ORDER : Admit. 2. Assistant Solicitor General of India takes notice for the first respondent. Government Pleader takes notice for respondents 2 to 4. Issue notice by speed post to respondents 5 and 6. 3. Heard the learned Senior counsel Sri. Renjith Thampan for the petitioner and the learned Additional Advocate General, Sri. Ashok M. Cherian for respondents 2 to 4 on the prayer of the petitioner for interim relief. 4. In this proceedings, the petitioner challenges Ext.P3 notification issued by the sixth respondent Selection Committee for selection of Judicial Members in the Kerala Administrative Tribunal (the Tribunal) established under Section 4(2) of the Administrative Tribunals Act, 1985 (the Act). By way of interim order, the petitioner seeks stay of operation of Ext.P3 notification and all further proceedings pursuant to the same. 5. In anticipation of the vacancies of two Judicial Members, the sixth respondent issued Ext.P3 notification on 01.07.2021. The petitioner who is a practising lawyer is stated to be an aspirant for appointment as Judicial Member in the Tribunal. The main ground on which the petitioner challenges Ext.P3 notification is that Rule 3(2) of the Administrative Tribunals (Procedure for Appointment of Members) Rules, 2011 (the Rules), to the extent it provides for inclusion of persons from executive offices of the State in the Selection Committee is ultra vires the basic structure of the Constitution. The petitioner challenges the notification also on the ground that the Selection Committee that issued the notification is not one constituted in terms of Rule 3(2) of the Rules. In terms of Rule 3(2), the Selection Committee shall consist of the Chief Justice of the High Court of the concerned State, the Chief Secretary of the concerned State, the Chairman of the State Administrative Tribunal of the concerned State and the Chairman of the Public Service Commission of the concerned State. It is alleged by the petitioner that though the office of the Chairman of the Tribunal fell vacant on 15.9.2020, the vacancy is yet to be filled up, and since the Tribunal does not have a Chairman, the Chief Justice, who is the Chairman of the Selection Committee directed inclusion of the Acting Chairman of the Tribunal in the Selection Committee and the selection process was initiated accordingly based on the decision of the Selection Committee in which the duly appointed Chairman of the Tribunal is not a member. According to the petitioner, the selection for appointment of Members of the Tribunal can be made only by a Selection Committee in which the duly appointed Chairman of the Tribunal is also a member and that the Member of the Tribunal who is authorised only to act as the Chairman of the Tribunal, cannot substitute the Chairman of the Tribunal in the Selection Committee. 6. The learned Senior Counsel for the petitioner argued that in the light of Section 10-B of the Act, the Rules stands impliedly repealed and a selection cannot, therefore, be made based on the repealed Rules. According to the learned Senior Counsel, in the said circumstances, if the selection for appointment of Members in the Tribunal is to be made, it can be made only in terms of Section 184 of the Finance Act, 2017. Alternatively, it was argued by the learned Senior Counsel that the State and the State Public Service Commission are the stakeholders in the majority of the matters that are dealt with by the Tribunal, and if the Members of the Tribunal are selected by a Committee consisting of the Chief Secretary of the State and the Chairman of the State Public Service Commission as provided for in Rule 3(2) of the Rules, the independence of the Tribunal which is a constitutional mandate cannot be ensured. The learned Senior Counsel placed reliance on the decision of the Apex Court in Madras Bar Association v. Union of India and another, 2020 KHC 6662, in support of the said submission. It was also argued by the learned Senior Counsel that even if it is taken that Rule 3(2) of the Rules is valid and enforceable, the selection process commenced in terms of Ext.P3 notice is bad since the duly appointed Chairman of the Tribunal was not a member in the Selection Committee. 7. Per contra, the learned Additional Advocate General pointed out that Section 10-B of the Act does not apply to the Tribunal insofar as the State Administrative Tribunals established under the Act are not included in the Eighth Schedule to the Finance Act, 2017. It was also pointed out by the learned Additional Advocate General that since the Acting Chairman of the Tribunal was a member of the Selection Committee, the decisions taken by the Selection Committee cannot be said to be bad. It was also pointed out by the learned Additional Advocate General that since the Acting Chairman of the Tribunal was a member of the Selection Committee, the decisions taken by the Selection Committee cannot be said to be bad. Placing reliance on Rule 6(4) of the Rules which provides that the quorum for the meeting of the Selection Committee shall be the Chairman and at least one other Member, the learned Additional Advocate General further pointed out that the absence of the Chairman of the Tribunal in the Selection Committee does not vitiate the decisions taken by the Selection Committee. 8. Section 10-B of the Act reads thus; “10-B. Qualifications, terms and conditions of service of Chairman and Member.— Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairman and other Members of the Tribunal appointed after the commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), shall be governed by the provisions of section 184 of that Act : Provided that the Chairman and Member appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017 (7 of 2017), shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 (7 of 2017) had not come into force.” What is provided for in the extracted provision is that notwithstanding anything contained in the Act, the appointment of the Chairman and Members of the Tribunal after the Finance Act, 2017 shall be governed by Section 184 of that Act. Section 184 of the Finance Act, 2017 substituted in terms of the Tribunals Reforms (Rationalisation and Conditions of service) Ordinance, 2021 reads thus : “184. Section 184 of the Finance Act, 2017 substituted in terms of the Tribunals Reforms (Rationalisation and Conditions of service) Ordinance, 2021 reads thus : “184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule : Provided that the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment : Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed,— (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice- President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.” It is evident from the extracted provision that the same would apply only to the appointment of Chairperson and Members of the Tribunals and authorities specified in the Eighth Schedule to the Finance Act, 2017. The State Administrative Tribunals are not included in the Eighth Schedule to the Finance Act, 2017. The learned Senior Counsel for the petitioner attempted to get over this difficulty pointing out that the word “Tribunal” used in Section 10-B includes both the Central Administrative Tribunal as also the State Administrative Tribunal and therefore, in the light of the non-obstante clause in Section 10-B of the Act, the procedure laid down in Section 184 of the Finance Act, 2017 alone would govern the appointment of the Chairman and Members of the State Administrative Tribunal. I am unable to accept this argument. Section 3(t) of the Act defines 'Tribunal' thus : “3. Definitions.—In this Act, unless the context otherwise requires,— (t) “Tribunal” means the Central Administrative Tribunal or a State Administrative Tribunal or a Joint Administrative Tribunal; The word “or” used in the definition in between the expressions “the Central Administrative Tribunal” and “a State Administrative Tribunal” indicates that the word “Tribunal” used in the Act shall be understood either as the Central Administrative Tribunal or as State Administrative Tribunal as the context demands. Reverting to Section 10-B of the Act, insofar as the State Administrative Tribunals are not included in the Eighth Schedule to the Finance Act, 2017, the word “Tribunal” in Section 10-B, according to me, can be understood only as the Central Administrative Tribunal. Needless to say, this Court is not impressed by the argument based on Section 10-B of the Act. 9. Coming to the contention of the petitioner that Rule 3(2)of the Rules, to the extent it provides for inclusion of persons from executive offices of the State in the Selection Committee is invalid, I am of the view that since a legislation is presumed to be valid till it is set at naught, this Court would not be justified in taking note of the said contention in the matter of considering the prayer of the petitioner for interim relief. 10. Rule 3(2) of the Rules dealing with the composition of the Selection Committee reads thus : 3. Composition of the Selection Committee.- (2) For selection of Members of the State Administrative Tribunals:- There shall be a Selection Committee of the concerned State Government for the purpose of selection of Members of the concerned State Administrative Tribunal consisting of the following, namely :- (i) Chief Justice of the High Court of the concerned State -Chairman. (ii) Chief Secretary of the concerned State Government-Member; (iii) Chairman of the State Administrative Tribunal of the concerned State-Member; (iv) Chairman of the Public Service Commission of the concerned State-Member.” The question remaining to be considered is as to whether the Acting Chairman of the Tribunal can substitute the Chairman in the Selection Committee. Section 6 of the Act reads thus; “6. Section 6 of the Act reads thus; “6. Qualifications for appointment as Chairman, Vice-Chairman and other members.—(1) A person shall not be qualified for appointment as the Chairman unless he is, or has been, a Judge of a High Court: Provided that a person appointed as Vice-Chairman before the commencement of this Act shall be qualified for appointment as Chairman if such person has held the office of the Vice-Chairman at least for a period of two years. (2) A person shall not be qualified for appointment,— (a) as an Administrative Member, unless he has held for at least two years the post of Secretary to the Government of India or any other post under the Central or State Government and carrying the scale of pay which is not less than that of a Secretary to the Government of India for at least two years or held a post of Additional Secretary to the Government of India for at least five years or any other post under the Central or State Government carrying the scale of pay which is not less than that of Additional Secretary to the Government of India at least for a period of five years: Provided that the officers belonging to All-India Services who were or are on Central deputation to a lower post shall be deemed to have held the post of Secretary or Additional Secretary, as the case may be, from the date such officers were granted proforma promotion or actual promotion whichever is earlier to the level of Secretary or Additional Secretary, as the case may be, and the period spent on Central deputation after such date shall count for qualifying service for the purposes of this clause; (b) as a Judicial Member, unless he is or qualified to be a Judge of a High Court or he has for at least two years held the post of a Secretary to the Government of India in the Department of Legal Affairs or the Legislative Department including Member-Secretary, Law Commission of India or held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years. (3) The Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President. (3) The Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President. (4) Subject to the provision of sub-section (3), the Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State. (5) The Chairman and every other Member of a Joint Administrative Tribunal shall, subject to the provisions of sub-section (3) and subject to the terms of the agreement between the participating State Governments published under sub-section (3) of section 4 of the principal Act, be appointed by the President after consultation with the Governors of the concerned States.” In terms of Section 6(1) of the Act, only a person who is, or has been, a Judge of a High Court can be appointed as the Chairman of the Tribunal. Persons possessing the qualifications mentioned in Sub Section (2) of Section 6 are, however, entitled to be considered for appointment as Administrative and Judicial Members of the Tribunal. It is now trite that the executive branches of the Government shall not hold a primacy in the matters of selection and appointment of Chairperson and Members of the Tribunals [See Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 ]. The relevant passage in the judgment in the said case reads thus : 149. We are in agreement with the contentions of the learned counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. The doctrine of separation of powers has been well recognised and reinterpreted by this Court as an important facet of the basic structure of the Constitution, in its dictum in Kesavananda Bharati v. State of Kerala [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ], and several other later decisions. The exclusion of the judiciary from the control and influence of the executive is not limited to traditional courts alone, but also includes Tribunals since they are formed as an alternative to courts and perform judicial functions. The exclusion of the judiciary from the control and influence of the executive is not limited to traditional courts alone, but also includes Tribunals since they are formed as an alternative to courts and perform judicial functions. If the provisions of the Act are understood in the light of the aforesaid principle, it can be seen that the scheme of the Act and the Rules is that a person who is, or has been, a Judge of a High Court shall be in the Selection Committee in addition to the Chief Justice of the concerned State. 11. Section 7(1) of the Act dealing with the power of the appropriate Government to authorise an Administrative or Judicial Member of the Tribunal to act as Chairman reads thus : “7. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances.—(1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the [such one of the Members] as the appropriate Government may, by notification, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy enters upon his office.” As seen, the provision aforesaid is only a power conferred on the State Government to authorise an Administrative or a Judicial Member of the Tribunal to act as the Chairman until a new Chairman is appointed. If it is held that a person so authorised to act as the Chairman of the Tribunal can substitute the Chairman of the Tribunal in the Selection Committee, the Judicial primacy of the Selection Committee would not be maintained, for in that event, even an Administrative Member who is permitted to act as the Chairman of the Tribunal would constitute the Selection Committee along with the Chief Justice of the State, the Chief Secretary of the State and the Chairperson of the State Public Service Commission, thereby compromising the judicial dominance over the appointment. That apart, the object of the provision contained in Section 7(1) of the Act seems to be only that in the absence of the Chairman, there shall be somebody to act as the Chairman, and the stand that a Member of the Tribunal who is authorised to act as the Chairman can substitute the duly appointed Chairman in the Selection Committee is prima facie against the scheme of the Act. 12. The contention that the Chairman and at least one other Member of the Selection Committee would constitute the quorum for the meeting of the Selection Committee and therefore, absence of the Chairman of the Tribunal in the Selection Committee does not vitiate the decisions taken by the Selection Committee is prima facie not acceptable since the question of quorum arises only when there is a duly constituted Selection Committee in place. 13. In the aforesaid circumstances, I am of the view that the selection process initiated without the Chairman of the Tribunal in the Selection Committee is against the scheme of the statute. The petitioner has, therefore, made out a prima facie case for interim order. Ext.P3 notification, in the circumstances, will remain stayed. It is, however, made clear that this order will not preclude the Selection Committee from initiating a fresh selection process as and when a Chairman is duly appointed for the Tribunal.