Former Judicial Member Of NCLT Has No Vested Right To Reappointment: Gujarat High Court

The Gujarat High Court on Tuesday observed that a former Judicial member of the National Company Law Tribunal (NCLT) has no vested right to reappointment.

The bench of Justice N. V. Anjaria and Justice Sandeep N. Bhatt observed thus while dealing with a writ petition filed by a former Judicial Member NCLT, Ahmedabad (Ms. Manorama Kumari) seeking re-appointment to the post.

Kumari was appointed on June 1, 2016, for a term of 5 years as per Section 413 of the Companies Act, 2013, and she demitted office on June 5, 2021, as Acting President. She joined as member from bar and had been senior standing counsel of CBI in Guwahati High Court.

The case in brief

Essentially, in July 2022, the Ministry of Corporate Affairs issued a circular regarding the filling up of 8 posts of Judicial Members and 11 Posts of Technical Members in the National Company Law Tribunal. The petitioner expressed her willingness to get reappointed and appeared for interaction before Search-Cum-Selection Committee.

However, when the list of appointees was released on November 4, 2022, it didn't contain the name of any former members (who are eligible for reappointment) and only the names of new appointees appeared in the same. Thereafter, she moved the instant plea for direction to the respondent to complete the process of her reappointment in a time-bound manner.

It was her further prayer that the respondent be direcetd to frame rational and transparent policy giving emphasis to the legislative mandate in Section 413 of the Companies Act, 2013 in order to maintain the independence of the judicial officers.

It was also her submission that the mandate is that after tenure of 5 years the members are eligible for reappointment for another term of 5 years and therefore it was legitimate to seek reappointment.

Court's observations

At the outset, the Court noted that reappointment is not a vested right of the petitioner. The Court also said that merely because the petitioner had 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 petitioner's case could be at the best considered along with other aspiring candidates in accordance with law and on its own merits. Upon being queried, learned senior advocate for the petitioner stated that five persons have been seeking appointment as Members of the Tribunal. Any direction or observation in respect of the petitioner in particular to complete the process cannot be granted," the Court further held.

Regarding the prayer for the formation of policy that the appointments should be made in a transparent manner,  the Court noted that authorities cannot be presumed to be not alive to sub-serve the interests of NCLT and act in accordance with the directions of the Supreme Court.

Consequently, the bench disposed of the petition with a direction to the respondents that if at all vacancies are available to be filled up, they shall act in accordance with the law keeping in mind the directions of the Supreme Court.

Petitioner was represented by Senior advocate Percy Kavina assisted by Advocates Vishal J Dave and Nipun Singhvi.

Case title - MANORAMA KUMARI D/O. UMA SHANKAR PRASAD v. UNION OF INDIA [SPECIAL CIVIL APPLICATION NO. 23268 of 2022]

Case Citation: 2022 LiveLaw (Guj) 404

Click here To Read/Download Order