'It Excludes Advocates With 10 Years Experience' : Plea In Supreme Court Challenges Advertisements For NCDRC & NCLT Members' Appointment

A plea has been filed in Supreme Court seeking setting aside of Advertisement dated October 28, 2021 issued by the Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs for appointment of "Three Members" in National Consumer Disputes Redressal Commission, New Delhi

The writ petition also challenged the advertisement dated October 13, 2021 issued by Ministry of Corporate Affairs, New Delhi for appointment of Three Judicial Members and Two Technical Members in NCLT. The matter was listed before the bench of Justices DY Chandrachud and Surya Kant.

When the matter was taken up for hearing on Friday, Justice Chandrachud the presiding judge of the bench said that the plea will have to be listed before bench of which neither of them (Justice DY Chandrachud and Justice Surya Kant) are members.

Accordingly the bench in the order said,

"The proceedings shall be placed before the bench of which neither of us is a member. Registry shall seek directions of CJI and place the plea before the assigned bench preferably within 2 weeks."

The petition preferred by Advocate practising in subordinate court also challenged the vires of Section(s) 3(1), 3(7), 5 of the Tribunal Reforms Act, 2021 ("Act") and Tribunals {Conditions of Service} Rules 2021 ("Rules") made u/s 3 of the Act.

It was argued in the petition that if the Rules are allowed to operate in this form, then advocates having ten years of practice in India will be seriously prevented from making application for the post of Members unless they have 25 years of experience in the relevant field.

The petition also stated that there is a specific attempt to exclude the advocates having 10 years of experience from getting appointed as Members in as many as eight tribunals because as per 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.

"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 CP 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," the plea states.

Referring to the judgement(s) in Madras Bar Association Vs Union of India {MBA 2020} and Madras Bar Association Vs Union of India{MBA CASE 2021} in which directions were issued to Union of India to make rules so as to make eligible advocates with 10 years experience to become members in Tribunals, petitioner has contended that the respondents have ignored the expectations and directions issued.

It may be noted that last year the Bombay High Court had struck down the provisions in the Consumer Protection Rules to the extent they excluded advocates with 10-20 years practice from appointment as Consumer Commission members. The Supreme Court has issued notice in the Union Government's special leave petition challenging this Bombay High Court judgment. It may also be noted that the Supreme Court has also issued directions to states for the filling up of Consumer Commission vacancies, except in Maharashtra (in view of the High Court judgment).

The petition has been drawn by Advocate Dr Tushar Mandlekar and has been filed by AOR Astha Sharma.

Case Title: Mahindra Bhaskar Limayi v Union of India| WP(Civil) 1340 of 2021 

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