TaxTMI 
TaxTMI 
2022 (4) TMI 661
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.... The petitioner, appearing in person, submitted that the qualification for appointment as a Judicial Member of the Appellate Tribunal given under Section 32 of the Act of 1988 is now hit by the judgment of the Apex Court in the case of Union of India v. R.Gandhi, President, Madras Bar Association, (2010) 11 SCC 1. It is precisely for the reason that for the post of Judicial Member of the Appellate Tribunal, under the Act of 1988, a Member of Indian Legal Service who has held the post of Additional Secretary or equivalent post has been made eligible, while as per the judgment of the Apex Court cited supra, the post of Judicial Member should be manned only by a person who served as a Judge or a member of the Bar and not by a member of Indian Legal Service. In view of the above, the provision of Section 32(2)(a) of the Act of 1988 is hit by the said judgment and, thus, challenge to it has been made. 5. Referring to a judgment of the Division Bench on the same issue in Shamnad Basheer v. Union of India and others, 2015 2 LW 941, the prayer is reiterated because therein a similar challenge was made to Section 85 of the Trademarks Act, 1999, besides Section 116 of the Patents Act, 197....
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....sed the records. 11. A challenge has been made to Section 32(2)(a) of the Act of 1988. Thus, the said provision is quoted hereunder: "32. Qualifications for appointment of Chairperson and Members of Appellate Tribunal.- (1) A person shall not be qualified for appointment as Chairperson of the Appellate Tribunal unless he is a sitting or retired Judge of a High Court, who has completed not less than five years' of service. (2) A person shall not be qualified for appointment as a Member unless he- (a) in the case of a Judicial Member, has been a Member of the Indian Legal Service and has held the post of Additional Secretary or equivalent post in that Service; (b) in the case of an Administrative Member, has been a Member of the Indian Revenue Service and has held the post of Chief Commissioner of Income tax or equivalent post in that Service. (3) No sitting Judge of a High Court shall be appointed under this section except after consultation with the Chief Justice of the High Court. (4) The Chairperson or a Member holding a post as such in any other Tribunal, established under any law for the time being in force, in a....
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.... the Judiciary. It is through each of these organs that the sovereign will of the people has to operate and manifest itself and not through only one of them. Keeping aforesaid in mind, the judgment was rendered by the Apex Court in Union of India v. R.Gandhi, President, Madras Bar Association, supra, on an identical issue raised before us. 16. The constitution of the Selection Committee and for that even the qualification needs incorporation of such a provision which may keep the judicial independence. Qua the Technical Member of the Tribunal, appropriate qualification can be provided by the Legislature, but when the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the independence of the judicial system and, accordingly, the Apex Court while delivering the judgment in the case of Union of India v. R.Gandhi, President, Madras Bar Association, supra, held that only Judges and advocates can be considered for appointment as Judicial Member of the Tribunal. Paragraph 120 of the said judgment is quoted hereunder for ready reference: 120. We may tabulate the corrections required to set right the defects in Parts I-B and I-C of the ....
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....ion 10- FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee- Chairperson (with a casting vote); (b) A Senior Judge of the Supreme Court or Chief Justice of High Court-Member; (c) Secretary in the Ministry of Finance and Company Affairs-Member; and (d) Secretary in the Ministry of Law and Justice -Member. .... (xii) The administrative support for all Tribunals should be from the Ministry of Law and Justice. Neither the Tribunals nor their members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or Department concerned...." [emphasis supplied] 17. The Apex Court while upholding the creation of the National Company Law Tribunal as well as the Appellate Tribunal held Chapters 1B and 1C of the Companies Act as unconstitutional. The principle laid down in the case of Union of India v. R.Gandhi, President, Madras Bar Association, supra, has application to all the Tribunals and was not rendered on the fact situation alone. It is for that reason a specific direction was given that administrative support for all the Tribunals sho....