Delhi HC Issues Notice On A PIL Challenging The Notification Requiring 25 Years Of Experience In Law For Technical Members Of NCLAT

Filed by India Awake for Transparency, the plea also seeks an order declaring every action taken in pursuance of the said notification, and the appointments made thereunder, as illegal and void ab initio.

The petition mentions that the idea behind having technical members in such Tribunals was to ensure that the judicial officials get technical assistance required for the complex subject matter of specialized legislations.

Moreover, as per the decision of the Supreme Court in Madras Bar Association v. Union of India, wherein the apex court had struck down section 411(3) of the Companies Act, 2013, which laid down a requirement of 25 years of experience in law for appointment as technical members. However, the Finance Act of 2017 amended the law relating to Tribunals, and Sub-entry 3 of Entry c of Schedule 8 (Tribunal Rules) had an effect of reviving section 411(3) which was earlier struck down by the apex court.

It is further submitted that while the law was amended in 2018 to make it compliant with the order of the Supreme Court, the notification made in pursuance of Tribunal Rules of 2017 was not amended, and certain persons were appointed in line with the requirements laid down in such Rules.

In addition to this, another notification was released on 10.05.2019, for the applications for appointment to the post of Technical Members of NCLAT, setting out qualifications as per the Tribunal Rules and not as per amended section 411(3) of the Act. Therefore, as per test of eligibility laid down under the amended section, two of the three appointments made to the post of Technical Members are void.

It is, therefore, argued that continuing with such appointments, despite the decision of the Supreme Court, would raise serious questions regarding the supremacy of rule of law.