Mrs. Suhas Milind Untwale vs The State Of Maharashtra, Thr. ...
2023 Latest Caselaw 10911 Bom

2023:BHC-NAG:15452-DB


              WP 3756-23                                   1                           Judgment

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                      NAGPUR BENCH, NAGPUR.

                                     WRIT PETITION NO. 3756/2023

              Mrs. Suhas Milind Untwale,
              Aged about 56 years, Occupation : Ex. President,
              District Consumer Disputes Redressal Forum, Akola,
              R/o Shree Nath Nivas, Agarkar Marg,
              Akola, Tq. & Dist. Akola.                                            PETITIONER

                                                 .....VERSUS.....

              The State of Maharashtra, Through Joint Secretary,
              Food, Civil Supplies and Consumer Protection Department,
              Mantralaya, Mumbai.                                                 RESPONDENT

                   Shri Anil Mardikar, Senior Advocate with Shri V.R. Deshpande and Shri D.P.
                                         Singh, counsel for the petitioner.
                    Shri Anand Deshpande, In-Charge Government Pleader for the respondent.


              CORAM : A. S. CHANDURKAR            AND    MRS VRUSHALI V. JOSHI, JJ.
              DATE ON WHICH ARGUMENTS WERE HEARD : AUGUST 07, 2023
              DATE ON WHICH JUDGMENT IS PRONOUNCED : OCTOBER 20, 2023

              JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and the learned counsel

for the parties have been heard at length.

2. The petitioner on being duly qualified came to be appointed as

President of the District Consumer Disputes Redressal Commission, Buldana

on 06.02.2013. On completion of her tenure of five years, she sought re-

appointment on the post of President, District Consumer Disputes Redressal

Commission by moving an application dated 17.10.2017. After conducting

viva-voce examination in accordance with the Model Rules, 2012, the WP 3756-23 2 Judgment

petitioner was re-appointed on the said post by the order dated 05.02.2018.

The tenure of the petitioner was till 10.02.2023. However in view of the

orders passed Public Interest Litigation No. 11 of 2021 [Vijaykumar Bhima

Dighe Versus Union of India & Others], the said tenure was extended till

01.03.2023. In absence of any further order of continuation the petitioner

demitted Office on 01.03.2023.

3. In Vijaykumar Bhima Dighe (supra) the constitutional validity of

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 of 2020 (for

short, 'the Rules of 2020') were challenged. The Division Bench by its

judgment dated 30.07.2021 upheld the said challenge and declared Rule

3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules of 2020 to be arbitrary,

unreasonable and violative of Article 14 of the Constitution of India. The

Union of India was directed to provide for appropriately made Rules as

substitute for the Rules that were held to be unconstitutional. The

Secretary, Ministry of Consumer Affairs challenged the aforesaid judgment

before the Hon'ble Supreme Court in The Secretary Ministry of Consumer

Affairs Versus Dr.Mahindra Bhaskar Limaye & Others [2023 LiveLaw (SC)

161]. The said appeals were decided by the Hon'ble Supreme Court on

03.03.2023. The Hon'ble Supreme Court did not interfere with the WP 3756-23 3 Judgment

judgment of this Court declaring the aforesaid Rules to be arbitrary,

unreasonable and violative of Article 14 of the Constitution of India. It

however issued directions under Article 142 of the Constitution of India

indicating the course to be followed till the said Rules were amended.

4. In accordance with the directions issued under Article 142 of the

Constitution of India, the respondent-Department of Food, Civil Supplies

and Consumer Protection through its Joint Secretary issued a notice dated

23.05.2023 inviting applications for the posts of Member of State Consumer

Disputes Redressal Commission as well as the President and members of the

District Consumer Disputes Redressal Commission under the Consumer

Protection Act, 2019 (for short, 'the Act of 2019'). Alongwith the said

advertisement a notice was published prescribing the qualification criteria

which reads as under:-

"Qualification Criteria for the Post of Member, State Consumer Disputes Redressal Commission, President and Member of District Consumer Disputes Redressal Commission (as per Hon'ble Supreme Court Judgment dated 3.3.2023 in C.A.831/2023) :- 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, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine shall be treated as qualified."

5. According to the petitioner, she was eligible to apply for

appointment on the post of Member, State Consumer Disputes Redressal WP 3756-23 4 Judgment

Commission under Rule 3(2)(a) of the Rules of 2020 since she claimed to

have experience of at least ten years as the Presiding Officer of a Tribunal at

equivalent level. Since the advertisement and the notice published

alongwith it did not indicate the manner in which applications in

accordance with Rule 3(2)(a) of the Rules of 2020 could be made, the

petitioner has approached this Court by virtue of the present writ petition

seeking to challenge the said advertisement as being contrary to the Act of

2019 and the Rules of 2020. Alternatively, it is prayed that it be clarified

that the petitioner who seeks appointment by virtue of claiming to be

eligible to apply under Rule 3(2)(a) of the Rules of 2020 was not required to

appear for the written examination and viva-voce.

6. On 23.06.2023, we had heard the learned counsel for the parties

on the prayer for grant of interim relief since the petitioner alongwith others

had sought a stay to the conduct of the written examination that was

scheduled to be held on 25.06.2023. While declining the prayer for grant of

staying the examination it was directed that the appearance of the

petitioner in the said examination would be without prejudice to the

challenge raised in the writ petition. It is however informed that the

petitioner has not appeared in the said examination.

7. Shri Anil Mardikar, learned Senior Advocate for the petitioner

invited attention to Rule 3(2) of the Rules of 2020 and submitted that the WP 3756-23 5 Judgment

qualification prescribed for appointment on the post of Member of a State

Commission was prescribed by Clauses (a) and (b) thereof. Under Clause

(a), a candidate having 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 was qualified for appointment as a

Member. As per the proviso not more than fifty percent of such members

could be appointed under Clause (a). Under Clause (b) a candidate was

required to have a bachelors degree from a recognized university and in

addition ought to be a person of ability, integrity and standing and having

special knowledge and professional experience of not less than twenty years

in the subjects stated therein. According to the learned Senior Advocate,

Clauses (a) and (b) operate independently and form separate classes

through which eligible candidates could seek appointment. Considering the

requirements of both the clauses it was clear that the candidates seeking

appointment under Clause (a) could not be clubbed with the candidates

seeking appointment under Clause (b). In Vijaykumar Bhima Dighe (supra)

the validity of Rule 3(2)(b) alone had been challenged and this Court had

struck down Clause (b) of Rule 3(2) of the Rules of 2020. Rule 3(2)(a)

continued to operate. The Hon'ble Supreme Court maintained the decision

of this Court and in exercise of power under Article 142 of the Constitution

of India issued directions to hold written tests consisting of two papers in

the manner stipulated therein. Since Rule 3(2)(a) of the Rules of 2020 was

neither the subject matter of challenge before this Court or the Hon'ble WP 3756-23 6 Judgment

Supreme Court, the directions issued for conducting a written test were

applicable only to those candidates who were seeking appointment on the

basis of qualifications prescribed by Rule 3(2)(b) of the Rules of 2020. The

respondent was not justified in requiring the candidates who were eligible

to apply for appointment under Rule 3(2)(a) of the Rules of 2020 to also

undergo the written test in terms of the impugned advertisement. To bring

home this contention, the learned Senior Advocate referred to paragraphs

2.4, 2.5, 6.1 and 7 of the judgment of the Hon'ble Supreme Court in the

Secretary, Ministry of Consumer Affairs (supra). Placing reliance on the

decision in State of Rajasthan Versus Ganesh Lal [(2008) 2 SCC 533] it

was submitted that the directions issued in the Secretary, Ministry of

Consumer Affairs (supra) was restricted to the candidates applying under

Rule 3(2)(b) of the Rules of 2020 and the ratio thereof could not be applied

to the candidates seeking appointment under Rule 3(2)(a) of the Rules of

2020. He also referred to the decision in Joginder Nath & Others Versus

Union of India & Others [(1975) 3 SCC 459] in that regard. As regards the

scope of jurisdiction under Section 142 of the Constitution of India reliance

was placed on the decisions in Supreme Court Bar Association Versus

Union of India & Others [(1998) 4 SCC 409] and M.C. Mehta Versus

Kamal Nath & Others [(2000) 6 SCC 213]. It was thus submitted that it be

held that the petitioner who was seeking appointment pursuant to the

eligibility prescribed by Rule 3(2)(a) of the Rules of 2020 was not liable to

appear in the written test as directed.

WP 3756-23 7 Judgment

8. Shri Anand Deshpande, learned In-Charge Government Pleader

for the respondent opposed the aforesaid submissions. Inviting attention

to the prayers made in Vijaykumar Bhima Dighe (supra) it was

submitted that the alternate prayer as made therein for conduct of a

written test and viva-voce came to be accepted by the Court in the public

interest litigation. The Hon'ble Supreme Court while upholding the

aforesaid decision had in clear terms directed conduct of a written test

of two papers of hundred marks each with fifty marks for viva-voce.

It was necessary for all the candidates seeking appointment under

Rule 3(2) to appear in the written test and the distinction as sought to

be made out by the learned Senior Advocate was not in consonance with

the said Rules of 2020 or the directions issued by the Hon'ble Supreme Court in

the Secretary, Ministry of Consumer Affairs (supra). Referring to the

affidavit-in-reply, it was submitted that Clauses (a) and (b) had been

effectively merged by virtue of the judgment of the Hon'ble Supreme

Court and hence no distinction could be made between the said clauses of

Rule 3(2) of the Rules of 2020. The advertisement was published in

accordance with the directions issued by the Hon'ble Supreme Court and

hence there was no reason to interfere with the same. Moreover the

petitioner had failed to appear for the written test and hence she was not

entitled to any relief whatsoever.

WP 3756-23 8 Judgment

9. We have heard the learned counsel for the parties at length and

with their assistance we have gone through the documents placed on

record. We have given thoughtful consideration to the rival submissions.

10. The factual aspects involved are not in dispute inasmuch as the

validity of Rule 3(2)(b), 4(2)(c) and 6(9) of the Rules of 2020 was the

subject matter of challenge in Vijaykumar Bhima Dighe (supra). These rules

have been held to be violative of Article 14 of the Constitution of India and

have thus been quashed. The judgment of the Division Bench has been

maintained by the Hon'ble Supreme Court in The Secretary, Ministry of

Consumer Affairs (supra) and directions under Article 142 of the

Constitution of India have been issued that are to operate till the time

suitable amendments are made in the Rules of 2020. Pursuant to the said

judgment, the respondent has published a notice inviting applications for

the post of Member of the State Consumer Disputes Redressal Commission

as well as the President and Members of the District Consumer Disputes

Redressal Commission. The notice published alongwith the said

advertisement refers to the qualification criteria for the said posts and treats

the person having a bachelor's degree from a recognized university and who

is a person of ability, integrity and standing with special knowledge and

professional experience of not less than ten years in various subjects stated

therein to be treated as qualified.

WP 3756-23 9 Judgment

The short question therefore to be considered is whether in the

light of the directions issued under Article 142 of the Constitution of India

the petitioner who seeks consideration of her claim for appointment under

Rule 3(2)(a) of the Rules of 2020 is also required to undergo the said

written test as directed ?

11. Section 29 of the Act of 2019 prescribes that in the matter of

providing for the qualifications, mode of recruitment, procedure for

appointment, term of office and other ancillary matters, the Central

Government can make Rules by issuing notification in that regard. Pursuant to

the aforesaid provision, the Rules of 2020 have been framed. A perusal of

Rule 3 indicates that it provides the qualifications for appointment as President

and as Members of the State Commission. Under sub-Rule (2), a person is not

qualified for appointment as Member unless he attains the age of forty years.

Thereafter, sub-Clauses (a) and (b) prescribe the eligibility of such persons

seeking appointment. Under sub-Clause (a) experience of at least ten years as

Presiding Officer of the District Court or of any Tribunal at equivalent level

or combined service as such in the District Court and Tribunal is required.

As per the proviso thereto not more than fifty percent of such members are

to be appointed which means that persons satisfying the requirements of

Clause (a) cannot constitute more than fifty percent of the Members of the

State Commission. At the end of the proviso, the word "or" finds place. As

per Clause (b) the requirement prescribed is possessing a bachelors degree WP 3756-23 10 Judgment

from a recognized university and also being a person of ability, integrity and

standing with special knowledge and professional experience and not less

than twenty years in the subjects mentioned therein.

On a plain reading of Rule 3 in its entirety it becomes clear that

Rule 3(2) of the Rules of 2020 provides for two different sources through

which a Member of the State Commission can be appointed. Rule 3(2)(a) is

independent in its requirement than what is provided under Rule 3(2)(b) of

the Rules of 2020. Notably the word 'or' finds place between Rule 3(2)(a) and

Rule 3(2)(b). It is thus clear that the requirements prescribed in the said

sub-Rule are mutually exclusive. A candidate can either seek appointment

by virtue of Rule 3(2)(a) or Rule 3(2)(b) of the Rules of 2020 subject to

possessing the requirements stipulated therein. In the present case, the

petitioner seeks consideration of her request for appointment as Member of

the State Commission by virtue of Rule 3(2)(a) of the Rules of 2020.

12. As stated above, Rule 3(2)(b) of the Rules of 2020 alongwith

Rule 4(2)(c) and Rule 6(9) of the Rules of 2020 were subjected to challenge

in Vijaykumar Bhima Dighe (supra). The Hon'ble Supreme Court while

upholding the judgment of this Court wherein the said Rules were held to

be violative of Article 14 of the Constitution of India proceeded to issue

directions in exercise of powers under Article 142 of the Constitution of

India. The observations contained in paragraph 8 as well as the directions

as contained in paragraphs 8.1 to 8.3 that are relevant read as under:-

WP 3756-23 11 Judgment

"8. In view of the above and for the reasons stated above, we see 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 Rule, 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 following schemes:-

 Paper                  Topics             Nature of test Max.marks Duration
Paper-I (a) General Knowledge and Objective Type            100     2 Hours
          current affairs
          (b) Knowledge of Constitution
          of India
          (c) Knowledge of various
          Consumers related Laws as
          indicated in the Schedule
Paper-II (a) One Essay on topics chosen Descriptive type    100     3 Hours
          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
         8.1         ....... 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, we direct that in future and WP 3756-23 12 Judgment

hereinafter, 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, 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. We also direct 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 following scheme:-

 Paper                 Topics             Nature of test Max.marks Duration
Paper-I (a) General Knowledge and Objective Type           100      2 Hours
         current affairs
         (b) Knowledge of Constitution
         of India
         (c) Knowledge of various
         Consumers related Laws as
         indicated in the Schedule
Paper-II (a) One Essay on topics chosen Descriptive type   100      3 Hours
         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
          8.3          The qualifying marks in each paper shall be 50 per

cent and there shall be viva voce of 50 marks. Therefore, marks to be allotted out of 250, which shall consist of a written test consisting two papers, each of 100 marks and the 50 marks on the basis of viva voce."

WP 3756-23 13 Judgment

13. In this regard, it is seen that while issuing the aforesaid

direction, it has been categorically observed that 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, 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 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

thus clear that the said directions are in the context of Rule 3(2)(b) of the

Rules of 2020 that have been struck down. It has been observed that "till

the suitable amendments are made in the Rules of 2020" the directions as

issued are to operate.

14. It is not in dispute that after the Act of 2019 came into force,

the Rules of 2020 were enacted. The challenge to Rules 3(2)(d) and 4(2)(c)

of the Rules of 2020 pertains to appointment of Members of the State

Commission and District Commission from persons of ability, integrity and WP 3756-23 14 Judgment

standing having professional experience as prescribed under the said Rules.

Perusal of the judgment in The Secretary, Ministry of Consumer Affairs

(supra) in its entirety indicates that the Hon'ble Supreme Court was

concerned only with the conditions of eligibility for appointment of non-

judicial members on the State Commission and District Commission. It is in

that context that it has been observed that though in the earlier Rules

including the Rules of 2019 a written examination of 200 marks had been

contemplated, the same had been done away with in the Rules of 2020.

This was notwithstanding the fact that the mechanism of having a written

examination had been confirmed earlier by the Hon'ble Supreme Court. It is

in this context that the directions issued under Article 142 of the

Constitution of India in the aforesaid judgment would have to be construed.

The validity of Rule 3(2)(a) was not the subject matter of challenge or

consideration before the Hon'ble Supreme Court. The directions issued

under Article 142 of the Constitution of India are to operate only till such

time suitable amendments are made in Rule 3(2)(b) and Rule 4(2)(c) of the

Rules of 2020 that were struck down. It is thus clear that the intent and

purport of the directions issued under Article 142 of the Constitution of

India relate only to the appointment of non-judicial members to be made on

the basis of performance in the written test consisting of two papers.

15. In the light of aforesaid discussion, it is held that the

advertisement issued by the respondent is restricted to the qualification WP 3756-23 15 Judgment

criteria prescribed in the notice annexed to the advertisement dated

23.05.2023 which pertains to the appointment on the post of Member, State

Consumer Disputes Redressal Commission of a non-judicial candidate. The

said advertisement and note annexed to it shall be read in the light of

directions issued under Article 142 of the Constitution of India so as to

occupy the field in place of Rule 3(2)(b) of the Rules of 2020 that has been

struck down. The candidature of the petitioner shall be considered in

accordance to Rule 3(2)(a) of the Rules of 2020. Rule is disposed of in

aforesaid terms with no order as to costs.

(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

APTE

At this stage, the learned counsel for the respondent pray that

the effect and operation of the judgment be stayed for a period of eight

weeks. This request is opposed by the learned counsel for the petitioner.

Considering the facts of the case, the judgment delivered today

shall operate after a period of four weeks from today.

(MRS. VRUSHALI V. JOSHI, J.) (A.S. CHANDURKAR, J.)

APTE

Signed by: Apte Designation: PS To Honourable Judge Date: 20/10/2023 18:05:17