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Supreme Court to hear plea against Centre’s terms for NCLT, NCLAT members

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The Supreme Court will hear the plea against the advertisement issued by the Centre for appointment of members to the National Consumer Commission & National Company Law Tribunal which prescribed appointment of advocates who have minimum 25 years of experience against the 10 years in the relevant field, alleging its violative of Article 14 and the judgments laid down by the Apex Court. 

Petitioner Dr Mahindra Bhaskar Limaye, a practicing advocate at Bombay High Court, has challenged vires of Section 3(1), 3 (7) and 5 of Tribunals Reforms Act 2021 and Tribunal (conditions of service) Rules 2021 made on 15.09.2021 framed under Section 3 of the Tribunals Reforms Act 2021, being ultra vires which infringes on Article 14 of the Constitution.

The petitioner alleges Section 3(1) of Tribunal Reforms Act, 2021, which categorically provides minimum age of 50 years to become a member in any Tribunal, such condition is arbitrary, bad in law and is a ultra vires. 

The bench of Justice D.Y. Chandrachud and Justice M.R. Shah noted, “We will place this matter before another bench in which neither of us are members. Registry may seek directions from the Chief Justice so that it may be placed before appropriate bench.”

The writ petition has been filed through Advocate-On-Record Astha Sharma who has sought directions from the Apex Court for quashing and setting aside of advertisement dated 28.10.2021 issued by Ministry of Consumer Affairs, Food and Public, for appointment of three members in National Consumer Commission and the Advertisement dated 13.10.2021 issued by the Ministry of Corporate Affairs, New Delhi for appointment of Judicial Members and Technical Members in NCLT, because as far as it being prevent the advocates who have Ten Years of minimum experience in the relevant filed from making application. 

The writ petitioner raised gravamen in the petition that exclusion of advocates whose having 10 years of experience from getting appointed as Members clearly infringes Article 14 of Constitution of India since there are eight tribunals and their rules specifies the eligibility criteria as those who possess 25 years of experience will be entitled for a Member in Tribunals. Such rules entails – Rule 6 (e) of Railways Claims Tribunal, Rule 7 (c) (ii) in Securities Appellate Tribunal, Rule 10 (b) in Telecom Dispute Appellate Tribunal, Rule 11 (c) in National Company Law Tribunal, Rule 12 (b)(iii) in National Consumer Disputes Redressal Commission, Rule 13 (c) in Electricity Appellate Tribunal, Rule 14 (c)(iii) in Armed Forces Tribunal, Rule 15 (c) (i) and (ii) in National Green Tribunal required 25 years of experience for appointment as Member.

To the contrary, leaving aside the aforementioned tribunals, in other tribunals, the Central government introduced condition of qualification of only 10 years.

Dr Limaye, a practicing advocate, states: “Advocates of more than 10 years practice but less than 25 years of practice in High Courts have categorically been excluded from the appointment of the Members in Tribunals whereas they are held to be qualified and appointed as High Court Judge as per Article 217 (2) of the Constitution of India. The said category of lawyers was also qualified in earlier provision of section 20 of Consumer Protection Act 1986. The petitioner feels that the said clause (c) is arbitrary in nature and violative of Article 14 of the Constitution of India and therefore needs to be quashed and set aside. The said clause is only aimed at bringing government servants in Tribunals for the obvious advantage of the government excluding desired and deserving advocates having practice of more than 10 years but less than 25 years.”

Furthermore, Union of India, Ministry of Personnel, Public Grievances and Pensions, Ministry of Law and Justice contravened the directions as held in Madras Bar Association case, wherein the apex court intimated Union of India to make rules for the advocates who possess 10 years of experience, should become members in Tribunals, cited the petition of Dr Limaye.

Amongst several grounds, one of the grounds specifically mentions about the proviso of Section 3(1) of Tribunal Reforms Act, 2021 which categorically provides minimum age of 50 years to become a member in any Tribunal, such condition is arbitrary, bad in law and is ultra vires. Because this condition will deprive young lawyers who otherwise are competent and knowledgeable.

“Such prescribed age limit of 50 years not only violates Article 14 of Indian Constitution but also the observations held in Madras Bar Association and connected cases thereto,” pointed out AOR Astha Sharma. 

The writ petition raises grave concern relating to appointment of experienced advocates as judicial members in the Tribunals. That first preference ought to have been given to persons who are from legal background so far as member post is concerned, states the petitioner.

“Because the said Rules 2021 have an effect of dilution of judicial character in adjudicatory positions. The Members of the Tribunals must have qualifications and experience at least equivalent to be appointed as High Court Judges. The tribunal which normally replaces the High Court must be no less independent and judicious in its composition. It is time and again held by catena of judgments by the Hon`ble Supreme Court that the Members of the Tribunals replacing any court including the High Court must possess in expertise law and shall have appropriate legal experience,” said the petition.

The petitioner cited the judgment of State of Uttar Pradesh v. All U.P. Consumer Protection Bar Association (2019) 20 SCC 724, highlighted about the stand taken by Apex Court over political interference in appointment process of Presidents/non judicial members and also in forum functioning.

In the grounds, the petitioner raises question upon the independence of Search Cum Selection Committee that amounts to excessive interference of the executive in appointment of Members and Presiding officers of Statutory Tribunals, which would be detrimental of independence of judiciary.

Such Search cum Selection Committee was constituted in Madras Bar Association case. The petitioner referred to SCAORA V.UOI judgment which held that primacy of judiciary is imperative in selection and appointment of judicial officers including Judges of High Court and Supreme Court of India.

In view of Section 101, subsection 2 (n) & (w) of the Consumer Protection Act, 2019, the Rule making power was available with the Respondent No.3, Central Government issued gazette notification on 15.07.2020 for enforcement of the Consumer Protection Act 2019 from 20.07.2020 in the country.

Dr Limaye cited the landmark judgment with respect to appointment of members in NCLT and NCLAT ,i.e. Madras Bar Association V. Union of India [(2014) 10 SCC 1] it was held by the Supreme Court that only persons with professional legal qualifications coupled with substantial experience in law were held to be competent to handle legal issues.

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