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2012 DIGILAW 1338 (PNJ)

Raj Bala v. State of Haryana

2012-09-28

AUGUSTINE GEORGE MASIH

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JUDGMENT : - AUGUSTINE GEORGE MASIH, J. By this order, I propose to decide three writ petitions i.e. CWP No. 16400 of 2012 titled as Raj Bala and another vs. State of Haryana and others, CWP No. 17343 of 2012 titled as Meena Kumari vs. State of Haryana and others and CWP No. 17262 of 2012 titled as Kumundani Srivastava vs. State of Haryana and others as common questions of facts and law are involved therein. For convenience sake, facts are being taken from CWP No. 16400 of 2012. Petitioners, in this writ petition, have applied for appointment as Members of the District Consumer Disputes Redressal Forum in pursuance to a notice dated 22.12.2011 issued by the State Consumer Disputes Redressal Commission, Haryana. Applications were invited for filling up 23 posts of Members in District Consumer Disputes Redressal Forum in the State of Haryana, out of which, 14 posts of Members were for women and 9 posts for men. The conditions of eligibility were stated therein and the petitioners being eligible and fulfilling the qualifications, applied for the same. Applications of the petitioners were rejected on the ground that they had already served as Members of the District Consumer Disputes Redressal Forum for two terms and they had applied for the third term. Reference was made to proviso of Sub-section (2) of Section 10 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'), which provides that a Member can be appointed for only two terms and not beyond that. This rejection letter is dated 03.08.2012, which has been challenged by the petitioners through this writ petition. It is the contention of the petitioners that the Selection Committee had misinterpreted the proviso to Section 10 (2) of the Act. The appointment of a Member is for a term of five years or up to the age of 65 years, whichever is earlier. Each appointment, after the expiry of the term of five years, is a fresh appointment as on completion of five years term, Member is relieved automatically and the complete process of selection on merits has to be again undergone, which is not a re-appointment but a fresh appointment. Each appointment, after the expiry of the term of five years, is a fresh appointment as on completion of five years term, Member is relieved automatically and the complete process of selection on merits has to be again undergone, which is not a re-appointment but a fresh appointment. The intention of the legislature was never to bar appointment of a Member for the third time and placing reliance upon the language of the proviso to Section 10 (2) of the Act, counsel contends that had the intention been of the legislature not to allow the candidates for the third term, the same could have been specifically provided therein. The use of the word 're-appointment' in this proviso is on misnomer in fact, it is a fresh appointment. Initially when the Act was legislated, there was a specific bar for re-appointment, which was removed by the amendment, which has been brought about in Section 10 vide Act No. 62 of 2002 as amended by the Consumer Protection (Amendment) Act, 2002, which substituted sub-section (2) of the earlier Act by making Members of the District Forum eligible for re-appointment. This amendment was brought about with an intention to make the best use of experienced Members, who are, by now, well versed with the procedure, functioning and working of the Commission apart from the knowledge of the subject. The Committee had no right to interpret the Statute contrary to the intention of the legislature. It has further been submitted that this condition that the Members, who had earlier completed two terms, would not be eligible for appointment, was not incorporated in the advertisement, which clearly shows that the only bar was with regard to the age of a candidate but there was no bar upon the number of terms, on which a Member could be appointed. Reference has been made to one of the Members, namely, Kumundani Srivastava (petitioner in CWP No. 17262 of 2012), who was appointed for the third term as a Member of the District Forum asserting, on that basis, discrimination qua the petitioners. Accordingly, prayer has been made for quashing the impugned rejection letters and directing the respondents to accept the applications of the petitioners and consider their claim for appointment as Members of the District Forum. Accordingly, prayer has been made for quashing the impugned rejection letters and directing the respondents to accept the applications of the petitioners and consider their claim for appointment as Members of the District Forum. Upon notice, reply has been filed by the respondents, wherein it has been asserted that as per sub-section (2) of the Section 10 proviso thereto, the petitioners have already served for two terms as Members of the District Forum and, therefore, are not eligible for re-appointment. As regards the contention of the petitioners with regard to the third term given to Kumundani Srivastava, it has been stated that she was initially appointed as a Member of the District Forum, Narnaul in the year 1997, which appointment was challenged along with other Members, who were appointed in the selection process in the year 1997 in CWP No. 11336 of 1997. This writ petition was allowed by this Court vide order dated 14.12.1998 quashing the appointment of the Members made in the selection process in the year 1997. Appointment of Smt. Kumundani Srivastava thus, cannot be counted as a term for the purpose of subsequent appointment as a Member of the Consumer Forum. Therefore, first term of Smt. Kumundani Srivastava as Member of the District Forum would be 24.07.1999 to July, 2004 and the second term 15.11.2006 to 14.11.2011. She had worked for only two terms as the appointment in the year 1997 stood quashed. She had submitted an application in response to the advertisement dated 22.12.2011 for a third term, which application has also been rejected. Accordingly, it has been asserted that the petitioners being ineligible for appointment for a third term as per Section 10 (2) proviso thereto, their applications have rightly been rejected by the Selection Committee. Prayer for dismissal of the writ petition has, therefore, been made. Counsel for the parties have made their submissions as per the pleadings referred to above and on hearing their arguments as also a perusal of the records, I am of the considered view that these writ petitions cannot succeed. Section 10 of the Consumer Protection Act, 1986 reads as follows:- “10. Composition of the District Forum. Counsel for the parties have made their submissions as per the pleadings referred to above and on hearing their arguments as also a perusal of the records, I am of the considered view that these writ petitions cannot succeed. Section 10 of the Consumer Protection Act, 1986 reads as follows:- “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 bachelors degree from a recognized 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 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. (1-A) 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, Incharge 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. (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 fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such reappointment is also made on the basis of the recommendation of the Selection Committee: Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1-A) in place of the person who has resigned: Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term. (3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government: Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum.” Originally, when the Consumer Protection Act, 1986 was enacted, sub-section (2) of Section 10 specifically stated that a Member of the District Forum shall not be eligible for re-appointment. Amendment was brought about in sub-section (2) of Section 10 by substituting it vide Act No. 62 of 2002. Statement of objects and reasons would throw light as to what was the intention of the legislature while bringing about the amendment. Relevant portion of para-2 thereof reads as follows:- “2. Although the consumer disputes redressal agencies have, to a considerable extent, served the purpose for which they were created, the disposal of cases has not been fast enough. Statement of objects and reasons would throw light as to what was the intention of the legislature while bringing about the amendment. Relevant portion of para-2 thereof reads as follows:- “2. Although the consumer disputes redressal agencies have, to a considerable extent, served the purpose for which they were created, the disposal of cases has not been fast enough. Several bottlenecks and shortcomings have also come to light in the implementation of various provisions of the Act. With a view to achieving quicker disposal of consumer complaints by the consumer disputes redressal agencies securing effective implementation of their orders, widening the scope of some of the provisions of the Act to make it more effective, removing various lacunae in the Act and steamlining the procedures, amendments are proposed in the Act, which, inter alia, include the following, namely:- xxx xxx xxx xxx xxx (viii) prescribing minimum qualifications as well as disqualifications for members of the consumer disputes redressal agencies; (ix) provision for re-appointment of President and Members of the District Forum, State Commissions and the National Commission, for another term of five years.” The intention of the legislature, therefore, is clear from clause (ix), according to which, the provision for re-appointment was made for another term of five years for the President and Members of the District Forum, State Commissions and National Commissions. For interpreting proviso to sub-section (2) of Section 10, on which the decision of this case hinges, two words which would require to be given most attention are ‘reappointment’ and ‘another’. To ascertain the intention of the legislature, two aspects need to be kept in mind, one is the meaning i.e. what the words mean and the purpose and object or the reason and spirit prevailing through the Statute. The first and primary role of the Court in interpreting a provision is that the intention of the legislature must be found in the words used in the legislature itself and the correct interpretation would be the one that best harmonizes the word with the object of the Statute. The guiding principle, therefore, to start with would be the language used by the legislature. If the words used are plain and unambiguous, they are bound to be construed in their ordinary sense. If there is any ambiguity, then and only then, should the Court proceed to give it to a harmonious construction. The guiding principle, therefore, to start with would be the language used by the legislature. If the words used are plain and unambiguous, they are bound to be construed in their ordinary sense. If there is any ambiguity, then and only then, should the Court proceed to give it to a harmonious construction. The proviso uses the phrase that “a Member shall be eligible for re-appointment for another term of five years or up to the age of 65 years, whichever is earlier”. Word ‘re-appoint’ means, as per the Concise Oxford English Dictionary 12th edition, to appoint again to a position previously held and the word ‘re-appointment’ is a noun. Word ‘another’ has its origin from word an other. ‘An’ is used in singular form and ‘other’ means, as per the above dictionary (i) used to refer to an additional person or thing of the same type as one is already mentioned; further (ii) used to refer to a different person or thing from one already mentioned. ‘Another’ connotes one more than the one already mentioned and in the context in which it is used in the Statute, it would mean one more term. When ‘re-appointment’ and ‘another’ are read together in consonance with each other, it would lead this Court to a conclusion that the legislature intended a Member to be eligible for one more term of five years or up to the age of 65 years, whichever is earlier. Meaning thereby that a Member can avail of maximum of two terms and no more thereafter. In view of the above, the contention of the petitioners that there is no limit to the terms, for which a Member can be appointed cannot be accepted. Since the petitioners have already availed of two terms as Member of the District Forum, they are not eligible for appointment for another term i.e. a third term. In view of the above, the contention of the petitioners that there is no limit to the terms, for which a Member can be appointed cannot be accepted. Since the petitioners have already availed of two terms as Member of the District Forum, they are not eligible for appointment for another term i.e. a third term. As regards the contention of the counsel for the petitioners in CWP No. 16400 of 2012 and CWP No. 17343 of 2012 that they have been discriminated against as Kumandani Srivastava had been given a third term as a Member of the District Forum, the same cannot be accepted in the light of the fact that her appointment as a Member of the District Forum, Narnaul in pursuance to selection in the year 1997 was quashed by this Court vide order dated 14.12.1998 passed in CWP No. 11336 of 1997, which cannot be said to be a term. It would not be out of way to mention here that as per the pleadings, the application of Kumandani Srivastava has also been rejected by the Selection Committee in pursuance to the present advertisement as this would have been her third term and she is a petitioner in CWP No. 17262 of 2012 which is being decided now. This ground also, therefore, does not carry force. In view of the above, finding no merit in these writ petitions, the same stand dismissed.