# THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. MAHINDRA BHASKAR LIMAYE & ORS

- **Citation:** [2023] 4 S.C.R. 289
- **Court:** Supreme Court of India
- **Decided:** 2023-03-03
- **Case number:** Civil Appeal No. 831 of 2023
- **Bench:** M. R. Shah, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-ministry-of-consumer-affairs-v-dr-mahindra-bhaskar-limaye-ors-37041
- **Pages:** 35

## Headnote

Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
District Commission) Rules, 2020 - rr.3(2)(b), 4(2)(c), 6(9) - Validity
of - Held: rr.3(2)(b), 4(2)(c), 6(9) which are contrary to the
decisions of Supreme Court in State of Uttar Pradesh and Others v.
All Uttar Pradesh Consumer Protection Bar Association [2016] 8 SCR
851 and Madras Bar Association v. Union of India and Another [2020]
2 SCR 246 are unconstitutional, arbitrary and violative of Art.14 -
rr.3(2)(b) & 4(2)(c) struck down to the extent providing minimum
20 years' and 15 years' experience for appointment as a Member in
the State and District Commission, respectively - Central Government
and the concerned State Governments to amend the 2020 Rules -
Till amendments are made, directions issued for appointment of
President and Members of the State Commission and District
Commission - A person having bachelor's degree from a recognized
University and who is a person of ability, integrity and standing
and having special knowledge and professional experience of not
less than 10 years in consumer affairs, law, public affairs etc., shall
be treated as qualified for appointment of President and Members
of the State and District Commission - Appointment shall be made
on the basis of performance in written test consisting of two papers
- Qualifying marks in each paper shall be 50% and there shall be
a viva voce of 50 marks - Consumer Protection Act, 2019 -
Consumer Protection Act,1986 - Consumer Protection(Appointment,
Salary, Allowance and Conditions of Service of President and
Members of State Commission and District Forum) Rules, 2017 -
Constitution of India - Art.14, 142.
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
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[2023] 4 S.C.R.
and removal of President and Members of State Commission and
District Commission) Rules, 2020 - r.6(9) - Held: Under r.6(9), the
Selection Committee is empowered with uncontrolled discretionary
power to determine its procedure to recommend candidates to be
appointed as President and Members of the State and District
Commission - Transparency and selection criteria are absent -
While making the appointment as Members of the District Fora,
State Commission there is a need to assess the skill, ability, and
competency of the candidates before they are empanelled and
recommended to the State Government - 2020 Rules do not
contemplate written examination to test the merits of the candidate
- Written examination which was confirmed by the Supreme Court
has been removed under the new 2020 Rules - No justification shown
to do away with it - Consumer Protection Act, 2019 - Consumer
Protection Act, 1986 - Consumer Protection (Appointment, Salary,
Allowance and Conditions of Service of President and Members of
State Commission and District Forum) Rules, 2017.
Tribunals - Quasi-judicial authorities, standards expected
from the members - Held: Commissions are quasi-judicial authorities,
therefore, the standards expected from the members of the tribunal
should be as nearly as possible as applicable to the appointment of
judges exercising such powers - Consumer Protection Act, 2019 -
Consumer Protection (Qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
District Commission) Rules, 2020 - Consumer Protection Act, 1986
- Consumer Protection (Appointment, Salary, Allowance and
Conditions of Service of President and Members of State Commission
and District Forum) Rules, 2017.
Disposing of the appeals, the Court
HELD: 1.1 The High Court in the impugned judgment and
order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c)
and Rule 6(9) of the Rules, 2020 which are contrary to the

## Text

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[2023] 4 S.C.R. 289
289
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS
v.
DR. MAHINDRA BHASKAR LIMAYE & ORS.
(Civil Appeal No. 831 of 2023)
MARCH 03, 2023
[M. R. SHAH AND M. M. SUNDRESH, JJ.]
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
District Commission) Rules, 2020 - rr.3(2)(b), 4(2)(c), 6(9) - Validity
of - Held: rr.3(2)(b), 4(2)(c), 6(9) which are contrary to the
decisions of Supreme Court in State of Uttar Pradesh and Others v.
All Uttar Pradesh Consumer Protection Bar Association [2016] 8 SCR
851 and Madras Bar Association v. Union of India and Another [2020]
2 SCR 246 are unconstitutional, arbitrary and violative of Art.14 -
rr.3(2)(b) & 4(2)(c) struck down to the extent providing minimum
20 years' and 15 years' experience for appointment as a Member in
the State and District Commission, respectively - Central Government
and the concerned State Governments to amend the 2020 Rules -
Till amendments are made, directions issued for appointment of
President and Members of the State Commission and District
Commission - A person having bachelor's degree from a recognized
University and who is a person of ability, integrity and standing
and having special knowledge and professional experience of not
less than 10 years in consumer affairs, law, public affairs etc., shall
be treated as qualified for appointment of President and Members
of the State and District Commission - Appointment shall be made
on the basis of performance in written test consisting of two papers
- Qualifying marks in each paper shall be 50% and there shall be
a viva voce of 50 marks - Consumer Protection Act, 2019 -
Consumer Protection Act,1986 - Consumer Protection(Appointment,
Salary, Allowance and Conditions of Service of President and
Members of State Commission and District Forum) Rules, 2017 -
Constitution of India - Art.14, 142.
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
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and removal of President and Members of State Commission and
District Commission) Rules, 2020 - r.6(9) - Held: Under r.6(9), the
Selection Committee is empowered with uncontrolled discretionary
power to determine its procedure to recommend candidates to be
appointed as President and Members of the State and District
Commission - Transparency and selection criteria are absent -
While making the appointment as Members of the District Fora,
State Commission there is a need to assess the skill, ability, and
competency of the candidates before they are empanelled and
recommended to the State Government - 2020 Rules do not
contemplate written examination to test the merits of the candidate
- Written examination which was confirmed by the Supreme Court
has been removed under the new 2020 Rules - No justification shown
to do away with it - Consumer Protection Act, 2019 - Consumer
Protection Act, 1986 - Consumer Protection (Appointment, Salary,
Allowance and Conditions of Service of President and Members of
State Commission and District Forum) Rules, 2017.
Tribunals - Quasi-judicial authorities, standards expected
from the members - Held: Commissions are quasi-judicial authorities,
therefore, the standards expected from the members of the tribunal
should be as nearly as possible as applicable to the appointment of
judges exercising such powers - Consumer Protection Act, 2019 -
Consumer Protection (Qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
District Commission) Rules, 2020 - Consumer Protection Act, 1986
- Consumer Protection (Appointment, Salary, Allowance and
Conditions of Service of President and Members of State Commission
and District Forum) Rules, 2017.
Disposing of the appeals, the Court
HELD: 1.1 The High Court in the impugned judgment and
order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c)
and Rule 6(9) of the Rules, 2020 which are contrary to the
decisions of this Court in the cases of State of Uttar Pradesh and
Others Vs. All Uttar Pradesh Consumer Protection Bar Association
(UPCPBA) and the Madras Bar Association are unconstitutional
and arbitrary. Even otherwise Rule 6(9) lacks transparency and
it confers uncontrolled discretion and excessive power to the
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Selection Committee. Under Rule 6(9), the Selection Committee
is empowered with the uncontrolled discretionary power to
determine its procedure to recommend candidates to be appointed
as President and Members of the State and District Commission.
The transparency and selection criteria are absent under Rule
6(9). In absence of transparency in the matter of appointments of
President and Members and in absence of any criteria on merits
the undeserving and unqualified persons may get appointment
which may frustrate the object and purpose of the Consumer
Protection Act. It cannot be disputed that the Commissions are
empowered with the powers of court and are quasi-judicial
authorities and empowered to discharge judicial powers with the
adequate powers of the court including civil and criminal.
Therefore, the standards expected from the members of the
tribunal should be as nearly as possible as applicable to the
appointment of judges exercising such powers. Under Rule 6(9)
of Rules, 2020, the Selection Committee is having power to
determine its own procedure. Such provisions are also giving
excessive and uncontrolled discretionary powers to the Selection
Committee. As rightly observed and held by the High Court,
considering the object on behalf of the Consumer Protection Act,
2019, such uncontrolled discretion power to determine its
procedure for making its recommendation for appointment of
President and Members of the District and the State Commissions
is arbitrary and unreasonable. It is always desirable that while
making the appointment as Members of the District Fora and/or
the State Commission there is a need to assess the skill, ability,
and the competency of the candidates before they are empanelled
and recommended to the State Government. The Rules, 2020 do
not contemplate written examination so as to test the merits of
the candidate. In the case of UPCPBA, this Court expressed
deep concern over the bureaucratic and political interference in
process of appointments. [Paras 6.4, 6.5][319-E, H; 320-A-D]
Madras Bar Association v. Union of India and Another
(2021) 7 SCC 369 : [2020] 2 SCR 246; State of Uttar
Pradesh and Others v. All Uttar Pradesh Consumer
Protection Bar Association (2017) 1 SCC 444 : [2016]
8 SCR 851 - relied on.
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE
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1.2 Mechanism of having written examination was confirmed
by this Court which has been removed under the new Rules,
2020. Earlier under Consumer Protection Act, 1986, there were
Rules, 2017 in so far as some of the States are concerned and
Rules, 2019 so far as the State of Maharashtra is concerned, which
provided for a written examination and viva voce, which was under
the Consumer Protection Act, 1986. The Consumer Protection
Act, 1986 has been repealed and the Consumer Protection Act,
2019 has come into force w.e.f. 24.07.2020 with a sole intention
to provide adequate safeguards to the consumers and the
pecuniary jurisdiction of the District Fora and State Commissions
are enhanced substantially. However, there is no substantial
change in the scheme with respect to the adjudication of the
consumer disputes. No justification at all is shown to do away
with the written examination while framing the Rules, 2020 under
the Consumer Protection Act, 2019. Therefore, as rightly
observed by the High Court, the Rule 6(9) of the Rules, 2020 is
unconstitutional, arbitrary and violative of Article 14 of the
Constitution of India, more particularly, when the same is wholly
impermissible to override/overrule the earlier decisions of this
Court and that too without any justification. This Court is in
complete agreement with the view taken by the High Court. [Paras
6.6-6.8][320-E-H; 321-A]
1.3 Under provision 4(1) of Rules, 2020, a person who is
eligible to be appointed as a district judge (having minimum
experience of 7 years) is qualified to be appointed as President
of the District Commission but in order to be appointed as a
Member, Rule 4(2)(c) mandates a minimum experience of 15
years which is rightly held to be violative of Article 14 of the
Constitution. Similarly providing 20 years' experience under Rule
3(2)(b) also rightly held to be arbitrary and violative of Article 14
of the Constitution. Even under Rule 3(1) a judge of the High
Court, present or former, shall be qualified for appointment of
the President. As per Article 233 of the Constitution, a lawyer
needs to have only 7 years of practice as an advocate in High
Court. Under the circumstances to provide 20 years' experience
under Rule 3(2)(b) is rightly held to be unconstitutional, arbitrary
and violative of the Article 14 of the Constitution of India. This
Court is in complete agreement with the view taken by the High
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Court. In the case of Madras Bar Association- MBA III, this Court
directed to consider 10 years' experience, after detail reasoning.
[Paras 7.1, 7.2][321-C-F]
Madras Bar Association v. Union of India & Anr.- MBA
III (2017) 7 SCC 369 - relied on.
1.4 There is no reason to interfere with the impugned
judgment and order passed by the High Court declaring Rule
3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection
(Qualification for appointment, method of recruitment, procedure
of appointment, term of office, resignation and removal of
President and Members of State Commission and District
Commission) Rules, 2020 as arbitrary, unreasonable and violative
of Article 14 of the Constitution of India. The Central Government
and the concerned State Governments have to amend Rules, 2020,
more particularly, Rule 6(9) of the Rules, 2020, providing that
the Selection Committee shall follow the procedure for
appointment as per Model Rules, 2017 and to make the
appointment of President and Members of the State Commission
and the District Commission on the basis of the performance in
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 schemes enumerated. The Central Government
and the concerned State Governments have also to come with an
amendment in the Rules, 2020 to provide 10 years' experience
to become eligible for appointment of President and Member of
the State Commission as well as the District Commission instead
of 20 years and 15 years respectively, provided in Rule 3(2)(b)
and Rule 4(2)(c) which has been struck down to the extent
providing 20 years and 15 years of experience, respectively. Till
the suitable amendments are made in Consumer Protection
(Qualification for appointment, method of recruitment, procedure
of appointment, term of office, resignation and removal of
President and Members of State Commission and District
Commission) Rules, 2020 as above, in exercise of powers under
Article 142 of the Constitution of India and to do complete justice,
it is directed that in future and hereinafter, a person having
bachelor's degree from a recognized University and who is a
person of ability, integrity and standing, and having special
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
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knowledge and professional experience of not less than 10 years
in consumer affairs, law, public affairs, administration, economics,
commerce, industry, finance, management, engineering,
technology, public health or medicine, shall be treated as qualified
for appointment of President and Members of the State
Commission. Similarly, a person of a person of ability, integrity
and standing, and having special knowledge and professional
experience of not less than 10 years in consumer affairs, law,
public affairs, administration, economics, commerce, industry,
finance, management, engineering, technology, public health or
medicine, shall be treated as qualified for appointment of President
and Members of the District Commissions. It is also directed
under Article 142 of the Constitution of India that for appointment
of President and Members of the State Commission and District
Commission, the appointment shall be made on the basis of
performance in written test consisting of two papers as per the
scheme enumerated. The qualifying marks in each paper shall
be 50 per cent and there shall be viva voce of 50 marks. [Paras 8,
8.1, 8.3][321-G-H; 322-A-B, F-H; 323-A-C, G]
Madras Bar Association v. Union of India & Anr. 2021
SCC OnLine SC 463; State of Uttar Pradesh v. All Uttar
Pradesh Consumer Protection Bar Association (2018)
7 SCC 423 : [2018] 4 SCR 503 - referred to.
Case Law Reference
[2016] 8 SCR 851
relied on
Para 2.6
[2020] 2 SCR 246
relied on
Para 2.6
[2018] 4 SCR 503
referred to
Para 6.2
(2017) 7 SCC 369
relied on
Para 6.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 831 of
2023.
From the Judgment and Order dated 14.09.2021 of the High Court
of Judicature at Bombay at Nagpur in WP No. 1096 of 2021.
With
Civil Appeal Nos. 832 and 833 of 2023.
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R Venkataramani, A.G., Sanjay Jain, A.S.G., Ms. Sonia Mathur,
Sr. Adv., Ms. Shraddha Deshmukh, Ms. Chinmayee Chandra, Sidhant
Kohli, Chitvan Singhal, Ms. Mansi Sood, Amrish Kumar, Ms. Harshita
Sukhija, Nishank Tripathi, Ms. Tanya Aggarwal, Arkaj Kumar, Padmesh
Mishra, Yuvraj Sharma, Dr. Uday Prakash Warunjikar, Pravartak Suhas
Pathak, Ms. Ankita Chaudhary, Siddharth Dharmadhikari, Aaditya
Aniruddha Pande, Bharat Bagla, Ms. Kirti Dadheech, Ms. Astha Sharma,
Dr. Tushar Mandlekar, Ravinder Singh, Ms. Raveesha Gupta, Srisatya
Mohanty, Sanjeev Kaushik, Mantika Haryani, Shreyas Awasthi, Himanshu
Chakravarty, Devvrat Singh, Ms. Muskan Surana, Tejas Fadnavis, Yatin
M. Jagtap, Sunil Kumar Sharma, Ms. Kashmira Lambat, Ms. Kishor
Lambat, Sachin Pahwa, Vaishnavi Gupta, M/s. Lambat & Legiteam,
Rameshwar Prasad Goyal, Gagan Sanghi, Ms. Ankita Chaudhary, Advs.
for the appearing parties.
Gagan Sanghi, Ms. Swati P. (Intervenors)
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 14.09.2021 passed by the High Court of
Judicature Bombay at Nagpur Bench at Nagpur in Public Interest
Litigation No. 11/2021 and Writ Petition No. 1096 of 2021, by which, the
Division Bench of the High Court has struck down and has declared
Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection
(Qualification for appointment, method of recruitment, procedure of
appointment, term of office, resignation and removal of President and
Members of State Commission and District Commission) Rules, 2020
(hereinafter referred to as the Rules, 2020) as arbitrary, unreasonable
and violative of Article 14 of the Constitution of India, the Ministry of
Consumer Affairs, Union of India and State of Maharashtra have
preferred the present appeals.
2. In exercise of powers conferred by Sections 29 and 43, read
with clauses (n) and (w) of Sub-section (2) of Section 101 of the
Consumer Protection Act, 2019 (hereinafter referred to as the Act, 2019),
the Ministry of Consumer Affairs, Food and Public Distribution
(Department of Consumer Affairs) framed the Rules, 2020.
2.1 Rule 3 of Rules, 2020 provides for qualifications for appointment
of President and members of the State Commission. Rule 3(2)(b)
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provided that a person shall not be qualified for appointment as a member
of the State Commission unless he possesses a bachelor's degree from
a recognized university and is a person of ability, integrity and standing,
and has special knowledge and professional experience of not less than
twenty years in consumer affairs, law, public affairs....
2.2 Rule 4 of Rules, 2020 provides for appointment of President
and member of District Commission. Rule 4(2)(c) provided that a person
shall not be qualified for appointment as a member of the District
Commission unless he is a person of ability, integrity and standing, and
having special knowledge and professional experience of not less than
fifteen years in consumer affairs, law, public affairs.....
2.3 Rule 6 of Rules 2020 provides for procedure for appointment.
Rule 6(9) provided that the Selection Committee shall determine its
procedure for making its recommendation keeping in view the
requirements of the State Commission or the District Commission and
after taking into account the suitability, record of past performance,
integrity and adjudicatory experience.
2.4 Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) were the subject
matter of challenge before the High Court being unconstitutional, arbitrary
and violative of Article 14 of the Constitution of India. Rule 3, Rule 4,
and Rule 6 reads as under: -
"3. Qualifications for appointment of President and
members of the State Commission.-(1) A person shall not
be qualified for appointment as President, unless he is, or has
been, a Judge of the High Court;
(2) A person shall not be qualified for appointment as a member
unless he is of not less than forty years of age and possesses--
(a) an experience of at least ten years as presiding officer of a
district court or of any tribunal at equivalent level or combined
service as such in the district court and tribunal:
Provided that not more than fifty percent of such members shall
be appointed; or
(b) a bachelor's degree from a recognised university and is a
person of ability, integrity and standing, and has special knowledge
and professional experience of not less than twenty years in
consumer affairs, law, public affairs, administration, economics,
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commerce, industry, finance, management, engineering, technology,
public health or medicine:
(3) At least one member or the President of the State Commission
shall be a woman.
4. Qualifications for appointment of President and member
of District Commission.-(1) A person shall not be qualified
for appointment as President, unless he is, or has been, or is qualified
to be a District Judge.
(2) A person shall not be qualified for appointment as member
unless he-
(a) is of not less than thirty-five years of age;
(b) possesses a bachelor's degree from a recognised University;
and
(c) is a person of ability, integrity and standing, and having special
knowledge and professional experience of not less than fifteen
years in consumer affairs, law, public affairs, administration,
economics, commerce, industry, finance, management, engineering,
technology, public health or medicine.
(3) At least one member or the President of the District
Commission shall be a woman.
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.
(2) The Secretary in charge of Consumer Affairs of the State
Government shall be the convener of the Selection Committee.
(3) No appointment of the President, or of a member shall be
invalid merely by reason of any vacancy or absence in the
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
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Selection Committee other than a vacancy or absence of the
Chairperson.
(4) The process of appointments shall be initiated by the State
Government at least six months before the vacancy arises.
(5) If a post falls vacant due to resignation or death of a member
or creation of a new post, the process for filling the post shall be
initiated immediately after the post has fallen vacant or is created,
as the case may be.
(6) The advertisement of a vacancy inviting applications for the
posts from eligible candidates shall be published in leading
newspapers and circulated in such other manner as the State
Government may deem appropriate.
(7) After scrutiny of the applications received till the last date
specified for receipt of such applications, a list of eligible candidates
along with their applications shall be placed before the Selection
Committee.
(8) The Selection Committee shall consider all the applications of
eligible applicants referred to it and if it considers necessary, it
may shortlist the applicants in accordance with such criteria as it
may decide.
(9) The Selection Committee shall determine its procedure for
making its recommendation keeping in view the requirements of
the State Commission or the District Commission and after taking
into account the suitability, record of past performance, integrity
and adjudicatory experience.
(10) The Selection committee shall recommend a panel of names
of candidates for appointment in the order of merit for the
consideration of the State Government.
(11) The State Government shall verify or cause to be verified the
credentials and antecedents of the recommended candidates.
(12) Every appointment of a President or member shall be subject
to submission of a certificate of physical fitness as indicated in
the annexure appended to these rules, duly signed by a civil surgeon
or District Medical Officer.
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(13) Before appointment, the selected candidate shall furnish an
undertaking that he does not and will not have any such financial
or other interest as is likely to affect prejudicially his functions as
a President or member."
2.5 The validity of the aforesaid rules, namely, Rules 3 (2)(b),
4(2)(c) and 6(9) were challenged before the High Court by the original
writ petitioner on the following grounds: -
(a)
Uncontrolled discretion and excessive power to the selection
committee to determine its procedure to recommend
candidates to be appointed is arbitrary, unreasonable and in
violation of Article 14 of the Constitution of India.
(b)
Considering the nature of work, the candidate's competency
needs to be tested before being recommended for the
appointment to discharge judicial functions. Therefore, the
candidates who are being appointed must have a legal
background.
(c)
In the absence of the appointment of competent candidates,
the object of the Consumer Protection Act is likely to be
frustrated.
(d)
The president and members of the State and District
Commission are empowered with the powers of the Court.
In the appointment of Judicial Magistrate First Class
(JMFC), the candidates are tested by written examination
and viva voce.
(e)
The Draft model rules approved by this Hon'ble Court and
accepted by all the parties are not adhered with. Hence,
contrary to the directions of this Hon'ble Court.
(f)
The transparency and selection criteria are absent in the
said rules.
(g)
In absence of transparency in the matter of appointments
of Chairman and Members, there is strong apprehension of
political and executive interference.
2.6 It was also the case on behalf of the original writ petitioners
before the High Court that this Court in the case of State of Uttar
Pradesh and Others Vs. All Uttar Pradesh Consumer Protection
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
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Bar Association; (2017) 1 SCC 444 (hereinafter referred to as
the UPCPBA), directed to frame model rules under the Consumer
Protection Act, 1986. Accordingly, model rules were framed by this Court
and accepted by all the parties. It was also the case on behalf of the
original writ petitioners that by adopting the model rules, many states
notified the Consumer Protection (Appointment, Salary, Allowance and
Conditions of Service of President and Members of State Commission
and District Forum) Rules, 2017 (hereinafter referred to as the Rules,
2017) on 18.05.2018. It was submitted that model rules 2012 were already
in existence in the State of Maharashtra made on 03.01.2012 under
Section 30 of the Consumer Protection Act, 1986 and the said Rules
already had the provision of written examination of 100 marks for aspiring
candidates/applicants for the post of President and Members of District
Consumer Forum under Rule 10. It was submitted that the Consumer
Protection Act, 2019 (hereinafter referred to as the Act, 2019) came
into force with effect from 20.07.2020 by repealing the erstwhile statute
Consumer Protection Act, 1986. It was also argued on behalf of the
original writ petitioners that under the Rules 2020, the power conferred
upon the Selection Committee to determine its own procedure for selection
of President and Members of the District and the State Commission
constituted under the Act, 2019 is in contravention of the decision of this
Court in the case of UPCPBA (supra). It was also argued on behalf of
the original writ petitioners that looking at the judicial functions to be
performed by President and Members of the District and State
Commissions constituted under the Act, 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. It was also argued on behalf of the original writ petitioners that
prescribing minimum experience of 20 years and 15 years for President
and Members of State and District Commission respectively, is contrary
to the directions issued by this Court in the case of Madras Bar
Association Vs. Union of India and Another; (2021) 7 SCC 369.
That thereafter, by the impugned common judgment and order the High
Court has declared Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules,
2020 as ultra-virus and unconstitutional, unreasonable, arbitrary and
violative of Article 14 of the Constitution of India and contrary to the
observations and directions issued by this Court in the case of UPCPBA
(supra). The High Court has specifically observed that granting complete
discretion under the Rules 2020 to the Selection Committee to determine
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its own procedure would result in creating a situation which has been
narrated in the case of UPCPBA (supra) and will again lead to wide
variations in standards as well as a great deal of subjective, bureaucratic
and political interference, and finally it will result in denial of justice
which will be in violation of Article 14 of the Constitution of India. That
while holding the aforesaid provisions unconstitutional, unreasonable and
arbitrary, the High Court has considered the historical background of
tribunalisation and the fact that the tribunals are endowed with the judicial
functions with a duty to decide the matters in judicious manner. Therefore,
the High Court has opined and observed that the standards expected
from the judicial members of the tribunals and standards applied for
appointing such members, should be as nearly as possible as applicable
to the appointment of judges exercising such powers. That thereafter,
following the decisions of this Court in the case of Madras Bar
Association (supra) and UPCPBA (supra), the High Court has
concluded and passed the final order as under: -
i.
"The Public Interest Litigation No. 11 of 2021 is allowed;
ii.
The Writ Petition No. 1096/2021 is partly allowed;
iii. It is held and declared that Rule 3(2)(b), Rule 4(2) (c) and
Rule 6(9) of the Rules of 2020, are arbitrary, unreasonable
and violative of Article 14 of the Constitution of India for the
reasons recorded herein above and hence are quashed and
set aside;
iv. The Union of India is directed to provide for appropriately
made Rules as substitutes for Rule 3 (2)(b), Rule 4(2)(c) and
Rule 6(9) of the Rules, 2020, declared unconstitutional, keeping
in view the observations made in the judgment, within four
weeks from the date of the judgment and order;
v.
The vacancy notice dated 2nd February, 2021 issued by the
respondent no. 2 for inviting applications for the post of
Members of the State Commission and President and
Members of the District Commission, is hereby quashed and
set aside;
vi. The process of selection of Members of the State Commission
and President and the Members of the District Commission,
initiated in pursuance to the vacancy notice dated 2nd
February, 2021, stands cancelled;
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
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vii. Fresh process of selection of members of the State
Commission, President and the members of the District
Commission be initiated in accordance with the amended Rules
and completed at the earliest as directed by the Hon'ble
Supreme Court of India;
viii. It is made clear that we have not dealt with the validity of
appointment made of the President of State Commission,
Maharashtra State;
ix. No orders as to costs."
2.7 The impugned common judgment and order passed by the
High Court is the subject matter of present appeals.
3. Shri R. Venkataramani, learned Attorney General for India has
submitted that after the matters were heard by this Court on 17.11.2022
and 18.11.2022, where this Court was of the prima facie view that Rule
6(9), which deals with the procedure of appointment, left too much
discretion in the hands of the selection committee, and that there ought
to have been some objective criteria on the basis of which the fitness
and suitability of candidates be tested, such as a written examination. It
is pointed out that based on the observations that fell from this Court on
the previous dates of hearing, the matter was considered by the
Government and pursuant thereto, a meeting was called between the
Union of India and all the State governments to consider the desirability
and feasibility of conducting a written examination for appointment to
the State and District Commissions, or in the alternate, to consider as to
whether rules or guidelines can be made which would reduce the
discretion available to the Search-cum-Selection Committees while
carrying out appointments. It is submitted that in the course of discussions
between the States, it was observed that most states were not in favour
of conducting written tests. It is submitted that based on the discussion
in the said meeting, it was observed that a written examination for
appointments of members of tribunals as a uniform policy would be neither
feasible nor desirable, due to, inter alia, the following reasons:
(i)
The number of vacancies to tribunals per year is very low,
and in some tribunals only in single digits. It would not be
economically or practically feasible to conduct an
examination for five or six posts.,
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(ii)
Most tribunals require appointment of members with
expertise in varied relevant fields, such as consumer affairs,
economics, law, securities, finance, telecom, electricity, and
so on. A single written examination with a common syllabus
would not be possible and one may have to conduct a
different examination for each different area of expertise,
which would make the whole process arbitrary and unwieldy.
(iii)
Competent, eminent, and successful persons aged over
thirty five or forty or even fifty may not be willing to write
a written examination and then have their marks published
openly, which would dissuade a large number of people who
may be desirable from applying.
(iv)
Persons with experience of fifteen or twenty years may no
longer have the requisite examination giving skills, and a
written examination may unduly favour academics or
researchers as opposed to people who are in the field
practically or in a corporate environment or in some other
non academic field.
(v)
Conducting a written examination may lengthen the entire
process of appointment, which already takes 4-6 months
on account of the requirement of advertisement, public
notice, receipt of applications and verification of documents,
IB inputs, tax and medical reports, and then a personal
interaction with the Selection Committee. This may end up
increasing the number of vacancies in the tribunals, which
is not desirable.
(vi)
Prescribing a uniform requirement of a written examination
across states would fail to take into account the local
requirements of each state - for instance, the number of
applications received in the smaller states such as Assam
or Goa or Sikkim are very low, and sometimes even lesser
than the number of posts advertised. A written examination
may lead to greater difficulties in filling up the vacant posts.
(vii)
Prescribing a uniform requirement of a written examination
across tribunals is also not considered desirable, as each
tribunal has its own eligibility criteria and different categories
of persons would fall in their zone of consideration. For
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
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instance, several posts can only be manned by retired judges,
and it would not be appropriate to subject judges of the
Supreme Court or the High Courts to a written examination.
Equally, very few people are actually eligible to be appointed
as technical members to specialised tribunals such as
TDSAT or APTEL, and eminent persons in the field of
telecom or electricity may not wish to write examinations
to leave lucrative careers in their areas of expertise. This
would lead to the tribunals losing out on desirable persons,
who may otherwise wish to join these tribunals in the spirit
of public service.
3.1 Shri R. Venkataramani, learned Attorney General for India
has further submitted that based on the further discussions in the meeting
held on 13.01.2023 between Union of India and all the States/UTs to
consider the uniform measures to guide the Selection Committees in the
exercise of their selection processes, it has been proposed that the
following proviso, to provide for the issuance of necessary instructions
to guide the discretion available to the Selection Committee, could be
considered to be inserted below Rule 6(9) of the Rules, 2020: -
"Provided that the Selection Committee shall be guided by the
instructions, as may be issued, by order, by the Central Government
from time to time, while making assessment of a candidate in
regard to his suitability for appointment as President or member
in the State Commission or the District Commission."
3.2 It is further submitted that in so far as the development of
uniform measures to be applicable to appointments in the State
Commissions and the District Commissions (President and Members)
across the country is concerned, the following measures, keeping in view
the level of the posts, the statutory functions to be discharged by the
holders of these posts, the very objective enshrined in the Consumer
Protection Act, 2019, are considered to be formulated:-
a.
The selection of a candidate for appointment as the President
or member in the State Commission or the District
Commission may be based on the marks secured by him,
out of a total of 100 marks. The total marks (100) may be
the sum of; (i) 60 marks for an interview; and, (ii) 40 marks
for certain special achievements of a candidate.
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b.
The aforesaid formulation, if found in order by this Hon'ble
Court, can be treated as an instruction under the above
said proviso.
c.
The rationale behind the proposed distribution of marks in
such a way where the interview component would outweigh
the other, is to ensure the selection of the most suitable
candidate, given the level of the posts and duties attached
thereto.
d.
The distribution of 40 marks for special achievements may
be considered as under:
3.3 It is submitted that on an overall consideration of the
deliberations, it appears that the conduct of a written test which has
several handicaps will not be feasible and shall not be most suitable
measure for the purpose of selection.
4. While opposing the present appeals Dr. Uday Prakash Warnjikar
and Dr. Tushar Mandalekar, learned counsel appearing on behalf of the
respective respondents have vehemently submitted that in the facts and
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR.
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
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circumstances of the case the High Court has not committed any error
in declaring Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of Rules, 2020
as arbitrary, unreasonable, and violative of Article 14 of the Constitution
of India.
4.1 It is submitted that the bone of contention of the present
respondent is to have the highest standards and strict scrutiny before the
candidates are being appointed in the Consumer State Commission and
District Commissions. It is submitted that the selection method under
the Rules, 2020 and the process adopted by the appellant will lead to the
appointment of incompetent candidates to adjudicate the consumer
disputes. It is submitted that under Rule 6(9), the selection committee is
empowered with uncontrolled discretionary powers to determine its
procedure in the appointment of the President and Members of the State
and District Commission. It is submitted that such delegation of
uncontrolled powers will cause undesirable results.
4.2 In support of their submissions that Rule 3(2)(b) and Rule
4(2)(c) and Rule 6(9) of Rules, 2020 are arbitrary, unreasonable, and
violative of Article 14 of the Constitution of India, it is submitted as
under: -
(a)
That the selection method under Rules, 2020 confers
uncontrolled discretion and excessive power to the selection
committee to determine its procedure to recommend
candidates to be appointed is arbitrary, unreasonable and in
violation of Article 14 of the Constitution of India;
(b)
Considering the nature of work, the candidate's competency
needs to be tested before being recommended for the
appointment to discharge judicial functions;
(c)
In the absence of the appointment of competent candidates,
the object of the Consumer Protection Act is likely to be
frustrated;
(d)
The president and members of the State and District
Commission are empowered with the powers of the Court.
In the appointment of Judicial Magistrate First Class, when
the candidates are tested by written examination and viva
voce, the similar procedure to be adopted for appointment
in the District and State Commissions;
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(e)
The transparency and selection criteria are absent in the
Rules, 2020;
(g)
In absence of transparency in the matter of appointments
of Chairman and Members, there is strong apprehension of
political and executive interference.
4.3 It is further submitted that even the Law Commission in its
272nd Report suggested that the members of the newly constituted
tribunals should possess the qualifications akin to the judges of the High
Court and District Court. The Report further recommended uniformity
in the appointments.
4.4 It is further submitted that as such this Court in the case of
UPCPBA (supra) directed to frame model rules under the Consumer
Protection Act, 1986. It is submitted that by the said judgment, model
rules were approved by this Court and accepted by all the parties.