IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2017 BEFORE:
THE HON’BLE MR. JUSTICE G.NARENDAR W. P. No.6720/2017 [S-RES] C/W W.P. NO.5734/2017 & W. P. NO.10243/2017 IN W.P. NO.6720/2017:
BETWEEN:
ASHA SHETTY, AGED ABOUT 51 YEARS, D/O LATE KARUNAKAR SHETTY, FLAT NO.101, ‘E’ BLOCK, MANDAVI VEMARALD, VIDHAYARATHNAM NAGAR, MANIPAL, UDUPI DISTRICT-576101.
(BY SRI. SAMPAT ANAND SHETTY, ADV.) AND:
…. PETITIONER 1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOOD & CIVIL SUPPLIES & CONSUMER AFFAIRS, VIKAS SOUDHA, DR. AMBEDKAR ROAD, BANGALORE-560001.
2. KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, REPRESENTED BY ITS REGISTRAR, BASAVA BHAVAN, HIGH GROUNDS, BANGALORE-560001.
3. THE STATE OF KARNATAKA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF LAW, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BANGALORE-560001.
… RESPONDENTS (BY SRI. A.S. PONNANNA, AAG ALONG WITH SRI. E.S. INDIRESH, AGA) * * * THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT TO THE EFFECT THAT THE ENTIRE PROCEDURE AND PROCESS ADOPTED BY THE SELECTION COMMITTEE OF THE RESPONDENT AUTHORITY IN FURTHERANCE OF THE NOTIFICATION DTD: 17.06.2016 VIDE ANNEXURE-A IN THE MATTER OF SHORT LISTING 12 CANDIDATES ONLY FROM THE RETIRED DISTRICT JUDGES CATEGORY TO ATTEND THE INTERVIEW BEFORE THE CONCERNED AUTHORITY OF THE RESPONDENT, IS NOT ONLY ILLEGAL, UNJUST, ARBITRARY AND CONTRARY TO THE PURPORT AND INTENTION OF THE VERY NOTIFICATION DTD: 17.06.2016 VIS A VIS THE APPLICABLE PROVISIONS CONTAINED UNDER SECTION 10(1) (A) OF THE CONSUMER PROTECTION ACT, 1986 AS AMENDED BUT ALSO WOULD AMOUNT TO DEPRIVATION OF PRINCIPLES OF NATURAL JUSTICE IN SO FAR AS IT RELATES TO THE VERY CONSIDERATION OF THE PETITIONER'S CASE/APPLICATION FOR APPOINTMENT HAVING REGARD TO ELIGIBILITY, REQUIRED QUALIFICATION AND RICH EXPERIENCE NEEDED FOR THE POST OF THE PRESIDENT ETC.
IN W.P. NO.5734/2017: BETWEEN:
SRI. B.H. SRIHARSHA, S/O LATE B. HEGDE GOWDA, AGED ABOUT 61 YEARS, R/AT SARVAMANGALA, NEAR BSNL TOWER, YAJI COMPOUND, BELL ROAD, CHICKMAGALUR DISTRICT-5771001. (SENIOR CITIZEN NOT CLAIMED).
(BY SRI. K.A. ARIGA, ADV.) AND:
…. PETITIONER 1. THE STATE OF KARNATAKA, BY DEPARTMENT OF FOOD AND CIVIL SUPPLIES, M.S. BUILDING, AMBEDKAR VEEDHI, BANGALORE-560 001. REPRESENTED BY ITS SECRETARY.
2. KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BASAVA BHAVAN, HIGH GROUNDS, BANGALORE-560 001.
REPRESENTED BY ITS REGISTRAR, 3. DEPARTMENT OF LAW, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BANGALORE-560001.
REPRESENTED BY ITS PRINCIPAL SECRETARY, … RESPONDENTS (BY SRI. A.S. PONNANNA, AAG ALONG WITH SRI. E.S. INDIRESH, AGA) * * * THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-2 TO CONSIDER THE APPLICATION OF THE APPLICANT DATED 1.7.2016 VIDE ANNEXURE-B ETC.
IN W.P. NO.10243/2017: BETWEEN:
SMT. K. SHAMALA, W/O G. SRINIVASALU, AGED ABOUT 40 YEARS, R/AT AC STREET, GANDHINAGAR, BELLARY-583101.
(BY SRI. A. MOHAMMED TAHIR, ADV. FOR M/S. MEDINI LAW,) …. PETITIONER AND:
1. THE STATE OF KARNATAKA, DEPARTMENT OF FOOD AND CIVIL SUPPLIES M.S. BUILDING, AMBEDKAR VEEDHI, BANGALORE-560001.
REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BASAVA BHAVAN, HIGH GROUNDS, BANGALORE-01.
REPRESENTED BY ITS REGISTRAR.
3. DEPARTMENT OF LAW, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BANGALORE-560001, REPRESENTED BY ITS PRINCIPAL SECRETARY.
… RESPONDENTS (BY SRI. A.S. PONNANNA, AAG ALONG WITH SRI. E.S. INDIRESH, AGA) *** THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-2 TO CONSIDER THE APPLICATION DATED 14.07.2016 VIDE ANNEXURE-C OF THE PETITIONER BY CALLING HER FOR THE INTERVIEW ETC.
THESE WRIT PETITIONS HAVING BEEN RESERVED, COMING ON FOR PRONOUNCEMENT OF THE ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
O R D E R Petitions were heard and matters were reserved for disposal by this common order in view of the fact that the petitioners were commonly aggrieved by the selection process adopted by the selection committee envisaged and constituted in accordance with the provisions of Sub-Section 1(a) of Section 10 of the Consumer Protection Act, 1986. The facts in brief in each case are narrated separately for the sake of brevity and convenience.
FACTS IN W.P. NO.6720/2017:
2. It is the case of the petitioner that she had served as President of the Dakshina Kannada District Consumer Forum for two terms commencing from the year 2006 till the year 2016 and prior to that she had put in 16 years of practice as an Advocate and was qualified to be appointed as a District Judge as contemplated under Section 10 1(a) of Consumer Protection Act, 1986. That the petitioner is the senior most and lady president in the state with an excellent track record. That the petitioner, as President of District Consumer Forum, has disposed off several thousand cases in her tenure of 10 years, thereby demonstrating that she is in no way inferior to persons who have been appointed and officiated as district judges.
3. That in response to the notification dated 17.06.2016 she made her application to be considered to the post of President and that the respondents have ignored her rich experience as a President of the District Forum and ought not to have opted for retired district judges who have no experience in dealing with cases under the special enactment, i.e. the Consumer Protection Act, 1986.
4. That the short listing of only retired district judges for the interview that was held on 01.02.2017 is arbitrary and is contrary to the notification inviting applications. That the application of the petitioner ought to have been considered keeping in mind her qualification and her rich experience and as such denial of opportunity to the petitioner to participate in the interview is a gross illegality and procedural irregularity vitiating the selection process.
5. It is further contended that the petitioner does not claim any vested right of appointment to the post of president but at the same time, the petitioner has a vested right for consideration of her application.
6. On the above pleadings, the petitioner in the afore said writ petition has sought for the following reliefs:-
“i) issue a writ in the nature of the declaration declare that entire procedure and process adopted by the selection committee and short listing 12 candidates for interview only from the retired district judges is illegal, unjust, arbitrary and contrary to the purport and intention of the notification dated 17.06.2016 and that the same amounts to deprivation of principles of natural justice in so far as it relates to non consideration of the petitioner’s application.
ii) consequentially issue a writ in the nature of certiorari or any other appropriate writ or order or direction to quash the entire process of selection which culminated in short listing of 12 candidates who are from the retired district judge category and the same is tainted with gross procedural irregularity, arbitrariness and perversity and violative of article 14 of the Constitution of India.”
FACTS IN W.P. 5734/2017 7. That the petitioner was the erstwhile president of the Dharwad District Consumer Disputes Redressal Forum. That in response to the notification dated 17.06.2016 inviting applications from aspirants to the post of President of the District Consumer Disputes Redressal Forum, the petitioner submitted his application as he was holding the qualifications prescribed under the notification and under the Act. That despite the receipt of the application the second respondent has neither intimated the petitioner about the status and fate of the application nor has he called for an interview. On the contrary, the petitioner learnt that other applicants have been notified to appear for interview. That the second respondent has acted arbitrarily in inviting only a particular class of applicants for the interview that has been conducted and further omitting to invite the petitioner for viva. That thereby the second respondent does not followed the procedure under Sub- Section 1(a) of Section 10 of the Consumer Protection Act, 1986.
8. In the light of the above pleadings the petitioner has sought for the following relief:-
“i) Issue a writ of mandamus or any other order thereby direct the second respondent to consider the application of the applicant dated 01.07.2016 vide Annexure-B.”
FACTS IN W.P. 10243/2017.
9. That the petitioner is a practicing lawyer carrying on her practice in the District Court at Bellary. That she has put in more than 20 years of practice at the Bar and that she is eligible to be appointed under the provisions of Section 10 1(a) of Consumer Protection Act, 1986. That the respondents by notification dated 17.06.2016 invited applications from the eligible candidates to be considered to the post of President of the District Consumer Forum for the Districts of Dakshina Kannada, Dharwad, Bengaluru and Kolar. That the petitioner being eligible to hold a post made her application on 14.07.2016 and that the same has been received and acknowledged by the respondents. That the respondents though in receipt of the application have not made known to her about the status or fate of the said application. On the contrary, the second respondent has issued notices to certain other applicants to appear for the viva and despite the petitioner’s best efforts, the status of her application was not made known to her. That though the selection committee had resolved to defer the selection process till the conclusion and orders in Civil Appeal No.2740/2007, the second respondent contrary to the resolution has invited certain candidates for holding interviews. That failure to the reasons for not inviting the petitioner for interview has vitiated the process. That the respondent No.2 has given a complete go by to the mandate of Section 10 1(a) of Consumer Protection Act, 1986 that the procedure adopted by the second respondent is illegal and arbitrary. That the act of inviting a selective for the interview is reflective of high handedness and the decision of the selection committee not to invite advocates for interview despite the receipt of application from them is beyond their competence.
10. In the above pleadings, the petitioner has sought for the following reliefs:-
“Issue a writ in the nature of mandamus directing respondent No.2 to consider the application dated 14.07.2016 by calling the petitioner for an interview.”
In response to the above, the State has preferred the Statement of Objections. It is contended that the writ petition is not maintainable as no legal right of the petitioner is violated. Hence, petition is required to be rejected.
11. It is contended that the enactment came into being in order to protect the consumers and in order to enable the achievement of its object, establishment of Consumer Councils and Forums were necessitated.
12. That the appointment of members is for a term of five years and that the petitioner in the first petition who has served as President of the District Consumer Disputes Redressal Forum is not entitled for reappointment. That as per the Act the following members constitute the selection committee for selecting the President and Members of the District Consumer Redressal Forum. They are;
“1) The President, Karnataka State Consumer Disputes Redressal Commission, Bengaluru;
2) The Principal Secretary, (Law, Justice and HRD), Government of Karnataka, Bengaluru;
3) The Principal Secretary, Food, Civil Supplies & Consumer Affairs, Government of Karnataka, Bengaluru.”
13. It is submitted that in all 190 applications were received in response to the invitation. Out of which, five were rejected after scrutiny for not possessing the required qualifications and the remaining 185 applications were placed before the selection committee.
14. That the selection committee had gone through all the applications in detail in the preliminary meetings of the committee. Thereafter, the committee after deliberations decided to import into its consideration, some of the resolutions adopted during the conference of President and Secretaries in-charge of consumer affairs and held at New Delhi on 15th and 16th of March 2007 as well as on 14th & 15th of March 2009. It also decided to look into the order rendered by the High Court of Madras in the case of P. Vijayasankar vs. The Secretary, Civil Supplies & Consumer Affairs, Union Territory of Puducherry reported in 2009 SCC Online Mad 2176: (2010) 1 Mad LJ 1128. In the light of the law said down, by both, the Apex Court and High Court the selection committee adopted the guidelines issued by the National Commission for the purpose of shortlisting of candidates to interview for the purpose of selecting candidates.
15. In this process, the selection committee in its wisdom decided to first shortlist the retired District Judges, thereafter, if suitable candidates were not available, to interview candidates from among the Advocates fraternity.
16. It is further contended that out of 27 posts of Presidents, 8 are occupied by persons from the cadre of retired District Judges and the remaining 19 posts are occupied by persons from the Advocates fraternity.
17. That the selection committee decided to shortlist candidates in the ratio of 1:3 and in all 12 candidates were shortlisted for the four available posts and thereafter in the deliberations held on 05.12.2016 and 20.01.2017, the selection committee decided to issue call letters to 12 candidates to attend personal interview to be held on 01.02.2017 at 11:00 am.
18. It is contended that the reliefs sought for by the petitioner praying for consideration of the application has been rendered infructuous in view of the interview held on 01.02.2017. It is further contended that the petitioner in the first petition is not entitled for reappointment in view of the ratio laid down by the Hon’ble High Court of Madras in W.P. No.250/2015. It is contended that the said ratio laid down is after relying on the order of the Hon’ble High Court of the Punjab and Haryana rendered in the case of Gurupal Singh Rampura v. State of Punjab and Others wherein the Hon’ble Court was pleased to hold that reappointment is permissible only against the office of the Members and not to the office of the President of the District Forum.
19. The said argument is also adopted in respect of the petitioner in the second petition and it is prayed that the writ petition be rejected.
20. The learned counsel representing the petitioner in the first petition would contend that in the light of the public invitation calling for applications, the petitioner who applied in response has a legitimate right to have his application considered. He would fairly admit that the doctrine of legitimate expectation as canvassed by him has a limited application in the present facts and circumstances of the case and that the petitioner is not canvassing the point of a right vested in the petitioner to be appointed to the said post. He would contend that the principle of ‘legitimate expectation’ is applicable to the extent of having his application considered by the authorities before rejection.
He would contend that the material on record do not indicate that the application has even been considered.
21. He would further submit that the selection committee by adopting certain criteria which were not part of the public notification, have thereby changed the rules of the game at a later point of time and the same is impermissible. He would rely on a catena of decisions and firstly on the ruling reported in AIR 1984 SC 541 in the case of P.K. Ramachandra Iyer Vs. Union of India and Others. Reliance is placed on the said ruling to canvass the point that no power is vested in the selection committee to prescribe additional qualifications. The second ruling relied upon is one reported in AIR 1985 (3) SC 721 in the case of Umesh Chandra Shukla Vs. Union of India and Others. The said ruling is relied upon by the learned counsel for the petitioner in the first writ petition to contend that the fixation of criterion by selection committee is impermissible and illegal. The third ruling relied upon is AIR 1987 SC 2267 in the case of Shri. Durgacharan Misra Vs. State of Orissa and Others wherein, the Hon’ble Apex Court has disapproved the act of the selection committee prescribing minimum qualifying marks for viva-voce test and excluding candidates from the purview of viva-voce for not securing the prescribed minimum marks. The fourth ruling relied upon is 2014 (14) SCC 68 in the case of Renu & others Vs. District & Sessions Judge, Tis Hazari Courts, Delhi and another. In the said ruling the Hon’ble Apex Court has directed that there ought to be transparency in the procedure adopted for recruitment. The other ruling relied upon is AIR 2008 SC 2103 in the case of Hemani Malhotra v. High Court of Delhi & Vineeta Goyal v. High Court of Delhi, whereby, the Hon’ble Apex Court has yet again disapproved the prescribing of minimum qualifying marks for viva-voce after the completion of the written test, and it was pleased to hold that the criterion for selection ought to be stipulated prior to the commencement of the process i.e. the rules of the game ought to be made known to all concerned and cannot be altered midway.
22. The learned counsel for the second petitioner would place reliance on the ruling of the Hon’ble Apex Court rendered in the case of K. Manjusree vs. State of A.P. & Anr. Wherein, the Hon’ble Apex Court was pleased to hold that the second change by the selection committee by introduction of the criterion of minimum marks for interview amounted to changing the rule of the game after the game was played and held that the same is impermissible.
23. The reliance is placed on these rulings to canvass that the decision of the selection committee whereby it was resolved to shortlist only to retired district judges for interviewing amounts to changing the criterion for selection as the invitation to apply did not restrict applications only from that class of applicants and hence the same is impermissible in the light of the law laid down by the Hon’ble Apex Court, as it amounts to changing the rules of the game after the process has commenced. This court rejects the said contention for the following reason:-
(i) Firstly though there can be no quarrel with the law laid down by the Hon’ble Apex Court, it is necessary to examine the applicability of the said rulings to the facts and circumstances of the case.
(ii) The said rulings are distinguishable on account of the facts and circumstances obtaining in the case on hand and the facts and circumstances in the said rulings.
24. The said rulings have been rendered in the circumstances where the rules of recruitment were framed or committee had prescribed certain criterion and the prescribed criteria was made known to the applicants and thereafter the selection committee at the time of drawing up the list of candidates to be invited for viva-voce process, introduced a new criterion in the form of minimum qualifying marks or cut-off marks for the purpose of selecting the candidates. This the Hon’ble Apex Court has held is impermissible as it amounted to changing the rule of the game after the game is played. Furthermore, all the above cases involved posts which come within the purview of the service jurisprudence. In the instant case, the post is not one which can be stated to come within the purview of service jurisprudence. The other distinctive feature is that there are no recruitment rules framed in order to enable the petitioners to sustain the contention of change or alteration of prescribed criterion. Another distinctive feature which sets apart the case on hand with the facts of the cases involved in the rulings, is that the selection committee was required to make an objective assessment of the candidate based on performance in the written test and oral interviews which is not so in the instant case. In the instant case, it can be stated without fear of contradiction that the assessment involved is purely subjective, based on past records of the candidates. Hence, the reliance on the aforesaid rulings is of no avail to the petitioners.
25. Nextly, it contended by the learned counsel on behalf of the petitioner in the second writ petition is that the selection process itself is vitiated in the light of the law laid down by the Hon’ble Apex Court reported in AIR 2016 SC 5368 in the case of State of U.P. and others v. All U.P. Consumer Protection Bar Association. He would draw the attention of the court to para 13 which reads as follows:-
“13. We also direct the Union Government to frame model rules with reference to the provisions of Section 10 (1)(b) and Section 10(2) and Section 16(1)(b) and 16(2), within 4 months from today. The model rules so framed shall be placed before this Court for its approval. After the model rules are approved by this Court, the State Governments shall while exercising their rule making authority with reference to the provisions of Section 10(1)(b) and Section 16(1)(b) and with reference to the provisions of Sections 10(3) and 16(2) frame rules in conformity with the model rules. Existing rules, if any, shall have to be brought in conformity with the model rules.”
He would contend that the present exercise is in the teeth of prohibition imposed by the Hon’ble Apex Court. The said contention is without basis and requires to be rejected on the short ground that the present appointments are in exercise of powers under Section 10(1)(a) of the Consumer Protection Act. It is also relevant to state that the Hon’ble Apex Court has expressed its anguish in the light of facts placed before it, regarding the conduct of the non-judicial members and has come down with a heavy hand to prevent the recurrence of such mishaps in the appointment of non- judicial members. On the contrary, the Hon’ble Apex Court in the said ruling in paragraph 12 has interpreted the provisions of Section 24(b) of the Consumer Protection Act and held that administrative control of the State Commission vests in the President of the National Commission. In the light of the law laid down by the Hon’ble Apex Court in this regard, the other limb of argument canvassed by the petitioners that the selection committee ought not to have relied upon the reliance of the National Council also requires to be rejected.
26. As rightly pointed out by the learned Addl.
Advocate General the petitioners have no vested right of appointment and the appointments is based on the recommendation of the selection committee, which is a creature of the statute and the members are all distinguished persons. He would further contend that the writ petition itself is not maintainable in the absence of any allegations of malafides. He would also contend that the statute has left the choice of selection to the wisdom of the selection committee and it is not for this court to substitute the wisdom of the selection committee with its own expertise. He would also point out that it is also not alleged that the persons interviewed are either ineligible or incompetent. The wisdom of the selection committee cannot be called in question merely because it has given preference to one class of applicants. He would further contend that in the absence of recruitment rules, no fault can be found with the decision of the committee. In the light of the earlier discussion the above contentions are not without substance.
27. Lastly, the learned counsel for the petitioner in the second writ petition would place reliance on the ruling of the Division Bench of the High Court of judicature at Bombay in W.P. No.11716/2012 and other writ petitions. He would contend that right of reappointment is vested in the petitioners and that the non consideration of the application is violative of the rights of the applicants. Yet again, as stated supra, the instant ruling is in-applicable to the facts of the present case, as it is rendered with reference to the recruitment rules framed by the State and the ruling has been rendered with particular reference to the provisions of Rule 34 of the recruitment rules and the court was pleased to hold that the President of the District Forum can seek reappointment and in the said process he need not undergo fresh selection process. In the instant case on hand, at the cost of repetitive, no recruitment rules are framed.
28. He would also place reliance on the ruling of the Hon’ble Apex Court rendered in the case of 2008 AIR SCW 3398 in the case of Pradip J. Mehta Vs. Commissioner of Income-tax, Ahmedabad to buttress his contention that the ruling rendered by the Division Bench of the Bombay High Court requires to be considered by this bench and would rely on paragraph 24 of the said ruling wherein, the Hon’ble Apex Court has held as follows:-
“24. Although the judgements referred to above, were cited at the bar in the High Court, which were taken note of by the learned Judges of the Bench of the High Court, but without either recording its agreement or dissent answered the two questions referred to it in favour of the Revenue. Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the aforesaid judgments of the different High Courts and recorded its own reasons for its contra view. We quite see the fact that the judgments given by a High Court are not binding on the other High Courts(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Court but, in all fairness, the High Court should record its dissent with reasons therefore. The judgment of the other High Court, though not binding have persuasive value which should be taken note of and dissented from by recording its own reasons.”
29. There can be no quarrel with the law laid down by the Hon’ble Apex Court as stated supra. But it is necessary to state that this court has not omitted to consider the rulings relied on by the parties. The judgment of the Division Bench of the Bombay High Court is inapplicable to the facts and circumstances of the present case as no recruitment rules have been framed to bind the selection Committee, whereas it was otherwise in the ruling referred to. Further, this court in W.P. No.50856/2012 and connected matters has upheld the preeminence of the selection committee. The Division Bench has categorically held that the State Government shall make appointments to the post of members of the State Commission and President and Members of the District Fora on the basis of the recommendation of the selection committee as stipulated in Sub-section (1a) of Section 16 and Sub-section (1A) of Section 16 of the Consumer Protection Act respectively and thereafter proceeded to quash the notifications issued by the State Government.
30. The counsel for the petitioner in the third writ petition would submit that he adopts the arguments and submissions made by the other counsels.
31. This court has given its anxious consideration to the various facts and provisions of law adverted to by the learned counsels and in the opinion of this court the following two questions fall for determination by this court:-
(i) Whether the selection committee has considered the applications of the petitioners?
(ii) Whether the petitioners in the first and second writ petitions are entitled for reappointment as contended by them?
32. With regard to the first question, it is necessary to advert to the pleadings of the respondent-State and at paragraph 4 of the Statement of Objections, it is stated as follows:-
“4. It is submitted that totally 190 Applications are received for the Post of President of District Consumer Forum. However, out of which, five Applications were rejected for not meeting the required qualifications. The remaining 185 Applications are placed before the Selection Committee. The Selection Committee has gone through the details of all the Applications and pursuant to the same, the Committee in the Preliminary Meetings, having gone through the earlier resolution passed by the Commission in the year 2006, decided to short-list the candidates and also to hold an interview. Further, while doing so, the Committee also considered the Judgment rendered in the case of P. Vijaya Shankar Vs. Secretary, Civil Supplies and Consumer Affairs, Union Territory, Pondicherry reported in 2009 SCC online Madras 2176.” [Underlining by this Court] 33. From the above it is clear that the respondents have made a categorical assertion that all the applications were placed before the selection committee and that the selection committee has perused the applications and thereafter only decided to shortlist the candidates. This categorical assertion has not been countered by the petitioners. It is also relevant to note that the Committee has not resorted to an arbitrary manner of selection. In fact, the selection committee has devised a procedure for itself to be followed at the time of selection of the President of the District Forum. The same is produced as Annexure-R1. It was stipulated that after scrutiny, eligible applications would be placed before the selection committee. Nextly, the selection committee, if it considers necessary and depending on the number of candidates, shortlist them on the basis of experience and merit and call such short-listed candidates for personal interview. Thereafter, the Chairman of the selection committee after satisfying himself with regard to the suitability of the selected candidates would recommend their names to the Government.
34. In the instant case also, the committee after multiple rounds of deliberations and after considering the applications has resolved to shortlist only retired district judges and it has also resolved not to consider even serving judges. Hence, the proceedings reveals application of mind and sound reasoning and it cannot be termed as whimsical or arbitrary.
35. The selection committee in its wisdom has reasoned that retired district judges would be better suited to discharge duties as President of the District Forum. If that be so, this court cannot supplant the opinion of the selection committee with its own as the decision can neither be termed irrational or arbitrary or vitiated by malafides. The selection committee has also assigned reasons for adopting this course and has stated that it has resolved so on account of the resolutions adopted in the conference of the President and Secretaries organized by the National Council on 15th and 16th of March 2007 and it has also relied upon by the authoritative pronouncement by various courts including the Hon’ble Apex Court. In fact, the selection committee has relied upon the ruling rendered by the Division Bench of the Madras High Court in the case of P. Vijay Shankar Vs. Secretary and Others and W.P. No.23404/2009. The Division Bench of Madras High Court while dismissing the writ petitions was pleased to observe at paragraph 7 as follows:-
“7. In this regard, it is material to note that the National Consumer Disputes Redressal Commission has issued a directive under Section 24-B of the Act, giving precedence to the District Judges in the matter of appointments to the post of President of the District Forum. The guidelines issued by the National Commission specifically state that if serving or retired District Judges are not available, it will be open to the Selection Committee to make the appointment from amongst the advocates. This guideline has also been approved by a Division Bench of this Court in C. Lakshmi Narain v. Government of Tamil Nadu, (2008) 4 M.L.J 1. Paragrpah 10 of this judgment reads as follows:-
“10. In our opinion, the directive issued by the National Commission under Section 24-B of the Consumer Protection Act cannot be said to be contrary to the provisions of precedence should be given to the District Judges or retired District Judges having regard to the experience gained by them in discharge of their duties as judicial officer. If serving or retired District Judges are not available, it is always open to the Committee to make appointments from amongst advocates, and it is not correct to say that the advocates are excluded from consideration for the post of President of the District Fora. In our opinion, the National Commission has issued this directive keeping in view the purpose sought to be achieved by enactment of Section 10(1-A) and in the interest of better administration of the District Fora.”
36. The Division Bench has relied upon on another ruling of a co-ordinate Division Bench, of the said court itself, to hold that the directives issued by the National Commission under Section 24 (b) of the Consumer Protection Act stipulating that precedents be given to district judges in the matter of appointment to the post of President as not being contrary to the provisions of Section 10(1)(a) of the Consumer Protection Act. The finding rendered by the Division Bench in C. Lakshmirain Vs. Government of Tamil Nadu if read with the law laid down by the Hon’ble Apex Court in the case of State of U.P. and others Vs. All U.P. Consumer Protection Bar Association reported in AIR 2016 SC 5368 would obviate any detailed discussion. The issue regarding the binding nature of the advise/directives of the National Commission under Section 24 (b) of the Consumer Protection Act is no more res integra.
37. In the light of the above discussion the resolution of the selection committee to shortlist retired judges cannot be found fault with. The said resolution is neither arbitrary nor irrational nor violative of the procedures of selection adopted by it. Hence, the first question is answered against the petitioners.
38. With regard to the second question, the provisions of Section 2 (jj) and Section 10(2) of the Consumer Protection Act and Section 10 are extracted herein for the sake of convenience.
“Section 2 (jj) “member” includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be;
Section 10(2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:”
“Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub- section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee:
Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned:
Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.”
39. It is contended that as per the definition of Section 2(jj) of the CP Act, a “member” includes the President and a member of the National Commission or a State Commission or a District Forum. It is the primary submission of the petitioners in the first two writ petitions that since the definition “member” includes the President of the District Consumer Disputes Redressal forum also, they are eligible to be re-appointed for another term of 5 years or up to the age of 65 years in accordance with First Proviso to Section 10(2) of the Act. In the considered opinion of this Court, the said submission lacks substance for the following reasons.
On a perusal of the amending Act, it is seen that;
Section 10(2) of the CP Act was amended with effect from 15.03.2003, by Act No.62/2002. The Judgment reported in [II (2003) CPJ 297 (DB)] was delivered on 17.01.2002 and as per old/earlier provision, every member of the District Forum was entitled to hold the office for a period of five years or up to the age of 65 years whichever is earlier and shall not be eligible for re-appointment and hence the contention put forward by the petitioners is that they are eligible for re-appointment and it is rejected on the basis of the existing provision and in para 6 of the order, it was observed that it is for the Parliament to consider as to whether Section 10(2) needs to be amended and existing member is to be made eligible for re-appointment.
40. It is also relevant to note that when Bill No.127 of 2011, namely Consumer Protection (Amendment) Act, 2011, was introduced, wherein a suggestion has been made that person appointed as the President of the District Forum shall also be eligible for re-appointment in the manner provided under sub-section 1A of Section 10 and therefore, they are to be re-appointed as the President for another term of 5 years or up to the age of 65 years whichever is earlier.
41. It is relevant to note that a similar issue arose for consideration before the Division Bench of Punjab and Haryana High Court in Gurpal Singh Rampura v. State of Punjab and Others [CWP No.5478 of 2006 dated 01.05.2006] wherein the Hon’ble Mr.Justice J.S.Khehar [as the Hon’ble Judge then was] who authored the Judgment, after exhaustively dealing with Section 10 of the Consumer Protection Act, held that “reappointment is permissible only against the office/post of the “members” of the District Consumer Forums, and not, for the office/post of “Presidents” of the District Consumer Forums”.
A Similar contention, put forward by the petitioners herein, that the definition of Member under Section 2(jj) of the Act has been advanced before the Division Bench of the Punjab and Haryana High Court and it was repelled by observing that first proviso to Section 10(2) refers to reappointment only for those who fulfill the qualifications mentioned under Clause (b) of Sub-section (1) of Section 10 of the Consumer Protection Act and instant appointment pertains only to members of District Consumer Disputes Redressal Forum because clause (b) of Sub-section (1) of Section 10 of the Consumer Protection Act lays down qualification and other condition of eligibility only for members of the District Consumer Forums.
42. In the considered opinion of this Court, the above cited judgment is squarely applicable to the facts of this case and in the light of the ratio laid down in the said judgments, claim for re-appointment under first proviso to Section 10(2) of the Act is available/applicable only to a member and not for the post of President of the District Consumer Redressal Forum.”
43. In the light of the above discussion this court concludes as follows:-
A President of the District Forum is not entitled for seeking re-appointment or as fresh appointment, as President of the District Forum in the light of the prevailing Act and Rules.
44. In view of the above this court holds as follows:
In the light of the above discussion this court is of the considered opinion that the writ petitions are devoid of merits and liable to be rejected and are accordingly rejected.
Chs* Sd/- JUDGE