1987 the Act would have

to

be declared to be invalid because the H

438 SUPREME COURT REPORTS [1987] I S.C.R.

provision in regard to the composition of the Administrative Tribunal cannot

A be severed from the other provisions contained in the Aci. [445 F,

446 A,

445 G, 446 BJ

4.1 Under the Act the sole

an~ exclusive power to make appointment of ·

Chairman, Vice-Chairman and Administrative Members is conferred on the

B Government. No obligation

is cast on the Government to consult the Chief

Justice of India or to follow any

p•rticular selection procfdure in this behalf.

Total insulation

of the judiciary

from all forms of interference from the

coordinate branches

of Government is a basic essential feature of the

Constitution. In case

of High Com1 Judges the President cannot make any

appointment without consultation with the Chief Justice

of the High Court and

the ChiefJustice oflndia. This

check or safeguard is totally absent in the case of

C appointment of the Chairman, Vice-Chairman and Administrative Members

• of the Administrative Tribunal. If tti e Tribunal is created in substitution of the

High Court and the jurisdiction

of

tlile High Court under Arts. 226 and 227 is

taken away and vested in it, it is but ..Senti al that .the same iJ:!dependence from

possibility of executive pressure m· influence must also be ensured to the

o Chairman, Vice-Chairman and Members of the Tribunal.[4460,4470,B,EJ

4.2 The appointment of Chairman, Vice-Chairman and Administrative

Members, therefore, should be made by the concerned Government only after

consultation with the Chief Justice

of India and such consultation must be

meaningful and effective.

Alternqtively, a High Powered Selection Committee

headed by the Chief Justice

of India or a sitting Judge of the

Supreme Court or

E concerned High Court nominated by the Chief Justice of India may be set up

for making these appointments.

If

ei11her of these two modes of appointment is

adopted, it would save the impungecl Act from invalidation. Otherwise, it'will

be outside the scope of the power conferred on Parliament under Art. 323-A.

[447

F, G, 448 B]

F 5. The Government should se1 up a permanent bench and if that is not

feasible having regard

to the volume of work, then at least a circuit bench of the

Administrative

TribuJ:!al wherever th('re is a seat of the High Court on or before

31st March 1987 so that the provisions

of the Act could be

SI/stained. [448 DJ

6. Judgment to operate only prospectively and not to invalidate

G appointments already made. [448

BJ

Per Ranganath Misra, J.

I. The Administrative Tribunal Act, 1985, as amended by Act No. 19 of

1986 saves jurisdiction of the Suprem1' Court both under Article 32 in respect of

original proceedings as also under Article 136 for entertaining appeals. There is

H thus a forum where matters of importance and grave injustice can be brought

)(

_)--

S.P. SAMPATH KUMAR v. ·UNION OF INDIA 439

for determination or rectification. The exch1sion of the jurisdiction of the High A

Court, therefore, does not totally

bar judicial review. [451 C, 453 A)

2.1

It is open

to Parliament to make effective alternative institutional

mechanisms

or arrangements in place of the High Court for providing judicial

review. But such an authority or tribunal must

be a worthy successor and real

substitute of the High

Court-not only in form and de jure but in content and B

de facto so as to be effective and efficient as also capable of upholding the

constitutional limitations enshrined in Articles 14, 15

and 16 of the

Constitution. [453 B, 454 C, 453 E)

2.2 The Tribunal under the scheme

of the Act has been contemplated as a

substitute

and not as supplemental to the High Court. It is not designed as an C

additional froum

from where parties could go to the High Court. Under ·.s. 14 and

15 of the Act all the powers of the Courts, except those 'of the Supreme Court, in

regard

to matters specified therein vest in the Tribunal-either Central or

State.

Barring of the jurisdiction ·or the High Court under Arts. 226 and 227 cannot,

therefore, be said

to be ultra vires the Constitution. [443 CD, FG, 449 A)

Minerva Mills Ltd. &

Ors. v. Union of India & Ors., [1981} 1 SCR 206,

287 and K.K Dutta v. Union of India, [1980) 3 SCR 811, referred to.

D

3.1 The Office of Chairman of the Tribunal should for all practical

purposes be equated with the office of Chief Justice of a High Court. Judicial

discipline generated by experience

and training in an adequate dose being a E

necessary qualification for that post, 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. In order that the

Tribunal ,may

be acceptable to the litigants, who .. are themselves members of the

various Services, therefore,

s.6(1 )( c) of the Act, which makes a Secretary to the

Government

of India also eligible for the post of Chairrnan, should be omitted. F

[455

D-F)

3.2 The selection of Vice-Chairrnan and Members, when it is not of a

sitting Judge

or retired Judge of a High Court, should be done by a high

powered committee . with a sitting Judge

of the

Supreme Court, to be

nominated by the Chief Justice of lndia, as its Chairrnan. This will ensure G

selection

of proper and competent people to man these high offices of trust and

help to build

up reputation and acceptability. The Central Government to bring

the provisions

of the Act in .accord within a reasonable time not beyond March

31, 1987.

Or else, the constitution of Tribunal as a su!Jstitute of the High Court

would be open

to challenge. [ 455 G, 456 A, HJ

3.3 The judgment to operate prospectively and not to affect

the H

440 SUPREME COURT REPORTS [1987] I S.C.R.

A appointments already inade to the office of Vice-Chairman and Members. ";I'

[456 B]

4. The term of five years prescribed under s.8 of the Act for Chairman,

Vice-Chairman and Members of the Tribunal requiring them to retire at the

end of it is too short, which is neith~ r convenient to the person selected for the

B job nor expedient to the scheme. When amendments to the Act are undertaken

this aspect of the matter deserves to be considered. [ 456 C, F, G]

ORIGINAL,JURISDICTION: Writ Petition No. 12437 of 1985 etc.

(Under Article 32 of the Con:;titution of India)

C Raju Ramachandra, Mukul Mudgal, Mrs. R. Ramachandran,

N.J. Mehta, P.H. Parekh, D. Krishnamurthy, K.N. Rai, K.R. Nagaraja, Ms.

Malinio Poduval, N.N. Verma, S.K. Bhardwaj and P.O. Sharma for the

Petitioners.

D K.'Parasaran, Attorney General, V.P. Sarthy and Ms. A. Subhashini for

E

the Respondents.

S.K. Sinha and S.K. Verma for the Respondents.

The Judgment of the Court was delivered by

BHAGW ATI, CJ. I am in entire agreement with the judgment prepared

by my learned brother Ranganath Misra, but since the questions involved in

these writ petitions are of seminal importance affecting

as they do, the

structure of the judicial system

and the principle of independence of the

F Judiciary, I think I would be failing in my duty if! did not add a few words of

my own,

There are two questions which arise for consideration in these writ

petitions and they have been succinctly set out in the judgment of Ranganath

Misra,

J. The first question is

wheth<:r the exclusion of the jurisdiction of the

G High Court under Articles 226 and 2:17 of the Constitution in service matters

specified in section

218ofthe

Admini,;trative Tribunals Act, 1985 (hereinafter

referred to

as the impugned Act)

and the vesting of exclusive jurisdiction in i,

such service matters in the AdministrativeTribuool to be constituted under the

impugend Act, subject .to an exception in favour of the jurisdiction

of this

Court under Articles

32 and 136, is unconstitutional and void and in any event,

H even if the first question be answered against the petitioners and in favour of

S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 441

~

the Government, the second question required to be considered is, whether the

A

composition of the Administrative Tribunal and the mode of appointment of

Chairman, Vice-Chairmen and members have the effect of introducing a

constitutional infirmity invalidating the provisions of the impugned Act. I

agreed with the answers given to th~'5e questions in the judgment of Ranganath

Misra,

J.

I would articulate my reasons as follows:-

..

It is now well-settled as a result of the decision of this Court in Minerva

B

Mills Ltd. & Others v. Union of India and Ors. [1981] 1 S.C.R. 206 that

judicial review

is a basic and essential

featl)re of the Constitution and no law

}-

. passed by Parliament in exercise of its constituent powe1 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

c

constitutional

schem_e that 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.

It is a limited Government

which we have under the

Constitution and both the executive and the legislature have

to act within the

limits of the power conferred upon them under the Constitution. Now a

question may arise as

to what are the powers of the executive and whether the D

executive has acted within the scope of its power.

Such a question obviously

cannot bC left to the executive to decide and for two very good reasons. First,

the decision of the question would depend upon the interpretation of the

Constitution and the laws and this would pre-eminently be a matter

fit to be ..

decided by the judiciary, because it is the judiciary which alone would be

I

possessed of expertise in this field and secondly, the constitutional and legal E

protection afforded to the citizen would become illusory, if it were left to the

executive

to determine the legality

·of its own action. So also if the legislature

~ makes a law and a dispute arises whether in makingthe law, the legislature has

acted outside the area of its legislative competence or the la\.: is violative of the

'

fundamental rights or of any other provisions ,of the~ C<?nstitution, its

·~

resolution cannot, for the same reasons, be left to the determination of the F

._

legislature. 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 G

power conferred on each branch of Government, .\vhat are the limits on the

.}

exercise of S!-Jch power und~r 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 po\ver by the executive or any other

authority must not only be conditioned by the Constitution but also be in H

442 SUPREME COURT REPORTS [ 1987] I S.C. R.

A 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

Jf judicial review which is a most potent

weapon in the hands of the judiciary for maintenance

of the rule of law. The

B power of judicial review

is an intei•;al part of our constitutional system and

without it, tjlere will be no Government of laws and the rule of law would

become a teasing illusion and a promise of unreality. That

is why I observed in

my judgment in Minerva Mills

ltd. case (supra) at pages 287 and 288:-,

c

D

E

F

G

H

"! am of the view that if there is one feature of our Constitution

which, more than any other, is basic and fundamental to the

maintenance of dem•>cracy and the rule of law, it is the power

of judicial review and it

is

unriuestionably, to my mind, part of

the basic structure of the Constitution. Of course, when I say

this I should not

be taken to suggest that however effective

alternative institutional mechanisms

or arrangements for

judicial review cannot be made by

Parliament. But what I wish

. to emphasise is that judicial review is a vital principle of our

Constitution and it cannot be abrogated without affecting the

basic structure of the Constitution.

If by a Constitutional

amendment, the power of judicial review

is taken away and it is

provided that the validity of any law made by the legislature

shall not be liable to

be called in question on any ground; even

if it

is outside the legislative competence of the legislature 'or is

violative of any fundamental rights, it would be nothing short

of subversion of the Constitution, for it would make a

mockery of the distribution

of legislative powers between the

IJ nion and the States and r~nder the fundamental rights

meaningless and futile.

So also if a constitutional amendment is

made which has the effect of taking

it way the power of judicial

review and providing that no amendment made in the

Constitution shall be liable to be.questioned on any ground,

even if such amendrr_ent is violative of the basic structure and,

therefore, outside the amendatory power of Parliament, it

would be making P:o.rliament sole judge of the constitutional

validity of what it has done and that would, in effect and

substance, nullify the limitation on the amending power

of

Parliament and affect the basic structure of the Constitution.

The conclusion must therefore inevitably follow that clause (4)

of the Article

368 is unconstitutional and void as damaging the

basic structure of

the Constitution."

!

-)-

i

S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 443

It is undoubtedly true that my judgment in Minerva Mills Ltd. case (supra) was A

a minority judgment

but so far as this aspect is concerned, the majority Judges

also

took the same view and held that judicial review is a basic and essential

feature

of the Constitution and it cannot be abrogated without affecting the

basic structure

of the Constitution and. it is equally clear from the same decision

that though judicial review cannot be altogether abrogated by Parliament by

amending the Constitution in exercise of its constituent

power, Parliament can B

certainly, without in any way violating the basic structure doctrine, set up

effective alternative institutional mechanisms or arrangements for judicl.al

review. 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 C

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 D

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.

Here, in the present case, the impugned Act has been enacted by

Parliament in exercise

of the power conferred by clause

(I) of Article 323A

which was introduced

in the Constitution by Constitution (42nd Amendemnt)

Act,

1976.

Gause (2) (d) of this Article provides that a law made by Parliament

under clause

(1) may exclude the jurisdiction of courts, except the jurisdiction of

the Supreme Court under Article 136,.with respect to the disputes or complaints

referred

to in clause (!). The exclusion of the jurisdiction of the High Court

under Articles 226

and 227 by any

l~w made by Parliament under clause ( 1) of

Article 323A is, therefore, specifically authorised by the constitutional

amendment enacted in clause (2) (d)

of that Article. lt is clear from the

discussion in the preceding paragraph

that this constitutional amendment

authorising exclusion

of the jurisdiction of the High Court under Articles 226

and

227 postulates for its validity that the law made under clause (1) of Article

323A excluding the jurisdiction

of the High Court under Articles 226 and 227

must provide for an effective alternative institutional mechanism or authority

for judicial review. If this constitutional amendment were to permit a law made

under clause

(I) of Article 323A to exclude the jurisdiction of tile High Court

under Articles

226 and 227 without setting up an effective alternative

E

F

G

H

A

B

c

D

E

F

G

H

444

SUPREME COURT REPORTS [1987] I S.C.R.

institutional mechanism or arrangement for judicial review, it would be

violative of the basic structure doctdne and hence outside the constituent power

of Parliament.

It must, therefore, be read as implicit in this constitutional

amendment that the law excluding the jurisdiction of the High Court under

Articles 226 and

227 permissible

under it must not leave a void but it must set up

another

effective institutional mechanism or authority and vest the power of

judicial review in it. Consequently,

the impugned Act excluding the jurisdiction

of the High Court under Articles 2:26 and 227 in respect of service matters and

vesting such jurisdiction in the Administrative Tribunal can pass the test of

constitutionality as being within the ambit and coverage of clause

(2) (d) of

Article 323A, only if it can

be shown that the Administrative Tribunal set up

under the impugned Act is equally

,efficacious as the High Court, so far as the

power of judicial review over service matter is concerned. We must, therefore,

address ourselves to the question whether the Administrative Tribunal

established under the impugned Art can be regarded as equally effective and

efficacious in exercising the power or judicial review as the High Court acting

under Articles

226 and 227 of the

Constitution.

It is necessary to bear in mind that service matters which are removed

from the jurisdiction uf. the High Court under Articles 226 and 227 of the

Constitution and entrusted to the ,'\d1ninistrative Tribunal set up under the

impugned Act for adjudication involve questions of interpretation and

applicability of Articles

14, 15, 16 and

311 in quite a large number of cases.

These questions require for their determination not only judicial approach but

also knowledge and expertise

in

this particular branch of constitutional law. It

is necessary that those who adjudicate upon these questions should have same

modicum of legal training and judicial experience because

we find that some of

these questions are so difficult and complex that they baffle the minds of even

trained

Judges in the High Courts and the Supreme Court. That is the reason

why at the time of the preliminary hearing of these writ petitions

we insisted that

every bench of the Administrative Tribunal

sh.ould consist of one judicial

member and one administrative member 'and there should be no

preponderance of administrative

n1embers on any bench. Of course, the

presence of the administrative menber would provide input of practical

experience in the functioning of the services and add to the efficiency

of the

Administrative Tribunal but the legal input would undeniably be more

important and sacrificing the legal input or not giving it sufficient weightage

would definitely impair the efficacy and effectiveness of the Administrative

Tribunal as compared

to the High Court. Now section 6 provides that the

Chairman of the Administrative Tribunal should be or should have been a

Judge of the High Court or he should have for at least two years held office of

Vice-Chairman or he should have for

at least two years held the post of

-

. ~

r

•

I

S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 445

Secretary to the Government of India or any other post under the Central or A

State Government carrying a scale

of

pay which_ is not less than that of a

Secretary to the Government of India. I entirely agree with Ranganath Misra, J.

tr.at the Chairman of the Administrative Tribunal should be or should have

beon" Judge of a High Court or he should have forat least two years held office .

as Vice-Chairman. If he has held office as Vice-Chairman for a period of at least

two years he would have gathered sufficient experience

and also within such B

period

of two years, acquired reasonable familiarity with the constitutional and

legal questions involved in service matters,

But substituting the Chief Justice of

a High Court by a Chairman

of the Administrative Tribunal who has merely

held the post

ofa Secretary to the Government and who has no legal or judicial

experience would not only fail to inspire confidence in the public mind but

would also render the Administrative Tribunal a much

less effective and

. C

efficacious mechanism than the,High Court. We eannot afford to forget that it .

i~ the High Court which is being supplanted by the Administrative Tribunal

and it must be so manned as tp 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

D

cast any reflection on the members of the "Civil Services because fortunately we

have, in our country, brilliant civil servants who possess treme~dous 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

suppbnt the High Court is legal training and

experience. I am, therefore,

of the view, in agreement with Ranganath Misra, J.

E

that clause (c) of section 6 (1) must be struck down as invalid.

• I also fail to see why a District Judge or an advocate who is qualified to ./

be a Judge of a High Court should not be eligible to be considered for

appointment as Vi=Chairrnan of the .Administrative Tribunal. It may be

. noted that since the Administrative Tribunal has been created in substitution F

of the High Court, the Vice-Chairman of the Administrative Tribunal would

be in the position

of a High Court Judge and if a District Judge oran advocate

·

qualified to be a Judge of the High Court, is eligible to bea IJighCotirtJudge; ·

there is no reason why he should not equally be eligible to be a Vice-Chairman

of the Administrative Tribunal. Can the position of a Vi=Chairman of the

Administrative Tribunal be considered higher than that ofa Hig.'1 Court Judge G

so that a person who

is eligible to be a High Court Judge may yet be regarded

as ineligible for becoming a

Vi=Chairman of the Administrative Tribunal? It

does appear that the provisions of the ;mpugned Act in regard to the

composition of the Adnlinistrative Tribunal · · ; a little weighted in favour of

members of the Services. This weightage in favour of the members of the

·Services and value-discounting of the judicial members does have the effect of H

446 SUPREME COURT REPORTS (1987] I S.C.R.

A making the Administrative Tribunal less effective and efficacious than the

High Court. I would therefore suggest that a District Judge or an Advocate

who

is qualified to be a Judge of the High Court s

1

1ould be regarded as eligible

for being Vice-Chairman of the

AdministratiYe Tribunal and unless an

amendment to that effect

is carried out on or

b·,fore 31st March, 1987, the

B impugned Act would have to be declared to

be invalid, because the provision ·in regard to composition of the Administrative Tribunal cannot be severed

from the other provisions contained

in the impugned Act.

c

That takes me to another serious infirmity in the provisions of the

impugned Act in regard to the mode of appoin:ment of the Chairman, Vice­

Chairman and members of the Administrat

1ve Tribunal. So far as the

appointment of judicial members of the Admini >trative Tribunal is concerned,

there

is a provision introduced in the impugned Act by way of amendment that

the judicial members shall be appointed

by the Government concerned in

consultatio.n with the Chief Justice

of India. Obviously no exception can be

taken to this provision, because even so far as Judges of the High Court are

D concerned, their appointment

is required to be made by the President inter alia

in consultation with the Chief Justice of India. But so far as the appointment

of Chairman, Vice-Chairmen and administrative members is

concerned, the

sole and exclusive power to make such appointment is conferred on the

Government under the impugned

Act.

The·:e is no obligation cast on the

Government to consult the Chief Justice of India or to follow any particular

E selection procedure in this behalf. The result

is that it is left to the absolute

unfettered discretion of the Government to appoint such person or persons as

it likes

as Chairman, Vice-Chairman and administrative members of the

Administrative

Tribun~l. 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

F 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

h_ave

to depend on the goodwill and favourabk stance of the executive and that

would be likely to affect tile independence and impartiality of the members of

G the Tribunal. The same would be the position vis-a-vis promotion to the office

of Chairman of the Administrative Tribi..nal. 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

H

· promotion vested in the executive cim have prejudicial effect on the

-~--

S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATJ, C.J.] 447

independence of the Chairman, Vice-Chairmen and members of the A

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.

That is the reason why in case of appointment of B

High Court Judges,

the power of appointment vested in the executive is not an

absolute unfettered power but

it is hedged in by a wholesome check and

safeguard and the President cannot make an appointment of a High Court

Judge without consultation with the Chief Justice

of the High Court and the

Chief Justice

of India and a healthy convention

has grown up that no

appointment would be made by the Government which

is not approved by the C

Chief Justice of India. This check or

safeg1:1ard is totally absent in the case of

appointment of the Chairman, Vice-Chairmen and administrative members

of the Administrative Tribunal and the possibility cannot be ruled out­

indeed the litigating public would certainly carry a feeling-that the decision­

making process

of the Chairman, Vice-Chairmen and

·members of the

Administrative Tribunal might be likely to

be affected by reason of D

dependence on the executive for appointment and promotion. It can no longer

be disputed that total insulation of the judiciary from all forms of interference

from the coordinate branches of Government

is a basic essential feature of the

Constitution. The Constitution makers have made anxious provision to

secure

tOtal independence of the judiciary from executive pressure or

influence. Obviously, therefore if the Administrative Tribunal is created in E

substitution of the High Court and the jurisdiction of the High Court under

Articles

226 and 227 is taken away and vested in the Administrative Tribunal,

tlie same independence from possibility of executive pressure or influence must

also be ensured to the Chairman, Vice-Chairmen and members of the

Administrative Tribunal.

Or else the Administrative Tribunal would cease to be

an equally effective and efficacious substitute for the High Court. and the F

provisions of the impugned Act would be rendered invalid. I am, therefore, of

the

view that the appointment of Chairman, Vice-Chairmen and administrative

members should

be made by the concerned Government only after

consultation with the Chief Justice of India and such consultation must be

meaningful' and effective and ordinarily the recommendation of the Chief

Justice of India must

be accepted unless there are cogent reasons, in which event G

the reasons must

be disclosed to the Chief Justice oflndia and his response must

be invited to such reasons. There

is also another alternative which may be

adopted by the Government for making appointments of Chairman, Vice­

Chairmen and members and that may

be by setting up a High Powered

Selection Committee headed by the Chief Justice

oflndia or a sitting Judge of

the Supreme Court or concerned High Court nominated by the Chief Justice of H

A

B

c

448 SUPREME COURT REPORTS [1987] I S.C.R.

India. Both these modes of appointment will ensure selection of proper and

competent persons to man the Administrative Tribunal and

give it prestige and

reputation which would inspire confidence in the public mind in regard to the

competence, objectivity and impartiality of those manning the Administrative

Tribunal.

If either of these two modes of appointment is adopted, it would save

the impugned Act from invalidation. Otherwise, it

will be outside the scope of

the power conferred

on Parliament under A!.ticle 323-A. I would, however

hasten to add that

this judgment will operate only prospectively and will not

invalidate appointments already made to the Administrative Tribunal. But if

any appointments of Vice-Chairmen or administrative members are to

be made

hereafter, the same shall

be made by the Government in accordance with either

of the aforesaid two modes of appointment.

I may also add that if the Administrative Tribunal

is to be an equally

effective and efficacious substitution for the High Court on the basis of which

alone the impugned Act

.:an be sustained, there must be a permanent or if there

is not sufficient work, then a Circuit Bench ~f the Administrative Tribunal at

o every place where there is a seat of the High Court. I would, therefore, direct the

Government to set up a permanent bench and if that

is not feasible having

regard to the volume of work, then

at least a Circuit Bench of the

Administrative Tribunal wherever there

is a seat of the High Court, on or

before

31st March, 1987. That would be necessary if the provisions of the

impugned Act are to be sustained. So far a< rest of the points dealt with in the

E judgment of Ranganath Misra, J. are concerned, I express my entire

agreeement with the

view taken by him.

F

G

H

RANGANATH

MISRA J: The challenge raised to the vires of the

Administrative Tribunals Act,

1985, (hereinafter referred to as

1he Act) in an

application under Article 32 of the Constitution and the other connected

matters has been referred to the Constitution Bench for adjudication.

Indisputably the Act has been framed within the ambit of Article 323A which

was brought into the Constitution by th'' Forty-Second Amendemnt Act in

1976. In exercise of power vested under Section 1(3) of the Act, the Central

Government appointed 1.11.1985

as the date from which the Act would come

into force. Thereupon Sampat Kumar

and others (W.P. 12460 of 1985) moved

this Court and the connected matters were brought before this Court

or

different High Courts which have since been transferred to this Court to be

analogously heard.

On 31.10.1985 a Div'.sion Bench of this Court gave certain

interim directions including stay of tram.fer of the pending applications under

Article

32 which were liable to be transferred to the Tribunal and also for

continuance

of exercise of jurisdiction under Article 32 in regard to disputes

covered under the Act notwithstanding the bar provided in Section

28.

·--\. -

S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 449

In the writ applications as presented the main challenge was to the

A

abolition of the Jurisdiction of this Court under Article 32 .in r£spect of

specified service disputes. Challenge was also raised against the taking away of

the jurisdiction of the High Court under Articles 226 and 227. It was further

canvassed that establishment of benches of the Tribunal

at ·Allahabad,

·Bangalore, Bombay, Calcutta, Gauhati, Madras. and Nagpur with the

principal seat at Delhi' would still prejudice the parties whose cases were B

already pending before the respective High Courts located at places other than

. these places and unless

at the seat of every High Court facilities for

presentation of applications and for hearing thereof were provided the parties

and their lawyers would

be adversely affected. The interim order made on

October 31, 1985, made provisions to meet the working difficulties. Learned

Attorney General on behalf of the Central Government assured the Court that

early steps would

be taken to amend the law so as to save the jurisdiction under C

Article

32, remove other minor anomalies and set up a bench of the Tribunal

at the seat of every High Court.

By the Administrative Tribunals

(Amendment)

Ordinance, 1986, these amendments were brought about and

by now

an appropriate Act of

Parliament has replaced the Ordinance. Most of

the original grounds of attack thus do not survive and the contentions that. D

were canvassed

at the hearing by the counsel appearing for different parties are

these:

(I) Judicial review is a fundamental aspect of the basic

structure of our Constitution and bar of the jurisdiction of the

High Court under Articles

226 and 227 as contained in Section E

28 of the Act cannot be sustained;

·

(2) Even if the bar of jurisdiction is upheld, the Tribunal being a

substitute of the High Court, its constitution and set up should

be such that

it

would in fact function as such substitute and

become an institution in which the parties could repose faith F

and trust;

(3) Benches of the Tribunal should not only be established at the

seat of every High Court but should be available at every place

where the High Courts have permanent benches;

G

( 4)

So far as Tribunals set up or to be set up by the Central or the

State Governments are concerned, they should have no

jurisdiction in respect of employees

of the Supreme Court or

members of the subordinate judiciary and employees working in

such establishments inasmuch as exercise

of jurisdiction of the

Tnbunal would interfere with the control absolutely vested in H

A

450 SUPREME COURT REPORTS [1987] I S.C.R.

the respective High Courts in regard to the judicial and other

subordinate officers under Article

235 of the Constitution.

After oral arguments

were over, learned Attorney General, after

obtaining instructions from the Central Government filed a memorandum to

B the effect that section

2( q) of the Act would be suitably amended so as to

exclude officers and servants

in

tLe employment of the Supreme Court and

members and staff of the subordinatejudiciary from the purview of the Act.

in

the same memorandum it has also been said that Government would arrange

for sittings

of the benches of the

·:~ribunal at the seat or seats of each High

Court on the basis that 'sittings'

will include 'circuit sittings' and the details

C thereof would be worked out

by the Chairman or the Vice-Chairman

concerned.

D

E

F

G

H

With these concessions made by the learned Attorney General, only two

aspects remain to be dealt with

by us, namely, those covered by the first and

the second contentions.

Strong reliance was placed on the judgment of Bhagwati, J (one of us­

presently the learned Chief

Justice) in Minerva Mills Ltd. & Ors. v. Union of

India & Ors., [1981] l SCR 206, 287 where it was said:

"The power of judicial review is an integral part of our

constitutional system and without it, there will be no

Government of laws and the rule of law would become a

teasing illusion and ;1 promise ofunreality. I am of the vie"· that

if there is one featur'' of our Constitution which, more than any

other,

is basic and fundamental to the maintenance of

democracy and the rule of law,

it is the powerofjudicial review

and it

is unquestionably, to my mind, part of the basic structure

of the Constituion.

Of course, when I say this I should not be

taken to suggest tha-:, however effective alternative institutional

mechanisms or arrangements for judicial review cannot be

made by Parliament. But what I wish to emphasise is that

judicial review is a vital principle of our Constitution and it

cannot be abrogated without affecting the basic structure of the

Constitution. If-by 1 constitutional amendment, the power of

judicial review is taken away and it is provided that the validity

of any law made by the Legislature shall not be liable to be

called in question on any ground, even if it is outside the

legislative competence

of the Legislature or is violative of any

.·~·,

_}

S.P. SAMPATH KUMAR v. UNION OF INDlA [MISRA, J.] 451

fundamental rights, it would be nothing short of subversion of A

the Constitution, for it would make a mockery of the

distribution of legislative powers between the Union and the

States and render the fundamental rights meaningless and

futile. So also if a constitutional amendment is made which has

the effect of taking away the power of judicial review."

Article 32 was described by Dr. Ambedkar in course of the debate in the

Constituent Assembly

as the 'soul' and 'heart' of the Constitution and it is in

recognition of this position that though Article 323A(2)(d) authorised

exclusion of jurisdiction under Article

32 and the original Act had in

Section

B

28 provided for it, by amendment jurisdiction under Article 32 has been left

untouched. The Act thus saves jurisdiction of this Court both under Article

32 C

in respect

of original proceedings as also

1111der Article 136 for entertaining

appeals against decisions of the Tribunal on grant of Special Leave. Judicial

review by the apex court has thus been left in tact.

The question that arises, however, for consideration

is whether bar of

jurisdiction under Articles

226 and 227 affects the provision for judicial review. D

The right to move the High Court in its writ jurisdiction-unlike the one under

Article 32,

is not a fundamental right. Yet, ihe High Courts, as the working

experience of three and a half decades shows have in exercise

of the

power of

judicial review played a definite and positive role in the matter of preservation

of fundamental and other rights and in keeping administrative action under

reasonable control. In these thirty-six years following the enforcement of the

Constitution, not only has India's population been more than doubled

but

also the number of litigations before the courts including the High Courts

has

greatly increased. 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

E

F

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· G

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. In certain

States, Tribunals H

of this type came into existence and started functioning. But the Central

A

B

c

D

E

F

452 SUPREME COURT REPORTS [1987] I S.C.R.

Government looked into the matter further as it transpired that the major

chunk

of service litigation related to matters other than disciplinary action. In

May

1976, a Conference of Chief Secretaries of the States discussed this

problem. Then ·came the Forty-Second Amendment of the Constitution

bringing

in Article 323A which authorised Parliament to provide by law

"for

the adjudication or trial by administrative tribunals of disputes and

complaints with respect to recruitment ar:d conditions of service of persons

appointed to public services and posts

in connexion with the affairs of the

Union or of any

State or of any local or ot"ler authority within the territory of

India or under the controt of the Government of India or of any Corporation

owned or controlled

by the

Government." As already stated this Article

envisaged exclusion of the jurisdiction

of

111 courts, except the jurisdiction of.

the Supreme Court under Article 136, with respect to the disputes or

complaints referred to

in clause (I). Though the Constitution now contained

the enabling power, no immediate steps were taken to set up any Tribunal as

contemplated

by Article 323A. A

Consfr:ution Bench of this Court in K.K.

Dutta v. Union of India, (1980] 3 SCR HI I observed:

"There are

few other

litig,ative areas than disputes between

members of various services inter se, where the principle that

public policy requires that all litigation must have an end can

apply with greater force. Public servants ought not to be driven

or required to dissipate their time and energy in court-room

battles. Thereby their a!':ention is diverted from public to

private affairs and their

inter se disputes affect their sense of

oneness Without

which DC• institution can function effectively.

The constitution

of

Servke Tribunals by State Governments

with

an apex Tribunal at the Centre which in the generality of

the cases, should be the final arbiter

of controversies relating to

conditions of service, including the vexed question of seniority,

may save the couris frorr the avalanche of writ petitions and

appeals in service

matters. The proceedings of such Tribunals

can have the merit

of

informality and if they will not be tied

down to strict rules of evidence, they might be able to produce

solutions which

will satisfy many ....

"

G In the meantime the problem of the backlog of cases in the High Courts

becomes more acute and pressing and came to

be further discussed in

Parliament and in conferences and seminars. Ultimately in January

1985, both

Houses of Parliament passed the Bill anJ with the Presidential assent on 27th

February,

1985, the law enabling the long awaited Tribunal to be constituted

came into existence.

As already noticed, the Central Government notified the

H Act to come into force with effect from

1.11.1985.

-)-

S.P. SAMPATH KUMAR v. UNION Of INDIA [MISRA, J.) 453

Exclusion of the jurisdiction of the High Courts in service matters and

its propriety

as also validity have thus to be examined in the background A

indicated above. We have already seen

tl;iat judicial review by this Court is left

. wholly unaffected and thus there

is a forum where matters of importance and

grave injustice can

be brought for determination or rectification. Thus

exclusion

of the jurisdiction of the High Court does not totally bar judicial

review. This Court in .Minerva Mills' case did point out that

"effective B

alternative institutional mechanisms or arrangements for judicial review" can

be made by Parliament. Thus it

is possible to set up an alternative institution in

place of the High Court for providing judicial review. The debates and

deliberations spread over almost two decades for exploring ways and means

for relieving the High Courts of the load of backlog of cases and for assuring

quick settlement of service disputes in the interest of the public servants

as also C.

the country cannot be lost sight of while considering this aspect. It has not been

disputed before

u<-and perhaps could not have been-that the Tribunal

under the scheme of the Act would take

overa part of the existing backlog and

a share of the normal load of the High Courts. The Tribunal has been

contemplated

as a substitute and not as supplemental to

the High Court in the

scheme

of administration of justice. To provide the Tribunal as an additional D

forum from where parties could go to the High Court

•.vould certainly have

been a retrograde step considering the situation and circumstances to meet

which the innovation has been brought about. Thus barring of the jurisdiction

of the High Court can indeed not be a valid ground of attack.

What, however, has to

be kept in view is that the Tribunal should be a E

real substitute of the High

Court-not only in form and de jure

but in content

and

de facto. As was pointed out in 'Minerva's Mills, the alternative

arrangement has to

be effective and efficient as also capable of upholding the

constitutional limitations. Article

16 of the Constitution guarantees equality

of opportunity in matters

of public employment. Article 15 bars

discrimination on grounds

of religion, race, caste, sex or place of birth. The F

touch-stone of equality enshrined in Article

14 is the greatest of guarantees for

the citizen. Centring around these articles in the

Constitutiorl a service

jurisprudence has already grown in this country. Under Sections 14 and 15 of

the Act all the powers of the Courts except those of this Court in regard

to

matters specified therein v.est

in the Tribunal-either Central or State. Thus

the Tribunal

is the substitute of the 'High Court and is entitled to exercise the G

powers thereof.

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 H

454 SUPREME COURT REPORTS [ 1987] I S.C. R.

A long period ofabout six scores of years, 1 he High Courts have played their role

effectively, efficiently

as also satisfactorily. The litigant in this country has

seasoned himself to look upto the High

Court as the unfailing protector of his

person, property and honour. The instiV1tion has served its purpose very well

and the common man has thus come to repose great confidence therein.

Disciplined, independent and trained Judges well-vei:..ed in law and working

B with all openness in an unattached and objective manner have ensured l"

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 substitu1e institution-the Tribunal-must be

C 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 .

•

Chapter II of the Act deals with escablishment of Tribunals and Benches

D thereof. Section 4 provides for establishment while Section 5 deals with

composition of the Tribunal and Benches thereof. Section 6 lays down the

qualifications of Chairman, Vice-Chairman and members. So far as the

Chairman

is concerned, sub-section

(!) requires that he should be or have

been-

E

F

G

H

(a) a Judge of a High C>urt; or

(b) has for at least two years, held office as Vice-Chairman;

or

( c) has, for at least two

years, held the post of a Secretary to the

Government of India

or any other post under the Central or a State Government carrying a scale of pay which is not less than ~.

that of a Secretary to the Government of India. ·~

Sub-section (2) prescribing the qualification for Vice-Chairman

provides that

he should be or have

been-

(a)' a Judge of a High Court; or

(b) for at least two years, held the post of a Secretary to the

Government

of India or any other post under the Central or a State Government carrying a scale of pay which is not less than

that of a Secretary to the Government of India; or

'

(bb) for at least five y'ars, held the post of an Additional

..

S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 455

Secretary to Government of India or any other post carrying A

equivalent pay; or.

( c) for a period of not less than three years held office as a

judicial member

of an Administrative Tribunal.

Sub-section (3) prescribes the qualification of a judicial member and' B

requires that: (a) he should be or should have been or qualified to be a Judge of

a High Court; or (b) has been a member of the Indian Legal Service and has

held a post

in Grade I of that service for at least three years.

~- Sub-section (3-A) provides the qualification for appointment as

, administrative member and lays down that such person should have, for at least C

two years, held the post

of an Additional

Secretary to the Government oflndia

or any other post under the Central or a State Government carrying a scale of

"'illf pay not less than that of an Additional Secretary to Government oflndia; or (b)

has, for at least three years, held the post ofa Joint Secretary to the Government

of India or any other post under the Central or the State Government earrying a

scale

of pay which is not

less than that of a Joint Secretary to Government of D

India. 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 Couri. We must immediately point out that we

.• have no bias, in any manner, against members of the Service. Some of them do E

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. We agree that a Vice-Chairman with

these qualifications and experience

of two_ years may be considered for l

appointment as Chairman but in order that the Tribunal maybe acceptable to F

-the litigants who are themselves members of the various services, section 6( 1 )(c)

should be omitted. We

do not want to say anything about

Vire-Chairman and

members dealt with in sub-sections (2), (3) or (3A) because so far as their

selection is concerned, we are of the view that such selection when it is not of a

sitting Judge or retired Judge of a High Court should be done by a high­

powered committee with a sitting Judge of the Supreme Court to be nominated G

by the Chief Justice of India as its Chairman. This will ensure selection

of

proper and competent people to man these high offices of trust and help to } build up reputation and acceptability. Once the qualifications indicated for

appointment of Chairman are adopted

and the manner of selection of Vice­

Chairman and members is followed, we are inclined to think that the manning.

of the Tribunal would be proper and conducive to appropriate functioning. We H

456 SUPREME COUR r REPORTS [1987] I S.C.R.

A do not propo•e to strike down the prescriptions containing dilforent

requirements but would commend to the Central Government to take prompt

steps to bring the provisions in accord w,th what we have indicated. We must

state that unless the same

be done,

tLe constitution of the Tribunal as a

substitute

of the High

Court would be open to challenge. We hasten to add that

our judgment shall operate prospectivel:1 and would not affect appointments

B already made to the

offices of

Vice-Chairman and Member-both

administrative and judicial.

Section 8 of the Act prescribes

th' term of office and provides that the

term for Chairman, Vice-Chairman or r.lembers 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 C 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 appoirtment for a term of five years may

occasionally operate

as a dis-incentive ior well-qualified people to accept the

D offer to join the Tribunal. There

may be competent people belonging to

younger age groups who would haw 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. Those who come to be Chairman,

Vice-Chairman or members resign

ap·oointments, if any, held by them before

E joining the Tribunal and,

as such, there would be no scope for their return to

the place or places from where they co

me. A five year period is not a long one.

Ordinarily some time would

be taken for most of the members to get used

to·

the service-jurisprudence and when the period is only five years, many would

have to go out by the time they are full:1 acquainted with the law and have good

grip over the job.

To require retirement at the end of five years is thus neither

F convenient to the person selected for the job nor expedient to the scheme. At

the hearing, learned Attorney-General referred to the case of a member of the Public Service Commission who is appointed for a term and even suffers the

disqualification in the matter of furth·:r employment. We do not think that is a

comparable situation. On the other hand, membership in other high-powered

Tribunals like the Income-tax Appellate Tribunal or the Tribunal under the

G Cust9ms Act can be referred to. When amendments to the Act are

undertaken, this aspect

of the matter deserves to be considered, particularly

because the choice in that event would

be wide leaving scope for proper

selection to

be made.

H

We hope and trust that

within a reasonable period not beyond 31st

.__

'

S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 457

March, 1987, the amendments iiidicated shall be brought about so as to A

remove the defects found in the Act.

Khalid, Oza and Dutt J.J.

We have read both the Judgments just delivered-the main judgment of

learned Brother Ranganath Misra and the other of Hon'ble the Chief Justice.

We agree with both.

P.S.S .

r

B