Courts will not entertain pleas for extension of tenures when members have accepted initial appointments and when such extension would interfere with ongoing selection processes.

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J. - These proceedings under Article 32 of the Constitution have been instituted by the National Company Law Tribunal Bar Association against the Union government in the Ministry of Corporate Affairs.

2. The petitioner contends that the notification S.O. 3412 (E) dated 20 September 2019 ['impugned notification'] issued by the Ministry of Corporate Affairs appointing 28 candidates as Members of the National Company Law Tribunal['NCLT'] for a tenure of three years is contrary to the provisions of Section 413 of the Companies Act 2013. Sub-section (1) of Section 413 of the Companies Act 2013 stipulates that:

"413 Term of office of President, Chairperson and other Members.- (1) The President and every other Member of the Tribunal shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years."

Reliance is also placed on the decisions of this Court in Madras Bar Association v. Union of India, (2021) SCC Online SC 463, Madras Bar Association v. Union of India, 2021 (7) SCC 369, and Rojer Mathew v. South Indian Bank Limited., 2018 (16) SCC 341.

3. According to the petitioner, the advertisements issued by the Union government inviting applications for appointment of Judicial and Technical Members of the NCLT prescribed a tenure of five years. However, the impugned notification which was issued on 20 September 2019, prescribed a tenure of three years or until the attainment of age of 65 years, whichever is earlier.

4. The petitioner urges that on the other hand, on 28 July 2016, 11 September 2021 and 10 October 2021, notifications were issued by the Union government for the appointment of members of NCLT, each for a term of five years or until the attainment of age of 65 years, which is earlier, in line with the provisions of Section 413 of the Companies Act 2013.

5. In essence, therefore the submission which has been urged on behalf of the petitioner is that the impugned notification prescribing a tenure of three years is contrary to the provisions of Section 413(1) of the Companies Act 2013. The petitioner therefore seeks a modification of the tenure of appointment of the Members of the NCLT from three years to five years by correcting the notification of appointment.

6. Notice was issued in these proceedings on 5 April 2020.

7. On 20 June 2022, the petition came up before a Bench of this Court when the following order was passed:

"After hearing learned senior counsel appearing for the petitioner and learned Solicitor General of India, we are of the considered view that inter alia, two issues call for consideration in this matter.

Firstly, it is with respect to the question of locus standi of the petitioner Bar Association to challenge the Notification dated 20.09.2019 whereby 23 persons were appointed, which is now raised by the respondent. The second issue is with respect to the right of the appointees to continue in the post beyond the term of appointment when they, without any demur, accepted it in the year 2019 and till date did not raise any challenge against restriction of period of appointment of three years. The petitioner Association would contend that if the matter is not taken up and interim order(s) is not passed, at least some of the appointees would have to demit office owing to the expiry of the period of appointment.

Taking into account the fact that none of the appointees under the impugned Notification so far challenged the same and accepted it with open eyes, no interim order can be passed now. We are of the view that matter relating their right to continue beyond thep eriod of three years on the strength of the aforesaid notification can also be considered in the Writ Petition itself, provided the issue of locus standi is answered in favour of the petitioner.

List the matter before the appropriate Bench on 20th July, 2022."

8. The Union government has filed an affidavit in these