TMI Blog2023 (3) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... for selection. The Committee has justification, proposed that a written test should be conducted to assess the knowledge of persons who apply for posts in the District Fora. Issues of conflict of interest also arise when persons appointed from a local area are appointed to a District Forum in the same area. This Court directed that the State Governments shall frame appropriate Rules in exercise of the rule-making power Under Section 30 of the Consumer Protection Act, 1986 in accordance with the Final Draft Model Rules submitted by the Union of India. It appears that thereafter many States notified the Consumer Protection (appointment, salary, allowances and conditions of service of President and Members of the State Commission and District Forum) Rules, 2017. Rules, 2017 which were adopted provided that in every cases, the selection of Members of the District Fora and State Commission shall be on the basis of a written test of two papers (Rules 5 and 7). It appears that even the State of Maharashtra also adopted and approved the model Rules on 24.05.2019 and framed Rules, 2019 which had a written examination of 200 marks - the High Court in the impugned judgment and order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd violative of Article 14 of the Constitution of India - The qualifying marks in each paper shall be 50 per cent and there shall be viva voce of 50 marks. Therefore, marks to be allotted out of 250, which shall consist of a written test consisting two papers, each of 100 marks and the 50 marks on the basis of viva voce. Petition disposed off. - Civil Appeal No. 831 of 2023 (Arising out of SLP (C) No. 19492 of 2021), Civil Appeal Nos. 832 and 833 of 2023 - - - Dated:- 3-3-2023 - Hon'ble Judges M.R. Shah and M.M. Sundresh, JJ. For Appearing Parties: Siddharth Dharmadhikari, Adv., Aaditya Aniruddha Pande, AOR, Bharat Bagla, Sourav Singh, Advs., Amrish Kumar, Astha Sharma, AORs, Tushar Mandlekar, Srisatya Mohanty, Sanjeev Kaushik, Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Devvrat Singh, Muskan Surana, Bhanu Mishra, Uday Prakash Warunjikar, Mrunalini Uday Wsarunjikar, Deval Anju, Pravartak Suhas Pathak, Advs., Ankita Chaudhary, AOR, Yatin M. Jagtap, Adv., Sunil Kumar Sharma, Lambat Legiteam, AORs, Kashmira Lambat, Adv., Rameshwar Prasad Goyal, AOR and Gagan Sanghi, Adv. JUDGMENT M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) were the subject matter of challenge before the High Court being unconstitutional, arbitrary and violative of Article 14 of the Constitution of India. Rule 3, Rule 4, and Rule 6 reads as under: 3. Qualifications for appointment of President and members of the State Commission .-(1) A person shall not be qualified for appointment as President, unless he is, or has been, a Judge of the High Court; (2) A person shall not be qualified for appointment as a member unless he is of not less than forty years of age and possesses-- (a) an experience of at least ten years as presiding officer of a district court or of any tribunal at equivalent level or combined service as such in the district court and tribunal: Provided that not more than fifty percent of such members shall be appointed; or (b) a bachelor's degree from a recognised university and is a person of ability, integrity and standing, and has special knowledge and professional experience of not less than twenty years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public healt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last date specified for receipt of such applications, a list of eligible candidates along with their applications shall be placed before the Selection Committee. (8) The Selection Committee shall consider all the applications of eligible applicants referred to it and if it considers necessary, it may shortlist the applicants in accordance with such criteria as it may decide. (9) The Selection Committee shall determine its procedure for making its recommendation keeping in view the requirements of the State Commission or the District Commission and after taking into account the suitability, record of past performance, integrity and adjudicatory experience. (10) The Selection committee shall recommend a panel of names of candidates for appointment in the order of merit for the consideration of the State Government. (11) The State Government shall verify or cause to be verified the credentials and antecedents of the recommended candidates. (12) Every appointment of a President or member shall be subject to submission of a certificate of physical fitness as indicated in the annexure appended to these rules, duly signed by a civil surgeon or District Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um) Rules, 2017 (hereinafter referred to as the Rules, 2017) on 18.05.2018. It was submitted that model Rules 2012 were already in existence in the State of Maharashtra made on 03.01.2012 Under Section 30 of the Consumer Protection Act, 1986 and the said Rules already had the provision of written examination of 100 marks for aspiring candidates/applicants for the post of President and Members of District Consumer Forum Under Rule 10. It was submitted that the Consumer Protection Act, 2019 (hereinafter referred to as the Act, 2019) came into force with effect from 20.07.2020 by repealing the erstwhile statute Consumer Protection Act, 1986. It was also argued on behalf of the original writ Petitioners that under the Rules 2020, the power conferred upon the Selection Committee to determine its own procedure for selection of President and Members of the District and the State Commission constituted under the Act, 2019 is in contravention of the decision of this Court in the case of UPCPBA (supra). It was also argued on behalf of the original writ Petitioners that looking at the judicial functions to be performed by President and Members of the District and State Commissions constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable and violative of Article 14 of the Constitution of India for the reasons recorded herein above and hence are quashed and set aside; iv. The Union of India is directed to provide for appropriately made Rules as substitutes for Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020, declared unconstitutional, keeping in view the observations made in the judgment, within four weeks from the date of the judgment and order; v. The vacancy notice dated 2nd February, 2021 issued by the Respondent No. 2 for inviting applications for the post of Members of the State Commission and President and Members of the District Commission, is hereby quashed and set aside; vi. The process of selection of Members of the State Commission and President and the Members of the District Commission, initiated in pursuance to the vacancy notice dated 2nd February, 2021, stands cancelled; vii. Fresh process of selection of members of the State Commission, President and the members of the District Commission be initiated in accordance with the amended Rules and completed at the earliest as directed by the Hon'ble Supreme Court of India; viii. It is made clear that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, and successful persons aged over thirty five or forty or even fifty may not be willing to write a written examination and then have their marks published openly, which would dissuade a large number of people who may be desirable from applying. (iv) Persons with experience of fifteen or twenty years may no longer have the requisite examination giving skills, and a written examination may unduly favour academics or researchers as opposed to people who are in the field practically or in a corporate environment or in some other non academic field. (v) Conducting a written examination may lengthen the entire process of appointment, which already takes 4-6 months on account of the requirement of advertisement, public notice, receipt of applications and verification of documents, IB inputs, tax and medical reports, and then a personal interaction with the Selection Committee. This may end up increasing the number of vacancies in the tribunals, which is not desirable. (vi) Prescribing a uniform requirement of a written examination across states would fail to take into account the local requirements of each state - for instance, the number of applications received in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted: a. The selection of a candidate for appointment as the President or member in the State Commission or the District Commission may be based on the marks secured by him, out of a total of 100 marks. The total marks (100) may be the sum of; (i) 60 marks for an interview; and, (ii) 40 marks for certain special achievements of a candidate. b. The aforesaid formulation, if found in order by this Hon'ble Court, can be treated as an instruction under the above said proviso. c. The rationale behind the proposed distribution of marks in such a way where the interview component would outweigh the other, is to ensure the selection of the most suitable candidate, given the level of the posts and duties attached thereto. d. The distribution of 40 marks for special achievements may be considered as under: S. No. Criteria Maximum Marks Marking System 1. Number of years of experience 15 (i) For the minimum number of years of experience required in terms of the rules governing the recruitment conditions 10 mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able, and violative of Article 14 of the Constitution of India, it is submitted as under: (a) That the selection method Under Rules, 2020 confers uncontrolled discretion and excessive power to the selection committee to determine its procedure to recommend candidates to be appointed is arbitrary, unreasonable and in violation of Article 14 of the Constitution of India; (b) Considering the nature of work, the candidate's competency needs to be tested before being recommended for the appointment to discharge judicial functions; (c) In the absence of the appointment of competent candidates, the object of the Consumer Protection Act is likely to be frustrated; (d) The president and members of the State and District Commission are empowered with the powers of the Court. In the appointment of Judicial Magistrate First Class, when the candidates are tested by written examination and viva voce, the similar procedure to be adopted for appointment in the District and State Commissions; (e) The transparency and selection criteria are absent in the Rules, 2020; (g) In absence of transparency in the matter of appointments of Chairman and Members, there is strong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 20.07.2020 by repealing the erstwhile statute Consumer Protection Act, 1986. It is submitted that the sole intention of the legislature is to provide adequate safeguards to the consumers due to drastic changes in the modern market and the constantly emerging vulnerability of the consumers. Under the Act, 2019, the pecuniary jurisdictions of the District and State Commissions are enhanced substantially. However, there is no substantial change in the scheme with respect to the adjudication of the consumer disputes. Therefore, consumer commissions are quasi-judicial authorities empowered to discharge judicial functions with the adequate powers of the court, including civil and criminal. 4.6. It is submitted that Under Section 71 of the Act, 2019, the Commissions are empowered with the powers of the civil court and Under Section 72, the Commissions are empowered with the powers of JMFC. It is submitted that despite the above when the Rules, 2020 are framed by the Central Government in exercise of powers Under Section 101 of the Act, 2019 which provides for the impugned Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) made the things worse than the prevailing, prior to Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted that the Rules, 2020 as such nullify the judgment of this Court in the case of UPCPBA (supra). 4.12. It is submitted that as observed and held by this Court in the case of Madras Bar Association v. Union of India and Anr.; (2021 SCC OnLine SC 463) in Writ Petition (C) No. 502/2021 decided on 14.07.2021 that the permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the catena of decision which are as under: 44. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under: a) The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. b) The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is different and distinct. The person can be qualified to be a President if he is or has been a judge of High Court. However, in order to get appointment as a Member of State Commission the Rule 3(2)(b) mandates a minimum experience of 15 years, which is illegal and violative of Article 14, because the requirement of qualification and experience of a lawyer to get appointed as a High Court Judge is only ten years as per Article 217 of the Constitution of India. It is submitted that therefore, the High Court has rightly declared that Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of Rules, 2020 as ultra-virus, arbitrary and violative of the Article 14 of the Constitution of India. It is submitted that while holding so the High Court has discussed and considered the decision of this Court in the case of Madras Bar Association (supra) : (2021) 7 SCC 369. 4.16. Making the above submissions and relying upon the above decisions, it is prayed to dismiss the present appeals. 5. Heard Shri R. Venkataramani, learned Attorney General for India, appearing on behalf of the Appellant(s) and Dr. Uday Prakash Warunjikar and Dr. Tushar Mandalekar, learned Counsel appearing on behalf of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly, the decision in the case of UPCPBA (supra) which was under the Consumer Protection Act, 1986 is required to be referred to. The issue with respect to the conditions of eligibility for appointment of non-judicial members was one of the issues before this Court in the case of UPCPBA (supra). This Court earlier constituted a committee presided over by Mr. Justice Arijit Pasayat, a former Judge of this Court to examine various issues including the conditions of eligibility for appointment of non-judicial members. The Committee in its interim report observed that the Fora constituted under the Consumer Protection Act, 1986 do not function as effectively as expected due to a poor organizational set-up; grossly inadequate infrastructure; absence of adequate and trained manpower and lack of qualified members in the adjudicating bodies. This Court in paragraphs 4 to 6 noted and observed as under: 4. The quality of presiding members, especially of non-judicial members at the State and district levels is poor. One of the reasons is that the remuneration which is being paid to non-judicial members of consumer fora varies from State to State and is too meagre to attract qualif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wife of a bureaucrat was appointed for District Forum, Baghpat but was attached/posted at Greater Noida. These few instances make it crystal clear that there is definite political influence and interference and in such a scenario, the work of District Consumer Fora is affected as it results in lowering the morale of the President. (17) In Haryana, a non-Judicial Woman Member did/does not attend the District Forum regularly, as she has to travel around 150/160 km every day. The President of one District Forum who happens to be former President of Bar Association has been serving the second term as President. Such non-Judicial Members manage to get selected and then misuse their position as Members, as they call themselves Judges . 6. The selection of persons as Presiding Officers and as Members of the fora lacks transparency without a fixed criteria for selection. The Committee has, in our view with justification, proposed that a written test should be conducted to assess the knowledge of persons who apply for posts in the District Fora. Issues of conflict of interest also arise when persons appointed from a local area are appointed to a District Forum in the same area. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 State of Uttar Pradesh v. All Uttar Pradesh Consumer Protection Bar Association - Civil Appeal No. 2740/2007 reported in (2018) 7 SCC 423 , this Court considered the draft model Rules which were framed by the Union of India. Before this Court the model Rules came to be accepted by the counsel representing all the parties before the Court. Therefore, this Court directed that the State Governments shall frame appropriate Rules in exercise of the rule-making power Under Section 30 of the Consumer Protection Act, 1986 in accordance with the Final Draft Model Rules submitted by the Union of India. It appears that thereafter many States notified the Consumer Protection (appointment, salary, allowances and conditions of service of President and Members of the State Commission and District Forum) Rules, 2017. Rules, 2017 which were adopted provided that in every cases, the selection of Members of the District Fora and State Commission shall be on the basis of a written test of two papers (Rules 5 and 7). It appears that even the State of Maharashtra also adopted and approved the model Rules on 24.05.2019 and framed Rules, 2019 which had a written examination of 200 marks. It provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay annual cash bonus. As long as the judgment of the learned single Judge is not reversed in appeal, it cannot be disregarded or ignored. The LIC was held to be bound by the writ of mandamus issued by the Calcutta High Court. Justice Beg, in his concurrent opinion, held that the rights which accrued to the employees on the basis of the mandamus issued by the High Court cannot be taken away either directly or indirectly by subsequent legislation. Thereafter, Madan Mohan Pathak (supra) came up for discussion in Sri Ranga Match Industries v. Union of India 1994 Supp (2) SCC 726. Justice Jeevan Reddy was of the opinion that the Madan Mohan Pathak case cannot be treated as an authority for the proposition that mandamus cannot be set aside by a legislative act. Justice Hansaria was not in agreement with such view. Relying upon the judgment of this Court in A.V. Nachane v. Union of India (1982) 1 SCC 205, Justice Hansaria held that the legal stand taken by Justice Beg in the Madan Mohan Pathak case had received majority's endorsement and it was because of this that retrospectivity given to the relevant Rule assailed in A.V. Nachane was held to have nullified the effect of the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. c) Nullification of mandamus by an enactment would be impermissible legislative exercise [See: S.R. Bhagwat (supra)]. Even interim directions cannot be reversed by a legislative veto [See : Cauvery Water Disputes Tribunal (supra) and Medical Council of India v. State of Kerala (2019) 13 SCC 185]. d) Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the Rule of law and of Article 14 of the Constitution of India . 6.3. In the said decision, this Court struck down and declared that first proviso to Section 184(1) of the Finance Act, 2017, which provided for 50 years minimum age for appointment as Chairman or Member as unconstitutional by observing that the said first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgment of this Court in the case of Madras Bar Association v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment. The Rules, 2020 do not contemplate written examination so as to test the merits of the candidate. In the case of UPCPBA (supra), this Court expressed deep concern over the bureaucratic and political interference in process of appointments. 6.6. At this stage, it is required to be noted that mechanism of having written examination was confirmed by this Court which has been removed under the new Rules, 2020. 6.7. At this stage, it is required to be noted that earlier under Consumer Protection Act, 1986, there were Rules, 2017 in so far as some of the States are concerned and Rules, 2019 so far as the State of Maharashtra is concerned, which provided for a written examination and viva voce, which was under the Consumer Protection Act, 1986. 6.8. The Consumer Protection Act, 1986 has been repealed and the Consumer Protection Act, 2019 has come into force w.e.f. 24.07.2020 with a sole intention to provide adequate safeguards to the consumers and the pecuniary jurisdiction of the District Fora and State Commissions are enhanced substantially. However, there is no substantial change in the scheme with respect to the adjudication of the consumer disputes. No justification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, we see no reason to interfere with the impugned judgment and order passed by the High Court declaring Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 as arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The Central Government and the concerned State Governments have to amend Rules, 2020, more particularly, Rule 6(9) of the Rules, 2020, providing that the Selection Committee shall follow the procedure for appointment as per Model Rules, 2017 and to make the appointment of President and Members of the State Commission and the District Commission on the basis of the performance in written test consisting of two papers of 100 marks each and 50 marks for viva voce and the written test consisting of two papers may be as per the following schemes: Paper Topics Nature of test Max.marks Duration Paper I (a) General K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 142 of the Constitution of India that for appointment of President and Members of the State Commission and District Commission, the appointment shall be made on the basis of performance in written test consisting of two papers as per the following scheme: Paper Topics Nature of test Max.marks Duration Paper I (a) General Knowledge and current affairs (b) Knowledge of Constitution of India (c) Knowledge of various Consumers related Laws as indicated in the Schedule Objective Type 100 2 hours Paper-II (a) One Essay on topics chosen from issues on trade and commerce consumer related issues or Public Affairs. (b) One case study of a consumer case for testing the abilities of analysis and cogent drafting of orders. Descriptive type 100 3 hours 8.2. The qualifying marks in each paper shall be 50 per cent and there shall be viva voce of 50 marks. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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