2002 JTR(SC) 709
2002 AIR(SC) 2639 ; 2002 AIR(SCW) 2961 ; 2002 5 ALD(SC) 1 ; 2002 5 ALT(SC) 36 ; 2002 3 JCR(SC) 2 ; 2002 5 JT 316 ; 2002 LIC 2636 ; 2002 4 LLN 6 ; 2002 3 MLJ 121 ; 2002 4 RSJ 612 ; 2002 5 Scale 249 ; 2002 6 SCC 242 ; 2002 SCC(L&S) 854 ; 2002 3 SCJ 400 ; 2002 Supp1 SCR 223 ; 2002 3 SCT 681 ; 2002 5 SLR 228 ; 2002 2 UJ 1117 ; 2002 KHC 1712 ; 2002 5 Supreme 64
2002(5) Supreme 64
SUPREME COURT OF INDIA
(Under Article 32 of the Constitution of India)
S. Rajendra Babu and P. Venkatarama Reddi, JJ.
Durgadas Purkyastha -Petitioner
versus
Union of India & Ors. -Respondents
Writ Petition (Civil) No. 552 of 2001
Decided on 22-7-2002
Counsel for the Parties :
For the Petitioner : P.P. Rao, Sr. Advocate, Sanjay Parikh, Advocate.
For the Respondents : Soli J. Sorabjee, Attorney General for India, Ajit S. Bhasme, P. Parmeshwaran, Sanjay K. Visen, Manoj K. Mishra, Advocates.
IMPORTANT POINT
Section 8 of the Administrative Tribunals Act, 1985 cannot be assailed on the ground of arbitrariness having the effect of jeopardising the security of tenure of public servants beyond reasonable limits.
Act
Referred
:ADMINISTRATIVE TRIBUNALS ACT : S.8, S.19, S.6
CONSTITUTION OF INDIA : Art.14, Art.32
(A) The Administrative Tribunals Act, 1985, read with the provisions referred to in Sections 8, 19, and 6, governs the tenure, eligibility, and re-appointment of judicial and administrative members of the Central Administrative Tribunal. The Constitution of India, Articles 14 and 32, provide the foundational safeguards against arbitrariness and the right to move the Supreme Court for enforcement of legal rights. These statutory and constitutional provisions frame the dispute concerning the fixed term of five years, re-appointment eligibility, and the upper age limits for judicial members, culminating in the challenge to Section 8 of the Act.
(B) Key legal principles include that compulsory retirement rules lacking a minimum service period and reasonable superannuation age are void under Article 311(2); however, where a prior reasonable service period is satisfied, fixed terms combined with upper age limits do not violate security of tenure. Re-appointment after a five-year term is permissible if an outer age limit is prescribed, and such provisions must be interpreted in light of earlier judicial observations, as clarified in subsequent amendments.
Facts of the case:
The petitioner, a District and Sessions Judge, was appointed as a Judicial Member of the Central Administrative Tribunal for five years or until age sixty-two, as per the order of August 30, 1996. He sought re-appointment based on representations and an earlier indication by this Court in Sampath Kumar vs. Union of India. His application under Section 19 of the Act was withdrawn after the High Court of Calcutta dismissed a transfer challenge. Concurrently, the High Court of Andhra Pradesh held Sections of the Act unconstitutional for fixing only a five-year term without guaranteeing continuation until the superannuation age, prompting the present petition under Article 32 challenging the validity of Section 8.
Findings of Court:
The Court observed that unlike earlier cases, the petitioner had held prior judicial or quasi-judicial office, and the five-year term with an upper age limit of sixty-two did not impair security of tenure. The amended Section 8 prescribing a five-year term with re-appointment eligibility until the prescribed age was held consistent with Sampath Kumar, and the High Courts direction was deemed unnecessary and inappropriate.
Issues:
Whether the five-year term coupled with an upper age limit of sixty-two years for judicial members violates Article 14, Article 311(2), or the principles of reasonable classification; whether such a provision undermines security of tenure; and whether the High Court had jurisdiction to issue the directions it did.
Ratio Decidendi:
A fixed term of five years with a reasonable upper age limit and a provision for re-appointment after committee review does not negate security of tenure when the appointee has already served in comparable judicial or quasi-judicial posts, and such a scheme falls within the permissible legislative framework laid down in Sampath Kumar; hence, the impugned provision is not unconstitutional.
Result:
The writ petition is dismissed.
(A) The Administrative Tribunals Act, 1985, read with the provisions referred to in Sections 8, 19, and 6, governs the tenure, eligibility, and re-appointment of judicial and administrative members of the Central Administrative Tribunal. The Constitution of India, Articles 14 and 32, provide the foundational safeguards against arbitrariness and the right to move the Supreme Court for enforcement of legal rights. These statutory and constitutional provisions frame the dispute concerning the fixed term of five years, re-appointment eligibility, and the upper age limits for judicial members, culminating in the challenge to Section 8 of the Act.
(B) Key legal principles include that compulsory retirement rules lacking a minimum service period and reasonable superannuation age are void under Article 311(2); however, where a prior reasonable service period is satisfied, fixed terms combined with upper age limits do not violate security of tenure. Re-appointment after a five-year term is permissible if an outer age limit is prescribed, and such provisions must be interpreted in light of earlier judicial observations, as clarified in subsequent amendments.
Facts of the case:
The petitioner, a District and Sessions Judge, was appointed as a Judicial Member of the Central Administrative Tribunal for five years or until age sixty-two, as per the order of August 30, 1996. He sought re-appointment based on representations and an earlier indication by this Court in Sampath Kumar vs. Union of India. His application under Section 19 of the Act was withdrawn after the High Court of Calcutta dismissed a transfer challenge. Concurrently, the High Court of Andhra Pradesh held Sections of the Act unconstitutional for fixing only a five-year term without guaranteeing continuation until the superannuation age, prompting the present petition under Article 32 challenging the validity of Section 8.
Findings of Court:
The Court observed that unlike earlier cases, the petitioner had held prior judicial or quasi-judicial office, and the five-year term with an upper age limit of sixty-two did not impair security of tenure. The amended Section 8 prescribing a five-year term with re-appointment eligibility until the prescribed age was held consistent with Sampath Kumar, and the High Courts direction was deemed unnecessary and inappropriate.
Issues:
Whether the five-year term coupled with an upper age limit of sixty-two years for judicial members violates Article 14, Article 311(2), or the principles of reasonable classification; whether such a provision undermines security of tenure; and whether the High Court had jurisdiction to issue the directions it did.
Ratio Decidendi:
A fixed term of five years with a reasonable upper age limit and a provision for re-appointment after committee review does not negate security of tenure when the appointee has already served in comparable judicial or quasi-judicial posts, and such a scheme falls within the permissible legislative framework laid down in Sampath Kumar; hence, the impugned provision is not unconstitutional.
Result:
The writ petition is dismissed.
JUDGMENT
Rajendra Babu, J.-By an order made on August 30, 1996 the Government of India appointed the petitioner, who was District and Sessions Judge in West Tripura, Agartala, as a Judicial Member in the Central Administrative Tribunal [hereinafter referred to as the Tribunal ]. It was indicated in the said order that the appointment of the petitioner will be for a period of five years from the date of joining or till he attains the age of sixty two years whichever is earlier. The petitioner made a representation that he is eligible for re-appointment after expiry of the term of five years until he attains the age of sixty two years as has been indicated by this Court in Sampath Kumar etc. vs. Union of India & Ors., 1987(1) SCR 435. The Department of Personnel informed the petitioner of the amended provisions of the Administrative Tribunals Act, 1985 [hereinafter referred to as the Act ] to the effect that a person whose term has expired will be eligible for consideration for re-appointment.
2. On 22.3.2001, the petitioner represented to the Chairman, CAT and the Secretary, DOPT for consideration of his re-appointment as Member with effect from 7.10.2001. He also made similar further representation on 1.5.2001 and 14.5.2001 to the Chairman, CAT and to the Secretary DOPT on 18.5.2001, 3.7.2001 and 4.7.2001. He made a demand on 1.8.2001 to the similar effect.
3. The petitioner filed an application under Section 19 of the Act claiming that he is entitled to continue to hold the office as a Judicial Member until he attained the age of sixty two years and sought for various incidental reliefs. At a stage when the matter was heard and reserved for orders, that application came to be withdrawn to the file of the Principal Bench of the Tribunal by an order made by the Chairman. Challenge to the transfer of the petition made in the High Court of Calcutta was dismissed for want of jurisdiction.
4. In the meanwhile, the High Court of Andhra Pradesh in W.P.No. 21329/97 (R.V. Mallikarjuna vs. Union of India) and W.P.No. 21439/97 (P. Suresh Reddy vs. Union of India & Ors.) held that the period of five years should be read in such a manner as to indicate that the Chairman and Vice-Chairman shall hold the office till sixty five years of age and Member, both Judicial and Administrative, shall hold the office till the age of sixty two years from the date of the assumption of office and Section 8 of the Act to the extent of fixing appointment only for a period of five years as unconstitutional. Hence the petitioner has filed this petition under Article 32 of the Constitution challenging the validity of Section 8 of the Act.
5. The contention put forth on behalf of the petitioner is that the provisions of Section 8 of the Act providing the term of five years and thereafter re-appointment amounts to curtailing the period of superannuation at 62 years and is, therefore, void. It is submitted that this provision is contrary to the observations made in Sampath Kumar s case (supra). Reliance is also placed on the decision in Gurdev Singh Sidhu vs. State of Punjab & Anr., 1964(7) SCR 587. The learned Attorney General brought to our notice, while refuting the contentions urged on behalf of the petitioner, that the case of the petitioner was considered for re-appointment twice by a selection committee headed by a Judge of this Court but his name was not recommended for another term.
6. This Court while noticing that the Act, as originally framed, provided for a term of five years from the date on which the Chairman, Vice-Chairman or other Member enters upon his office or until he attains the age of sixty five years in case of Chairman and Vice-Chairman and sixty two years in case of other Member, observed in Sampath Kumar etc. (supra) as follows :
"Section 8 of the Act prescribes the term of office and provides that the term for Chairman, Vice-Chairman or members 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 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 appointment for a term of five years may occasionally operate as a dis-incentive for well-qualified people to accept the offer to join the Tribunal. There may be competent people belonging to younger age group who would have more than five years to reach the prevailing age of retirement. That fact that such people would be required to go out on completing the five years 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 appointments, if any, held by them before joining the Tribunal and, as such, there would be no scope for their return to the place or places from where they come. 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 fully acquainted with the law and have good grip over the job. To require retirement at the end of five years is thus neither 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 further 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 Customs 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 even would be wide leaving scope for proper selection to be made."
The principle stated in Gurdev Singh Sidhu case (supra) is that if a rule provides for compulsory retirement at any time, without providing for a minimum period of service after which only compulsory retirement can be ordered, that rule itself must be held to be void for contravention of Article 311(2) of the Constitution, because such compulsory retirement, in the case of a permanent Government servant, amounts to removal; that the rule under which the order has been made is unconstitutional and invalid (i) when that rule does not fix any age of superannuation but enables the Government to retire a Government servant at any time, without payment of full pension, and (ii) when the age of superannuation has not been reasonably fixed and is unnecessarily short.
7. In the present case, the position is entirely different. The qualifications required for appointment of Chairman, Vice-Chairman and other Members of the Tribunal are as prescribed under Section 6 of the Act. A person is not qualified to be appointed as Chairman unless he is or has been a Judge of a High Court or has, for at least two years, held the office of Vice-Chairman. A person is not qualified to be appointed to the post of Vice-Chairman unless he is or has been or is qualified to be a Judge of a High Court or 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; or has, for at least five years, held the post of an Additional 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 an Additional Secretary to the Government of India; or has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member. The cases of permanent public servants who had a general rule of superannuation and a different rule was to be applied in case of compulsory retirement at a very early stage of their career were considered in Gurdev Singh Sidhu case. In the case on hand, Chairman, Vice-Chairman and other Members have held the respective offices in one capacity or the other earlier and by the time they are appointed in the Tribunal they would have reasonably spent sufficient number of years of service in those posts. Therefore, the concept of security of tenure of service in respect of those who term is reduced will not be appropriate. Further if a post is a tenure post, the incumbent in such post will go out of office on completion of his tenure. The provision cannot be assailed on the ground of arbitrariness having the effect of jeopardising the security of tenure of public servants beyond reasonable limits.
8. The observations made by this Court in Sampath Kumar etc. case were taken note of by the Government and amendments were made in Section 8 of the Act which now reads as follows :-
"Section 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."
9. An option is reserved to the Government to reappoint a member on the expiry of the term beyond the first term of five years, the outer limit being that he should be within the age of sixty five years in case of Chairman and Vice-Chairman and sixty two years in case of other Members. Thus, it would not be in every case that the Government would put an end to the term of office at the end of five years and such Chairman, Vice-Chairman and other Member would become eligible for re-appointment for another period of five years after consideration by a Committee headed by a Judge of the Supreme Court and two other Members, one of whom will be the Chairman of the Tribunal. In these circumstances, we do not think that the provisions now made will in any way dilute the effect of or are contrary to the observations made by this Court in Sampath Kumar etc. case.
10. In B. Ramanjini & Ors. vs. State of Andhra Pradesh & Ors., 2002(4) Scale 197, the decision of the High Court of Andhra Pradesh in W.P. No. 21329/97 (R.V. Mallikarjuna vs. Union of India) is reserved and it is held that the direction issued by the High Court of Andhra Pradesh was totally uncalled for and the High Court ought not to have made an order of the nature in question.
11. In the light of what we have stated above, it is unnecessary to consider other contentions urged by the parties. In the result, this writ petition is dismissed.
(N.K.R.) Writ Petition dismissed.
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