TaxTMI 
TaxTMI 
2011 (1) TMI 1082
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....acancies 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 9-12-2010 as a Judicial Member of the Tribunal vide the impugned communication dated 12-8-2010. 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 12-8-2010 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. AI103/9/2010-AT dated 20-4-2010 on its own ....
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.... 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." 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 (Dalvecr 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....
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....g 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 Chairman of the Tribunal or as the Chairman, Vice- c....
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....cisis 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 : "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 wh....
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.... of legal principle in the decisions of a court. " 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 contin....
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....sary 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 the Tribunal appointed under the Act,....
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....hold office as a Member, and this amendment made explicit what was implicit earlier. In a nut­shell, the argument of the learned ASC is that once a person has 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 q....
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....ichever 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 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 ....
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....y 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 member of the Tribunal to one more term of five years. The expression 'extendable', that finds a place in the....
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....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 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 10A 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 ....
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....ter 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. 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 o....
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....ell-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 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 ....