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2020 DIGILAW 1738 (KAR)

Asha Shetty v. State Of Karnataka

2020-09-07

B.V.NAGARATHNA, RAVI V.HOSMANI

body2020
JUDGMENT B V Nagarathna, J. - Though these appeals are listed to consider I.A.No.2/2020 which is filed in W.A. No.5600/2017 for early hearing of these appeals, we have heard learned counsel for appellants in detail and perused the material on record. 2. These appeals are filed by the respective writ petitioners in W.P. No.6720/2017 connected with W.P. No.5734/2017, assailing the order of the learned Single Judge dated 22.08.2017. By the said order, learned Single Judge has held that a President of a Consumer Disputes Redressal Forum also known as 'District Forum' is not entitled to seek reappointment or fresh appointment as President of the District Forum in view of the extant Act and Rules. 3. In W.A. No.5600/2017, the facts are that the petitioner had served as President of the Dakshina Kannada District Forum for two terms, commencing from the year 2006 till 2016. Prior to that, she had practiced as an Advocate for about sixteen years and was qualified to be appointed as a District Judge as contemplated under Section 10(1)(a) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act' for the sake of brevity). That she was the senior-most lady President of the District Fora in the State and had an excellent track record. That a notification was issued on 17.06.2016 for the purpose of filling up of the post of President of District Fora in various places in the State. She responded to the said notification, but she was not selected and instead only retired District Judges were selected pursuant to the said notification. According to her, she was entitled to be selected having regard to her rich experience and eligibility under the provisions of the Act. In the circumstance, she assailed the selection process seeking a declaration that selection of only retired District Judges as a President of District Fora was illegal, unjust, arbitrary and contrary to the purported intention of the notification dated 17.06.2016 and she sought for quashing of the entire selection process. 4. The appellant in W.A. No.6447/2017 was the petitioner in W.P. No.5734/2017. He was the erstwhile President of the Dharwad District Forum. In response to the notification dated 17.06.2016 inviting applications from aspirants to the post of President of District Fora, he submitted his application. According to the said petitioner, he was not intimated about the fate of his application. 4. The appellant in W.A. No.6447/2017 was the petitioner in W.P. No.5734/2017. He was the erstwhile President of the Dharwad District Forum. In response to the notification dated 17.06.2016 inviting applications from aspirants to the post of President of District Fora, he submitted his application. According to the said petitioner, he was not intimated about the fate of his application. Later, he learnt that other applicants have been invited to appear for interview and that he was not called for the interview although he was eligible to be appointed as a President of District Forum. In the circumstances, he sought a writ in the nature of mandamus directing the second respondent Karnataka State Consumer Disputes Redressal Commission ('State Commission') represented by its Registrar to consider his application dated 01.07.2016. 5. Learned Single Judge after considering the arguments of the respective parties, by placing reliance on a judgment of Division Bench of the High Court of Punjab and Haryana in the case of Gurpal Singh Rampura v. State of Punjab and others (CWP No.5478/2006 dated 01.05.2006) declared that a President of a District Forum is not entitled to seek reappointment or fresh appointment as President of the District Forum in light of the extant Rules. Being aggrieved by the said declaration of the learned Single Judge, petitioners have preferred these appeals. 6. We have heard learned counsel for the respective appellant and learned Principal Government Advocate for respondents. 7. Appellants' counsel submitted that appellants are not challenging the selection process as such as the said process has been completed. They are only aggrieved by the declaration made by the learned Single Judge that a President of District Forum is not entitled for seeking reappointment or a fresh appointment as a President of the District Forum. In that context, learned counsel for appellants drew our attention to Section 2(jj) of the Act, which defines the expression "member" to include the President and a member of the National Commission or a State Commission or a District Forum, as the case may be. That sub-section (1) of Section 10 of the Act deals with the composition of the District Forum. That sub-section (1) of Section 10 of the Act deals with the composition of the District Forum. 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 and (b) two other members, one of whom shall be a woman, who shall have certain qualifications to be a member. There are also certain disqualifications which are stated for being a member of a District Forum. That under sub-section (2) of Section 10, 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. The first proviso thereto states that a member shall be eligible for reappointment for another term of five years or up to the age of sixtyfive 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 reappointment is also made on the basis of the recommendation of the Selection Committee. The other proviso to sub-section (2) of Section 10 is not relevant to this case. Learned counsel contended that there may be a bar for reappointment beyond the second term in as much as a person appointed as a member or a President could seek another term of five years or up to the age of sixty-five years, whichever is earlier and possibly cannot seek reappointment for a third time in the same forum but in the instant case, the appointment was pursuant to a fresh notification issued on 17.06.2016 and petitioners were not seeking reappointment in the very same Forum where they had discharged their duties as President for the third term. Learned counsel contended that reliance placed by learned Single Judge on the judgment of the High Court of Punjab and Haryana is misplaced. In this regard, they also drew our attention to the provisions pertaining to reappointment in the case of member of State Commission and National Commission as per proviso to sub-section (3) of Section 16 of the Act and as per proviso to sub-section (3) of Section 20 of the Act respectively. In this regard, they also drew our attention to the provisions pertaining to reappointment in the case of member of State Commission and National Commission as per proviso to sub-section (3) of Section 16 of the Act and as per proviso to sub-section (3) of Section 20 of the Act respectively. They contended that merely because in the case of State Commission and National Commission, provision is made for reappointment of member in the very same Forum and a procedure has been prescribed and in the case of Section 10 of the Act, such a procedure has not been prescribed would not be a bar for appointment as President in any other District Fora. In that regard, learned counsel emphasized the proviso to sub-section (2) of Section 10 of the Act and contended that there is no bar as such. It was submitted that learned Single Judge was not correct in treating reappointment and fresh appointment on par and that on account of such declaration of law, no Advocate can seek a fresh appointment to another District Forum if such an Advocate is otherwise eligible to be considered. They contended that the impugned declaration made in paragraph No.43 of the impugned order may be set aside so that all Advocates, who are eligible to seek reappointment in terms of Section 10(1) of the Act would be entitled to do so. 8. Learned Principal Government Advocate with reference to the statement of objections filed in writ petitions submitted that the order of learned Single Judge is justified and would not call for any interference in these appeals and that there is no merit in these appeals. He further contended that pursuant to the notification dated 17.06.2016, appointments have already been made and at this stage, this Court may not interfere with those appointments. 9. By way of reply, learned counsel for appellants submitted that appellants do not intend to disturb the appointments already made pursuant to the notification dated 17.06.2016. Their endeavour is to seek setting aside of what has been stated in paragraph No.43 of the impugned order of learned Single Judge in as much as the case of reappointment or fresh appointment as President of the District Forum have been treated on par and the same is not so having regard to proviso to subsection (2) of Section 10 of the Act. 10. 10. The Act was enacted to provide for better protection of the interest of consumers and for that purpose, to make provision for the establishment of Consumer Councils and other Authorities for settlement of consumer disputes and for matters connected therewith. Chapter II of the Act deals with Consumer Disputes Redressal Agencies. There is an array of such Redressal Agencies, namely, District Forum, State Commission and National Commission. The composition of the District Forum is stipulated in Section 10 of the Act, which reads as under: "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 persons 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; (1A) Every appointment under sub-section (I) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely: (i) 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 reappointment 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 subsection (1) and such re-appointment 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 (1A) 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. " A reading of the same would indicate that each District Forum shall comprise of a person who is, or has been, or is qualified to be a District Judge who shall be its President and two other members, one of whom shall be a woman, who shall have certain qualifications to be appointed as a member. There are also certain disqualifications which are indicated therein. Sub-section (1A) of Section 10 of the Act deals with the composition of the Selection Committee and as to how selection of the President and members are to be made. 11. Sub-Section (jj) of Section 2 of the Act defines a "member" to include the "President" and a member of the National Commission or a State Commission or a District Forum, as the case may be. Sub-section (2) of Section 10 deals with the term of office of every member which is five years or up to the age of sixty-five years, whichever is earlier. Thus, the first term of office is for five years, but the proviso states that if a member is eligible for reappointment for another term of five years, then such reappointment is permissible for another term of five years or up to the age of sixty-five years, whichever is earlier subject to he / she fulfilling the conditions for reappointment in clause (b) of sub-section (1) and on the basis of the recommendation of the Selection Committee. It is noted that the expression "member" would also include President. On a reading of the said definition and proviso to sub-section (2) of Section 10 of the Act, it would mean that even the President is eligible for reappointment for another term of five years or up to the age of sixty-five years, whichever is earlier in the Consumer District Forum, where the President was originally appointed. That means the provision permits a person to be a President of a particular District Forum for a period of ten years. This is apparent from the use of the expression "eligible for reappointment for another term of five years" which means a person who was already the President of a particular District Forum is eligible for reappointment in the same District Forum for another term of five years. This is apparent from the use of the expression "eligible for reappointment for another term of five years" which means a person who was already the President of a particular District Forum is eligible for reappointment in the same District Forum for another term of five years. In other words, unless the President has attained the age of sixty-five years, a person can function as the President of a District Forum for an initial period of five years and subsequently on reappointment for another period of five years i.e., total of ten years and beyond that, the President cannot seek reappointment in the same Forum even if he or she has not attained the age of sixty-five years. 12. In the instant case, petitioners did not seek reappointment in the very District Forum where they were already discharging duties as President as such, instead on completion of their term as President in the respective District Forum, they applied afresh pursuant to a notification issued dated 17.06.2016 to be considered for appointment in another District Forum. There is no bar under Section 10 of the Act that a person who has already discharged his or her duties as a President of a District Forum is barred from applying to a notification calling for filling up of vacancy or the post of President in any other District Forum. In the absence of such a bar, one cannot read such a bar into the provision. The bar is for a person who has already discharged duties of a President for two terms to apply once again pursuant to a notification. But in the instant case, the application was made not for seeking reappointment in the District Forum where they had already discharged their duties as President, but for seeking a fresh appointment provided the applicants fulfilled the eligibility criteria i.e., the person must be qualified to be a District Judge and the person must not have attained the age of sixty-five years in any other District Forum. If these two eligibility criteria are fulfilled, then there is no bar for a person who has already held the post of President of a District Forum to once again seek appointment as President of another District Forum. If these two eligibility criteria are fulfilled, then there is no bar for a person who has already held the post of President of a District Forum to once again seek appointment as President of another District Forum. In this case, we are concerned only with an opportunity to be given to such Advocates, who fulfill the eligibility criteria to be considered for appointment as a President in any other Forum even though they may have completed two terms as a President of a District Forum. 13. Learned Single Judge, however, has held that a person cannot seek reappointment or a fresh appointment as President of a District Forum in light of the prevailing Act and Rules. Such declaration is incorrect for the following reasons. The first proviso to sub-section (2) of Section 10 of the Act itself provides for reappointment for a second term in a District Forum where a person has already discharged his duties as a President in the first term. Further sub-section (3) of Section 16 and sub-section (3) of Section 20 of the Act specifically provide for reappointment of a President apart from reappointment of a member under the provisos thereto, but what is to be noted is the expression "member" in Section 2(jj) of the Act, is an inclusive expression and includes the President of a District Forum also. Merely because there is no express provision for reappointment of the President of a District Forum mentioned in sub-section (2) of Section 10 of the Act, it cannot be construed to be a bar for such reappointment. On the contrary, there is no express bar for considering a person who has already discharged his duties as a President of one District Forum to be appointed as President pursuant to a fresh notification issued. In the instant case, a notification was issued on 17.06.2016 and if an Advocate was otherwise qualified to be considered, proviso to sub-section (2) of Section 10 of the Act would not come in the way of considering such an application. If an application is made pursuant to a fresh notification, it cannot be construed to be a reappointment to the same Forum where a person had already discharged his or her functions as a President and it could be considered for any other Forum. If an application is made pursuant to a fresh notification, it cannot be construed to be a reappointment to the same Forum where a person had already discharged his or her functions as a President and it could be considered for any other Forum. On the other hand, if a notification is issued for filling up of the post of President in respect of a Forum where the person has already discharged his or her duties as President for 10 years, i.e., initially for five years and subsequently on reappointment for another period of five years, then such a person will not be eligible to apply for a third term in respect of the same Forum. 14. In the circumstances, Writ Appeals are allowed by setting aside the impugned Order dated 22.08.2017 of the learned Single Judge particularly the observation made in paragraph No.43 of the said Order and we declare that a person who has discharged his duties as a President of a particular District Forum is entitled to apply pursuant to a notification calling for applications to fill up the post of President in any other District Forum if he or she is qualified to be a District Judge even if such a person has already completed ten years as President in a District Forum. It is further clarified that a person who has discharged his or her functions as a President of a District Forum cannot seek reappointment even if it is pursuant to a fresh notification for a third term in the very same District Forum, but can do so in respect of any other District Forum. In view of disposal of the appeals, I.A. No.2/2020 in W.A. No.5600/2017 is allowed and disposed.