Supreme Court of India
A.K. BEHERAversusUNION OF INDIA & ANR.
- Citation
- 2010 INSC 278
- Decided
- 6 May 2010
- Disposal
- Dismissed
- Bench
- K G BALAKRISHNAN
Holding
Parliament’s amendments to the Administrative Tribunals Act, including abolition of the Vice‑Chairman, revised qualifications, a ten‑year tenure cap, differentiated service conditions, and delegation of administrative powers, are constitutionally valid and do not infringe Article 14, the basic structure, or judicial independence.
Summary
The petitioners challenged several amendments made by the Administrative Tribunals (Amendment) Act, 2006, including the abolition of the Vice‑Chairman post, the new qualification criteria for Administrative Members, the ten‑year total tenure limit (s.10A), differential service conditions for members appointed before and after the amendment (s.1OA), and the power given to the government to designate a Vice‑Chairman (s.12(2)). The majority held that Parliament, exercising its power under Article 323A, may restructure the Central Administrative Tribunal and that these changes are not arbitrary, do not violate Article 14, the basic structure, or judicial independence. Consequently, the writ petitions were dismissed. A dissenting judgment, however, declared the same provisions unconstitutional and ordered restoration of the Vice‑Chairman post and uniform service conditions.
Issues considered
- The constitutionality of abolishing the Vice‑Chairman post in the Central Administrative Tribunal.
- Whether the amended qualification criteria for Administrative Members (s.6(2)) are arbitrary or violate Articles 14 and 16.
- The validity of the ten‑year total tenure limit for members (s.10A).
- The permissibility of different conditions of service for members appointed before and after the amendment (s.1OA).
- Whether the power to designate a Vice‑Chairman by the government (s.12(2)) impinges on the independence of the judiciary.
- Whether the amendments violate the basic structure doctrine, particularly equality and separation of powers.
Legislation cited
- Administrative Tribunals Act, 1985s. 10A, s. 12(2), s. 6(2)
- Administrative Tribunals (Amendment) Act, 2006s. 10A, s. 12(2), s. 1OA, s. 6(2)
- Equal Remuneration Act, 1976s. 1(2), s. 13, s. 14, s. 4(3)
Subjects
Administrative TribunalsArticle 323AEquality (Article 14)Judicial independenceService conditionsTen‑year tenure limitVice‑ChairmanSeparation of powersBasic structure doctrineEqual remuneration
Judgment
[2010] 6 S.C.R: 335
j .
A.K. BEHERA · A
V.
UNION OF INDIA & ANR.
(W. P. (C) No. 261 of 2007) E.TC.
MAY 6, 2010 B .
[K.G. BALAKRISHNAN, CJI, DALVEER BHANDARI AND
J.M .. PANCHAL, JJ.]
I
Administrative Tribunals Act, 1985 - Administrative
Tribunals (Amendment) Act, 2006: c
Central. Administrative Tribunal - Abolition of post of
Vice-Chairman by the Amerldment Act - Constitutionality of
- Held: Cannot be regarded as unconstitutional - By abolition
. of post of Vice-Chairman no anomalous situation is sought
.to be introduced in the structure as well as functioning and D
· administration of the JTribunals - Post of Vice-Chairman in
Tribunal had created al'I avoidable three tier institution and
resulted in anomalies in qualifications, age 'of retirement,
service conditions - By the amending Act all Members of
Central Administrative Tribunal have been elevated to the E
status of a High Court Judge .:... Amended. qualifications for
Member bf Tribunal are nearly the same as Vice-Chairman
of Tribunal. ·
s. 6(2) (as amended) - Modification in the qualification
for appointment as Administrative Member in Tribunal - F
Challenge to, on the ground that except for an /AS officer no
. other civil servant would become eligible for appointment -
Held: s. 6(2) not arbitrary and unsustainable - Officers
belonging to All India Services have been made eligible. to
be appointed as Administrative Member subject to fulfillment G
of qualifications - Higher qualifications have been prescribed
for better discharge of functions by Members of Tribunals and
cannot be· regarded as arbitrary or unreasonable.
335 H
336 SUPREME COURT REPORTS [2010) 6 S.C.R.
A s. 10A - Total tenure of Member of Administrative
Tribunal restricted to 1O years - Held: Cannot be regarded
as unconstitutional - Concept of security of tenure does not
apply to such appointments.
s. 1OA - Prescribing different conditions of service for
B Members of Central Administrative Tribunal on basis of their
appointment under unamended Rules and amended Rules
- Requiring Members of Tribunal appointed before the
coming into force of Amendment Act to seek fresh
appointment by Selection Committee - Held: Is not arbitrary
C - Eligibility conditions of Members appointed prior to and after
February 19, 2007 are different - Members of Administrative
Tribunals appointed prior to February 19, 2007 form a different
class from those appointed or to be appointed after February
19, 2007 - Over a period of time, anomaly, if any, would get
D cleared itself and after a period of 4-5 years all Members of
Tribunal would be equal in status - Extension in service by
Member appointed cannot be claimed as matter of right and
would always be subject to fulfillment of qualifications and
conditions stipulated in the Amended Act - Aggrieved
E petitioner cannot claim, as a matter of right, automatic re-
appointment as Judicial Member of State Administrative
Tribunal after his first term of five years was over.
s. 12(2) - Enabling the appropriate Government to
designate one of the members to be Vice Chairman to
F exercise the financial and administrative powers -
Constitutional validity of - Held: Is constitutionally valid and
cannot be regarded as impinging upon the independence of
judiciary.
Certain amendments were carried out in the
G Administrative Tribunals Act, 1985 by the Administrative
Tribunal (Amendment) Act, 2006. By the Amendment Act,
the post of Vice Chairman in the Central Administrative
Tribunal was abolished; that the newly inserted s. 10A of
the Act prescribed different conditions of service for the
H
A.K. BEHERA v. UNION OF INDIA & ANR. 337
Members of the Central Administrative Tribunal on the A
basis of their appointment under the unamended Rules
and under the amended Rules and that the members of
the Administrative Tribunal, who were duly appointed as
members prior to the commencement of the Amendment
Act, i.e. 19.02.2007, were to be considered for B
reappointment by Selection Committee; thats. 10A
stipulated that the total term of office of the member of, ..
the Central Administrative Tribunal shall not exceed 10
·years though by the said amendment the age of'
superannuation for a member is raised from 62 to 65 ·c
years; that the newly inserted s. 6(2) modified the
qualifications for appointment as administrative members;
that the newly added s. 12(2) authorised the appropriate
Government to designate one or more members to be the
Vice Chairman for exercise of financial and administrative 0
powers as impinging upon the independence of judiciary;
and that the Members of the Administrative Tribunal
appointed before the coming into force of the
Amendment Act were to seek fresh appointment in
accordance with the selection procedure laid down for E
such appointments. The present petitioners are
aggrieved by the said amendments carried out in the
Administrative Tribunal Act, 1985. Hence the writ petitions.
Dismissing the writ petitions, the Court
HELD: Per Panchal J (For himself and Balakrishnan. F
CJ!):
1.1. It cannot be accepted that the abolition of the
post of Vice-Chairman, which was in existence since
inception of the Administrative Tribunals, is
unconstitutional because it would create anomalous G
situation in the structure as well as administration of t~e
Tribunals if any High c·ourt Judge is appointed as
Member of the Tribunal. The post of Vice-Chairman in the
Tribunal had created an avoidable three tier institution
'1
H
338 SUPREME COURT REPORTS [2010] 6 S.C.R.
A and resulted in anomalies in qualifications, age of
retirement, service conditions etc. The Members of the
Tribunal had claimed equality with the Judges of the High
Court or even the Vice-chairman of the Tribunal, in the
matter of pay and superannuation. The Parliament, in
B exercise of powers under Article 323A of the Constitution,
has amended the Administrative Tribunals Act, 1985 and
equated its Members with Judges of High Court for the
purposes of pay and superannuation. The Parliament, by
enacting a law, has right to change the conditions of
c service of Members of the Administrative Tribunals. (Para
13) (367-F-H; 368-A-D]
M.B. Majumdar vs. Union of India (1990) 4 SCC 501,
referred to.
1.2. While upgrading the conditions of service of the
D Members, the conditions of service of a Judicial Member
are not changed to his detriment. By the amending Act
all the Members of the Central Administrative Tribunal
have been elevated to the status of a High Court Judge.
The service conditions of the Members of the Tribunal
E have been upgraded to that of a High Court Judge, which
cannot be regarded as illegal or unconstitutional. The
qualifications of the Vice-chairman provided in Section
6(2)(a), 6(2)(b) and 6(2)(bb) in the unamended Act were
also to a large extent qualifications prescribed for
F appointment of a person as an Administrative Member.
The only addition made by the Amending Act is that now
the Secretary to the Government of India, in the
Department of Legal Affairs or the Legislative Department
including Member-Secretary, Law Commission of India or
G a person who has held a post of Additional Secretary to
the Government ,of India in the Department of Legal
Affairs and Legislative Department at least for a period of
five years, are made eligible for appointment as a Judicial
Member. Though under the unamended Act, it was not
H specifically provided but he was eligible to be appointed
A.K. BEHERA v. UNION OF INDIA & ANR. 339
as Administrative Member in view of the qualifications A
which were laid down for a person to be appointed as
Administrative Member. However, by the Amendment,
such a person is declared to be eligible for being
appointed as Judicial Me,mber having regard to his
experience and opportunity to deal with legal issues· in B
his respective department. Section 6(3) and 6(3)(a) of the
earlier Act provided a much lower qualification for a
Member of the Tribunal. The amended qualifications for
·a Member of the Tribunal are nearly the same as Vice-
Chairman of the Tribunal, which clearly reflects the c
intention of the Government to upgrade the post of an
Administrative Member. In such circumstances the need
for having a Vice-Chairman was obviated and the
Government, therefore, abolished the post of Vice-
Chairman by the impugned enactment. [Para 13) [368-D-
0
H; 369-A-D]
1.3. By abolition of the post of the Vice-Chairman no
anomalous situation is sought to be introduced in the
structure as well as functioning and administration of the
Tribunals. A retired High Court Judge would be eligible E
for appointment as Member of the Tribunal and on such
·appointment would be eligible to all the facilities as a
Judge of the High Court. The Chairman of the Tribunal
is normally a retired Chief Justice of the High Court and
a
very rarely retired Judge is appointed as Chairman of F
the Tribunal. In any event the Chairman would be senior
to a retired Judge, who is appointed as a Member of the
Tribunal. [Para 13] (369-E-F]
1.4. The petitioner could not establish before the
Court that by upgrading the status of the Administrative· G
Member of the Tribunal to that of a High Court Judge a
particular provision of the Constitution is infringed. The
plea that abolition of post of Vice-Chairman will
discourage a sitting or retired High Court Judge from
joining the Tribunal cannot be appreciated. The H
340 SUPREME COURT REPORTS [2010] 6 S.C.R.
A composition of the Tribunal, after amendment of the Act,
is such that there would be a Vice-Chairman if required
as under Section 12, a Judicial Member and another
member to be appointed from civil services. A High Court
Judge, who opts for the post of judicial Member in the
s Tribunal, would not be lowering his status after the
amendment because all the service conditions applicable
to him as a High Court Judge have been saved. [Para 13]
[369-G-H; 370-A-C]
2.1. A reasonable reading of sub-Section (2) of
C Section 6 of the Act makes it very clear that by no stretch
of imagination it can be said that the qualifications for
appointment as Administrative Member of the Tribunal
are laid down in such a manner that except an IAS officer
no other civil servant would become eligible for such
D appointment. The newly amended provision requires that
a person shall not be qualified for appointment as an
Administrative Member unless he has held for at least two
years the post of Secretary to the Government of India
or any other post in the Central or State Government and
E carrying the scale of pay, which is not less than that of a
Secretary to the Government of India for at least two
years or held post of Additional Secretary to the
Government of India for at least five years or any other
post under the Central or State Government carrying the
F scale of pay which is not less than th;\t of an Additional
Secretary to the Government at least for a period of five
years. The proviso to sub-Section (2) of Section 6 of the
Act, stipulates that the officers belonging to All India
Services, who were or are on Central deputation to a
G lower post shall be deemed to have held the post of
Secretary or Additional Secretary as the case may be,
from the date such officers were granted proforma
promotion or actual promotion whichever is earlier, to the
level of Secretary or Additional Secretary, as the case may
be, and the period spent on Central deputation after such
H
A.K. BEHERA v. UNION OF INDIA & ANR. 341
date shall count for qualifying service for the purposes A
of this clause. [Para 14) [371-B; 370-0-H; 371-A]
2.2. It is necessary to notice. that officers belonging
to All India services have been made eligible to be
appointed as Administrative Member subject to the
fulfillment of quallflcatlons stipulated in Section 6 of the B
Act. It is wrong to contend that All India Services
comprise only of the IAS officers. All India Services
comprise IAS, IFS, IRS, etc. Merely because higher
qualificatiQns have been prescribed one need not
conclude that except an IAS servant, no other civil C
servant would be eligible for appointment as a Member.
The higher qualifications have been prescribed for the
benefit and interest of uniformity of the two level cadres
contemplated by the amended provisions. There is no
manner of doubt that Government of India took a policy D
decision to prescribe higher qualification for better ·
discharge of functions by the Members constituting the
Tribunals and the said policy decision cannot be
regarded as arbitrary or unreasonable. The qualifications
of the Vice-Chairman were provided in ss. 6(2)(a), 6(2)(b), E
.6(2)(bb) and 6(2)(c) of the unamended Act. To a large
extent, the qualifications laid down in the unamended Act
are almost the same as are laid down in the amended
provisions. [Para 14] (371-8-F]
3.1. The plea that section 10A, which restricts the total F
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 G
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 H
342 . SUPREME COURT REPORTS (2010] 6 S.C.R.
A of five years. Therefore, the provisions relating 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. Now provision is made for extension of
B 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
c 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
0
. years. It is not the case of the petitioners that the
unamended provisions of the Act, which prescribed total
tenure ot'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
E 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 arbitrar:r having
effect of jeopardising security of tenure. [Paras 15) [371-
F G-H;. 372-A-C; E-H; 373-A-B]
S. P. Sampath Kumar vs. Union of India and others
(1987) 1 SCC 124; Durgadas Purkyastha vs. Union of India
& others (2002) 6 sec 242, referred to.
G 3.2. 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
A· Act, is eligible for appointment as the Chairman of the
A.K. BEHERA v. UNION OF INDIA & ANR. 343
Tribunal or as the Chairman, Vice-chairman or other A
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, it cannot be appreciated as to how the
amended provisions restricting the total tenure of a s
Member of the Tribunal to ten years would be
unconstitutional. The unamended s. 6 of the 1985 Act,
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 c
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. An option is
reserved to the Government to re-appoint a Member on
0
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 E
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 M~mbers, one of
whom-will be the Chairman of the Tribunal. [Para 15] [373-
A-H] F
4. The plea that s.1 OA of the Act requiring a sitting
Member of the Tribunal, who seeks extension for second
term to possess the qualifications laid down by the
amended Act and get himself selected through Selection G
Committee is arbitrary, is devoid of merits. The selections
to be made as an Administrative Member after February.
19, 2007 are made applicable uniformly to those who
would be appointed as Administrative Member after
February 19, 2007. A Member, who was appointed prior H
344 SUPREME COURT REPORTS [2010] 6 S.C.R.
A to February 19, 2007, cannot claim that he has vested
right of extension of his term for a further period of five
years as per the qualifications laid down in the
unamended Act and that qualifications prescribed by the
amending Act should be ignored in his case while
B considering his case for extension of term for a further
period of five years. Over a period of time the anomaly, if
any, would get cleared itself and after a period of 4-5
years all the Members of the Tribunal would be equal in
status and that every Member to be appointed will have
c to qualify himself as per the qualifications laid down in
the Amended Act and will have to get himself selected
through Selection Committee. The eligibility conditions of
the Members appointed prior to and after February 19,
2007 are different. Since the Members of the
Administrative Tribunals appointed prior to February 19,
0
2007 form a different class from those appointed or to be
appointed after February 19, 2007. Article 14 would stand
violated if they are treated differently in the matter of
appointment or extension of service as a Member after
·February 19, 2007. Extension in service by a Member
E cannot be claimed as matter of right and would always
be subject to fulfillment of qualifications ;;1nd conditions
·stipulated in the Amended Act. The petitioner in second
writ petition could not have claimed, as a matter of right,
automatic re-appointment as Judicial Member of the State
F Administrative Tribunal after his first term of five years
was over. As is provided in the Amending Act, under the
old provisions also a Member of the Administrative
Tribunal was eligible to be re-appointed, which was
considered to be a fresh appointment for all the practical
G purposes. Under the provisions of unamended Act, at the
end of five years, the Chairman, Vice-chairman and other
Members were eligible for reappointment for another
period of five years after consideration by a Committee
headed by a .Judge of the Supreme Court and two other
H members, one of whom was Chairman of the Tribunal.
A.K. BEHERA v. UNION OF INDIA & ANR. 345
The petitioner can only be considered for appointment as A
a Member as per the fresh selection procedure provided
by the Amended Act. The Selection Committee has to
choose the best candidate available for the post. It is not
the requirement of the law that the Selection Committee
should inform the petitioner the reasons for not B
recommending his name. Merely, because there is a
vacancy in the post of Member (Judicial) in the
Maharashtra Administrative Tribunal, tlie petitioner
cannot claim a right to be appointed to the said post
irrespective of the provisions of the amended Act. The c
petitioner can be appointed only if Selection Committee
recommends his appointment and the recommendation
is accepted by the President, after the consultation with
the Governor of the State. [Para 16) [374-B-H; 375-A-E]
5.1. The submission th;:it s. 12(2) of the amended Act D
enabling the appropriat~ Government to nominate one of
the Members of the Tribunal to perform financial and
administrative functions destroys independence of the
Tribunal which is a Judicial Forum and, therefore, the said
provision should be regarded as unconstitutional, is E
devoid of merits. It is clear from the provisions of s. 12 of
the Amended Act, that the Chairman of the Tribunal has
to exercise all financial and administrative powers over
the Benches. Essentially the provision for delegating
financial and administrative powers to one of the F
Members of a Bench is made, to lessen administrative
burden lying on the shoulders of the Chairman who
normally sits at Delhi and for effective and better
administration of the Benches of the Tribunal located in
different and far flung States of the country. It is not G
difficult to visualise the problems, complications,
obstacles, delay, etc., faced by the Chairman, while
exercising financial and administrative powers over the
Benches. The decentralisation of financial and
administrative powers to tackle local needs and H
346 SUPREME COURT REPORTS (2010] 6 S.C.R.
A problems, in favour of a Member of Tribunal, for effective
administration of the Tribunals, cannot be regarded as
destrQying the basic feature of the Constitution, namely
independence of judiciary. [Para 17) [375-F-H; 376-A-C]
5.2. The designation of the Vice-Chairman by the
B Central Governme'lt u/s. 12(2) of the Act would obviously
be in concurrence with the Chairman. Further, the Vice-
Chai rman would discharge such functions of the
Chairman as the Chairman may so direct. It is absolutely,
completely and entirely for the Chairman to recommend
C to the Government as to designate which Member of the
Tribunal as Vice-Chairman. The said provision is an
enabling provision, which is clear from the use of the
expression "may" in the said provision. If the Chairman
of the Tribunal feels that no Member should be
D designated as Vice-Chairman, the Government suo motu
cannot and would not be in a position to make
designation contemplated by the said provision. The
designation as Vice-Chairman would not entitle the
Member so designated to any special benefits in service
E conditions. The only purpose of the said provision is to
help the Chairman in discharge of his administrative
functions as the Benches of the Tribunal are situated in
different parts of the country. Section 12(2) of the Act,
which enables the appropriate Government to designate
F one or more Members as Vice-Chairman and entitles the
Members so designated to exercise such powers and
perform such functions of the Chairman as may be
delegated to him by the Chairman by general or special
order in writing cannot be regarded as destroying the
principle independence of judiciary or of the
G Administrative Tribunals. It cannot be understood as to
how the appropriate Government would be able to
destroy the independence of Tribunals by designating
one or more Members to be the Vice-Chairman for the
H purposes of performing the functions of the Chairman to
A.K. BEHERA v. UNION OF IND1A & ANR. 347
be delegated to him by the Chairman. The jurisdiction, A
powers and authority of the Central Administrative .
Tribunal are defined in the Act and, more particularly, in
ss. 14, 15, 16, 17 and 18 of the Act. The petitioners have
· failed to demonstrate that by 'authorizing appropriate
·· · Government to designate one or more Members to be the . B · ·
Vice-Chairman for the purpose of performing financial
and administrative powers of th~e Chairman, the
indepe"dence of the Tribunals secured by the provisions
is in any manner eroded. [Para 17] [376-C-H; 377-A-C]
Per Bhandari, J (Dissenting) : c
1. There is no anathema in the Tribunal exercising
jurisdiction of High Court and in that sense being
supplemental or additional to the High Court but, at the
same time, it is our bounden duty to ensure that the
Tribunal must inspire the same confidence and trust in D
the public mind. This can only be achieved by appointing
the deserving candidates with legal background and
judicial approach and objectivity. [Para 54] [400-F]
S.P. S8mpat Kumar v. Union of India and Ors. (1987) 1 . E
SCC 124; Minerva Mills Ltd. and Ors. v. Union of India and
Ors. (1980) 3 SCC 625; L. Chandra Kumar v. Union of India
and Ors. (1997) 3 sec 261, relied on.
R.K. Jain v. Union of India (1993) 4 SCC 119; Bidi
Supply Co. v. Union of India and Ors. 1956 SCR 267; His F
Holiness Kesavananda Bharati Sripadaga/varu v. State of
Kera/a and Anr. (1973) 4 SCC 225; M.L. Sachdev v. Union
of India and Anr. (1991) 1 SCC 605, referred to.
2.1. In view of the constitutional principles in the
Equal Remuneration Act, 1976 and Directive Principles of G
State Policy under the Constitution and the statutory and
mandatory provisions of overriding the 1976 Act, the
following principles are evolved for fixing the
governmental pay policy, whet~er executive or legislative
H
348 SUPREME COURT REPORTS [2010] 6 S.C.R.
A on the recommendation of the Pay Commissions, Pay
Committees by Executive Governments: (i) the,
governmental pay policy, whether executive or
legislative, cannot run contrary to constitutional
principles of constitutional law; (ii) the governmental pay
B policy, whether executive or legislative, cannot run
contrary to the overriding provisions of the 1976 Act; (iii)
the governmental pay policy must conform to the
overriding statutory command under ss. 13 and 14 read
withs. 1(2) of the 1976 Act which supports for uniformity
c between the pay policy of the State Governments and the
Central Government in the whole of India and such
uniformity in the pay policy of the State Governments and
the Central Government in the whole of India. Where all
things are equal that is, where all relevant considerations
are same, persons holding identical posts may not be
0
treated differentially of their pay. [Para 66] [406-D-H; 407-
A]
2.2. The principle underlying the guarantee of Article
14 is not that the same rules of law should be applicable
E to all persons within the Indian territory or that the same
remedies should be made available to them irrespective
of differences of circumstances. It only means that all
persons similarly circumstanced shall be treated alike
both in privileges conferred and liabilities imposed. [Para
F 84) [412-H; 413-A]
2.3. The law can make and set apart the classes
according to the needs and exigencies of the society and
as suggested by experience. It can recognize even
degree of evil, but the classification should never be
G arbitrary, artificial or evasive. The classification must not
be arbitrary but must be rational. It should be based on
some qualities or characteristics which are to be found
in all the persons grouped together and not in others who
are left out but those qualities or characteristics must
H have a reasonable relation to the object of the legislation.
A.K. BEHERA v. UNION OF INDIA & ANR. 349
In order to pass the test, two conditions must be fulfilled, A
namely, that the classification must be founded on an
intelligible differentia which distinguishes those that are
grouped together from others and that differentia must
have a rational relation to the object sought to be
achieved by the Act. [Paras 85 and 86) [413-B-D] B
2.4. In the instant case, one fails to comprehend and
understand why the respondents are perpetuating
discrimination even for a period of four to five years. [Para
88) [413-G]
2.5. The High Court Judges are appointed from two
c
streams-213rd from the Bar and 113rd from the
Subordinate Judicial Service. After appointment, they are
assigned the task of discharging judicial functions. The
direct and inevitable impact of the amendment is to
0
dissuade and discourage both the members of the Bar
and Judiciary from becoming members of the Tribunal~
The Tribunal is discharging purely judicial work which
were earlier discharged by the judges of the High Courts.
The people's faith and confidence in the functioning of
the Tribunal would be considerably eroded if both the E
members of the Bar and judiciary are discouraged from
joining the Tribunal. In a democratic country governed by
rule of law, both the lawyers and judges cannot be
legitimately discouraged and dissuaded from manning
· the Tribunal discharging only judicial work.[Para 89) [413- F
H; 414-A-C)
Randhir Singh v. Union of India and Ors. (1982) 1 SCC
618; State of West Bengal v. Anwar Ali Sarkar (1952) SCR
284; Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar G
and Ors. (1959) 1 SCR 279; The State of Jammu & Kashmir
v. Triloki Nath Khosa and Ors. (1974) 1 SCC 19; Indira Nehru
Gandhi v. Raj Narain and Anr. (1975) Supp. SCC 1; Maneka
Gandhi v. Union of India and Anr. (1978) 1 SCC 248; Surinder
Singh and Anr. v. Engineer-in-Chief, CPWD and Ors. (1986) H
350 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 1 SCC 639; Mackinnon Mackenzie & Co. Ltd. v. Audrey D'
Costa and Anr. (1987) 2 SCC 469; Bhagwan Dass and Ors.
v: State of Haryana and Ors. (1987) 4 SCC 634; lnder Singh
and Ors. v. Vyas Muni Mishra and Ors. 1987 (Supp) SCC
257; Haryana State Adhyapak Sangh and Ors. v. State of
B Haryana and Ors. (1988) 4 SCC 571; U.P. Rajya Sahakari
Bhoomi Vikas Bank Ltd. v. Workmen 1989 Supp (2) SCC
424; Sita Devi and Ors. v. State of Haryana and Ors. (1996)
10 SCC 1; Sube Singh & Ors. v. State of Haryana and Ors.
(2001) 7 SCC 545; John Vallamattom and Anr. v. Union of
C India (2003) 6 SCC 611; State of Mizoram and Anr. v.
Mizoram Engineering Service Association and Anr. (2004) 6
SCC 218; Union of India v. Dineshan K.K. (2008) 1 SCC 586,
referred to.
3.1. There is no rationale or justification in providing
D different conditions of service for the members of the
Tribunal on the basis of their appointment under the
amended and the unamended rules, when even
according to the respondents it is nowhere denied that
both the categories of members are not discharging the
E same duties, obligations and responsibilities. [Para 94)
[414-H; 415-A]
3.2. Section 1OA of the amended Act is declared
discriminatory, unconstitutional and ultra vires of the
Constitution so far as it does not provide uniform pay
F scales and service conditions on the basis of amended
and unamended rules. Consequently, all the members of
the Tribunal would be entitled to get the same pay scales
and service conditions from June 2010. [Para 95] [415-B-
C)
G 3.3. Section 10A of the amended Act is also declared
discriminatory because the direct and inevitable impact
of insertion of s. 10A is to prescribe different age of
retirement for the judicial and other mem;,,~rs. On the one
hand, the age of superannuation of the members has
H
A.K. BEHERA v. UNION OF INDIA & ANR. 351
been increased from 62 to 65 years and according to the A
amended Act, the administrative members would now
retire at the age of 65 years. The members can now get
maximum of two terms of 5 years each. A lawyer
appointed at the age of 45 years will have to retire at the
age of 55 years. Therefore, by this amendment, B
: administrative member would retire at the age of 65
whereas judicial member may retire even at the age of 55.
This is clearly discriminatory and violative of the
fundamental principle of equality. Consequently, s. 10A
of the amended Act is declared discriminatory and c
vi61ative of Article 14 of the Constitution and is declared
ultra vires of the Constitution, to the extent that it places
embargo of two terms of five years ea.ch leading to
different ages of retirements of -the members of the
Tribunal. Consequently, henceforth, all the members of
0
the Tribunal shall function till the age of 65 years. There
would be a uniform age of retirement for all the members
of the Tribunal. (Para 96) [415-D-G]
4.1. There is no logic, rationale or justification in
abolishing the post of Vice-Chairman in the Central E
Administrative Tribunal. No reason for such abolition has
been spelt out by the respondents even at the time of
introducing the Bitl. Before the amendment, ordinarily, the
retired judges of the High Courts used to be appointed
to the post of Vice-Chairman. It used to be in consonance F
with the status and positions of the retired judges .. In the
larger public interest the post of Vice-Chairinan is
restored and the procedure for appointment would be in
accordance with the unamended rules of the Act. (Paras
98 and 102) [416-B-C; 417-8)
G
4.2. One fails to comprehend that on the one hand,
the post of Vice-Chairman has been abolished and on the
other hand under the. newly inserted s. 12(2), the power
to designate Vice-Chairman has been given to the
approp.riate government. This is per se unt.enable and H
352 SUPREME COURT REPORTS [2010] 6 S.C.R.
A unsustainable. The executive has usurped the judicial
functions by inserting s. 12(2). The direct and inevitable
consequence of the amendment would affect the
independence of judiciary. [Para 99) [416-D-E]
4.3. In the race of becoming the Vice-Chairman there
·swould be erosion of independence of judiciary. A judicial
member who is looking forward to promotion to the post
ofVice-Chairman would have to depend on the goodwill
and favourable instance of the executive and that would
directly affect independence and impartiality of the
C members of the Tribunal impinging upon the
independence of judiciary. [Para 100] [416-F-G]
S.P. Sampat Kumar v. Union 0f India and Ors. (1987) 1
sec 124, referred to.
D 4.4. The judicial work which the members of the
Tribunal discharge is one, which was earlier discharged
by the Judges of the High Court. The work is totally
judicial in nature, therefore, dispensation of justice should
be left primarily to the members of the Bar and Judges
E who have, by long experience and training acquired
judicial discipline, understanding of the principles of law,
art of interpreting laws, rules and regulations, legal
acumen, detachment and objectivity. Unless extreme
care is taken in the matter of appointments of the
F members of Tribunal, the justice delivery system may not
command confidence, credibility, acceptability and trust
of the people. [Para 103] [417-C-D]
4.5. Under s. 12(2) of the amended Act, the entire
power of designating Vice-Chairman has been usurped
G by the appropriate government. The amendment also has
the potentiality of disturbing the separation of powers.
· The power pertaining to judicial functioning of the
Tribunal which was earlier exercised by the judiciary has
been usurped by the executive. Thus, the newly inserted
H s. 12(2) is per se untenable and is declared null and void
A.K. BEHERA v. UNION OF INDIA & ANR. 353
[Para 101] [416-G-H; 417-A] A
5.1. All the members of the Tribunal appointed either
by amended or unamended rules would be entitled to get
uniform pPy scales and s.ervice conditions from
01.06.201 O. however, they wou Id not be entitled to claim
any arrears on account of different pay scales and service B
conditions. [Para 104] [417-F]
5.2. All the members of the Tribunal would have
uniform age of retirement from 01.06.2010, meaning
thereby that all members of the Trib1.inal shall be C
permitted to function untll they attain the age of
superannuation of 65 years. Hence, s. 10A Is quashed
and set aside. [Para 104] [417-G-H; 418-A]
5.3. The post of Vice-Chairman in the Central
Administrative Tribunal is restored from 01.06.2010. D
However, the Vice-Chairmen, if already designated by the
Government is not disturbed, and permit them to continue
in their respect posts till they attain the age of
superannuation. Thereafter, the Vice-Chairman shall be
appointed in accordance with the unamended rules. E
Consequently, the newly inserted s. 12(2) of the amended
Act is also quashed and set aside. [Para 104] [418-B-C]
Indira Nehru Gandhi v. Raj Narain and Anr. (1975) Supp .
. SCC 1; l.R. Coelho (dead) by Lrs. v. State of Tamil Nadu and
Ors. (2007) 2 SCC; Minerva Mills Ltd. and Ors. v. Union of F
India and Ors. (1980) 3 SCC 625; Ashoka Kumar Thakur and
Ors. v. Union of India and Ors. (2008) 6 SCC 1; His Holiness
1 Kesavananda Bharati Sripadagalvaru v. State of Kera/a and
Anr. (1973) 4 SCC 225; Subhash Sharma and Ors. v. Union
of India 1991 Sup (1) 574; Pareena Swarup v. Union of India G
(2008) 14 sec 107, referred to.
Case Law Reference:
In the judgment of Panchal J:
(1990) 4 SCC 501 Referred to._. Para 13 H
354 SUPREME COURT REPORTS [2010] 6 S.C.R.
A (1987) 1 sec 124 Referred to. Para 15
(2002) 6 sec 242 Referred to. Para 15
In the judgment of Bhandari J:
· (1987) 1 sec 124 Relied on. Para 21, 30, 32, 33,
B 35, 36, 37' 39, 52,
100
(1980) 3 sec 625 Relied on. Para 34, 52, 58, 62
(1997) 3 sec 261 Relied on. Para 42, 46
c
(1993) 4 sec 119 Referred to. Para 43
1956 SCR 267 Referred to. Para 44
(1973) 4 sec 225 Referred to. Para 45, 61
D
(1991) 1 sec 605 Referred to. Para 50
(1975) supp. sec 1 Referred to. Para 56, 70
(2001) 2 sec 1 Referred to. Para 57
E (2008) 6 sec 1 Referred to. Para 59
1991 Sup (1) 574 Referred to. Para 63
(2008) 14 sec 101 Referred to. Para 64
F (1982) 1 sec 618 Referred to. Para 66, 72
(1952) SCR 284 Referred to. Para 67
(1959) 1 SCR 279 Referred to. Para 68
(1974) 1 sec 19 Referred to. Para 69
G
(1978) 1 sec 248 Referred to. Para 71
(1986) 1 sec 639 Referred to. Para 73 ·
(1987) 2 sec 469 Referred to. Para 74
H (1987) 4 sec 634 Referred to. Para 75
A.K. BEHERA v. UNION OF INDIA & ANR. 355
1987 (Supp) sec 257 Referred to. Para 76 A
(1988) 4 sec 571 Referred to. Para 77
1989 Supp (2) SCC 424 Referred to. Para 78
(1996) 10 sec 1 Referred to. Para 79
B
(2001) 1 sec 545 Referred to. Para 80
(2003) 6 sec 611 Referred to. Para 81
(2004) 6 sec 218 . Referred to. Para 82
c
(2008) 1 sec 586 Referred to. Para 83
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
261 of 2007;
Under Article 32 of the Constitution of India. D
WITH
W.P. (C) No. 539 of 2007.
A.Saran, ASG, Raju Ramachandran, A.K. Behra, Lalit M. E
Harichandan, Saurabh Suman Sinha (for Satya Mitra Garg),
Ni~in S. Tambwekar, B.S. Sai. K. Rajeev, S. Wasim A. Qadri,
P, ~rmeswaran, B. Krishna Prasad, Sanjay V. Kharde, Asha
G. ir, Advocates with them for appearing parties.
'
F
Th·e Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. In the Writ Petition (C) No. 261 of
1
2007, the petitioner, who is a practicing lawyer and Honorary
Secretary of the Central Administrative Tribunal, Principal
Bench, Bar Association, prays (1) to quash the decision of the G
respondents to abolish the post of Vice Chairman in the Central
Administrative Tribunal as reflected in the Administrative Tribunal
(Amendment) Act, 2006 and to direct the respondents to restore
the said post in the Central Administrative Tribunal, (2) to declare
that the newly inserte_d Section 1OA of the Administra~ve H
356 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Trib•·11als Act, 1985 to the extent it prescribes different
conditions of service for the Members of the Central
Administrative Tribunal on the basis of their appointment under
the unamended Rules and under the amended Rules, as
unconstitutional, arbitrary and not legally sustainable, (3) to
B direct the respondents to accord all conditions of service as
applicable to the Judges of High Court to all the members of
the Central Administrative Tribunal irrespective of their
appointment under the unamended or amended Rules, (4) to
declare that the newly inserted Section 1OA of the
c Administrative Tribunals Act, 1985 as unconstitutional to the
extent it stipulates that the total term of office of the member of
the Central Administrative Tribunal shall not exceed 10 years,
(5) to direct the respondents to continue all the members
appointed under the unamended or amended Rules till they
attain the age of superannuation of 65 years, (6) to declare, the
0
newly inserted qualifications for appointment as administrative
members as reflected in the amended Section 6(2), as arbitrary
and unsustainable, and (7) to quash the newly added Section
12(2) of the Administrative Tribunals Act, 1985 authorising the
appropriate Government to designate one or more members
E to be the Vice Chairman for exercise of financial and
administrative powers as impinging upon the independence of
judiciary.
2. Writ Petition (C) No. 539 of 2007 is filed by a judicial
F member of Maharashtra Administrative Tribunal and he prays
to set aside the decision of the respondents requiring Members
of the Administrative Tribunal appointed before the coming into
force of Administrative Tribunals (Amendment) Act, 2006 to
seek fresh appointment in accordance with the selection
G procedure laid down for such appointments as being arbitrary
and violative of Articles 14 and 16 of the Constitution. He also
prays to declare that newly introduced Section 1OA, so far as
it relates to consideration of members of the Administrative
Tribunal for reappointment by Selection Committee, is not
H applicable to those, who were duly appointed as members prior
A.K. BEHERA v. UNION OF INDIA & ANR. 357
[J.M. PANCHAL, J.]
to February 19, 2007. Another prayer made by him is to direct A
the respondents to restore his continuance as Member of
Maharashtra Administrative Tribunal till he attains the age of
superannuation of 65 years and to direct the respondents to
accord all conditions of service, as applicable to the Judges
of the High Court, to him. B
3. Article 323A of the Constitution, stipulates that
Parliament may by law, provide for the adjudication or trial by
Administrative Tribunals of disputes and complaints with
respect to recruitment and the conditions of service of persons C
appointed to public services and posts in connection with the
affairs of the Union or of any State or of any local or other
·authority within the territory of India or under the control of the
Government of India or of any Corporation owned or controlled
by the Government. The establishment of Administrative
Tribunals under the aforesaid provisions of the Constitution had D
become necessary since the large number of cases relating
to service matters were pending before the various courts. It
was expected that the setting up of such Adrr.:nistrative
Tribunals to deal exclusively with service matters would go a
long way in not only reducing the burden of various courts and E
thereby giving them more time to deal with other cases
expeditiously but would also provide to the persons coming
under the jurisdiction of Administrative Tribunals, speedy relief
in respect of their grievances. Therefore, a Bill was introduced
in the Parliament for setting up the Central Administrative F
Tribunal. The Bill sought to give effect to Article 323A by
providing for the establishment of an Administrative Tribunal for
the Union and a separate Administrative Tribunal for a State
or a joint Administrative Tribunal for two or more States. The
Bill inter alia provided for - (a) the jurisdiction, powers and G
authority to be exercised by each Tribunal, (b) the procedure
to be followed by the State Tribunals, (c) exclusion of the
jurisdiction of all courts, except that of the Supreme Court under
Article 136 of the Constitution relating to service matters, and
(d) the transfer to each Administrative Tribunal of any suit or H
358 SUPREME COURT REPORTS (2010] 6 S.C.R.
A other proceedings pending before any court or other authority
immediately before the establishment-Of such Tribunal as would
have been within the jurisdiction of such Tribunal the causes of
action on which such suits or proceedings were based had
arisen after such establishment.
B
4. The Parliament, thereafter enacted The Administrative
Tribunals Act, 1985. It received the assent of the President on
February 27, 1985.
5. The Central Administrative Tribunal with five Benches
C was established on November 1, 1985 in pursuance of the
provisions of the Administrative Tribunals Act, 1985. Prior to
its establishment, writ petitions were filed in various High Courts
as well as in the Supreme Court challenging the constitutional
validity of Article 323A of the Constitution and the provisions
D of the Administrative Tribunals Act. The main contention in the
writ petitions was that the writ jurisdiction of the Supreme Court
under Article 32 of the Constitution as well as that of the High
Courts under Article 226 of the Constitution could not have
been taken away even by an amendment of the Constitution.
E Although the Supreme Court, by an interim order stayed the
transfer of writ petitions filed in the Supreme Court under Article
32 of the Constitution to the Central Administrative Tribunal, it
did not stay transfer of writ petitions under Article 226 of the
Constitution subject to the condition that the Government would
F make certain amendments in the Act. One of the amendments
suggested by the Supreme Court was that each case in the
Tribunal must be heard by a Bench consisting of one judicial
member and one non-judicial member and the appointment of
judicial members should be done in consultation with the Chief
Justice of India. An undertaking was given to the Supreme
G Court that a Bill to make suitable amendments in the Act would
be brought before the Parliament as early as possible. The
Central Administrative Tribunal had also started functioning in
Benches in accordance with the above directions of the
Supreme Court. As the writ petitions referred to above were
H
A.K. BEHERA v. UNION OF INDIA & ANR. 359
[J.M. PANCHAL, J.]
to come up for hearing in January, 1986, the. President A
promulgated the Administrative Tribunals (Amendment)
Ordinance, 1986 on January 22, 1986 so as to give effect to
the assurance given to the Supreme Court and to make some
· other amendments found necessary in the administration of the
Act. The Ordinance inter alia provided for the following matters, B
namely:-
(a) The concept of Judicial Member and Administrative
Member was introduced in the Act. The Bench of
Administrative Tribunal was to consist of one
Judicial Member and one Administrative Member
c
instead of three members Bench to be presided
over by the Chairman or by the Vice Chairman. It
was also provided that the appointment of a Judicial
Member would be made after consultation with the
Chief Justice of India. D
(b) The jurisdiction of the Supreme Court in service
matters under Article 32 of the Constitution was
preserved. The Principal Act had intended to confer
this jurisdiction also on the Tribunals. E
(c) A provision was included to designate, with the
concurrence of any State Government, all or any of
the members of the Bench or Benches of the State
Administrative Tribunal established for that State as
Members of the Bench or Benches of the Central F
Administrative Tribunal in respect of that State.
(d) The jurisdiction of the Tribunal was also extended
to persons, who were governed by the provisions
of the Industrial Disputes Act, 1947 without affecting G
the rights of such persons under the Act.
Subsequent to the promulgation of the Ordinance, few doubts
were expressed in respect of some of the provisions of the Act
and the Ordinance. It was, therefore, proposed to include in the H
360 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Bill a few clarificatory amendments, to make certain provisions
included in the Ordinance retrospective from the date of
establishment of the Central Administrative Tribunal and to
validate certain actions taken by the said Tribunal. The
amendments included in the Bill were explained in the
B memorandum attached to the Bill. Accordingly, the Act of 1985
was amended by Act 19 of 1986 which was deemed to have
come into force on January 22, 1986. By the amendment in the
Act of 1985 it was proposed (1) to exclude from the jurisdiction
of an Administrative Tribunal the powers to adjudicate, disputes
c with respect to officers and employees of the subordinate courts
and to make a provision for transfer of cases pending in the
Administrative Tribunals to the Courts concerned; (2) that the
appointment of the Chairman, Vice-Chairman and other
Members of the Administrative Tribunals would be made in
consultation with the Chief Justice of India. The Act, before its
0
amendment, provided for consultation with the Chief Justice of
India only in respect of Judicial Members; (3) that the Chairman,
Vice-Chairman and other Members of the Administrative
Tribunals would be eligible for re-appointment for a second term
of office; (4) that the Central Government and the appropriate
E Government should be empowered to frame rules relating to
salary, allowances and conditions of service of the Chairman
and other Members of the Tribunals and their officers, etc.
6. It may be mentioned that a writ petition under Article 32
F of the Constitution was filed by a member of the Central
Administrative Tribunal, contending that the decision in S.P.
Sampath Kumar vs. Union of India and others [(1987) 1 SCC
124], equated the Central Administrative Tribunal with the High
Court and, therefore, its Chairman should be equated with the
G Chief Jwstice of a High Court and the Vice-Chairman and
Members must be equated with the sitting Judges of the High
Court in all respects. It was also contended that while the Vice-
Chairmen have been equated with sitting Judges of the High
Courts, the Members have not been so equated in their pay
H and other conditions of service and that a distinction was made
A.K. BEHERA v. UNION OF INDIA & ANR. 361
[J.M. PANCHAL, J.]
in the conditions of service, particularly, the pay and age of A
superannuation between the Vice-Chairmen and the Members,
which was arbitrary, as a result of which the Members also
should be given the same pay as that of the Vice-Chairmen and
their age of superannuation should also be the same, i.e., 65
years as that of the Vice-Chairmen. On interpretation of Article B
323A of the Constitution, this Court took the view that
Administrative Tribunals constituted thereunder are distinct from
the High Courts and dismissed the writ petition.
7. The Administrative Tribunals Act, 1985 came to be
amended by the Administrative Tribunals (Amendment) Act, C
2006. By the said amendment the post of Vice-Chairman in the
Administrative Tribunal is abolished. A new provision, i.e.,
Section 6(2) is introduced which modifies the qualifications for
appointment as Administrative Member in the Tribunal. Section
1CA is inserted in the main Act, which provides that the D
conditions of services of the Judges of the High Court would
be applicable only to the Members appointed after February
19, 2007. The newly inserted Section 10A restricts the total term
of the Members of the Administrative Tribunals to ten years
though by the said amendment the age of superannuation for E
a Members is raised from 62 to 65 years. Further, Section 1OA
postulates consideration of a case of a Member for re-
appointment by Selection Committee after February 19, 2007.
Section 12(2) of the Administrative Tribunals Act, 1985 is
amended and power is conferred on the appropriate F
Government to designate a Vice-Chairman for the purpose of
performing certain duties and functions of the Chairman.
8. The case of the petitioner is that the post of Vice-
Chairman was in existence in the Administrative Tribunals since G
its inception which enabled the Judges of various High Courts
to opt for the Central Administrative Tribunal and provided an
opportunity, in the nature of promotion to the Members of the
Administrative Tribunals to the post of Vice-Chairman.
According to the petitioner, the abolition of the said post now H
362 SUPREME COURT REPORTS [2010] 6 S.C.R.
A would create anomalous situation in the structure as well as
administration of the Tribunals, if any High Court Judge is to
be appointed only as a Member and, therefore, the abolition
of the post of the Vice-Chairman 1s unconstitutional. The
petitioners have mentioned that the newly introduced Section
B 6(2) of the Administrative Tribunals Act, 1985 modifies the
qualifications for appointment as Administrative Member in the
Tribunal in such a manner that except the IAS officers no other
civil servant would ever become eligible for such appointment
and as zone of consideration for appointment of Administrative
c Members has been confined to only IAS officers by colourable
exercise of power, the said provision should be regarded as
unconstitutional. What is asserted by the petitioner is that
Section 1OA does not extend the benefit of the conditions of
service applicable to the Judges of the High Court, to all the
Members of the Tribunals appointed prior to the appointed
0
date, which is February 19, 2007, but confines the same to the
Members, who would be appointed in future, i.e., after February
19, 2007 as Members of the Tribunals and as the Members
appointed before February 19, 2007 would also be discharging
E the same duties and responsibilities, the provision stipulating
that the conditions of service of the Judges of the High Court
would be applicable only to the Members to be appointed after
February 19, 2007 has no rational basis or nexus with any
defined objective and, therefore, should be declared to be ultra
vires. It is contended that Section 1OA restricting the total term
F of the Members of the Administrative Tribunals to ten years is
arbitrary because the said provision has no objective nor any
rational basis nor any nexus with defined objective of the Act.
According to the petitioner a number of Judicial Members in
the Tribunals have been appointed from the Bar at the age of
G 45 years or so, but now their tenure is sought to be curtailed
only to ten years, which would discourage the members of the
· Bar from joining the Tribunals as a Member. What is claimed
is that the Judicial Members appointed from the Bar since
inception, have played a pivotal role in the judicial
H administration of the Tribunals and, therefore, the newly inserted
AK. BEHERA v. UNION OF INDIA & ANR. 363
[J.M. PANCHAL, J.]
Section 1OA restricting the total -term of the Memb~rs of the A
Administrative Tribunals to ten years should be struck down as
arbitrary, unconstitutional and legally not sustainable.
9. The grievance by the petitioner in writ petition No. 539
of 2007 is that the decision of the respondents to subject a
8
Member to a fresh selection procedure is arbitrary and violative
of Articles 14 and 16 of the Constitution because, according /
to him, the provision requiring consideration of his case for re-
appointment as Member of the Administrative Trib.unal by
Selection Committee should not have been made applicable
to those, who were duly appointed as Members prior to- .c-
February 19, 2007. The petitioner also claims that introduction
of Section 12(2) in the Administrative Tribunals Act, 1985, which
empowers the State Government to designate a Member as a
Vice-Chairman for performing financial and administrative
powers destroys the judicial independence of the Tribunals and D
as uncontrolled, unguided and unregulated power has been
conferred on the Government to nominate a Member of the
. Tribunal as Vice-Chairman for performing those functions, the
said provision should also be struck down. Under these
circumstances the petitioners have filed above numbered E
petitions and claimed reliefs to which reference is made earlier.
10. On service ofnotice,counteraffidavit has been filed
on behalf of the respondents by Ms. Manju Pandey, Under
Secretary in the Ministry of Personnel, Government of India. In F
the counter affidavit it is stated that the Administrative Tribunals
(Amendment) Act, 2006 was intended to achieve the following
objects: -
(i) To abolish the post of Vice-Chairman in the
Tribunals as it was crea'ting an avoidable three tier G
institution and resulting in anomalies in
qualifications, age of retirement, service conditions,
etc. The Act was passed so that all the Members
of the Central Administrative Tribunal can be
elevated to the same status as of a High Court H
364 SUPREME COURT REPORTS [2010] 6 S.C.R.
A Judge and, therefore, the service conditions of the
Members of the Tribunals were upgraded to that of
a Judge of the High Court, i.e., the same as was
of a Vice-Chairman under the unamended Act.
(ii) Only for discharging certain administrative functions,
B
some of the Members in different Benches are to
be designated as Vice-Chairmen, but the said
designation is not to confer any special benefit to
the Member so designated.
c (iii) Since the age of retirement of a Government
servant was raised from 58 years to 60 years, a
retired Government servant had a tenure of only two
years as a Member of the Tribunal and he was not
able to contribute much to the disposal of the cases.
D Therefore, it was felt that every member of the
Tribunal should have tenure of five years. Though it
was not mentioned in the Statement of Objects and
Reasons, it was also understood that since retired
High Court Judges would be considered for
E appointment as Members of the Central
Administrative Tribunal, the age of retirement should
be increased to 65 years and correspondingly the
age of retirement of the Chairman should be
increased to 68 years so that the Chairman of the
Tribunal could have a full term of five years.
F
(iv) The post of Vice-Chairman under the Amended Act
is only an executive designation for discharging
administrative powers and though the Government
has been given the power to nominate one of the
G ntembers as Vice-Chairman of the Tribunal, said
designation would obviously be made with the
concurrence of the Chairman of the Tribunal.
After emphasizing the intended objects sought to be achieved
H by the Amending Act, it is stated in the reply that the post of
A.K. BEHERA v. UNION OF INDIA & ANR. 365
[J.M. PANCHAL, J.]
Vice-Chairman of the Tribunal resulted in three different levels A
of functionaries in the Tribunal and, therefore, the Government
of India took a policy decision that it would be beneficial and
in the interest of uniformity of service that the hierarchy be
reduced to just two posts, i.e., the Chairman and the Members
· of the Tribunal, which cannot be said to be either discriminatory B
or arbitrary or illegal. It is further mentioned in the counter
affidavit that Section 8 of the unamended Act provided that the
maximum tenure of the Chairman, Vice-Chairmen or a member
of the Administrative Tribunal would be ten years subject to the
age of retirement, which was 65 years in the case of Chairman c
or Vice-Chairman and 62 years in the case of any other
Member and it is not correct to say that Section 1OA inserted
by the Amending Act, for the first time restricts the term of the
Members of the Tribunal to ten years. It is explained in the
counter affidavit that the reason for raising the retirement age 0
from 62 to 65 years was because the retirement age of
Government servants had been increased from 58 years to 60
years and a retired Government servant had a tenure of only
two years as a Member of the Tribunal as a result of which he
· was not able to contribute much while being Member of the
Tribunal. As per the counter affidavit the qualifications required E
for being selected as Administrative Member were the same
as required for being chosen as Vice-Chairman of the Tribunal
in the pre-amended Act and as no change by the amendment
is effected so far as selection of a Member is concerned, the
new provision should not be regarded as unconstitutional. What F
is asserted in the counter affidavit is that as per Section 12 of
the Amended Act, the Chairman of the Tribunal would have all
financial and administrative powers over the Benches, but the
Vice-Chairman can be designated by the Central Government,
obviously with concurrence of the Chairman, and a Member so G
designated would discharge such functions of the Chairman as
the Chairman may direct and, therefore, it is wrong to contend
that by introduction of Section 12(2) of the Act, the
independence of judiciary and independence of Tribunal is
sought to be curtailed by the Executive. It is explained in the- H
366 SUPREME COURT REPORTS [2010] 6 S.C.R.
A counter affidavit that earlier the post of Vice-Chairman was not
a promotional post for a Member of the Tribunal and the
qualifications of the Vice-Chairman were different from a
Member of the Tribunal, but, by amendment the qualifications
of Members of the Tribunal have been raised to that of the Vice-
s Chairman and this change in qualifications neither affects the
statys of a retired High Court Judge. nor confers arbitrary
benefits on the non-Judicial Members and, therefore, the said
provision is perfectly legal. It is further pointed out in the counter
affidavit that except the change in the nomenclature, a retired
c. High Court Judge would get exactly the same facilities, if he is
appointed today as Member of the Tribunal instead of
designating him as Vice-Chairman of the Tribunal under the
unamended Act and, therefore, it is wrong to contend that the
amendments are violative of the provisions of the Constitution.
It is explained in the reply that in the parent Act also the
0
Members were eligible for re-appointment for a second term
of five years and not further whereas in the Amended Act,
appointment of a Member is for a period of five years
extendable by one more term of five years provided he has not
E attained the age of 65 years, and this provision does not infringe
any of the rights of the Members of a Tribunal, who seek
extension for a second term. It is stated in the counter that the
qualifications for appointment as an Administrative Member of
the Tribunal, prior to its amendment were on the lower side and
a need was felt that persons, who were appointed as
F Administrative Members, should have sufficient experience of
high posts so as to enable them to understand the complexities
of service jurisprudence and, therefore, certain additional
qualifications have been prescribed, which cannot be termed
as affecting the independence of the Tribunals. What is stated
G in the counter affidavit is that as a matter of policy it is now
provided that all officers, who are in the pay-scale of Secretary
or Additional Secretary, would be eligible for appointment and
the Selection Committee would invariably choose the most
eligible person for the said post. It is pointed out that the
H Amended Act substantially changes the qualifications for
..
Al. BEHERA v. UNION OF INDIA & ANR. 367
(J.M. PANCHAL, J.] . \
appointment as a Member of the Tribunal and now the post dt ~. A
a M~mber of the Tribunal is equivalent to the post of the Vice-
Chairman as it existed prior to the amendment and, therefore,
in terms of status and service conditions the Members
appointed after February 19, 2007 have been granted the status
available to a Vice-Chairman before the afllendment. What is B
stressed is thaijhough the present Members and Members to
be appointed in future would discharge similar functions, there
is a marked distinction between the eligibility criteria and,
therefore, it is wrong to coritend that the two form one class and
the provisions are arbitrary. c
11. Similarly, on service of notice in Writ PetitioQ (C) No.
539 of 2007, affidavit in reply has been filed on. behalf of
respondent Nos. 1 and 2 by Ms. Manju Pandey, Director in the
Ministry of Personnel, Government of India. In the said petition
affidavit in reply on behalf of Government of Maharashtra is filed D
by Mr. Vijay Dattatraya Shinde, Under Secretary, General
Administration Deptt., State of Maharashtra. It may be
mentioned that in both the above referred to two replles it is
stated that a member appointed prior to February 19, 2007 and
seeking extension for second term has to fulfill qualifications E
prescribed by the Amended Act, which cannot be termed as
arbitrary or unconstitutional.
12. This Court has heard the learned counsel for the parties
at length and in great detail. F
13. The contention that the abolition of the post of Vice-
Chai rman, which was in existence since inception of the
Administrative Tribunals, is unconstitutional because it would
create anomalous situation in the structure as well as
administration of the Tribunals if any High Court Judge is G
appointed as Member of the Tribunal, cannot be accepted. As
explained in the reply affidavit the post of Vice-Chairman in the
Tribunal had created an avoidable three tier institufion and
resulted in anomalies in qualifications, age of retirement,
H
368 SUPREME COURT REPORTS [2010) 6 S.C.R.
A service conditions etc. It is worth noticing that Members of the
Tribunal had claimed equality with the Judges of the High Court
or even the Vice-chairman of the Tribunal, in the matter of pay
and superannuation. That claim was rejected by this Court in
M.B. Majumdar v. Union of India [(1990) 4 SCC 501) with an
B observation that it is for the Parliament to enact a law for
equating Members of the Tribunal with Judges of High Court
for the purposes of pay and superannuation. The Parliament,
in exercise of powers under Article 323A of the Constitution,
has amended the Administrative Tribunals Act, 1985 and
c equated its Members with Judges of High Court for the
purposes of pay and superannuation. The Parliament, by
enacting a law, has right to change the conditions of service of
Members of the Administrative Tribunals. While upgrading the
conditions of service of the Members, the conditions of service
0 of a Judicial Member are not changed to his detriment. By the
amending Act all the Members of the Central Administrative
Tribunal have been elevated to the status of a High Court Judge.
The service conditions of the Members of the Tribunal have
been upgraded to that of a High Court Judge, which cannot be
E regarded as illegal or unconstitutional. The qualifications of the
Vice-chairman provided in Section 6(2)(a), 6(2)(b) and 6(2)(bb)
in the unamended Act were also to a large extent qualifications
prescribed for appointment of a person as an Administrative
Member. The only addition made by the Amending Act is that
now the Secretary to the Government of India, in the Department
F of Legal Affairs or the Legislative Department including
Member-Secretary, Law Commission of India or a person who
has held a post of Additional Secretary to the Government of
India in the Department of Legal Affairs and Legislative
Department at least for a period of five years, are made eligible
G for appointment as a Judicial Member. It is to be noted that
though under the unamended Act, it was not specifically
provided that person who held the post of a Secretary to the
Government of India in the Department of Legal Affairs or the
Legislative Department including Member-Secretary, Law
H Commission of India for at least two years or persons who held
A.K. BEHERA v. UNION OF INDIA & ANR. 369
[J.M. PANCHAL, J.]
·. post of Additional Secretary to the Government of India in the A
Department of Legal Affairs and Legislative Department at
least for a period of five years, was eligible to be appointed
as an Administrative Member, but he was eligible to be•
appointed as Administrative Member in view of th.e
qualifications which were laid down for a person to be B
appointed as Administrative Member. However, by the
Amendment, such a person is declared to be eligible for being
appointed as Judicial Member having regard to his experience
and opportunity to deal with legal issues in his respective
department. Section 6(3) and 6(3)(a) of the earlier Act provided c
a much lower qualification for a Member of the Tribunal. The
amended qualifications for a Member of the Tribunal are nearly
the same as Vice-Chairman of the Tribunal, which clearly
reflects the intention of the Government to upgrade the post of
an Administrative Member. In such circumstances the need for
0
having a Vice-Chairman was obviated and the Government,
therefore, abolished the post of Vice-Chairman by the
impugned enactment. By abolition of the post of the Vice-
Chairman no anomalous situation is sought to be introduced
in the structure as well as functioning and administration of the E
Tribunals. A retired High Court Judge would be eligible for
appointment as Member of the Tribunal and on such
appointment would be eligible to all the facilities as a Judge of
the High Court. The Chairman of the Tribunal is normally a
retired Chief Justice of the High Court and very rar~ly a retired
Judge is appointed as Chairman of the Tribunal. In any event F
the Chairman would be senior to a retired Judge, who is
appointed as a Member of the Tribunal. Therefore, this Court
finds that no anomaly, as contended by the petitioners, would
take place at all on the abolition of the post of Vice-Chairman.
The petitioner could not establish before the Court that by G
upgrading the status of the Administrative Member of the
Tribunal to that of a High Court Judge a particular provision of
the Constitution is infringed. The plea that abolition of post of
Vice-Chairman will discourage a sitting or retired High Court
Judge from joining the Tribunal cannot be appreciated. The H
370 SUPREME COURT REPORTS [2010) 6 S.C.R.
A composition of the Tribunal, after amendment of the Act, is such
that there would be' a Vice-Chairman if required as under
Section 12, a Judicial Member and another member to be
appointed from civil services. A High Court Judge, who opts
for the post of judicial Member in the Tribunal, would not be
B lowering his status after the amendment because all the service
conditions applicable to him as a High Court Judge have been
saved. Therefore, the first contention that abolition of the post
of Vice-Chairman except for the purposes of Section 12 of the
Act would create anomalous situation in the structure as well
C as administration of the Tribunal, if any High Court Judge is
appointed as a Member has no substance and is hereby
rejected.
14. The argument that Section 6(2) of the Administrative·
Tribunals Act, 1985 modifies the qualifications for appointment
D as an Administrative Member of the Tribunal in such a manner
that except the IAS officers no other civil servant would ever
become eligi~le for such appointment is without any factual
basis. The newly amended provision requires that a person
shall not be qualified for appointment as an Administrative
E Member unless he has held for at least two years the post of
Secretary to the Government of India or any other post in the
Central or State Government and carrying the scale of pay,
which is not less than that of a Secretary to the Government of
India for at least two years or held post of Additional Secretary
F to the Government of India for at least five years or any other
post under the Central or State Government carrying the scale
of pay which is not less that that of an Additional Secretary to
the Government at least for a period of five years. What is
relevant to notice is the proviso to sub-Section (2) of Section
G 6 of the Act, which stipulates that the officers belonging to All
India Services, who were or are on Central deputation to a
lower post shall be deemed to have held the post of Secretary
or Additional Secretary as the case may be, from the date such
officers were granted proforma promotion or actual promotion
H whichever is earl~~r. to the level of Secretary or Additional
A.K. BEHERA v. UNION OF INDIA & ANR. 371
[J.M. PANCHAL, J.]
Secretary, as the case may be, and the period spent on Central .A
deputation after such date shall count for qualifying service for
the purposes of this clause. A reasonable reading of sub-
section (2) of Section 6 of the Act makes it very clear that by
no stretch of imagination it can be said that the qualifications
for appointment as Administrative Member of the Tribunal are B
laid down in such a manner that except an IAS officer no other
civil servant would become eligible for such appointment. It is
necessary to notice that officers belonging to All India services
have been made eligible to be appointed as Administrative
Member subject to the fulfillment of qualifications stipulated in c
Section 6 of the Act. It is wrong to contend that All India
Services comprise only of the IAS officers. All India Services
comprise IAS, IFS, IRS, etc. Merely because higher
qualifications have been prescribed one need not conclude that
except an IAS servant, no other civil servant would be eligible
0
for appointment as a Member. The higher qualifications have
been prescribed for the benefit and interest of uniformity of the
two level cadres contemplated by the amended provisions.
There is no manner of doubt that Government of India took a
policy decision to prescribe higher qualification for better
discharge of functions by the Members constituting the E
Tribunals and the said policy decision cannot be regarded as
arbitrary or unreasonable. The qualifications of the Vice-
Chairman were provided in Sections 6(2)(a), 6(2)(b), 6(2)(bb)
and 6(2)(c) of the unamended Act. To a large extent, the
qualifications laid down in the unamended Act are almost the F
same as are laid down in the amended provisions. Therefore,
the contention that the amended provisions lay down
qualifications for appointment as Administrative Member in such
a manner that except IAS officers no other civil servant would
ever become eligible for such appointment cannot be accepted. G
15. The plea that Section 1OA, 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 H
372 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 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
B necessary that every Member of the Tribunal should have a
tenure of five years. Therefore, the provisions relating 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.
c This Court, in S.P. Sampath Kumar vs. Union of India and
others [(1987) 1 sec 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 v 1ell qualified people as
0
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
E upheld by this Court in Durgadas Purkyastha vs. Union of India
& 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
F 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
G 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 ye_ars for a Member of the Bar was/is unconstitutional.
The provisions of Section 8 fixing maximum term of office of
H the chairm;m at sixty eight years and of a Member of the
A.K. BEHERA v. UNION OF INDIA & ANR. 373
[J.M. PANCHAL, J.]
Tribunal at 10 years, cannot be regarded as unconstitutional A
because concept of security of tenure does not apply to such
appointments. Said provision cannot be assailed as arbitrary
having effect of jeopardising 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 B
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 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 c
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 0
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 E
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 F
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 G
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 H
374 SUPREME COURT REPORTS [2010) 6 S.C.R.
A provision restricting the total tenure of a Member to ten years
is either arbitrary or illegal.
16. The plea that Section 1OA of the Act requiring a sitting
Member of the Tribunal, who seeks extension for second term
to possess the qualifications laid down by the amended Act
8
and get himself selected through Selection Committee is
arbitrary, is devoid of merits. The selections to be made as an
Administrative Member after February 19, 2007 are made
applicable uniformly to those who would be appointed as
C Administrative Member after February 19, 2007. A Member,
who was appointed prior to February 19, 2007, cannot claim
that he has vested right of extension of his term for a further
period of five years as per the qualifications laid down in the
unamended Act and that qualifications prescribed by the
amending Act should be ignored in his case while considering
D his case for extension of term for a further period of five years.
Over a period of time the anomaly, if any, would get cleared
itself and after a period of 4-5 years all the Members of the
Tribunal would be equal in status and that every Member to be
appointed will have to qualify himself as per the qualifications
E laid down in the Amended Act and will have to get himself
selected through Selection Committee. The eligibility conditions
of the Members appointed prior to and after February 19, 2007
are different. Since the Members of the Administrative Tribunals
appointed prior to February 19, 2007 form a different class from
F those appointed or to be appointed after February 19, 2007.
Article 14 of the Constitution would stand violated if they are
treated differently in the matter of appointment or extension of
service as a Member after February 19, 2007. Extension in
service by a Member cannot be claimed as matter of right and
G would always be subject to fulfillment of qualifications and
conditions stipulated in the Amended Act. As observed earlier,
the petitioner in Writ Petition (C) 539 of 2007 could not have
claimed, as a matter of right, automatic re-appointment as
Judicial Member of the State Administrative Tribunal after his
H first term of five years was over. As is provided in the Amending
A.K. BEHERA v. UNION OF INDIA & ANR. 375
[J.M. PANCHAL, J.]
Act, under the old provisions also a Member of the A
Administrative Tribunal was eligible to be re-appointed, which
was considered to be a fresh appointment for all the practical
purposes. Under the provisions of unamended Act, at the end
of five years, the Chairman, Vice-chairman and other Members
were eligible for reappointment for another period of five years . B
after consideration by a Committee headed by a Judge of the
Supreme Court and two other members, one of whom was
Chairman of the Tribunal. The petitioner can only be considered
for appointment as a Member as per the fresh selection
· procedure provided by the Amended Act. The Selection c
Committee has to choose the best candidate available for the
post. It is not the requirement of the law that the Selection ·
Committee should inform the petitioner the reasons for not
recommending his name. Merely, because there is a vacancy
in the post of Member (Judicial) in the Maharashtra
0
Administrative Tribunal, the petitioner cannot claim a right to be
appointed to the said post irrespective of the provisions of the·
amended Act. The petitioner can be appointed only if Selection
Committee recommends his appointment and the
recommendation is accepted by the President, after the
consultation with the Governor of the State. In view of this E
position of law emerging from the provisions of the unamended
and amended Act, the Writ Petition (C) No. 539 of 2007 filed
by the petitioner will have to be rejected.
17. The argument that Section 12(2) of the amended Act F
enabling the appropriate Government to nominate one of the
Members of the Tribunal to perform financial and administrative·
functions destroys independence of the Tribunal which is· a
Judicial Forum and, therefore, the said provision should be
regarded as unconstitutional, is devoid of merits. As is clear G
from the provisions of Section 12 of the Ame.nded Act, the
Chairman of the Tribunal has to exercise all financial and
administrative powers over the Benches. Essentially the
provision for delegating financial and administrative powers to
one of the Members of a Bench is made, to lessen H
376 SUPREME COURT REPORTS [2010] 6 S.C.R.
A administrative burden lying on the shoulders of the Chairman
who normally sits at Delhi and for effective and better
administration of the Benches of the Tribunal located in different
and far flung States of the country. It is not difficult to visualise
the problems, complications, obstacles, delay, etc., faced by
B the Chairman, while exercising financial and administrative
powers over the Benches. The decentralisation of financial and
administrative powers to tackle local needs and problems, in
favour of a Member of Tribunal, for effective administration of
the Tribunals, cannot be regarded as destroying the basic
C feature of the Constitution, namely independence of judiciary.
The designation of the Vice-Chairman by the Central
Government under Section 12(2) of the Act would obviously be
in concurrence with the Chairman. Further, the Vice-Chairman
would discharge such functions of the Chairman as the
Chairman may so direct. It is absolutely, completely and entirely
0
for the Chairman to recommend to the Government as to
designate which Member of the Tribunal as Vice-Chairman. The
said provision is an enabling provision, which is clear from the
use of the expression "may" in the said provision. If the
Chajrman of the Tribunal feels that no Member should be
E designated as Vice-Chairman, the Government suo motu
cannot and would not be in a position to make designation
contemplated by the said provision. The designation as Vice-
Chairman would not entitle the Member so designated to any
special benefits in service conditions. The only purpose of the
F said provision is to help the Chairman in discharge of his
administrative functions as the Benches of the Tribunal are
situated in different parts of the country. Section 12(2) of the
Act, which enables the appropriate Government to designate
one or more Members as Vice-Chairman and entitles the
G Members so designated to exercise such powers and perform
such ftmctions of the Chairman as may be delegated to him
by the Chairman by general or special order in writing cannot
be regarded as destroying the principle independence of
judiciary or of the Administrative Tribunals. This Court fails to
H understand as to how the appropriate Government would be
. A.K. BEHERA v. UNION OF INDIA & ANR. 377
[J.M. PANCHAL, J.]
able to destroy the independence of Tribunals by designating A
one or more Members to be the Vice-Chairman for the
purposes of performing the functions of the Chairman to be
delegated to him by the Chairman. The jurisdiction, powers and
authority of the Central Administrative Tribunal are defined in
the Act and, more particularly, in Sections 14, 15, 16, 17 and 8
18 of the Act. The petitioners have failed to demonstrate that
by authorizing appropriate Government to designate one or
more Members to be the Vice-Chairman for the purpose of
performing financial and administrative powers of the Chairman,
the independence of the Tribunals secured by the above referred C
to provisions is in any manner eroded. The challenge to the
constitutional validity of Section 12(2) of the Act to say the least
is misconceived and without any basis and, therefore, must fail.
18. For the reasons stated in the Judgment, this Court does
not find any merits in any of the abovementioned writ petitions D
and they are liable to be dismissed. Accordingly, both the writ
petitions fail and are dismissed. There shall be no order as to
costs.
DALVEER BHANDARI, J. 1. I have had the benefit of E
going through the judgment of my Brother Hon'ble Mr. Justice
J.M. Panchal. Though Hon'ble Mr. Justice K.G. Balakrishnan,
Chief Justice of India has agreed with his decision, however, I
express my inability to agree with him, therefore, I am writing a
separate judgment.
F
2. Writ Petition No. 261 of 2007 under Article 32 has been
filed by a practicing Advocate and the President of the Central
Administrative Tribunal, Principal Bench, Bar Association, New
Delhi. The connected Writ Petition No. 539 of 2007 under
Article 32 has been filed by a Member (Judicial) in the G
Maharashtra Administrative Tribunal, Maharashtra. Most of the
. issues involved in both the petitions are identical, therefore, both
these petitions are being disposed o_f by this common
judgment.
H
378 $UPREME COURT REPORTS [2010] 6 S.C.R.
A 3. The petitioners are aggrieved by certain amendments
carried out in the Administ;ative Tribunal Act, 1985 (for short,
'the Act').
4. The petitioners are particularly aggrieved by the
abolition of the post of Vice-Chairman in the Central
8 Administrative Tribunal by the Administrative Tribunal
(Amendment) Act 2006 (for short, 'Amendment Act') which
came into force by Act No.1/2007 dated 19.2.2007. According
to the petitioners, the said Amendment Act is constitutionally
and legally untenable and unsustainable because no reason for
C such abolition has been spelt out by the respondents at any
point of time while introducing the said Amendment Bill.
5. The petitioners are also aggrieved by the newly inserted
Section 1OA of the Act which creates a hostile discrimination
o in the matter of conditions of service between the members of
the Tribunal appointed before and after 19.2.2007 inasmuch as
"conditions of service" of a High Court Judge have been granted
to members appointed after 19.2.2007 while the same have
been denied to other members appointed before 19.2.2007.
E 6. According to the petitioners, the newly inserted section
1OA is discriminatory and arbitrary inasmuch as, on the one
hand, vide section 8(2) of the Amendment Act, the age of
retirement for members has been increased from 62 years to
65 years and, on the other hand, by the newly inserted Section
F 1OA, the total tenure of members of the Administrative Tribunals
has been restricted to ten years (two terms}, in other words,
compelling them to retire at the age of fifty five years is wholly
irrational and discriminatory and has been designed to
discourage promising and otherwise deserving, competent and
G successful members of the Bar from joining the Tribunal. The
age of appointment as a judicial member of the Tribunal is 45
years and any member who is appointed at that age
necessarily has to retire at the age of 50 or 55 years, whereas
other members retire at the age of 65 years. Insertion of section
H 1OA would seriously discourage, deter and dissuade deserving
A.K. BEHERA v. UNION OF INDIA & ANR. 379
[DALVEER BHANDARI, J.]
members of the Bar from joining the Tribunal because it would A
totally frustrate their career planning. The member after
demitting the office is debarred from practicing before any
Bench of the Tribunal.
7. The petitioners also submitted that the judicial members B
appointed from the Bar since the inception of the Tribunal have
played a pivotal role in the judicial functioning of the Tribunal.
They have been in fact the backbone of the Tribunal. Thus the
present amendment would greatly affect the efficiency, efficacy
and credibility of the Tribunal. No reason, rationale or logic has C
been spelt out as to why the ceiling of ten years has been
imposed particularly when the age of superannuation has been
increased from 62 years to 65 years for other members.
8. The petitioners submitted that the amended section
12(2) of the Act amounts to interference of executive in the D
affairs of the judiciary by which the power to designate one or
more members as "Vice-Chairman" to exercise certain powers
and perform certain functions of the Chairman in the outlying
Benches of the Tribunal has been conferred upon the
Government whereas, previously such powers were vested with E
the Chairman of the Tribunal.
9. The petitioners further submitted that the Amendment
Act has abolished the post of "Vice-Chairman" in the
Administrative Tribunals. The post of Vice-Chairman had been F
in existence in the Administrative Tribunal since its inception
in 1985. The said post enabled the retired or retiring judges of
various High Courts to join the Central Administrative Tribunal.
Besides, it also provided an opportunity in the nature of
promotion for the members of Administrative Tribunals. By
abolition of the post of Vice-Chairman, the retired High Court G
judges would not find it attractive to join the Tribunal and,
consequently, the judicial character of the Tribunal would suffer
a serious setback.
10. It was also submitted that the newly introduced section H
380 SUPREME COURT REPORTS [2010] 6 S.C.R.
A 6(2) of the Administrative Tribunals Act, 1985 modifies the
qualifications for appointment as Administrative Members in the
Tribunal in such a manner that for all practical purposes, except
for the officers of the Indian Administrative Service (for short,
'IAS'), hardly any other civil servant would ever become eligible
B for such appointment. Earlier, even the Income Tax, Postal and
Customs Officers etc. used to become members of the
Tribunal. Now, after the amendment, they would hardly have any
chance of becoming members of the Tribunal. In other words,
by the 2006 Amendment, the zone of consideration for
c appointment of Administrative Members has been essentially
confined only to IAS officers by a colourable exercise of power
by depriving all other categories of civil servants for such
appointment. The petitioners have not placed sufficient material
on record to decide this controversy, therefore, I refrain from
commenting on this grievance of the petitioners. However, I
0
direct the respondents to look into the grievance of members
of other services and if any merit is found in the grievance then
take appropriate remedial steps so that members of other
services may get proper representation.
E 11. The petitioners further submitted that by introducing
section 12(2) in the Act, the power to designate a "Vice-
Chairman" in the Benches for the purposes of certain duties
and functions of the Chairman has been usurped by the
government. Previously such powers were vested with the
F Chairman of the Tribunal. Such a provision has the potentiality
of destroying the judicial independence of the Tribunal
particularly when such uncontrolled, unguided and unregulated
powers have now been given to the Government.
G 12. In order to properly comprehend the controversy
involved in the case, relevant newly inserted sections 1OA and
12(2) along with unamended section 12 are reproduced as
under:-
Newly Inserted Section 1OA of the Amended Act
H
A.K. BEHERA v. UNION OF INDIA & ANR. 381
[DALVEER BHANDARI, J.]
"1 OA. Saving terms and conditions of service of A
Vice-Chairman. - The Chairman, Vice-Chairman and
Members of a 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 B
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 C
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) Act, 2006 be
considered for a fresh appointment in accordance with the D
selection procedure laid down for such 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."
E
SECTION 12 SECTION 12 (2)
(BEFORE AMENDMENT) (AFTER AMENDMENT)
"12.Financial and 12. Financial and
administrative F
administrative powers of
the Chairman.- The powers of the
Chairman shall exercise Chairman.- (1) The
such financial and Chairman shall
administrative powers exercise such
over the Benches as may financial and G
be vested in him under administrative
the rules made by the powers over the
appropriate Government: Benches as may be
· vested in him under
Provided that the the rules made by the H
382 SUPREME COURT REPORTS (2010] 6 S.C.R.
A Chairman shall have appropriate
authority to delegate such Government.
of his financial and
administrative powers as (2)The appropriate
he may think fit to the Government may
B Vice-Chairman or any designate one or more
officer of the Tribunal, Members to be the Vice-
subject to the condition Chairman or, as the case
that the Vice-Chairman or may be, Vice-Chairman
such officer shall, while thereof and the Members
so designated shall
c exercising such
exercise such of the
delegated powers,
continue to act under the powers and perform such
direction, control and of the functions of the
supervision of the Chairman as may be
Chairman." delegated to him by the
D Chairman by a general or
special order in writing.
13. In pursuance to the show cause notice issued by this
Court, the respondents, through the Under Secretary in the
E Ministry of Personnel, Government of India, have filed counter
affidavit incorporating therein that abolishing the post of Vice-
Chairman in the Tribunal was intended as it was creating an
avoidable three tier-system resulting in anomalies in
qualifications, age of retirement, service conditions etc. It is
F further incorporated in the counter affidavit that the abolition of
the post of Vice-Chairman and upgrading the post of members
or increase of retirement age do not in any manner impinge
upon the working of the Tribunal.
14. It is also incorporated in the counter affidavit that the
G post of Vice-Chairman under the amended Act is only an
executive designation for discharging the administrative
powers. Though the Government has been given the power to
nominate one of the members as Vice-Chairman of the
Tribunal, it is obvious that the said designation of a member
H as Vice-Chairman would obviously be made with the
AK. BEHERA v. UNION OF INDIA & ANR. 383
[DALVEER BHANDARI, J.}
concurrence of the Chairman of the Tribunal. A
15. In the counter affidavit, it is also stated that a retired
High Court judge would be eligible for appointment as member
of the Tribunal. Usually a retired Chief Justice of the High Court
is appointed as the Chairman of the Tribunal and very rarely, a B
retired judge may also be appointed as the Chairman of the
Tribunal. In any event, the Chairman would be a senior retired
judge who is appointed as a member of the Tribunal. Hence,
there is no anomaly.
16. In the counter affidavit, it is specifically admitted that C
there is some substance in the contention of the petitioners that
members appointed prior to 19.2.2007 would be at
disadvantage in terms of their service conditions inasmuch as
they would not get the same benefits as the High Court judge.
However, this is a temporary anomaly. Over a period of time, D
the same anomaly would correct itself and after a period of 4-
5 years, all the members of the Tribunal would be treated in an
equal manner.
17. In the counter affidavit it is denied that ceiling on the E
terms has the effect of stopping members of the Bar from being
appointed for the post of Vice-Chairman. In the counter affidavit
it is also incorporated that the tenure of ten years was
prescribed way back in the year 1985.
18. The petitioners have also filed the rejoinder affidavit. F
It is reiterated that under the un-amended Act, members of the
Tribunal were eligible for multiple terms and it was not restricted
to two terms. In fact, a number of members were given multiple
extensions under the unamended Act. Thus the restriction of
ten years has been imposed for the first time under the G
amended Act.
19. In the rejoinder affidavit, it is reiterated that the
discriminatory treatment being given to the members of
Administrative Tribunal appointed prior to 19.2.2007 is H.
384 SUPREME COURT REPORTS [2010) 6 S.C.R.
A untenable and unsustainable. Law does not allow temporary
discrimination even for a few years. It is clearly violative of
Articles 14 and 16 of the Constitution.
20. In the rejoinder, it is further asserted that under the
B unamended Act the High Court Judges were being appointed
as Vice-Chairman and, therefore, they enjoyed higher status
than that of the members. Thus, when a Bench was being
constituted consisting of a High Court Judge as Vice-Chairman
and other members, the High Court Judge used to preside over
the Bench as the Vice-Chairman. Now under the Amended Act
C the posts of Vice-Chairman having been abolished, the High
Court Judges are also appointed as Member (Judicial) and the
seniority among members has to be on the basis of date of
appointment as a member. In such an eventuality, many High
Court Judges who would be appointed as Member (Judicial)
D could be lower in the seniority creating an anomalous. situation
for the constitution of Benches in the Tribunal. Besides, if for
any reason a retired High Court Judge presides over the Bench
as the Vice-Chairman, even though he may have joined as a
member much later, it would create a lot of heart-burning
E amongst all previously appoin•ed members as the class of
members has now been made one.
21. It is also incorporated in the rejoinder that the
amendment has placed the members of the Bar in a totally
F disadvantageous position as previously the members of the
Bar were being selected as Member (Judicial), but with the
amendment now the retiring and retired High Court Judges are
competing for the post of Member (Judicial) thereby the
members of the Bar are totally ignored. Theoretically, the
members of the Bar are eligible for appointment as Member
G (Judicial), practically competent and otherwise deserving
lawyers have been eliminated from the scene. The Tribunal
which is discharging judicial powers whicl1 were earlier
exercised by the High Courts should be predominantly manned
by the members of the Bar and Judiciary but after the
H
A.K. BEHERA v. UNION OF INDIA & ANR. 385
[DALVEER BHANDARI, ·J.]
amendment till date only two members have been appointed A
from the Bar in so many years. This is the direct and inevitable
impact of the amendment. This goes against the letter and spirit
of the law declared in the case of S.P. Sampat Kumar v. Union
of India & Others (1987) 1 SCC 124.
B.
22. The petitioners further submitted in the rejoinder that
the designation of Vice-Chairman is still in existence under
Amended Act also but the power of nomination for the said post
in all additional Benches under the amended Act has been
given to. the appropriate Government which is not a healthy C
development and thus needs to be quashed.
23. The petitioners submitted that the effort of the Central
Government to increase the age of retirement of the members
of Tribunal from 62 to 65 years is undoubtedly a welcome step.
However, by this effort every member of Tribunal will not have D
a tenure of 5 years as asserted by the respondents. The High
Court Judges retire at the age of 62 years. Under the amended
Act members of the Tribunal retire at the age of 65 years
thereby effectively serving the Tribunal only for a maximum
period of three years. The increase in the age of retirement will E
give a minimum tenure of 5 years to the Administrative
Members but not to the retired High Court Judges who are
appointed as Judicial Members. They would get maximum of
three years only.
24. The petitioners also made grievance that as to why it
F
became imperative to snatch the powers of the Chairman to
delegate his financial and administrative powers to any Vice-
Chairman/Member. In the rejoinder, it is submitted that the
respondents have clearly admitted that the discriminatory
treatment is being given to the members of the Administrative G
.Tribunal appointed prior to 19.2.2007.
25. The respondents have nowhere denied that both the
categories of members are not discharging the same duties,
obligations and responsibilities, therefore, the conditions of H
386 SUPREME COURT REPORTS [2010] 6 S.C.R.
A service for both of them are different. This is a clear
discrimination and violation of Articles 14 & 16 of the
Constitution of India. Thus, even on the basis of reply given by
the respondents it is proved beyond any shadow of doubt that
section 1OA of the amended Act is clearly discriminatory and ·
B unsustainable.
26. The contention of the respondents that the 'temporary
anomaly' would not make the provision unconstitutional is
clearly wrong and is denied. Discrimination even for a
temporary period of 4 to 5 years is also violative of Articles 14
C and 16 of the Constitution of India. There is no law under which
a temporary discrimination can be saved.
27. It is also stated that because of this discriminatory
provision anomalous situation has already arisen in the Central
D Administrative Tribunal. The petitioners have given an example
that under the unamended Act, only the Secretaries and the
Additional Secretaries to the Government of India were eligible
for appointment as Member (Administrative). Under the said
unamended provisions, a nui.iber of former Secretaries to
E Government of India were appointed as Member
(Administrative). They have been continuing as such till date
and have acquired experience of a number of years. They are
till now continuing under the old conditions of service. Now
under the amended provisions, selection has already been held
F and a number of retired judges and officers at the level of the
Additional Secretaries to Government of India have been
selected and appointed as members under the new conditions
of service. Thus, while retired Judges and Secretaries to the
Government of India now working as members are not given
G the benefit of the 'conditions of service' of a High Court Judge
but subsequently appointed retired Additional Secretaries to the
Government of India now appointed as Member (Administrative)
are given service conditions of a High Court Judge. The
Administrative Members, though junior both while in the
H government service as well as an Administrative Member are
AK. BEHERA v. UNION OF INDIA & ANR. 387
[DALVEER BHANDARI, J.]
entitled to get service conditions of a High Court Judge. A
28. The situation is becoming more and more acute with
more and more newly selected Members (Administrative)
·f joining the Tribunal. Similar situation is prevailing amongst
Member (Judicial) also. While persons appointed as Member
B
{Judicial) and senior to some newly appointed Member
{Judicial) would not get the benefit of the service conditions of
a High Court Judge and the later appointees would get service
conditions of a High Court Judge.
29. The petitioners are aggrieved by the newly inserted c
section 1OA of the Act to the extent it postulates different
conditions of service for the members of the Central
Administrative Tribunal on the basis of their dates of
appointments under the amended and the unamended Rules
as unconstitutional, arbitrary and legally unsustainable. D
30. A Constitution Bench of this Court in Sampath Kumar's
case (supra) has clearly laid down that the Central
Administrative Tribunal has been created in substitution of the
High Court. This Court in para 15 of the judgment observed as
E
under:
"......... 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 F
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 G
effective, expeditious 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 this category. The Committee recommended the
setting up of an independent Tribunal to handle the H
388 SUPREME COURT REPORTS (2010) 6 S.C.R.
A 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
B Government servants against disciplinary action ....... "
31. The judicial work which is now being dealt with by the
members of the Tribunal was earlier discharged by the judges
of the High Court before the Tribunal was established. In most
of the High Courts, a large number of cases had got piled up
C awaiting adjudication. The High Courts were taking years and
in some cases decades in deciding these cases. The Union
of India had an option either to suitably increase the strength
of the High Courts or to create a separate Tribunal for
expeditious disposal of these cases. The Union of India
D decided to create a separate Tribunal. Once the Tribunal is
discharging the functions of the judiciary, then both judges and
members of the Bar have to be an integral part of the Tribunal.
The functioning of the Tribunal may become difficult in case
Members of Judiciary and Bar have no incentive to join the
E Tribunal or they are deliberately discouraged and dissuaded
from joining the Tribunal because of newly inserted
amendments in the Act. The non-descript and otherwise non-
deserving candidates would always be available but in order
to have public trust and confidence in the functioning of the
F Tribunal, it is absolutely imperative that the respondents must
endeavour to attract really deserving, competent and promising
members of the Bar with high caliber and integrity to join the
Tribunal. In order to attract such talent, the service conditions
have to be improved and made attractive because these
G members are discharging the functions of the High Court.
32. In Sampath Kumar's case (supra), the Con,{;titution
Bench has dealt with this aspect of the matter in some detail.
This Court in para 21 observed as under:
H "...... So far as the Chairman is concerned, we are of the
A.K. BEHERA v. UNION OF INDIA & ANR. 389
[DALVEER BHANDARI, J.]
view that ordinarily a retiring or retired Chief Justice of a 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 Court.
We must immediately point out that we have no bias, in B
any manner, against members of the Service. Some of
them do 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 C
opinion, a necessary qualification for the post of
Chairman ..... "
Similarly, other members also discharge the same judicial
functions. In order to preserve public confidence, acceptability
0
and trust, members of the Bar and Judiciary must be
encouraged to man the Tribunal. Discouraging or killing the
incentive of members of the Bar and Judiciary to accept the
appointment of the Tribunal would have serious repercussions
about the credibility, confidence, trust and acceptability of the E
Tribunal particularly when according to Sampath Kumar's case
(supra}, the High Court is being supplanted -by the
Administrative Tribunal. In a democratic country governed by
the rule of law no institution discharging judicial functions can
properly survive without public confidence, credibility, trust and
acceptability. F ..
33. The Constitution Bench in Sampath Kumar's case
(supra) observed that what we really need is the judicial
Tribunal. The judicial functions which, before setting up of the
Central Administrative Tribunal, were discharged by the judges G
of the High Courts, would now be discharged by the members
of the Tribunal, therefore, it is imperative that the judicial work
of the Tribunal should be handled by talented and competent
members who have legal background and judicial experience.
Any amendment of the, Statute which discourages the members H
390 SUPREME COURT REPORTS [2010] 6 S.C.R.
A of the Bar and Judiciary from joining the Administrative Tribunal
deserves to be discarded.
34. The Tribunal has the power of judicial review. It is now
well settled by this Court in the case of Minerva Mills Ltd. &
B Ors. v. Union of India & Ors. (1980) 3 SCC 625 that judicial
review is a basic and essential feature of the Constitution and
no law passed by the Parliament in exercise of its constituent
power can abrogate it or take it away. If the power of judicial
review is abrogated or taken away, the Constitution will cease
C to be what it is. It is a fundamental principle of our constitutional
scheme that every organ of the State and every authority under
the Constitution derives its power and authority from the
Constitution and has to act within the limits of such powers.
35. In Sampath Kumar's case (supra) the court observed
D as under:
"3 .... 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
E
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 detPrmining what is the extent and scope
of the power conferred on each branch of Government,
F what are the limits on the exercise of such power under
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.
G that the exercise of power by the executive or any other
authority must not only be conditioned by the Constitution
but also be in 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
H executive and other authorities. This function is discharged
A.K. BEHERA v. UNION OF INDIA & ANR. 391
[DALVEER BHANDARI, J.]
by the judiciary by exercise of the power of judicial review A
which is a most potent weapon in the hands of the judiciary
for maintenance of the rule of law. The power of judicial
review is an integral part of our constitutional system and
without it, there will be no Government or laws and the rule
of law would become a teasing illusion and a promise of B
unreality.... ."
36. Bhagwati, CJ in a concurring judgment in Sampath
Kumar's case (supra) observed as under:
"3 .........The basic and essential feature of judicial review C
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 less efficacious than the D
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 E
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 or authority, it would
not be violative of the basic structure doctrine, so long as
the essential condition is fulfilled, namely, that the F
alternative institutional mechanism or authority set up by
the parliamentary amendment is no less effective than the
High Court."
Justice Bhagwati, in the said judgment, effectively reminded us
that the Administrative Tribunal is to carry out the functions of G
the High Court. In order to inspire confidence in the public mind
it is essential that it should be manned by people who have
judicial and/or legal background, approach and objectivity. This
court in Sampath Kumar (supra) further observed as under:
H
392 SUPREME COURT REPORTS [2010) 6 S.C.R.
A "5. We cannot afford to forget that it is the High Court which
is being supplanted by the Administrative Tribunal and it
must be so manned as to inspire confidence in the public
mind that it is a highly competent and expert mechanism
with judicial approach and objectivity. Of course, I must
B make it clear that when I say this, I do not wish to cast any
reflection on the members of the Civil Services because
fortunately we have, in our country, brilliant civil servants
who possess tremendous sincerity, drive and initiative and
who have remarkable capacity to resolve and overcome
c administrative problems of great complexity. But what is
needed in a judicial tribunal which is intended to supplant
the High Court is legal training and experience .. ."
37. Justice Bhagwati, in his judgment in Sampath Kumar's
case has also cautioned that in service matters, the Government
D is always the main contesting or opposite party, therefore, it
would not be conducive to judicial independence to leave
unfettered and unrestricted discretion to the executive in the
matter of appointments of Chairman, Vice-Chairman and
Administrative Members. The court observed as under:
E
"7 ..... 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 conducive to
F 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
have to depend on the goodwill and favourable stance of
G
the executive and that would be likely to affect the
independence and impartiality of the members of the
Tribunal. The same would be the position vis-a-vis
promotion to the office of Chairman of the Administrative
Tribunal. The administrative members would also be likely
H
A.K. BEHERA v. UNIDN OF INDIA & ANR. 393
[OALVEER BHANDARI, J.]
to carry a sense of obligation to the executive for having A
been appointed members of the Administrative Tribunal
and that would have a tendency to ~11pair the independence
and objectivity of the members of the Tribunal. There can
be no doubt that the power of appointment and promotion
vested in the executive can have prejudicial effect on the B
independence of the Chairman, Vice-Chairmen and
members of the 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 C
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 .. ."
38. In order to inspire public confidence, it is imperative D
that the deserving persons with competence, objectivity,
impartiality and integrity with judicial and/or legal backgrounCl
are appointed as members of the Tribunal.
. 39. Ranganath Misra, J. who wrote the main judgment of E
the Constitution Bench in Sampath Kumar (supra) observed
as under:
"18. 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 F
highest courts within their respective jurisdiction subject to
an appeal to the Privy Council in a limited category of
cases. In this long period of about six scores of years, the
High Courts have played their role effectively, efficiently as
also satisfactorily. The litigant in this country has seasoned G
himself to look up to the High Court as the unfailing
protector of his person, property and honour. The institution
has served its purpose very well and the common man has
thus come to repose great confidence therein. Disciplined,
independent and trained Judges well-versed in law and H
394 SUPREME COURT REPORTS [2010] 6 S.C.R.
A working with all openness in an unattached and objective
manner have ensured 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
B be done to them and the State's authorities would
implement the decision of the Court. It is, therefore, of
paramount importance that the substitute institution-the
Tribunal-must be a worthy successor of the High Court
in all respects. That is exactly what this Court intended to
c convey when it spoke of an alternative mechanism in
Minerva Mills' case."
40. In the later part of the judgment, while clarifying that this
court has no bias against the members of service, the court
observed as under:
D
"21. .... We must immediately point out that we have no
bias, in any manner, against members of the Service.
Some of them do exhibit great candour, wisdom, capacity
to deal with intricate problems with understanding,
E 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
.
Ch airman ... "
41. While commenting on section 8, the court further
F observed as under:
"22. 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
G 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
H would, however, like to indicate that appointment for a term
"
A.K. BEHERA v. UNION OF INDIA & ANR. 395
[DALVEER BHANDARI, J.)
of five years may occasionally operate as a disincentive A
for well qualified people to accept the offer to join the
Tribunal. There may be competent people belonging to
younger age groups who would have 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 B
year period but long before the superannuation age is
reached is bound to operate as a deterrent. .. "
42. In L. Chandra Kumar v. Union of India & Others (1997)
3 sec 261, the Court dealt with the origin of judicial review. c
The origin of the power of judicial review of legislative action
may well be traced to the classic enunciation of the principle ·
by Chief Justice John Marshall of the US Supreme Court in
Marbury v. Madison. (But the origins of the power of judicial
review of legislative action have not been attributed to one D
source alone). So when the framers of our Constitution set out
their monumental task, they were well aware that the principle
that courts possess the power to invalidate duly-enacted
legislations had already acquired a history of nearly a century
and a half.
E
43. In R.K. Jain v. Union of India (1993) 4 SCC 119 (para
8) the court observed as under:-
"... (T)he time is ripe for taking stock of the working of the
various Tribunals set up in the country after the insertion F
of Articles 323A and 3238 in the Constitution. A sound
justice delivery system is a sine qua non for the efficient
governance of a country wedded to the rule of law. An
independent and impartial justice delivery system in which
the litigating public has faith and confidence alone can G
deliver the goods ... "
44. In Bidi Supply Co. v. Union of India & Ors. 1956 SCR
267, the Court observed as under:
"The heart and core of democracy lies in the judicial H
396 SUPREME COURT REPORTS [2010] 6 S.C.R.
A process, and that means independent and fearless judges
free from executive control brought up in judicial traditions
and trained to judicial ways of working and thinking. The
main bulwarks of liberty of freedom lie there and it is clear
to me that uncontrolled powers of discrimination in matters
-8 that seriously affect the lives and properties of people
cannot be left to executive or quasi executive bodies even
if they exercise quasi judicial functions because they are
then invested with an authority that even Parliament does
not possess. Under the Constitution, Acts of Parliament
c are subject to judicial review particularly when they are said
to infringe fundamental rights, therefore, if under the
Constitution Parliament itself has not uncontrolled freedom,
of action, it is evident that it cannot invest lesser authorities
with that power."
D 45. In His Holiness Kesavananda Bharati Sripadagalvaru
v. State of Kera/a & Anr. (1973) 4 SCC 225, Khanna, J. (at
para 1529 at page 818) observed as under:
"... The power of judicial review is, however, confined not
E merely to deciding whether in making the impugned laws
the Central or State Legislatures have acted within the four
corners of the legislative lists earmarked for them; the
courts also deal with the question as to whether the laws
are made in conformity with and not in violation of the
F other provisions of the Constitution . ........ As long as
some fundarryental rights exist and are a part of the
Constitution, the power of judicial review has also to be
exercised with a view to see that the guarantees afforded
by those rights are not contravened ... Judicial review has
thus become an integral part of our constitutional system
G
and a power has been vested in the High Courts and the
Supreme Court to decide about the constitutional validity
of provisions of statutes. If the provisions of the statute are
found to be violative of any article of the Constitution, which
is touchstone for the validity of all laws, the Supreme Court
H
A.K. BEHERA v. UNION OF INDIA & ANR. 397
[DALVEER BHANDARI, J.]
and the High Cou'rts are empowered to strike down the A
said provisions."
46. In L. Chandra Kumar's case (supra), the Court
observed as under:
B
"81. If the power under Article 32 of the Constitution, which
has been described as the "heart" and "soul" of the
Constitution, can be additionally conferred upon "any other
court", there is no reason why the same situation cannot
subsist in respect of the jurisdiction conferred upon the C
High Courts under Article 226 of the Constitution. So long
as the jurisdiction of the High Courts under Articles 226/
227 and that of this Court under Article 32 is retained,
there is no reason why the power to test the validity of
legislations against the provisions of the Constitution
cannot be conferred upon Administrative Tribunals created D
under the Act or upon Tribunals created under Article 323-
B of the Constitution. It is to be remembered that, apart
from the authorization that ilows from Articles 323-A and
323-8, both Parliament and the State Legislatures
possess legislative competence to effect changes in the E
original jurisdiction of the Supreme Court and the High
Courts ... "
4 7. The Report of the Arrears Committee (1989-90)
popularly known as the Malimath Committee Report, in Chapter F
VIII of the second volume under the heading "Alternative Modes
and Forums for Dispute Resolution" dealt with the functioning
of the Tribunals in the following words:
"Functioning of Tribunals
G
8.63. Several tribunals are functioning in' the country. Not
all of them, however, have inspired confidence in the
public mind. The reasons are not far to seek. The foremost
is the lack of competence, objectivity and judicial
approach. The next is their constitution, the power and H
398 SUPREME COURT REPORTS [2010] 6 S.C.R.
A method of appointment of personnel thereto, the inferior
status and the casual method of working. The last is their
actual composition; men of caliber are not willing to be
appointed as presiding officers in view of the uncertainty
of tenure, unsatisfactory conditions of service, executive
B subordination in matters of administration and political
interference in judicial functioning. For these and other
reasons, the quality of justice is stated to have suffered and
the cause of expedition is not found to have been served
by the establishment of such tribunals."
c 48. The Tribunals were established to inspire confidence
in the public mind for providing speedy and quality justice to
the litigants. The Tribunals were set up to reduce the increasing
burden of the High Courts. The High Courts' judicial work was
in fact entrusted to these Tribunals. The judicial work should be
D adjudicated by legally trained minds with judicial experience or
at least by a legally trained mind. The public has faith and
confidence in the judiciary and they approach the judiciary for
just and fair decisions. Therefore, to maintain the trust and
confidence in the judicial system, the government should ensure
E that the person adjudicating the disputes is a person having
legal expertise, modicum of legal training and knowledge of law
apart from an impeccable integrity and ability. The persons who
have no legal expertise and modicum of legal training may find
it difficult to deal with complicated and complex questions of
F law which at times even baffle the minds of well trained lawyers
and judges. Therefore, dispensation of justice should be left
primarily to the members of the Bar and the Judges who have
by long judicial and legal training and experience have acquired
understanding, objectivity and acumen. Unless we take utmost
G care in the matter of appointments in the Tribunal, our justice
delivery system may not command credibility, confidence and
the trust of the people of this country.
49. In all constitutional matters where amendments of
H certain legislations have been challenged, the approach of this
A.K. BEHERA v. UNION OF INDIA & ANR. 399
[DALVEER BHANDARI, J.]
Court has always been to examine the constitutional scheme A
of every enactment of the State. It is clear that the Court had
• never tried to pick holes or searched for defects of drafting but ·
has sustained the enactments if found fit on the anvil of truth
and has struck down the enactments only whenever an
enactment was found wholly unsustainable. The Courts have B
always been very conscious of the demarked functions of the
three organs of the State. The Courts have also recognized the
concept of checks and balances under the Constitution.
50. The Courts constitute an inbuilt mechanism within the C
framework of the Constitution for purposes of social audit and
to ensure compliance of the Rule of Law. This Court seeks only
to ensure that the majesty of this great institution may .not be
lowered and the functional utility of the constitutional edifice may
not be rendered ineffective. This principle was articulated by
0
this Court in the case of M.L. Sachdev v. Union of India &
Another (1991) 1 SCC 605.
51. There are plethora of cases where challenges have
been made to various enactments of the State constituting
expert bodies/Tribunals on the ground that in such Tribunals the E
positions required to be occupied by the persons of judicial
background are being filled in by those who are bureaucrats
and others who are not having judicial expertise and objectivity.
In such cases, it has been a ground of challenge that the bodies/
Tribunals being judicial forums having adjudicatory powers on F
the questions of importance and legalistic in nature and in the
background of the doctrine of separation of powers recognized
by the Indian Constitution, the head of the judiciary should
always be consulted for such appointments and the main
substance behind such challenge has been that the persons G
who are appointed to such bodies should belong to the judiciary
because those members have to discharge judicial functions.
52. In Sampath Kumar's case (supra), Bhagwati, C.J.
relying on Minerva Mills' case declared that it was well settled
H
400 SUPREME COURT REPORTS (2010) 6 S.C.R.
A that judicial review was a basic and essential feature of the
Constitution. If the power of judicial review is taken away, the
Constitution would cease to be what it is. The court further
declared that if a law made under Article 323-A(1) were to
exclude the jurisdiction of the High Court under Articles 226 and
B 227 without setting up an efficient alternative institutional
mechanism or arrangement for judicial review, it would violate
the basic structure and hence outside the constituent power of
Parliament.
53. The Parliament was motivated to create new
C ac;!judicatory fo'ra to provide new, inexpensive and fast-track
adjudicatory systems and permitting them to function by tearing
of the conventional shackles of strict rule of pleadings, strict rule
of evidence, tardy trials, three/four-tier appeals, endless
revisions and reviews - creating hurdles in fast flow of stream
D of justice. The Administrative Tribunals as established under
Article 323-A and the Administrative Tribunals Act, 1985 are
an alternative institutional mechanism or authority, designed to
be not less effective than the High Court, consistently with the
amended constitutional scheme but at the same time not to
E negate judicial review jurisdiction of the constitutional courts.
54. I am, therefore, clearly of the opinion that there is no
anathema in the Tribunal exercising jurisdiction of High Court
and in that sense being supplemental or additional to the High
Court but, at the same time, it is our bounden duty to ensure
F that the Tribunal must inspire the same confidence and trust in
the public mind. This can only be achieved by appointing the
deserving candidates with legal background and judicial
approach and objectivity.
G 55. I deem it appropriate to briefly discuss the theory of
basic structure and separation of power in the Constitution to
properly comprehend the controversy involved in this case.
EQUALITY AND BASIC STRUCTURE
H
AK. BEHERA v. UNION OF INDIA & ANR. . 401
[DALVEER BHANDARI, J.]
56. Initially when the doctrine of basic structure was.laid A
down there was no specific observation with respect to whether
Article 14 forms part of basic structure or not. In fact the
confusion was to such an extent as to whether fundamental
rights as a whole form part of basic structure or not? It was in
this light that Khanna, J., had to clarify in his subsequent B
decision in Indira Nehru Gandhi v. Raj Narain & Anr. (1975)
Supp. SCC 1 in the following words:-
''. ......What has been laid down in that judgment is that no
article of the Constitution is immune from the amendatory c
process because of the fact that it relates. to a fundamental ·
right and is contained in Part Ill of the Constitution ..... The
above observations clearly militate against the contention
that according to my judgment fundamental rights are not
a part of the basic structure of the Constitution. I also dealt 0
with the matter at length to show that the right to property
·was not a part of the basic structure of the Constitution.
This would have been wholly unnecessary if none of the
fundamental rights was a part of the basir. structure of the
_ Constitution". [Paras 251-252]
E
Further, though not directly quoting Article 14 of the constitution
Chandrachud, ~· in the above mentioned case held that, ·
"I consider it beyond the pale of reasonable controversy .
that if there be any unamendable features of the F
Constitution on the score that they form a part of the basic
structure of the Constitution, they are that: (1) Indian .
sovereign democr.atic republic; (ii) Equality of status and
opportunity shall be secured to all its citizens; (iii) The State
shall have no religion of its own and all persons shall be G
equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion and that
(iv) the nation will be governed by a Government of laws,
not of men. These, in my opinion, are the pillars of ou.
·constitutional .Philosophy, the pillars, theref~re, of the basic H
402 SUPREME COURT REPORTS [2010) 6 S.C.R.
A structure of the Constitution." [Para 664]
57. Thus, from the above observations it is very clear that
at no point of time there was the intention to exclude the
mandate of equality from the basic structure. The l.R. Coelho
B (dead) by Lrs. v. State of Tamil Nadu & Others (2007) 2 SCC
1 rightly observed that in Indira Gandhi's case, Chandrachud,
J. posits that equality embodied in Article 14 is part of the basic
structure of the constitution and, therefore, cannot be abrogated ·
by observing that the provisions impugned in that case are an
C outright negation of the right of equality conferred by Article 14,
a right which more than any other is a basic postulate of our
constitution [Para 108]
58. In the above case relying on the observations in the
Minerva mil/s's case the question of Article 14 coming under
D the purview of Basic structure has been brought at rest. Since
it has been a settled question per the judgment of l.R. Coelho
that the arbitrariness of a legislation, Rules, Policies and
amendment would be subject to the test of reasonableness, rule
of law and broad principle of equality as per Article 14.
E
59. In Ashoka Kumar Thakur & Ors. v. Union of India &
Ors. (2008) 6 SCC 1, Balakrishnan, CJ. observed that,
"118. Equality is a multicolored concept incapable of a
single definition as is also the fundamental right under
F Article 19(1 )(g). The principle of equality is a delicate,
vulnerable and supremely precious concept for our society.
It is true that it has embraced a critical and essential
component of constitutional identity. The larger principles
of equality as stated in Articles 14, 15 and 16 may be
G understood as an element of the "basic structure" of the
Constitution and may not be subject to amendment,
although, these provisions, intended to configure these
rights in a particular way, may be changed within the
constraints of the broader principle. The variability of
H changing conditions may necessitate the modifications in
A.K. BEHERA v. UNION OF INDIA & ANR. 403
[DALVEER BHANDARI, J.]
the structure and design of these rights, but the transient A
characters of formal arrangements must reflect the larger
purpose and principles that are the continuous and
unalterable thread of constitutional identity. It is not the
introduction of significant and far-reaching change that is
objectionable, rather it is the content of this change insofar B
as it implicates the question of constitutional identity."
SEPARATION OF POWERS
60. The Constitution has very carefully separated the
powers of executive, judiciary and legislature and maintained C
a very fine balance.
61. Sikri, C.J. in Kesavananda Bharati's case (supra)
stated that separation of powers between the legislature,
executive and the judiciary is basic structure of the constitution. 0
The learned judge further observed that,
'The above structure is built on the basic foundation i.e.
the dignity and freedom of the individual. This is of
supreme importance. This cannot by any form of
. amendment be destroyed." (Para 293) E
"The above foundation and the above basic features are
easily discernible not only from the preamble but the whole
scheme of the Constitution, which I have already
discussed." [Para 294] F
62. In Minerva Mills Ltd. (supra), the court observed thus:-
"87 ...... 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. But then the G
question arises as to which authority must decide what are
the limits on the power conferred upon each organ or
instrumentality of the State ano whether such limits are
transgressed or exceeded. Now there are three main
departments of the State amongst which the powers of H
404 SUPREME COURT REPORTS [2010] 6 S.C.R.
A government are divided; the executive, the legislature and
the judidarY. Under our Constitution we have no rigid
separation of powers as in the United States of America,
but there is a broad demarcation, though, having regard
to the complex nature of governmental functions, certain
8 degree of overlapping is inevitable. The reason for this
broad separation of powers is that "the concentration of
powers in any one organ may" to quote the words of
Chandrachud, J., (as he then was) in Indira Gandhi case
(supra) "by upsetting that fine balance between the three
c organs, destroy the fundamental premises of a democratic
government to which we are pledged".
63. This court in Subhash Sharma & Ors. v. Union of India
1991 Sup (1) 574 observed as under:-
D ".......The constitutional phraseology would require to be
read and expounded in the context of the constitutional
philosophy of separation of powers to the extent
recognised and adumbrated and the cherished values of
judicial independence." [Para 31)
E
64. In Pareena Swarup v. Union of India (2008) 14 SCC
107 the court observed as under:-
"9. It is necessary that the court may draw a line which
the executive may not cross in their misguided desire to
F take over bit by bit and (sic) judicial functions and powers
of the State exercised by the duly constituted courts. While
creating new avenue of judicial forums, it is the duty of the
Government to see that they are not in breach of basic
constitutional scheme of separation of powers and
G independence of the judicial function."
In the said case, it was also observed as under:-
"10 ................. The Constitution guarantees free and
independent judiciary and the constitutional scheme of
H separation of powers can be easily and seriously
A.K. BEHERA v. UNION OF INDIA & ANR. 405
[OALVEER BHANDARI, J.]
undermined, if the legislatures were to divest the regular A
courts of their jurisdiction in all matters, and entrust the
same to the newly created Tribunals which are not entitled
to protection similar to the constitutional protection afforded
to the regular courts. The independence and impartiality
which. are to be secured not only for the court but also for B
Tribunals and their members, though they do not belong
to the "judicial service" but are entrusted with judicial
powers. The ~afeguards which ensure independence and
impartiality are not for promoting personal prestige of the
functionary but for preserving and protecting the rights of c
the citizens and other persons who are subject to the
jurisdiction of the Tribunal and for ensuring that such
Tribunal will be able to command the confidence of the
public. Freedom from control and potential domination of
the executive are necessary preconditions for the
0
independence and impartiality of Judges. To make it clear
that a judiciary free from control by the executive and
legislature is essential if there is a right to have claims
decided by Judges who are free from potential domination ·
by other branches of Government. With this background,
let us consider the defects pointed out by the petitioner E
and amended/proposed provisions of the Act and the
Rules."
EQUAL PAY FOR EQUAL WORK
F
65. The Equal Remuneration Act, 1976 and in particular
its preamble declares the Act to provide for payment of equal
remuneration and prevention of any kind of discrimination on
the ground of sex or otherwise in the matter of employment. The
Equal Remuneration Act, 1976 extends to the whole of India G
by virtue of Section 1(2) and there cannot be different pay
scales for different employees carrying out exactly same work.
Section 4(3) states that "where, in an establishment or
employment, the rates of remuneration payable before the /
commencement of this Act for men and women workers for the''
H
406 SUPREME COURT REPORTS [2010) 6 S.C.R.
A same work or work of a similar nature are different only on the
ground of sex, then the higher (in cases where there are only
two rates), or, as the case may be, the highest (in cases where
there are more than two rates), of such rates shall be the rate
at which remuneration shall be payable, on and from such
B commencement, to such men and women workers."
66. In view of the above constitutional principles and
Directive Principles of State Policy under the Constitution and
the statutory and mandatory provisions of overriding Equal
Remuneration Act, 1976, the following principles are evolved
C for fixing the governmental pay policy, whether executive or
legislative on the recommendation of the Pay Commissions,
Pay Committees by Executive Governments, which are broadly
stated as under:-
D (1) The governmental pay policy, whether executive or
legislative, cannot run contrary to constitutional principles
of constitutional law;
(2) The governmental pay policy, whether executive or
legislative, cannot run contrary to the overriding provisions
E
of Equal Remuneration Act, 1976.
xxx xxx xxx
(12) The governmental pay policy must conform to the
F overriding statutory command under Sections 13 and 14
read with Section 1(2) of the Equal Remuneration Act,
1976, which supports for uniformity between the pay policy
of the State Governments and the Central Government in
the whole of India and such uniformity in the pay policy of
the State Governments and the Central Government in the
G
whole of India has already found further support from the
Judgment of this Court in the case of Randhir Singh v.
Union of India & Others (1982) 1 SCC 618. I must hasten
to say that where all things are equal that is, where all
relevant considerations are same, persons holdinq
H
A.K. BEHERA v. UNION OF INDIA & ANR. 407
[DALVEER BHANDARI, J.]
identical posts may not be treated differentially of their pay. A
67. As early as in 1952, in a celebrated case decided by
this court in State of West Bengal v. Anwar Ali Sarkar v. (1952)
SCR 284, this court laid down that in order to pass the test,
two conditions must be fulfilled, namely, that the classification
8
must be founded on an intelligible differentia which
distinguishes those that are grouped together from others and
that said differentia must have a rational relation to the object
sought to be achieved by the Act. The differentia which is the
basis of the classification and the object of the Act are distinct C
things and what is necessary is that there must be a nexus
between them.
68. In 1959, in a celebrated case of Shri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar & Others (1959) 1 SCR
279 at p.296, this Court observed as under: D
''. ........ It is now well established that while article 14
forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order,
however, to pass the test of permissible classification two E
conditions must be fulfilled, namely, (i) that the
classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped
together from others left out of the group and, (ii) that
differentia must have a rational relation to the object sought
F
to be achieved by the statute in question ......... "
.
69. In The State of Jammu & Kashmir v. Triloki Nath
Khosa and Ors. (1974) 1 sec
19, this court observed as
under:-
G
" ....... .Discrimination is the essence of classification and
does violence to the constitutional guarantee of equality
only if it rests on an unreasonable basis ...... "
70. In Indira Nehru Gandhi (supra), the court observed as
u~eG H
408 SUPREME COURT REPORTS [2010] 6 S.C.R.
A ''This Court, at least since the t!lays of Anwar Ali Sarkar's
case, has consistently taken the view that the classification
must be founded on an intelligible differentia which
distinguishes those who are grouped together from those
who are left out and that the differentia must have a rational
B relation to the object sought to be achieved by the
particular law. The first test may be assumed to be
satisfied since there is no gainsaying that in our system
of Government, the Prime Minister occupies a unique
position. But what is the nexus of that uniqueness with the
c law which provides that the election of the Prime Minister
and the Speaker to the Parliament will be above afl laws,
that the election will be governed by no norms or standards
applicable to all others who contest that election and that
a election declared to be void by a High Court judgment
shall be deemed to be valid, the judgment and its findings
D
being themselves required to be deemed to be void? Such
is not the doctrine of classification and no facet of that
doctrine can support the favoured treatment accorded by
the 39th Amendment to two high personages. It is the
common man's sense of justice which sustains
E democracies and there is a fear that the 39th Amendment,
by its impugned part, may outrage that sense of justice.
Different rules may apply to different conditions and classes
of men and even a single individual may, by his
uniqueness, form a class by himself. But in the absence
F of a differentia reasonably related to the object of the law,
(
· justice must be administered with an even hand to all.
71. In Maneka Gandhi v. Union of India & Anr. (1978) 1
sec 248 it was observed as follows:
G ".... Equality is a dynamic concept with many aspects
and dimensions and it cannot be imprisoned within
traditional and doctrinaire limits .... Article 14 strikes at
arbitrariness in state action and ensures fairness and
quality of treatment. The principle of reasonableness, which
H
A.K. BEHERA v. UNION OF INDIA & ANR. 409
[DALVEER BHANDARI, J.]
legally as well as philosophically, is an essential element A
of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence.".
72. In Randhir. Singh (supra), it was held as under:
"8 ......... Article 39(d) of the Constitution proclaims "equal B
pay for equal work for both men and women" as a directive
principle of State Policy. "Equal pay for equal work for both
merf and women" means equal pay for equal work for
everyone and as between the sexes. Directive principles,
as has been pointed out in some of the judgments of this C
Court have to be read into the fundamental rights as a
matter of interpretation. Article 14 of the Constitution
enjoins the State not to deny any person equality before
the law or the equal protection of the laws and Article 16
declares that there shall be equality of opportunity for all D
citizens ·in matters relating to employment or appointment
to any office under the State ......... Construing Articles 14
and 16 in the light of the Preamble and Article 39(d) we
are of the view that the principle 'Equal pay for Equal work'
is 'deducible from those Article and may be properly E
applied to cases of unequal scales of pay based on no
classification or irrational classification though these
drawing the different scales of pay do identical work under
the same employer."
73. In Surinder Singh & Anr. v. Engineer-in-Chief, CPWD F
& Others (1986) 1 SCC 639 it was observed that the Central
Government like all organs of State is committed to the
Directive Principles of State Policy and Article 39 enshrines the
principle of equal pay for equal work.
G
74. In Mackinnon Mackenzie & Co. Ltd. v. Audrey D'
Costa & Another (1987) 2 SCC 469 it was observed that the
term "same work" or "work of similar nature" under Section 2(h)
of the Act that "whether a particular work is same or similar in
nature as another work can be determined on the three H
410 SUPREME COURT REPORTS [2010] 6 S.C.R.
A considerations. In deciding whether the work is same or
broadly similar, the authority should take broad view; next in
ascertaining whether any differences are of practical
importance, the authority should take an equally broad
approach for the very concept of similar work implies
B differences in detail, but these should not defeat a claim for
equality on trivial grounds. It should look at the duties actu~lly
performed, not those theoretically possible. In making
comparison the authority should look at the duties generally
performed by men and women."
c 75. In Bhagwan Dass & Others v. State of Haryana &
Others (1987) 4 SCC 634 this court held that the mode of
selection and period of appointment is irrelevant and immaterial
for the applicability of equal pay for equal work once it is shown
that the nature of duties and functions discharged and work
D done is similar.
76. In lnder Singh & Others v. Vyas Muni Mishra & Others
1987 (Supp) SCC 257 this court also held the view that when
··two groups of persons are in the same or similar posts
E performing same kind of work, either in the same or in the
different departments, the court may in suitable cases, direct
equal pay by way of removing unreasonable discrimination and
treating the two groups, similarly situated, equally.
77. In Haryana State Adhyapak Sangh & Others v. State
F of Haryana & Ors. (1988) 4 SCC 571 this court enforced the
principle of equal pay for equal wbrk for Aided School teachers
at par with government school teachers and held that the
teachers of Aided Schools must be paid same pay scale and
dearness allowance as teachers of the government schools.
G
78. In U.P. Rajya Sahakari Bhoomi Vikas Bank Ltd. v.
Workmen 1989 Supp (2) SCC 424, this court observed as
under:-
'The Tribunal's finding that both the groups were doing the
H
A.K. BEHERA v. UNION OF INDIA & ANR. 411
[DALVEER BHANDARI, J.]
· same type of work has rightly not been challenged by the A
employer Bank as it is a pure finding of fact. If irrespective
of classification of junior and senior groups, the same work
was done by both, the principle of equal pay for equal work
is definitely attracted and on the finding of fact the Tribunal
. was justified in applying the principle to give the same B
benefit to those who had been left out."
79. In the case of Sita Devi & Others v. State of Haryana
& Others (1996) 10 SCC 1 this court held: "The doctrine of
"equal pay for equal work" is recognized by this Court as a facet
of the equality clause contained in Article 14 of the Constitution." C
80. In Sube Singh & Ors. v. State of Haryana & Ors.
(2001) 7 sec 545 (para 10), this court observed as under:-
" .... whether the classification is reasonable having an o
intelligible differentia and a rational basis germane to the
purpose, the classification has to be held arbitrary and
discriminatory".
81. In John Vallamattom & Another v. Union of India
(2003) 6 sec 611, the constitutionality of Section 118 of the E
Indian-succession Act, 1925 was challenged. Section 118 was
declared unconstitutional and violative of Article 14 of the
Constitution. In that case, this court observed thus:-
"Although Indian Christians form a class by themselves but · F
there is no justifiable reason to hold that the classification
made is either based on intelligible differentia or the same
has any nexus with the object sought to be achieved. The
underlying purpose of the impugned provision having
adequately been taken care of by Section 51, the purport G
and object of that provision must be held to be non-
existent."
82, In State of Mizoram & Another. v. Mizoram
Engineering Service Association & Another (2004) 6 SCC
218 while dealing with case of this nature, this court observed H
412 SUPREME COURT REPORTS {2010) 6 S.C.R.
A as under:-
"The fact that the revised pay scale was being allowed to
Mr Robula in tune with the recommendations of the Fourth
Central Pay Commission, shows that the State
Government had duly accepted the recommendations of .
B
the Fourth Central Pay Commission. Having done so, it
cannot be permitted to discriminate between individuals
and not allow the same to the rest."
In this case, this Court clearly stated that the State cannot be
C permitted to discriminate similarly placed 'persons.
83. This court in Union of India v. Dineshan K.K. (2008)
1 sec 586 at page 591 (para 12) observed as under:-
"The principle of "equal pay for equal work" has been
D considered, explained and applied in a catena of decisions
of this Court. The doctrine of "equal pay for equal work"
was originally propounded as part of the directive principles
of the State policy in Article 39(d) of the Constitution. In
Randhir Singh v. Union of India a Bench of three learned
E Judges of this Court had observed that principle of equal
pay for equal work is not a mere demagogic slogan but a
constitutional goal, capable of being attained through
constitutional remedies and held that this principle had to
be read under Articles 14 and 16 of the Constitution. This
F decision was affirmed by a Constitution Bench of this Court
in D.S. Nakara v. Union of India. Thus, having regard to
the constitutional mandate of equality and inhibition against
discrimination in Articles 14 and 16, in service
jurisprudence, the doctrine of "equal pay for equal work"
G has assumed status of a fundamental right."
84. The principle underlying the guarantee of Article 14 is
not that the same rules of law should be applicable to all
persons within the Indian territory or that the same remedies
H should be made available to them irrespective of differences
•
A.K. BEHERA v. UNION OF INDIA & ANR. 413
[DALVEER BHANDARI, J.J
of circumstances. It only means tllat all persons similarly A
circumstanced shall be treated alike both in privileges conferred
and liabilities imposed.
. 85. The law can make and set apart the classes according.
to the needs and exigencies of the society and as suggested 8
by experience. It can recognize even degree of evil, but the
classification should never be arbitrary, artificial ·or evasive.
86. The classification must not be arbitrary but must be
rational, that is to say, it.should be based on some qualities or
characteristics which are to be found in all the persons grouped C
together and not in others who are left out but those qualities
.or characteristics must have a reasonable relation to the object
of the legisla~ion. In order to pass the test, two conditions must
be fulfilled, namely, (1) that the classification must be founded
on an intelligible differentia which distinguishes those that are D
grouped together from others and (2) that differentia must have
a rational relation to the object sought to be achieved by the .
Act.
'
87. In the instant case, in the counter-affidavit the E
respondents admitted clear discrimination, but I fail to
comprehend why the respondents are perpetuating
discrimination. I deem it proper to quote the relevant portion
from the counter affidavit as under:
"However this is a temporary anomaly. Over a period of F
time, the said anomaly would correct itself and after a
period of 4-5 years all the members of the Tribunal would
be treated in an equal manner."
88. One fails to comprehend and u'ndei'star'ld why the G
respondents are perpetuating discrimination even for a period
of four to five years.
89. The High Court Judges are appointed from two
streams - 2/3rd from the Bar and 1/3rd from the Subordinate
Judicial Service. After appointment, they are assigned the task H
414 SUPREME COURT REPORTS [2010] 6 S.C.R.
A of discharging judicial functions. The direct and inevitable
impact of the amendment is to dissuade and discourage both
the members of the Bar and Judiciary from becoming members
of the Tribunal. The Tribunal is discharging purely judicial work
which were earlier discharged by the judges of the High Courts.
B The people's faith and confidence in the functioning of the
Tribunal would be considerably eroded if both the members of
the Bar and judiciary are discouraged from joining the Tribunal.
In a democratic country governed by rule of law, both the lawyers
and judges cannot be legitimately discouraged and dissuaded
c from manning the Tribunal discharging only judicial work.
90. The petitioners are aggrieved by the decision of the
respondents to abolish the post of Vice-Chairman in the Central
Administrative Tribunal and pray that it should be restored.
D 91. The petitioners are further aggrieved by the newly
inserted Section 10A of the Administrative Tribunal Act, 1985
to the extent that it postulates different pay scales and
conditions of service for the members of the Central ,
Administrative Tri~unal on the basis of their appointment under
E the amended and the unamended rules and pray that uniform
conditions of service be made applicable to all members.
92. The petitioners are also aggrieved by the newly
inserted Section 1QA that it is unconstitutional to the extent that
F it stipulates that the total term of the office of the members of
the Tribunal shall not exceed 10 years. They pray that this
embargo be removed.
93. The petitioners further pray that all members be
permitted to function till they attain the age of superannuation
G of 65 years.
NEWLY INSERTED SECTION 10A
94. I see no rationale or justification in providing different ·
conditions of service for the members of the Tribunal on the
H basis of their appointment under the amended and the
A.K. BEHERA v. UNION OF INDIA & ANR. 415
[DALVEER BHANDARI, J.]
unamended rules, particularly when even according to the A
respondents it is nowhere denied that both the categories of
members are not discharging the same duties, obligations and
responsibilities.
95. Amended Section 1QA is clearly discriminatory and 8
violative of basic principles of equality. Section 1QA of the
amended Act is declared discriminatory, unconstitutional and
ultra vires of the Constitution' so far as it does not provide
uniform pay scales and service conditions on the basis of
amended and unamended rules. Consequently, all the
members of the Tribunal would be entitled to get the same pay C
scales and service conditions from June 2Q1 Q.
96. Section 1QA of the amended Act is also declared
discriminatory because the direct and inevitable impact of.
insertion of Section 1QA is to prescribe different age of D
retirement for the judicial and other members. On the one hand,
the age of superannuation of the members has been increased
from. 62 to 65 years and according to the amended Act, the
administrative members would now retire at the age of 65
years. The members can now get maximum of two terms of 5 E
years each. A lawyer appointed at the age of 45 years will have
to retire at the age of 55 years. Therefore, by this amendment,
administrative member would retire at the age of 65 whereas
judicial member may retire even at the age of 55. This is clearly
discriminatory and violative of the fundamental principle of F
equality. Consequently, section 1QA of the amended Act is
declared discriminatory and violative of ·.Article 14 of the
Constitution and is declared ultra vires of the Constitution, to
the extent that it places embargo of two terms of five years each
leading to different ages of retirements of the members of the G
Tribunal. Consequently, henceforth, all the members of the
Tribunal shall function till the age of 65 years. In other words,
there would be a uniform age of retirement for all the members
of the Tribunal.
97. The petitioners pray that the newly added Section 12(2) H
416 SUPREME COURT REPORTS [201 O] 6 S.C.R.
A be quashed as it impinges upon the independence of judiciary.
NEWLY INSERTED SECTION 12(2)
98. I see no logic, rationale or justification in abolishing the
post of Vice-Chairman in the Central Administrative Tribunal.
B No reason for such abolition has been spelt out by the
respondents even at the time of introducing the Bill. Before the
amendment, ordinarily, the retired judges of the High Courts
used to be appointed to the post of Vice-Chairman. It used to
be in consonance with the status and positions of the retired ·
C judge~.
99. There seems to be no basis or rational explanation of
abolishing the post of Vice-Chairman. I fail to comprehend that
on the one hand, the post of Vi~e-Chairman has been
0 abolished and on the other hand under the newly inserted
section 12(2) the power to designate Vice-Chairman has been
given to the appropriate government. This is per se untenable
and unsustainable. The executive has usurped the judicial
functions by inserting section 12(2). The direct and inevitable
E consequence of the amendment would affect the independence
of judiciary.
100. In the race of becoming the Vice-Chairman there
would be erosion of independence of judiciary. As aptly
observed in Sampath Kumar's case (supra) that a judicial
F member who is looking forward to promotion to the post of
Vice-Chairman would have to depend on the goodwill and
favourable instance of the executive and that would directly
affect independence and impartiality of the members of the
Tribunal impinging upon the independence of judiciary.
G
101. Now, under section 12(2) of the amended Act, the
entire power of designating Vice-Chairman has been usurped
by the appropriate government. This amendment also has the
potentiality of disturbing the separation of powers. The power
H pertaining to judicial functioning of the Tribunal which was
..•
A.K. BEHERA v. UNION OF INDIA & ANR. 417
[DALVEER BHANDARI, J.]
earlier exercised by the judiciary has been usurped by the A
executive. On the aforesaid considerations, the newly inserted
· section 12(2) is per se untenable and consequently declared
null and void.
102. In the larger public interest the post of Vice-Chairman 8
is restored and the procedure for appointment would be in
accordance with the unamended rules of the Act.
103. It must be clearly understood by all concerned that the
judicial work which the members of the Tribunal discharge is
one, which was earlier discharged by the Judges of the High C
Court. The work is totally judicial in nature, therefore,
dispensation of justice should be left primarily to the members
of the Bar and Judges who have, by long experience and
training acquired judicial discipline, understanding of the
principles of law, art of interpreting laws, rules and regulations, D
legal acumen, detachment and objectivity. Unless extreme care
is taken in the matter of appointments of the members of
Tribunal, our justice delivery system may not command
confidence, credibility, acceptability and trust of the people.
E
104. I deem it appropriate to reiterate the impact of
conclusions of my judgment:
(i) All the members of the Tribunal appointed either by
amended or unamended rules would be entitled to
get uniform pay scales and service conditions from F
01.06.2010. However, in the facts of this case, they
would not be entitled to claim any arrears on
account of different pay scales and service
conditions.
G
(ii) All the members of the Tribunal would have uniform
age of retirement from 01.06.2010, meaning
thereby that all members of the Tribunal shall be
· permitted to function until they attain the age of
superannuation of 65 years. Hence, Section 1OA is H
418 SUPREME COURT REPORTS [201 O] 6 S.C.R.
..
A quashed and set aside.
(iii) The post of Vice-Chairman in the Central
Administrative Tribunal is restored from
01.06.2010. However, I do not want to disturb the
Vice-Chairmen, if already designated by the
B
Government, and permit them to continue in their
respect posts till they attain the age of
superannuation. Thereafter, the Vice-Chairman
shall be appointed in accordance with the
unamended rules. Consequently, the newly inserted
c section 12(2) of the amended Act is also quashed
and set aside.
105. The Writ Petitions are accordingly allowed in
aforementioned terms and disposed of, leaving the parties to
D bear their own costs.
N.J. Writ Petitions dismissed.
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