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Centre files affidavit on appointment of members, chairpersons of various tribunals, says most vacancies filled

According to the Affidavit with the aforementioned appointments made in 2021, it is submitted that no recommendations made by any of the SCSCs now remain pending with the Central Government.

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The Union Government has filed its affidavit in the Supreme Court over the delay in the appointment of members and chairpersons of various tribunals. The affidavit has been filed by Arvind Saran, Director, Department of Revenue, New Delhi.

The present affidavit is being filed to apprise the Supreme Court as to the status of recommendations already made by the Search Cum Selection Committees (SCSCs) for appointment of members to the various tribunals.  It is submitted that as on date, the Central Government has acted upon all the recommendations made by the SCSCs and appointment orders have been issued as elaborated hereinafter.

The recommendations already made by the SCSC pertained to 6 Tribunals, i.e.  the Income Tax Appellate Tribunal (ITAT), the National Company Law Tribunal (NCLT), the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), the National Consumer Disputes Redressal Commission (NCDRC), the Appellate Tribunal for Electricity (APTEL), and the Armed  Forces Tribunal (AFT).  

Earlier, on 11.05.2021 , 04.09.2021 and 07.09.2021, appointments had been made to the NCDRC, the APTEL and the AFT respectively.  Subsequently, on 11.09.2021, the Central Government made appointments to the ITAT, NCLT and the TDSAT.  In all, a total 84 appointments have been made to various tribunals during 2020 and 2021, said the affidavit.

The current position in regard to the aforementioned Tribunals in regard to which recommendations had earlier been made by the respective SCSCs is set out below:

(a) National Company Law Tribunal (NCLT): The SCSC, headed by the Chief Justice of India Justice N.V. Ramana, had made recommendations against 11 vacancies of Judicial Members and 10 vacancies of Technical Member.  On 11.09.2021 , the Central Government appointed 8 Judicial Members and 10 Technical Members after obtaining the approval of the ACC.

(b) Telecom Disputes and Settlement Appellate Tribunal (TDSAT): The SCSC, headed by Justice L. Nageswara Rao, Judge,  Supreme Court of India, had made recommendations against 2 vacancies of Members.  For Member-1 and Member-2 , the SCSC had recommended a panel of two names.  On 11.09.2021 , the Central Government appointed 1 Member after obtaining the approval of the ACC. For the vacancy of Member- 2, no appointment could be made as both the individuals recommended by the SCSC have already been appointed elsewhere. The remaining recommendations have not been accepted by the ACC.  

(c) Income Tax Appellate Tribunal (ITAT): The SCSC, headed by Justice A.M. Khanwilkar, Judge, Supreme Court of India, had on 13.09.2018 made recommendations against 16 vacancies of Judicial Members and 12 vacancies of Accountant Member .  On 11.09.2021 , the Central Government appointed 6 Judicial Members and 7 Accountant Members after obtaining the approval of the ACC .  

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(d) National Consumer Disputes Redressal Commission (NCDRC): The SCSC, headed by Justice D.Y. Chandrachud, Judge, Supreme Court of India, had on 24.06.2020 made recommendations against 4 vacancies of Judicial Members and 2 vacancies of Technical Member. On 11.05.2021 , the Central Government appointed 2 Judicial Members and 2 Technical Members after obtaining the approval of the ACC .

(e) Appellate Tribunal for Electricity (APTEL) : The SCSC, headed by Justice Ashok Bhushan, Judge, Supreme Court of India, had on 20.05.2020 made recommendations against 1 vacancy of Technical Member.  On 04.09.2021 , the Central Government appointed 1 Technical Member after obtaining the approval of the ACC . Prior to this , 1 Technical Member had been appointed on 05.02.2020 .  

(f) Armed Forces Tribunal (AFT) : The SCSC, headed by Justice A.M.  Khanwilkar, Judge, Supreme Court of India , had on 01.09.2020 made recommendations against 8 vacancies of Judicial Members and 8 vacancies of Technical Member.  On 07.09.2021, the Central Government appointed 6 Judicial Members after obtaining the approval of the ACC.  Prior to this , 5 Administrative Members had been appointed on 02.09.2020.

According to the affidavit with the aforementioned appointments made in 2021, it is submitted that no recommendations made by any of the SCSCs now remain pending with the Central Government.  With respect to the current vacancies in the various tribunals, SCSCs will have to be constituted for the purpose of making recommendations. The Central Government has already, in respect of each tribunal, nominated two Secretaries to Government, other than the Secretary in charge of the parent Department of the Tribunal for which appointments are to be made.  The nomination of Secretaries has been intimated to the concerned departments of the Central Government vide letter dated 18.01.2021.

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The SCSCs, which would now be constituted, which are headed by the Chief Justice of India or his nominated Judge of the Supreme Court, would have to shortlist and select eligible candidates based on the eligibility criteria to be laid down as per the Rules  to be notified under the Tribunal Reforms Act, 2021. It is submitted that the Rules have been prepared by the Central Government and would be notified shortly.  Once the Rules under the Tribunal Reforms Act, 2021 are notified, the SCSCs could proceed with issuing advertisements and selecting the candidates for recommendation as members. In this manner, all existing vacancies could be filled up, states the affidavit.

The Top Court was hearing a bunch of  separate petitions on vacancies across the tribunals and a challenge to the Tribunal Reforms Bill. On September 6, a bench headed by CJI Ramana had observed that the Union government has no respect for the judgments of the Supreme Court and is now “emasculating tribunals” by not filling up vacancies in them.

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