Law Commission Of India Report No. 232
Retirement Age Of Chairpersons And Members Of Tribunals – Need For Uniformity
Forwarded to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Dr. Justice AR. Lakshmanan Chairman, Law Commission of India, on August 22, 2009.
Dr. Justice AR. Lakshmanan
August 22, 2009D.O. No. 6(3)/173/2009-LC (LS) Dear Dr Veerappa Moily ji,
Retirement Age Of Chairpersons And Members Of Tribunals – Need For Uniformity
I. Introduction1.1 There is a general trend to provide for enhanced age of retirement of Chairpersons and Members of various Tribunals constituted by the Government in the country and also of the employees in various spheres e.g. Universities and government undertakings etc. vis-à-vis the normal age of retirement of judges and government servants. It is noticed that the longevity or life expectancy of our citizens1 is now nearly comparable to that in the developed countries and, therefore, fresh proposals on the subject generally envisage enhanced age of retirement but in the absence of clear-cut guidelines for prescribing retirement age of Chairpersons or Members of various Tribunals in the country, different Ministries of the Government adopt different yardsticks. 1. According to the "2006 World Population Data Sheet", life expectancy of ns reached to 63 years which was about 50 years three decades ago. There are now available better health care facilities and health standards of our citizens have improved. 1.2 It needs no mention that enhanced age of retirement is prescribed in the higher echelons of the administrative and judicial services because the professional experience gained by those working in them needs to be fully tapped for the good of the society. It may be pointed out that the Government incurs a lot of expenditure on orientation-training of its employees, especially, at the senior level, and, therefore, their enriched professional experience in running the affairs of the government could be utilized for the good of the common man. In the present liberalized economic era, the experience gained by government employees after their retirement is being fruitfully tapped by many multinational companies. These private enterprises pay hefty salaries to the retired government employees because their valuable professional experience gained during their service in the government is put to profitable use. In such a scenario, the government should utilize the services of their retired employees to the fullest extent possible. 1.3 The practice being followed in fixing the age of retirement of Chairpersons and Members of various Tribunals functioning in the country reveals that there exists no rationale in fixing different retirement age-limits. A chart indicating the names of the Tribunals, the Acts under which they have been established, eligibility criteria adopted for appointment of their Chairpersons and Members, their tenures and the different ages of their retirement, has been prepared which is at Appendix. It may be seen that there is neither any uniformity in the age of retirement, nor any cogent reasons have been given in the respective Acts justifying the criteria adopted for the purpose. 1.4 The question of increasing the retirement age of Judges of the higher judiciary i.e. High Court and Supreme Court Judges from 62 to 65 and from 65 to 70 years, respectively, has also been a matter of serious discussion/consideration at different levels of the Government. Retirement age in many government departments/disciplines, particularly, educational and scientific/research institutions, has already been increased. 1.5 A High Court Judge is normally considered for appointment as a Member of the Central Administrative Tribunal (CAT) on his retirement at the age of 62. After the amendment of the Administrative Tribunals Act 1985 by Act 1 of 2007, a retired High Court Judge if appointed as Chairman of CAT he can hold office as such till the age of 68 years, but 9if appointed as its Judicial Member then he holds office until attaining the age of 65 years. 1.6 There is an imperative need to fix the age of retirement of Chairpersons and Members of various Tribunals up to the age of 70 and 65, respectively. 1.7 It may be recalled that the retirement age of Central and State Government employees was first increased from 55 to 58 years and then from 58 to 60 years. For Judges of High Courts the retirement age was increased only once from 60 to 62 and for the Supreme Court Judges the retirement age since inception has been 65 years. Judges of High Courts and the Supreme Court retiring at the age of 62 and 65, respectively, need to have a substantial tenure in various Tribunals to which they are appointed after their retirement as in that event only they would be able to substantially improve upon the system. If an incumbent is to retire within two-three years of his joining a Tribunal, then by the time he might have full acquaintance of its working he would be retired, surely then he shall not be able to contribute much in advancing and improving upon the working of the Tribunal. 1.8 For selection and appointment in Tribunals, a set procedure is prescribed where the time spent in inviting applications up to the selection and then clearance from the Government at various levels, is six months to a year. The past experience clearly shows that whenever eligibility for appointment as Chairpersons and Members of Tribunals includes former or sitting Judges of High Courts or the Supreme Court or Chief Justices of such Courts, there may be not more than 5-7 instances where the sitting Judges may have, during their tenure of service, opted 10to become Chairpersons or Members of Tribunals. They seek consideration for such appointments either on the eve of their retirement or after their retirement, and if the period of selection and appointment would take time, they might not serve for more than 2 – 2&1/2 years, where the retirement age is 65 or 68 years. 1.9 A perusal of Appendix would manifest that by and large eligibility for appointment as Chairperson is of those who are or have been Judges of the Supreme Court, Chief Justices of High Courts or Judges of High Courts, but the retirement age in different Tribunals is different viz. 65 years, 67 years, 68 years, and in some it is 70 years. There is no uniform prescription of age of retirement. Judges and Chief Justices of High Courts have the same retirement age i.e. 62 years. It is too well known that functions and duties carried out by the Judges at any level are the same. There has already been a lot of debate as to whether the retirement age of the Supreme Court and High Court Judges should be the same for the precise reason that the functions and duties carried out by them are of the same nature and, therefore, if the age of retirement of a Supreme Court Judge is 65 years, the same should be so with regard to High Court Judges. If the Judges or Chief Justices of the High Courts, who retire at the age of 62 years, wish to take up assignment in Tribunals, which is, as mentioned above, taken by them after their retirement, their work-period in Tribunals may be 2-3 years. Obviously, when Judges of the Supreme Court are appointed in any Tribunal, their retirement age must at the least be 70 years, their date of retirement as a Supreme Court Judge being 65 years. A view has been expressed that there should also be no difference in the retirement ages for Chairpersons and Members, who come from the judicial stream i.e. High Courts or the Supreme Court, and it should uniformly be 70 years. A distinction may be made insofar as Members 11are concerned form another perspective. Members in Tribunals have two streams – judicial and administrative. The retirement age from the government, of those who join the administrative stream is 60 years and the term of 5 years as a Member of Tribunal may be sufficient in their case. However, no distinction can be made in the retirement age of the Members – whether coming from judicial stream or administrative stream. Irrespective of the stream, the retirement age needs to be uniformly fixed. It may also be mentioned that whereas Judges are so many, Chief Justices of High Courts are few. On number of occasions, appointments of Chairpersons had to wait for want of availability of the Chief Justices or Judges of the Supreme Court, but insofar as Judges of High Courts are concerned, there has been no problem of that kind. It would thus be expedient and in the fitness of things to have a uniform retirement age of Chairpersons of Tribunals as 70 years and uniform age of retirement of Members as 65 years. II. Recommendation 2.1 It is felt that the age of retirement of Chairpersons should be uniformly fixed at 70 years for all the Tribunals. Likewise, the age of retirement of Members of all the Tribunals should be fixed uniformly at 65 years. 2.2 We recommend accordingly.