2022 (12) TMI 655 - HC - Companies Law

Independence of the judicial officers of NCLT - reappointment of the petitioner - judicial member of the National Company Law Tribunal - Section 413 of the Companies Act, 2013 - The petitioner held office for 5 years as contemplated. It appears that the petitioner sent her willingness on 02.02.2021 to continue as Member(Judicial), National Company Law Tribunal (NCLT) for another term of 5 years. HELD THAT - 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 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. While therefore, the first prayer cannot be considered, the second prayer is regarding formation of policy that the appointment shall be rational and with transparency. It has to be only stated in this regard that the 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 as above. No further direction is necessary. The prayers in the petition are not liable to be granted.

Summary

Issues:
1. Petitioner seeking writ for reappointment and framing of policy emphasizing legislative mandate.

Analysis:
1. The petitioner, a judicial member of the National Company Law Tribunal, sought a writ to direct the Ministry of Corporate Affairs to complete the process of her reappointment within the stipulated time frame. The petitioner had already served a term of five years and expressed willingness for another term. The respondent issued a circular inviting applications for judicial members with provisions for reappointment for another five-year term subject to a maximum age limit of 65 years.

2. The petitioner's senior advocate argued that timely appointments are crucial for the independence of judicial institutions. Referring to Supreme Court orders highlighting the importance of expeditious appointments to prevent delays in filling vacancies, the advocate emphasized the need for completing the reappointment process promptly. However, the respondent had already made appointments for judicial and technical members, and reappointment was not considered a vested right for the petitioner.

3. The Court acknowledged the petitioner's willingness for reappointment but clarified that this alone does not warrant a writ for completing the process. The petitioner's case should be considered along with other candidates based on merit and in accordance with the law. As vacancies arise, the authorities are expected to act in compliance with the Supreme Court's directives to ensure the smooth functioning of the National Company Law Tribunal.

4. While the first prayer for reappointment was not granted, the second prayer regarding the formulation of a rational and transparent appointment policy was deemed unnecessary as the authorities were presumed to act in the best interest of the NCLT. The Court emphasized that any available vacancies should be filled following the law and in line with the Supreme Court's directions provided in previous orders.

5. Ultimately, the Court held that the prayers in the petition were not to be granted, and the petition was not entertained for the relief sought. The judgment disposed of the petition accordingly, emphasizing the need for compliance with the Supreme Court's directives to ensure the effective functioning of the National Company Law Tribunal.