REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 311 OF 2010

Shanker Raju           ………….. Petitioner

Versus

Union of India …………..Respondent

J U D G M E N T

H.L. Dattu, J.

1) Since the petitioner purports to invoke the jurisdiction of this Court  

under Article 32 of the Constitution of India, it is necessary to note the  

relevant facts and reliefs sought for in the petition.   

2) The material  facts which are essential to mention are very few and  

they lie within a narrow compass.  Shri Shanker Raju, the petitioner,  

was  appointed as  a  Judicial  Member  of  the Central  Administrative  

Tribunal (in short, “the Tribunal”) on 10.12.2000.  After completion  

of  his  five-year  term,  he was reappointed  for  another  term of  five  

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years  and  was  due  to  complete  his  second  term  of  five  years  on  

09.12.2010. In April, 2010, in response to an advertisement issued by  

the  respondent  regarding  vacancies  of  Members  in  the  Tribunal,  

Principal Bench, Delhi, he made application for the post of Judicial  

Member of the Tribunal, the post which he had held for nine and a  

half years at  the time of making application. Though the petitioner  

was  eligible  for  the  appointment  in  terms  of  his  qualification,  the  

respondent  refused  to  consider  his  claim  for  appointment  for  the  

vacancy, for the reason that the petitioner would complete his second  

term of 5 years on 09.12.2010 as a Judicial Member of the Tribunal  

vide  the  impugned  communication  dated  12-08-2010.  The  main  

premise of the petitioner’s challenge of the said communication is that  

after completion of a tenure of 10 years, he is eligible to apply for the  

post afresh and must be considered on merits for his appointment as a  

Member  of  the  Tribunal  and  should  not  be  disqualified  for  

appointment merely because he has completed 10 years in that office.  

The petitioner seeks appropriate writ from this Court mainly in respect  

of  the  communication  dated  12.08.2010  and  for  a  direction  to  the  

respondent to consider his case for appointment to the post of Member  

(J)  in  Tribunal  advertised  vide  D.O.  No.A1103/9/2010-AT  dated  

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20.04.2010 on its own merit sans eligibility.

3) The  Administrative  Tribunals  Act,  1985 [hereinafter  referred  to  as  

‘the  Act’]  was  amended  in  the  year  2006  by  the  Administrative  

Tribunals  (Amendment)  Act  2006.  The  amendments  were  made  

effective  from 19.02.2007.  Some of  the  principal  changes  brought  

about, which are relevant for the purpose of the case are,  the abolition  

of the post of Vice-Chairman; changes in the terms of office in the  

form of increase in the age of superannuation of the Chairman from  

65 years to 68 years and that of the other Members from 62 years to  

65 years; the term of the Members was fixed to 5 years, extendable by  

another  term  of  5  years;  and,  incorporation  of  Section  10A  as  a  

savings clause, for saving the term of office of the Chairman, Vice-

Chairman and Members, who were appointed prior to the coming into  

force of the Amendment Act.

4) It was just a few months ago, a Bench of three learned Judges of this  

Court  had  the  occasion  to  consider  the  legislative  competence and  

validity of the Administrative Tribunals (Amendment) Act, 2006 in  

the case of A.K. Behra v. Union of India, (2010) 5 SCALE 472.  The  

reliefs prayed for by the petitioner in that writ petition were:   

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(i)     Quash and set aside the decision of the respondent to  abolish  the  posts  of  Vice-Chairman  in  the  Central  Administrative  Tribunal  as  reflected  in  the  Administrative  Tribunal (Amendment) Act 2006 and direct the respondents to  restore  the  said  posts  of  Vice-Chairman  in  Central  Administrative Tribunal forthwith;

(ii)      Declare  that  the newly inserted Section 10A of the  Administrative Tribunals Act, 1985 to the extent it postulates  different conditions of service for the Members of the Central  Administrative  Tribunal  on  the  basis  of  their  appointment  under the Un-amended Rules and under the Amended Rules as  unconstitutional, arbitrary and not legally sustainable;

(iii)  Direct the respondents to accord the conditions of service  as  applicable  to  the  Judges  of  the  High  Court  to  all  the  Members of the Central Administrative Tribunal irrespective  of  their  appointment  under  the  Un-amended  or  amended  Rules;

(iv)     Declare  that  the  newly  inserted  Section 10A of  the  Administrative Tribunals Act is further unconstitutional to the  extent it stipulates that the total term in office of the Members  of the Tribunal shall not exceed 10 years;

(v)      Direct  the  respondents  to  continue all  the  Members  appointed under the  un-amended or  amended rules  till  they  attain the age of superannuation of 65 years;

(vi)    Declare  the  newly  inserted  qualifications  for  appointment  as  Administrative  Members  as  reflected  in  the  Amended Section 6(2)  as arbitrary and unsustainable in the  eyes of law and quash the same;

(vii)     Quash and set aside the newly added Sec. 12(2) of the  Act which impinges upon the independence of judiciary;

(viii)     Pass any other order or direction which this Hon’ble  Court thinks fit and proper in the facts and circumstances of  the case.”

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5) In  the  case  of  A.K.  Behra (supra),  two  learned  judges  (K.G.  

Balakrishnan,  CJI  and J.M.  Panchal,  J.)  upheld  the  validity  of  the  

impugned amendment and dismissed the writ  petition, whereas, the  

other learned Judge (Dalveer Bhandari, J.) allowed the writ petition  

and  struck  down the  impugned  amendment  as  being  arbitrary  and  

violative of Fundamental Rights guaranteed under the Constitution.  

6) In A.K. Behra’s case (supra), the court has noticed, apart from others,  

one of the reliefs sought for by the petitioner.  It is relevant to notice  

the prayer made and discussion on that issue by the Court.  They are  

as under:-     

“to  declare  that  newly  inserted  Section  10  A  of  the  Administrative Tribunals Act, 1985 as unconstitutional to the  extent it stipulates that the term of office of the Member of the  Central Administrative Tribunal shall not exceed 10 years.”  

         The Court while considering the said relief has concluded:

“15. The plea that Section 10A, 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  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 necessary that every Member of the Tribunal should   have a tenure of five years. Therefore, the provisions relating  

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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. This Court, in S.P. Sampath Kumar v. Union of   India and others [(1987) 1 SCC 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  well qualified people as 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 upheld by this  Court   in Durgadas Purkyastha v. Union of India and 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 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 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   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 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 arbitrary   having effect of jeopardizing 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 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   

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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 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  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  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 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 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  provision restricting the total tenure of a Member to ten years   is either arbitrary or illegal.”

7) The decision of the aforesaid Bench of this Court is binding on us and  

is clearly applicable to the case before us.  However, out of respect to  

the  learned  senior  counsel,  who  pressed  the  contentions  very  

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seriously, we may briefly and independently examine the question in  

this case also.   

8) Before we turn to the facts of the present petition, we would like to  

make certain general observations and explain the legal position with  

regard to them.

The Doctrine of Stare Decisis

9) It is a settled principle of law that a judgment, which has held the field  

for a long time, should not be unsettled. The doctrine of stare decisis  

is expressed in the maxim “stare decisis et non quieta movere”, which  

means “to stand by decisions and not to disturb what is settled.”  Lord  

Coke  aptly  described  this  in  his  classic  English  version  as  “those  

things which have been so often adjudged ought to rest in peace.”  

The underlying logic of this doctrine is to maintain consistency and  

avoid uncertainty. The guiding philosophy is that a view which has  

held the field for a long time should not be disturbed only because  

another  view  is  possible.  This  has  been  aptly  pointed  out  by  

Chandrachud, C.J. in  Waman Rao v.  Union of India, (1981) 2 SCC  

362 at pg. 392 thus:

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“40. … for the application of the rule of stare decisis, it is not   necessary  that  the  earlier  decision  or  decisions  of   longstanding should have considered and either accepted or   rejected  the  particular  argument  which  is  advanced  in  the  case on hand. Were it so, the previous decisions could more  easily be treated as binding by applying the law of precedent   and it will be unnecessary to take resort to the principle of   stare decisis. It is, therefore, sufficient for invoking the rule of   stare  decisis that  a  certain  decision  was  arrived  at  on  a   question  which  arose  or  was  argued,  no  matter  on  what   reason the decision rests or what is the basis of the decision.   In other words, for the purpose of applying the rule of stare  decisis, it is unnecessary to enquire or determine as to what   was  the  rationale  of  the  earlier  decision  which  is  said  to  operate as stare decisis.”

10)               In Manganese Ore (India) Ltd. v. Regional Asstt. CST, (1976) 4  

SCC 124, at page 127, it was opined that the doctrine of stare decisis  

is  a very valuable principle  of precedent which cannot be departed  

from unless there are extraordinary or special reasons to do so.

11)             In Ganga Sugar Corpn. v. State of U.P., (1980) 1 SCC 223 at  

page 233, this Court cautioned that, “the Judgments of this Court are   

decisional  between  litigants  but  declaratory  for  the  nation.” This  

Court further observed:

         “28. … Enlightened litigative policy in the country must  accept  as  final  the  pronouncements  of  this  Court… unless the subject be of such fundamental importance   to national life or the reasoning is so plainly erroneous   

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in  the  light  of  later  thought  that  it  is  wiser  to  be   ultimately right rather than to be consistently wrong.   Stare decisis is not a ritual of convenience but a rule   with limited exceptions.”

12)     In Union of India v. Raghubir Singh, (1989) 2 SCC 754, at page  

766, this Court has enunciated the importance of doctrine of binding  

precedent in the development of jurisprudence of law:  

“8. Taking  note  of  the  hierarchical  character  of  the  judicial system in India, it is of paramount importance  that the law declared by this Court should be certain,   clear and consistent.  It  is commonly known that most   decisions of  the courts  are of  significance not  merely   because they constitute an adjudication on the rights of   the parties and resolve the dispute between them, but   also because in doing so they embody a declaration of   law operating as a binding principle in future cases. In  this  latter  aspect  lies  their  particular  value  in   developing the jurisprudence of the law.

9. The doctrine of binding precedent has the merit  of   promoting  a  certainty  and  consistency  in  judicial   decisions,  and enables an organic development of the  law, besides providing assurance to the individual as to   the  consequence  of  transactions  forming  part  of  his   daily affairs. And, therefore, the need for a clear and  consistent enunciation of legal principle in the decisions   of a court.”

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13)      In  Krishena Kumar v. Union of India,  (1990) 4 SCC 207, at  

page 233, this Court has explained the meaning and importance of  

sparing application of the doctrine of Stare Decisis:  

“33. Stare  decisis  et  non  quieta  movere.  To  adhere  to  precedent and not to unsettle things which are settled. But it   applies  to litigated facts and necessarily  decided questions.   Apart from Article 141 of the Constitution of India, the policy   of courts is to stand by precedent and not to disturb settled  point. When court has once laid down a principle of law as   applicable  to  certain  state  of  facts,  it  will  adhere  to  that   principle,  and  apply  it  to  all  future  cases  where  facts  are   substantially the same. A deliberate and solemn decision of   court made after argument on question of law fairly arising in   the case, and necessary to its determination, is an authority,   or binding precedent in the same court, or in other courts of   equal or lower rank in subsequent cases where the very point   is  again  in  controversy  unless  there  are  occasions  when  departure  is  rendered necessary to vindicate plain,  obvious  principles of law and remedy continued injustice. It should be  invariably applied and should not ordinarily be departed from  where  decision  is  of  long  standing  and  rights  have  been  acquired  under  it,  unless  considerations  of  public  policy  demand it.”  

14)     In Union of India & Anr.  v. Paras Laminates (P) Ltd, (1990) 4 SCC  

453 at pg. 457, this Court observed as under :-

“9. It  is true that a bench of two members must not lightly   disregard the decision of another bench of the same Tribunal  on an identical  question.  This is  particularly  true when the  earlier decision is rendered by a larger bench. The rationale  of  this  rule  is  the  need  for  continuity,  certainty  and  predictability in the administration of justice. Persons affected  by decisions of tribunals or courts have a right to expect that   those exercising judicial  functions will follow the reason or   

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ground  of  the  judicial  decision  in  the  earlier  cases  on   identical matters”.  

   It  has  been  opined  that  in  the  absence  of  a  strict  rule  of  

precedent, litigants would take every case to the highest court, in spite  

of  a  ruling  to  the  contrary,  in  the  hope  that  the  decision  may  be  

overruled.  

15) In Hari Singh v. State of Haryana, (1993) 3 SCC 114, at page  

120,  this  Court  stated  the  importance  of  consistent  opinions  in  

achieving harmony in Judicial System:  

“10. It  is  true  that  in  the  system of  justice  which  is  being   administered by the courts, one of the basic principles which  has to be kept in view, is that courts of coordinate jurisdiction,   should have consistent opinions in respect of an identical set   of facts or on a question of law. If  courts express different   opinions on the identical sets of facts or question of law while  exercising  the  same  jurisdiction,  then  instead  of  achieving  harmony  in  the  judicial  system,  it  will  lead  to  judicial   anarchy.”  

16)     In  Tiverton  Estates  Ltd.  v.  Wearwell  Ltd., (1975)  Ch 146 at  

page 371, Sorman L. J.,  while not agreeing with the view of Lord  

Denning, M.R.  about desirability of not accepting previous decisions,  

said as follows:

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“I decline to accept his lead only because I think it damaging   to the law to the long term—though it would undoubtedly do   justice in the present case. To some it will appear that justice   is being denied by a timid, conservative adherence to judicial   precedent. They would be wrong. Consistency is necessary to   certainty—one of great objectives of law.”

17)     The second observation we wish to  make is,  the  doctrine of  

binding  precedent  has  the  merit  of  promoting  certainty  and  

consistency  in  judicial  decisions.  The  pronouncement  of  law  by  a  

larger Bench of the this Court is binding on a Division Bench of this  

court, especially where the particular determination by this Court not  

only disposes of the case,  but  also decides a principle  of law. We  

further add that it would be inappropriate to reagitate the very issue or  

a particular provision, which this Court had already considered and  

upheld.

18)     Faced with this situation, Shri. P.S. Narasimha, learned senior  

counsel appearing for the petitioner, submits that the issue before this  

Court in the present writ petition is different from the issue raised and  

canvassed in A.K. Behra’s case (supra) by pointing out that the relief  

sought for in the two cases are not identical.   He contends that the  

case  of  A.K.  Behra  (supra)  was  limited  to  the  challenge  to  

Constitutional validity of the Administrative Tribunal (Amendment)  

Act, 2006, and further in that case, the question, whether a Member of  

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the  Tribunal  appointed  under  the  Act,  prior  to  its  amendment,  is  

eligible for re-appointment after completion of a term of ten years,  

was  neither  argued,  nor  considered  by  this  Court.  It  is  further  

contended by Shri Narasimha that this Court was not called upon to  

decide  the  validity  of  Section 8 and Section 10A of  the  Act.  It  is  

contended that in A.K. Behara’s case (supra), this Court did not deal  

with the question of appointment of a member afresh after completion  

of  his  term under  Section  8  or  of  the  appointment  of  the  existing  

members  protected  under  Section  10  of  the  pre-amended  Act.  

According to the learned senior counsel, a person who is appointed as  

a Member of the Tribunal, is appointed for a term of five years, which  

is extendable by one more term of five years by the Government, if  

such person is found to be suitable and effective for the job, and there  

is no embargo for such a person to re-apply again after completion of  

his term of 10 years and such person can be appointed again on a fresh  

term, if the eligibility criteria prescribed in Section 6(2)(b) are met, till  

he attains the age of  65 years.   The learned senior counsel further  

submits  that  the “Terms of  Office” for a Member  as  prescribed in  

Section 8,  and Section 10A is merely a transitory  provision meant  

only to save the terms and conditions of service of existing members,  

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as  on  the  date  of  amendment  and not  a  substantive  provision  that  

regulates the eligibility for fresh appointment. In sum and substance,  

the  argument  of  Shri  Narasimha  is  that  a  person  is  eligible  for  

appointment  as  a  Member  as  many  times  as  he  is  selected  and  

appointed,  but  after  a  term  of  10  years,  he  has  to  seek  fresh  

appointment. He states that this can be done by a member till such  

time, he attains the age of 65 years.  

19)     Ms.  Indira  Jaising,  learned  Additional  Solicitor  General,  per  

contra, would submit that Section 8 of the Amended Act is clear and  

unambiguous.  The Legislature clearly declares the term of office for a  

member  of  the  Tribunal  as  10  years  and,  therefore,  petitioner  is  

ineligible for fresh appointment.  However, on a pointed query by the  

Court,  the learned ASG submits  that  a person,  who has completed  

term of 10 years,  is  eligible  for  appointment as  Chairman of  such  

other Tribunal, but not member of the Tribunal.  The learned ASG  

states  that  the  Amended Act  has put  in  clear  terms that  there is  a  

limitation of 10 years for a person to hold office as a Member, and  

this  amendment made explicit  what was implicit  earlier.   In a nut-

shell,  the  argument  of  the  learned  ASG is  that  once  a  person  has  

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completed 10 years in office as Member of the Tribunal,  he is not  

eligible for re-appointment.  

20)    This Court was also assisted by Shri R. Venkataramani, learned  

senior counsel,  in his role as Amicus Curiae.   Shri  Venkataramani,  

submits that the interpretation of Section 10A of the Amended Act did  

not come up for consideration before this Court in the case of  A.K.  

Behra (supra.). He further submits that Section 10A of the Act was in  

the form of a transitory provision, which was made applicable to those  

persons who had been appointed prior to Amendment Act (Act No.1  

of 2007).  He further submits that the persons who are appointed after  

coming into force of the Amendment Act of 2006, Section 10A will  

have no application.  

21)     In order to appreciate the contentions urged, it will be necessary  

to have regard to some of the relevant provisions of the Act. Section  

3(ia)  defines  ‘Member’  to  mean  a  Member  (whether  Judicial  or  

Administrative) of a Tribunal, and includes the Chairman. Section 6  

of the Act prescribes qualification for appointment as Chairman, Vice-

Chairman  and  other  Members.   We  may  now  trace  somewhat  

vacillating steps by which Section 8 reached its present form.  For  

16

immediate reference, we may set out Section 8 of the Act prior to and  

after  its  amendment  by  Act  1  of  2007.   We may  set  out  the  two  

Sections in juxta position. :

Section 8

(Before Amendment)

Section 8

(After Amendment)

8. Term of office. – The  Chairman, Vice-Chairman  or other Member shall hold  office as such for a term of  five years from the date on  which he enters upon his  office, but shall be eligible  for re-appointment for  another term of five years:

Provided that no Chairman,  Vice-Chairman or other  Member shall hold office as  such after he has attained, –  

(a) in the case of the  Chairman or Vice- Chairman, the age of  sixty-five years, and  

(b) in the case of any  other Member, the  age of sixty-two  years.

8. Term of office. – (1) The  Chairman shall hold office as  such for a term of five years  from the date on which he  enters upon his office:

Provided that no Chairman  shall hold office as such after  he has attained the age of  sixty-eight years.

(2) A Member shall hold  office as such for a term of  five years from the date on  which he enters upon his  office extendable by one  more term of five years:

Provided that no Member  shall hold office as such after  he has attained the age of  sixty-five years.

(3) The conditions of service  of Chairman and Members  shall be the same as  applicable to Judges of the  High Court.

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22)   Since some emphasis was laid on Section 10A of the Amended  

Provision by the Amendment Act of 2006, we notice that provision  

also and it reads as under:

“10A.  Saving  terms  and  conditions  of  service  of  Vice- Chairman. – The Chairman, Vice-Chairman and Member of  the  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  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  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),  2006  be  considered  for  fresh  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.”

23)   Section 8 of the Act, prior to its amendment, provided for the  

term of office of Chairman, Vice Chairman and other Members of the  

Tribunal.  By virtue of this provision, they would hold the office as  

such for a term of five years from the date they enter upon such office.  

However, they are eligible for re-appointment for another term of five  

years.  The proviso that is appended to the Section, provides some sort  

of restriction of ‘age bar’ in the case of Chairman, Vice-Chairman and  

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Members.   The  Chairman and Vice  Chairman shall  not  hold  their  

offices as such after they have attained the age of sixty five years and  

in the case of any other Member, he shall not hold office after the age  

of sixty-two years.

24)     Section  8  was  amended  by  Act  1  of  2007.   The  amended  

provision also provides the “Term of Office” of the Chairman and  

Members of the Tribunal. From the language employed in the Section,  

what we can decipher is that the Chairman of the Tribunal shall hold  

office  as such for a term of five years  from the date on which he  

enters  upon  his  office.    The  proviso  appended  to  the  Section  is  

couched in the negative language.  It states that a person appointed as  

a Chairman cannot hold office as such after he has attained the age of  

sixty eight years.  Sub section (2) of Section 8 speaks of the term of  

office  of  a  Member  of  the  Tribunal.   It  only  says  that  a  person  

appointed as a Member of the Tribunal, if he is found eligible for the  

post in terms of Section 6, shall hold office, for a term of five years. In  

the normal course, this term of five years is extendable by a term of  

another  five  years,  giving  a  person  a  total  term  of  ten  years.  

Continuation from 5 years to 10 years appears to be as a matter of  

course subject to exceptions as provided in service law jurisprudence.  

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Further, if such person has attained the age of 65 years, then he will  

have to retire, irrespective of whether he has completed ten years in  

office as a Member or not.  

25)    Prior to and after its amendment, Section 8 speaks of “Term of  

Office”.  In  our  view  the  Legislature  has  used  this  expression  

consciously.   The  expression  ‘Term’  signifies  a  fixed  period  or  a  

determined or  prescribed duration.   The word ‘term’ when used in  

reference to the tenure of office, means ordinarily a fixed and definite  

time.  There is a distinction between the words ‘term’ and ‘tenure’ as  

applied to a public officer or employee. The ‘term’, as applied to an  

office, refers to a fixed and definite period of time.  The word ‘tenure’  

has more extended meaning than the word ‘term’ and ‘tenure’ of an  

office means the manner in which the office is held especially  with  

regard to time.     

26) The  learned  counsel  Shri  Narasimha  submits  that  the  

Legislature, while amending Section 8 of the Act, has not placed any  

bar  or  embargo or  any outer  limit  of  number  of  years  that  can be  

served by a Member of the Tribunal.   Therefore, a Member of the  

Tribunal who has served for ten years as a Member is still eligible to  

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apply and participate in the selection process for being appointed as a  

Member.  Though the argument advanced looks attractive,  but  on a  

deeper consideration, we find no merit in the contention canvassed by  

the  learned  counsel.  In  our  view,  the  language  employed  in  the  

Section does not admit any ambiguity.  The language of the Statute is  

clear and unambiguous.  Section 8(1) of the Act provides the term of  

office of Chairman of the Tribunal, which shall be five years from the  

date he assumes his office.  The proviso qualifies and carves out an  

exception to the main enactment. The exception is, though a Chairman  

can hold office as such for a term of five years, he cannot hold such  

office after he attains the age of sixty-eight years.  Sub-section (2) of  

Section 8 of the Act provides the “Term of Office” of a Member of  

the Tribunal.  First part of the Section envisages that a member of the  

Tribunal shall hold the office for a ‘term of five years’.  The term as  

applied to an office, refers to a fixed and definite period of time that  

an appointee is authorised to serve in office.  Alternatively, it can be  

said that the term of office that is used by the Legislature could only  

mean  the  period  or  limit  of  time  during  which  the  incumbent  is  

permitted  to  hold the  office.  The second part  of  the  Section  gives  

discretion to the appointing authority to extend the term of office of a  

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member  of  the  Tribunal  to  one  more  term  of  five  years.   The  

expression ‘extendable’,  that finds a place in the sub-section, could  

only mean that the term of office of an incumbent as a member of the  

Tribunal can be extended if the parties agree.  The proviso appended  

to the sub-section again carves out an exception to the main provision  

and restricts a member for holding office after he has attained the age  

of  sixty five years.   The proviso takes care of  a  situation where a  

member whose term of office is extended for a further period of five  

years cannot hold such office if he has attained the age of 65 years  

during the extended period of five years.  A combined reading of both  

parts of Section 8(2) of the Act clearly demonstrates that a member of  

a Tribunal can hold such office for a fixed and definite period of time,  

i.e. for a period of five years from the date on which he enters upon  

his office and that period may be extended for one more term of five  

years.  What is contended before us by the learned counsel for the  

petitioner is that there is neither prohibition nor any embargo for a  

member who has completed 10 years as Member to participate in the  

selection process for being appointed as a Member of the Tribunal for  

another  term of five years.   This,  in our opinion,  is  impermissible  

since the total term that a person can hold the office of the Member of  

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the Tribunal is only for a period of 10 years. In our view, if the office  

is created by the Legislature under due authority, it may fix the term  

and alter it. We can understand the heart burn of a person who has  

served  as  Member  of  the  Tribunal  for  ten  years  and  thereafter,  is  

ineligible  for  being  appointed  as  a  Member  of  the  Tribunal.   We  

cannot  help  this  situation.  In  a  court  of  law  or  equity,  what  the  

legislature  intended  to  be  done  or  not  to  be  done  can  only  be  

legitimately ascertained  from what  it  has  chosen to  enact  either  in  

express words or by reasonable and necessary implication.  It is apt to  

remember the words of Lord Salmon in IRC Vs. Ross Minister Ltd.  

(1979) 52 TC 160 (HL).  It is stated, “however, much the courts may  

deprecate an Act, they must apply it.  It is not possible by torturing its   

language  or  by  any other  means  to  construe  it  so  as  to  give  it  a   

meaning which Parliament clearly intend it to bear.”  We may also  

add that where the Legislature clearly declares its intent in the scheme  

of a language of Statute, it is the duty of the Court to give full effect to  

the  same  without  scanning  its  wisdom  or  policy  and  without  

engrafting, adding or implying anything which is not congenial to or  

consistent  with  such  express  intent  of  legislature.   Hardship  or  

inconvenience cannot alter the meaning employed by the Legislature  

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if such meaning is clear on the face of the Statute.  If the Statutory  

provisions do not go far enough to relieve the hardship of the member,  

the remedy lies with the Legislature and not in the hands of the Court.  

27)     Section 10 A of the Amended Act is  the saving clause.   By  

virtue of this Section, the Chairman, Vice-Chairman and Members of  

a  Tribunal  appointed  prior  to  the  commencement  of  the  

Administrative Tribunals (Amendment) Act, 2006, are to be governed  

by  the  provisions  of  the  unamended  Act,  and  the  rules  made  

thereunder,  thereby  their  conditions  of  service  are  protected.  The  

proviso  appended  to  the  Section  fell  for  discussion  at  the  time  of  

hearing of the petition.   According to Shri  Venkataramani,  learned  

Amicus  and  Shri  Narasimha,  proviso  to  Section  10A  of  the  Act  

provides that the Chairman and Members appointed prior to coming  

into force of the Amendment Act may, on completion of their term or  

attainment of the age of sixty five or sixty two years, as the case may  

be, be considered for a fresh appointment, provided they are eligible  

in terms of Section 8 of the Amendment Act.  The other condition that  

requires  to  be  satisfied  is  that  the  total  term  in  the  office  of  the  

Chairman shall  not  exceed five years and that  of the members  ten  

years.  According to the learned counsel, reference of Section 8 in the  

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proviso to Section 10A merely refers to the tenure and does not create  

any ineligibility in a Member only because he has once completed the  

tenure prescribed thereunder.  We cannot agree with this contention.  

The proviso, if read plainly, the only conclusion that could be reached  

is that the Chairman and Members appointed prior to Amendment Act  

1  of  2007  on  completion  of  either  their  term  of  service  or  on  

attainment of 65 years in the case of Chairman or 62 years in the case  

of Members of the Tribunal, whichever is earlier, may be considered  

for fresh appointment.  If they are eligible in terms of Section 8 of the  

Amended Act  that  only means  if  a  member  has  not  completed 10  

years  term  as  a  member  of  the  Tribunal,  he  is  eligible  for  fresh  

appointment, provided he has not completed 65 years of age.  The  

proviso makes it abundantly clear that such fresh appointment could  

be  done  provided  they  satisfy  the  criteria  prescribed  under  the  

amended Section 8 of the Act and further, it is made subject to the  

condition that the total term of office of the Chairman shall not exceed  

5 years and that of the Member, ten years.  

28)   Section 6 of the Act provides for qualification for appointment  

as  Chairman,  Vice-Chairman and other  Members.  Section 8 of  the  

Amended  Act  provides  for  “Term  of  Office”.   These  provisions  

25

require to be read harmoniously.  However, the learned counsel for  

the petitioner wants us to read both these Sections separately,  if so  

read according to him, since the petitioner satisfies all the conditions  

prescribed  under  Section  6(2)(b)  of  the  Amended  Act,  the  

requirements of Section 8 of the Act should not be put against the  

Petitioner  and  make  him  ineligible  for  fresh  appointment.   It  is  

difficult for us to accept this argument.  In our view, if the argument  

now  put  forward  is  accepted,  it  would  mean  that  the  amendment  

achieved  no  purpose  whatsoever.   Undoubtedly,  the  words  of  the  

amendment, on their plain reading, are sufficient to hold that the term  

of office of a Member of a Tribunal is 10 years and after completion  

of 10 years, he does not superannuate but he goes out of the office.  In  

our  view,  the  language  of  Section 10A is  plain  and unambiguous,  

hence there is no need to call in aid any of the rules of construction.  

We  wish  to  add  that  the  Constitutional  validity  of  the  proviso  to  

Section  10A  pertaining  to  the  eligibility  of  a  Member  for  being  

considered for a fresh appointment after completing his term of office  

as a member was specifically pleaded in  A.K. Behra’s case (supra)  

and the Constitutional validity of the said proviso has been upheld by  

the said decision in para 16 of the Judgment.    

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29)    Shri  Narasimha,  learned  senior  counsel,  contends  that  a  

member, who has completed a term of five years, can get an extension  

of another term of five years.  Even after completing a term of ten  

years in  office, he is still eligible for fresh appointment and this can  

continue till such person attains the age of 65 years.  He contends that  

the embargo, if  any,  is  on the tenure of a Member  and not  on the  

person applying for the post of Member. The only embargo on such  

person is the age limit prescribed by Section 8 of the Act.  In support  

of his contention, Shri Narasimha pointed out to the Court that one  

Shri J.S. Dhaliwal was re-appointed as a Member of the Tribunal for a  

fresh  term,  after  completion  of  his  10  year  tenure.  However,  the  

learned ASG was quick to point out that the case of Shri Dhaliwal was  

the only a stray case in which this had happened, and attributed this to  

administrative lapses,  rather than accede to the interpretation that a  

Member  was eligible  for  fresh appointment  after  completion of  10  

years.  We  are  inclined  to  agree  with  the  learned  ASG  that  the  

appointment of Shri Dhaliwal for another term after completion of his  

27

10 year tenure is an exception and not the rule as Shri Narasimha has  

put forth before us.  

30)  If  we  have  to  accept  the  construction  suggested  by  Shri  

Narasimha, then it would lead to a situation where a person who has  

been a Member of the Tribunal for 10 years would have to start at the  

bottom of the ladder as a fresh appointee. In that circumstance, those  

persons who are appointed as Members such as the Petitioner, who  

were  till  the  previous day junior  to persons  such as the Petitioner,  

would suddenly  become senior to  Members  such as  the Petitioner.  

This would lead to an anomalous situation where a person who would  

have presided over a Bench in the Tribunal for years, would suddenly  

become the junior Member on the same Bench. This certainly cannot  

be  the  intention  of  the  Legislature.  A  statute  is  designed  to  be  

workable, and the interpretation thereof by Court should be to secure  

that object unless crucial omission or clear direction makes that end  

unattainable. [see Nelson Motis Vs. Union of India & Anr. (1992) 4  

SCC 711, Oswal Agro Mills Ltd. Vs. CCE, 1993 Supp. 3 SCC 316,  

Omvalika Das Vs. Hulisa Shaw, (2002) 4 SCC 539, Natni Devi Vs.  

Radha Devi Gupta, (2005) 2 SCC 271].    

28

31)    This principle is stated in the case of Holmes v. Bradfield Rural  

District Council, (1949) 1 All ER 381 at pg. 384, in which Finnemore,  

J. held:

“The mere fact that the results of a statute may  be unjust or absurd does not entitle this Court to   refuse  to  give  it  effect,  but,  if  there  are  two  different interpretations of the words in an Act,   the  Court  will  adopt  that  which  is  just,   reasonable and sensible rather than that which is   none of those things.”

32)   In the case of  Tirath Singh v. Bachittar Singh,(1955) 2 SCR  

457, this Court observed:

“5. …But it is a rule of interpretation well-established that,   “Where the language of a statute, in its ordinary meaning and   grammatical construction, leads to a manifest contradiction of   the  apparent  purpose  of  the  enactment,  or  to  some  inconvenience or absurdity, hardship or injustice, presumably  not  intended,  a  construction  may  be  put  upon  it  which   modifies the meaning of the words, and even the structure of   the sentence..........”

33)         In the case of Nasiruddin v. STAT, (1975) 2 SCC 671, this Court  

held:

“27. …If the precise words used are plain and unambiguous,   they are bound to be construed in their ordinary sense. The  mere fact that the results of a statute may be unjust does not   entitle  a  court  to  refuse  to  give  it  effect.  If  there  are  two  different interpretations of the words in an Act, the Court will   adopt that which is just, reasonable and sensible rather than   that which is none of those things. If the inconvenience is an   

29

absurd  inconvenience,  by  reading  an  enactment  in  its   ordinary sense, whereas if it is read in a manner in which it is   capable, though not in an ordinary sense, there would not be  any  inconvenience  at  all;  there  would  be  reason  why  one   should  not  read  it  according  to  its  ordinary  grammatical   meaning.  Where  the  words  are  plain  the  Court  would  not   make any alteration.”

34)   Before  we  conclude,  we  intend  to  notice  the  statement  made  by  

learned  senior  counsel  that  we  need  to  place  our  interpretation  on  the  

provisions  of  the  Amended  Act,  which  further  principles  of  Judicial  

independence.   Reference  is  made  to  a  passage  from  the  book  of  an  

American author, Laurence H. Tribe named “Constitutional Choices”. The  

author, while offering his views on the topic “Entrusting Federal  Judicial  

Power to Hybrid Tribunals”, has stated:  

“The  independence  of  the  federal  judiciary  is  at  least  as  important  a  constitutional  value  today  as  it  was  when   Hamilton articulated the need for it in Federalist  78 and 79:  “{A}s  liberty  can  have  nothing  to  fear  from  the  judiciary   alone, but would have everything to fear from its union with   either  of the other departments;...{permanence in office} may  therefore be justly regarded as an indispensable ingredient in  its constitution, and, in great measure, as the citadel of the   public  justice  and the  public  security.:  Next  to  life  tenure,   Hamilton  argued,  “nothing  can  contribute  more  to  the   independence  of  judges  than  a  fixed  provision  for  their   support..... [A] power over a man’s subsistence amounts to a   power over his will.”

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35) In our view, firstly, the passage from the book, referred to by  

the learned senior counsel, pertains to the legal system in American Courts  

and  Hybrid  Tribunals,  which  has  nothing  to  do  with  our  legal  system.  

Secondly, the statement relied on by the learned senior counsel is an extract  

from the book of a jurist, which in our view has neither any persuasive value  

nor legal binding on us.  If the suggestion made by an American author suits  

our legal system, it is for the Legislature to take note of it and at any rate not  

for us.  This Court, in the case of Kashmir Singh vs. Union of India (2008) 7  

SCC 259 at page 273, has observed that “the doctrine of ‘independence of   

judiciary’ has nothing to do when the tenure is fixed by a statute”.  We are  

in agreement with this view.

36)  In view of the above discussion, we do not see any merit in this writ  

petition filed under Article 32 of the Constitution of India.

37)  Before parting with the case, we place on record our deep appreciation  

for  the  assistance  rendered  by  Shri  Venkataramani,  the  learned  Amicus  

Curiae  in  understanding  and appreciating  the  nuances  of  the  controversy  

involved in this petition.

38)  For the foregoing reasons, we dismiss the petition.  No order as to  

costs.    

31

………………… ……J.

          [D.K. JAIN]

.………………………J. [H.L. DATTU]

New Delhi, January 04, 2011.

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