Holding

Section 6(1)(c) of the Administrative Tribunals Act, 1985, which allows a Secretary to the Government of India to be appointed as Chairman of an Administrative Tribunal, is unconstitutional and must be struck down.

Summary

The petitioners challenged the constitutional validity of the Administrative Tribunals Act, 1985, particularly the exclusion of High Court jurisdiction under Articles 226 and 227 and the qualifications for appointing the Chairman, Vice‑Chairman and members of the Tribunal. The Court held that while Parliament may create an alternative mechanism for judicial review under Article 323A, such a mechanism must be no less efficacious than the High Court. The Act’s provision allowing a Secretary to the Government of India to serve as Chairman was found to lack the necessary judicial experience and therefore violated the basic structure doctrine. Consequently, clause (c) of Section 6(1) was struck down as invalid. The Court also directed that appointments to the Tribunal should be made after consultation with the Chief Justice of India or a high‑powered selection committee, and that permanent or circuit benches be established at every High Court seat by 31 March 1987. The judgment operates prospectively and does not affect appointments already made.

Issues considered

The constitutionality of excluding High Court jurisdiction under Articles 226 and 227 in service matters by Section 28 of the Act.
Whether the Administrative Tribunals Act, 1985, provides an effective alternative mechanism for judicial review as required by Article 323A.
The validity of the qualification criteria for Chairman, Vice‑Chairman and members, especially clause (c) of Section 6(1) permitting a Secretary to be appointed Chairman.
The adequacy of the appointment procedure for Tribunal members and the need for judicial consultation.
The requirement to set up permanent or circuit benches of the Tribunal at every High Court seat.

Legislation cited

Administrative Tribunals Act, 1985s. 28, s. 4, s. 5, s. 6, s. 8
Constitution of Indias. Article 136, s. Article 226, s. Article 227, s. Article 32, s. Article 323A, s. Article 368

Subjects

Administrative TribunalsJudicial reviewBasic structure doctrineArticle 323AExclusion of High Court jurisdictionQualifications of tribunal membersAppointment procedureConstitutional validityService matters

Judgment

S.P. SAMPATH KUMAR ETC.
v.
UNION OF INDIA & ORS.

DECEMBER 9, 1986

[P.N. BHAGWATI, CJ!, RANGANATH MISRA, V KHALID, B
G.L. OZA AND M.M. DUTT, JJ.]

Administrative Tribunals Act, 1985: ss. 4, 5, 6 & 28-Exclusion of the
jurisdiction of the High Court under Arts. 226 and 227 in service matters-
C~nstllutional ·validity of-Chairman, Vice-Chairman and Members-
)- Qua/ifications and mode of appointment to make the TribunaJ equally
efficacious and effective alternative to the High Court-Benches pnd Circuits of C
Tribunal-Setting up of. .

Constitution of India, Arts. 226, 227, 32, 136, 323A and 368-Judicia/
review-Exclusion of-When permissible. •
D
Clause (1) of Art. 323-A, brought in by Constitution (42nd Amendment)
Act, 1976, authorised Parliament to provide by law for the adjudication or trial
by administrative tribunals of disputes and complaints; with respect to
recruitment and conditions of service of persons appointed to public services.
Clause (2)(d) of that Article envisaged exclusi1,1n of the jurisdiction of all courts,
except the jurisdiction of the Supreme Court under Art. 136 with respect to the E
disputes or complaints referred to in cl. (1 ).

Section 28 of the Administrative Tribunals Act, 1985 originally enacted
within the ambit of Art. 323-A, provided for exclusion of jurisdiction of the
Supreme Court under Art. 32. The Act as amended by the Administrative
Tribunals (Amendment) Ordinance, 1986, replaced by Act No.19of1987 now F
saves the jurisdiction of Supreme Court both under Art. 32 in respect of original
proceedings as also ·under Art. 136 for entertaining appeals. Section 6(1) of the
Act which lays down qualifications of Chairman, states tha.t he should be or
have been (a) a Judge of a High Court, or (b) has for at least two years held
office of Vice-Chairman, or (c) has for at least two years held the post of ·
Secretary to the Government of India. Sub-section (2) provides that a Vice- G
Chairynan should be or have been (a) a Judge ofa High Court, or(b)for at least
two years held the post of a Secretary to the Government oflndia, or (bb) for at
least five years held the post of Additional Secretary to the Government of
India, or (c) for a. period of not less than three years held office as a Judicial
Member·of an Administrative Tribunal. Sub-section (3) states that the Judicial
Member (a) should or should have been qualified to be a Judge of a High H

435
'
436 SUPREME COURT REPORTS [ 1987] 1 S.C. R.

A Court, or (b) has been a member of the Indian Legal Service, Grade 1; for at
least three years. Sub-section (3A) provides that a person to he appointed as
Administrative Member (a) should ~ave for at least two years held the post of
Additional Secretary to ,the Government of India, or (b) has for at least three
years held the post of a Joint Secretary to the Government of India.

B The petitioners in these writ petitions and transfer petitions challenged
the vires of the 1985 Act. It was contended that the exclusion of the jurisdiction
of the High Cou_rt under Arts. 226 anil 227 in service matters specified in s.28 of
the Act was unconstitutional and void, and that the composition of the
Tribunal and mode of appointmmt of Chairman, Vice-Chairman and . -\ -
Members was outside the scope of the power conferred on Parliament under
C Art. 323-A.

Allowing the petitions in part, the Court,

By the Court

D
HELD: It is the High Court which is being supplanted by Administrative
Tribunal. The office of Chairman of the Tribunal, therefore, for all practical
purposes should be equated with the o llice of the Chief Justice of a High Court.
Judicial discipline generated by experimce and training in an adequate dose is a
necessary qualification for that post. It is thus essential that he should have been
E a Judge of the High Court or he should have for at le~sttwoyears held office as
Vice-Chairman. A person who has merely held the post of Secretary to the
Government of India and who has no le\:"l and judicial experience if appointed
Chairman would not only fail to inspire confidence in the public mind but
would also render the Administrath e Tribunal a much less effective and
efficacious mechanism than the High Court. Clause (c) of s.6(1) of the Act,
F therefore, must be struck down as imalid. [445 C, 455 DE, 445 ABE] j.
,.\
Per Bhagwati, C.J.

1.1 Judicial review is a basic and essential feature of the Constitution and
no law passed by Parliament in exercis" of its constituent power can abrogate it
G or take it away. It is, however, within the competence of Parliament to amend
the Constitution so as to substitute in place of the High Court another
alternative institutional mechanism or arrangement for judicial review without
in any way violating the basic strudure doctrine, provided it is no less
efficacious than the High Court. Theu it would be another authority which
would be exercising the power of judidal review with a view to enforcing the
H .constitutional limitations and maintaining the rule of law. [441 B, 443 BC]
S.P. SAMPATH KUMAR v. UNION OF JNDIA 437

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

1.2 Clause (2Xd) of Art. 323-A specifically authorises the exclusion of the
jurisdiction of the High Court under Arts. 226 and 227 by any :aw made by
Parliament under cl.(l). If this constitutional amendment were to permit a law
to exclude the jurisdiction of the High Court under Art. 226 and 227 without B
setting up an effective alternative institutional mechanism or arrangement for
judicial review it would,be violative of the basic structure doctrine and hence
outside the ·constitutent power of Parliament. It must, therefore, be read as
implicit in the amendment that such a law to be constitutionally valid must not
leave a void but it must set up another equally effective olternative outhority
and' vest the power of judicial review in it. [443 F, H, 44 A _BJ
c
2.1 Whot is needed in a judicial tribunal which is intended to supplant the
High Court is legal training and experience. Service matters which are removed
from the jurisdiction of the High Court under Arts. 226 and 227 and entrusted
to the Administrative Tribunal invariably involve questions of interpretation
and applicability of Arts .. 14, 15, 16 and 311 which require for their D
determination not only judiciol approach but also knowledge and expertise in
this particulor branch of constitutional law: [445 D, 444 D]

2.2 The Chairman of the Administrative Tribunal should be or shouJd
have been a Judge of a High Court or he should have for at least two years held
office as Vice-Chairman. It is the High Court which is being supplanted by the . E
Administrative Tribunol. Substituting the Chief Justice of a High Court by a
Chairmon of the Administrative Tribunal who has merely held the post of a
Secretary to the Gcivemment of India and who has no legol or judicial
experience would not only fail to inspire confidence in the public mind but
would also render the Administrative Tn'bunal a much less effective and
efficacious mechanism than the High Court. Clause (c) of s.6(1) of the Act, F
therefore, must be struck down as invalid. [445 A, C, B, E]

3. Since the Administrative Tribunal has been created in substitution of
the High Court, its Vice-Chairman would be-in the position of a High Court
Judge. Therefore, a District Judge or an advocate who is qualified to be a Judge
of the High Court should be regarded as eligible for being Vice-Chairman of the G
Administrative Tribunal. The provisions of the Act in regard to the
composition of the Administrative Tribunal are weighted in favour of members
of the Services. This value discounting of the judicial members does have the
effect of making the Administrative Tribunal less effective and efficacious than
the High Court. Unless an amendm_ent to that effect is carried out on or before
31st March, 1987 the Act would have to be declared to be invalid because the H
438 SUPREME COURT REPORTS [1987] I S.C.R.

provision in regard to the composition of the Administrative Tribunal cannot
A be severed from the other provisions contained in the Aci. [445 F, 446 A,
445 G, 446 BJ

4.1 Under the Act the sole an~ exclusive power to make appointment of ·
Chairman, Vice-Chairman and Administrative Members is conferred on the
B Government. No obligation is cast on the Government to consult the Chief
Justice of India or to follow any p•rticular selection procfdure in this behalf.
Total insulation of the judiciary from all forms of interference from the
coordinate branches of Government is a basic essential feature of the
Constitution. In case of High Com1 Judges the President cannot make any
appointment without consultation with the Chief Justice of the High Court and
the ChiefJustice oflndia. This check or safeguard is totally absent in the case of
C appointment of the Chairman, Vice-Chairman and Administrative Members
• of the Administrative Tribunal. If tti e Tribunal is created in substitution of the
High Court and the jurisdiction of tlile High Court under Arts. 226 and 227 is
taken away and vested in it, it is but ..Senti al that .the same iJ:!dependence from
possibility of executive pressure m· influence must also be ensured to the
o Chairman, Vice-Chairman and Members of the Tribunal.[4460,4470,B,EJ
4.2 The appointment of Chairman, Vice-Chairman and Administrative
Members, therefore, should be made by the concerned Government only after
consultation with the Chief Justice of India and such consultation must be
meaningful and effective. Alternqtively, a High Powered Selection Committee
headed by the Chief Justice of India or a sitting Judge of the Supreme Court or
E concerned High Court nominated by the Chief Justice of India may be set up
for making these appointments. If ei11her of these two modes of appointment is
adopted, it would save the impungecl Act from invalidation. Otherwise, it'will
be outside the scope of the power conferred on Parliament under Art. 323-A.
[447 F, G, 448 B]
F 5. The Government should se1 up a permanent bench and if that is not
feasible having regard to the volume of work, then at least a circuit bench of the
Administrative TribuJ:!al wherever th('re is a seat of the High Court on or before
31st March 1987 so that the provisions of the Act could be SI/stained. [448 DJ

6. Judgment to operate only prospectively and not to invalidate
G appointments already made. [448 BJ
Per Ranganath Misra, J.
I. The Administrative Tribunal Act, 1985, as amended by Act No. 19 of
1986 saves jurisdiction of the Suprem1' Court both under Article 32 in respect of
original proceedings as also under Article 136 for entertaining appeals. There is
H thus a forum where matters of importance and grave injustice can be brought
S.P. SAMPATH KUMAR v. ·UNION OF INDIA 439

)( for determination or rectification. The exch1sion of the jurisdiction of the High A
Court, therefore, does not totally bar judicial review. [451 C, 453 A)

2.1 It is open to Parliament to make effective alternative institutional
mechanisms or arrangements in place of the High Court for providing judicial
review. But such an authority or tribunal must be a worthy successor and real
substitute of the High Court-not only in form and de jure but in content and B
de facto so as to be effective and efficient as also capable of upholding the
constitutional limitations enshrined in Articles 14, 15 and 16 of the
Constitution. [453 B, 454 C, 453 E)

_)-- 2.2 The Tribunal under the scheme of the Act has been contemplated as a
substitute and not as supplemental to the High Court. It is not designed as an C
·.s.
additional froum from where parties could go to the High Court. Under 14 and
15 of the Act all the powers of the Courts, except those 'of the Supreme Court, in
regard to matters specified therein vest in the Tribunal-either Central or State.
Barring of the jurisdiction ·or the High Court under Arts. 226 and 227 cannot,
therefore, be said to be ultra vires the Constitution. [443 CD, FG, 449 A)
D
Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981} 1 SCR 206,
287 and K.K Dutta v. Union of India, [1980) 3 SCR 811, referred to.

3.1 The Office of Chairman of the Tribunal should for all practical
purposes be equated with the office of Chief Justice of a High Court. Judicial
discipline generated by experience and training in an adequate dose being a E
necessary qualification for that post, ordinarily a. retiring or retired Chief
Justice of a High Court or when such a person is not available, a senior Judge of
proved ability, either in office or retired should be appointed. In order that the
Tribunal ,may be acceptable to the litigants, who. are themselves members of the
various Services, therefore, s.6(1 )(c) of the Act, which makes a Secretary to the
Government of India also eligible for the post of Chairrnan, should be omitted. F
[455 D-F)
3.2 The selection of Vice-Chairrnan and Members, when it is not of a
sitting Judge or retired Judge of a High Court, should be done by a high
powered committee . with a sitting Judge of the Supreme Court, to be
nominated by the Chief Justice of lndia, as its Chairrnan. This will ensure G
selection of proper and competent people to man these high offices of trust and
help to build up reputation and acceptability. The Central Government to bring
the provisions of the Act in .accord within a reasonable time not beyond March
31, 1987. Or else, the constitution of Tribunal as a su!Jstitute of the High Court
would be open to challenge. [455 G, 456 A, HJ
3.3 The judgment to operate prospectively and not to affect the H
440 SUPREME COURT REPORTS [1987] I S.C.R.

A appointments already inade to the office of Vice-Chairman and Members. ";I'
[456 B]
4. The term of five years prescribed under s.8 of the Act for Chairman,
Vice-Chairman and Members of the Tribunal requiring them to retire at the
end of it is too short, which is neith~ r convenient to the person selected for the
B job nor expedient to the scheme. When amendments to the Act are undertaken
this aspect of the matter deserves to be considered. [456 C, F, G]

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

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

C Raju Ramachandra, Mukul Mudgal, Mrs. R. Ramachandran,
N.J. Mehta, P.H. Parekh, D. Krishnamurthy, K.N. Rai, K.R. Nagaraja, Ms.
Malinio Poduval, N.N. Verma, S.K. Bhardwaj and P.O. Sharma for the
Petitioners.

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

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

The Judgment of the Court was delivered by
E
BHAGW ATI, CJ. I am in entire agreement with the judgment prepared
by my learned brother Ranganath Misra, but since the questions involved in
these writ petitions are of seminal importance affecting as they do, the
structure of the judicial system and the principle of independence of the
F Judiciary, I think I would be failing in my duty if! did not add a few words of
my own,

There are two questions which arise for consideration in these writ
petitions and they have been succinctly set out in the judgment of Ranganath
Misra, J. The first question is wheth<:r the exclusion of the jurisdiction of the
G High Court under Articles 226 and 2:17 of the Constitution in service matters
specified in section 218ofthe Admini,;trative Tribunals Act, 1985 (hereinafter
referred to as the impugned Act) and the vesting of exclusive jurisdiction in i,
such service matters in the AdministrativeTribuool to be constituted under the
impugend Act, subject .to an exception in favour of the jurisdiction of this
Court under Articles 32 and 136, is unconstitutional and void and in any event,
H even if the first question be answered against the petitioners and in favour of
S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 441

~ the Government, the second question required to be considered is, whether the
composition of the Administrative Tribunal and the mode of appointment of A
Chairman, Vice-Chairmen and members have the effect of introducing a
constitutional infirmity invalidating the provisions of the impugned Act. I
agreed with the answers given to th~'5e questions in the judgment of Ranganath

. Misra, J. I would articulate my reasons as follows:-

It is now well-settled as a result of the decision of this Court in Minerva
Mills Ltd. & Others v. Union of India and Ors. [1981] 1 S.C.R. 206 that
B

judicial review is a basic and essential featl)re of the Constitution and no law

- }- . passed by Parliament in exercise of its constituent powe1 can abrogate it or
take it away. If the power of judicial review is abrogated or taken away the
Constitution will cease to be what it is. It is a fundamental principle of our
c
constitutional schem_e that every organ of the State, every authority under the
~ Constitution, derives its power from the Constitution and has to act within the
limits of such power. It is a limited Government which we have under the
Constitution and both the executive and the legislature have to act within the
limits of the power conferred upon them under the Constitution. Now a
\ question may arise as to what are the powers of the executive and whether the D
executive has acted within the scope of its power. Such a question obviously
cannot bC left to the executive to decide and for two very good reasons. First,
the decision of the question would depend upon the interpretation of the

.. Constitution and the laws and this would pre-eminently be a matter fit to be
decided by the judiciary, because it is the judiciary which alone would be

I possessed of expertise in this field and secondly, the constitutional and legal
protection afforded to the citizen would become illusory, if it were left to the
executive to determine the legality ·of its own action. So also if the legislature
E

~ makes a law and a dispute arises whether in makingthe law, the legislature has
acted outside the area of its legislative competence or the la\\.: is violative of the
fundamental rights or of any other provisions ,of the~ C<?nstitution, its
'
resolution cannot, for the same reasons, be left to the determination of the F
·~
._ legislature. The Constitution has, therefore created an independent machinery
for resolving these disputes and this independent machinery is the judiciary
which is vested with the power of judicial review to determine the legality of
executive action and the validity of legislation passed by the legislature. The
judiciary is constituted the ultimate interpreter of the Constitution and to it is
assigned the delicate task of determining what is the extent and scope of the G
power conferred on each branch of Government, .\vhat are the limits on the
.} exercise of S!-Jch power und~r the Constitution and whether any action of any
branch transgresses such limits. It is also a basic principle of the rule of law
which permeates every provision of the Constitution and which forms its very
core and essence that the exercise of po\ver by the executive or any other
authority must not only be conditioned by the Constitution but also be in H
442 SUPREME COURT REPORTS [ 1987] I S.C. R.

A accordance with law and it is the judiciary which has to ensure that the law is
observed and there is compliance with the requirements of law on the part of
the executive and other authorities. This function is discharged by the
judiciary by exercise of the power Jf judicial review which is a most potent
weapon in the hands of the judiciary for maintenance of the rule of law. The
B power of judicial review is an intei•;al part of our constitutional system and
without it, tjlere will be no Government of laws and the rule of law would
become a teasing illusion and a promise of unreality. That is why I observed in
my judgment in Minerva Mills ltd. case (supra) at pages 287 and 288:-,

"! am of the view that if there is one feature of our Constitution
which, more than any other, is basic and fundamental to the
c maintenance of dem•>cracy and the rule of law, it is the power
of judicial review and it is unriuestionably, to my mind, part of
the basic structure of the Constitution. Of course, when I say
this I should not be taken to suggest that however effective
alternative institutional mechanisms or arrangements for
D
judicial review cannot be made by Parliament. But what I wish !
. to emphasise is that judicial review is a vital principle of our
Constitution and it cannot be abrogated without affecting the
basic structure of the Constitution. If by a Constitutional
amendment, the power of judicial review is taken away and it is
provided that the validity of any law made by the legislature
shall not be liable to be called in question on any ground; even
E
if it is outside the legislative competence of the legislature 'or is
violative of any fundamental rights, it would be nothing short
of subversion of the Constitution, for it would make a
mockery of the distribution of legislative powers between the
IJ nion and the States and r~nder the fundamental rights
meaningless and futile. So also if a constitutional amendment is
F
made which has the effect of taking itway the power of judicial
review and providing that no amendment made in the
Constitution shall be liable to be.questioned on any ground,
even if such amendrr_ent is violative of the basic structure and,
therefore, outside the amendatory power of Parliament, it
would be making P:o.rliament sole judge of the constitutional
G
validity of what it has done and that would, in effect and
substance, nullify the limitation on the amending power of
Parliament and affect the basic structure of the Constitution.
The conclusion must therefore inevitably follow that clause (4)
of the Article 368 is unconstitutional and void as damaging the
H basic structure of the Constitution."
S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 443

It is undoubtedly true that my judgment in Minerva Mills Ltd. case (supra) was A
a minority judgment but so far as this aspect is concerned, the majority Judges
also took the same view and held that judicial review is a basic and essential
feature of the Constitution and it cannot be abrogated without affecting the
basic structure of the Constitution and. it is equally clear from the same decision
that though judicial review cannot be altogether abrogated by Parliament by
amending the Constitution in exercise of its constituent power, Parliament can B
certainly, without in any way violating the basic structure doctrine, set up
effective alternative institutional mechanisms or arrangements for judicl.al
review. The basic and essential feature of judicial review cannot be dispensed
with but it would be within the competence of Parliament to amend the
-)- Constitution so as to substitute in place of the High Court, another alternative
institutional mechanism or arrangement for judicial review, provided it is no C
less efficacious than the High Court. Then, instead of the High Court, it would
be another institutional mechanism or authority which would be exercising the
power of judicial review with a view to enforcing the constitutional limitations
and maintaining the rule of law. Therefore, if any constitutional amendment
made by Parliament takes away from the High Court the power of judicial
review in any particular area and vests it in any other institutional mechanism D
or authority, it would not be violative of the basic structure doctrine, so long as
the essential condition is fulfilled, namely that the alternative institutional
mechanism or authority set up by the parliamentary amendment is no less
effective than the High Court.

i E
Here, in the present case, the impugned Act has been enacted by
Parliament in exercise of the power conferred by clause (I) of Article 323A
which was introduced in the Constitution by Constitution (42nd Amendemnt)
Act, 1976. Gause (2) (d) of this Article provides that a law made by Parliament
under clause (1) may exclude the jurisdiction of courts, except the jurisdiction of
the Supreme Court under Article 136,.with respect to the disputes or complaints
F
referred to in clause (!). The exclusion of the jurisdiction of the High Court
under Articles 226 and 227 by any l~w made by Parliament under clause ( 1) of
Article 323A is, therefore, specifically authorised by the constitutional
amendment enacted in clause (2) (d) of that Article. lt is clear from the
discussion in the preceding paragraph that this constitutional amendment
authorising exclusion of the jurisdiction of the High Court under Articles 226
G
and 227 postulates for its validity that the law made under clause (1) of Article
323A excluding the jurisdiction of the High Court under Articles 226 and 227
must provide for an effective alternative institutional mechanism or authority
for judicial review. If this constitutional amendment were to permit a law made
under clause (I) of Article 323A to exclude the jurisdiction of tile High Court
under Articles 226 and 227 without setting up an effective alternative H
444 SUPREME COURT REPORTS [1987] I S.C.R.

A institutional mechanism or arrangement for judicial review, it would be
violative of the basic structure doctdne and hence outside the constituent power
of Parliament. It must, therefore, be read as implicit in this constitutional
amendment that the law excluding the jurisdiction of the High Court under
Articles 226 and 227 permissible under it must not leave a void but it must set up
another effective institutional mechanism or authority and vest the power of
B judicial review in it. Consequently, the impugned Act excluding the jurisdiction
of the High Court under Articles 2:26 and 227 in respect of service matters and
vesting such jurisdiction in the Administrative Tribunal can pass the test of
constitutionality as being within the ambit and coverage of clause (2) (d) of
Article 323A, only if it can be shown that the Administrative Tribunal set up
under the impugned Act is equally ,efficacious as the High Court, so far as the
c power of judicial review over service matter is concerned. We must, therefore,
address ourselves to the question whether the Administrative Tribunal
established under the impugned Art can be regarded as equally effective and
efficacious in exercising the power or judicial review as the High Court acting
under Articles 226 and 227 of the Constitution.

D
It is necessary to bear in mind that service matters which are removed
from the jurisdiction uf. the High Court under Articles 226 and 227 of the
Constitution and entrusted to the ,'\d1ninistrative Tribunal set up under the
impugned Act for adjudication involve questions of interpretation and
applicability of Articles 14, 15, 16 and 311 in quite a large number of cases.
E These questions require for their determination not only judicial approach but
also knowledge and expertise in this particular branch of constitutional law. It
is necessary that those who adjudicate upon these questions should have same
modicum of legal training and judicial experience because we find that some of
these questions are so difficult and complex that they baffle the minds of even
trained Judges in the High Courts and the Supreme Court. That is the reason
why at the time of the preliminary hearing of these writ petitions we insisted that
-
F
every bench of the Administrative Tribunal sh.ould consist of one judicial
member and one administrative member 'and there should be no
preponderance of administrative n1embers on any bench. Of course, the
presence of the administrative menber would provide input of practical
experience in the functioning of the services and add to the efficiency of the
G Administrative Tribunal but the legal input would undeniably be more
important and sacrificing the legal input or not giving it sufficient weightage
.
~

would definitely impair the efficacy and effectiveness of the Administrative
Tribunal as compared to the High Court. Now section 6 provides that the
Chairman of the Administrative Tribunal should be or should have been a
Judge of the High Court or he should have for at least two years held office of
H Vice-Chairman or he should have for at least two years held the post of
S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATI, C.J.] 445

Secretary to the Government of India or any other post under the Central or A
State Government carrying a scale of pay which_ is not less than that of a
Secretary to the Government of India. I entirely agree with Ranganath Misra, J.
tr.at the Chairman of the Administrative Tribunal should be or should have
beon" Judge of a High Court or he should have forat least two years held office .
as Vice-Chairman. If he has held office as Vice-Chairman for a period of at least
two years he would have gathered sufficient experience and also within such B
period of two years, acquired reasonable familiarity with the constitutional and
legal questions involved in service matters, But substituting the Chief Justice of
a High Court by a Chairman of the Administrative Tribunal who has merely
held the post ofa Secretary to the Government and who has no legal or judicial
experience would not only fail to inspire confidence in the public mind but
would also render the Administrative Tribunal a much less effective and . C
efficacious mechanism than the,High Court. We eannot afford to forget that it .
i~ the High Court which is being supplanted by the Administrative Tribunal
and it must be so manned as tp inspire confidence in the public mind that it is a
highly competent and expert mechanism with judicial approach and
objectivity. Of course, I must make it clear that when I say this, I do not wish to
D
cast any reflection on the members of the "Civil Services because fortunately we
have, in our country, brilliant civil servants who possess treme~dous sincerity,
drive and initiative and who have remarkable capacity to resolve and overcome
administrative problems of great complexity. But what is needed in a judicial
tribunal which is intended to suppbnt the High Court is legal training and
r experience. I am, therefore, of the view, in agreement with Ranganath Misra, J.
that clause (c) of section 6 (1) must be struck down as invalid.
E

• I also fail to see why a District Judge or an advocate who is qualified to . /
be a Judge of a High Court should not be eligible to be considered for
appointment as Vi=Chairrnan of the .Administrative Tribunal. It may be
. noted that since the Administrative Tribunal has been created in substitution F
of the High Court, the Vice-Chairman of the Administrative Tribunal would
be in the position of a High Court Judge and if a District Judge oran advocate ·
qualified to be a Judge of the High Court, is eligible to bea IJighCotirtJudge; ·
there is no reason why he should not equally be eligible to be a Vice-Chairman
of the Administrative Tribunal. Can the position of a Vi=Chairman of the
Administrative Tribunal be considered higher than that ofa Hig.'1 Court Judge G
so that a person who is eligible to be a High Court Judge may yet be regarded
as ineligible for becoming a Vi=Chairman of the Administrative Tribunal? It
• does appear that the provisions of the ;mpugned Act in regard to the
composition of the Adnlinistrative Tribunal · · ; a little weighted in favour of
I members of the Services. This weightage in favour of the members of the
·Services and value-discounting of the judicial members does have the effect of H
446 SUPREME COURT REPORTS (1987] I S.C.R.

A making the Administrative Tribunal less effective and efficacious than the
High Court. I would therefore suggest that a District Judge or an Advocate
who is qualified to be a Judge of the High Court s11ould be regarded as eligible
for being Vice-Chairman of the AdministratiYe Tribunal and unless an
amendment to that effect is carried out on or b·,fore 31st March, 1987, the
B impugned Act would have to be declared to be invalid, because the provision
·in regard to composition of the Administrative Tribunal cannot be severed
from the other provisions contained in the impugned Act.

That takes me to another serious infirmity in the provisions of the
impugned Act in regard to the mode of appoin:ment of the Chairman, Vice-
Chairman and members of the Administrat 1ve Tribunal. So far as the
c appointment of judicial members of the Admini >trative Tribunal is concerned,
-~- -
there is a provision introduced in the impugned Act by way of amendment that
the judicial members shall be appointed by the Government concerned in
consultatio.n with the Chief Justice of India. Obviously no exception can be
taken to this provision, because even so far as Judges of the High Court are
D concerned, their appointment is required to be made by the President inter alia
in consultation with the Chief Justice of India. But so far as the appointment
of Chairman, Vice-Chairmen and administrative members is concerned, the
sole and exclusive power to make such appointment is conferred on the
Government under the impugned Act. The·:e is no obligation cast on the
Government to consult the Chief Justice of India or to follow any particular
E selection procedure in this behalf. The result is that it is left to the absolute
unfettered discretion of the Government to appoint such person or persons as
it likes as Chairman, Vice-Chairman and administrative members of the
Administrative Tribun~l. Now it may be noted that almost all cases in regard
to service matters which come before the Administrative Tribunal would be
against the Government or any of its officers and it would not at all be
F conducive to judicial independence to leave unfettered and unrestricted
discretion in the executive to appoint the Chairman, Vice-Chairmen and
administrative members; if a judicial member or an administrative member is
looking forward to promotion as Vice-Chairman or Chairman, he would h_ave
to depend on the goodwill and favourabk stance of the executive and that
would be likely to affect tile independence and impartiality of the members of
G the Tribunal. The same would be the position vis-a-vis promotion to the office
of Chairman of the Administrative Tribi..nal. The administrative members
of
would also be likely to carry a sense obligation to the executive for having
been appointed members of the Administrative Tribunal and that would have
a tendency to impair the independence and objectivity of the members of the
Tribunal. There can be no doubt that the power of appointment and
H · promotion vested in the executive cim have prejudicial effect on the
S.P. SAMPATH KUMAR v. UNION OF INDIA [BHAGWATJ, C.J.] 447

independence of the Chairman, Vice-Chairmen and members of the A
Administrative Tribunal, if such power is absolute and unfettered. If the
members have to look to the executive for advancement, it may tend, directly
or indirectly, to influence their decision-making proCess particularly since the
Government would be a litigant in most of the cases coming before the
Administrative Tribunal and it is the action of the Government which would
be challenged in such cases. That is the reason why in case of appointment of B
High Court Judges, the power of appointment vested in the executive is not an
absolute unfettered power but it is hedged in by a wholesome check and
safeguard and the President cannot make an appointment of a High Court
Judge without consultation with the Chief Justice of the High Court and the
Chief Justice of India and a healthy convention has grown up that no
appointment would be made by the Government which is not approved by the C
Chief Justice of India. This check or safeg1:1ard is totally absent in the case of
appointment of the Chairman, Vice-Chairmen and administrative members
of the Administrative Tribunal and the possibility cannot be ruled out-
indeed the litigating public would certainly carry a feeling-that the decision-
making process of the Chairman, Vice-Chairmen and ·members of the
Administrative Tribunal might be likely to be affected by reason of D
dependence on the executive for appointment and promotion. It can no longer
be disputed that total insulation of the judiciary from all forms of interference
from the coordinate branches of Government is a basic essential feature of the
Constitution. The Constitution makers have made anxious provision to
secure tOtal independence of the judiciary from executive pressure or
influence. Obviously, therefore if the Administrative Tribunal is created in E
substitution of the High Court and the jurisdiction of the High Court under
Articles 226 and 227 is taken away and vested in the Administrative Tribunal,
tlie same independence from possibility of executive pressure or influence must
also be ensured to the Chairman, Vice-Chairmen and members of the
Administrative Tribunal. Or else the Administrative Tribunal would cease to be
an equally effective and efficacious substitute for the High Court. and the F
provisions of the impugned Act would be rendered invalid. I am, therefore, of
the view that the appointment of Chairman, Vice-Chairmen and administrative
members should be made by the concerned Government only after
consultation with the Chief Justice of India and such consultation must be
meaningful' and effective and ordinarily the recommendation of the Chief
Justice of India must be accepted unless there are cogent reasons, in which event G
the reasons must be disclosed to the Chief Justice oflndia and his response must
be invited to such reasons. There is also another alternative which may be
adopted by the Government for making appointments of Chairman, Vice-
Chairmen and members and that may be by setting up a High Powered
Selection Committee headed by the Chief Justice oflndia or a sitting Judge of
the Supreme Court or concerned High Court nominated by the Chief Justice of H
448 SUPREME COURT REPORTS [1987] I S.C.R.

A India. Both these modes of appointment will ensure selection of proper and
competent persons to man the Administrative Tribunal and give it prestige and
reputation which would inspire confidence in the public mind in regard to the
competence, objectivity and impartiality of those manning the Administrative
Tribunal. If either of these two modes of appointment is adopted, it would save
the impugned Act from invalidation. Otherwise, it will be outside the scope of
B the power conferred on Parliament under A!.ticle 323-A. I would, however
hasten to add that this judgment will operate only prospectively and will not
invalidate appointments already made to the Administrative Tribunal. But if

·--\. -
any appointments of Vice-Chairmen or administrative members are to be made
hereafter, the same shall be made by the Government in accordance with either
of the aforesaid two modes of appointment.
c
I may also add that if the Administrative Tribunal is to be an equally
effective and efficacious substitution for the High Court on the basis of which
alone the impugned Act .:an be sustained, there must be a permanent or if there
is not sufficient work, then a Circuit Bench ~f the Administrative Tribunal at
o every place where there is a seat of the High Court. I would, therefore, direct the
Government to set up a permanent bench and if that is not feasible having
regard to the volume of work, then at least a Circuit Bench of the
Administrative Tribunal wherever there is a seat of the High Court, on or
before 31st March, 1987. That would be necessary if the provisions of the
impugned Act are to be sustained. So far a< rest of the points dealt with in the
E judgment of Ranganath Misra, J. are concerned, I express my entire
agreeement with the view taken by him.

RANGANATH MISRA J: The challenge raised to the vires of the
Administrative Tribunals Act, 1985, (hereinafter referred to as 1he Act) in an
application under Article 32 of the Constitution and the other connected
F matters has been referred to the Constitution Bench for adjudication.
Indisputably the Act has been framed within the ambit of Article 323A which
was brought into the Constitution by th'' Forty-Second Amendemnt Act in
1976. In exercise of power vested under Section 1(3) of the Act, the Central
Government appointed 1.11.1985 as the date from which the Act would come
into force. Thereupon Sampat Kumar and others (W.P. 12460 of 1985) moved
G this Court and the connected matters were brought before this Court or
different High Courts which have since been transferred to this Court to be
analogously heard. On 31.10.1985 a Div'.sion Bench of this Court gave certain
interim directions including stay of tram.fer of the pending applications under
Article 32 which were liable to be transferred to the Tribunal and also for
continuance of exercise of jurisdiction under Article 32 in regard to disputes
H covered under the Act notwithstanding the bar provided in Section 28.
S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 449

In the writ applications as presented the main challenge was to the
abolition of the Jurisdiction of this Court under Article 32 .in r£spect of
A
specified service disputes. Challenge was also raised against the taking away of
the jurisdiction of the High Court under Articles 226 and 227. It was further
canvassed that establishment of benches of the Tribunal at ·Allahabad,
·Bangalore, Bombay, Calcutta, Gauhati, Madras. and Nagpur with the
principal seat at Delhi' would still prejudice the parties whose cases were B
already pending before the respective High Courts located at places other than
. these places and unless at the seat of every High Court facilities for
presentation of applications and for hearing thereof were provided the parties
and their lawyers would be adversely affected. The interim order made on
October 31, 1985, made provisions to meet the working difficulties. Learned
Attorney General on behalf of the Central Government assured the Court that
early steps would be taken to amend the law so as to save the jurisdiction under C
Article 32, remove other minor anomalies and set up a bench of the Tribunal
at the seat of every High Court. By the Administrative Tribunals
(Amendment) Ordinance, 1986, these amendments were brought about and
by now an appropriate Act of Parliament has replaced the Ordinance. Most of
the original grounds of attack thus do not survive and the contentions that. D
were canvassed at the hearing by the counsel appearing for different parties are
these:

(I) Judicial review is a fundamental aspect of the basic
structure of our Constitution and bar of the jurisdiction of the
High Court under Articles 226 and 227 as contained in Section E
28 of the Act cannot be sustained; ·

(2) Even if the bar of jurisdiction is upheld, the Tribunal being a
substitute of the High Court, its constitution and set up should
be such that it would in fact function as such substitute and
become an institution in which the parties could repose faith F
and trust;

(3) Benches of the Tribunal should not only be established at the
seat of every High Court but should be available at every place
where the High Courts have permanent benches;
G
(4) So far as Tribunals set up or to be set up by the Central or the
State Governments are concerned, they should have no
jurisdiction in respect of employees of the Supreme Court or
members of the subordinate judiciary and employees working in
such establishments inasmuch as exercise of jurisdiction of the
Tnbunal would interfere with the control absolutely vested in H
450 SUPREME COURT REPORTS [1987] I S.C.R.

A the respective High Courts in regard to the judicial and other
subordinate officers under Article 235 of the Constitution.

After oral arguments were over, learned Attorney General, after
obtaining instructions from the Central Government filed a memorandum to
B the effect that section 2( q) of the Act would be suitably amended so as to
exclude officers and servants in tLe employment of the Supreme Court and
members and staff of the subordinatejudiciary from the purview of the Act. in
the same memorandum it has also been said that Government would arrange
for sittings of the benches of the ·:~ribunal at the seat or seats of each High .·~·,
Court on the basis that 'sittings' will include 'circuit sittings' and the details
C thereof would be worked out by the Chairman or the Vice-Chairman
concerned.

With these concessions made by the learned Attorney General, only two
aspects remain to be dealt with by us, namely, those covered by the first and
the second contentions.
D
Strong reliance was placed on the judgment of Bhagwati, J (one of us-
presently the learned Chief Justice) in Minerva Mills Ltd. & Ors. v. Union of
India & Ors., [1981] l SCR 206, 287 where it was said:

"The power of judicial review is an integral part of our
E constitutional system and without it, there will be no
Government of laws and the rule of law would become a
teasing illusion and ;1 promise ofunreality. I am of the vie"· that
if there is one featur'' of our Constitution which, more than any
other, is basic and fundamental to the maintenance of
democracy and the rule of law, it is the powerofjudicial review
F
and it is unquestionably, to my mind, part of the basic structure
of the Constituion. Of course, when I say this I should not be
taken to suggest tha-:, however effective alternative institutional
mechanisms or arrangements for judicial review cannot be
made by Parliament. But what I wish to emphasise is that
judicial review is a vital principle of our Constitution and it
G cannot be abrogated without affecting the basic structure of the
Constitution. If-by 1 constitutional amendment, the power of
judicial review is taken away and it is provided that the validity
of any law made by the Legislature shall not be liable to be
called in question on any ground, even if it is outside the
legislative competence of the Legislature or is violative of any
H
S.P. SAMPATH KUMAR v. UNION OF INDlA [MISRA, J.] 451

fundamental rights, it would be nothing short of subversion of A
the Constitution, for it would make a mockery of the
distribution of legislative powers between the Union and the
States and render the fundamental rights meaningless and
futile. So also if a constitutional amendment is made which has
the effect of taking away the power of judicial review."
B
Article 32 was described by Dr. Ambedkar in course of the debate in the
Constituent Assembly as the 'soul' and 'heart' of the Constitution and it is in
recognition of this position that though Article 323A(2)(d) authorised
_} exclusion of jurisdiction under Article 32 and the original Act had in Section
28 provided for it, by amendment jurisdiction under Article 32 has been left
untouched. The Act thus saves jurisdiction of this Court both under Article 32 C
in respect of original proceedings as also 1111der Article 136 for entertaining
appeals against decisions of the Tribunal on grant of Special Leave. Judicial
review by the apex court has thus been left in tact.

The question that arises, however, for consideration is whether bar of
jurisdiction under Articles 226 and 227 affects the provision for judicial review. D
The right to move the High Court in its writ jurisdiction-unlike the one under
Article 32, is not a fundamental right. Yet, ihe High Courts, as the working
experience of three and a half decades shows have in exercise of the power of
judicial review played a definite and positive role in the matter of preservation
of fundamental and other rights and in keeping administrative action under
reasonable control. In these thirty-six years following the enforcement of the E
Constitution, not only has India's population been more than doubled but
also the number of litigations before the courts including the High Courts has
greatly increased. As the pendency in the High Courts increased and soon
became the pressing problem of backlog, the nation's attention came to be
bestowed on this aspect. Ways and means to relieve the High Courts of the
load began to engage the attention of the Government at.the Centre as also in
F
the various States. As early as 1969, a Committee was set up by the Central
Government under the chairmanship of Mr. Justice Shah of this Court to
make recommendations suggesting ways and means for effective, expeditious
and satisfactory disposal of matters relating to service disputes of Government
servants as it was found that a sizable portion of pending litigations related to· G
this category. The Committee recommended the setting up of an independent
Tribunal to handle the pending cases before this Court and the High Courts.
While this report was still engaging the attention of Government, the
Administrative Reforms Commission also took note of the situation and
recommended the setting up of Civil Services Tribunals to deal with appeals of
Government servants against disciplinary action. In certain States, Tribunals H
of this type came into existence and started functioning. But the Central
452 SUPREME COURT REPORTS [1987] I S.C.R.

Government looked into the matter further as it transpired that the major
A
chunk of service litigation related to matters other than disciplinary action. In
May 1976, a Conference of Chief Secretaries of the States discussed this
problem. Then ·came the Forty-Second Amendment of the Constitution
bringing in Article 323A which authorised Parliament to provide by law "for
the adjudication or trial by administrative tribunals of disputes and
B complaints with respect to recruitment ar:d conditions of service of persons
appointed to public services and posts in connexion with the affairs of the
Union or of any State or of any local or ot"ler authority within the territory of
India or under the controt of the Government of India or of any Corporation
owned or controlled by the Government." As already stated this Article
envisaged exclusion of the jurisdiction of 111 courts, except the jurisdiction of.
the Supreme Court under Article 136, with respect to the disputes or
c complaints referred to in clause (I). Though the Constitution now contained
the enabling power, no immediate steps were taken to set up any Tribunal as
contemplated by Article 323A. A Consfr:ution Bench of this Court in K.K.
Dutta v. Union of India, (1980] 3 SCR HI I observed:

D "There are few other litig,ative areas than disputes between
members of various services inter se, where the principle that
public policy requires that all litigation must have an end can
apply with greater force. Public servants ought not to be driven
or required to dissipate their time and energy in court-room
battles. Thereby their a!':ention is diverted from public to
E private affairs and their inter se disputes affect their sense of
oneness Without which DC• institution can function effectively.
The constitution of Servke Tribunals by State Governments
with an apex Tribunal at the Centre which in the generality of
the cases, should be the final arbiter of controversies relating to
conditions of service, including the vexed question of seniority,
F may save the couris frorr the avalanche of writ petitions and
appeals in service matters. The proceedings of such Tribunals
can have the merit of informality and if they will not be tied
down to strict rules of evidence, they might be able to produce
solutions which will satisfy many .... "

G In the meantime the problem of the backlog of cases in the High Courts
becomes more acute and pressing and came to be further discussed in
Parliament and in conferences and seminars. Ultimately in January 1985, both
Houses of Parliament passed the Bill anJ with the Presidential assent on 27th
February, 1985, the law enabling the long awaited Tribunal to be constituted
came into existence. As already noticed, the Central Government notified the
H Act to come into force with effect from 1.11.1985.
S.P. SAMPATH KUMAR v. UNION Of INDIA [MISRA, J.) 453

Exclusion of the jurisdiction of the High Courts in service matters and
its propriety as also validity have thus to be examined in the background A
indicated above. We have already seen tl;iat judicial review by this Court is left
. wholly unaffected and thus there is a forum where matters of importance and
grave injustice can be brought for determination or rectification. Thus
exclusion of the jurisdiction of the High Court does not totally bar judicial
review. This Court in .Minerva Mills' case did point out that "effective B
alternative institutional mechanisms or arrangements for judicial review" can
be made by Parliament. Thus it is possible to set up an alternative institution in
place of the High Court for providing judicial review. The debates and
- )- deliberations spread over almost two decades for exploring ways and means
for relieving the High Courts of the load of backlog of cases and for assuring
quick settlement of service disputes in the interest of the public servants as also C.
the country cannot be lost sight of while considering this aspect. It has not been
disputed before u<-and perhaps could not have been-that the Tribunal
under the scheme of the Act would take overa part of the existing backlog and
a share of the normal load of the High Courts. The Tribunal has been
contemplated as a substitute and not as supplemental to the High Court in the
scheme of administration of justice. To provide the Tribunal as an additional D
forum from where parties could go to the High Court •.vould certainly have
been a retrograde step considering the situation and circumstances to meet
which the innovation has been brought about. Thus barring of the jurisdiction
of the High Court can indeed not be a valid ground of attack.

What, however, has to be kept in view is that the Tribunal should be a E
real substitute of the High Court-not only in form and de jure but in content
and de facto. As was pointed out in 'Minerva's Mills, the alternative
arrangement has to be effective and efficient as also capable of upholding the
constitutional limitations. Article 16 of the Constitution guarantees equality
of opportunity in matters of public employment. Article 15 bars
discrimination on grounds of religion, race, caste, sex or place of birth. The F
touch-stone of equality enshrined in Article 14 is the greatest of guarantees for
the citizen. Centring around these articles in the Constitutiorl a service
jurisprudence has already grown in this country. Under Sections 14 and 15 of
the Act all the powers of the Courts except those of this Court in regard to
matters specified therein v.est in the Tribunal-either Central or State. Thus
the Tribunal is the substitute of the 'High Court and is entitled to exercise the G
powers thereof.

The High Courts have been functioning over a century and a quarter
and until the Federal Court was established under the Government of India
Act, 1935, used to be the highest courts within their respective jurisdiction
subject to an appeal to the-Privy Council in a limited category of cases. In this H
454 SUPREME COURT REPORTS [ 1987] I S.C. R.

A long period ofabout six scores of years, 1he High Courts have played their role
effectively, efficiently as also satisfactorily. The litigant in this country has
seasoned himself to look upto the High Court as the unfailing protector of his
person, property and honour. The instiV1tion has served its purpose very well
and the common man has thus come to repose great confidence therein.
Disciplined, independent and trained Judges well-vei:..ed in law and working
B with all openness in an unattached and objective manner have ensured l"
dispensation of justice over the years. Aggrieved people approach the Court-
the social mechanism to act as the arbiter-not under legal obligation but
under the belief and faith that justice shall be done to them and the State's
authorities would implement the decision of the Court. It is, therefore, of ·(
paramount importance that the substitu1e institution-the Tribunal-must be
C a worthy successor of the High Court in all respects. That is exactly what this
Court intended to convey when it spoke of an alternative mechanism in •
Minerva Mills' case .
•
Chapter II of the Act deals with escablishment of Tribunals and Benches
D thereof. Section 4 provides for establishment while Section 5 deals with
composition of the Tribunal and Benches thereof. Section 6 lays down the
qualifications of Chairman, Vice-Chairman and members. So far as the
Chairman is concerned, sub-section (!) requires that he should be or have
been-
(a) a Judge of a High C>urt; or
E
(b) has for at least two years, held office as Vice-Chairman; or

(c) has, for at least two years, held the post of a Secretary to the
Government of India or any other post under the Central or a
State Government carrying a scale of pay which is not less than ~.
F that of a Secretary to the Government of India. ·~

Sub-section (2) prescribing the qualification for Vice-Chairman
provides that he should be or have been-

(a)' a Judge of a High Court; or
G
(b) for at least two years, held the post of a Secretary to the
Government of India or any other post under the Central or a
State Government carrying a scale of pay which is not less than
that of a Secretary to the Government of India; or
'
H ..
(bb) for at least five y'ars, held the post of an Additional
S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 455

Secretary to Government of India or any other post carrying A
equivalent pay; or.
(c) for a period of not less than three years held office as a
judicial member of an Administrative Tribunal.

Sub-section (3) prescribes the qualification of a judicial member and' B
requires that: (a) he should be or should have been or qualified to be a Judge of
a High Court; or (b) has been a member of the Indian Legal Service and has
held a post in Grade I of that service for at least three years.

~- Sub-section (3-A) provides the qualification for appointment as
, administrative member and lays down that such person should have, for at least C
two years, held the post of an Additional Secretary to the Government oflndia
or any other post under the Central or a State Government carrying a scale of
"'illf pay not less than that of an Additional Secretary to Government oflndia; or (b)
has, for at least three years, held the post ofa Joint Secretary to the Government
of India or any other post under the Central or the State Government earrying a
scale of pay which is not less than that of a Joint Secretary to Government of D
India. So far as the Chairman is concerned, we are of the view that ordinarily a
retiring or retired Chief Justice of a High Court or when such a person is not
available, a Senior Judge of proved ability either in office or retired should be
appointed. That office should for all practical purposes be equated with the.
office of Chief Justice of a High Couri. We must immediately point out that we
.• have no bias, in any manner, against members of the Service. Some of them do E
exhibit great candour, wisdom, capacity to deal with intricate problems with
understanding, detachment and objectiveness but judicial discipline generated
by experience and training in an adequate dose is, in our opinion, a necessary
qualification for the post of Chairman. We agree that a Vice-Chairman with
these qualifications and experience of two_ years may be considered for
appointment as Chairman but in order that the Tribunal maybe acceptable to F

l - the litigants who are themselves members of the various services, section 6( 1)(c)
should be omitted. We do not want to say anything about Vire-Chairman and
members dealt with in sub-sections (2), (3) or (3A) because so far as their
selection is concerned, we are of the view that such selection when it is not of a
sitting Judge or retired Judge of a High Court should be done by a high-
powered committee with a sitting Judge of the Supreme Court to be nominated G
by the Chief Justice of India as its Chairman. This will ensure selection of
proper and competent people to man these high offices of trust and help to
} build up reputation and acceptability. Once the qualifications indicated for
appointment of Chairman are adopted and the manner of selection of Vice-
Chairman and members is followed, we are inclined to think that the manning.
of the Tribunal would be proper and conducive to appropriate functioning. We H
456 SUPREME COUR r REPORTS [1987] I S.C.R.

A do not propo•e to strike down the prescriptions containing dilforent
requirements but would commend to the Central Government to take prompt
steps to bring the provisions in accord w,th what we have indicated. We must
state that unless the same be done, tLe constitution of the Tribunal as a
substitute of the High Court would be open to challenge. We hasten to add that
our judgment shall operate prospectivel:1 and would not affect appointments
B already made to the offices of Vice-Chairman and Member-both
administrative and judicial.

Section 8 of the Act prescribes th' term of office and provides that the
term for Chairman, Vice-Chairman or r.lembers shall be of five years from the __ - ( -
date on which he enters upon his office or until he attains the age of 65 in the
C case of Chairman or Vice-Chairman and 62 in the case of member, whichever
is earlier. The retiring age of 62 or 65 for the different categories is in accord
with the pattern and fits into the scheme in comparable situations. We would,
however, like to indicate that appoirtment for a term of five years may
occasionally operate as a dis-incentive ior well-qualified people to accept the
D offer to join the Tribunal. There may be competent people belonging to
younger age groups who would haw more than five years to reach the
prevailing age of retirement. The fact that such people would be required to go
out on completing the five year period but long before the superannuation age
is reached is bound to operate as a deterrent. Those who come to be Chairman,
Vice-Chairman or members resign ap·oointments, if any, held by them before
E joining the Tribunal and, as such, there would be no scope for their return to
the place or places from where they co me. A five year period is not a long one.
Ordinarily some time would be taken for most of the members to get used to·
the service-jurisprudence and when the period is only five years, many would
have to go out by the time they are full:1 acquainted with the law and have good
grip over the job. To require retirement at the end of five years is thus neither
F convenient to the person selected for the job nor expedient to the scheme. At
the hearing, learned Attorney-General referred to the case of a member of the
Public Service Commission who is appointed for a term and even suffers the
disqualification in the matter of furth·:r employment. We do not think that is a
comparable situation. On the other hand, membership in other high-powered
Tribunals like the Income-tax Appellate Tribunal or the Tribunal under the
G Cust9ms Act can be referred to. When amendments to the Act are
undertaken, this aspect of the matter deserves to be considered, particularly
because the choice in that event would be wide leaving scope for proper
selection to be made.

H We hope and trust that within a reasonable period not beyond 31st
S.P. SAMPATH KUMAR v. UNION OF INDIA [MISRA, J.] 457

March, 1987, the amendments iiidicated shall be brought about so as to A
remove the defects found in the Act.

Khalid, Oza and Dutt J.J.

We have read both the Judgments just delivered-the main judgment of
learned Brother Ranganath Misra and the other of Hon'ble the Chief Justice.
B
We agree with both.

.__ P.S.S .

'

r