The selection of NCLAT Technical Members must adhere to statutory qualifications, and courts cannot substitute the decisions of expert committees unless serious misconduct is alleged.

JUDGMENT

D.N. Patel, Chief Justice (Oral)

CM APPL. Nos.21172/2021 & 32219/2021 (Exemptions)

Allowed, subject to all just exceptions.

Applications stand disposed of.

CM APPL. No.32218/2021 (Intervention)

Present application has been filed by M/s. Hasham Investment and Trading Company Private Limited seeking intervention in the present matter.

For the reasons stated in the memo of the application, this application is hereby allowed and intervention is permitted.

Application stands disposed of.

W.P.(C) 1810/2020 & CM APPL. Nos.6302/2020, 20845/2020 & 21171/2021

1. Present writ petition has been filed seeking issuance of a writ of quo warranto directing Respondent No.2 to set out the Authority under which the said Respondent is holding office as Technical Member of National Company Law Appellate Tribunal (hereinafter referred to as `NCLAT').

2. Learned counsel appearing on behalf of the Petitioner submits that the appointment of Respondent No.2 is in the teeth of the amended provision of Section 411 (3) of the COMPANIES ACT , 2013 (hereinafter referred to as the `Act'). The original provisions of Section 411 (3) of the Act provided for qualification for appointment of Technical Members of NCLAT which included a person of proven ability, integrity and standing having special knowledge and experience of not less than 25 years, in law, Industrial Finance, Industrial Management, etc. Challenge was laid to various provisions of the Act including in respect of qualification of Technical Members of NCLAT under Section 411 (3) as well as composition of Selection Committees, which was allowed by the Supreme Court in the case of Madras Bar Association vs. Union of India, (2015) 8 SCC 583 and provisions of Section 411 (3) were specifically struck down. NCLT and NCLAT were brought into existence vide Notification dated 01.06.2016 and after the Company Law Board was wound up, most of the cases pending in the High Courts were transferred to NCLT with provision of appeal before NCLAT. On 12.01.2017, a Notification was issued by Respondent No.1 for appointment of Technical Member, noting the decision of the Supreme Court in Madras Bar Association (supra) and the qualifications were amended, excluding the experience `in law'. Subsequent thereto, on 01.06.2017, the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (hereinafter referred to as `Rules, 2017') were notified which inter alia included in Eighth Schedule the earlier provisions of Section 411 (3), which were struck down. On 21.08.2017, relying on the Tribunal Rules, Respondent No.1 modified the Notification dated 12.01.2017 and the revised eligibility criteria once again included experience of not less than 25 years in law.

3. Companies (Amendment) Act, 2017 was notified as coming into force on 09.02.2018 and one of the Amendments included amendment to Section 411 (3), keeping in view the law laid down by the Hon'ble Supreme Court in Madras Bar Association (supra) and the experience `in law' was excluded. An Advertisement was issued by Respondent No.1 on 10.05.2019 inviting applications for appointments including Technical Members of NCLAT. It is contended that despite amendment to Section 411 (3) of the Act, the eligibility criteria set out was in accordance with the Tribunal Rules which too were subsequently struck down as illegal and ultra vires on 13.11.2019. In sum and substance, the primary contention of learned counsel for the Petitioner is that the appointment of Respondent No.2 as Technical Member of NCLAT is ultra vi