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2009 DIGILAW 949 (KER)

P. M. Sunny v. State of Kerala

2009-10-07

ANTONY DOMINIC

body2009
Judgment : The prayer sought in this writ petition is to quash Ext.P1, SRO No.148/08 dated 4th February, 2008 appointing respondents 4 to 11 as Presidents of Consumer Disputes Redressal Forums in the State. There is a further prayer to declare that the Selection Committee constituted by respondents 1 to 3 for filling up the posts was against the provisions of the Consumer Protection Act (hereinafter referred to as "the Act" for short). 2. Briefly stated, the facts of the case are that pursuant to a notification issued inviting applications for filling up the post of President of various Consumer Disputes Redressal Forums in the State, among others, petitioner and respondents 4 to 11 submitted their applications. Section 10 of the Act provides the composition of the District Forum and Section 10(1)(a) provides that each District Forum shall consist of a person who is, or has been, or is qualified to be, a District Judge, who shall be its President. 3. Section 10(1A) of the Act, which provides that appointment shall be made by the State Government on the recommendation of a Selection Committee reads as under; (1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:- (i) the President of the State Commission - Chairman (ii) Secretary, Law Department of the State - Member (iii) Secretary in charge of the department dealing with consumer affairs in the State Member [Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman] 4. Section 30(2) of the Act confers power on the State Government to frame rules for carrying out the provisions of the Act, which are mentioned therein. In exercise of the said power, the State Government have framed the Kerala Consumer Protection Rules, 2005. Rule 7(1) provides for the appointment of whole-time members in the District Forum. Rule 7(2) provides that the panel of sitting judges/ retired District Judges and persons qualified to be appointed as District Judges shall beobtained from the High Court of Kerala for consideration of appointment to the post of President of the District Forum. Rule 7(1) provides for the appointment of whole-time members in the District Forum. Rule 7(2) provides that the panel of sitting judges/ retired District Judges and persons qualified to be appointed as District Judges shall beobtained from the High Court of Kerala for consideration of appointment to the post of President of the District Forum. Rule 7(3) being relevant for resolving the controversy in this writ petition is extracted below for reference. (3) The category-wise panel so obtained, after further scrutiny and short listing, with all relevant documents and details shall be placed before the Selection Committee at the appropriate time by the Convener of the Selection Committee and the Selection committee shall finalise a panel of category-wise candidates, by adopting such methods as the Selection Committee may deem fit, and the list of qualified candidates so finalised, shall be sent for consideration of appointment by the Government. The Secretary to Government in charge of the Department dealing with Consumer Affairs in the State shall be the Convener of the Selection Committee. (emphasis supplied) 5. In pursuance to the provisions contained in the Act and the Rules noticed above, a panel was obtained by the Convener of the Selection Committee. Ext.P3 is the minutes of the Selection Committee meeting held on 27/11/2007 in the Chamber of the President of the State Consumer Disputes Redressal Commission, which was also attended by the Secretary to the Law Department and the Secretary, Consumer Affairs Department. In the minutes, it is stated that the Committee had forwarded intimation to 131 candidates calling upon them to appear for the interview, which was scheduled to be held during the period 27/11/2007 to 1/12/2007. Proceeding further, it is recorded thus: The members of the Committee expressed their difficulty in conducting interviews every afternoon. After a detailed discussion, the Committee decided to depute the Additional Secretary of the Consumer Affairs Department and the Special Secretary/Additional Secretary of the Law Department in the absence of the Secretary of the Consumer Affairs Department and the Secretary of the Law Department respectively for conducting interviews, as per the schedule. But the Chairman shall be present for all the interviews. The selection committee, constituted as per Section 10 of the Consumer Protection Act, shall do the final selection process and the preparation of the select list. 6. Accordingly, interview was conducted by Committee constituted as mentioned in the above minutes. But the Chairman shall be present for all the interviews. The selection committee, constituted as per Section 10 of the Consumer Protection Act, shall do the final selection process and the preparation of the select list. 6. Accordingly, interview was conducted by Committee constituted as mentioned in the above minutes. The Minutes of the Selection Committee meeting held in the chamber of the President of the State Commission on 9.1.2008 shows that after verifying the performance of the candidates in the interview and general assessment of qualifications and experience, the Selection Committee prepared a panel of eligible candidates for the vacancies of President of the District Forums and decided to submit the panel to the Government for appointment. Accordingly, a panel consisting of respondents 4 to 11 was submitted to the Government, and it was accepting the said panel that by Ext.P1, the party respondents herein were appointed. 7. As already seen, in terms of Section 10(1A) of the Act, the Selection committee should consist of President of the State Commission, Secretary to the Law Department and Secretary to the Consumer Affairs Department. The said Selection Committee by its decision taken on 27/11/2007 and for the reasons mentioned therein, decided that in the absence of Secretaries to Law and Consumer Affairs Departments, the Additional Secretary of Consumer Affairs Department and Special Secretary/Additional Secretary of the Law Department, along with President of the State Commission, shall conduct the interview. It is not in dispute that on many of the days, several candidates were interviewed by the persons thus nominated by the Secretary to the Law Department and the Secretary to the Consumer Affairs Department. Pointing out this admitted factual position, the contention raised by the counsel for the petitioner is that under Rule 7(3) of the Rules, panel of candidates is to be finalised by the Selection Committee constituted as provided in Section 10 (1A) of the Act adopting such methods as the Selection Committee may deem fit, and that the list of qualified candidates so finalised by the Selection Committee, shall be sent for consideration of appointment by the Government. It is stated that in view of the aforesaid statutory provisions, only the Selection Committee consisting of the officers designated in Section 10(1A) are competent to interview and finalise the panel and that the selection process leading to the appointment of respondents 4 to 11 as per Ext.P1 was illegal, in as much as, it was against the statutory provisions. 8. On behalf of the respondents, I heard the Additional Advocate General, who was supported by counsel appearing for party respondents. The Additional Advocate General placed reliance on Rule 7(3) itself. According to him, though it is for the Selection Committee to finalise the panel of candidates, it was open to the Selection Committee to finalise the panel adopting such methods as the Selection Committee may deem fit. It is contended that interview was one of the methods chosen by the Selection Committee. It was argued that since it was open to the Selection Committee to adopt such methods as it deems fit, it was also open to the Selection Committee to entrust the process of interview to a Committee constituted by them. It is stated that, it was in exercise of this power of the Selection Committee that by the minutes referred to above, the officers mentioned therein were nominated. 9. The learned Additional Advocate General also relied on the provisions contained in Rule 12A of the Consumer Protection Rules, 1987 dealing with the appointment of members of the National Commission. It was pointed out that Sub Rule (6A) to Rule 12A provides that the Selection Committee shall assess the suitability of the candidates and that the rules made it clear that the assessment should be done by the Selection committee itself. It was argued that the provisions of Rule 7(3) of the Kerala Rules, 2005 did not contain any similar provision and the difference in the language of the Rule justified the method adopted by the Selection Committee. Counsel also placed reliance on the Division Bench judgment of this Court in State of Kerala v. Reghu Varma (2009 (3) KLT 634) to justify the respective contentions. The Additional Advocate General also contended that as per the Secretariat practice and also the Rules of Business framed under Article 164 of the Constitution of India, duties assigned to Secretaries to Government can be discharged by Additional Secretaries, Deputy Secretaries etc., 10. I have considered the submissions made. 11. The Additional Advocate General also contended that as per the Secretariat practice and also the Rules of Business framed under Article 164 of the Constitution of India, duties assigned to Secretaries to Government can be discharged by Additional Secretaries, Deputy Secretaries etc., 10. I have considered the submissions made. 11. The relevant statutory provision dealing with the composition of District Forum is Section 10(1A), which provides that the appointment shall be made on the basis of the recommendation made by the Selection Committee, consisting of the President of the State Commission, who shall be its Chairman, Secretary, Law Department and Secretary in charge of the Department dealing with Consumer Affairs in the State, who shall be the members of the Selection Committee. Therefore, a reading of this Section shows that the legislature has specified the officers, who shall constitute the Selection Committee and no provision of the Act or Rule has been shown to me enabling the Selection Committee to delegate the power conferred on the Selection Committee. In such circumstances, only the Selection Committee constituted as provided in Section 10 (1A) alone could have finalised and forwarded the panel by adopting any method, it deemed fit, for that purpose. 12. Both sides placed heavy reliance on Rule 7(3) of the Kerala Consumer Protection Rules, 2005 to support their respective contentions and hence a reference to that Rule is called for once again. A close reading of this Rule shows that once a panel is obtained by the Convener of the Selection Committee, it is for the Selection Committee to finalise the panel of candidates and it is open to the Selection Committee "to adopt such methods as the Selection Committee may deem fit". Thereafter, the Selection Committee shall sent the panel of qualified candidates finalised by it to the Government for consideration of appointment. As already stated, learned Additional Advocate General placed heavy reliance on that part of the Rule which enabled the Selection Committee to adopt such methods as it may deem fit to finalise the panel. According to the learned Additional Advocate General, since it was open to the Selection Committee to adopt such method as it deems fit, it was open to the Selection Committee to entrust interview to a Committee consisting of persons other than the members of the Selection Committee. 13. According to the learned Additional Advocate General, since it was open to the Selection Committee to adopt such method as it deems fit, it was open to the Selection Committee to entrust interview to a Committee consisting of persons other than the members of the Selection Committee. 13. Having closely gone through Rule 7(3), I am inclined to think that though it is open to the Selection Committee to adopt such methods as it deems fit, the method which is to be adopted by the Selection Committee is for the purpose of assessing the suitability of the candidates for inclusion in the panel and such adoption of method should be by the Selection Committee itself. In my view, neither the provisions of the Act nor the Rule enable the Selection Committee to delegate any part of the selection process to any other body and the whole process of finalisation of panel has to be completed by the Selection Committee constituted under Section 10(1A) itself. It is not a matter of dispute that the statute has conferred power on the Selection Committee only. Unless the statute authorise the Selection Committee to delegate its powers, the statutory delegate cannot further delegate the statutory powers conferred on it. As contended by the respondents, Rule 7(3) of the Rule came up for interpretation before a Division Bench in the judgment in State of Kerala v. Reghu Varma (2009(3) KLT 634). However, all that is stated in para 7 of the judgment is that under Rule 7(3), the Committee is given the freedom to adopt any method as the Committee feels fit for finalising the panel. In my view, by holding so, the Division Bench was not laying down the principle that the Selection Committee could have delegated any of its powers. Therefore, this judgment is of no assistance to the respondents. 14. The respondents contended that in view of the provisions contained in the Rules of Business and the Secretariat Practice, Selection Committee was justified in entrusting interview to a Committee constituted, as in this case. I cannot agree with this contention either. It may be true that the practice followed or the Rules of Business permit delegation of duties. But in this case, Section 10(1A) of the Act provides for the constitution of the Selection Committee and specifies the officers, who shall constitute the Committee. I cannot agree with this contention either. It may be true that the practice followed or the Rules of Business permit delegation of duties. But in this case, Section 10(1A) of the Act provides for the constitution of the Selection Committee and specifies the officers, who shall constitute the Committee. In such a situation, unless the Act enables, the Committee cannot take course either to Rules of Business or any prevailing practice and dilute the statutory duties cast on it. 15. Admittedly, in this case, interview was conducted not by the Selection Committee, but by a Committee constituted by the Selection Committee consisting of officers who are incompetent to be members of the statutory Selection Committee. It was that selection which led to the appointment by Ext.P1. Since the constitution of the Selection Committee was illegal, the selection conducted is illegal and as a necessary consequence, the appointments made by Ext.P1 are also illegal. 16. Therefore, the appointments made by Ext.P1 Government Order will stand set aside and respondents 1 to 3 are directed to constitute a fresh Selection Committee in terms of the statutory provisions, conduct a fresh selection, which shall be completed as expeditiously as possible, at any rate within 2 months of receipt of a copy of this judgment. It is directed that in the meanwhile, respondents 4 to 11 will be allowed to continue to discharge their duties, and their further continuance will depend upon the outcome of the fresh selection as ordered above. Writ petition is allowed in the above terms. No costs.