Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020

Central Govt. notified new Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020, in exercise of powers u/s 184 of the Finance Act 2017. The rules will be applicable to apply to 19 Tribunals such as CAT, AFT, NGT, NCLAT, SAT, ITAT, NCDRC, TDSAT etc.

Section 184 of Finance Act 2017 states that:

The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or,

as the case may be, other Authorities as specified in column (2) of the Eighth Schedule:

Provided that the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment

Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed,-

(a) in the case of Chairperson, Chairman or President, the age of seventy years;

(b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer or any other Member, the age of sixty-seven years:

(2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.

Why were provisions of Appellate Tribunals and other Authorities (Qualification and other Conditions of Service of Members) Rules, 2017 struck down?

The Supreme Court in the case of Rojer Mathew v South Indian Bank Ltd observed the provisions of appointment in search cum select committee of the tribunal lacks participation from judiciary thereby positioning it in direct contravention to the doctrine of separation of powers and is in effect an encroachment by the executive on the judiciary.

Doctrine of separation of powers

The sovereign power has been distributed among the three-wings:

• Legislature
• Executive
• Judiciary

The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the Constitution to the three organs and delineating the jurisdiction of each.

Apart from the directive principles laid down in Article 50 which enjoins separation of judiciary from the executive, the constitutional scheme does not embody any formalistic and dogmatic division of powers.

Are the corrections done in 2020 Rules sufficient?

• The substantive flaw pointed out by the Court in the 2017 Rules- the priority given to executive in the matter of appointments is present in the 2020 Rules as well.

Differences from the 2017 Rules

• As per 2020 Rules, the removal is based on recommendation made by Search cum Selection Committee prescribed for the Tribunal.
• Rule 4(2) of the 2017 Rules provided that the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted shall be the convener of the Search-cum-Selection Committee.This provision has been omitted in the 2020 Rules.

The 2020 Rules also provide a fixed term of four years to the Tribunal members, based on Court's observations based on Court's observations that the three-year term under the 2017 Rules was ineffective.