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2001 DIGILAW 173 (HP)

Ashok Tanwar v. State Of H. P.

2001-07-30

C.K.THAKKER, K.C.SOOD

body2001
JUDGMENT : C.K. Thakker, J. This petition is filed by the petitioners as pro bono publico for a writ of quo-warranto and/or for any other appropriate writ, order or direction quashing Notifications Annexures P1 and P2 dated March 13, 2000, by which an appointment of Hon'ble Mr. Justice Surinder Sarup-respondent No.3 has been made as President of the State Consumer Disputes and Redressal Commission (hereinafter referred to as 'the State Commission'). A direction is also sought against the State of Himachal Pradesh-respondent No.1 herein to make fresh appointment to the said office after following procedure laid down by the Supreme Court. 2. The case of the petitioners is that petitioner No.1 is a permanent resident of Namol, Post Office Kunihar, Tehsil Arki, District Solan, and is a practicing advocate at Solan and is interested in proper functioning of the State Commission. Petitioner No.2 is resident of Shimla. He has retired as a Research Officer from the Department of Economics and Statistics and he is also interested in lawful administration of the State Commission. Both the petitioners are citizens of India. According to them, the appointment of respondent No.3 as President of the State Commission, was not in accordance with law and contrary to the decisions of the Supreme Court in several cases. They are, therefore, constrained to approach this Court by invoking extra ordinary jurisdiction of this Court. 3. It was stated in the petition that before the appointment of respondent No.3, Hon'ble Mr. Justice P.N. Nag (Retired) was working as President of the State Commission. After the term of Hon'ble Mr. Justice Nag was over, vide a Notification dated March 13, 2000,(Annexure P-1), the State Government decided to take the services of respondent No.3 as the President of the State Commission. It was also stated in the said Notification that respondent No.3 shall hold the post of President of the State Commission additionally in public interest with immediate effect till he attains the age of superannuation in terms of the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'). By another Notification of even ' date (Annexure P-2). By another Notification of even ' date (Annexure P-2). the State Government appointed respondent No.3 as President of the State Commission in consultation with Hon'ble the Chief ' Justice of this Court "with effect from the date he assumes the charge as such after his retirement as Judge of H.P. High Court on 20.4.2000" on the terms and conditions mentioned in the Notification. 4. The petitioners have stated that the question regarding appointment of President of the State Commission came up for consideration before the Supreme Court in Ashish Handa, Advocate v. Hon'ble The Chief Justice of High Court of Punjab & Haryana and others, (1996) 3 SCC 145 , Certain principles were formulated and guidelines were issued. An appointment of President of State Commission, therefore, has to be made as per the law laid down in Ashish Handa. In the instant case, however, appointment of respondent No.3 as President of the State Commission is null and void as it is inconsistent with the directions issued in Ashish Handa. It was also stated that respondent No.1 has acted mala fide in making appointment of respondent No.3 as President of the State Commission. Further, two Notifications simultaneously could not have been issued on March 13, 2000, as has been done and on that ground also, they are unlawful and deserve to be quashed. 5. On September 12, 2000, notice was issued by this Court. On January 2, 2001, after hearing the learned counsel for the parties as well as Mr. Ajay Mohan Goel, Advocate, for intervener in CMP No. 1724 of 200, the petition was admitted, Considering the question raised in the petition, final hearing was also fixed. Reply affidavits have been filed by respondent No.1 - State of Himachal Pradesh, respondent No. 2 - High Court of Himachal Pradesh and respondent No.3 - Hon'ble Mr. Justice Surinder Sarup, (Retd.), President of State Commission. Rejoinder is also filed by the petitions. In the affidavits, preliminary objections were raised and contentions on merits were also advanced. It was asserted by the respondents that the appointment of respondent No.3 was made in accordance with law and Notifications issued by respondent No.1 cannot be said to be illegal. It was contended by respondent No.3 that the petition is not in the nature of public interest litigation and the petitioners have no locus standi. It was, therefore, submitted that the petition deserves to be dismissed. It was contended by respondent No.3 that the petition is not in the nature of public interest litigation and the petitioners have no locus standi. It was, therefore, submitted that the petition deserves to be dismissed. 6. Before adverting to the points raised in the petition, we may refer to the relevant provisions of the Act. The Preamble of the Act declares that the Act has been enacted with a view to providing better protection of the interests of consumers by establishing Consumer Councils and other authorities for settlement of consumers disputes Section 2 defines important terms. The State Commission is defined as "Consumer Disputes Redressal Commission" established in a State. Section 9 enjoins on the State Government to establish a Consumer Disputes Redressal Commission to be known as "State Commission", by issuing a Notification. Section 16 (1)(a) enacts that each State Commission must consist of a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its president. Proviso to the said clause clarifies that no appointment of the President should be made "except after the consultation with the Chief Justice of the High Court". Clause (b) provides appointment of Members. Sub-sections (2) and (3) lay down service conditions of the Members. 7. The controversy raised in the petition is this: Whereas according to the petitioners appointment of respondent No.3 has not been made by respondent No.1 - State Government in accordance with the provisions of the Act as interpreted in Ashish Handa, the contrary submission of the respondents is that the appointment is strictly in consonance with law and in compliance with the directions issued by the Supreme Court. Both the sides referred to Ashish Handa. 8. In Ashish Handa, a practicing Advocate of the High Court of Punjab and Haryana filed a petition under Article 226 of the Constitution in the High Court challenging the appointment of Hon'ble Mr. Justice M.R. Agnihotri, a retired Judge of the said Court, as president of the Haryana State Consumer Disputes Redressal Commission. The challenge was made, inter alia, on the ground that appointment of Hon'ble Mr. Justice Agnihotri was not made in accordance with Section 16 of the Act. In view of an important question of law, the writ petition was ordered to be transferred to the Supreme Court. 9. The challenge was made, inter alia, on the ground that appointment of Hon'ble Mr. Justice Agnihotri was not made in accordance with Section 16 of the Act. In view of an important question of law, the writ petition was ordered to be transferred to the Supreme Court. 9. Considering the relevant provisions of the Act, in the light of constitutional provisions as interpreted by the Supreme Court in Supreme Court advocates-on-Records Association v. Union of India, (1993) 4 SCC 441 : (Judges II), the Apex Court observed; "The National Commission, the State Commission and the District Forum are established as the agencies for the redressal of consumer disputes by Section 9 of the Act, Section 10 of the Act provides for composition of the District Forum, Section 16 for the State Commission and Section 20 for the National commission. The scheme is that these three agencies constituted for redressal of consumer disputes as different levels have as its President a person who is, or has been a Judge at the corresponding level. This is so because the function of these agencies is primarily the adjudication of consumer disputes and, therefore, a person from the judicial branch is considered to be suitable for the office of the president. The appointment to the office of the President of the State Commission is to be made "only after consultation with the Chief Justice of the High Court" and to the office of the President of the National Commission" after consultation with the Chief Justice of India". Such a provision requiring prior consultation with the Chief Justice is obviously for the reason that he is the most suitable person to know about the suitability of the person to be appointed as the President of the Commission. The provisions in Section 16 (1) (a) for appointment of the president of the State commission and in Section 20 (1) (a) for appointment of the President of the National Commission are in pari materia and have to be similarly construed. The construction of the proviso in Section 16 (1) (a) and that in Section 20 (1) (a) must be the same because of the identity of the language. The construction of the proviso in Section 16 (1) (a) and that in Section 20 (1) (a) must be the same because of the identity of the language. The expression "after consultation with the Chief Justice of the High Court' and "after consultation with the Chief Justice of India" must be construed in the same manner as the expression " after consultation with the Chief Justice of India. The Chief Justice of the High Court" in Article 217 of the Constitution of India made in Supreme Court Advocates-on-Record Assn v. Union of India. Accordingly, the opinion of the Chief Justice of the High Court and the requirement of consultation with him according to the proviso in Section 16 (1) (a) must have the same status as that of the Chief Justice of the High Court in the appointment of a High Court Judge under Article 217 of the Constitution of India; and the process of appointment to the office of the president of the State Commission must also be similar. It is unnecessary to restate the same which is summarised in the majority opinion in the Judges-II case, this is necessary to maintain independence of the judiciary and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment."(emphasis supplied) 10. After laying down law On the point, the Court considered whether the appointment of Hon'ble Mr. Justice Agnihotri was or was not in compliance with the provisions of Section 16 (1) (a) of the Act. 11. The Court proceeded to state: "The question now is: whether there has been due compliance of the proviso to Section 16 (1) (a) of the Consumer protection Act in the present case ? The affidavit dated 9.7.1994 of Shri B.L.Gulati, Registrar of the High Court of Punjab & Haryana mentions the procedure adopted in making the appointment of Shri M.R.Agnihotri, a retired Judge of the High Court as the President of the Haryana State Commission. It is stated that the Chief Justice of the High Court of Punjab & Haryana considered the names of certain retired Judges of that High Court and ultimately gave his consent for the appointment of Shri M.R.Agnihotri as the president of the State Commission which was communicated by the Registrar to the Haryana Government on 10.6.1994, after which the appointment of Shri M.R.Agnihotri was made. In the facts of the present case, we find that there was substantial compliance of the proviso to Section 16 (1) (a) of the Act and the appointment of Shri M.R.Agnihotri was made after consultation with the Chief Justice of the High Court. However, we may add that the appropriate course to adopt, as indicated in the Judges-II case, Is for the Chief Justice of the High Court to initiate the proposal and to mention the name approved by him for appointment instead of the Chief Justice only approving the name suggested by the State Government. It appears from the affidavit of the Registrar that the Chief Justice had indicated to the State Government the proper procedure relating to initiation of the proposal for filling up the post and he has accorded his approval to the appointment of Shri M.R.Agnihotri only after considering several names, including that of Shri M.R.Agnihotri. The appointment made in the present case does not, therefore, call for any interference.' (emphasis supplied) 12. Placing strong reliance on the above observations, learned counsel for the petitioners contended that according to the Supreme Court, three agencies, i.e. National Commission, state commission and district Forum, were constituted for redressal of consumer disputes at different levels. They essentially perform functions of adjudicating consumer disputes. Persons from judicial branch were considered suitable to hold the office of President of such Commissions. Appointment to the office of President of the state commission, therefore, has to be made "only after consultation with the Chief Justice of the High Court". Such a provision of prior consultation with the Chief Justice of the High Court is obviously for the reason that he is the best person to know the suitability of an individual to be appointed as President of the Commission, The counsel further submitted that, according to the Apex Court, the expression' after consultation with the Chief Justice of the High Court' must be construed in the same manner as the expression, after consultation with the Chief Justice of India....the Chief Justice of the High court" In Article 217 of the Constitution as interpreted in Judges-II. The Supreme Court also observed that the requirement of consultation with the Chief Justice in Proviso to clause (a) of sub-section (1) of Section 16 of the Act being similar to article 217 of the Constitution of India, the principles enunciated in Judges-II would apply for initiation of proposal. 13. The Court stated: "...The requirement of consultation with the Chief Justice in the proviso to Section 16 (1) (a) and Section 20 (1) (a) of the Consumer Protection Act being similar to that in Article 217, the principles enunciated in the majority opinion in the Judges-II case must apply, as indicated earlier, even for initiating the proposal. The executive is expected to approach the Chief Justice when the appointment is to be made for taking the steps to initiate the proposal, and the procedure followed should be the same as for appointment of a High Court Judge, that would give greater credibility to the appointment made." (emphasis supplied) 14. The counsel submitted that the law is clear and explicit after the pronouncement in Ashish Handa and it is this : An appointment of the President of the State Commission must be made by the State Government as if an appointment is to be made of a Judge of the High court. For appointment of a judge of the High court, the provisions of article 217 of the Constitution are required to be complied with. 15. Relevant part of Article 217 may, therefore, be quoted: "217, appointment and conditions of the office of a Judge of a High Court.- (1) Every Judge of a High Court shall be appointed by the president by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years " 16. The above provision lays down that a Judge of a High Court may be appointed by the president of India after complying with the following formalities: (i) Consultation with the Chief Justice of India: (ii) Consultation with the governor of the State; and (iii) Consultation with the Chief Justice of the High court. 17. The above provision lays down that a Judge of a High Court may be appointed by the president of India after complying with the following formalities: (i) Consultation with the Chief Justice of India: (ii) Consultation with the governor of the State; and (iii) Consultation with the Chief Justice of the High court. 17. The counsel for the petitioner contended that appointment of a person as President to the state Commission, as ruled by the Supreme Court in Ashish Handa, has to be made in accordance with the provisions of Article 217 of the constitution. In other words, before an appointment of a sitting or retired Judge of a High court is made as the President of the state Commission, there should be consultation at three levels; firstly, consultation with the Chief Justice of India, secondly, consultation with the Governor of the state and thirdly, consultation with the Chief justice of the High Court concerned. 18. Now, in Judges-II, it has been observed that "it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in the context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion" [Para 456 (SCC)]. Similarly, it was stated; "In matters relating to appointments in the High Courts, the chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The chief Justice of India may also ascertain the views of one or more senior Judges of that high Court whose opinion, according to the chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court' [Para 478 (SCC)]. 19. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court' [Para 478 (SCC)]. 19. The word, "consultation" also came to be interpreted in various decisions including the decision in S.P. Gupta v. Union of India, (1981) Supp SCC 87 (Judges-I). In the leading judgment, Bhagwati, J. (as his Lordship then was) interpreted two expressions "President" and "Governor", to mean 'the Central Government" and "the State Government", respectively, [Para 30(SCC)]. The above observations in Judges-I have been quoted in Judges-II [Para 163(SCC)]. 20. Hence, if the submission of the learned counsel is upheld, the result would be as under: Before the appointment of respondent No.3 by respondent No.1 as the president of the State Commission, respondent No.1 ought to have consulted the Governor of the State (the State Government), (which is the appointing authority in the instant case), the Chief Justice of India (not the Chief Justice of India in his individual capacity but collectively, along with the collegium) the Chief Justice of this court (not the Chief Justice in his individual capacity, but with in collegium, that is, his two senior most colleagues) and also a Judge or Judges, who is/are in the Supreme Court who is/are likely to be conversant with the affairs of this High Court. Unless the above procedure is strictly adhered to, the appointment of respondent No.3 as the President of the State Commission cannot be held legal and lawful. 21. We may state that none of the respondents had stated before this Court that the above procedure has been followed in the instant case. And if this Court holds that appointment of respondent No.3 could be made as the President of the State Commission only after complying with the above formalities, the petition has to be allowed by quashing the appointment of respondent No.3. The question, however, is whether the above procedure was required to be followed for appointment of respondent No.3 as the President of the State Commission. 22. Learned counsel for the petitioner initially contended that all the requisites of Article 217 of the Constitution as interpreted in Judges-I and Judges-II ought to have been fulfilled stricto sensu and if there is non-observance of any of the requirements, the appointment would be illegal and inoperative. 22. Learned counsel for the petitioner initially contended that all the requisites of Article 217 of the Constitution as interpreted in Judges-I and Judges-II ought to have been fulfilled stricto sensu and if there is non-observance of any of the requirements, the appointment would be illegal and inoperative. This, according to learned counsel, has been ruled by the Supreme Court in Ashish Handa. Subsequently, however, he submitted that since in Ashish Handa, the Supreme Court considered the question of appointment of President in National Commission as well as in State Commission, it may be said that if the question pertains to the appointment of the President of National Commission, it would be obligatory for the authorities to consult the Chief Justice of India and his collegium but it may not be necessary If the appointment relates to the President of the State Commission. But the counsel maintained that the consultation with the Chief Justice of the High Court is obligatory and since the Chief Justice of the High Court means the Chief Justice and two seniormost Judges, they ought to be consulted. 23. We may also state that though it was contended by Mr.G.D. Verma, Senior Advocate, instructed by Mr Romesh Verma, appearing for respondent No.2 and Mr. K.D.Sood for respondent No.3 that it is neither the requirement of law nor such a principle could be deduced from Ashish Handa, the learned Advocate General supported Mr. Gupta on this point According to him also, an appointment of the president of the State Commission can be made by the State Government only after consultation with the Chief Justice of the High Court, that is, the Chief Justice and his two seniormost colleagues. 24. The question for our consideration is what procedure is required to be followed in the appointment of President of the State Commission. In our considered opinion, a broad contention raised by the learned counsel for the petitioners that before appointment of sitting/retired Judge of a High Court as the president of the State Commission, consultation with the Hon'ble Chief of India and his collegium, consultation with the Governor (the State Government) and taking the views of the Judge/Judges of the Supreme Court, who is/are likely to be conversant with the affairs of the High Court concerned cannot be accepted. To us, this is not the law laid down by the Supreme Court in Ashish Handa. To us, this is not the law laid down by the Supreme Court in Ashish Handa. It is also very clear from the final outcome in Ashish Handa. Had it been the requirement of law, obviously, the appointment of Hon'ble Mr.Justice Agnihotri could not have been upheld. It is well settled and leaves no room for doubt that whenever a statutes requires 'consultation'', such consultation will have to be made and total absence of consultation will vitiate the action. Consultation may not mean concurrence and even in absence of consent of a person to be consulted, an action can be taken by the authority. But if there is no consultation at all, the requirement as to consultation has not been complied with and the action would be illegal. In Ashish Handa, an affidavit, was filed by the Registrar of the High Court of Punjab & Haryana which was also been made part of the record by the present petition. In the said affidavit it was nowhere stated by the deponent that before making appointment of Hon'ble Mr.Justice Agnihotri, the Chief Justice of Indian or his collegium was consulted not it was stated that the Governor (the State Government) was consulted. Thus, the consultation with the Chief Justice of India (collectively) and the Governor (the State Government) was not there, and, yet, the Supreme Court upheld the appointment of Hon'ble Mr. Justice Agnihotri, though as per the requirement of Article 217, such a consultation ought to have been undertaken. A broad argument advanced-by the learned counsel for the petitioners, therefore, has no force and must be rejected. 25. So far as consultation with the Governor is concerned, it is not required for one more reason. The Governor of the State has been interpreted in Judges-I and reiterated in Judges-II, to mean the State Government. In the present case, the State Government is the appointing authority. To us, it is clear that the authority, which is to be consulted must be other than the appointing authority. If the contention of the petitioners is accepted, we have to hold that before the State Government appoints any sitting/retired Judge of a High Court as the President of the State Commission, it should consult the Governor (the State Government), i.e. to itself. Such interpretation, in our considered opinion, is opposed to commonsense. 26. If the contention of the petitioners is accepted, we have to hold that before the State Government appoints any sitting/retired Judge of a High Court as the President of the State Commission, it should consult the Governor (the State Government), i.e. to itself. Such interpretation, in our considered opinion, is opposed to commonsense. 26. The next argument on that count relates to consultation with the Chief Justice of this Court. It has been averred in the petition by the petitioners that as per their information before suggesting the name of respondent No.3 by the acting Chief Justice of this Court, two senior Judges had not been consulted. Respondent No.3, no doubt, has strongly objected to the above assertion of the petitioners. In the affidavit-in-reply, it was contended as to how the petitioners could make such a statement. Our attention was invited by the learned counsel to the affidavit filed by the petitioners. It was urged that the affidavit is neither in consonance with the provisions of Order 19 of the Code of Civil Procedure, 1908 nor as per Writ jurisdiction (High Court of Himachal Pradesh) Rules, 1997. Such an affidavit, according to respondent No.3, is no affidavit at all. 27. We may, however, state that the High Court has been joined as party-respondent No.2. A counter-affidavit is also filed by the Deputy Registrar(Administration) of this Court. In the said affidavit, it was stated that procedure for appointment of respondent No.3 has been followed and no fault can be found. But it is not the case of respondent No.2 that the Acting Chief Justice, before recommending the name of respondent No.3 had consulted two seniormost colleagues of this Court, we, therefore, proceed to consider the question on the assumption that the recommendation was made by the Hon'ble Acting Chief Justice of this Court for appointment of respondent No.3 as the President of State Commission without consulting two seniormost colleagues. 28. In our opinion, however, even if there is no consultation by the Hon'ble Acting Justice with two seniormost colleagues, the appointment of respondent No.3 cannot be said to be illegal or unlawful. We have already observed in earlier part of the judgment that whenever "consultation' is required, the requirement is mandatory and in the absence of "consultation", the action must be held to be illegal and unlawful. We have already observed in earlier part of the judgment that whenever "consultation' is required, the requirement is mandatory and in the absence of "consultation", the action must be held to be illegal and unlawful. Therefore, as a proposition of law, if it is held by this Court that before recommending the name of respondent No.3, the Hon'ble Acting Chief Justice ought to have consulted two seniormost colleagues, the absence of such "consultation" would invalidate the appointment of respondent No.3. In out judgment, however, this is not the requirement of the Act, nor it has been so ruled in Ashish Handa. To recall, affidavit filed by the Registrar of Punjab and Haryana High Court in Ashish Handa is on record. It was before the Apex Court also. In the said affidavit, it was nowhere stated that the Chief Justice of High Court of Punjab and Haryana had consulted his two seniormost colleagues before recommending the name of Hon'bie Mr. Justice Agnihotri. Thus, there was no consultation by the Chief Justice of the High Court with his two seniormost colleagues. If such consultation was mandatory and obligatory, the appointment of Hon'ble Mr.Justice Agnihotri could never have been held in accordance with law and the same would have been set aside. But the appointment of Hon'ble Mr.Justice Agnihotri was held legal and valid by the Supreme Court observing that there was "substantial compliance" in making the appointment. We will consider the question of substantial compliance at a later stage. At this juncture, it is sufficient to remember that in Ashish handa, it was not the case of the High Court that the Chief Justice had consulted his two seniormost colleagues before approving the name of Hon'ble Mr.Justice Agnihotri, and yet the appointment was not interfered with. 29. In our considered opinion, what has been laid down by the Supreme Court in Ashish Handa is the "process" which was required to be followed in making appointment of President in National Commission as well as in State Commission. According to the Apex Court, it must be similar to one as laid down in Article 217 of the Constitution. In other words, according to their Lordships, such process should not be initiated by the Government, but it must generate by the Judiciary. This is also clear from the facts in ashish Handa. According to the Apex Court, it must be similar to one as laid down in Article 217 of the Constitution. In other words, according to their Lordships, such process should not be initiated by the Government, but it must generate by the Judiciary. This is also clear from the facts in ashish Handa. In that case, on May 9, 1994, a letter was addressed to the Registrar of the High Court of Punjab and Haryana by the Director of Food and Supplies and Joint Secretary to Government of Haryana proposing to appoint Hon'ble Mr.Justice M.R.Agnihotri (retired) as the President of State Consumer Disputes Redressal Commission. The letter was processed by the Registry of the High Court and after considering names of Hon'ble Mr. Justice Agnihotri and other Judges, consent was given by the Chief Justice to appoint Hon'ble Mr.Justice Agnihotri, which was communicated by the Registrar to the State Government, The Supreme Court observed that the process undertaken was not proper. It could not have been started by the Government. Keeping in view the provisions of Article 217 of the Constitution as interpreted in Judges-II, the Supreme Court indicated that, it was for the Chief Justice of the High Court to initiate the proposal and to recommend the name for such appointment "instead of Chief Justice approving the name suggested by the State Government. The process followed in Ashish Handa was converse, which was not approved by the Supreme Court, In view of the fact, however, that there was application of mind by Chief Justice of High Court and after considering other names consent was given for appointment of Hon'ble Mr.Justice Agnihotri, the Apex Court held that there was "substantial compliance". The Court, hence, did not interfere with the final action. 30. Now, let us apply the principles of Ashish Handa to the facts of the present case. It is, no doubt, true and the petitioners are right in submitting that initially the State Government respondent No.1 herein did the same thing, which was done by the State of Haryana in Ashish Handa. 30. Now, let us apply the principles of Ashish Handa to the facts of the present case. It is, no doubt, true and the petitioners are right in submitting that initially the State Government respondent No.1 herein did the same thing, which was done by the State of Haryana in Ashish Handa. In the affidavit of respondent No.2, it was stated that on March 3, 2000, a letter was addressed by respondent No.1 to the Registrar General of this Court, stating therein that the State Government had decided to take the services of Hon'ble Mr.Justice Surinder Sarup, a sitting Judge of the High Court on part-time basis as the President of the State Commission and a request was made that the proposal of the State Government be placed before the Hon'ble Chief Justice for consideration and recommending the name of Hon'ble Mr.Justice Sarup as the President of the State Commission. The Communication read as under: "No. FD S-B (4)-8/96 Government Of Himachal Pradesh Department Of Food & Supplies From The FC-cum-Secretary (F&S) to the Government of Himachal Pradesh To Registrar General, Himachal Pradesh, High Court, Shimla-171001 Dated Shimla-171002, the 3rd March, 2000 Subject : Regarding filling up the post of President, H.P.State Consumer Disputes Redressal Commission. Sir, I am directed to say that Sh. P.N. Nag (Retired Judge of High Court) shall cease to hold the post of President, H.P.State Consumer Disputes Redressal Commission, Shimla on 4.3.2000 after attaining the age of 67 years. In accordance with the provisions contained in Consumer Protection Act, 1986, a person who is or has been a Judge of High Court can be appointed as President of the said Commission, after consultation with the Chief Justice of High Court. After consideration, the State Government has decided to take the services of Justice Surinder Swaroop, Sitting Judge of High Court, Himachal Pradesh for appointment as President of State Commission on part-time basis on the "terms and conditions as set out in the Consumer Protection Rules, 1988. It is, therefore, requested that the proposal of State Government may kindly be placed before the Hon'ble Chief Justice, High Court for consideration and recommending the name of Justice Surinder Swaroop of High Court for appointment as President of the Commission on part-time basis. Yours faithfully, Sd/- (S.S.Negi) FC-cum-Secretary (F & S) to Govt of Himachal Pradesh." 31. It is, therefore, requested that the proposal of State Government may kindly be placed before the Hon'ble Chief Justice, High Court for consideration and recommending the name of Justice Surinder Swaroop of High Court for appointment as President of the Commission on part-time basis. Yours faithfully, Sd/- (S.S.Negi) FC-cum-Secretary (F & S) to Govt of Himachal Pradesh." 31. As per the affidavit of the Deputy Registrar (Administration),the letter was received on the same day (on March 3, 2000). It was then stated in the affidavit: "Since defect was found in the process adopted by the State of H.P. therefore, it was conveyed that the reference as made was not in conformity with the provisions of law because the Executive is expected to approach the Hon'ble the Chief Justice when the appointment is to be made for taking steps to initiate the proposal as per the procedure followed for appointment of a High Court Judge. In turn, the State Government of H.P. made another reference.... 32. The second letter is also annexed to the affidavit-in-reply at Annexure R-2/B, which reads thus: "No FDS-B (4)-8/96 Government of Himachal Pradesh Department of Food & Supplies From The FC-cum-Secretary (Food& Supplies) to the Government of Himachal Pradesh. To The Registrar General Himachal Pradesh, High Court, Shimla-171001., Dated: Shimla-171002, the 3rd March, 2000. Subject: Regarding filling up the post of President, H.P. State Consumer Disputes Redressal Commission to the Government of Himachal Pradesh. Sir, With reference to your D.O.No: HHC/REGR.GEN/9-II/96-805 dated 3rd March, 2000. I am directed to say that Shri P.N. Nag(Retired Judge of High Court) shall cease to hold the post of president, H.P.State Consumer Disputes Redressal Commission, Shimla on 04.03.2000 after attaining the age of 67 years. In accordance with the provisions contained in Consumer Protection Act, 1986, a person who is or has been Judge of High Court can be appointed as President of the said Commission, after consultation with the Chief Justice of High Court. After consideration, the State Government has decided to take the services of Judge of High Court, Himachal Pradesh for appointment as President of the State Commission on the terms and conditions as set out in the H.P. Consumer Protection Rules, 1988. After consideration, the State Government has decided to take the services of Judge of High Court, Himachal Pradesh for appointment as President of the State Commission on the terms and conditions as set out in the H.P. Consumer Protection Rules, 1988. Therefore, Hon'ble Chief Justice may be requested to initiate process for filling up the vacancy in accordance with the provisions of the Consumer Protection Act, 1986 and the law laid down in the case of Ashish Handa Advocate-v-Hon'ble the Chief Justice of Punjab & Haryana (JT 1996 (3) SC 248) by the Hon'ble Supreme Court. You are requested to intimate the proposal/approval of the Hon'ble Chief Justice at your earliest. Yours faithfully, Sd/- (S.S. Negi) FC-cum-Secretary(F&S) to the Govt.of H.P. Shimla-171002." 33. It was further stated in the counter that upon the second reference, the matter was considered by the Hon'ble the Chief Justice for appointment of Hon'ble Mr.Justice Surinder Sarup, a sitting Judge of the Court as President of the State Commission, vide a communication Annexure R-2/C, which reads thus: "High Court Of Himachal Pradesh: Shimla No.HHC/REGR.GEN./PS/9-111/96-806 Dated March 7, 2000. From The Registrar General, High Court of Himachal pradesh, Shimla. To The Financial Commissioner-cum-Secretary(F&S) to the Govt. of Himachal Pradesh, Shimla-2 Sub: Regarding filling up the post of the President, H.P.State Consumer Disputes Redressal Commission. Sir, Jai Hind'. I am directed to refer to your letter No. FDS-B (4)/8/96 dated 3.3.2000 on the subject captioned above and to convey the recommendation of the Hon'ble the Chief Justice for appointment of Hon'ble Mr. Justice Surinder Sarup, a sitting Judge of this Court, for appointment as President of the H.P. State Consumer Disputes Redressal Commission in accordance with law. Hon'ble Mr. Justice Surinder Sarup will hold additional charge of the post of President of the Commission till his superannuation as Judge of this Court on 20.4.2000 for which the Hon'ble the Chief Justice has no objection. Therefore, further steps may be taken for appointment of Hon'ble Mr.justice Surinder Sarup as president of the Commission in accordance with law and the rules. Yours faithfully, Sd/- (R.L. Raghu) Registrar General' 34. In concluding paragraphs of the affidavit-in-reply, it was stated that the process followed was in accordance with law. 35. In our opinion, in the present case, the law laid down by the Apex Court in Ashish Handa has been adhered to. Yours faithfully, Sd/- (R.L. Raghu) Registrar General' 34. In concluding paragraphs of the affidavit-in-reply, it was stated that the process followed was in accordance with law. 35. In our opinion, in the present case, the law laid down by the Apex Court in Ashish Handa has been adhered to. True it is that initially the process was started by the Government proposing the name of respondent No.3. Respondent No.2, however, was aware of the legal position and immediately, it drew the attention of respondent No.1 that the procedure adopted by respondent No.1 was not according to law and it conveyed respondent No.1 to request the Hon'ble Chief Justice for initiation of the process for filling up the vacancy of the President in the State Commission and accordingly, another letter was addressed by respondent No. 1 to respondent No. 2. Hence, it cannot be said that the action taken either by respondent No.1 or by respondent No.2 was contrary to law or in conflict with the directions issued in Ashish Handa. 36. The question then remains regarding consultation by the Hon'ble Chief Justice of this Court with two seniormost colleagues. As we have already indicated in the earlier part of the judgment, in our considered opinion, this is not the law on the point. What has been held by the Supreme Court in Ashish Handa is, in our view, relates to process to be adopted in making such appointment, precisely for the reason even though there was no consultation by the Chief justice of High Court of Punjab and Haryana with his two seniormost colleagues in approving the name of Hon'ble Mr.justice Agnihotri, the appointment was held to be in "substantial compliance" with the provisions of the Act. Had the requirement of consultation with two seniormost colleagues by the Chief Justice of the High Court been mandatory, in the absence of such consultation with two seniormost colleagues the appointment could not have been upheld. Hence, the contention of the learned counsel for the petitioners as also the learned Advocate General had not impressed us and we are unable to uphold it. 37. The matter can be looked at from other angle as well. In the present case, respondent No.3 was a sitting Judge of this Court when his name was recommended by the Hon'ble Acting Chief Justice. 37. The matter can be looked at from other angle as well. In the present case, respondent No.3 was a sitting Judge of this Court when his name was recommended by the Hon'ble Acting Chief Justice. Even if submission of the learned counsel for the petitioners supported by the learned Advocate General is accepted that it was incumbent and obligatory on the Hon'ble Acting Chief Justice to consult two seniormost colleagues of the Court in the facts of the case, it was not necessary. In our opinion, once a person is appointed as a Judge of a High Court and is holding such office, it would not be necessary before recommending his name for appointment as the President of the State Commission to consult two seniormost colleagues. 38. There is yet another reason for taking such view. Let us assume that there is vacancy in a High Court, which is to be filled in. Obviously, the procedure under Article 217 of the Constitution has to be undertaken. Suppose after following such procedure, A is appointed as a Judge of the High Court. He holds the office for quite some time as the Judge of the High Court. Meanwhile, a proposal is made by the Sate Government for appointment of a sitting and/or retired Judge of the High Court as the President of the State Commission, Suppose A, who has been appointed strictly in accordance with law, is willing to be appointed as a President of the State Commission. Is it the requirement of law that before recommending his name by Hon'ble the Chief justice of the High Court, two seniormost colleagues must be consulted. In our opinion, the reply must be in the negative. This is not what Judges-I and Judges-II have said nor it has been so held in Ashish Handa. It may create anomalous situation as well. What will happen if at the time of his recommendation by the Hon'ble Chief Justice for the appointment of President of the State Commission, two seniormost colleagues do not agree. Interpretation canvassed by the learned counsel for the petitioners would result in dead lock. This, in our considered opinion is not the ratio in Ashish Handa. That was not the factual position in that case. Interpretation canvassed by the learned counsel for the petitioners would result in dead lock. This, in our considered opinion is not the ratio in Ashish Handa. That was not the factual position in that case. It was not the case of the Registrar of the High Court of Punjab & Haryana in the counter-affidavit that the Hon'ble Chief Justice had consulted two seniormost colleagues before approving the name of Hon'ble Mr. Justice Agnihotri. Reading the Judgment in Ashish Handa as a whole We have no doubt in our minds that what was held by the Apex Court was that before making appointment of the President of the State Commission, the executive must approach the Chief Justice and the Chief Justice of High Court should recommend the name and not the Chief Minister of the State should suggest the name. In that limited background, the Court has referred to the provisions of Article 217 of the Constitution and the decision in judges-II. as in the present case, respondent No.3 was already a sitting Judge of this Court and his name was recommended for the appointment as President of the State Commission, in our view, it was not necessary for the Hon'ble Acting Chief Justice to consult two seniormost colleagues before recommending the name of respondent No.3. The contention, therefore, has no force and cannot be accepted. 39. It was also urged that before recommending the name of respondent No. 3, the Hon'ble Chief Justice had not considered the names of other eligible persons. According to the petitioners, it was imperative on the Hon'ble Acting Chief Justice to consult and consider names of other sitting and/or retired Judges, who were eligible. Support was sought by the learned counsel on Ashish Handa. In paras 5,6 and 7 of the affidavit, the deponent had stated that Hon'ble the Chief Justice on May 24, 1994, enquired from Hon'ble Mr.Justice J.V. Gupta, a former Chief Justice of that Court, as to whether he was willing to accept the post in question so that his name could be proposed and recommended to the Government. His Lordship, however, declined. Similarly on May 29, 1994, Hon'ble the Chief Justice enquired from Hon'ble Mr.justice A.L. Bahri, a sitting Judge of that Court, who also expressed his inability to accept the proposed assignment. His Lordship, however, declined. Similarly on May 29, 1994, Hon'ble the Chief Justice enquired from Hon'ble Mr.justice A.L. Bahri, a sitting Judge of that Court, who also expressed his inability to accept the proposed assignment. The Hon'ble Chief justice then considered the name of other Hon'ble retired Judges and ultimately consented to the name of Hon'ble Mr. Justice Agnihotri and approval was communicated to the State Government on June 10, 1994. 40. The argument of the learned counsel for the petitioners is that in the instant case, the Hon'ble Acting Chief Justice had not considered any other name and the appointment of respondent No.3 is liable to be set aside on that ground. No doubt, on behalf of respondent No.3, two objections were raised against this submission. Firstly, it was contended that the petitioners cannot have personal knowledge as to who was consulted and whose names were considered. In the absence of such information or knowledge, the assertion in the petition is merely a bald statement without any supporting material/evidence. Secondly, respondent No.3 in his affidavit stated that Hon'ble the Acting Chief Justice had consulted all the sitting Judges of the High Court of Himachal pradesh for the appointment as the President of the State Commission. Except the replying respondent (respondent No.3\ the other Hon'ble Judges had declined the offer and the name of respondent No.3 was recommended. 41. Now, so far as the consideration of other names is concerned, there is nothing on record. Moreover, in the affidavit filed on behalf of respondent No.2 also, it was nowhere stated that the Hon'ble Acting Chief Justice had considered other names or consulted them. We would, therefore, proceed on the basis that other names were not considered by the Hon'ble Acting Chief Justice. But the question is, whether it was imperative on the Hon'ble acting Chief Justice to consider other names. In our opinion, there is no such requirement. Neither the provisions of the Constitution nor of the Act obliged the Hon'ble Acting Chief Justice to undertake such exercise. Even for an appointment as a Judge of the High Court, this is not the requirement. Let us assume that there is one vacancy in the High Court., which is to be filled in from Members of the Bar or from service. For such appointment, the provisions of Article 217, as interpreted in Judges-I and Judges-II, have to be followed. Even for an appointment as a Judge of the High Court, this is not the requirement. Let us assume that there is one vacancy in the High Court., which is to be filled in from Members of the Bar or from service. For such appointment, the provisions of Article 217, as interpreted in Judges-I and Judges-II, have to be followed. Now, suppose the Hon'ble Chief Justice is of the opinion that Advocate A or District and Sessions Judge B, is a fit person, who could be elevated as a Judge of the said Court. The Hon'ble the Chief Justice has to consult his two seniormost colleagues and he consults them. Suppose both of them are also of the same opinion and give in writing the that A/B is a fit person whose name can be recommended for elevation as a Judge of the High Curt. Is it necessary that Hon'ble the Chief Justice and his two seniormost colleagues must consider other names also, even though they all are of the same opinion. If the contention of the petitioners is accepted, in such cases also, unless other names are considered, name of A/B cannot be forwarded to Hon'ble the Chief Justice of India for appointment as a Judge of the High Court. This, in our opinion, is not the law on the point. It is true that in Ashish Handa, other names were considered by Hon'ble the Chief Justice of High Court of Punjab and Haryana, but that was a factual position. Since recommendation of respondent No.3 by the Hon'ble Acting Chief Justice for appointment as the President of the State Commission was not contrary to law or inconsistent with the decisions of the Supreme Court in Ashish Handa, it was not obligatory on the Hon'ble Acting Chief Justice to consider other names. 42. Finally, it was contended that two Notifications were issued by the State Government. In the First Notification, dated on March 13, 2000 (Annexure P-l), it was stated that the Governor of Himachal Pradesh was pleased to order that respondent No.3 would hold the post of President of H.P. State Consumer Disputes Redressal Commission additionally with immediate effect till he attains the age of superannuation. In the First Notification, dated on March 13, 2000 (Annexure P-l), it was stated that the Governor of Himachal Pradesh was pleased to order that respondent No.3 would hold the post of President of H.P. State Consumer Disputes Redressal Commission additionally with immediate effect till he attains the age of superannuation. By another Notification of even date (Annexure P-2), respondent No.3 was appointed as the President of the State Commission "with effect from the date he assumes the charge as such after his retirement as a Judge of H.P. High Court on 20.4.2000'. The counsel submitted that the procedure was illegal, unlawful and defective. Even if, it is assumed for the sake of argument, submitted the learned counsel, that first Notification was in consonance with law, the second Notification could not have been issued on March 13, 2000. Such notification could be issued only after April 20, 2000 since up to April 20, 2000, respondent No.3 was to hold the office of a Judge of the High Court of Himachal Pradesh. The contention is not well founded. Once, we hold that the exercise undertaken by Hon'ble the Acting Chief Justice in recommending the name of respondent No.3 was lawful and the action taken by the State Government at Annexure P-1 on March 13, 2000, is held to be legal, valid and according to law, there was no prohibition on the State Government in issuing another Notification on the same day by making appointment of respondent No.3 as regular with effect from the date he was to retire as the Judge of the High Court of Himachal Pradesh. Hence, the action cannot be termed as illegal. 43. For the foregoing reasons, we are of the view that the appointment of respondent No.3 cannot be held illegal, unlawful or contrary to law. The petition, therefore, deserves to be dismissed and is, accordingly, dismissed. But in the facts and circumstances of the case, there shall be no order as to costs.