Vijaykumar Bhima Dighe Vs Union of India (Bombay High Court, Nagpur Bench)
The Rules 3(2)(b) and 4(2)(c) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of the State Commission and District Commission) Rules 2020 (Rules of 2020) to the extend prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Commission under the Act of 2019, is an attempt to circumvent the directions issued in MBA-2020 and UPCPBA. Hence, they are arbitrarily, illegal and violates principle of equality before law.
In the circumstances, we have no hesitation to hold that the Rules 3(2)(b) and 4(2)(c) of the Rules of 2020 prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Commission, are unconstitutional and violative of Article 14 of the Constitution of India.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT, NAGPUR BENCH
With great power comes great responsibility. In fact, power howsoever small or big comes with proportionate responsibility as they are complimentary to each other. Whenever the principle of proportionality is violated, the effect would be disastrous. It follows that, greater the power attached to any post, stricter the criteria must be for appointment to such post. The posts to which the Rules under challenge here apply, are the posts governed by this principle.
2. In these two petitions the grievance revolves around the criteria adopted for selection of President and Members of the State Commission and District Commission, constituted under the Consumer Protection Act 2019 (for short ‘the Act of 2019’), which according to the petitioners, is not analogous to the function and powers of Commissions, under the Act of 2019.
3. The facts giving rise to both these petitions, are as follows :
The Ministry of Consumer Affairs, Food and Public Distribution, New Delhi in exercise of the power conferred under Sections 29 and 43 read with clauses (n) and (w) of sub-section 2 of Section 101 of the Act of 2019, framed Rules, vide notification dated 15th July, 2020, called as Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of the State Commission and District Commission) Rules 2020 (In short “the Rules of 2020”).
4. The Rules 3(2)(b) and 4(2)(c) of the Rules 2020 deal with the eligibility criteria seeking experience of not less than 20 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, for the post of Members of State Commission and experience in similar fields of not less than 15 years for the post of President and Members of District Commission. Rule 6 of the Rules of 2020, is in respect of procedure of appointment. Sub-rule 9 of Rule 6 permits the Selection Committee to determine its procedure for making its recommendations keeping in view the requirement of the State Commission or the District Commission and after taking into account the suitability, record of past performance, integrity and adjudicatory experience.
5. In pursuance to Rule 6, the State of Maharashtra constituted a Selection Committee vide Government Resolution dated 6th November, 2020. Consequently, the applications were invited for the post of President and Members of State Consumer Disputes Redressal Commission and District Consumer Redressal Commission under the Act of 2019. The said notice inviting applications gave cause to the respective petitioners to file these petitions.
6. The Public Interest Litigation No.11 of 2021 was filed before the Principal Bench of this Court, at Bombay and the same was transferred to Nagpur Bench, to be heard along with pending Writ Petition No. 1096 of 2021.
7. In Public Interest Litigation No. 11 of 2021 the following prayers are made:
A. The Public Interest Litigation may kindly be allowed;
B. This Honourable Court be pleased to hold and declare that the provisions in Rule 6(9) of Consumer Protection (Qualification for Appointment, Method of Recruitment, Procedure of Appointment, Term of Office, Resignation and Removal of the President and Member of the State Commission and District Commission) Rules, 2020, is arbitrary, unreasonable and violative of Article 14 of the Constitution of India and be pleased to strike down the same to the extent of determining its procedure for making its recommendation or in the alternatively be pleased to read down the same and declare that the Selection Committee shall conduct a written test and viva voce of the candidate before making recommendation for the post of President and the Member of the District Commission and the State Commission of State of Maharashtra.
C. During pendency of this Petition, be pleased to restrain the Respondent from appointing any person on the post of the President and the member of the District Commission and the State Commission as per advertisement dated 2.2.2021 without conducting a written test and viva voce in view of the judgment of the Honourable Supreme Court of India in State of UP vs. UP Consumer Protection Bar Association, the Honourable Supreme Court approved the Model Rules of Order dated 18.05.2018 and dated 21.11.2016.
C. Ad-interim relief in terms of prayer clause(c).
D. Any other suitable and equitable relief may kindly be granted in favour of the petitioners, in the interest of justice and facts and circumstances of the case.
Whereas, in the Writ Petition No. 1096 of 2021 the following prayers are made:
i) Quash and set aside the said Rules 2020 framed under Section 101 of the Consumer Protection Act, 2019 (ANNEXURE-P-2) dated 15.07.2020 made by respondent No.3 as the same are illegal and ultra virus, bad in law & violation of directions issued in judgments by Hon Supreme Court in the matter of State of Up Vs. Up Consumer Protection Bar Association in Civil Appeal No:-2740-2007 & Madras Bar Association Vs Union of India, Writ Petition (C) No 804 of 2020, decided on 27.11.2020.
ii) Grant ad-interim, ex-parte stay to the effect, operation and implementation of the said Rules 2020 (ANNEXURE-P-02) dated 15.07.2020 till the decision of instant petition.
iii) Quash and set aside the vacancy Notice dated 02.02.2021 (ANNEXURE-P-01) issued by respondent No.2 for inviting application for the post of the Presidents and the members of the District Commissions and the members of State Commission in Maharashtra as the same is illegal and bad in law for the reasons stated in this petition.
iv) Grant ad-interim, ex-parte stay to the effect, operation and implementation of the Vacancy Notice dated 02.02.2021 (ANNEXURE-P-01) till the decision of petition.
v) Confirm ad-interim ex-parte stay granted as per prayer clause (ii & iv) above till the decision of petition.
vi) Restrain the respondents or their agents and servants from making any appointment of presidents and the members of the District Commissions and the members of State Commission in Maharashtra during the pendency of this writ petition.
vii) Grant any other relief which this Ho’ble Court deems fit in the facts and circumstances of the case in favor of the petitioner.
8. In both these matters, on 30th June, 2021 the selection process initiated for appointment of Members of State Commission, was made subject to the final results of these petitions, by this Court.
9. We have heard the learned counsel for the respective parties.
10. Dr. Uday Warunjikar, learned counsel for the petitioner in Public Interest Litigation No. 11 of 2021, argues that under the Rules of 2020, the power conferred upon the Selection Committee to determine its own procedure for selection of President and Members of the District and State Commission constituted under the Act of 2019, is in contravention of the directions issued by the Hon’ble Supreme Court of India in the case of State of Uttar Pradesh and others Vrs. All Uttar Pradesh Consumer Protection Bar Association. 1 (hereinafter referred as ‘UPCPBA’). Thus, he submits that the Rule 6(9) of the Rule 2020 is ultra virus.
11. It is submitted that looking at the judicial functions to be performed by President and Members of the District and State Commissions constituted under the Act of 2019, the selection without holding written examination, but, only on the basis of viva-voce, would result into selection of unsuitable candidates which will further result in denial of justice.
12. Dr. Uday Warunjikar, learned counsel for the petitioner further submits that no justification has been offered by the respondents for not following uniform process across country, for appointments, as directed by the Hon’ble Supreme Court of India in the case of UPCPBA.
13. The learned counsel for the petitioner, fairly concedes that in absence of any challenge raised to the appointment of the President of the State Consumer Dispute Redressal Commission, State of Maharashtra, which was made during the pendency of the petition, he does not want to raise any grievance about the same.
14. Shri Mandlekar, learned counsel for the petitioner appearing in Writ Petition No. 1096 of 2021, reiterated the contentions raised by Shri Warunjikar. However, in addition, he has submitted that, prescribing minimum experience of 20 and 15 years for President and Members of State and District Commission respectively, in the fields stipulated in the advertisement as one of the eligibility criteria, is contrary to the directions issued by the Hon’ble Supreme Court of India in the case of Madras Bar Association Vrs. Union of India 2 (herein after referred as “MBA-2020”) and in the case of UPCPBA. It is submitted that the said condition would deprive many lawyers who are otherwise qualified and have legal expertise and experience of 10 years or more.
15. Shri Mandlekar, learned counsel for the petitioner in support of his contentions also relies upon the following judgments.
i. Union of India Vrs. R. Gandhi, President, Madras Bar Association3 (hereinafter referred as “MBA-2010”)
ii. Madras Bar Association Vrs. Union of India4 (hereinafter referred as “MBA-2021”)
iii. State of Rajasthan and others Vrs. Basant Nahata5
16. Per contra, Shri Aurangabadkar, learned ASGI submits that it may not be possible to conduct the written test as demanded by the petitioners, which may further delay the process of selection. He submits that the State Government is expected to exercise complete transparency in the selection procedure. It is submitted that the procedure which has been adopted by the Selection Committee is as per the powers conferred upon the Selection Committee under the Rules of 2020, and therefore there is no illegality committed by the Selection Committee in this matter.
17. Shri Amit Madiwale, appearing for the State, submits that the Respondent-State is following the procedure to fill up the vacancies in the State and District Consumer Commissions, as stipulated under the Rules of 2020. Our attention has been drawn to paragraph 6 of the affidavit in reply filed by the State, dated 29th July, 2021, inter alia stating therein that in response to the advertisement dated 2nd February, 2021, total 1138 applications were received for 25 vacant posts of President, District Consumer Disputes Redressal Commission and Member, District Consumer Disputes Redressal Commission. It is further pointed out that considering the huge number of applications it was not possible to take interviews of all the candidates who are eligible for these posts. Therefore, the Selection Committee decided to take written exam of the candidates through an agency which is on Government Panel.
18. It is further pointed out that considering the vacant posts, the Selection Committee has decided to take interviews of 125 candidates i.e. in 1:5 ratio, on merit as per the decision dated 9th July, 2021. By arguing so, he prays for dismissal of petition.
19. To consider the rival contentions of the parties, we have perused the record and gone through various relevant judgments.
20. Before touching on the challenge raised in these petitions, we are of the opinion that a brief reference to the historical background of Tribunalisation in India, is necessary for better understanding of the controversy.
21. In a democratic country like India, judicial functions and judicial powers constitute the essential attributes of a sovereign State and are entrusted to regularly established Courts by the Constitution of India through a pattern of common law system. There are constitutional rights, statutory rights, human rights and natural rights, protection and implementation of which depends on proper administration of justice.
22. There is a three tier judicial system, in India. The subordinate Courts, the High Courts and the Supreme Court. The subordinate Courts are vested with the original jurisdiction in all matters except those, which are barred either expressly or impliedly. The High Courts have appellate and revisional jurisdiction along with the jurisdiction to issue prerogative writs. Some of the High Courts have original jurisdiction as well. The Hon’ble Supreme Court has original jurisdiction and advisory jurisdiction where the President of India may seek opinion. It can issue prerogative writs and has appellate jurisdiction. The Supreme Court has also discretion to entertain Special Leave Petition.
23. The delay and backlog in administration of justice had raised a concern. The Law Commission of India therefore, in its Fourteenth Report (1958) made recommendations for reforming the administration of justice delivery system which have been implemented from time to time to revamp the judicial system with a view to reduce delay and enlarge access to justice.
24. The Tribunal, as a result, emerged as an effective mechanism to reduce the backlog and delay in administration of justice.
25. The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrate of the Classical Roman Republic’.
26. In India, history of Tribunals dates back to the year 1941, when first Tribunal was established in the form of Income Tax Appellate Tribunal.
27. The Hon’ble Supreme Court of India has in various judgments explicitly held that tribunals have been established with the object of discharging quasi-judicial duties by acting judicially which differentiates them from other administrative bodies. A tribunal is neither a Court nor an executive body, but they have an obligation to act judicially. Tribunals are endowed with the judicial functions as distinguished from purely administrative or executive functions. As a quasi-judicial body, the Tribunal performs the judicial functions for deciding the matters in a judicious manner. It is not bound by law to observe all the technicalities, complexities, refinement, discrimination and restrictions that are applicable to the Courts of record in conducting trials, but at the same time, a tribunal is required to look at all matters from the standpoint of substance as well as form and be certain that the hearing is conducted and the matter is disposed of with fairness, honesty, and impartiality.
28. The Constitution (42nd Amendment) Act of 1976 brought about a massive change in the adjudication of disputes in the Country. It has provided for the insertion of Articles 323-A and 323-B in the Constitution of India, whereby the goal of establishment of Administrative Tribunals by Parliament as well as State Legislature, to adjudicate the matters specified is made possible.
29. The statement of objects and reasons for insertion of Articles 323A and 323B show that it were to reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain matters of special importance in the context of the socioeconomic development and progress, it is considered expedient to provide administrative and other tribunals for dealing with such matters while presenting the jurisdiction to the Supreme Court in regard to such matters under Article 136 of the Constitution of India and to make certain modifications in writ jurisdiction of the High Court’s under Article 226 of the Constitution of India.
30. Hence, looking to the desperate need to overcome hurdles of delay in administration of justice, creation of tribunals has evolved itself as one solution.
31. The Hon’ble Supreme Court of India in the case of Rojer Mathew Vrs. South Indian Bank Ltd.,6 has observed that the delay and backlog in the administration of justice is of paramount concern for any country governed by the rule of law. In our present judicial set up, disputes often take many decades to attain finality, travelling across a series of lower Courts to High Court and ending with an inevitable approach to the Supreme Court. Such Crawling pace of justice delivery system only aggravates the misery of affected parties. It is further observed that it would, however, be wrong to place the blame of such delay squarely on the judiciary, an expirical examination of pending cases clearly demonstrates that the ratio of judges against the Country’s population is one of the lowest in the world and the manpower (support staff) and infrastructure provided is dismal. In addition to the delay in administration of justice, another important facet requiring attention is the rise of specialization and increase of complex and commercial aspects, which require esoteric appraisal and adjudication. The existing lower Courts in the Country are not well equipped to deal with such complex new issues which see constant evolution as compared to the stable nature of existing civil, criminal and tax jurisdiction.
32. Thus, due to expansion of Government activities in the social and other similar fields along with commercial ventures in different sectors, a need had arisen for availing the services of persons having knowledge in specialized fields for effective and speedier dispensation of justice, whereas, the traditional mode of administration of justice by the Courts of law was felt to be unequipped with such expertise to deal with the complex issues arising in the changing scenario. Hence, Tribunal not only emerged as an effective mechanism to ameliorate the burden of judiciary but also with the expertise and knowledge in specialized area.
33. However, when the jurisdiction relating to some special matters was shifted from Courts to Tribunals, issues relating to lack of uniformity in the matter of qualification, appointment and service conditions had emerged and surfaced.
34. In the case of Gujarat Urja Vikas Nigam Ltd vs Essar Power Limited7, the Hon’ble Supreme Court of India framed certain questions and requested the Law Commission to give its report on it. Accordingly, the Law Commission on 27th October, 2017 submitted its 272nd report titled as “Assessment of Statutory Frame Work of Tribunals in India”, for consideration of Central Government. The questions and conclusions to each of the questions framed by the Hon’ble Supreme Court of India, are tabulated, as follows :
