Dr. Prem Lata vs Gnct Of Delhi And Ors
2011 Latest Caselaw 2353 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                  Date of decision: 3rd May, 2011
+                                  W.P.(C) 178/2011
         DR. PREM LATA                                         ..... Petitioner
                      Through:           Mr. R.K. Saini & Mr. Sitab Ali
                                         Chaudhary, Advocates.
                                      versus
         GNCT OF DELHI AND ORS                    ..... Respondents
                     Through: Mr. Najmi Waziri, Standing Counsel
                               (Civil), GNCTD with Ms. Zeenat
                               Masoodi, Advocate.
                               Mr. Om Prakash, Advocate for
                               R-4&5.
                               Ms. Reeta Chaudhary, Advocate for
                               R-6.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      Yes

2.       To be referred to the reporter or not?               Yes

3.       Whether the judgment should be reported              Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition concerns appointment to the Office of the President of

District Consumer Disputes Redressal Forum (District Forum), Delhi;

advertisements inviting applications to the said post were published in the

newspapers on 18th March, 2010 by the Food Supplies and Consumer

Affairs Department of Government of NCT of Delhi. Seventy Two (72)

applications including that of the petitioner were received. In accordance

with Section 10(1A) of the Consumer Protection Act, 1986 (Consumer Act)

a Selection Committee was constituted. The Selection Committee made its

recommendation for filling up the vacancies in the Office of five District

Fora in Delhi by preparing a panel, valid for one year. The said

recommendation also provided:

"In case the candidates selected fail to join within 45 days of offer of appointment, the appointment will lapse and the second or third person as the case may be in preference will be offered the appointment.

During the course of interview on our query the candidates already serving had candidly expressed before us that in case they are selected and offered appointment, they will join immediately."

2. The name of the petitioner did not figure in the name of the five (5)

selected candidates in the said recommendation. However the name of the

petitioner was mentioned as the "second person" in the event of Mr. M.C.

Mehra whose name figured at serial no.4 in the list of selected candidates,

not joining.

3. The petitioner claims that the panel was subsequently revised and

inspite of the petitioner, being a candidate in waiting in the event of

Mr. M.C. Mehra not joining, the name of the petitioner was placed at serial

no.6 i.e. entitled to join in the event of any of the first five selected

candidates not joining within 45 days of offer of appointment.

4. It is further the case of the petitioner that the respondents no.4, 5 & 6

whose name appeared at number 1, 2 & 5 respectively of the selected

candidates, did not join within 45 days of offer of appointment to them and

thus as per the recommendation aforesaid of the Selection Committee, the

offer to them of appointment, automatically lapsed and the petitioner being

the next person on the panel became entitled to appointment. Upon the

representation of the petitioner seeking such appointment meeting with no

success, this writ petition was filed seeking quashing of the extension if any

granted to the respondents no. 4 to 6 to join and mandamus declaring

appointment of the respondents no. 4 to 6 to the said post as illegal and void

and mandamus directing appointment of the petitioner to the said post w.e.f.

1st December, 2010 with all consequential benefits. The writ petition was

filed in or about the beginning of January, 2011 and came up before this

Court first on 12th January, 2011 when the petitioner appearing in person

sought time to file the advertisement inviting applications and certain other

documents.

5. The petition thereafter came up before this Court on 28 th January,

2011 when the following order was passed.

"The petitioner, who is a sitting member of the District Consumer Disputes Redressal Forum, Janak Puri, West Delhi, appears in person. She states that she does not wish to engage an advocate. Her grievance is in relation to an advertisement stated to have been issued by the Department of Food, Civil Supplies and Consumer Forums on 18.03.2010 inviting applications for appointment to the post of President of Consumer Disputes Redressal Forum of Delhi.

I have suggested to her that perhaps it might be more appropriate for her to engage counsel so that the matter may be handled with professional, dispassionate objectivity and, at the same time permit her to attend to her duties at the consumer forum. She, however, wishes to exercise her right to appear in person.

After some preliminary hearing, I consider it appropriate to request Mr. R.K. Saini, Advocate, who happens to be

present in Court, to discuss the matter with the petitioner, and to thereafter assist the Court in this matter. In seeking an earlier date, the petitioner first said that public interest is suffering since the post of President in various forums in Delhi has been lying vacant since long, and the respondents are not taking any steps to fill them up. When it was pointed out that hers was not a public interest litigation, she then said that she apprehends that the respondents will appoint someone else in the meanwhile, thus defeating her claim.

Initially, keeping in mind the fact that the petitioner is appearing in person, and is also a member of a Consumer Disputes Redressal Forum, I had tried to take a very lenient view of her approach and manner in addressing this Court. But it appears that my indulgence is taken either as a sign of weakness, or a licence to the petitioner to address this Court in an intemperate manner saying that she has been denied justice and that her filing of the writ petition will be of no consequence whatsoever, in case other people are appointed by the respondents.

The petitioner appears to be under the impression that by creating a spectacle and haranguing the Court, she would somehow be able to compel the Court to pass some favourble orders.

All efforts of other counsel present in Court to advise the petitioner to restrain herself; and even the efforts of Mr. R.K. Saini, Advocate, in this regard, made no impact on her. It is only when I have, thereafter, made it very clear that I intend to take a stern view of her conduct that she has tendered an apology. I, therefore, do not take this matter any further.

List on 4th March, 2011 for further preliminary consideration.

SUDERSHAN KUMAR MISRA, J."

6. The petitioner thereafter applied for amendment of the petition, which

was allowed on 10th March, 2011 and notice of the amended petition was

issued for 19th April, 2011 and the respondents no.1 to 3 (respondents no. 2

& 3 being the Secretary-cum-Commissioner, Department of Food Supplies

& Consumer Affairs and the Lt. Governor, Delhi respectively) directed to

produce the relevant record. On 19th April, 2011, Mr. Najmi Waziri counsel

for the respondents no.1 to 3 produced the record relating to the appointment

for the post of President, District Forum and Mr. R.K. Saini, Advocate

appointed as a Amicus Curiae, Mr. Waziri and the counsel for the

respondents no.4 & 5 were heard. The petitioner on that date chose not to

address herself and expressed full confidence in Mr. Saini. Mr. Waziri on

enquiry on the basis of the record brought has disclosed that while the

respondents no. 5 & 6 joined the post on 25th February, 2011, the respondent

no.4 joined on 28th February, 2011 i.e. before the date of issuance of the

notice of this petition.

7. The contention of Mr. Saini is that, under Section 10(1A) of the

Consumer Act which is as under:-

"(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:-

(i) President of the State Commission -Chairman.

(ii) Secretary, Law Department of the State -Member.

(iii) Secretary, incharge of the Department -Member.

dealing with consumer affairs in the State "

the appointment has to be made as per the recommendation of the

Selection Committee; that the Selection Committee having recommended

that the appointment of the five selected candidates would automatically

lapse if do not join within 45 days of offer of appointment, the respondent

no.1 as appointing authority was bound by the said recommendation and

could not have extended the time for appointment and the petitioner in

accordance with the recommendation of the Selection Committee became

the "selected candidate" on the 46th day and has thus a right to appointment.

He contends that the mandate of the Selection Committee is binding on the

appointing authority.

8. Attention of the counsel for the petitioner was invited to the recent

judgment of the undersigned in Acharya Gyan Ayurved College v.

Department of Ayush MANU/DE/3346/2010 in para 10 whereof the

following judgments on the value/nature of recommendations were noticed;-

(i) Dr. Ashok K. Mittal v. University of Delhi ILR (1996) 2 Del

489 where a Division Bench of this Court held that the

Governing Body of the college was the appointing and the

deciding authority and no error could be found in its

decision while considering the report of the Selection

Committee, to re-advertise the post;

(ii) M.P. Rural Agriculture Extension Officers Association v.

State of M.P. (2004) 4 SCC 646 holding that even though

Pay Commission is an expert body, it is still open to the

State to accept or not to accept its recommendations;

(iii) Union of India v. Telecom Regulatory Authority of India

74 (1998) DLT 282 laying down that to hold the

recommendations of the Regulatory Authority to be binding

on the licensing authority i.e. the Government would amount

to changing the basic structure of the Telegraph Act and to

putting the Government under the control of the Regulatory

Authority thereby curtaining, restricting and circumscribing

the power of the Government;

(iv) MTNL v. TRAI 84 (2000) DLT 70 in which the Division

Bench did not differ from the aforesaid dicta;

(v) Dr. H. Mukherjee v. UOI AIR 1994 SC 495 holding that

Government as appointing authority has absolute power to

approve or disapprove list of recommendations and that the

Government can take into consideration the developments

subsequent to the selection made by the UPSC and to hold

otherwise would not be in public interest and may lead to

serious complications if the Government is enjoined to act

notwithstanding serious matters having come to its notice

subsequent to the recommendation made by the UPSC.

(vi) Sethi Auto Service Station v. DDA 129 (2006) DLT 139

where also a Division Bench of this Court held that if the

recommendatory body is not the final authority to take the

decision, merely because some favourable recommendations

are made at some level of decision making process, that will

not bind the superior or higher authority;

(vii) Lakhwinder Singh v. UOI (2008) 7 SCC 648 where also the

assessment of the Selection Board was held to be purely

recommendatory in character and the power of the

appointing authority to accept or vary the recommendation

of the Selection Board was held to be implicit;

(viii) State of Kerala v. A. Lakshmikutty (1986) 4 SCC 632

where the recommendations of the High Court for

appointment of District Judges were held to be not binding

though the circumstances in which the State could differ

were laid down;

9. Mr. Saini however contends that Section 10(1A) supra of the

Consumer Act does not leave any such discretion in the State Government

and mandates the appointment to be in accordance with the

recommendations of the Selection Committee.

10. I am unable to agree and to read Section 10(1A) supra as contended.

The legislature while making the State Government the appointing authority

for the post of the President of the District Forum has merely provided the

mode of appointment. Had the intent been to appoint the candidates selected

by the Selection Committee, the legislature would not have used the word

"recommendation". The word "recommendation" as aforesaid has definite

connotation in law and it can safely be presumed that the legislature when

enacting Section 10(1A) intended what is ordinarily understood by use of

the word "recommendation". Even if the appointments were to be

necessarily made by the State Government, had the legislature intended the

recommendations of the Selection Committee to be binding, language of

Section 10(1A) would have been "every appointment under sub-section (1)

shall be made by the State Government of the candidate selected by the

Selection Committee consisting of the following......."

11. I may notice that Section 20 of the Consumer Act uses language

identical to that of Section 10(1A) qua appointment of members of the

National Consumer Disputes Redressal Forum (National Commission).

However, Rule 12A(8) of the Consumer Protection Rules, 1987 provides for

the Central Government, which is the appointing authority verifying

credentials and antecedents of candidates selected by the Selection

Committee and satisfying itself as to their suitability. The same is also

indicative of the language used in Section 20 or Section 10(1A) meaning not

what is attributed to it by Mr. Saini.

12. Mr. Saini after the close of hearing has submitted copies of the

following judgments:-

a) S. Chandramohan Nair v. George Joseph 2010 (10) SCALE

507 - this case concerned the appointment to the post of the

Member of the Kerala State Consumer Disputes Redressal

Commission Section 16(1A) of the Consumer Act relating to

the said appointment similarly provides the appointment to be

made by the State Government on the recommendation of the

Selection Committee. The Supreme Court in para 16 of the said

judgment also held:-

"An analysis of these provisions shows that ......... though, the State Government is not bound to accept

the recommendations made by the Selection Committee, if it does not want to accept the recommendations, then reasons for doing so have to be recorded. The State Government cannot arbitrarily ignore or reject the recommendations of the Selection Committee. If the appointment made by the State Government is subjected to judicial scrutiny, then it is duty bound to produce the relevant records including recommendation of the Selection Committee before the Court to show that there were valid reasons for not accepting the recommendation."

I am unable to see as to how the said judgment can be of any

assistance to the petitioner. In fact the Apex Court in relation to the same

Act i.e. the Consumer Act has reiterated that notwithstanding the language

of Section 16(1A) and which is identical to 10(1A), the State Government is

not bound to accept the recommendations made by the Selection Committee.

All that it lays down is that deviation from the recommendations has to be

for valid reasons and which can be subject to judicial scrutiny.

(b) Shesh Mani Shukla v. D.I.O.S. Deoria 2009 (10) SCALE 457

which was however a case of appointment without complying

with the prescribed procedure and thus has no application to

the present case;

(c) Basavaiah v. Dr. H.L. Ramesh (2010) 8 SCC 372 which is a

judgment on limits of judicial review and the Courts in

exercise of power under Article 226 of the Constitution of

India refraining from interference in Expert Committee's

recommendations. Here this Court is not being called upon to

interfere in the recommendations of candidates made by the

Selection Committee but the question involved is of the

powers of the appointing authority;

(d) Judgment dated 18th February, 2009 of the Kerala High Court in

W.P.(C) No.16915/2005 (L) titled James K. Joseph v.

Government of India relating to appointment of

Administrative Member in Central Administrative Tribunal,

Ernakulam Bench. In this case, the Selection Committee had

withdrawn its earlier recommendation of the petitioner. It was

held that in exercise of judicial review the High Court cannot

sit in appeal over report of Intelligence Bureau and as to the

choice of candidates. I fail to see how this judgment either

helps the petitioner.

13. The Supreme Court in R.S. Mittal Vs. UOI 1995 Supp (2) SCC

230held that though there is no vested right to be appointed to the post for

which a candidate has been selected but the appointing authority cannot

ignore the panel or decline to make the appointment and when a person has

been selected then ordinarily there is no justification to ignore him for

appointment unless there is a justifiable reason to decline to appoint a person

who is on the selection panel. Similarly in State of U.P. Vs. Rajkumar

Sharma (2006) 3 SCC 330 it was held that mere inclusion in the select list

does not confer any right to be selected even if some of the vacancies remain

unfilled.

14. The Constitution Bench in Shankarsan Dash Vs. Union of India

(1991) 3 SCC 47 held that the notification merely amounts to an invitation

to qualified candidates to apply for recruitment and or their selection they do

not acquire any right to the post and that unless the relevant recruitment

rules so indicate, the State is under no legal duty to fill up all or any of the

vacancies. It was however held that the same does not imply that the State

has the license of acting arbitrarily and is bound to respect the comparative

merit as reflected in the recruitment test.

15. The Supreme Court in Ashwani Kumar Singh Vs. U.P. Public

Service Commission (2003) 11 SCC 584 also while holding that vacancies

which exist on account of some selected candidates not joining need not

perforce be filled up from the merit list and much would depend upon the

statutory provisions governing the field. In the present case, as aforesaid,

the statutory provision does not even provide for preparation of such a panel

or of a list of candidates in waiting.

16. Reference may also be made to Union of India v. N.P. Dhamania

AIR (1995) SC 568 laying down that the appointing authority can choose to

differ from the recommendations but must give reasons for the same. To the

same effect is the judgment in S.M. Bose v. AIIMS 1993 (26) DRJ 544.

17. Before referring to the records produced by the Government to find

whether any reasons existed for the appointing authority to relax the period

of 45 days laid down in the recommendation of the Selection Committee, it

is apposite to refer to another question put during the course of hearing to

the Ld. Amicus Curiae. The Consumer Act does not provide for preparation

of a panel of candidates or for the selected candidate being required to join

within 45 days of offer of appointment and the appointment automatically

lapsing upon not so joining and the candidate in waiting becoming the

"selected candidate". No rules also in this regard were cited. It was as such

enquired as to what was the power of the Selection Committee to, besides

naming the selected candidates, provide a period of 45 days for joining or

for automatic lapsing of appointment or to prepare a panel of others in

waiting.

18. No answer was forthcoming from Mr. Saini. He rather suggested that

it was for the Government to explain. He also contended that the appointing

authority being the Lt. Governor having accepted the said recommendation

of the Selection Committee, the said question did not arise. I may however

notice that the advertisement inviting applications did provide that the

appointing authority reserved the right to form a panel, "without any

obligation of appointment to the wait listed candidates". In certain other

matters, I have come across the Office Memorandum dated 30 th July, 2007

of the Ministry of Personnel, Govt. of India providing for preparation of a

panel, valid for a period of one year. I suspect that the panel in the present

case was prepared as per the said Office Memorandum. I also find that the

Supreme Court in Dr. Uma Kant Vs. Dr. Bhikalal Jain (1992) 1 SCC 105

observed that a reserve list is prepared to meet the contingency of

anticipated or future vacancies caused on account of resignation, retirement,

promotion or otherwise, because it takes a long time in constituting fresh

Selection Committee and in order to avoid ad hoc appointment.

19. It has thus to be necessarily held that the petitioner does not have any

right of appointment. However, since it appears that the recommendation of

the Selection Committee even though not as per the statute and without any

mandate, was accepted by the appointing authority. This Court is to only

satisfy itself whether the extension granted to the selected candidates to join

was for reasons or arbitrary.

20. I have perused the records produced by the Government to find

whether the Selection Committee had the mandate to besides recommending

the name of the most suitable candidates for appointment, also lay down the

terms of appointment. The language of Section 10(1A) requires the

Selection Committee to only recommend the names of the selected

candidates and not the conditions of appointment.

21. Neither the record produced nor the office notings therein show that

any such mandate was issued to the Selection Committee. The advertisement

inviting applications also did not contain any such condition that the selected

candidate was required to join within 45 days. It was in contemplation at the

time of inviting applications that those already in service may also apply and

be selected and the advertisement required such persons to obtain the

clearance/sponsorship of their department/employer and route their

applications through proper channel. At this stage, I may also notice that

though it is the case of the petitioner that pursuant to the initial

recommendation, a consolidated panel in which she was placed at serial no.6

was prepared but the record and/or the office notings do not support such

case. The record and the office notings contain only the one

recommendation of the Selection Committee and in which the petitioner had

a right of appointment only in the event of Shri M.C. Mehra not joining

within 45 days. It is not the case of the petitioner that Shri M.C. Mehra did

not join within 45 days; Shri M.C. Mehra is not even impleaded as a party to

this petition. Rather the record shows that Mr. M.C. Mehra joined within 45

days. Thus as per the recommendation on record, the petitioner had no right

of appointment upon delay by the respondents no.4 to 6 in joining.

22. The record shows that offer of appointment was made to the

respondents no.4 to 6 vide letters dated 13 th October, 2010. The said letters

also, though required acceptance to be intimated within 10 days and though

containing other terms & conditions, did not provide that upon appointment

the incumbents will have to join within 45 days. The record further shows

that the respondents no.4 to 6 vide their letters dated 21st October, 2010, 20th

October, 2010 & 21st October, 2010 respectively conveyed their acceptance

thereto. The acceptance letter of only the respondent no.6 also states that he

"shall join within the time framed by the department". The appointment

orders dated 25th October, 2010 of the respondents no.4 to 6 were issued.

The same also did not contain any term(s) of the appointees i.e. the

respondents no.4 to 6 being required to join within 45 days. However the

office noting dated 8th November, 2010 shows a decision to inform the

respondents no.4 to 6 of the recommendation of the Selection Committee of

the selected candidates being required to join within 45 days and the

appointment lapsing on failure to so join. In pursuance thereto letters dated

9th November, 2010 were issued to the respondents no.4 to 6 informing them

that if they were unable to join by 27th November, 2010, the offer of

appointment will automatically lapse and the next candidate on the panel

will be considered for appointment to the post.

23. In this regard it may be stated that the respondent no.4 Shri Rakesh

Kapoor was then the Principal District & Sessions Judge of Delhi and the

respondent no.5 Shri C.K. Chaturvedi, District Judge-II, Delhi and the

respondent no.6 Shri S.N.A. Zaidi, Addl. District Judge, Mathura. They had

written to the High Court of Delhi and the High Court of Judicature at

Allahabad respectively to be relieved.

24. In response letters dated 9th November, 2010 (supra), the respondent

no.4 vide his letter dated 23rd November, 2010 informed that he had written

to the High Court of Delhi requesting to be relieved at the earliest and shall

join immediately on being relieved. Similar letters dated 19 th November,

2010 and 20th November, 2010 were also sent by the respondents no.5&6

respectively.

25. Mr. Saini has argued that the date on which the respondents no.4 to 6

asked to be relieved would be relevant; that they were required to

immediately after issuance of the appointment letter dated 25th October,

2010 take steps with their respective employers for being relieved and if are

not shown to have so taken the steps, would be guilty of delay/laches and

would forfeit their appointment. Upon the counsel for the respondents no.4

& 5 contending that the orders dated 25th October, 2010 do not even contain

any such stipulation of 45 days, Mr. Saini contends that as per the

recommendation aforesaid of the Selection Committee, the candidates at the

time of interview had assured that they will join immediately and could not

be permitted to, while continuing on their existing post, hold up other post.

In fact he had sought affidavits to be filed by the respondents in this regard

and a right to rejoin.

26. The record shows that though the respondent no.6 had applied to the

High Court of Judicature at Allahabad for being relieved on 28th October,

2010, the respondents no.4&5 applied for being relieved only after receipt of

the letters dated 9th November, 2010. To my mind, however the said aspect

is irrelevant for the reason that the record shows that each of the respondents

no.4 to 6 joined immediately i.e. either the very next date or the same date of

being relieved.

27. As aforesaid, applications were invited from those in

service/employment elsewhere also and it was thus in the contemplation of

the appointing authority as well as the Selection Committee that the selected

candidates would not be able to join till being relieved from their existing

employers and which was not in their own hands. Mr. Saini has ofcourse

argued that the respondents no.4 to 6 if not being relieved by their

employer(s) should have gone to Court against their employer(s) but I am

unable to accept such far-fetched argument.

28. Mr. Waziri from the record has also shown a letter dated 24th

November, 2010 written by the High Court of Delhi to the Lt. Governor,

Delhi informing that the Hon'ble Chief Justice of Delhi High Court had

desired that three months more time be given to the respondents no.4 & 5 to

join as they could be relieved by the Delhi High Court only after selection of

their replacements in a Full Court meeting. The office notings show that the

Lt. Governor on 4th February, 2011 considered the proposal for granting

three months extension but sanctioned issuance of a final notice to the

selected candidates then yet to join, to join within 15 days from the date of

receipt of notice or three weeks from the date of issuance of notice failing

which the offer of appointment will be given to the candidates kept on the

panel. A request was also made to the Registrar, Delhi High Court to

consider relieving the respondents no.4&5 immediately. In pursuance to the

said decision of the Lt. Governor, letters dated 7th February, 2011 were

issued to respondents no.4 to 6 asking them to join as aforesaid and

informing them that on default, offer of appointment will be given to the

candidates kept on panel.

29. As aforesaid, the respondents no.4 to 6 joined within the time

aforesaid.

30. In accordance with the judgment of the Apex Court in S.

Chandramohan Nair (supra) the Lt. Governor as the appointing authority

was entitled to vary the recommendation of the Selection Committee for

reasons to be recorded. The record contains the reasons aforesaid for the Lt.

Governor to have relaxed the period of 45 days recommended by the

Selection Committee.

31. I find no reason for judicial review of the decision so taken by the

appointing authority for relaxing the time of 45 days. Undoubtedly, the

respondents no. 4 to 6 were the first choice for appointment and the

petitioner only the second choice. I have repeatedly asked from Mr. Saini as

to why should the appointing authority be not interested in taking the best

candidate available and/or the first choice even if at the cost of some delay.

No satisfactory answer has been forthcoming. The Supreme Court in UOI

Vs. Kali Dass Batish (2006) 1 SCC 779 also reiterated the limits of judicial

review in the matters of appointment.

32. There is another aspect of the matter. The order dated 28 th January,

2011 in the present petition re-produced herein above reflects the conduct

and behaviour of the petitioner before this Court. I have enquired from

Mr. Saini as to whether in the light thereof, the petitioner can be said to be a

fit person for occupying the post of the President and/or to be entitled to any

equitable relief under Article 226 of the Constitution of India. Mr. Saini has

contended that the petitioner, only committed the mistake of contrary to

settled practice, appearing in person and was swayed owing to her personal

involvement.

33. Philip Allen Lacovara, a distinguished practitioner in an article in the

American Bar Association Journal observed that a perfect Judge is an

abstraction.....he will never exist in fact...but then every cosmology has its

ethics. There is no judicial discretion allowing a Judge to lose his sangfroid.

Hot-button temperaments mar judgments and barbs demean the Courts.

True, at times there may be judicial necessity to point to the right path. Even

judicial pain may impel an appellate Court in some cases to provide proper

direction, but, while dealing with peccadilloes suggesting the failings of

individuals, the judges have to exhibit high intellectual, professional and

literary skills. A Judge can neither afford to be unfair nor vituperative.

34. The petitioner is a long serving member of the District Forum and is

expected to be conversant with the Court procedures and the behaviour of

the petitioner recorded in the order aforesaid, in my opinion certainly

disentitles the petitioner from the relief claimed in the present petition

though with the clarification that the same is not intended to come in the

way of the petitioner seeking any appointment/post in future. The counsel

for the respondent no.4&5 has in this regard after the close of hearing also

handed over photocopy of Hoshiar Singh v. State of Haryana 1993 Supp.

(4) SCC 377 laying down that non-selection on the ground of misbehaviour

at the time of interview is justified.

35. Mr. Saini has also argued that even though the respondents no.4 to 6

have since joined but after the filing of this writ petition on 7th January, 2011

and thus the principle of lis pendens would apply and the petitioner upon

succeeding would be entitled to an order for removal of the respondents no.4

to 6 and to an order of appointment. It is also contended that the procedure

adopted is mala fide, intended to deprive the petitioner of appointment and

to favour the respondents no.4 to 6. He also contends that the extension

allowed of 90 days is disproportionate to the initial time granted of 45 days.

36. I am unable to accept any of the contentions aforesaid. The petition

though filed on 7th January, 2011 remained deadwood till 4th March, 2011

when it was amended and before which date the respondents no.4 to 6 had

already joined. No basis for the pleas of mala fide or favouritism have also

been found on record.

37. Mr. Waziri has urged that the petitioner has no locus to maintain the

present petition because she is not qualified for appointment. Strong

objection was taken by Mr. Saini to the said argument contending that the

petitioner having been selected and the recommendations of the Selection

Committee having been accepted, no such ground can now be urged. He had

also contended that if the respondents were to be permitted to urge the said

ground, an opportunity ought to be also given to the petitioner to meet the

same. Mr. Saini was assured at the close of hearing that this Court did not

intend to return any finding on the said argument but the same would be

recorded.

38. The contention of Mr. Waziri is that the eligibility provided under

Section 10(1)(a) of the Consumer Act , for the post of the President of the

District Forum is of a person who is, or has been, or is qualified to be a

District Judge. He contends that admittedly the petitioner was not and has

not been a District Judge. On the question of whether the petitioner is

qualified to be a District Judge, attention is invited to Article 233 of the

Constitution of India providing for a person to be eligible to be appointed as

a District Judge, if he is recommended by the High Court for appointment. It

is urged that the petitioner having never been recommended by the High

Court for appointment as the District Judge could not be eligible to be

appointed as the President. Reliance in this regard is also placed on the

recent dicta dated 8th April, 2011 of the Division Bench of this Court in

W.P.(C) No.2231/2011 titled D.K. Sharma v. Union of India drawing a

distinction between Article 233 and Article 217 relating to the appointment

of a High Court Judge. It is contended that Article 217 while laying down

eligibility for appointment as a Judge of the High Court, does not provide for

recommendation of the High Court or the Supreme Court. On enquiry as to

to what class of persons the eligibility prescribed in Section 10 (1)(a) of

"qualified to be a District Judge" would apply, he states that it would apply

to either serving judicial officers eligible to be District Judge or to

Advocates recommended for appointment by the High Court but not

appointed or not joining.

39. As assured at the close of hearing, this Court in this proceeding is not

to adjudicate the aforesaid controversy.

40. The counsel for the respondents no.4&5 with reference to the CCS

Rules applicable to the Subordinate Judiciary has contended that

respondents no.4&5 could not have joined without being relieved and joined

immediately upon being relieved by this Court. They have also denied that

they were at the time of interview communicated that they would be

required to join within 45 days. It is also contended that the Bio Data of the

petitioner does not even show requisite experience of the petitioner as

Advocate or a Pleader for eligibility for appointment as a District Judge.

After close of hearing, copies of the following judgments were handed over:

A. District Collector & Chairman, Vizianagaram Social

Welfare Residential School Society, Vizianagaram v. M.

Tripura Sundari Devi MANU/SC/0478/1990 laying down that

appointment in disregard of prescribed qualification is not a

matter between appointing authority and appointee alone but

amounts to fraud on public, to contend that respondents are

entitled to raise the plea of eligibility of the petitioner.

B. Shainda Hasan v. State of Uttar Pradesh

MANU/SC/0271/1990 to canvass that Selection Committee

could not have relaxed the qualifying criteria for the petitioner.

C. Sunil Kumar Goyal v. Rajasthan Public Service

Commission MANU/SC0405/2003 laying down that those

Advocates who had joined service, even though representing

their Department before Tribunal, could not appear before the

Court like lawyers, to contend that the petitioner did not have

requisite experience as Advocate.

D. Divisional Forest Officer v. M. Ramalinga Reddy (2007) 9

SCC 286 laying down that a selected candidate has no legal

right to be appointed automatically.

The Court must express appreciation for Mr. Saini who, at the request

of the Court, has at short notice placed the case of the petitioner in the best

possible perspective and rendered exemplary assistance to this Court.

The petition therefore fails and is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) MAY 3rd, 2011 pp.