MADRAS BAR ASSOCIATION versus UNION OF INDIA AND ANR.

Citation: [2021] 5 S.C.R. 791 · Decided: 14-07-2021 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Disposed off

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Judgment (excerpt)

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MADRAS BAR ASSOCIATION
v.
UNION OF INDIA AND ANR.
(W.P. (C)  502 of  2021)
JULY 14, 2021
[L. NAGESWARA RAO, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Tribunals – Finance Act, 2017 – ss.184 and 186(2) [as
amended by the Tribunal Reforms (Rationalisation and Conditions
of Service) Ordinance, 2021] – Tribunal Reforms (Rationalisation
and Conditions of Service) Ordinance, 2021 – ss.12 and 13 –
Appointment as Chairperson / Member of Tribunals – Procedure –
Conditions of service – Age qualification – Principles of separation
of powers – Independence of judiciary – Impermissibility of
legislative override – Challenge to first proviso and second proviso,
read with third proviso to s.184 (1) – Whether first proviso to s.184(1)
which stipulated that a person below the age of 50 years was not
eligible for appointment as Chairperson or Member was in violation
of the doctrine of separation of powers as the Supreme Court
judgment in MBA-III case [Madras Bar Association v. Union of
India & Anr., (2020) SCC Online SC 962] was frustrated by an
impermissible legislative override – Whether the second proviso,
read with the third proviso, which stipulated that allowances and
benefits payable to Chairpersons and Members was to be the same
as a Central Government officer holding a post carrying the same
pay, was an affront to the judgment in MBA-III case – Whether
s.184(7) which stipulated that the Selection Committee shall
recommend a panel of two names for appointment to post of
Chairperson or Member and the Central Government shall take
decision preferably within three months from the date of the
recommendation of the Committee, was also an attempt to override
the law laid down in MBA-III case – Challenge to use of the
expression ‘preferably’ in s.184(7) – Insertion of s.184(11)
prescribing a term of four years for the Chairpersons and Members
of tribunals by giving retrospective effect to the provision was also
challenged – Held (per L. Nageswara Rao, J.) – The first proviso
and the second proviso, read with the third proviso, to s.184
[2021] 5 S.C.R. 791
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
overriding the Supreme Court judgment in MBA-III case in respect
of fixing 50 years as minimum age for appointment and payment of
HRA, s.184(7) relating to recommendation of two names for each
post by the Search-cum-Selection Committee (SCSC) and further,
requiring the decision to be taken by the Government preferably
within three months are unconstitutional – s.184(11) prescribing
tenure of four years is contrary to principles of separation of powers,
independence of judiciary, rule of law and Art.14 of the Constitution
– Though, there is nothing wrong with the proviso to s.184(11) being
given retrospective effect, the appointments made pursuant to the
interim directions passed by the Court cannot be interfered with –
Held (per S. Ravindra Bhat, J.) (Concurring) – The first proviso and
the second proviso to s.184(1), as well as s.184(7) of the Finance
Act, 2017, are all void and inoperative – s.184(11)(i) and (ii) also
void and unconstitutional – Declaration of Supreme Court in MBA-
III case shall prevail and the term of Chairperson of a Tribunal
shall be five years or till she or he attains the age of 70 years,
whichever is earlier and the term of Member of a Tribunal shall be
five years or till she or he attains the age of 67 years, whichever is
earlier – Retrospectivity given to the proviso to s.184(11) upheld;
however, without affecting the appointments made to the post of
Chairperson or members of Tribunals, as a consequence of Supreme
Court’s various orders during the interregnum period – Held (Hemant
Gupta, J.) (Partly dissenting) – The first, second and third proviso to
s.184(1), the use of expression ‘preferably’ in s.184(7) and the
proviso to s.184(11) are legal and valid as such provisions fall within
the exclusive domain of the legislature – The legislature has not
nullified the judgment of Supreme Court on the above aspects as
there were no such corresponding provisions in the 2020 Rules,
which were part of judicial review process – It is open to the
legislature to fix tenure of the Chairperson and the members other
than four years as the tenure of four years was found to be not
tenable in MBA-III case – s.184(7) which contemplates that Select
Committee should recommend a panel of two names is however
contrary to directions of Supreme Court in MBA-III case –
s.184(11)(i)(ii) and s.184(7) are

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