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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     3185     OF     2005   

Union of India and others        ….. Appellants

Versus

S. Srinivasan … Respondent  

WITH

CIVIL     APPEAL     NOS.     3186-3190     OF     2005   

Union of India and others ... Appellants

Versus

Saroj Kumar Shukla and others ... Respondents

J     U     D     G     M     E     N     T      

Dipak      Misra,     J.   

Calling in question the legal penetrability of the order dated  

April 12, 2004 passed by the Division Bench of the High Court of  

Judicature of Delhi in Writ Petition Nos. 7606 of 2003, 1335,

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1336, 1337, 1344 and 1345 of 2004 by a common judgment, the  

present batch of appeals by way of special leave under Article  

136 of the Constitution has been filed.

2. Though prayers in different writ petitions were couched  

differently, yet the three basic reliefs which were sought before  

the High Court are – Rule 5 of the Appellate Tribunal for Foreign  

Exchange (Recruitment, Salary and Allowances and Other  

Conditions of Service of Chairperson and Members) Rules, 2000  

(hereinafter referred to as ‘the Rules’) is ultra vires the Foreign  

Exchange Management Act, 1999 (for brevity ‘the Act); for  

quashment of certain notifications issued by the Government of  

India, Ministry of Law, Justice and Company Affairs, appointing  

part time Members of the Appellate Tribunal by issue of a writ of  

quo warranto as they did not satisfy the eligibility criteria as  

stipulated in the Act; and further to quash the appointment of  

respondent No. 3 to act as the Chairperson as he was a part time  

Member and also was not eligible to hold the post.

3. It was urged before the High Court that the Rule travels  

beyond the scope and ambit of the Act and, in fact, directly runs  

counter to the provisions in the Act and, therefore, deserves to be

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declared as ultra vires.  It was canvassed that when the Act did  

not conceive of part time Members, even a person meeting the  

eligibility criteria could not be appointed as a part time Member.  

It was further propounded before the High Court that a part time  

Member who was disqualified to hold the post could not have  

been allowed to act as the Chairperson as that would destroy the  

spirit of the Act.  To bolster the said submissions, the petitioners  

before the High Court placed reliance on Chander Mohan v.  

State of Uttar Pradesh and others1, Shri Kumar Padma  

Prasad v. Union of India and others2 and State of  

Maharashtra v. Labour Law Practitioners’  Association and  

others3.

4. The contentions raised by the petitioners before the writ  

court were resisted by the respondent on the ground that the  

Members of Indian Legal Services were only required to hold the  

post of part time Member and, therefore, the rule does not really  

run counter to the Act in question; that as a stopgap  

arrangement, a part time Member could be appointed as the  

Chairperson of the Appellate Tribunal and hence, no facet  could  

be found fault with such an appointment; and that a writ of quo  1 (1967) 1 SCR 77 2 (1992) 2 SCC 428 3 (1998) 2 SCC 688

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warranto could not be issued as the persons, who were meeting  

the eligibility criteria had been appointed by a High Level  

Committee.  Reliance was placed on the decision in Union of  

India and another v. Delhi High Court Bar Association and  

others4.

5. The High Court declared the first and second proviso to  

Rule 5 of the Rules as ultra vires Section 21(1)(b) of the Act and  

quashed the appointments of respondent Nos. 3 and 4 who were  

appointed as part time Members and further quashed the  

appointment of respondent No. 3 as the acting Chairperson of the  

Appellate Tribunal.

6. We have heard Mr. R.P. Bhatt, learned senior counsel  

appearing for the appellants, and Mr. Mahabir Singh, learned  

senior counsel appearing for the contesting respondent.

7. The Parliament enacted the Foreign Exchange Management  

Act, 1999 repealing the Foreign Exchange Regulation Act, 1973  

as a result of which the Appellate Board constituted under  

Section 52 of the 1973 Act stood dissolved.  Thereafter, the new  

Appellate Board was to be constituted and, accordingly, it was  

constituted.  Regard being had to the principal issue whether the  4 (2002) 4 SCC 275

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Rule runs contrary to the main provision, it is condign to refer to  

Section 20 of the Act which deals with the composition of the  

Appellate Tribunal.  It reads as under: -

“20. Composition of Appellate Tribunal.-(1) The  Appellate Tribunal shall consist of a Chairperson  and such number of Members as the Central  Government may deem fit.

(2) Subject to the provisions of this Act, -

(a) the jurisdiction of the Appellate Tribunal  may be exercised by Benches thereof;

(b) a Bench may be constituted by the  Chairperson with one or more Members as  the Chairperson may deem fit;

(c) the Benches of the Appellate Tribunal shall  ordinarily sit at New Delhi and at such other  places as the Central Government may, in  consultation with the Chairperson, notify;

(d) the Central Government shall notify the  areas in relation to which each Bench of the  Appellate Tribunal may exercise  jurisdiction.

(3) Notwithstanding anything contained in sub- section (2), the Chairperson may transfer a  Member from one Bench to another Bench.

(4) If at any stage of the hearing of any case or  matter it appears to the Chairperson or a  Member that the case or matter is of such a  nature that it ought to be heard by a Bench  consisting of two Members, the case or matter  may be transferred by the Chairperson or, as the  case may be, referred to him for transfer, to such  Bench as the Chairperson may deem fit.”

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On a perusal of the aforesaid provision, it is quite clear that the  

Appellate Tribunal shall consist of Chairperson and such number  

or Members as the Central Government may deem fit.

8. Section 2(s) defines a Member as follows: -

“ “Member”  means a Member of the Appellate  Tribunal and includes the Chairperson thereof;”

On a studied scrutiny of the aforesaid provision, it is manifest  

that there is no conception of a part time Member under the  

scheme of the Act.

9. At this juncture, it is profitable to refer to Section 21 of the  

Act that provides for qualification for appointment of  

Chairperson, Member and Special Director (Appeals).  Regard  

being had to the controversy, it is apt to reproduce the provision  

in entirety: -

“21. Qualifications for appointment of  Chairperson, Member and Special Director  (Appeals). – (1) A person shall not be qualified for  appointment as the Chairperson or a Member  unless he –

(a) in the case of Chairperson, is or has been,  or is qualified to be, a Judge of a High  Court; and

(b) in the case of a Member, is or has been, or  is qualified to be, a District Judge.

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(2) A person shall not be qualified for  appointment as a Special Director (Appeals)  unless he –

(a) has been a member of the Indian Legal  Service and has held a post in Grade I of  that Service; or

(b) has been a member of the Indian Revenue  Service and has held a post equivalent to a  Joint Secretary to the Government of India.”

10. On a scanning of the aforesaid provision, it is quite clear  

that a person, in order to be qualified for appointment as the  

Chairperson,  is required to be or has been qualified to be a  

Judge of the High Court and a person to be a Member is required  

to be or has been qualified to be a district judge and to be  

appointed as a Special Director (Appeal), he has to be a member  

of the Indian Legal Service and is required to have held a post of  

Grade I or that service or a member of the Indian Revenue  

Service as a post equivalent to Joint Secretary to the Government  

of India.  Thus, a member of the Indian Legal Service who is  

qualified as per Section 21 (2) (a) is entitled to be appointed as a  

Special Director (Appeal).  

11.  Section 16 of the Act provides for appointment of the  

Adjudicating Authority.  Section 17 provides for appeal to the  

Special Director (Appeals).  Section 18 provides for establishment

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of the Appellate Tribunal to hear the appeals against the order of  

the Adjudicating Authorities and the Special Director (Appeals)  

under the Act.  Section 19 provides for appeal to the Appellate  

Tribunal and lays down the postulates as to what categories of  

appeals can be preferred.  From the aforesaid provisions, it is  

quite clear that there are three distinctive forums for adjudication  

and there is a hierarchical system.  We have already referred to  

Section 20 which deals with the composition of the Appellate  

Tribunal.  As is indicated hereinabove, Section 21(1) clearly lays  

a postulate as to what is the qualification for a Chairperson and  

that of a Member.  Sub-section (2) of Section 21 provides for the  

qualification of a Special Director (Appeals).  At this juncture, we  

may refer to Section 46 which provides for the rule making  

power.  It stipulates that the Central Government by notification  

makes rules to carry out the provisions of the Act.  Section 46(2)  

states the nature of the rules to be framed by the Central  

Government.  We think it appropriate to reproduce Section 46 of  

the Act as under: -

“46. Power to make rules. – (1) The Central  Government may, by notification, make rules  to carry out the provisions of this Act.

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(2) Without prejudice to the generality of the  foregoing power, such rules may provide for, --

(a) the imposition of reasonable restrictions  on current account transactions under  section 5;

(b) the manner in which the contravention  may be compounded under sub-section  (1) of section 15;

(c) the manner of holding an inquiry by the  Adjudicating Authorities under sub- section (1) of section 16;

(d) the form of appeal and fee for filing such  appeal under sections 17 and 19;

(e) the salary and allowances payable to and  the other terms and conditions of service  of the Chairperson and other Members of  the Appellate Tribunal and the Special  Director (Appeals) under section 23;

(f) the salaries and allowances and other  conditions of service of the officers and  employees of the Appellate Tribunal and  the office of the Special Director (Appeals)  under sub-section (3) of section 27;

(g) the additional matters in respect of which  the Appellate Tribunal and the Special  Director (Appeals) may exercise the  powers of a civil court under clause (i) of  sub-section (2) of section 28;

(h) the authority or person and the manner  in which any document may be  authenticated under clause (ii) of section  39; and

(i) any other matter which is required to be,  or may be, prescribed.”

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12. Emphasis has been laid on the rule making power by Mr.  

Bhatt, learned senior counsel, to build an edifice that there lies  

the source for framing the rules which has been erroneously  

declared by the High Court to be ultra vires.

13. At this juncture, we may refer with profit to Rule 2(1)(b)  

which reads as follows: -

“2. Qualification for recruitment –  (1) A  person shall not be qualified for appointment  as Chairperson or a member unless he : -

a) xx xx xx

b) in the case of a Member, is or has been or  is qualified to be a District Judge.”

Rule 5 of the Rules reads as follows:-

“Composition –  The Appellate Tribunal shall  have one Chairperson and Members not  exceeding four:

Provided that the number of either full time  Members or part time Members shall not  exceed two;

Provided further that the part time Members  shall be appointed from amongst officers  belonging to the Indian Legal Service who fulfil  the qualifications prescribed under clause (b)  of sub-rule (1) of Rule 2 of these rules.”

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14. As far as Rule 2(1)(b) is concerned, there can be no trace of  

doubt that it is in consonance with the provisions contained in  

the Act inasmuch as Section 20 (1) confers power on the Central  

Government to constitute the tribunal consisting of one  

Chairperson and such number of Members.  The said fixation of  

the number is in accord with the Act.  Rule 5 provides that there  

would be one Chairperson and Members not exceeding four.  As  

far as the number is concerned, the Act does not provide the  

number of Members and, therefore, as we have stated above, the  

Central Government under the Rules has the power to fix the  

number.  There cannot be any kind of cavil over the same.  The  

High Court has perceived, as we have seen from the impugned  

judgment, difficulty in accepting the validity of the two provisos  

of the said Rule.  The first proviso lays a postulate that the  

number of full time Members or part time Members shall not  

exceed two.  The concept of part time Member has been  

introduced by the rule making authority.  The second proviso  

states that the part time Members shall be appointed from  

amongst officers belonging to the Indian Legal Service who fulfil  

the qualifications prescribed under clause (b) of sub-rule (1) of  

Rule 2 of these Rules.  The submission of Mr. Bhatt, learned

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senior counsel, is that when Rule 2(1)(b) clearly lays down that a  

Member is or has been qualified to be a district judge and that  

has been referred to in the second proviso for the part time  

Members, the same could not have been declared as ultra vires  

by the High Court.  The learned senior counsel would further  

submit that the term ‘Member’ would include a part time Member  

and for the sake of convenience, the Central Government has  

framed the Rules to carry out the purposes of the Act.

15. In oppugnation, Mr. Mahabir Singh, learned senior counsel  

for the respondent, would contend that when the specific  

meaning has been given to the term ‘Member’ by the Act and the  

existence of a part time Member is conceptually absent under the  

scheme of the Act, the introduction by the rule is totally  

impermissible.  Mr. Singh would further submit that a member of  

Indian Legal Service can only be appointed as a Special Director  

(Appeals) and, therefore, the rule providing that a member of  

Indian Legal Service can be appointed a Member runs counter to  

the provisions in the Act.

16. At this stage, it is apposite to state about the rule making  

powers of a delegating authority.  If a rule goes beyond the rule

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making power conferred by the statute, the same has to be  

declared ultra vires.  If a rule supplants any provision for which  

power has not been conferred, it becomes ultra vires.  The basic  

test is to determine and consider the source of power which is  

relatable to the rule.  Similarly, a rule must be in accord with the  

parent statute as it cannot travel beyond it.  In this context, we  

may refer with profit to the decision in General Officer  

Commanding-in-Chief v. Dr. Subhash Chandra Yadav5,  

wherein it has been held as follows:-

“......Before a rule can have the effect of a  statutory provision, two conditions must be  fulfilled, namely (1) it must conform to the  provisions of the statute under which it is  framed; and (2) it must also come within the  scope and purview of the rule making power of  the authority framing the rule.  If either of these  two conditions is not fulfilled, the rule so framed  would be void.”

17. In Additional District Magistrate (Rev.) Delhi  

Administration v. Shri Ram6, it has been ruled that it is a well  

recognised principle that the conferment of rule making power by  

an Act does not enable the rule making authority to make a rule  

which travels beyond the scope of the enabling Act or which is  

inconsistent therewith or repugnant thereto.  5 AIR 1988 SC 876 6 AIR 2000 SC 2143

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18. In Sukhdev Singh v. Bhagat Ram7, the Constitution  

Bench has held that the statutory bodies cannot use the power to  

make rules and regulations to enlarge the powers beyond the  

scope intended by the legislature.  Rules and regulations made  

by reason of the specific power conferred by the statute to make  

rules and regulations establish the pattern of conduct to be  

followed.

19. In State of Karnataka and another v. H. Ganesh Kamath  

etc.8, it has been stated that it is a well settled principle of  

interpretation of statutes that the conferment of rule making  

power by an Act does not enable the rule-making authority to  

make a rule which travels beyond the scope of the enabling Act  

or which is inconsistent therewith or repugnant thereto.

20. In Kunj Behari Lal Butail and others v. State of H.P.  

and others9, it has been ruled thus:-  

“13. It is very common for the legislature  to provide for a general rule making power to  carry out the purpose of the Act.  When such  a power is given, it may be permissible to find  out the object of the enactment and then see  if the rules framed satisfy the test of having  been so framed as to fall within the scope of  

7 AIR 1975 SC 1331 8 AIR 1983 SC 550 9  AIR 2000 SC 1069

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such general power confirmed. If the rule  making power is not expressed in such a  usual general form then it shall have to be  seen if the rules made are protected by the  limits prescribed by the parent act... ”

21. In St. Johns Teachers Training Institute v. Regional  

Director10, it has been observed that a regulation is a rule or  

order prescribed by a superior for the management of some  

business and implies a rule for general course of action.  Rules  

and Regulations are all comprised in delegated legislation.  The  

power to make subordinate legislation is derived from the  

enabling Act and it is fundamental that the delegate on whom  

such a power is conferred has to act within the limit of authority  

conferred by the Act.  Rules cannot be made to supplant the  

provisions of the enabling Act but to supplement it.  What is  

permitted is the delegation of ancillary or subordinate legislative  

functions, or, what is fictionally called, a power to fill up details.  

22. In Global Energy Ltd. and another v. Central  

Electricity Regulatory Commission11, this Court was dealing  

with the validity of clauses (b) and (f) of Regulation 6-A of the  

Central Electricity Regulatory Commission (Procedure, Terms  

10  AIR 2003 SC 1533 11 (2009) 15 SCC 570

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and Conditions for Grant of Trading Licence and other Related  

Matters) Regulations, 2004.  In that context, this Court  

expressed thus:-  

“It is now a well-settled principle of law that  the rule-making power “for carrying out the  purpose of the Act”  is a general delegation.  Such a general delegation may not be held to  be laying down any guidelines.  Thus, by  reason of such a provision alone, the  regulation-making power cannot be exercised  so as to bring into existence substantive  rights or obligations or disabilities which are  not contemplated in terms of the provisions of  the said Act.”

23. In the said case, while discussing further about the  

discretionary power, delegated legislation and the requirement of  

law, the Bench observed thus:-  

“The image of law which flows from this  framework is its neutrality and objectivity:  the  ability of law to put sphere of general decision- making outside the discretionary power of  those wielding governmental power.  Law has  to provide a basic level of “legal security”  by  assuring that law is knowable, dependable and  shielded from excessive manipulation.  In the  contest of rule-making, delegated legislation  should establish the structural conditions  within which those processes can function  effectively.  The question which needs to be  asked is whether delegated legislation  promotes rational and accountable policy  implementation.  While we say so, we are not  oblivious of the contours of the judicial review

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of the legislative Acts.  But, we have made all  endeavours to keep ourselves confined within  the well-known parameters.”

24. In this context, it would be apposite to refer to a passage  

from State of T.N. and another v. P. Krishnamurthy and  

others12 wherein it has been held thus:-

“16. The court considering the validity of a  subordinate legislation, will have to consider  the nature, object and scheme of the enabling  Act, and also the area over which power has  been delegated under the Act and then decide  whether the subordinate legislation conforms  to the parent statute.  Where a rule is directly  inconsistent with a mandatory provision of the  statute, then, of course, the task of the court is  simple and easy.  But where the contention is  that the inconsistency or non-conformity of the  rule is not with reference to any specific  provision of the enabling Act, but with the  object and scheme of the parent Act, the court  should proceed with caution before declaring  invalidity.”

25. In Pratap Chandra Mehta v. State Bar Council of  

Madhya Pradesh and others13, while discussing about the  

conferment of extensive meaning, it has been opined that the  

Court would be justified in giving the provision a purposive  

construction to perpetuate the object of the Act while ensuring  

12 (2006) 4 SCC 517 13 (2011) 9 SCC 573

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that such rules framed are within the field circumscribed by the  

parent Act.  It is also clear that it may not always be absolutely  

necessary to spell out guidelines for delegated legislation when  

discretion is vested in such delegated bodies.  In such cases, the  

language of the rule framed as well as the purpose sought to be  

achieved would be the relevant factors to be considered by the  

Court.

26. Keeping in view the aforesaid enunciation of law, we think it  

appropriate to consider the nature, object and scheme of the  

enabling Act, the power conferred under the rule, the concept of  

purposive construction and the discretion vested in the delegated  

bodies.  Before bringing the legislation in the year 1994, a task  

force was constituted to have an overall look on the subjects  

relating to foreign exchange and foreign trade to suggest the  

required changes.  Considering the significant developments,  

namely, substantial increase in the foreign exchange reserve,  

growth in foreign trade, rationalization of tariffs, current account  

convertibility, liberalization of Indian investments abroad,  

increased access to external commercial borrowings by Indian  

Corporates and participation of foreign institutional investors in  

our stock markets and the spectrum of world economy, the Act

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was brought into force to consolidate and amend the law relating  

to foreign exchange with the objective of facilitating external  

trade and payments and for promoting the orderly development  

and maintenance of the foreign exchange market in India.  To  

have a balance in the field of economic growth, the Parliament  

provided the hierarchical system under the Act itself.  Section 20  

deals with the composition of the Appellate Tribunal, the highest  

tribunal under the Act.   Section 21 deals with the qualification  

for appointment of Chairperson, Member and Special Director  

(Appeals).  Section 22 provides that the Chairperson and every  

other Member shall hold office for a term of five years from the  

date on which he enters upon office.  Section 25 deals with  

resignation and removal.  The removal can only take place by  

order of the Central Government on the ground of proved  

misbehaviour or incapacity after an inquiry made by such person  

as the President may appoint for this purpose in which the  

Chairperson or a Member concerned has been informed of the  

charges against him and given a reasonable opportunity of being  

heard in respect of such charges.  Section 26 provides the  

Member to act as a Chairperson in certain circumstances.  The  

senior most Member has been empowered to act as Chairperson

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until the date on which a new Chairperson is appointed in  

accordance with the provisions of the Act.   

27. On a scrutiny of the objects and reasons, the purpose and  

various provisions of the Act, it is graphically clear that the  

Appellate Tribunal has been conferred jurisdiction to decide an  

appeal from the Appellate Tribunal and it has to deal with  

matters relating to foreign exchange.  A fixed tenure has been  

stipulated for the Chairperson and Members.  A Chairperson can  

continue upto the age of 65 years and the age of retirement of a  

Member is 62 years.  They are entitled to resign subject to certain  

conditions and they can be removed on proven misbehaviour or  

incapacity.  Thus, if the object and purpose of the Act is to confer  

power on the Appellate Board to deal with the issue of economy  

under the scheme of the Act, it is well nigh impossible to conceive  

of the appointment of a part time Member.   Section 20, the  

enabling provision, empowers the Central Government to fix such  

number of persons as the Government may deem fit.  The main  

part of Rule 5 provides that a tribunal shall have one  

Chairperson and Members not exceeding four.  To that extent, it  

is in consonance with the Act and it comes within the framework  

of the provision.

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28.  The first proviso stipulates that the number of either full  

time Members or part time Members shall not exceed two.   This  

proviso introduces the concept of part time Member.  There can  

be no trace of doubt that it travels beyond the enabling provision  

and is totally inconsistent with it.  The rule does not conform to  

the main enactment.  Therefore, in our opinion, the High Court is  

justified in declaring the said provision as ultra vires.   

29. The second proviso, if we allow ourselves to say so, is an  

innovative one.  It provides for qualification of a part time  

Member who can be appointed from amongst officers belonging to  

the Indian Legal Service who fulfil the qualification prescribed  

under Clause (b) of sub-rule (1) of Rule 2 of the Rules.   Clause  

(b) of sub-rule (1) of Rule 2 spells out that a person shall not be  

qualified for appointment as a Member unless he is or has been  

or is qualified to be a district judge.    As far as the word ‘is’  or  

‘has been’  is concerned, there can be no cavil.  The core of the  

controversy is the qualification associated with part time  

Member.  Article 233 of the Constitution deals with the  

appointment of district judges.  It provides for the qualification to  

be a district judge.  It reads as follows:-    

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“233. Appointment of district judges

(1) Appointments of persons to be, and the  posting and promotion of, district judges in  any State shall be made by the Governor of the  State in consultation with the High Court  exercising jurisdiction in relation to such State

(2) A person not already in the service of the  Union or of the State shall only be eligible to  be appointed a district judge if he has been for  not less than seven years an advocate or a  pleader and is recommended by the High  Court for appointment.”

30. To understand the real purport of the said Article in the  

present context, it is appropriate to refer to the decision in Satya  

Narian Singh v. High Court of Judicature at Allahabad and  

Others.14 In the said case, a contention was advanced before a  

three-Judge Bench that there was no constitutional inhibition  

against members of any Subordinate Judicial Service seeking to  

be appointed as district judges by direct recruitment provided  

that they had completed 7 years’ practice at the bar.  It was also  

urged that if a construction is placed on Article 233 of the  

Constitution which would render a member of Subordinate  

Judicial Service ineligible for appointment to the Higher Judicial  

Service because of the additional experience gained by him as a  

Judicial Officer, the same would be both unjust and paradoxical.  

14  (1985) 1 SCC 225

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Their Lordships referred to Article 233 and came to hold that the  

first clause of Article 233 deals with “appointment of persons to  

be, and the posting and promotion of, district judges in any  

State”  while the second clause is confined in its application to  

persons “not already in the service of the Union or of the State”.  

The Bench opined that the service of the Union or of the State  

has been interpreted to mean “Judicial Service”.  It was further  

stated therein in the case of candidates who are not members of  

Judicial Service that they must be advocates and pleaders for not  

less than 7 years and they have to recommended by the High  

Court before they may be appointed as district judges, while in  

the case of candidates who are members of Judicial Service, the  

seven years’  rule has no application but there has to be  

consultation with the High Court.  Thereafter, the Bench referred  

to the decisions in Chandra Mohan v. State of Uttar Pradesh15  

and Rameshwar Dayal v. State of Punjab16 and eventually held  

as follows:-

5. Posing the question whether the expression  "the service of the Union or of the State" meant  any service of the Union or of the State or  whether it meant the judicial Service of the  Union or of the State, the learned Chief Justice  

15  AIR 1966 SC 1987 16  AIR 1961 SC 816

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functions and are responsible for the  administration of justice in the State.   

Thereafter, their Lordships referred to Articles 233, 235,  236  

and further referred in extenso to the Constitution Bench  

Judgment in Chandra Mohan (supra) and ultimately proceeded  

to state thus:-

“This court has thus authoritatively laid down  that the appointment of district judges under  Article 233 (2) can only be from the judicial  service of the State as defined under Article  236 (b) of the Constitution.”

32. In Sushma Suri v. Govt. of National Capital Territory of  

Delhi and Another18, a three-Judge Bench was dealing with the  

issue about the eligibility of a person who is on the roll of any bar  

council and engaged either by the employer or otherwise of the  

Union or the State to be considered for the post of district judge  

as provided under Article 233 (2) of the Constitution.  The Bench  

referred to the Rules framed by the High Court, the decisions in  

Chandra Mohan (supra) and Satya Narain Singh (supra).  

Section 2 (a) of the Advocates’  Act and Rule 49 of the Rules  

framed by the Bar Council and posed the issue as follows:-

18 (1999) 1 SCC 330

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“If a person on being enrolled as an  advocate ceases to practise law and takes up  an employment, such a person can by no  stretch of imagination be termed as an  advocate.  However, if a person who is on the  rolls of any Bar Council is engaged either by  employment or otherwise of the Union or the  State or any corporate body or person  practises before a court as an advocate for and  on behalf of such Government, corporation or  authority or person, the question is whether  such a person also answers the description of  an advocate under the Act.  That is the precise  question arising for our consideration in this  case.”  

Eventually, the Bench did not accept the view taken by the  

Delhi High Court in Oma Shanker Sharma v. Delhi  

Administration in CWP No. 1961 of 1987 and affirmed by this  

Court in SLP (C) 3088 of 1988 decided on 13.1.1988 and ruled  

thus :-  

“An advocate employed by the Government or  a body corporate as its law officer even on  terms of payment of salary would not cease to  be an advocate in terms of Rule 49 if the  condition is that such advocate is required to  act or plead in courts on behalf of the  employer.  The test, therefore, is not whether  such person is engaged on terms of salary or  by payment of remuneration, but whether he  is engaged to act or plead on its behalf in a  court of law as an advocate.  In that event the  terms of engagement will not matter at all.  What is of essence is as to what such law  officer engaged by the Government does –

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whether he acts or pleads in court on behalf of  his employer or otherwise.  If he is not acting  or pleading on behalf of his employer, then he  ceases to be an advocate. ”

Thereafter, their Lordships opined that the expression used “from  

the bar”  would only mean from the class or group of advocates  

practising in the courts of law.  It does not have any other  

attribute.   

33. We have referred to the aforesaid pronouncements to  

highlight who could be a person to be qualified to be a district  

judge.  Rule 2 (1) (b) provides the qualification to be a Member.  

Needless to say, the same is in total accord with the Act.  The  

first proviso to Rule 5 introduces part time Member.  We have  

held that the said proviso, as far as it introduces the concept of  

part time Member, is contrary to the provision contained in the  

enabling Act.  Section 46 of the Act nowhere envisages about the  

part time Members.  The second proviso, we have already  

mentioned, is an innovative one.  Thereafter, we have at length  

referred to the qualifications for a person to be a Member who is  

eligible to be a district judge.  Once we have held that there  

cannot be a part time Member, a person who is qualified to be a  

district judge can be a Member if he meets the criterion laid

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down in the pronouncements of this Court.  They are strictly  

followed.  We really perceive no justification for the introduction  

of the second proviso to bring in officers from the Indian Legal  

Service who are qualified to become district judges to be part  

time Members.  If the officer satisfies the requisite qualification,  

he can be appointed as a Member.  Therefore, in our  

consideration, the second proviso has been incorporated to bring  

in only part time Members and once the introduction of part time  

Members is treated to be ultra vires the Act, the rest part of the  

Rule is absolutely redundant.  To repeat at the cost of repetition,  

if the officer belonging to Indian Legal Services is qualified to be a  

district judge, he can compete and be selected for the post of  

Member and that qualification is to be in accord with the  

pronouncements of law of this Court.  

34. The High Court, as we find, had quashed the appointment  

of part time Members and the appointment of Chairperson who  

was a part time Member once.  As the appointment of part time  

Member was quashed, as a logical corollary, such a person could  

not be allowed to be appointed to the post of Chairperson.  To  

elaborate; the disqualified Member cannot hold the post of a  

Chairperson as a stop gap arrangement.  Thus, we do not find

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any error in that regard in the judgment passed by the High  

Court.   

35. At this juncture, we are obliged to clarify the position  

further.  This Court while issuing notice had granted stay on the  

operation of the judgment.  We have been apprised by Mr. Bhatt  

that the Central Government, at present, has been scrupulously  

following the mandate of the Act and only qualified persons are  

appointed as Members and Chairperson.  To avoid any  

confusion, we clarify that the judgments and orders passed by  

the Appellate Tribunal by the Chairperson or Members who were  

not qualified and whose appointments have been quashed shall  

not be treated to be null and void.  In this regard we may refer  

with profit the decisions in Gokaraju Rangaraju v. State of  

Andhra Pradesh19 and M.M. Gupta and others v. State of J.  

& K. and others20  wherein this Court, while quashing the  

appointments of the respondents, had clarified that the orders  

and judgments delivered by them during the period they had  

continued to function as district judges on the basis of invalid  

appointments could not be rendered as legally invalid and void.  

In the larger interest of justice, they are treated as valid and  

19 AIR 1981 SC 1473 20  AIR 1982 SC 1579

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binding. Relying on the said dictum, we clarify the position  

accordingly.   

36. The appeals stand disposed of without any order as to  

costs.   

............................................J.  [DR. B.S. Chauhan]

............................................J.  [Dipak Misra]

New Delhi; May 21, 2012.