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Gujarat High Court · body

2009 DIGILAW 448 (GUJ)

State of Gujarat v. Meenaben J. Dharmani

2009-07-10

AKIL KURESHI, K.S.RADHAKRISHNAN

body2009
Judgment K.S. Radhakrishnan, CJ.—The question that has come up for consideration in these cases is ‘whether the State Government has properly exercised its statutory powers conferred on it under Clause (b) of Section 9 read with Section 10(1)(b) of the Consumer Protection Act, 1986 (for short ‘the Act’), while appointing Members of District Consumer Disputes Redressal Forums, in the districts of Jamnagar, Kutch and Junagadh’. 2. The State Consumer Disputes Redressal Commission has invited applications for filling up various vacancies that arose in the District Consumer Disputes Redressal Forums (for short ‘District Forums’) , such as, Jamnagar, Kutch, Junagadh, Vadodara, etc. Several persons applied including the petitioners in Special Civil Applications Nos. 11974, 12977 & 9023 all of 2007, of which, petitioners in Special Civil Applications Nos. 11974 & 9023 of 2007 had earlier been functioning as Members of the District Forums at Jamnagar and Kutch. 3. Selection Committee, consisting of the President of Consumer Disputes Redressal Commission (for short ‘CDRC’) as Chairman, Principal Secretary, FCS & CA Department, and Secretary, Legal Department as Members, met on 22.11.2006 and interviewed various candidates for selecting suitable candidates for appointment as Members of the District Forum, Jamnagar. The Committee could not find out a suitable male member. Consequently, the Committee unanimously decided to recommend the names of two female candidates for appointment as Members of the District Forum, Jamnagar. Two candidates were shown in the merit lists and two other candidates were shown in the waiting list, and the recommendation was forwarded to the State Government. Petitioner in Special Civil Application No. 11974 of 2007 was first in the merit list and respondent No. 3 was first in the waiting list. 4. Selection Committee for filling in the vacancy of Member of District Forum, Kachchh, consisting of President, CDRC as Chairman and In-charge Secretary, Legal Department as Member, met on 06.1.2007 for selecting suitable candidates for appointment as Member of CDRC, as well as Female Member of the District Forum, Kachchh. Committee unanimously decided to recommend the name of the petitioner in Special Civil Application No. 9023 of 2007 and the 3rd respondent was shown as first in the waiting list, and the recommendation was forwarded to the State Government. 5. Selection Committee for filling up the posts of Members in the District Forum, Junagadh, met on 21.11.2006 and recommended the name of one Mrs. 5. Selection Committee for filling up the posts of Members in the District Forum, Junagadh, met on 21.11.2006 and recommended the name of one Mrs. Savitri Ashritnath Nathji for appointment as Female Member in the Forum. Petitioner in Special Civil Application No. 12977 of 2007 was shown as first in the waiting list and the 4th respondent was shown as second wait listed candidate, and the recommendation was forwarded to the State Government. Selection Committee for filling up the post of Members of District Forum, Vadodara, met on 01.09.2007 and unanimously decided to recommend the names of two candidates as Members, and the recommendation was forwarded to the State Government. 6. State Government considered the recommendations forwarded by the Selection Committees for filling up the posts of Members of the District Forums of Jamnagar, Kuchchh, Junagadh, Vadodara, etc. State Government instead of appointing the petitioner in SCA 11974/07 who stood first in the merit list, appointed the 3rd respondent who stood first in the wait list as Member of District Forum, Jamnagar. State Government also did not appoint the petitioner in SCA 9023/07, who stood first in the merit list, but appointed the 3rd respondent who stood first in the wait list as Member of District Forum, Kachchh. Similarly, State Government also did not appoint the petitioner in SCA 12977/07 who stood first in the wait list, and appointed the 4th respondent who stood second in the wait list as Member of District Forum, Junagadh. Petitioner in SCA 19512/07 did not figure in the list of candidates recommended by the Selection Committee to the State Government, but has approached this Court seeking a writ of mandamus to the State Government to appoint her as Member of District Forum, Vadodara, for a further period of four years and also sought for stay and implementation of any further proceedings pursuant to public notice dated 27.07.2007 issued by respondent No. 2 calling for applications for filing up the post of Member of District Forum, Vadodara. 7. Petitioners in SCAs Nos. 9023 & 11974 of 2007 contented that there is no justification in ignoring the candidates who figured first in the merit list forwarded by the Selection Committee to the Government and then appointing persons who figured in the waiting list as Members of the District Forums. 7. Petitioners in SCAs Nos. 9023 & 11974 of 2007 contented that there is no justification in ignoring the candidates who figured first in the merit list forwarded by the Selection Committee to the Government and then appointing persons who figured in the waiting list as Members of the District Forums. Petitioners also submitted that the State Government has no power to overlook the recommendations made by the Selection Committee and pick and choose candidates of their choice, and thereby fill up the posts of Members of District Forums. Learned counsel for the petitioners submitted that the action of the State Government is illegal, arbitrary and in clear violation of Section 10(1A) of the Consumer Protection Act, 1986. 8. Petitioners also submitted that the State Government is duty-bound to accept the recommendations of the Selection Committees and have no power to deviate from the recommendations made by the Selection Committees. Petitioners also submitted that if the State Government entertains any doubt about the suitability of the candidates recommended, the same should have been made it known to the Selection Committees and the Selection Committees may take a final decision on their suitability. Petitioners also submitted that they are eligible for reappointment for a term of five years once their names have been recommended by the Selection Committee. 9. Petitioner in SCA 12977/07 submitted that the State Government has committed a gross error in ignoring the petitioner’s name as shown first in the waiting list for appointment as Member of the District Forum. Petitioner submitted that persons who are ranked first in the merit list did not join and consequently, petitioner, who stood first in the wait list, should have been offered appointment as Member of the District Forum, Junagadh. Petitioner submitted that the action of the State Government in appointing the second wait listed person as Member of the District Forum, Junagadh, is illegal, arbitrary and violative of Article 14 of the Constitution of India. 10. Petitioner in SCA No. 19512/07 submitted that she had earlier functioned as a Member of the Forum for five years and her name was again recommended for one more year and she has functioned for one more year. Petitioner later made an application on 02.01.2007 for her reappointment so that she could continue for a further period of four years. Petitioner in SCA No. 19512/07 submitted that she had earlier functioned as a Member of the Forum for five years and her name was again recommended for one more year and she has functioned for one more year. Petitioner later made an application on 02.01.2007 for her reappointment so that she could continue for a further period of four years. Petitioner submitted under such circumstances there was no justification for inviting fresh applications by public notice dated 27.07.2007 for filling up the post of Member of District Forum, Vadodara. Petitioner also submitted that she has got a statutory right to function as Member for a further period of four years in accordance with the first proviso to Sub-section (2) of Section 10 of the Act. 11. State Government took up the stand that since the State Government is the appointing authority, there is no obligation on the part of the State Government to accept the recommendations of the Selection Committee. State Government also contented that it has the power to select anybody from the list submitted by the Selection Committee. Further, it is also stated that so far as the petitioners in SCA 11974 & 9023 of 2007 are concerned, they had already functioned as Members of the District Forums, Jamnagar and Kachchh respectively, therefore, there is no justification in again reappointing them as Members of the Forums, since the Government in public interest wanted to induct new faces in the Commission. Further, it is also the stand of the State Government that Selection Committee’s role is only advisory in nature and the Government, being the appointing authority, has to take into consideration larger public interest, and it is only in the fitness of things that opportunity be given to other candidates to function as Members of the District Forums, otherwise, the State Government contended that, the post of Member of District Forum would remain as a hereditary post. State Government took up the stand that there is no justification in entertaining the request of the petitioner in SCA 19512/07 to appoint her as Member of the District Forum, since she has not applied for the said post in pursuance of the notification issued by CDRC inviting applications for filling up the post of Member, District Forum, Vadodara. State Government took up the stand that there is no justification in entertaining the request of the petitioner in SCA 19512/07 to appoint her as Member of the District Forum, since she has not applied for the said post in pursuance of the notification issued by CDRC inviting applications for filling up the post of Member, District Forum, Vadodara. State Government taken up a stand that the first proviso to Sub-section (2) of Section 10 will come in aid to a person like the petitioner only when he/she undergoes the selection procedure again. 12. Learned Single Judge allowed SCAs Nos. 11974, 9023 & 12977 of 2007 by issuing various directions and dismissed SCA No. 19512 of 2007. Learned Single Judge after considering the rival contentions concluded, which are reproduced for easy reference, as follows:— 26. In view of the aforesaid the legal position can be deduced as under:— (A) Member of the District Forum appointed is to exercise the judicial power in the system of administration of justice for settling the disputes of the consumer and the service provider as per the Scheme of the Act read with the Rules. Therefore, the Government while dealing with the matter of appointment of the Members of the District Forum would be required to keep in mind that such appointment are to be made of the persons, who are to discharge judicial power. (B) As per the Scheme contemplated under Section 10 of the Act, a person to be appointed as the Member must be qualified to be appointed and should not be holding any disqualification as provided under Section 10(1) of the Act. (C) In absence of the recommendation of the Selection Committee, no person can be appointed as the Member of the District Forum. (D) The selection committee is enjoined with the duty to examine the suitability and the merit of the candidate concerned and has to prepare the merit list of the candidates as per the, inter se, merit and has to recommend to the State Government for appointment. (E) State Government, after having received the recommendation for giving appointment, would normally go by the merit order prepared by the Selection Committee in its recommendation. (E) State Government, after having received the recommendation for giving appointment, would normally go by the merit order prepared by the Selection Committee in its recommendation. (F) It is only when there are strong, cogent and valid circumstances, the name of non-deserving to the post to be held or duty to be discharged, by such person, higher meritorious candidate in the list of the selection committee can be excluded. (G) If any candidate is to be rejected in view of the aforesaid strong, cogent and valid circumstances by the Government, it may inform the selection committee for its view on the said aspect. It would be required for the Government to consider the view of the selection committee, if any, for excluding the higher meritorious candidate. (H) The ultimate decision of the Government for appointment/reappointment of the member can be subjected to judicial review, at the instance of the candidate having higher merit if his name has been excluded by this Court under Article 226 of the Constitution of India. (I) If the ground for exclusion of higher meritorious candidate on the part of the Government is arbitrary or capricious or flimsy or non-germane consideration, such action can be struck down by this Court in its power under Article 226 of the Constitution of India. (J) There is no vested right with the candidate for appointment if his name has been included in the select list. However, if the exclusion is found by this Court as arbitrary or unconstitutional, it would be required for the Government to consider the case of the higher meritorious candidate for making appointment to the post of member of the District Forum. (K) All the aforesaid would apply with the same vigour in a case where a member is to be reappointed. (L) There is no vested right with a member for reappointment, but it would be required for the Government to extend the period of reappointment as per the recommendation of the Selection Committee, subject to maximum limit of five years or age of 65 years, whichever is earlier.” 13. Learned Single Judge took the view that the stand of the Government that it can overlook the recommendation of the Selection Committee so as to give opportunity to new faces would go contrary to proviso to Sub-section (2) of Section 10 of the Act. Learned Single Judge took the view that the stand of the Government that it can overlook the recommendation of the Selection Committee so as to give opportunity to new faces would go contrary to proviso to Sub-section (2) of Section 10 of the Act. Learned Single Judge also opined that only when there are strong and compelling circumstances, the meritorious candidates in the select list can be excluded. Learned Single Judge, however, opined that for overlooking the recommendations of the Selection Committee, there must be strong, cogent and valid reasons and the State Government has to inform those reasons to the Selection Committee and ascertain its views for excluding such meritorious candidates from the list. Learned Single Judge, therefore, found there were no valid reasons for the State Government to reject the meritorious candidates and select candidates included in the waiting list. Learned Single, therefore, gave a positive direction to appoint the petitioners in SCAs Nos. 11974, 9023 & 12977 of 2007, after terminating the appointments already given by the State Government. Learned Single Judge did not grant the relief prayed for by the petitioner in SCA No. 19512 of 2007, since she did not apply on the basis of the Notification inviting applications for filling up the post of Member of District Forum, Vadodara. 14. State Government, aggrieved by the judgment and order of the learned Single Judge in SCAs Nos. 11974, 12977 & 9023 of 2007, filed Letters Patent Appeals Nos. 1406, 1407 & 1408 of 2008. The 3rd, 4th & 3rd respondents respectively in SCAs Nos. 11974, 12977 & 9023 of 2007 have filed Cross Appeals, being Letters Patent Appeals Nos. 1234, 1235 & 1233 of 2008 respectively. Petitioner in SCA No. 19512 of 2007, aggrieved by the judgment of the learned Single Judge, filed Letters Patent Appeal No. 1251 of 2008. 15. We have heard learned counsel for the contesting parties as well as the Advocate General for the State. 16. We find no serious infirmities in the various directions given by the learned Single Judge, except the direction that if any candidate is to be rejected by the State Government for appointment as Member of a District Forum, Government has to inform the reasons thereof to the Selection Committee for its views. 17. 16. We find no serious infirmities in the various directions given by the learned Single Judge, except the direction that if any candidate is to be rejected by the State Government for appointment as Member of a District Forum, Government has to inform the reasons thereof to the Selection Committee for its views. 17. We have gone through the counter affidavit filed by the State Government and also perused the files pertaining to the appointment of the candidates made available to us by the State Government. We have already indicated that the only reason stated by the State Government in the counter affidavit for not appointing the petitioners in SCAs Nos. 11974 and 9023 of 2007 was that they had already functioned as Members of the District Forums, and the Government would like to give opportunity to fresh candidates, and that the Government would not like convert the office of the Members of the District Forums hereditary in nature. Further, it is also stated by the State Government that the recommendations of the Selection Committee are in advisory capacity and the State Government is the appointing authority, and the view taken by the Government was in larger public interest as opportunity be given to new faces in the District Forums. No further reasons have been stated in the counter affidavits filed in these cases. Files produced by the State also did not disclose any other valid reasons for overlooking the merit of the candidates. Government has no case that the persons who are ranked above the appointees have entailed any disqualification as enumerated in Section 10(1)(b) of the Act. The first proviso to Sub-section (2) of Section 10 speaks of eligibility of a member for re-appointment for a second term. The relevant provision is extracted below: “(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. xx xx (3) xx xx” 18. xx xx (3) xx xx” 18. Petitioners are therefore eligible for being considered for a second term of five years after undergoing the selection process. Therefore, the stand of the State Government that in order to appoint new faces merit can be scarified, cannot be accepted. 19. Qualifications have been enumerated in Section 10(1)(b) of the Act. Candidate should also possess a bachelor’s degree from a recognised University and should be a person of ability, integrity and adequate knowledge and experience of at least ten years in dealing with problems relating to economy, law, commerce, accountancy, industry, public affairs or administration. Selection Committee has to assess the qualifications of all the candidates, including the above mentioned factors, and it is after assessing the comparative merits, the Selection Committee draws up a merit list and a waiting list. State Government can overlook recommendation of the Selection Committee, only if it is shown that the persons recommended have got any disqualification. For easy reference, extract of Sub-section 10(1) is reproduced in its entirety: “10. Composition of the District Forum.—(1) Each District Forum shall consist of,— (a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President; (b) two other members, one of whom shall be a woman, who shall have the following qualifications, namely:— i. be not less than thirty-five years of age, ii. possess a bachelor’s degree from a recognised university, iii. be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that a person shall be disqualified for appointment as a member, if he— (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or (b) is an undischarged insolvent; or (c) is of unsound mind and stands so declared by a competent court; or (d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or (e) has, in the opinion of the State Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such other disqualifications as may be prescribed by the State Government;” 20. Section 10(1)(b)(i), (ii) and (iii) deals with the qualification of Members and the proviso to Section 10(1)(b) deals with disqualification of Members. State Government can overlook the recommendation of the Selection Committee if it is shown that a candidate has entailed any disqualification as per proviso to Section 10(1)(b) of the Act. Sub-clause (f) to Section 10(1)(b)(iii) says that State Government has got the power to prescribe other disqualifications also. The fact that a candidate had worked for five years in the Forum is not a disqualification prescribed by the State Government. On the other hand, first proviso to Section 10(2) says that a member shall be eligible for re-appointment for another term 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. Gujarat Consumer Protection Rules, 1988 also do not prescribe any other additional disqualification. Therefore, the fact that petitioners in SCAs Nos. 11974 and 9023 of 2007 had earlier worked as Members of the District Forums is not a disqualification for competing again for another term of five years. 21. We are also of the view that the State Government was not justified in ignoring the first person included in the waiting list and appointing the second person in the waiting list as Member of District Forum, Junagadh. The first person in the merit list did not join duty and consequently the next person in the merit list ought to have been considered for appointment as Member of the District Forum, unless the person entails any other disqualification. No reasons are stated by the State Government in preferring the second wait-listed person over the first one. The files made available to us also do not disclose any reasons. 22. Learned AGP submitted that in case it is found that appointment made by the State Government is not in order, Government should be asked to reconsider the appointments so that the State Government can take a fresh decision on the available materials. Further, it is also stated that learned Single Judge was not justified in terminating the services of the appointees and giving a positive direction to appoint the petitioners in SCAs Nos. 11974, 12977 and 9023 of 2007 as members of District Forum. 23. Further, it is also stated that learned Single Judge was not justified in terminating the services of the appointees and giving a positive direction to appoint the petitioners in SCAs Nos. 11974, 12977 and 9023 of 2007 as members of District Forum. 23. We have indicated that we have gone through the files made available to us and the counter affidavit in all these cases. No relevant or cogent reasons have been stated for overlooking the merit of the persons in the above mentioned cases. We have already indicated that the only reason indicated by the State Government so far as SCAs Nos. 11974 and 9023 of 2007 are concerned is that State Government wanted to induct new faces in the Forums. No other material has been placed before us to show that the petitioners are in a way disqualified under the proviso to Section 10(1)(b) of the Act or any other disqualification as prescribed by the State Government under Clause (f) of the proviso to Section 10(1)(b). In absence of any materials, there is no justification to further ask the Government to do a fresh exercise. We notice that these cases are pending before this Court for more than two years and the right of the petitioners as Members of the District Forums is effectively curtailed. That being the factual situation, there is no justification in again directing the State Government to do a fresh exercise. Interest of justice demands that a direction be given to the State Government to give effect to the recommendations of the Selection Committees since no adverse materials have been placed before us to overlook the merits of the candidates either in the counter affidavit nor in the files made available to us. 24. Learned AGP relied upon the decision of the Apex Court in A. Pandurangam Rao vs. State of Andhra Pradesh and Others, ( AIR 1975 SC 1922 ) as well as on a decision of a Division Bench of Andhra Pradesh High Court in M. Raghava Rani vs. Government of Andhra Pradesh, (2004 (0) GLHEL-AP 410452). We are in agreement with the view taken by the Division Bench of Andhra Pradesh High Court. We are in agreement with the view taken by the Division Bench of Andhra Pradesh High Court. Andhra Pradesh High Court took the view that the decision taken by the Selection Committee is only recommendatory in nature, but if the State Government disagree with the recommendation of the Selection Committee, they should give cogent reasons for the disagreement. 25. We are, therefore, inclined to dismiss the Letters Patent Appeals Nos. 1406, 1408 & 1407 of 2008 preferred by the State Government and direct the State Government to implement the recommendations made by the Selection Committees within a period of two weeks from today and to give appointment orders to the petitioners in SCAs Nos. 11974, 9023 & 12977 of 2007. Consequently, Letters Patent Appeals Nos. 1234, 1235 & 1233 of 2008 also stand dismissed. 26. We find no reason to entertain the request made by the appellant in Letters Patent Appeal No. 1251 of 2008 since she has not applied for the post in response to the Notification inviting applications for the posts of Members of the District Forum, Vadodara, as also there is no statutory right available to the petitioner for re-appointment even if a recommendation was made to that effect by the Selection Committee. Proviso to Section 10(2) only says that Members shall be eligible for appointment, which will not confer any right of re-appointment. Under the circumstances, Letters Patent Appeal No. 1251 of 2008 lacks merit and the same is hereby dismissed. All the Civil Applications shall stand disposed of accordingly.