Telangana High Court
Smt. Kondapuram Saritha vs The State Of Telangana on 31 January, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 22394 of 2023
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus declaring the action of Respondent No.2 in issuing G.O.Rt.No.28, dated 16.08.2023 in appointing the Respondents No.3 and 4 as members of the District Consumer Dispute Redressal Commission, as illegal, arbitrary and contrary to the judgment passed by the Hon'ble Apex Court in Civil Appeal No.831 of 2023 (A SLP No.19492 of 2021) and consequently to set aside the same and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the respondent No.1 has issued a notification vide Roc.No.188/TSCDRC/ADMN/2022, dated 22.08.2022, for filling up the vacant posts of Members of District Commissions in the State of Telangana under Sections 28 to 30 of Consumer Protection Act, 2019 and that the petitioner got a Hall Ticket Number DCM042 and on 12.12.2022 marks sheet was released according to which, petitioner has scored the highest marks i.e., 57.5 and secured first position. Thereafter, on 06.01.2023 call 2 TMD,J W.P.No. 22394 of 2023 letter was issued to the petitioner for appearing before the Selection Committee on 23.01.2023 for Oral interview/Viva- Voce along with all originals for verification and accordingly, the petitioner appeared for oral interview and also her original certificates were verified. According to the petitioner, on 16.08.2023 the impugned G.O.Rt.No.28, dated 16.08.2023 was issued by the respondent No.2 herein appointing the respondents No.3 and 4 herein as Members in the District Consumer Redressal Commissions in the State of Telangana in contradiction to the judgment of the Hon'ble Apex Court in Civil Appeal No.831 of 2023 (A SLP No.19492 of 2021). Challenging the said G.O.Rt.No.28, dated 16.08.2023, this writ petition has been filed.
3. In addition to reiterating the above submissions, learned counsel for the petitioner also submitted that the Hon'ble Supreme Court, in this case of The Secretary Ministry of Consumer Affairs Vs. Dr.Mahindra Bhaskar Limaye and Others in Civil Appeal No.831 of 2023 (A SLP© No.19492 of 2021) has directed the Government to amend the rules with regard to the qualifications of President and Members of the State Commission and District Commissions and till such time, 3 TMD,J W.P.No. 22394 of 2023 in exercise of powers under Article 142 of the Constitution of India, the respondents therein were directed that in future and thereafter, a person having bachelor's Degree from a recognized University and who is a person of ability, integrity, standing and having special knowledge and professional experience of not less than ten 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 as President and Members of the State Commission and similarly, a person of ability, integrity, standing and having knowledge and professional experience of not less than ten years in consumer affairs, law, public affairs, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the District Commission and therefore, for the 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 and the qualifying marks in each paper shall be 50% and there shall be viva-voce of 50 marks. It is submitted that the respondent authorities herein have not followed the directions of the 4 TMD,J W.P.No. 22394 of 2023 Hon'ble Supreme Court in the case of Civil Appeal No.831 of 2023 (A SLP No.19492 of 2021), but have issued the appointment orders to the persons who are less meritorious than the petitioner. It is therefore submitted that the appointments of both the respondents No.3 & 4 should be set aside.
4. Learned Government Pleader appearing for the respondents No.1 and 2, has filed a counter affidavit, while learned counsel representing respondents No.3 and 4 also filed separate counter affidavits. As per the counter affidavit filed by the respondents No.1 and 2, notification for filling up of the posts was issued on 22.08.2022 and that the last date for receipt of applications was 19.09.2022. It is submitted that the written examination was conducted on 19.11.2022, results were published on 12.12.2022 and the viva-voce/interview was conducted and the Selection Committee recommendations are dated 23.01.2023 and were forwarded to the Government on 25.01.2023. It is further submitted that after obtaining in circulation as per the Government Business Rules, the antecedents of the selected candidates were called on 19.04.2023 and the report about antecedent verification was 5 TMD,J W.P.No. 22394 of 2023 submitted on 25.07.2023 and appointment orders were issued on 16.08.2023 and newly appointed members joined duty on 17.08.2023. Thus, according to the respondents, as on the date of the order of Hon'ble Supreme Court, the entire selection process was completed and the Selection Committee also had recommended the names of top-ranking candidates in the ratio of 1:2 to the Government for consideration and the impugned G.O.Rt.No.28, dated 16.08.2023 is in consequence of the above events. It is also stated that though the petitioner has secured highest marks in the written examination, she got lesser marks in the interview and thus secured a total of 68.83 marks as against 70 marks obtained by respondents No.3 and 4 herein. According to the respondents, the respondents No.3 and 4 are thus more meritorious than the petitioner. It is submitted that the Selection Committee was presided over by a Judge of High Court and the other members were Ex-officio Secretary (CA, F&CS Department) to the Government of Telangana and the Secretary (Law) to the Government, who conducted interviews to the top-ranking six candidates and after due satisfaction of their performance in the written examination and oral interview only, the names of respondents No.3 and 4 were recommended for appointment and accordingly, appointment orders were issued. 6
TMD,J W.P.No. 22394 of 2023 It is submitted that the judgment of the Hon'ble Supreme Court is only prospective in nature and therefore, there is no violation of the directions of the Hon'ble Supreme Court.
5. Learned Counsel for respondents No.3 and 4 also reiterated the above contentions of the respondents No.1 and 2 in their counter affidavit and also submitted that they are more meritorious than the petitioner.
6. Having regard to the rival contentions and the material on record, this Court finds that the entire case is revolving around the point as to whether there is any violation of judgment of Hon'ble Supreme Court in Civil Appeal No.831 of 2023 (A SLP No.19492 of 2021) dated 03.03.2023. This Court finds that the notification was issued much prior to the order of the Hon'ble Supreme Court and the entire process of selection including the interviews was held prior to the pronouncement of judgment of Hon'ble Supreme Court. The interviews were held on 25.01.2023 and the Selection Committee has forwarded its recommendations to the Government for selection and appointments. The other process of verification of selected candidates only was carried out subsequent to the pronouncement of the order of the Hon'ble Supreme Court. 7
TMD,J W.P.No. 22394 of 2023 Therefore, the question now is whether the judgment of Hon'ble Supreme Court would be applicable to the notification issued prior to the judgment. After going through the judgment, it is found that the judgment was on the issue whether the Mumbai High Court was correct in striking down the Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (qualification for appointment, method or recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 and to declare the same as arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The rules which were struck down were framed by the Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), Government of India and the said rules were followed by all the States. Challenge was as to whether the qualifications mentioned for appointment of President and members of the State Commission and District Commission were adequate and were in accordance with Article 14 of the Constitution of India. The Hon'ble Supreme Court, after detailed deliberation has upheld the judgment of the Bombay High Court in striking down the said rules and has recommended that the Central Government and concerned 8 TMD,J W.P.No. 22394 of 2023 State Governments, amend Rules 2020, more particularly Rule 6(9) of 2020 providing that the Selection Committee shall follow the procedure for appointment as per model Rules of 2017 and to make the appointment of Presidents of State Commission and District Commissions on the basis of their 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 as per scheme. It was also observed that the Central Government and concerned State Governments have also come with an amendment in the Rules of 2020 to prescribe 10 years of experience for appointment of President and members of the State Commission as well as District Commission instead of 20 years and 15 years respectively provided in Rule 3(2)(b), Rule 4(2)(c) which have been struck down to the extent of 20 years and 15 years respectively. Therefore, till the suitable amendments were made in the Consumer Protection (qualification for appointment, method or recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules of 2020, the Hon'ble Supreme Court in exercise powers under Article 142 of the Constitution has directed that thereafter in and future a person having bachelor's 9 TMD,J W.P.No. 22394 of 2023 Degree from a recognized University and who is a person of ability, integrity, standing and having special knowledge and professional experience of not less than ten years in the relevant subjects, shall be treated as qualified for appointment. Therefore, it is noticed that the rules were already in force and only the amendments are to the years of experience, in fact the number of years of experience has been reduced from 20 and 15 years to 10 years and therefore, this Court finds that there is not much of restriction, in fact, there is an enlargement of number of candidates to be considered under the said judgment and also the model of examination i.e., 100 marks for written examination and 50 marks for viva-voce, whereas under the earlier rules prescription was a total of 100 marks papers, out of which 70 marks were for written examination and 30 marks were for viva-voce. Since the Hon'ble Supreme Court has only modified the conditions and the entire selection process was completed prior to the judgment being pronounced, this Court is of the opinion that the judgment would apply only to the notifications which are issued subsequent to the judgment and not to the notification issued prior to the judgment. 10
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7. Learned counsel for the petitioner has placed reliance upon the judgment of the Madras High Court in the case of V.Sundararaj Vs. Registrar General, High Court of Judicature, Madras and Others 1, wherein the above judgment of the Hon'ble Supreme Court has been considered and the issue under consideration of the Madras High Court was that after striking down of the said Sections by the Nagapur Bench of Bombay High Court what would be the effect and also the effect of the directions issued by the Hon'ble Supreme Court in Suo Motu W.P.No.2 of 2021. The Division Bench of Madras High Court has observed that the Hon'ble Supreme Court has not stayed the operation of the Bombay High Court Judgment and therefore, the rules relating to the experience i.e., Rules 3(2)(b), 4(2)(c) and 6(9) were not in the statute book on the date when the impugned notifications were issued by the State as, in that case, the impugned notification was issued on 17.07.2022 and therefore, the candidates who did not satisfy the required experience as per the rules which were struck down were disabled or prevented from applying and the affirmation of the judgment of the Bombay High Court by the Hon'ble Supreme Court on 03.03.2023 would make things worse for the 1 2023 SCC OnLine Mad 3777 11 TMD,J W.P.No. 22394 of 2023 respondents. It was held that once the rules were struck down and the same has been upheld by the Hon'ble Supreme Court, it would necessarily date back to the judgment of the Bombay High Court i.e., 14.09.2021 and the notifications issued after the said date, cannot be sustained.
8. However, this Court finds that in the case before this Court, the respondents have followed the rules framed by the Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), which are known as Rules of 2020 and the challenge was to Rule 3(2)(b) and 4(2)(c), which is in respect of the qualifications required for appointment of President and Members and Rule 6(9) is giving the power to the Selection Committee to determine its own 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. In this case, by striking down the Rules Rule 3(2)(b), 4(2)(c), effect is of reducing the experience required, whereas rule 6(9) has been struck down and it was directed that the selection process should be based on the written examination and viva-voce. Once these rules 12 TMD,J W.P.No. 22394 of 2023 have been struck down by any one of the Constitution Courts, as rightly pointed by the Madras High Court, they are presumed to be not in the statute book until the said judgment is suspended or stayed by the Hon'ble Supreme Court, which as has been recorded in the Madras High Court, has not been done by the Hon'ble Supreme Court. Therefore, as rightly held by the Madras High Court, the candidates who did not satisfy the required experience as per the rules which are struck down, were disabled or prevented from applying. In this case, it is not the case of increasing the experience where some of the candidates would get out of the zone of consideration, but it is the case of reducing the experience from 20 and 15 years to 10 years. Therefore, all the candidates who appeared for the examination would fall within the zone of consideration and some more candidates would get included. Further, as regards Rule 6(9) it is noticed that the written examination was conducted in two papers with a maximum of 70 marks and viva-voce with a maximum of 30 marks, whereas the requirement was written examination with 100 marks and viva- voce with 50 marks. Therefore, it does appear to be in violation of the directions of the Hon'ble Supreme Court. 13
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9. In view of the same, since the notification was issued prior to the judgment of Hon'ble Supreme Court but after the judgment of Nagapur Bench of Bombay High Court, this Court is of the opinion that the selection process completed even prior to the date of the Hon'ble Supreme Court judgment cannot be sustained. In view of the same, the writ petition filed by the petitioner is allowed. Consequently, the appointments made pursuant to the notification dated 22.08.2022 and vide G.O.Rt.No.28, dated 16.08.2023, are set aside.
10. Accordingly, this writ petition is allowed. There shall be no order as to costs.
11. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 31.01.2024 bak 14 TMD,J W.P.No. 22394 of 2023 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI W.P.No.22394 of 2023 Dated: 31.01.2024 bak