Holding

The Court held that the interim SCSC arrangement shall govern the selection of chairpersons and members of all tribunals, but where the selection process had already substantially progressed, it shall be allowed to proceed to its logical conclusion without being affected by the interim order.

Summary

The petition sought judicial directions on the selection of chairpersons, judicial, administrative, technical and expert members of various tribunals under the Tribunal, Appellate Tribunal and Other Authorities (Qualification, Experience and Other Conditions of Service of Members) Rules, 2017. The Supreme Court, after hearing submissions, issued an interim order on 9 February 2018 prescribing a temporary Search‑cum‑Selection Committee (SCSC) composition and fixing a five‑year term of office for appointees. The Union of India was then directed to file the status of selection processes already underway in 19 tribunals. Upon review, the Court observed that where the selection process had substantially progressed—such as CESTAT, DRT, DRAT, CAT (judicial members), NCLAT, NCDRC, and others—the process would be allowed to continue to its logical conclusion without being disturbed by the interim order. For tribunals where only preliminary steps had been taken, the interim SCSC directions would govern the remaining selection. Consequently, the Court issued detailed tribunal‑wise directions and disposed of the petition with these interim arrangements.

Issues considered

What is the appropriate procedure for selecting chairpersons and members of tribunals under the 2017 Rules?
Whether the interim SCSC order of 9 February 2018 should apply to tribunals where selection processes had already commenced?
Whether the terms of office and conditions of service prescribed in the interim order override the existing statutory provisions?

Legislation cited

Subjects

TribunalsSelection CommitteeInterim OrderAppointment of JudgesArticle 32Qualification Rules 2017Judicial Administration

Judgment

[2018] 2 S.C.R. 1005 1005

KUDRAT SANDHU A
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 279 of 2017)
FEBRUARY 22, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Tribunals – Chairperson/Judicial/Administrative/Expert/
Technical members – Selection of – After considering the
C
suggestions filed, along with modifications, order passed by Supreme
Court on 9 February 2018 as an interim arrangement to govern
selection in all Tribunals – However, since some of the Search-cum-
Selection Committees (SCSC) had already proceeded with their work
prior to the said interim order, matter listed for further hearing
wherein inter alia Union of India was directed to file status of selection D
process by the Committees – Tabular chart filed by Union of India
indicating the status of selection process in respect of 19
Tribunals – Tribunal-wise position with regard to the selections
analysed by Supreme Court and directions given in respect of each
of the Tribunal – Tribunal, Appellate Tribunal and Other Authorities
E
(Qualification, Experience and Other Conditions of Service of
Members) Rules, 2017.
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
279 of 2017
Under Article 32 of the Constitution of India.
F
WITH
W. P. (C) Nos. 558, 561, 640, 1016, 788, 925, 1098 and 1129 of
2017
W. P. (C) No. 33 of 2018.
Arvind P. Datar, C. A. Sundaram, Mohan Parasaran, Sidharth G
Luthra, Sr. Advs., Ms. Maneesha Dhir, Karan Batura, Ms. Anushree
Prashit Kapadia, Ms. Priyanka Rathi, Ms. Ruchira Goel, Vikramaditya,
Arun Monga, Ms. Divya Sharma, Ms. Mayuri Raghuvanshi, Nikhil Swami,
V. K. Verma, Nikhil Nayyar, Rupesh Kumar, Anand Varma, K. Krishna
Kumar, Annam D. N. Rao, Advs. for the Petitioner.
H
1005
1006 SUPREME COURT REPORTS [2018] 2 S.C.R.

A K. K. Venugopal, AG, S. S. Shamshery, Ms. Shraddha Deshmukh,
Rukmini Bobde, Kumar Shashank, Mukesh Kumar Maroria, Zoheb
Hossain, Ashok Mathur, Mrs. Anil Katiyar, Advs. for the Respondents.
The follwing order of the Court was delivered:
ORDER
B
1. On 9 February 2018, an interim order was passed by this Court
after considering the suggestions filed during the course of hearing. The
suggestions read as follows:
“1. Staying the composition of Search-cum-Selection Committee
C as prescribed in Column 4 of the Schedule to the Tribunal,
Appellate Tribunal and Other Authorities (Qualification,
experience and other conditions of service of members) Rules,
2017 both in respect of Chairman/Judicial Members and
Administrative Members. A further direction to constitute an
interim Search-cum Selection Committee during the pendency
D of this W.P. in respect of both Judicial/Administrative members
as under :
a. Chief Justice of India or his nominee - Chairman
b. Chairman of the Central Administrative Tribunal - Member
E c. Two Secretaries nominated by the Government of India -
Members
2. Appointment to the post of Chairman shall be made by
nomination by the Chief Justice of India.
3. Stay the terms of office of 3 years as prescribed in Column 5
F of the Schedule to the Tribunal, Appellate Tribunal and other
Authorities (Qualification, experience and other conditions of
service of members) Rules, 2017. A further direction fixing the
term of office of all selectees by the aforementioned interim
Search-cum Selection Committee and consequent appointees as
G 5 years.
4. All appointments to be made in pursuance to the selection
made by the interim Search-cum-Selection Committee shall be
with conditions of service as applicable to the Judges of High Court.
5. A further direction to the effect that all the selections made by
H the aforementioned interim selection committee and the
KUDRAT SANDHU v. UNION OF INDIA AND ANR. 1007

consequential appointment of all the selectees as Chairman/ A
Judicial/Administrative members for a term of 5 years with
conditions of service as applicable to Judges of High Court shall
not be affected by the final outcome of the Writ Petition.”
2. The learned Attorney General had no objection to the above
suggestions being adopted as an interim arrangement to govern the B
selections to all tribunals, except for the fourth and fifth suggestions
recorded above. The Learned Attorney General suggested that the above
two suggestions may be re-cast as follows:
“4. All appointments to be made in pursuance to the selection
made by the interim Search-cum-Selection Committee shall abide C
by the conditions of service as per the old Acts and the Rules.
5. A further direction to the effect that all the selections made by
the aforementioned interim selection committee and the
consequential appointment of all the selectees as Chairman/
Judicial/Administrative members shall be for a period as has been D
provided in the old Acts and the Rules.”
3. The Court accepted the suggestions together with the
modifications which weredesired by the Attorney General. The operative
direction reads thus:
“In view of the aforesaid, we accept the suggestions and direct E
that the same shall be made applicable for selection of the
Chairpersons and the Judicial/Administrative/Technical/Expert
Members for all tribunals.”
4. Since some of the Search-cum-SelectionCommittees (SCSC)
have already proceeded with their work prior to the above order, the F
case was listed for further hearing on 12 February 2018.The following
order was passed:
“As some Committees had proceeded, the matter was listed for
further hearing. We have heard learned counsel for the parties.
Mr. Rohit Bhat, learned counsel assisting the learned Attorney G
General for the Union of India shall file the status of the selection
process by the Committees, by 13.2.2018.
Mr. Arvind Datar, Mr. C.A. Sundaram and Mr. Mohan Parasaran,
learned senior counsel shall also file through their Advocates-
on-Record a joint memorandum with regard to which tribunals H
1008 SUPREME COURT REPORTS [2018] 2 S.C.R.

A are covered and not covered. The same shall be filed by 10.30
a.m. on 13.2.2018.
Orders reserved.”
5. The Attorney General has in pursuance of the proceedings
which took place on 12 February 2018 filed a tabular chart indicating the
B status of the selection process in respect of 19 tribunals.Written notes
have been filed by Mr Vikas Singh, Senior Advocate and by Mr Vijay
Kumar Verma, Advocate (appearing respectively in Writ Petition(Civil)
No. 279 of 2017 and companion cases and Writ Petition (Civil) No. 640
of 2017).
C 6. The tabular chart submitted by the Attorney General indicates
the following details individually in respect of 19 tribunals:
(i) Whether the SCSC has been constituted;
(ii) Whether advertisements have been issued for judicial and/or
D technical (or expert) members;
(iii) Whether applications have been received;
(iv) Whether the process of shortlisting or, as the case, may be holding
interviews has been completed; and
(v) Whether appointments have been made.
E
The written submissions filed by Mr Vikas Singh, Learned Senior
Advocate and Mr Verma, Advocate indicate that substantial steps have
taken place in the selection process for the Central Administrative Tribunal
and it is desirable that appointments be made expeditiously.

F 7. We will now analyse the position in regard to the selections,
tribunal-wise.
CESTAT
We have been apprised of the fact that in respect of the Central Excise
and Service Tax Appellate Tribunal (CESTAT), applications were
G received for judicial and technical members pursuant to advertisements
issued under the directions of the SCSC.Interviews have been conducted
and the Appointments Committee of the Cabinet has approved the
proposal for filling up vacant posts of judicial members. The above position
indicates that the process of selection has been substantially
completed.Hence, we clarify that the selection process in respect of the
H
KUDRAT SANDHU v. UNION OF INDIA AND ANR. 1009

CESTAT may be completed and will not be affected by the order of this A
Court dated 9 February 2018.
DRT and DRAT
8. For the Debts Recovery Tribunal, the chart submitted by the
learned Attorney General indicates that the selection process has been
completed and appointments of Presiding officers have been made. This B
being the position, the selection process in respect of the DRT shall not
be affected. In respect of the DRAT also, the selection process has
been completed and will hence be taken to its logical conclusion.
CAT
C
9. In respect of the Central Administrative Tribunal, the chart
submitted by the learned Attorney General indicates that after the
constitution of the SCSC, vacancies were advertised and applications
have been received both for judicial and administrative members. Two
meetings have been held by the SCSC for judicial members; shortlisting
criteria were finalised and 67 candidates have been shortlisted. In the D
above situation, the selection process for judicial members of CAT shall
proceed unhindered by the previous directions dated 9 February, 2018
and shall be taken to its logical conclusion. Since no substantial steps
have taken place in regard to the appointments of Administrative members
of CAT, the directions contained in the order dated 9 February 2018 E
shall apply.
NCLAT
10. As regards the National Company Law Appellate Tribunal,
the chart submitted by the learned Attorney General indicates that the
existing selection committee has the same composition as provided for F
in the new rules. Advertisements inviting applications were issued and
141 applications have been received by the SCSC. We clarify that the
selection process for the NCLAT shall continue and shall not be affected
by the interim directions dated 9 February 2018.
NCDRC G
11. For the appointment of the President of the National Consumer
Disputes Redressal Commission,the applications received have been
forwarded to the Chief Justice of India by the Ministry for Consumer
Affairs, Food and Public Distribution. A recommendation is to be made
H
1010 SUPREME COURT REPORTS [2018] 2 S.C.R.

A by the CJI in terms of Rule 4 read with Item No. A of Column No. 4 of
Serial No. 16 of the relevant Rules.
12. For judicial and non-judicial members ofNCDRC, the SCSC
has shortlisted candidates. Recommendations have been made by the
SCSC in February 2018. The selection process has been substantially
B completed. It may proceed to its logical conclusion without being affected
by the directions dated 9 February 2018. However, it is made clear that
the appointment of President of NCDRC is to be made by a nomination
of the CJI.
AAR
C 13. For the Authority for Advance Ruling, a nomination was
received by theUnion government from the Chief Justice of India.
However, before the appointment was made, the nominated candidate
died. A fresh nomination is to be made by the CJI.
14. The Chairperson of the Search and Selection Committee for
D selection of the Vice Chairman, nominated by the Chief Justice of India
has made recommendations.
APTEL
15. The Chairperson of the SCSC has been nominated for
recommending the appointment of Chairperson of the Appellate Tribunal
E
for Electricity. The Committee has initiated the process and is ascertaining
willingness of eligible persons. The work of the Committee may proceed
unhindered by the order dated 9 February 2018.
16. In the case of certain other tribunals, the chart submitted by
the Attorney General is extracted below:
F
Sl No. Tribuna l / Existing Whether Status of T otal Interview s Selectio
Appellate Vaca nc y SCSC se lection N umber conducte d n made /
Tribuna l c onstitute proce ss s of Final
and Other under New a pplica- Appoin-
Authorities Rules. If tions as tment
yes, its r eceived
c omposition
G
1 Appellate 1 Vac ancy SCSC Advertised 12 NA NA
Tribunal for Member c onstituted on a pplicati
unde r for pos t of 11.10.2017 o ns
SAFEM A membe r. received
Act

H
KUDRAT SANDHU v. UNION OF INDIA AND ANR. 1011

2 Railway 02 Vacancies SCSC VC/Tech- NA NA NA A
Claims to the post of Constituted. Proposal put
Tribunal Vice up to Board
Chairman – for
Technical circulation of
Vacancy
3 vacancies to Notice
the post of B
Technical For post of
Member Technical
Member- 1st
Judicial Round
Member-08 meeting held
posts on 7.02.2018 C
and IB
clearance
sought

Proposal put
D
up to Board
for
circulation of
Vacancy
Notice

3 Securities Nil SCSC Not N.A. N.A. N.A. N.A. E
Appellate constituted.
Tribunal

4 Airport 01 vacancy SCSC Vacancy 17 Interviews NA
Appellate for post of Constituted. circulate not yet
Tribunal Chairman issued conducted F
5 Telecom One vacancy SCSC Advertiseme NA NA NA
Disputes in respect of a Constituted. nt for the
Settlement Member will post of
and arise on Member,
Appellate 12.5.2018 TDSAT will
Tribunal be issued in a G
(TDSAT) day or two so
as to fill the
vacancy
arising on
12.05.2018

H
1012 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 6 Appellate 01 vacancy SCSC Not yet Vacancies 09 NO NO
Board for post of constituted. advertised applications
Under Vice in received for
Trade Chairman, 01 November, post of Vice
Marks Act vacancy for 2017 Chairman,
post of 14
Technical applications
B Member receiver for
(Trade Mark), post of
01 vacancy Technical
for post of Member
Technical (Trade
Member Mark), 17
C (Patent) and applications
02 vacancies received for
for post of Technical
Technical Member
Member (Patent) and
(Copy right) 15
applications
D received for
Technical
Member
(Copy right)

7 Film 02 vacancies SCSC not NA NA NA NA
Certificatio for post of constituted,
E n Appellate Members although the
Tribunal w.e.f. process for
30.12.2017 constituting
the same has
been initiated.

8 Armed 8- Composition Advertisem NA NA NA
F Forces Administrativ of the ent issued
Tribunal e Members Selection on
committee 20.07.2017
under the old (for the post
8- Judicial rules and the of 6
Members SCSC under Administrat
the new rules ive
G for vice Member);
chairperson,
judicial
member and
administrative
member is the
same.
H
KUDRAT SANDHU v. UNION OF INDIA AND ANR. 1013

The earlier Advertisement A
selection issued on
committees 08.08.2017 –
are for the post of
therefore 1 Judicial
continuing. Member;

B
Advertisement
issued on 06.

11.2017 - for
the post of 7
Judicial
Members and 2 C
Administrative
Members

9 National Chairperson- 01 SCSC Process 83 Date is NA
Green Constituted initiated applications awaited
Tribunal received for
Judicial Members post of D
– 05 Date of Judicial
advertisement Member
Expert Member- – 29.08.2017 and 169
07 applications
received for
Note : Apart from
post of
the above
vacancies, Justice
expert E
members
M.S. Nambiar,
Judicial Member
superannuated on
2.01.2018 and
Shri S.B. Sajwan
Expert Member
F
superannuated on
9.12.2017.

10 Income Tax President – 01 SCSC not NA NA NA NA
Appellate yet
Tribunal constituted.

G
SCSC NO NA NA NA NO
Constituted
Vice
President Member- 24 SCSC not NA NA NA NA
vacancies yet
6 vacancies constituted.
H
1014 SUPREME COURT REPORTS [2018] 2 S.C.R.

A For the Armed Forces Tribunal (AFT), the composition of the Selection
Committee under the old rules and the SCSC under the new rules for
vice chairperson, judicial members and administrative members is the
same. Recommendations have been made. The selection may hence
proceed for AFT (Serial No. 8 above).
B 17. As regards the selection of the President of the ITAT, a
recommendation has already been made. Hence, the selection process
will be taken to its logical conclusion. The SCSC for the rest of the
tribunals in the above chart (other than Serial No. 8) shall be governed
by the interim directions dated 9 February 2018.
C 18. In all cases where the CJI has nominated the Chairperson of
the SCSC for making recommendations for appointment of Chairperson
/ President / Presiding Officer of any tribunal and the Committee has
begun its work by holding a meeting, the process will continue on the
basis of the terms and conditions and eligibility stated in the advertisement
issued or, as the case may be, as notified on the directions of the SCSC
D for ascertaining expression of interest.
19. All recommendations made or to be made by any SCSC as
referred to above for appointment of Chairperson and/or members shall
be processed further without being affected by the order dated 9 February
2018.
E

Divya Pandey Directions issued.

F

G

H