UNION OF INDIA & Ors. v. S. SRINIVASAN

Additional District Magistrate (Rev.) Delhi Administration v. A Shri Ram AIR 2000 SC 2143: 2000 (3) SCR 1019; Sukhdev Singh v. Bhagat Ram AIR 1975 SC 1331: 1975 (3) SCR 619; State of Kamataka and another v. H. Ganesh Karnath etc. AIR 1983 SC 550: 1983 (2) SCR 665; Kun} Behari Lal Butail and Ors. v. State of H.P. and Ors. AIR 2000 SC 1069: 2000 (1) B SCR 1054; St. Johns Teachers Training Institute v. Regional Director AIR 2003 SC 1533: 2003 (1) SCR 975; Global Energy Ltd. and Anr. v. Central Electricity Regulatory Commission (2009) 15 SCC 570: 2009 (9) SCR 22; State of T.N. and Anr. v. P. Krishnamurthy and Ors. (2006) 4 SCC c 517: 2006 (3) SCR 396; Pratap Chandra Mehta v. State Bar Council of Madhya Pradesh and Ors. (2011) 9 SCC 573: 2011 (11) SCR 965 - referred to.

1.3 On a scrutiny of the objects and reasons, the purpose and various provisions of the Act, it is D 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. Section 22 provides E 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. A Chairperson can continue upto the age of 65 years and th~ age of retirement of a Member is 62 years. They are entitled to resign subject to certain F conditions and they can be removed on proven misbehaviour or incapacity. 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 G of a part time Member. On the scrutiny of Section 2(s), it is manifest that there is no conception of a part time . member under the scheme of the Act. Section 20, the enabling provision, empowers the Central Government to fix such number of persons as the Government may deem H 38 SUPREME COURT REPORTS (2012] 6 S.C.R. A B c D E F G 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. [Para 27) [54-F-H; 55-A-B]

1.4 The first proviso stipulates that the number of either full time Members or part time Members shall not ex.ceed 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, the High Court is justified in declaring the said provision as ultra vires. The second proviso 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. [Para 28, 29) [55-8-F] Satya Narian Singh v. High· Court of Judicature at Allahabad and Ors. (1985) 1 SCC 225: 1985 (2) SCR 112; Chandra Mohan v.State of Uttar Pradesh (1967) 1 SCR 77; Rameshwar Dayal v. State of Punjab and Ors. AIR 1961 SC 816: 1961 SCR 874; Shri Kumar Padma Prasad v. Union of India and Ors. (1992) 2 SCC 428: 1992 (2) SCR 109; Sushma Suri v. Govt. of National Capital Territory of Delhi and Anr. (1999) 1 SCC 330: 1998 (2) Suppl. SCR 187; Oma Shanker Sharma v. Delhi Administration CWP No. 1961 of 1987 - referred to. H

1.5 Rule 2(1)(b) provides the qualification to be a UNION OF INDIA v. S. SRINIVASAN 39 B Member. The same is in total accord with the Act. The first A proviso to Rule 5 introduces part time Member. 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. Once it is 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 down in the pronouncements of this Court. They are strictly followed. There is no justification for the introduction of the second proviso to bring in officers c 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, 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. 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. [Para 33] [59-F-H; 60-A-C] D E

1.6 The High Court 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. The disqualified Member cannot hold the post of a Chairperson as a stop gap arrangement. Thus, there is no error in that regard in the judgment passed by the High Court. [Para 34] [60-D-E] F G

1.7 This Court while issuing notice had granted stay on the operation of the judgment. It has been apprised that the Central Government, at present, has been 40 SUPREME COURT REPORTS [2012] 6 S.C.R. A scrupulously following the mandate of the Act and only qualified persons are appointed as Members and Chairperson. To avoid any confusion, it is clarified that the judgments and orders passed by the Appellate Tribunal by the Chairperson or Members who were not B qualified and whose appointments have been quashed shall not be treated to be null and void. [Para 35] [60-F H] I Gokaraju Rangaraju v. State of Andhra Pradesh AIR C 1981 SC 1473: 1981 (3) SCR 474; M.M. Gupta and Ors. v. M. M. Gupta and Ors. vs. State of J. & K. and Ors. AIR 1982 SC 1579: 1983 (1) SCR 593 - relied on.