TaxTMI 
TaxTMI 
2021 (2) TMI 771
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....this court by a judgement along with a batch of other petitions and applications on 27th November 2020, in the judgement reported as Madras Bar Association v Union of India (2020) SCC OnLine SC 962. The applicant seeks extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999 ("TM Act" hereafter). The applicant urges that Section 184 of the Finance Act, 2017, prescribes the term of office and the conditions of service of Chairperson and members of various tribunals including that of the Board. Section 161 of the Finance Act inserted Section 89A to the TM Act which stipulates that the term of office of appointments to the board after the date of commencement of the Finance Act would be governed by the provisions of the Section 184 of the said Finance Act. The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184. 3. It is contended that in the judgement in Rojer Mathew Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1. this court had directed that appointments made to the board preceding the rules framed in 2020 under the Finance Act wi....
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....properly qualified chairperson. 6. The learned senior counsel for applicant particularly relies on Section 84(2) of the TM Act and urges that there can be no bench without a judicial member. It is submitted that at the moment none of the members of the board are judicial appointees, but rather are technical members. It is submitted that the board does not even have a Vice-Chairman, who can in the absence of the Chairperson officiate as the acting Chairperson. Therefore, it is imperative that the clarifications and directions sought should be granted. 7. The application was opposed on behalf of certain third parties who urge that this court should not grant the relief which the applicant seeks. In this regard, it is pointed out that the tenure of office in terms of the order of appointment of the present incumbent to the office of chairperson of the board clearly stipulated that the tenure for which he could continue to serve on the board was till 21stSeptember 2019. It is contended in this context that the original appointment was made when the incumbent chairperson of the board was holding another office as chairperson of a quasi-judicial body. The order of appointment, original....
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....er different legislations (specified in the Ninth Schedule) were abolished and their respective jurisdictions and powers were incorporated into seven existing tribunals, reducing the number of tribunals from 26 to19. Thirdly, under Section 184 of the Finance Act, the Central Government was authorized to frame delegated legislation (rules) spelling out the eligibility criteria, selection process, removal, salaries and allowances, tenure and other terms and conditions of service for the remaining 19 tribunals (specified in the Eighth Schedule). The constitutional validity of Section 184 and the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience & Other Conditions of Service of Members) Rules, 2017 Rules (hereafter "the 2017 Rules") was considered in a batch of writ petitions and appeals, of which judgment was rendered in Rojer Mathew v South Indian Bank Ltd. (supra). The judgment, delivered by a bench of five judges, upheld Section 184. However, the 2017 Rules were held to be contrary to the constitutional scheme as interpreted by several previous rulings of Constitution Benches. As a result of that judgment, the Central Government framed fresh rules in 20....
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....ons, terms and conditions of service of Chairperson and Member. Qualifications, terms and conditions of service of Chairperson, Judicial Member and Expert Member. 184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, ViceChairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has a....
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....one Judicial Member and one Technical Member and shall sit at such place as the Central Government may, by notification in the Official Gazette, specify. (3) Notwithstanding anything contained in sub-section (2), the 2 [Chairperson]- (a) may, in addition to discharging the functions of the Judicial-Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench; (b) may transfer a Member from one Bench to another Bench; (c) may authorise the Vice-Chairperson, the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Judicial Member or the Technical Member, as the case may be, of another Bench. 15. Sections 86 and 87 read as follows: "86. Term of office of Chairperson, Vice-Chairperson and other Members.-The Chairperson, Vice-Chairperson or other Members shall hold office as such for a term of five years from the date on which he enters upon his office or until he attains,- (a) in the case of Chairperson and Vice-Chairperson, the age of sixty-five years; and (b) in the case of a Member, the age of sixty-two y....
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....ry of Commerce & Industry Department of Industrial Policy & Promotion IPR - I section Udyog Bhawan, New Delhi - 110 011 ORDER The President of India is pleased to appoint Justice (Retd.) Manmohan Singh, Chairman, Appellate Tribunal for Forfeited Property to the post of Chairman, in the Intellectual Property Appellate Board (IPAB), Chennai, in the scale of pay as prescribed in the Tribunal, Appellate Tribunals and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, for a period of three years with effect from the date of assumption of charge to the post, or until further orders, whichever is the earlier. (B.S. Nayak) Under Secretary to the Govt. of India Tel: 23061257" 18. The order of appointment - as Chairperson of the Board - was amended on 29.12.2017 by the Central Government. This later order stated that the tenure of his appointment as Chairman of the Board was upto 21.09.2019 or till further orders, whichever was earlier. The later order of 29.12.2017 reads as follows: "No. P-24017/44/2017-IPR-I Government of India Ministry of Commerce & Industry Department of Industrial Policy & Promotion (IPR - Establishment ....
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....CESTAT). It was expressly stated that the tenure of members would be upto their attaining the age of 62 and, in the case of the President (of CESTAT) the tenure age limit would be 65 years. This order is reported as Kudrat Sandhu v Union of India 2018 (18) SCC 796. 22. Given these circumstances, the arguments advanced on behalf of the applicant that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew, is insubstantial and cannot be countenanced. The other reason for not accepting this contention is that if, for a moment it were to be assumed that in terms of the interim arrangement directed by the majority judgment in Rojer Mathew (in para 224 extracted above), the appointments to Tribunals/Appellate Tribunals were to be "in terms of the respective statutes before the enactment of the Finance Bill, 2017..", the amendments brought about through Sections 184, in terms of the maximum age up to which any Member or Chairperson can hold office in a Tribunal could not apply in the case of the Board. This is because the Rules of 2017 had fixed the tenure limits of chairpersons and members of tribunals, including that of the chairperson....
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.... to be five years. It is to be noticed that even the 2020 Rules did not prescribe the maximum tenure; it rather confined the tenure to four years. In the facts of this case, even if that were to be applied - assuming such a course to be available, the four-year period too ended on 21.09.2020. It is important to notice that the changes brought about in the tenure and age limits were not only through the Schedule to the Finance Act, 2017, but also through its substantive provisions - Sections 156 to 182.2 These provisions introduced changes relating to tenure and age limits for members and chairpersons of 19 tribunals (including the Income Tax Appellate Tribunal; Securities Appellate Tribunal, Competition Commission of India, CESTAT, Railway Claims Tribunal, Central Administrative Tribunal, Debt Recovery Tribunal, Debt Recoveries Appellate Tribunals, the IPAB -i.e. the Board, in this case, etc.). All these provisions, much like Section 89A of the TM Act, aligned Parliamentary intention to legislate uniform tenure limits and maximum age for members and chairpersons. Therefore, Section 89A is only part of the entire legislative design. However, that has no bearing on the circumstances ....
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....lified. Therefore, the argument that the technical members, in their position at the board as of now, cannot function without a chairperson, is unsustainable. 26. In view of the above conclusions, this court holds that the applicant cannot be granted any relief. The application is accordingly dismissed; there shall, however, be no order on costs. ----------------------- Notes: 1. By S. No.12, Column 5 had fixed the tenure of Chairperson, Vice Chairman/Judicial Members of the Board at 3 years and indicated that the outer limit for the tenure of Chairperson would be 67 years whereas that of the Vice Chairman and Members would be 65 years. 2. In a part entitled PART XIV AMENDMENTS TO CERTAIN ACTS TO PROVIDE FOR MERGER OF TRIBUNALS AND OTHER AUTHORITIES AND CONDITIONS OF SERVICE OF CHAIRPERSONS, MEMBERS, ETC. 3. 85. Qualifications for appointment as Chairperson, Vice-Chairperson, or other Members.- (1) A person shall not be qualified for appointment as the Chairperson unless he- (a) is, or has been, a Judge of a High Court; or (b) has, for at least two years, held the office of a 3 [Vice-Chairperson. (2) A person shall not be qualified for appointmen....