A writ petition under Article 226 of the Constitution of India has been filed in the High Court of Uttarakhand challenging the Government's notification changing the qualification criteria for appointment to the post of Presiding Officer of Debt Recovery Tribunal (DRT) which now allows only persons who have served as a District Judge to be eligible for appointment to the post. This is a change to the earlier practice of inviting applications from advocates qualified to be a District Judge.
The Revenue Department, Ministry of Finance vide its Notification 2020/MAGHA 23, 1941 dated 12 February, 2020 notified it's The Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2020 where Clause 8 of the Schedule to these Rules changes the eligibility criteria of appointment to the post of Presiding Officer as follows
A person shall not be qualified for appointment as Presiding Officer of the Debts Recovery Tribunal, unless he is, or has been, a District Judge.
The petitioner, Ms. Tasnim Ayesha, a practicing advocate in the District Court of Dehradun, submitted that this Notification of the Revenue Department as well as the advertisement of Finance Ministry inviting applications to the posts of Presiding Officers of Debt Recovery Tribunals across the country in this behalf are in violation of Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act of 1993) and Articles 14 and 16 of the Constitution of India and have impeded the fundamental and statutory right of the petitioner to get appointed to the post.
The petitioner submits that such colorable and capricious exercise of power by the Government to arbitrarily change the rules is sans any reasonable justification and discriminatory from the rules of appointments in other Tribunals that only require a certain number of years of practice as an Advocate and expertise in the particular area concerned as the eligibility criterion. She also submits that such change results in an anomaly where a practicing advocate of 7 years' experience can become a District Judge but will not be eligible for appointment to the post of the Presiding Officer of the DRT.
The primary contention raised by the Petitioner is that the new eligibility criteria is in blatant violation of Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which states that
"A person shall not be qualified for appointment as a Presiding Officer of a Tribunal unless he is, or has been, or is qualified to be, a District Judge."
In this regard, the petitioner submitted to the Court that the 1993 Act being a valid special law cannot be defeated by a rule framed under an Act of Parliament. The petitioner referred to Section 34 of the 1993 Act which states that the provisions of the 1993 Act must override any other law in force which is inconsistent with it to support her contention. She also submitted that the 1993 Act being a special law enacted under Entry 45 of List I is within the parliament's special power to legislate in relation to banking tribunals and cannot be abrogated by a general rule of a later date.
She also submitted that if the said qualification is allowed to stand, it shall defeat the very purpose for which the Act of 1993 was enacted which was for a speedy disposal of cases with regards to the debts due to banks and financial institutions as the said qualification would not attract many applications (as District Judges are unlikely to apply for it) which will lead to a vacancy in the post of a Presiding Officer in majority of DRTs across the country. She further reasons that even in case a retired district judge applies for the post, he/she shall only be able to serve the position for a very short period of time as the maximum age limit for the post of Presiding Officer is 65 years upward from the retirement age of 62 years of a District Judge.
The petitioner also cited the Supreme Court in Dheeraj Mor v. Hon'ble High Court of Delhi (2020) which stated the importance of advocates being considered for judicial positions as
The recruitment from the Bar also has a purpose behind it…There is a stream (of appointment) for in-service candidates of higher judiciary in the High Court and another stream clearly earmarked for the Bar. The members of the Bar also become experts in their field and gain expertise and have the experience of appearing in various courts.
She submitted that the purpose behind Section 5 of the Act of 1993 was also to ensure that a wide range of candidates can apply for the post of the Presiding Officer of the Debt Recovery Tribunal so that the selection committee eventually has wide and talented pool of candidates to choose from while selecting the best candidate for the job.
The petitioner has thus asked the Court to quash the notification of the Revenue Department and the advertisement by the Finance Ministry inviting applications in terms of the notification.
The constitutionality of Tribunal Rules 2020 has been challenged in the Supreme Court by Madras Bar Association.
Last month, in a similar challenge, the Madras HC, permitted lawyers to apply to the post of Presiding Officer of the Debt Recovery Tribunal, as notified vacant by the Central Government on June 23, provisionally.