On 6th August 2020, a Division Bench of the Uttarakhand High Court, consisting of Hon’ble Justice Ravi Malimath and Hon’ble Justice Narayan Singh Dhanik, heard the case of Tasnim Ayesha v. Union of India.
Facts of the Case
A Writ petition under Article 226 of the Constitution of India was filed in the Uttarakhand High Court by Tasnim Ayesha, a practising advocate in the District Court of Dehradun, through her lawyer Advocate Rohit Dhyani.
The petition challenged Clause 8 of the Schedule framed under Rule 3 & 4 of the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2020 as notified by the Department of Revenue, Ministry of Finance.
The notification called for changing the qualification criteria for appointment to the post of Presiding Officer of Debt Recovery Tribunal (DRT) which now only allows persons who have served as District Judge to be eligible for the appointment to the post. The earlier practice was inviting applications from advocates qualified to be a District Judge, to which this change has been made.
The primary contention raised by the Petitioner is that the new eligibility criteria are a violation of Article 14 and 16 of the Constitution of India, as well as 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“.
The Petitioner submitted that 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 a majority of DRTs across the country. She further reasoned that even in case a retired district judge applies for the post, he/she shall not be able to serve the position for a long period as the maximum age limit of the Presiding Officer is 65 years upward from the retirement age of 62 years of a District Judge.
The petitioner also cited the Court in Dheeraj Mor v. Hon’ble High Court (2020) which stated the importance of advocates being considered for judicial positions.
She further submitted that the purpose behind Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 was to ensure:
- Speedy disposal of cases with regards to the debts due to banks and financial Institutions
- That wide range of candidates can apply for the post of Presiding Officer
The petitioner also submitted that the 1993 Act was a special law enacted under Entry 45 of List I which is within the Parliament’s power to legislate in relation to banking tribunals and cannot be revoked by a general rule of a later date.
The Petitioner has asked the Court to quash the notification of the Revenue Department and withdraw the advertisement by the Finance Ministry inviting applications in terms of the notification.
Hearing the case argued by Advocate Rohit Dhyani on behalf of Tasnim Ayesha, the Division Bench of the Uttarakhand High Court has directed the Government of India to file a counter.
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