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14. The learned Attorney General strongly refuted the contentions of the learned Amicus Curiae and other Senior Counsel. He stated that a judgment of a court can be overridden by the legislature. Service conditions of Members of tribunals is a policy decision which should be left to the collective decision of the Parliament. Legislative overruling is a permissible exercise as has been held in a number of judgments of this Court. He asserted that there can be no direction issued by this Court to make law in a particular manner. Such directions issued by this Court are treated as suggestions. Ultimately, the will of the people has to prevail. Even interstitial directions given in the absence of law are subject to future legislation. He was of the opinion that the Ordinance cannot be challenged on the ground that it is contrary to the judgment of this Court in MBA-III. The learned Attorney General argued that the minimum age for appointment to tribunals is fixed at 50 years for the purpose of maintaining equality. All aspirants from various fields have been put on an even keel. According to him, there is no uniformity in the directions issued by this Court regarding the 21 | P a g e tenure of Chairperson and Members. Initially in S.P. Sampath Kumar (supra), this Court recommended five to seven years as tenure. Thereafter, directions were issued to the effect that tenure should be five years. The learned Attorney General submitted that tenure of four years instead of five years was fixed after detailed deliberations by experts which should not be interdicted by this Court. Insofar as HRA is concerned, the learned Attorney General submitted that Members of tribunals cannot be permitted to claim allowances higher than officers in the Government carrying the same pay scale. In respect of two names being sent for each post by the Selection Committee, the learned Attorney General stated that the recommendations are subject to inquiry by the Intelligence Bureau (IB) and in case the selected candidate is found to be not suitable, there should be an alternative. Therefore, it was decided that at least two names should be recommended by the Selection Committee for each post. The Government is also interested in filling up the vacant posts in the tribunals and the stipulation of taking a decision preferably within three months does not mean that the Government will not act with alacrity.

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50. The second proviso to Section 184(1) deals with the allowances and benefits payable to the Members which are to be the same as are admissible to a Central Government officer holding a post carrying the same pay. According to Rule 15 of the 2020 Rules, Chairpersons and Members of tribunals were entitled to House Rent Allowance at the same rate as admissible to officers with the Government of India holding Group ‘A’ post carrying the same pay. The contention of the learned Amicus Curiae in MBA-III was that the majority of the tribunals are situated in Delhi and there is scarcity of housing in Delhi. Not many Judges of the High Court are interested in accepting appointment to tribunals in view of the acute problem of housing. An amount of Rs.75,000/- per month which was paid as House Rent Allowance (HRA) was not sufficient to get a decent accommodation in Delhi for Chairpersons and Members of tribunals. Taking note of the serious problem of housing and the inadequate amount that was being paid as HRA to the Members, this Court in MBA-III directed enhancement of HRA to Rs.1,25,000/- per month to the Members and Rs.1,50,000/- per month to Chairperson or Vice-Chairperson or President of tribunals. This direction was made effective 61 | P a g e from 01.01.2021. The learned Amicus Curiae argued that the Union of India filed an application seeking modification of the HRA directed in the judgment. The clarification sought by the Union of India is to the effect that HRA payable to a Tribunal Member should not be a fixed amount and should, instead, be twice the HRA payable to the holder of a subsequent rank in the Government, e.g., Secretary to the Government. Miscellaneous Application No. 111 of 2021 filed by the Union of India is pending as this Court directed the Union of India to furnish details of the accommodation available for Chairpersons and Members of tribunals and to submit a proposal as to what amount would be reasonable towards HRA in case accommodation cannot be provided to Members. The learned Amicus Curiae contended that the result of the amendment is that Members of tribunals working in Delhi will get Rs.60,000/- as HRA. The second proviso to Section 184(1), read with the third proviso, is an affront to the judgment of this Court in MBA-III. By no stretch of imagination can it be said that the said provisos are a result of curative legislation. The direction issued by this Court in MBA-III for payment of HRA was to ensure that decent accommodation is provided to Tribunal Members. Such direction was issued to uphold independence of the 62 | P a g e judiciary and it cannot be subject matter of legislative response. A mandamus issued by this Court cannot be reversed by the legislature as it would amount to impermissible legislative override. Therefore, the second proviso, read with the third proviso, to Section 184(1) is declared as unconstitutional.

one lakh twenty-five thousand rupees per month.” According to the notification dated 30.06.2021, the 2021 Amendment Rules shall come into force on the date of their publication in the official gazette. However, it may be noted that the Explanatory Memorandum at the end of the notification states that Rule 6 of the 2021 Amendment Rules, amending Rule 15 of the 2020 Rules on HRA, shall be given retrospective operation with effect from 01.01.21, in order to give effect to the judgement of this Court in MBA-III. Though we have adjudicated the validity of the second and third provisos to Section 184(1) of the Finance Act, 2017, as amended by the Ordinance, we find that the amendment to Rule 15, made with retrospective effect from 01.01.21, is in conformity with the directions of this Court on the subject of HRA in MBA-III. In view thereof, no further direction is required to be given with respect to HRA.

58. To conclude, the first proviso and the second proviso, read with the third proviso, to Section 184 overriding the judgment of this Court in MBA-III in respect of fixing 50 years as minimum age for appointment and payment of HRA, Section 184(7) relating to recommendation of two names for each post by the SCSC and further, requiring the decision to be taken by the Government preferably within three months 74 | P a g e are declared to be unconstitutional. Section 184(11) prescribing tenure of four years is contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India. Though, we have upheld the proviso to Section 184(11), the appointments made to the CESTAT pursuant to the interim orders passed by this Court shall be governed by the relevant statute and the rules framed thereunder that existed prior to 26.05.2017. We have already taken notice of the notification dated 30.06.21 by way of which Rule 15 of the 2020 Rules dealing with HRA has been amended in conformity with our directions in MBA-III.