UNION OF INDIA Vs. D.P. SHARMA

JUDGEMENT

(1.) The order dated 4th July, 2003 passed by the learned Central Administrative Tribunal in OA No. 292/2003 and the order dated 19th September, 2003 passed by the said Tribunal in Review Application No. 276/2003 are under challenge in this writ petition, which is filed by the Union of India. By the aforesaid order, the learned Tribunal has directed to pay to the respondent a higher pay for the period from 26th March, 2001 to 20th December, 2001 and 21st January, 2002 to 12th February, 2002.

(2.) The respondent is an officer of the Indian Legal Service. While he was working as an Additional Secretary in the Department of Legal Affairs, Ministry of Law, Justice and Company Affairs, he was appointed as a part-time Member of the Appellate Tribunal for Foreign Exchange vide order dated 21st March, 2001. The said order reads as follows :

(3.) The Parliament enacted an Act called "The Foreign Exchange Management Act, 1999". Section 2(f) of the said Act defines Chairperson to mean "Chairperson of the Appellate Tribunal" whereas Section 2(s) of the said Act defines the expression "Member" to mean "a Member of the Appellate Tribunal which includes the Chairperson thereof". An adjudicating authority is empowered under the Act to adjudge any contravention on the provisions of the aforesaid Act. The mode of appointment of the adjudicating authority is prescribed under the Act in Section 16. Section 20 lays down the provision of composition of the Appellate Tribunal. Clause (1) thereof states that the Appellate Tribunal shall consist of a Chairperson and such number of Members as the Central Government may deem fit. Section 21 of the said Act lays down the qualifications for appointment of Chairperson wherein it is provided that a person shall not be qualified for appointment as the Chairperson unless he is or has been, or is qualified to be a Judge of the High Court. So far the qualification for appointment of Member is concerned, it is laid down that a person shall not be qualified for appointment as the Member unless he is or has been, or is qualified to be a District Judge. Section 26 of the Act gives a power to a Member to act as Chairperson in certain circumstances. The said provision reads as follows :