'Reappointment Is Not A Vested Right'- Gujarat HC Directs To Complete Process Of Filling NCLT Vacancies
The Gujarat High Court recently directed the Ministry of Corporate Affairs, Union of India to complete the process of filling up the vacancies, if any, in the National Company Law Tribunal (In Short, NCLT) in accordance with law and as per the direction issued by the Supreme Court in National Company Law Tribunal and Appellate Tribunal Bar Association vs. Ministry of Corporate Affairs & Ors., Writ Petition (C) No. 510/2021.
The bench of Justice N.V. Anjaria and Justice Sandeep N. Bhatt observed that "Reappointment is not a vested right for the petitioner. The petitioner's case could be at the best considered along with other aspiring candidates in accordance with law and on its own merits."
In this case, the petitioner was earlier appointed as a Judicial Member of the NCLT and held the office for a term of 5 years. The petitioner had filed the Writ Petition and had sought for issuance of writ of mandamus or certiorari or any other writ-
- to direct the respondent Ministry of Corporate Affairs, Union of India, to complete the process of reappointment of the petitioner within time period and;
- to frame rational and transparent policy giving emphasis to the legislative mandate in Section 413 of the Companies Act, 2013 in order to maintain independence of the judicial officers.
Senior Advocate Percy Kavina appeared on behalf of the petitioner and submitted that expeditious appointments stand as the bedrock for the independence of judicial institutions and emphasized on completing the process of reappointment of the petitioner as per the Circular dated July 12, 2022 I.e., the member is eligible to be reappointed after consumption of the term of 5 years subject to the maximum age limit of 65 years.
The Court noted that the appointments of Judicial Members and Technical members to NCLT have already been made and further observed that "Reappointment is not a vested right for the petitioner...Merely because the petitioner has shown her willingness to be considered, merely because she is liable to be considered and merely because she has opted for reappointment, could not be ground to seek a writ from the Court that her appointment process may be completed."
The Court further, with regard to the formation of policy, relied upon the decision of the Supreme Court in the case of the National Company Law Tribunal and Appellate Tribunal Bar Association (supra) and observed that the authorities cannot be presumed to be not alive to sub-serve the interests of NCLT and that the directions issued by the Supreme Court to complete the process of reappointment the members within two months for the smooth functioning of the NCLT.
Accordingly, the Writ petition was disposed of.
The Centre, in a similar matter related to NCLT and NCLAT vacancies had informed the Supreme Court in November last month that out of the 35 vacancies in NCLT, the process is complete for filling 15 vacancies, and the selection process for the rest 20 is underway (Misc. Application No. 1488/2021 in W.P. (C) No. 558/2021).
Cause Title- Manorama Kumari v. Union of India