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2017 DIGILAW 1365 (HP)

Sunita Sharma v. State of H. P.

2017-12-12

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. 1. The petitioner, a law graduate and practicing lawyer, aggrieved by the appointment of respondent No. 2 as Female Member in the H.P. State Consumer Disputes Redressal Commission (hereinafter referred to as the Commission in short) in preference to her, has filed the present writ petition for redressal of her grievance on the grounds inter-alia that she being eligible and duly qualified for appointment as Female Member in the Commission submitted her application for consideration against vacancy of Female Member advertised in the year 2016 by the 1st respondent. She was called for interview on 2nd July, 2016. Her interview along with other eligible candidates as per list, Annexure P-1 was conducted by a Selection Committee constituted under sub-section (1A) of Section 16 and sub-section (1A) of Section 10 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’ in short) comprising the then President of H.P. State Consumer Disputes Redressal Commission as its Chairman, the Principal Secretary (FCS & CA) and the Principal Secretary (Law) to the Government of Himachal Pradesh, Members. The Selection Committee made its recommendations, Annexure P-1 (Colly.) for appointment as Female Member in the Commission out of panel prepared by it. The following including the petitioner were candidates empanelled by the Selection Committee, which on the face of it is purely on the basis of merit:- S. No. Name Marks scored 1. Dr. Karuna Machhan 14/20 2. Ms. Sunita Sharma 11/20 3. Smt. Meena Verma 11/20 4. Smt. Yogita Dutta 10/20 2. The candidate Dr. Karuna Machhan at serial No. 1 of the panel was not available for appointment as Female Member because by that time, she was appointed somewhere else i.e. in H.P. University against some post. Respondent No. 1 instead of making offer of appointment to the petitioner, who was at Serial No. 2 of the panel opted for making offer of appointment to the private respondent, who was at Serial No. 3. The order in which the candidates were empanelled is pure and simple on merits as in the recommendation; Annexure P- 1 (Colly.), the Selection Committee in the very opening sentence has said that the Female Member in the Commission was recommended to be appointed out of the panel so prepared on the basis of performance of candidates interviewed. The order in which the candidates were empanelled is pure and simple on merits as in the recommendation; Annexure P- 1 (Colly.), the Selection Committee in the very opening sentence has said that the Female Member in the Commission was recommended to be appointed out of the panel so prepared on the basis of performance of candidates interviewed. Therefore, aggrieved by the appointment of private respondent as member in the State Commission, the petitioner made the representation, Annexure P-2 to the 1st respondent and made a request that she being at Serial No. 2 of the list (panel) may be given appointment as member State Commission. The 1st respondent, however, seems to have not taken any action on the representation, Annexure P-2. It is in this backdrop, the petitioner has approached this Court by filing the present writ petition for the grant of following prayers: (a) Quash the selection and appointment of respondent No. 2 as Female Member of the H.P. State Consumer Disputes Redressal Commission. (b) To direct the respondent No. 1 to consider the petitioner for appointment in place of respondent No. 2. (c) Direct the production of all the relevant records. 3. The respondents when put to notice have contested the writ petition. The 1st respondent has not disputed the empanelment of candidates for appointment as member State Commission by the Selection Committee constituted for the purpose. It is also not disputed that the candidate at Serial No. 1 in the panel Dr. Karuna Machhan was not available for appointment as Member State Commission as she had already joined service in H.P. University by that time. As per stand of the 1st respondent, the candidates at Serial No. 2 and 3 in the panel had scored equal marks in their interview, therefore, the private respondent who was at Serial No. 3 of the panel was preferred for appointment as member in preference to the petitioner on the basis of her “public experience.” Also that, the job of the Selection Committee is to empanel eligible and suitable candidates for appointment as member in the Commission. The appointing authority is free to appoint any candidate recommended for appointment by the Selection Committee named in the panel. The appointing authority is free to appoint any candidate recommended for appointment by the Selection Committee named in the panel. The Selection Committee is free to device its own method at the time of making its recommendations, however, keeping in mind that the candidates appeared for interview are eligible and having prescribed qualification in terms of the provisions contained under the Act. The claim of the petitioner that she being higher in merit and also senior in age to the private respondent, should have been appointed as member, has been denied being wrong. 4. Respondent No. 2 though has filed separate reply, however, on similar lines as by the 1st respondent. Her contentions are, therefore, need not to be elaborated in this judgment. 5. In rejoinder, the petitioner has denied the contentions to the contrary in reply to the writ petition being wrong and reiterated what she averred in the writ petition. It is also pointed out that for want of any material on record, it cannot be said that the Selection Committee could have devised its own method for making recommendations. The committee, according to the petitioner, was required to have acted in accordance with the well settled norms and not arbitrarily or adopted its own method. The appointment of respondent No. 2 as member State Commission has been sought to be quashed being not in accordance with the Act and rules framed thereunder and rather arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. 6. On the parties having exchanged affidavits, the 1st respondent through learned Additional Advocate General was directed to produce the records pertaining to selection process conducted for filling up the vacancy of female member in the Commission. On perusal of record so produced, no material except that the private respondent allegedly having public experience, was found available justifying appointment of the private respondent as Member of the Commission in preference to the petitioner. On having gone further through the record so produced, no documentary proof suggesting that the public experience of the private respondent was better as compared to the petitioner could be found available therein. It is desirable to note the reasons recorded to ignore the petitioner in the record so produced, which reads as follows:- N/155:- It has come to the notice that in r/o State Consumer Commission, the recommended candidate at S. No. 1 (Dr. It is desirable to note the reasons recorded to ignore the petitioner in the record so produced, which reads as follows:- N/155:- It has come to the notice that in r/o State Consumer Commission, the recommended candidate at S. No. 1 (Dr. Karuna Machhan) has already joined her service on 24.09.2016 in HPU on her appointment as Assistant Professor. As such, she may now not like to accept this position if offered..........Submitted pl. Sd/- 5.10.2016 Pr. Secy. (FCS & CA) N/156: For the State Commission two candidates have equal marks. Based on public experience Smt. Meena Verma can be appointed. For District Forums, N/147 to 150 be seen. Sd/- Principal Secretary 5/10 Hon’ble Minister F&CS Sd/- (Minister) 6/10 Hon’ble CM N/157 The following may be appointed in State Consumer Commission/District Consumer Forums:- State Consumer Commission (Female Member): 1. Smt. Meera Verma, VPO Gawas, Tehsil Chirgaon, District Shimla. 2. xxx xxx 3. xxx xxx 4. xxx xxx 5. xxx xxx 6. xxx xxx Sd/- Chief Minister 19.11.2016 7. The Chief Minister, on going through the reasons as aforesaid, has approved the appointment of the private respondent as Member in the Commission and consequently, she has been appointed, and continuing, as such, in the Commission. We, however, were not satisfied with the reasons that the private respondent is having public experience over and above the petitioner, hence directed the Additional Chief Secretary, Food Civil Supply and Consumer Affairs to the Government of Himachal Pradesh to appear in person to assist the Court. This order reads as follows:- “Learned Additional Advocate General assisted by Ms. Suman, Clerk has produced the record pertaining to the selection of Member in H.P. State Consumer Redressal Commission, Shimla. Prima-facie, we are not satisfied with the appointment of the private respondent as Member for the reasons that the petitioner Sunita Sharma in the merit list was at serial No. 2 whereas the said respondent was at serial No. 3. No reasonable and plausible explanation is there on record to justify the selection of private respondent in preference to the petitioner who otherwise also not only a law graduate but senior in age also. The only explanation that the private respondent is having public experience over and above that of the petitioner is also not prima-facie correct. No reasonable and plausible explanation is there on record to justify the selection of private respondent in preference to the petitioner who otherwise also not only a law graduate but senior in age also. The only explanation that the private respondent is having public experience over and above that of the petitioner is also not prima-facie correct. In this backdrop, we direct Additional Chief Secretary, Food Civil Supply and Consumer Affairs to the Government of Himachal Pradesh to appear in person and assist the Court on the next date. List on 27.11.2017.” 8. Consequently, the Additional Chief Secretary appeared in person in this Court and apprised that the Selection Committee only prepares a panel and submit the same to the Government. The Minister/Chief Minister may appoint anyone out of the empanelled candidates as Member irrespective of their position in the merit. Also that, no rules, guidelines or instructions governing the appointment of the Members in District Consumer Fora and the Commission have yet been framed and that the matter to frame such rules is under consideration of the department. We reproduce the order to this effect passed on 4.12.2017 in the writ petition, which reads as under:- “Mr. Tarun Kapoor, Additional Chief Secretary, Food, Civil Supplies and Consumer Affairs to the Government of Himachal Pradesh is present in person. We have been informed that as per the practice prevalent, the Selection Committee prepares the panel and submit the same to the Government for appointment of Members in District Consumer Fora and H.P. State Consumer Disputes Redressal Commission, Shimla. In the past also, the Minister/Chief Minister has ordered the appointment of such Members without adhering to the position of empanelled candidate in the panel so prepared. No rules, guidelines or instructions governing the appointment of such Members are yet framed. According to Mr. Kapoor, the matter qua framing rules for appointment of the Members, District Consumer Fora and State Redressal Commission is under consideration of the department. It is in this backdrop, this petition is to be heard further and for that list on 11.12.2017. ” 9. It is in this background, we proceeded further to hear and decide the fate of this writ petition. In our considered opinion, in the matter of appointment as Member of the State Commission, the 1st respondent has discriminated the petitioner and meted out an arbitrary treatment to her. ” 9. It is in this background, we proceeded further to hear and decide the fate of this writ petition. In our considered opinion, in the matter of appointment as Member of the State Commission, the 1st respondent has discriminated the petitioner and meted out an arbitrary treatment to her. Such act on the part of the said respondent is not only illegal but also violative of Articles 14 and 16 of the Constitution of India. It is even beyond imagination that the private respondent is having public experience better than the petitioner for the reason that the latter is senior in age as compared to the former. As we feel, a person senior in age is having better experience in all spheres of life including the public experience. We record it authoritatively and with all exactness that the petitioner having enrolled as an Advocate in the year 1992 and in effective legal practice since then not only in this Court but in the State Administrative Tribunal and various quasi judicial authorities including the State Consumer Disputes Redressal Commission/District Consumer Disputes Redressal Forum, certainly is well averse with various social problems as compared to the private respondent, who as per documents she furnished alongwith her application is post graduate in commerce and also did the Master’s degree in the business administration, which qualification she acquired in the year 2012. When she was studying up to 2012, whereas, the petitioner is in effective legal practice since 1992, it is not understandable as to what prompted the 1st respondent to assess her public experience better than the petitioner. 10. We are more than satisfied that the candidates in select list, Annexure P-1 (Colly.) have been empanelled on merit assessed on the basis of their performance in the interview. The petitioner and private respondent both having scored 11 marks out of 20 have, therefore, to be considered as bracketed candidates. Although, no rule governing the appointment of the Member in the State Commission/District Consumer Fora have yet been framed by the respondent-State. However, if the position of the rules governing service condition of the Government employees is seen, in a case of bracketed candidates, the senior in age ranks high as compared to bracketed candidate, who is junior in age. It is for this reason, the Selection Committee has ranked the petitioner at higher pedestal in merit as compared to the private respondent. It is for this reason, the Selection Committee has ranked the petitioner at higher pedestal in merit as compared to the private respondent. True it is that the respondent while making the appointment out of empanelled candidates as Member of the State Commission are not bound to adhere to their merit and may appoint anyone from them as Member, however, without there being any rules to this effect framed by the respondent-State, such pick and choose policy is without any legal sanctity behind it. 11. The respondent-State cannot make appointment against a post qua which the person appointed has to be paid from the public exchequer, in such an arbitrary and whimsical manner. We would have approved the power exercised by the competent authority in the matter of appointment of private respondent as Member of the Commission, had there been some sort of resemblance between her merit and that of the petitioner in any sphere i.e., academic, professional or social. The petitioner for the reasons already recorded is more meritorious as compared to the private respondent and, as such, could have not been ignored at all. 12. The judgment of the Kerala High Court in State of Kerala and Another vs. K. Reghu Varma and Others, AIR 2010 Kerala 28 citied by learned Additional Advocate General and also relied upon by learned counsel representing the private respondent is not at all applicable in the present case for the reason that the scheme as well as the rules framed by the State of Kerala under the Consumer Protection Act empowers the Selection Committee only to finalize the panel of candidates after subjecting them to suitability test as deemed fit and proper for the purpose of assessing their merit, suitability etc., for holding the post and not to prepare a select list of the candidates in the order of merit. This being the position of the Rules in the State of Kerala the candidates finalized by the Selection Committee are being recommended for appointment and the appointing authority is free to appoint any candidate recommended by the Selection Committee. The only restriction on the appointing authority i.e., the Government of Kerala under the Rules is that it can not appoint anyone outside the list of the qualified candidates furnished by the Selection Committee. The only restriction on the appointing authority i.e., the Government of Kerala under the Rules is that it can not appoint anyone outside the list of the qualified candidates furnished by the Selection Committee. This being not the position of Rules in the State of Himachal Pradesh, neither the respondent-State nor private respondent can be heard of seeking protection of law laid down in the judgment supra, that too, when the Apex Court in S. Chandramohan Nair vs. George Joseph and Others, (2010) 12 SCC 687 , again a case from the State of Kerala has held as under:- “17. An analysis of these provisions shows that appointment of judicial and other members is required to be made by the State Government on the recommendation of the Selection Committee. If the Chairman and/or the members of the Selection Committee do not agree on the candidature of any particular person, then opinion of the majority would constitute recommendation of the Selection Committee. Though, the State Government is not bound to accept the recommendations made by the Selection Committee, if it does not want to accept the recommendations, then reasons for doing so have to be recorded. The State Government cannot arbitrarily ignore or reject the recommendations of the Selection Committee. If the appointment made by the State Government is subjected to judicial scrutiny, then it is duty bound to produce the relevant records including recommendation of the Selection Committee before the Court to show that there were valid reasons for not accepting the recommendation.” 13. It is thus seen from the ratio of the judgment ibid that even in the State of Kerala also, though the Government is not bound to accept the recommendations made by the Selection Committee, however, in that eventuality, the reasons for doing so are required to be recorded. It has further been held in this judgment that the State Government cannot arbitrarily ignore or reject the recommendations made by the Selection Committee. It has further been held in this judgment that the State Government cannot arbitrarily ignore or reject the recommendations made by the Selection Committee. The point in issue, in the present writ petition, is squarely covered in favour of the petitioner by the above cited judgment of the Apex court because while ignoring her for appointment as Member of the State Commission, virtually no reasons has been recorded and the private respondent has been preferred to be appointed as such, on her so called “public experience”, which in our considered opinion and by any stretch of imagination can be said to be better than that of the petitioner. 14. Even the Apex Court in N. Kannadasan vs. Ajoy Khose and Others, (2009) 7 SCC 1 , again a case concerning with the appointment of President, State Consumer Disputes Redressal Commission has held that submitting a panel of names to the Government for appointment as President and one out of three names suggested in the panel is appointed as President, the question of meeting of mind between the Chief Justice and the executive would not arise but by reasons thereof, ultimate authority to appoint the President is not legally sustainable. The ratio of the judgment supra, therefore, lead to the only conclusion that even the executive cannot overlook the merit of qualified and selected candidates empanelled in the list except for recording reasons therefor. 15. The present, as we have already said, is a case where no legal and valid reasons has been recorded by the respondent-State qua appointment of private respondent as woman member in the State Commission in preference to the petitioner. Therefore, her appointment in all fairness as well as in the ends of justice deserves to be quashed and set aside. 16. We are also drawing support from the judgment of Madras High Court in T. Xavier vs. State of Tamil Nadu dated 7th June, 2012. Like in the State of Himachal Pradesh, in Tamil Nadu also, no rules authorizing the State to appoint anyone out of the list of empanelled candidates and in ignorance of the merit of empanelled candidates exist. We are also drawing support from the judgment of Madras High Court in T. Xavier vs. State of Tamil Nadu dated 7th June, 2012. Like in the State of Himachal Pradesh, in Tamil Nadu also, no rules authorizing the State to appoint anyone out of the list of empanelled candidates and in ignorance of the merit of empanelled candidates exist. Therefore, while taking note of the entire case law including the judgment of Kerala High Court in K. Reghu Varma case supra, it has been held as under:- “17...........A thorough reading of Section 10 (1-A) would not specifically state as to how many persons the Selection Committee has to recommend for a single post. What it only says is that every appointment under Section 10 (1) shall be made on the recommendation of the Selection Committee. In this case, even as the Selection Committee found the petitioner alone suitable for the post of President and the other candidates who participated in the interview along with the petitioner were found unfit for recommendation, in my stand point, the said selection is final and binding on the appointing authority. Hence, the State Government's reference to the decision of the Kerala High Court has neither any bearing nor any relevance to the case on hand. 18. The other provisions viz. Section 16 and Section 20 of the Act deal with the composition of State Commission and Composition of National Commission respectively and Rule 12-A of the Consumer Protection Rules,1987, deals with the procedure for selection of members of the National Commission. Therefore, the said provisions are not relevant to the present case. 19. The principle underlined by the Supreme Court in N. Kannadasan's case, cited supra, while asserting the primacy of judiciary in appointment of President of the State Commission by recommending the names of judges, who, in its opinion, are independent and fit persons to be appointed, is the matter for concern. It is true that if a panel of names is suggested and the State makes appointment of one of them, the question of meeting of mind between the Chief Justice and the executive would not arise but there cannot be any doubt whatsoever that by reason thereof the ultimate authority to appoint would be the executive. It is true that if a panel of names is suggested and the State makes appointment of one of them, the question of meeting of mind between the Chief Justice and the executive would not arise but there cannot be any doubt whatsoever that by reason thereof the ultimate authority to appoint would be the executive. The principle of purposive interpretation may be resorted to hold that for the purpose of selecting a person to be appointed as President of a District Forum, the process of selection has to be in accordance with the provisions of the Act and the Rules. Those provisions contemplate that appointment of President is required to be made by the State Government on the recommendation of the Selection Committee. Then, that recommendation goes to the executive under the scheme of appointment. The powers of the judicial authority and the executive are underlined therein so also the power to be exercised in selecting a person, which is after a recommendation from the judicial authority. 20. In the instant case, when the Selection Committee has recommended a single name and that committee, after analysing every factor, selected a proper person having judicial knowledge to function as President of the District Forum, it is not for the executive to call for a panel of persons to choose a name of their own choice. The scheme of the Act under Section 10 (1-A) contemplates that every appointment shall be made on the recommendation of the Selection Committee, which is headed by a retired Judge of the High Court. In the solemn functioning of the committee, if they choose a right person whether is one or more and he is found to be a fit person to be appointed, the executive has to take a decision either to act on the recommendation or otherwise, but it is not for the executive to call for a panel of names and decide the appointment. 21. Article 50 of the Constitution demarcates separation of judiciary from executive, under which the State shall take steps to separate the judiciary from the executive in the public services of the State. Such powers for the judiciary and executive are defined under the scheme of the Act and the provisions made thereunder. When a name is recommended by the Selection Committee under the chairmanship of the State Commission, it is for the State to act on that. Such powers for the judiciary and executive are defined under the scheme of the Act and the provisions made thereunder. When a name is recommended by the Selection Committee under the chairmanship of the State Commission, it is for the State to act on that. In other words, the Selection Committee, under the Act and the Rules, adopting its own methods as it deems fit to assess whether the candidates placed before it are duly qualified to hold the post of either President or Member, recommends to the executive for appointment and, thereafter, the State shall proceed to appoint the person based on the recommendation. The power conferred on the executive is only to finalize the name (panel) sent by the Selection Committee and not to call upon the judicial authority to send a panel of names. It is also clear from the scheme of the Act that the appointing authority, namely the executive, cannot appoint the candidate outside the list of qualified candidates furnished by the Selection Committee and to that extent there is a fetter or restriction on the power and method of appointment of the President and Members of the various Forums under the Consumer Protection Act and its State Rules, on the Government. It is not otherwise to call upon the Selection Committee, which is under the control of Chairmanship of a retired Judge of the High Court, to send a panel of names. So, the underlined power as per the Constitution and the scheme of the Act has to be understood in such a manner and, accordingly, the State has to act on the recommendation of the Selection Committee.” 17. Having said so, we allow the writ petition and quash the appointment of the private respondent as Member in the H.P. State Consumer Disputes Redressal Commission and direct the 1st respondent to consider the petitioner, who otherwise is meritorious and more experienced as compared to the private respondent for appointment as Member in the Commission within one month from the date of production of a copy of this judgment by her before the 1st respondent. 18. The writ petition is accordingly allowed and stands disposed of. Pending applications, if any, shall also stand disposed of.