Bombay High court struck down Rue 6(1) of Rule 2020 of Consumer Protection Act 2019

(Consequences of the order)

The burning question of the day is as to whether Judgment passed by the Hon’ble High court of Maharashtra ,Pune bench shall invalidate all the process followed by the selection committee for filing as many as 112 vacancies of Presidents /Members of Consumer commissions in the state

Reference Case: High Court of Judicature at Bombay, Nagpur Bench, Writ Petition No. 3680/2023 Dr.Mahendra Bhaskar Limaye & others

Versus.

1. Union of India, Through its Secretary, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Krushi Bhavan, New Delhi.

2. State of Maharashtra, Through its Secretary, Food and Civil Supplies and Consumer Affairs, Department/Ministry, Mantralaya, Mumbai-32.

Dr Prem Lata ,Legal Head

 

Facts &Relief sought in writs: WPs 3680, 2107 & 2496-23

These writ petitions filed under Article 226 of the Constitution of India –

·         Seek to raise a challenge to Rule 6(1) and Rule 10(2) of the Consumer

Protection Act 2019 (Qualification for Appointment, method of recruitment,

Procedure for appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission)

·         A declaration has also been sought that the petitioners who were the members at various District Commissions are eligible for re-appointment to the post of member of the District Commission under Rule 10(2) of the Rules of 2020.

 

Two Issues: Writ Petition No. 2107 of 2023

Writ Petition No. 2107 of 2023 has been preferred by Members at District Commissions in the State of Maharashtra. Besides raising challenging to

·         Rule 6(1) of the Rules of 2020

·          The provisions of Rule 10(2) of the said Rules are challenged to the extent the tenure of the District Commission is restricted to a period of four years.

·         The petitioners seek a declaration that they are eligible for being considered for re-appointment to the post of member on the basis of earlier successfully completed the process of selection which included written examination and interview as per the Rules prevailing then.

 

Similar issue: Writ Petition No. 2496 of 2023

Writ Petition No. 2496 of 2023 filed by the petitioners who were functioning as President/members of District Commissions in the State of Maharashtra.

 

·         Seek a declaration that they are eligible for being considered for re-appointment to the post of President/Members of the District Commission on the basis of having completed the process of selection including written examination and interview as per the prevailing rules.

 

Common Judgment passed in WPs 3680, 2107 & 2496-23 

 

Issues -1: Dominance of executives over Judicial Person, chairman

(Writ 3680 of 2023) Challenge to Rule 6(1) of the Rules of 2020:

 

 Rule 6(1) of the Rules of 2020 reads as under:-

“6 Procedure of appointment. -- (1) The President and Members of the State Commission and the District Commission shall be appointed by the State Government on the recommendation of a Selection Committee, consisting of the following persons, namely:-

(a) Chief Justice of the High Court or any Judge of the High

Court nominated by him-Chairperson;

(b) Secretary in charge of Consumer Affairs of the State

Government – Member;

(c) Nominee of the Chief Secretary of the State – Member.”

According to the said provision, the President and the Members of the State Commission and the District Commission can be appointed by the State Government on the recommendation of the Selection Committee. The constitution of the Selection Committee consisting of two members from the Executive as the Secretary in-charge of the Consumer Affairs and a nominee of the Chief Secretary of the State, the doctrine of separation of powers is violated. In the light of the law laid down in these decisions, it is the contention of the petitioners that Rule 6(1) of the Rules of 2020 compromises the aspect of primacy to the judiciary in the Selection.

Hence HC HELD –

ü  Rule 6(1) invalid and the notifications dated 10.04.2023 and 13.06.2023 would not survive. They are accordingly quashed.in the light of earlier decided case by the SC in the matter of Rojer Mathew Versus South Indian Bank Limited & Others [(2020) 6

SCC 1],

ü  Madras Bar Association (M.B.A. III) Versus Union of India &

Another [(2021) 7 SCC 369] and

ü  Madras Bar Association (M.B.A. IV)Versus Union of India & Another [2021 SCC OnLine SC 463].

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. They are accordingly quashed.

 

Issue No -2.   Tenure and re-appointment of members /president

(Writ 2017 of 2023 & Writ Petition No. 2496 of 2023) 

Challenge to Rule 10(2) as regards tenure of four years:

 

Rule 10(2) of the Rules of 2020 has been challenged to the extent the tenure of Office of Member of the State Commission as well as President and Member of the District Commission has been restricted for a term of four years or up to the age of 65 years whichever is earlier. Rule 10(2) of the Rules of 2020 reads as under:

“10. Term of Office of President or Member. –

(1) ……….

(2) Every member of the State Commission and the President

and every member of the District Commission shall hold office for

a term of four years or up to the age of sixty-five years, whichever

is earlier and shall be eligible for reappointment for another term

of four years subject to the age limit of sixty-five years, and such

re appointment shall be made on the basis of the recommendation

of the Selection Committee.”

Held

ü  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).

 

Issue -3 Applicability of Rule 8(18) in re-appointment cases

Plea taken in these cases is that Rule 8(18) of the said Rules indicates aspects to be taken into consideration by the Selection Committee while making recommendation for re appointment. and the confidential reports, disposal of cases, performance during the first appointment, general reputation of a candidate be considered

It is to be noted that Rule 6(9) of the Rules of 2020 empowering the Selection Committee to determine its procedure for making its recommendation has been struck down by this Court in Vijay Kumar Bhima Dighe (supra) which judgment has been upheld by the Hon’ble Supreme Court. As a result Rule 6(9) of the Rules presently does not find place in the statute book. As a result there is no power with the Selection Committee to determine its procedure for making its recommendation in the matter of appointments to the post of Members of the State Commission including re-appointment cases. In other words, Selection Committee presently cannot determine its procedure for making its recommendations in the matter of appointment either fresh or re-appointment

 

Issue-4.Validity of advertisement dated 23.05.2023

 

Plea taken :The advertisement dated 23.05.2023 is under challenge on the ground that the Hon’ble Supreme Court while issuing directions under Article 142 of the Constitution of India in The Secretary, Ministry of Consumer Affairs (supra) had directed holding of written test consisting of two papers. Since department has not followed the direction of SC, advertisement dated 23.05.2023 be declared invalid

Background;

Hon’ble Supreme Court has held that till suitable amendments were made in the Rules of 2020, directions were being issued under Article 142 of the Constitution of India that the appointment of President and Members of the State Commission and District Commission

should be made on the basis of performance in the written test consisting of two papers as indicated. The said direction reads as under:-

Paper-I (a) General Knowledge and current affairs

(b) Knowledge of Constitution of India (c) Knowledge of various Consumers related Laws as indicated in the Schedule (Objective Type 100 2 Hours)

 

Paper-II (a) One Essay on topics chosen from issues on trade

and commerce consumer related issues or Public Affairs.(b) One case study of a consumer case for testing the abilities of analysis and

Cogent drafting of orders Descriptive type

 

The notice issued by the Department insofar as Paper-II is concerned states that in the said paper there would be an essay question where a candidate would have to attempt two topics, one topic to be necessarily answered in English language and another necessarily to be in Marathi language. In the case study section two case studies were to be attempted, one in English and another in Marathi.

ü  Be noted that under Section 101(2)(n) of the Act of 2019 the Central Government has been empowered to make rules with regard to qualifications for appointment, method of recruitment, procedure for appointment, term of office, resignation and removal of President and members of the District Commission under Section 29 of the Act of 2019. There is no power conferred on the State Government to prescribe the mode of recruitment.

ü  Further the Hon’ble Supreme Court having issued directions under Article 142 of the Constitution of India indicating the manner in which written test consisting of two papers was to be conducted and specifically prescribing one essay and one case study with regard to Paper-II, it would be beyond the authority and jurisdiction of the Department to prescribe something more in addition to the directions issued under Article 142 of the Constitution of India.The said directions do not confer any right on the Department to require candidates to also necessarily answer one topic and attempt one case study in Marathi language besides attempting such questions in English.

ü  In the said circular,negative marking for wrong answers is also provided which is also beyond the jurisdiction of state Government

 

Final order

 

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 Vijay Kumar Bhima Dighe Versus Union of India & Others [Public Interest Litigation No.11 of 2021 alongwith Writ Petition No. 1096 of 2021].

 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, meaning thereby considering the past performance as per Rule 8(18) of the Rules of 2019,

 

(E) The notice issued by the Department of Food, Civil Supplies and Consumer Affairs along with the advertisement dated 23.05.2023 in relation to Paper-II is held to be without jurisdiction. 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 Versus Dr.Mahindra Bhaskar Limaye & Others [2023 (SC) 161].

 

 

Operation of the judgment be stayed for a period of eight weeks for filing appeal

 

By Dr Prem Lata 

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