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2025 DIGILAW 524 (HP)

Daleep Singh Kaith v. State of Himachal Pradesh

2025-03-27

RANJAN SHARMA, VIVEK SINGH THAKUR

body2025
JUDGMENT : Vivek Singh Thakur, J. This writ petition has been filed apprehending the closure of working of Himachal Pradesh State Consumer Disputes Redressal Commission, for ensuing retirement of present President on 05.04.2025, because posts of two members are already lying vacant and, therefore, after retirement of the President, the functioning of the Commission will not be possible. Therefore, prayer has been made to issue direction to continue the present President till new incumbent is appointed. 2. Vide Notification dated 15.7.2020, the Department of Consumer Affairs, notified the Consumer Protection [Qualification for Appointment, Method of Recruitment, Procedure of Appointment, Terms of Office, Resignation and Removal of the President and Members of the State Commission and District Commission] Rules, 2020 (for short ‘Rules 2020’). 3. Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of Rules 2020, were declared arbitrary, unreasonable and violative of Article 14 of Constitution of India by Nagpur Bench of High Court of Judicature at Bombay, vide common judgment and order dated 14.9.2021, passed in Public Interest Litigation No.11 of 2021 and Writ Petition No.1096 of 2021. 4. The aforesaid judgment and order dated 14.9.2021 was upheld by the Supreme Court in Civil Appeals No.831, 832 and 833 of 2023, preferred by Ministry Of Consumer Affairs, Food And Public Distribution, Union of India, and State of Maharashtra. However, the Supreme Court had directed the Central Government to amend Rules 2020, particularly Rule 6(9) of Rule 2020, and to make appointment of Presidents and Members of State and District Commissions on the basis of performance in the Written Test consisting of two papers of 100 marks each and 50 marks for viva voce and the written test consisting of two papers may be as per the scheme detailed in the judgment. These directions were among certain other amendments in Rules 2020, which were directed by Supreme court exercising the power under Article 142 of the Constitution of India. 5. In sequel to aforesaid direction, vide Notification dated 21.9.2023, amendments in Rules were carried out by the Ministry Of Consumer Affairs, Food and Public Distribution, Government of India. 6. Prior to that vide Notification dated 15.9.2022, Rule 10 providing terms of Office of President or Member was also amended by reducing it from five years to four years. 7. 5. In sequel to aforesaid direction, vide Notification dated 21.9.2023, amendments in Rules were carried out by the Ministry Of Consumer Affairs, Food and Public Distribution, Government of India. 6. Prior to that vide Notification dated 15.9.2022, Rule 10 providing terms of Office of President or Member was also amended by reducing it from five years to four years. 7. Rule 6(1) and Rule 10(2) of Rules 2020 were again assailed before the Nagpur Bench of the Bombay High Court by filing Writ Petitions No.3680 of 2023, 2107 of 2023 and 2496 of2023. 8. In Writ Petition No.3680 of 2023 (supra) and connected petitions, the Bombay High Court (Nagpur Bench) had passed following order: “49. In the light of aforesaid discussion, the following order is passed :- (A) Rule 6(1) of the Rules of 2020 is struck down on the ground that the same results in diluting the involvement of the judiciary in the process of appointment of the President and members of the State Commission and the District Commission. The said Rule is against the spirit of the decision of the Constitution Bench in Rojer Mathew (supra). (B) Since Rule 6(1) of the Rules of 2020 has been struck down the notifications dated 10.04.2023 and 13.06.2023 would not survive. (C) Rule 10(2) of the Rules of 2020 to the extent it prescribes the tenure of the members of the State Commission and the President and members of the District Commission to be four years is struck down as not being in consonance with the spirit of the law laid down in the Madras Bar Association III (supra). (D) Since re-appointment of members of the State Commission and the President as well as members of the District Commission under Rule 10(2) of the Rules of 2020 is on the basis of recommendation to be made by the Selection Committee and as Rule 6(9) of the Rules of 2020 has been struck down in Vijaykumar Bhima Dighe (supra), till the time Rule 6(9) of the Rules of 2020 is suitably amended the Selection Committee can consider following the procedure for the appointment of members of the State Commission and the President as well as members of the District Commission by taking into consideration the procedure that was prevailing vide Rule 8(18) of the Rules of 2019. (E) The notice issued by the Department of Food, Civil Supplies and Consumer Affairs alongwith the advertisement dated 23.05.2023 in relation to Paper-II is held to be without jurisdiction. Consequently, it would be necessary for the Department to re-conduct the test in Paper-II by following the directions issued by the Hon’ble Supreme Court under Article 142 of the Constitution of India in The Secretary, Ministry of Consumer Affairs (supra). (F) In view of the decision in Suhas Milind Untwale Versus The State of Maharashtra [Writ Petition No. 3756 of 2023] decided today, it is held that the notice annexed to the advertisement dated 23.05.2023 that pertains to the appointment on the post of Member, State Commission would be applicable only to a candidate seeking appointment in terms of Rule 3(2)(b) and not a candidate seeking appointment in terms of Rule 3(2)(a) of the Rules of 2020. 50. Rule in all the writ petitions is disposed of in aforesaid terms leaving the parties to bear their own costs. Pending civil applications are disposed of. 51. At this stage, the learned counsel for the respondents pray that the effect and operation of the judgment be stayed for a period of eight weeks. This request is opposed by the learned counsel for the petitioners. 52. Considering the facts of the case, the judgment delivered today shall operate after a period of four weeks from today.” 9. The aforesaid judgment of the Bombay High Court in Writ Petition No.3680 of 2023, has been assailed before the Supreme Court by filing SLP (C) No.25612 of 2023, which was listed in the Court on 10.11.2023. On that day, it was directed that interim stay which was granted by the High Court shall continue to remain in operation till 24 th November, 2023. 10. Vide order dated 7.3.2024, passed in the aforesaid SLP, the Supreme Court, had observed as under: “4. During the course of the hearing, it is conceded on both the sides that no written test would be either feasible or practicable for the appointment of the President of the SCDRC for which a former Judge of the High Court is eligible for appointment. Hence, insofar as appointments to the post of President of the SCDRC are concerned, we direct that the requirement of holding a written examination and viva voce in the terms as envisaged shall stand relaxed for the present. Hence, insofar as appointments to the post of President of the SCDRC are concerned, we direct that the requirement of holding a written examination and viva voce in the terms as envisaged shall stand relaxed for the present. At the same time, it is clarified that the appointments to the office of President of the SCDRC shall be made in consultation with and subject to the concurrence of the Chief Justice of the High Court. 5. As regards the remaining part of the proposals which have been made by the Union Government, we are of the considered view that it is necessary to ensure that the selection process is objective and transparent. Moreover, the Selection Committee must be brought in conformity with the judgments of this Court which hold the field. 6. During the course of the hearing, it has been suggested that the Selection Committee for the appointment of Members of the State Commission and the President and Members of the District Commissions should consist of (i) the Chief Justice of the High Court or their nominee; (ii) the President of the State Commission; (iii) the Law Secretary; and (iv) the Secretary In- charge of the Ministry of Consumer Affairs, who will act as a convenor of the Selection Committee without voting rights. 7. Ms Aishwarya Bhati, Additional Solicitor General, has on behalf of the Union of India submitted that based on the discussions which have taken place during the course of the hearing, as recorded above, the Union Government will come back to this Court with its concrete suggestions in regard to the manner in which it proposes to amend the rules to ensure that due objectivity and transparency is maintained in the appointments across the country to the posts of President of State Commissions as well as President and Members of the District Commissions.” 11. It appears that in sequel to aforesaid order/observation dated 7.3.2024, the Government of India did not come with any proposal or amendment in the Rules. 12. The Supreme Court, vide order dated 21.5.2024 passed in SLP(C) No.25612 of 2023 (supra), ordered that “In the meanwhile, as an interim measure, those of the applicants who are still in service, shall be continued till further orders”; and vide order dated 27.5.2024, passed in the same petition, ordered that “Interim measure which is operated till today, will continue to operative, in the meanwhile”. 13. 13. Vide order dated 27.6.2024, passed in SLP(C) No.25612 of 2023 (supra), the Supreme Court has observed as under: “The applications for intervention where interim relief is sought are not entertained and the same are disposed of with liberty to the applicants to adopt appropriate proceedings in accordance with law. If they have already adopted the remedy before the High Courts, we make it clear that the High Court is free to decide the same in accordance with law. The other applications for intervention will be dealt with at appropriate stage. We have perused the interim order dated 10 th November, 2023. We make it clear that the benefit of the interim order will be available to those Presidents/Chairpersons and Members who were actually in service on the date of the impugned judgment i.e., 20 th October, 2023 provided their second term has not expired. We make it clear that the benefit of interim relief granted vide order dated 10 th November 2023 will not be available to those who have completed their second term. We also make it clear that those who are yet to complete their second term, may complete it in terms of the interim order. But they will cease to be the Presidents or Members, as the case may be, immediately on completion of their second term. In short, no one is entitled to continue for the third term/extension on the basis of the term order of this Court. We further make it clear that in the case of Presidents/Members whose appointments were terminated and who have filed writ petitions before the High Court, it will be open for the High Court to decide their petitions in accordance with law. We make it clear that the observations made in this order are only for the purposes of considering and disposing of the prayer for interim relief. List the matters on 15th July, 2024 for directions before an appropriate Bench.” 14. Aforesaid interim order has been extended by the Supreme Court during adjudication of Special Leave Petition on different dates. 15. After hearing the matters, vide order dated 6.2.2025, judgment has been reserved in aforesaid Special Leave Petition alongwith connected matters. 16. List the matters on 15th July, 2024 for directions before an appropriate Bench.” 14. Aforesaid interim order has been extended by the Supreme Court during adjudication of Special Leave Petition on different dates. 15. After hearing the matters, vide order dated 6.2.2025, judgment has been reserved in aforesaid Special Leave Petition alongwith connected matters. 16. In response to the present petition, vague reply has been filed by referring various orders passed by the Court and provisions, especially Rules 6(1) and 10(2) of Consumer Protection [Qualification for Appointment, Method of Recruitment, Procedure of Appointment, Terms of Office, Resignation and Removal of the President and Members of the State Commission and District Commission] Rules 2020, with statement that as said rules have been quashed by High Court of Judicature at Bombay, Nagpur Bench, vide judgment dated 20.10.2023, passed in Writ Petition No.3680 of 2023, process could not be initiated. 17. During hearing, it also transpired that judgment passed by the Nagpur Bench of High Court of Bombay has been stayed by the Supreme Court in SLP(C) No.25612 of 2023. Therefore, process was initiated by the respondents for filling-up the posts of members of the State Commission as well as members of certain Districts Commissions, which were and are lying vacant and the said process stands completed in November 2024. 18. In this regard, the respondents-State has filed instructions dated 26.3.2025, stating as under: “1. That the State of H.P., i.e. respondents No.1 &2 did not suppress any material facts while filing reply to the aforesaid C.W.P.I.L. The bare perusal of the writ petition reveals that there is no allegation against respondents No.1 & 2 regarding non-appointment of Members in the State/District Commissions. In para 23(A), it is alleged that presently the posts of the Members are also lying vacant in the H.P. State Consumer Disputes Redressal Commission, which allegation as per the petitioner is no denied. However, it is submitted that the process for appointment of Members in the State/District Commissions was initiated by the State Government on 02.05.2024 and applications were invited on or before 03.06.2024. However, it is submitted that the process for appointment of Members in the State/District Commissions was initiated by the State Government on 02.05.2024 and applications were invited on or before 03.06.2024. Thereafter, as per Rule 61) of the Consumer Protection (qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and Members of the State Commissioners) Rules 2020, the matter was taken up with the Registrar General, Hon’ble High Court of H.P. to place the matter before Hon’ble the Chief Justice of the High Court of H.P. regarding nomination of Chairperson of the Selection Committee. Registrar General vide letter dated 9 th July, 2024 conveyed the approval of the Hon’ble the Chief Justice regarding nomination of Chairperson of the Selection Committee. 2. The Selection Committee resolved to hold written test consisting of two papers on 25 th August, 2024. After conducting written test, the result was declared on 25 th October, 2024. Viva voice (sic: Voce) was ordered to be held on 27.11.2024. After holding Viva voice (sic: Voce), the Selection Committee made recommendation for consideration of the State Government vide resolution dated 27 th November, 2024. 3. The respondent No.2, i.e. the Additional Chief Secretary of the Consumer Affairs Department, being the Convener of the Selection Committee, in the month of December, 2024 as per Rule 10 of the ibid rules, submitted the recommendation of the Selection Committee for the consideration of the State Government. 4. Now, the matter is under active consideration of the State Government. Thus, it is submitted that the State Government has not suppressed any material facts from this Hon’ble Court while filing reply of the C.W.P.I.L. 5. The process of the appointment of President, State commission could not be initiated within six months on account of peculiar situation which arose from the order dated 07.03.2024 passed in SLP No.25612 of 2023 and rule 9 which provides that the selection committee shall short list the applicant on the basis of performance in a written test consisting of two papers.” 19. Though it has been stated in the instructions, placed on record by learned Advocate General, that the matter is under active consideration of Government, but we fail to understand what kind of active consideration is there. Though it has been stated in the instructions, placed on record by learned Advocate General, that the matter is under active consideration of Government, but we fail to understand what kind of active consideration is there. Even after four months, no appointment has been made by the respondents- State after receiving the recommendation from the Selection Committee for consideration. Plea of the respondents-State that appointments could not be made on account of judgment passed by Nagpur Bench of High Court of Bombay is also misconceived, as the operation of the judgment was initially stayed by the Nagpur Bench of the High Court of Bombay itself and thereafter Supreme Court has continued the stay and now Petitions have been heard and reserved for judgment. There is no stay on these appointments. 20. Learned Advocate General has submitted that there is no time frame provided in the Rules for making appointment in the Consumer Commission after receiving recommendation from the Selection Committee and, therefore, this Court cannot direct to offer appointment to the recommended candidates on the basis of the recommendation of the Selection Committee submitted to the State. 21. It has been submitted that President of the State Commission also exercises power as Head of Department and Appointing and Disciplinary Authority, in respect of Officers and officials of the State and District Commissions, in pursuant to the directions passed by the Supreme Court in Suo Moto Writ Petition (Civil) No.2 of 2021 and Civil Appeal No.2740 of 2007. 22. It has been further submitted that President of State Commission can only be a sitting or retired Judge of the High Court and, therefore, power of the President of State Commission cannot be delegated to any other Officer, and if there is no President of the State Commission, the entire working of State Commission as well as State Commissions would be affected adversely, which would not only be detrimental to the consumer/litigant but also to the general public, apart from the Advocates who are practicing in the State Commission only. 23. 23. It has been submitted that after retirement of President of the State Commission, on 5.4.2025, entire judicial as well as administrative work of State Commissino will be adversely affected and the same would hamper the functioning of the State Commission in disposing of the cases, resulting into heavy suffering to the consumer/litigant and general public at large, as there would no one to discharge the judicial function of the Commission, which will also result in increase in pendency of cases manifold. 24. To justify the prayer in the Writ Petition, reliance has been placed on interim orders dated 21.5.2024, passed by the Supreme Court in SLP(C) No.25612 of 2023 and other connected matters, order dated 30.9.2024, passed by Punjab and Haryana High Court in CWP No.20554 of 2023 and connected Writ Petition, order dated 31.5.2024 passed by Allahabad High Court in Public Interest Litigation (PIL) No.982 of 2024, order dated 29.2.2024 passed by High Court of Kerala in WP(C) No.7999 of 2024, and order dated 16.10.2024 passed by High Court of Madhya Pradesh at Jabalpur in WP No.28145 of 2024, wherein, in almost similar circumstances, President, Chairman and Member of State and District Commissions have been directed to be continued till further order or appointment of new incumbent. 25. Learned Additional Advocate General, referring judgment dated 4.7.2024, passed by High Court of Judicature at Patna, in Civil Writ Jurisdiction Case No.10067 of 2024, has submitted that President of State Commission can be continued only upto the age of 67 years and, therefore, it may not be appropriate to extend the tenure of the President by passing an order in present matter after the age of 67 years. 26. Referring judgment of the Punjab and Haryana High Court, referred supra, learned counsel for the petitioner have submitted that in State of Punjab, President of the State Commission was continuing by virtue of order passed by the Court even after attaining the age of 68 years. 27. Section 47 of Consumer Protection Act 2019 describes jurisdiction of the State Commission and Section 47(2) is relevant for considering the prayer of the petitioner to continue the President of the State Commission not only for vacancy of two Members of the State Commission but even after appointment of Members of the State Commission. The relevant provision reads as under: “47. The relevant provision reads as under: “47. Jurisdiction of State Commission- (1) ………… (2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit:” 28. It is evident from the aforesaid provision that jurisdiction, power and authority of the State Commission may be exercised by Benches thereof. However, a Bench can be constituted only by the President, but not by Members. Therefore, even if Members are appointed in absence of President, they will not be having power and authority to constitute a Bench and resultantly will not be able to conduct the judicial and administrative function of the State Commission. 29. The Consumer Protection Act, 2019 has been enacted to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers’ dispute sand for matters connected therewith or incidental thereto. Non- functioning of the consumer protection forums will adversely affect the consumers at large. 30. In the Statement of Object and Reasons for enacting Consumer Protection Act, 2019, it has been stated that the modern market place contains a plethora of products and services. The emergence of global supply chains, rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and services and have provided new options and opportunities for consumers. Equally, this has rendered the consumer vulnerable to new forms of unfair trade and unethical business practices. Misleading advertisements, tele-marketing, multi-level marketing, direct selling and e-commerce pose new challenges to consumer protection and require appropriate and swift executive interventions to prevent consumer deteriment. The National, State and District Commissions have been established to address the myriad and constantly emerging vulnerabilities of the consumers. 31. As recorded supra, process for appointment of two Members of the State Commission as well as some Members of District Commissions has been completed in November 2024 and is pending consideration with the State Government since December 2024. The respondents-State is not expected to act in a casual manner with respect to appointments in State and District Commissions, particularly keeping in view the object and reasons for enactment of Consumer Protection Act and purpose of establishing Consumer Commissions thereunder in the interest of poor consumer. The respondents-State is not expected to act in a casual manner with respect to appointments in State and District Commissions, particularly keeping in view the object and reasons for enactment of Consumer Protection Act and purpose of establishing Consumer Commissions thereunder in the interest of poor consumer. The Consumer Protection Act is a beneficial legislation. For good governance it is expected from the State to act promptly in the matter of appointment of Presidents and Members of State and District Commissions. 32. Though it is right of the State to make appointment on the basis of recommendation of the Selection Committee, however, such appointment cannot be deferred for indefinite period or considerably long period. Time of four months is more than sufficient for the respondents to consider, apply mind and offer appointment to the recommended candidates by completing the entire exercise promptly, especially keeping in view the aim and object for which Consumer Commissions have been established. There may be other measures for reducing or avoiding expenditure to save public exchequer, but delaying the appointments to the institutions like Consumers Commissions and other such institutions, performing the job of imparting justice by adjudicating the matter, is definitely arbitrary and against the public interest as well as good governance. 33. Therefore, there is no reason for the Respondents-State to sit over the recommendation of the Selection Committee for indefinite period. 34. It may not be advisable to direct the State to initiate the process of appointment of President of State Commission before passing of judgment by the Supreme Court, particularly keeping in view the fact that judgment has been reserved. However, it is apt to record that during pendency of the Special Leave Petition, for interim stay granted by the Supreme Court against the Nagpur Bench judgment; even considering observation and submission made before the Supreme Court that it would not be advisable to prescribe written test for appointment to the post of President of the State Commission, for appointment to which only a sitting or retired High Court Judge is eligible; there was and is no legal or other impediment to the respondents-State to initiate process of appointment at least to the post of Members of State and District Commissions. Appointments to the posts of Member of the Commissions can be made particularly when respondents have completed the process during pendency of the Special Leave Petition before the Supreme Court, but on the strength of interim stay granted by the Nagpur Bench of the High Court of Bombay, continued by the Supreme Court. 35. In view of above discussion, taking into consideration submissions made by learned counsel for the parties and orders passed by various High Courts and Supreme Court, we are consider it appropriate to issue following directions to the respondents-State: 1. Respondents are directed to ensure appointment of Members of Himachal Pradesh State Consumer Redressal Commission as well as District Consumer Commissions, after considering the recommendations of the Selection Committee made in order of merit, on or before 4.4.2025. 2. President of Himachal Pradesh State Consumer Redressal Commission is also directed to be continued, as a temporary arrangement, till regular appointment is made, by the respondents, irrespective of his age and date of retirement. 3. Process for filling up post of President of Himachal Pradesh State Consumer Redressal Commission be initiated immediately after passing of the judgment by the Supreme Court in Special Leave Petition No.25612 of 2023 and other connected matters. 36. Petition is allowed and disposed of in aforesaid terms alongwith pending application, if any, with direction to the respondents to file compliance affidavit on or before 10.4.2025. List for compliance on 11.4.2025, before appropriate Bench.