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COMPAT recruits 2nd member after a year with ex-‘liberalisation’ commerce secretary Rajeev Kher (but speed likely to remain glacial)

One more seat at the Compat table remains
One more seat at the Compat table remains

Former commerce secretary and [https://www.legallyindia.com/Law-firms/commerce-secy-rajeev-kher-will-finalise-foreign-lawyer-entry-plan-this-month-to-place-before-cabinet legal market liberalisation architect] Rajeev Kher assumed office as member at the Competition Appellate Tribunal (COMPAT) yesterday, according to its website, filling one of the two empty member posts which were last occupied at the tribunal in May 2014 and August 2014.

Kher was appointed as member on 28 September after a four to six month-long selection process involving an October 2014 advertisement inviting applications, a selection committee shortlisting three candidates for the post after interviewing all the contenders, and final interviews to select one out of the three names, confirmed a source with knowledge of the process.

A source close to COMPAT said that the change in government since last year had further delayed the selection of a member, especially after a new rule was passed requiring the selection committee to shortlist three names, and not just one, for final interview. Former corporate affairs secretary Naved Masood was speculated to be another contender for the member post this time, said the source adding that the selection committee’s shortlist of candidates was submitted confidentially at the tribunal.

Competition lawyer Pranav Mehra, who first [https://twitter.com/IndianAntitrust/status/649037292795916288 *tweeted on 29 September*] about Kher’s appointment, confirmed that Kher was on a 10-day leave post his appointment, during which there were speculations that he would join the freshly advertised chair of the Competition Commission of India (CCI). He said that no one has applied yet for the second vacant member post.

Mehra told Legally India that compared to member posts in tribunals such as the Petroleum and Natural Gas Regulatory Board (PNGRB), for which Kher was one of the dozens of contenders according to the [http://articles.economictimes.indiatimes.com/2015-07-08/news/64211623_1_commerce-secretary-rajeev-kher-natural-gas-regulatory-board-petroleum Economic Times], COMPAT paid its members less.

He said that monthly renumeration for COMPAT members was between Rs 80,000, with Rs 90,000 as dearness allowance. No facilities, other than government accommodation, was provided to COMPAT members in addition to the renumeration. This was, he said, in stark comparison to PNGRB’s Rs 4.5 lakh monthly salary coupled with facilities such as regular international travel.

Retired Supreme Court judge GS Singhvi, who is COMPAT chairman, lives in a “Class 7” government bungalow in Delhi’s Moti Bagh, while Kher is continuing to live in the residence he was allotted as a bureaucrat, at the moment.

All the difference

Justice Singhvi’s predecessor at COMPAT justice VS Sirpurkar had retired on 31 August 2014, leaving [https://www.legallyindia.com/201409295130/Bar-Bench-Litigation/compat-being-resurrected-justice-singhvi-appointed-as-chairman the tribunal completely devoid of members] until Singhvi’s appointment on 28 September 2014.

Justice Sirpurkar had been the last man standing after the 19 May 2014 retirement of member Pravin Tripathi and 20 August 2014 retirement of member Rahul Sarin.

But even before the tribunal having gone empty, there weren’t many judgments signed. A source close to COMPAT said that former bureaucrat Sarin had delivered only two judgements at COMPAT in his five-year-long career at the tribunal, and one of these judgements was challenged and set aside for lack of proper quorum at the tribunal. Tripathi had passed just one judgement, it dealt with the Monopolies and Restrictive Trade Practices (MRTP) Act 1970.

Former CCI director general KK Sharma commented that the member vacancy at the tribunal did not make much difference to the pendency of cases since it was the chairman who primarily heard them.

The source close to COMPAT was of the opinion that if anything, members could potentially slow down decisions since now the chairman will pass on the judgement he wrote to the members for their assent or dissent, before the decision could be finalised.

One competition lawyer who did not wish to be named said that unlike judicial members, competition law was an intricate subject to grasp for retired bureaucrats and they usually ended up taking time until their retirement to be fluent in applying the law to the case. The lawyer noted that even Singhvi has not written a single competition law judgement so far – the judgement he has passed at COMPAT deals with the MRTP Act.

The COMPAT source told Legally India that currently there were 10 competition law cases at COMPAT in which orders have been reserved for around six months now. He said that as opposed to competition law cases, MRTP Act cases were resolved “much faster”.

COMPAT was not reachable for comment by phone today.

Photo by William Warby / BY CC

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