Stop arbitrariness in tribunal appointments

RV Easwar | Updated on September 09, 2021

The appointment process to leadership positions should be fair and transparent   -  iStock

The Law Ministry must clarify why seniority norms were flouted to fill the top post in the Income Tax Appellate Tribunal

The appointment of tribunal members has been marked by a flouting of norms. The latest episode in this regard pertains to the Income Tax Appellate Tribunal (ITAT).

By an order issued on September 5, 2021, the Department of Legal Affairs, Ministry of Law and Justice, assigned the charge of Officiating President, ITAT, to a Vice-President who is not the senior-most of the Members of the Tribunal.

As a matter of fact, he is No. 7 on the seniority list of Vice-Presidents, with only two below him and six above him. He has, thus, superseded six Vice-Presidents, including the No.1 and who was appointed to the post in 2017.

The appointment comes in the wake of the retirement of Justice PP Bhat, who was the President. By all accounts, it has caused ripples not only among the members of the Bar who regularly practise before the Tribunal but also among the Members of the Tribunal, in general, and among the Vice-Presidents who have been overlooked, not to speak of the erosion of the confidence of the litigants in the system.

The Income-Tax Act provides for the constitution of an Appellate Tribunal, to be headed by a President who shall be a person who is a sitting or retired judge of a High Court and who has completed not less than seven years of service as a judge or as a Vice-President.

This is so from 2013 and since then two former High Court judges have been appointed President, with the Vice-Presidents being asked to hold the post only as a temporary measure, if at all.

However, this is the first instance of a Vice-President who is junior to at least six Vice-Presidents to be given charge as Officiating President. Though, technically, the Act does not say that the rule of seniority of the Vice-Presidents has to be followed, it is well-established that there must be strong reasons, which must be disclosed, if the person appointed supersedes six Vice-Presidents.

Non-disclosure of the reason(s) itself is a pointer to the arbitrary nature of the appointment.

No reasons given

The September 5 order assigns no reason for choosing a Vice-President who is placed No.7, giving rise to conjectures and speculation which do not augur well for the quasi-judicial body, acclaimed as the mother of all tribunals in the country, having been established in 1941 and having been the model on which all other quasi-judicial tribunals have been fashioned.

It is, therefore, incumbent upon the Ministry of Law and Justice to clarify why the norms of seniority have been flouted in the matter of assigning the charge of the office of the President.

If the reason is that it is likely to be only temporary before a former judge is appointed, then all the more reason that the person who is the senior-most among the Vice-Presidents should have been given the charge.

Members of the ITAT put in meritorious and distinguished service in the hope of reaching the top post, but that was taken away for no reason in 2013. The post of Senior Vice-President was also abolished for untenable reasons, thus dashing the hopes of members to reach that post at least, if not the post of President.

Such things drastically erode the morale of the Members and where incentives for hard work, honesty and intellectual integrity are taken away, the institution suffers. The present appointment is another blow in this regard.

It is not known whether a process of selection was followed in making Vice-President No.7 as the Officiating President, and, if so, who headed the selection-process. The appointments and promotions in the Tribunal are monitored by a promotions committee headed by a senior sitting judge of the Supreme Court. Whether such a committee was constituted in the matter of the present appointment, which is in fact a promotion, is not known. The whole process lacks transparency.

Headquarters of the President

Another sore point that has always been an issue is the headquarters of the President of the Tribunal. Officially, the headquarters of the Tribunal is Mumbai, and therefore it has also been the headquarters of the President.

There were a few unhealthy instances of some Presidents, for reasons best known to them, managing to make Delhi their headquarters, with all the comforts of the proximity to the nodal ministry and the powers that be. It is advisable that the Presidents of the Tribunal are not allowed to make the national capital as their headquarters, but instead function from Mumbai.

The appointment of Vice-President No.7 as the Officiating President raises several such questions. It introduces suspicion and bad blood among the Vice-Presidents resulting in the inefficient functioning of the body as a whole.

The issue of transfer-posting, which is at once sensitive and critical, assumes importance in this regard. It has to be done by a committee, as mandated by the judgment of the Supreme Court in the Ajay Gandhi case, and an appointment like this, which has stirred up a controversy, may become an impediment to the efficient administration of justice.

The writer, a retired judge, is a former President, Income Tax Appellate Tribunal

Published on September 09, 2021

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