Recruitment Of 9 Judicial Members Of NCLT Challenged Before The Gujarat High Court
The notification issued by the Ministry of Corporate Affairs inviting applications for recruitment of nine judicial members at the National Company Law Tribunal at the different states has been challenged before the Gujarat High Court in a Public Interest Litigation. The PIL has been filed seeking to quash the entire recruitment process on the ground that it violates Articles 13, 14, 21 and 50 of the Constitution of India.
The PIL also challenges the vires of Section 413 (2) of the Companies Act, 2013. The petitioner has placed heavy reliance on the judgment of the Supreme Court in case of Madras Bar Association Vs. Union of India.
The matter will come up for hearing post Diwali vacation as Justice Gita Gopi, who is considering urgent cases during the ongoing Diwali vacation, has declined to hear the plea.
On Tuesday, when the matter came up for hearing, Justice Gita Gopi refused to hear the plea on the ground that the Bench doesn't have jurisdiction to hear the PIL (which is usually being heard by a two-Judge Bench). The notification issued by the Ministry on October 13 also invites applications for recruitment of six Technical Members.
The PIL filed by Nipun Singhvi, a practicing advocate, through his advocate Vishal J. Dave pleaded that such appointments shall be undertaken by the Law Ministry instead of the incumbent Ministry of Corporate Affairs. The plea also objects to the minimum age of 50 years prescribed by the ministry for the appointment.
"The Section 413 (2) of the Companies Act, 2013 and advertisement No.A-12023/1/2021-Ad.IV dated 13.10.2021 for filling up posts of Judicial Member in the National Company Law Tribunal (NCLT) issued by the Respondent No.1 is ultra vires to Articles 14, 21 and 50 of the Constitution of India," the PIL stated. Section 413(2) stipulates a minimum age of 50 years to be eiligble for the post of Judicial Member in NCLT.
It further said, "These are violative of the principles of separation of powers and independence of judiciary, apart from being contrary to the principles laid down by the Supreme Court in the case of Madras Bar Association versus Union of India & Another."
The advertisement or filling up posts of a Judicial Member in the National Company Law Tribunal fixes a minimum age limit of 50 years for appointment as Tribunal Members in view of Section 413 (2) of the Companies Act, 2013.
"This is contrary to the directions in the Madras Bar Association (2021) judgment as the Supreme Court has emphasized the need to appoint younger members in Tribunals to make their functioning strong. Also, when a person below the age of 50 years is eligible to be made a High Court judge, it is strange to keep a minimum age limit of 50 years for Tribunals," the plea stated.
It has raised a further ground that the procedure for selection is not prescribed in the notification with regard to the constitution of Search-Cum-Selection Committee for appointment to the post of judicial member in the National Company Law Tribunal in accordance with Section 412 of the Companies Act, 2013. The appointment to the post of judicial member can be done only through Search-Cum-Selection Committee.
The petitioner is also aggrieved by the fact that the notification does not provide for reservation for the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Economically Weaker Section (EWS) quota in services.
