Jammu & Kashmir High Court - Srinagar Bench

Aijaz Ahmad Mir vs Ut Of J&K And Ors on 7 May, 2025

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                                                                Serial No. 8
                                                                                Regular Cause list
                    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                       AT SRINAGAR
                                                    WP(C) No. 1018/2024
                                                    CM No. 2776/2024

                Aijaz Ahmad Mir
                                                                      ..... Appellant/petitioner(s)
                                                     Through: -
                                          Mr. Salih Pirzada, Advocate with
                                              Mr. Bhat Shafi, Advocate

                                                            V/s
                UT of J&K and Ors.
                                                                              ..... Respondent(s)

Through: -

Mr. Hakim Aman Ali, Dy. AG CORAM:

HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE

(ORDER) 07.05.2025

01. Vide Advertisement Notification No. 06-FCS&CA of 2021 dated

09.04.2021, applications were invited by the department of Food, Civil

Supplies and Consumer Affairs for appointment to the post of President,

District Consumer Disputes Redressal Commission ["District Commission"]

in different districts of Jammu and Kashmir.

02. The petitioner applied for the post of President, District Commission,

Srinagar. The Selection Committee constituted vide Government order No.

14-JK(FCS&CA) of 2021 dated 03.02.2021, conducted the selection

process. The said Committee in its meeting held on 10.10.2021, made

recommendations to the department of Food and Civil Supplies and

Consumer Affairs ["the Department"] for the appointment of Presidents and

Members of District Consumer Commissions. The recommendations of the

Selection Committee were forwarded by the department to the department of

General Administration for placing before the competent authority. The

approval of the competent authority was conveyed by the General

Administration Department (GAD) vide U.O No. GAD-CORD/14/2021

dated 21.01.2022 for the appointments of four candidates as Presidents of

four different District Commissions. The selection of the petitioner came to

be approved as President of District Commission, Srinagar.

03. Pursuant to the approval granted by the competent authority as

conveyed by the GAD, the department vide its letter dated 24.01.2022,

called upon all the four candidates, including the petitioner herein to furnish

certain requisite documents so as to enable the department to issue formal

orders of appointment in their favour. The other three candidates, who were

approved for appointment as President, District Commissions, Jammu,

Kathua and Udhampur, completed their requisite formalities within

stipulated time and formal appointment orders in their favour were issued by

the department. The petitioner, who at the relevant time was serving as

Member Advisory Board under J&K Public Safety Act, 1979, could not

submit 'No Objection Certificate' from his employer. The petitioner was

given a reminder by the department on 15.03.2022, to complete the requisite

formalities by 17.03.2022, making it clear to the petitioner that in case he

would not complete the requisite formalities and submit required NOC, his

case shall be forwarded to the competent authority for cancellation of

appointment as President, District Commission, Srinagar. The petitioner

could not submit the NOC within the time prescribed by the department. The

department, being constrained to make appointments to the District

Consumer Commissions within the timeline prescribed by the Hon'ble

Supreme Court, was left with no option, but to process the case of the

petitioner for cancellation of his appointment for not submitting the requisite

documents. The Chief Secretary approved the proposal submitted by the

department for cancellation of the appointment of the petitioner on

21.04.2022 and submitted the File to the competent authority for taking final

call in the matter.

04. While the matter with regard to the cancellation of appointment of the

petitioner was pending consideration before the competent authority, one

Mr. Abdul Rashid Malik, (retired District and Sessions Judge) filed a writ

petition, i.e., WP(C) No. 1464/2022, before this Court on 07.07.2022. By

way of interim arrangement, this Court directed the respondents not to fill up

the post of President, District Commission, Srinagar.

05. The writ petition was disposed of finally on 22.07.2022 with the

following directions:-

" 08. In view of the aforesaid facts and circumstances, we need not to go into the respective submissions made by the parties and with the consent of the parties dispose of the writ petition with the direction to the Secretary Department of Food, Civil Supplies and Consumer Affairs, who is the convener of the Selection Committee, to place the aforesaid representation of the petitioner before the Selection Committee forthwith whereupon the Selection Committee, on verification of the facts from the record, will consider the same and pass appropriate orders preferably within a period of two weeks from the date the representation is placed before the Selection Committee. It is made clear that till any decision on the said representation is made, appointment to the post of President of the Commission at Srinagar, shall remain in abeyance."

06. In compliance with the order of this Court dated 22.07.2022 supra, the

representation of Mr. Abdul Rashid Malik, was considered by the Selection

Committee and the same was found devoid of any merit or justification.

After rejecting the representation of Mr. Abdul Rashid Malik, the case of the

petitioner herein, was taken on hand by the respondents to accord fresh

consideration. This was so because in the meanwhile, the department had

received NOC dated 21.06.2022, from the Home Department. Since the

appointment to the post in question had remained in limbo because of the

pendency of writ petition, filed by Mr. Abdul Rashid Malik, and also

awaiting the submission of requisite NOC by the petitioner which now also

stood issued by the Home Department, as such a pragmatic view was taken

by the respondents to fill up the post by making offer to the petitioner.

Accordingly, the department vide its communication No. 77254-

15604/FCSCA/Legal/2021 dated 09.09.2020, requested the petitioner to

indicate his willingness for appointment either as Member, State

Commission or President, District Commission, Srinagar. The option was

given by the department keeping in view the fact that the petitioner had

responded to both the positions and was in the zone of selection for both the

posts.

07. Be that as it may, the petitioner immediately conveyed his willingness

to be appointed as President, District Commission, Srinagar, through e-mail

on 13th September, 2022. Before the department could proceed further and

issue formal appointment order in favour of the petitioner, there came a

Judgment in the case of Secretary, Ministry of Consumer Affairs Vs. Dr.

Mahindra Bhaskar Limaye and Others, 2023 SCC OnLine SC 231, changing

the mode and manner of conducting selection to the post in question. There

was specific direction in the aforesaid Judgment to conduct selection for the

posts of President and Members of the State Commissions and District

Commissions, strictly as per the criteria laid down in para 45 of the

Judgment in future and after passing of the Judgment. The respondents as it

appears from the reply affidavit declined to issue formal order of

appointment in favour of the petitioner for the reason that in terms of the

Judgment in Dr. Mahindra Bhaskar Limaye, the department had to initiate a

fresh process of selection and make appointments in terms of the procedure

and criteria of selection laid down in para 45 of the Judgment.

08. Feeling aggrieved by the decision of the respondents not to issue

formal order of appointment in favour of the petitioner, the petitioner

approached this Court by way of instant petition, claiming inter alia a

direction to the respondents to issue formal order of appointment in his

favour for the post of President, District Commission (Department),

Srinagar.

09. The petition is filed and relief aforesaid is claimed by the petitioner

primarily on the ground that the Judgment passed by the Hon'ble Supreme

Court in case of Dr. Mahindra Bhaskar Limaye was not applicable to the

case of the petitioner, in that, the process of selection stood concluded and

the appointment of the petitioner approved even before the Judgment was

passed by the Bombay High Court on 14.09.2021, which Judgment has been

upheld by the Hon'ble Supreme Court in the case of Dr. Mahindra Bhaskar

Limaye.

10. Per contra, learned counsel appearing for the respondents would

submit that the petitioner had forfeited his right to be appointed as President,

District Commission, Srinagar, by having failed to complete the requisite

formalities, viz submission of NOC from the employer within the stipulated

period. He would further submit that the department had decided to condone

the lapse of the petitioner and offer him appointment, but it could not be

done because of the Judgment passed by the Hon'ble Supreme Court.

11. Heard learned counsel for the parties and perused the material on

record.

12. It is seen that the only issue that begs determination in this case can be

put as under:

"Whether the right of the petitioner to be appointed as President, District Commission, Srinagar is affected by and taken away by the Judgment passed by the Hon'ble Supreme Court in Dr. Mahindra Bhaskar Limaye's case.

13. If the answer is in the negative, the petitioner would succeed in this

petition. To find answer to this question, few admitted facts are required to

be noticed.

i. That the process of selection to fill up, amongst others, the post

of President, District Commission, Srinagar was set in motion

vide Advertisement Notification dated 09.04.2021.

ii. That the Selection Committee constituted by the Government

completed its selection process and made recommendations on

10th October, 2021.

iii. That the competent authority accepted the recommendations

and approved the appointment of petitioner and three others on

21.01.2022. The three other candidates approved for

appointment as Presidents, District Commission Jammu,

Kathua and Udhampur, were appointed on 17.03.2022.

iv That the petitioner could not be offered the appointment despite

his approval by the competent authority for the reasons that he

had failed to submit NOC from his employer, i.e., the

department of Home.

v. That on account of his failure to submit NOC within stipulated

period, the Chief Secretary approved the proposal of the

department for cancellation of appointment of the petitioner on

21.04.2022 and submitted the File to the competent authority

for consideration and appropriate orders.

vi. That before formal decision with regard to cancellation of

appointment of the petitioner could be taken, Mr. Abdul Rashid

Malik, filed a writ petition, WP(C) No. 1464/2022 before this

Court, which remained pending till it was disposed of on

22.07.2022.

vii. That in compliance with the Judgment passed by this Court in

Abdul Rashid Malik's case, a representation of Mr. Malik was

considered and rejected by the Selection Committee.

viii. That the NOC dated 21.06.2022 was received by the

department vide communication dated 28.06.2022.

ix. That the department with a view to issue formal order of

appointment in favour of the petitioner after condoning the

lapse, if any, attributed to him for having failed to submit NOC

in time, considered the case of the petitioner afresh and decided

to offer him appointment either as Member of State

Commission or President, District Commission (Department)

Srinagar.

x. That vide communication dated 09.09.2022, the department

asked for willingness of the petitioner to be appointed either as

Member of State Commission or President of District

Commission, Srinagar.

xi. That on 13.09.2022, the petitioner responded through e-mail

and conveyed his willingness to be appointed as President,

District Commission, Srinagar.

xii. That on 03.03.2023, the Judgment came to be passed by the

Hon'ble Supreme Court in case Dr. Mahindra Bhaskar

Limaye's case.

14. From the aforesaid admitted position, it clearly transpires that the

process of selection, in which the petitioner came to be approved for

appointment as President, District Commission, Srinagar, came to be

concluded on 10.10.2021, when the recommendations were submitted by the

Selection Committee to the competent authority. It is relevant to state that in

suo moto writ petition No. 02/2021, the Hon'ble Supreme Court vide its

order dated 22.10.2021, made it clear that notwithstanding the Judgment of

the Bombay High Court dated 14th September, 2021, the process of selection

initiated by the States to fill up the vacancies of President and Members of

State Commission and District Commissions in terms of an order dated 11th

August, 2021 passed in that suo moto writ petition shall be taken to the

logical end. The aforesaid direction came to be issued by the Hon'ble

Supreme Court in the context of the fact that in some cases, the

appointments stood already made and in others the appointment process was

at an advance stage. For facility of reference, we set out below relevant

observation of the Hon'ble Supreme Court made in the order dated

22.10.2021 supra:

"Learned ASG submits that the two weeks window was provided by the judgment of the High Court to enable the Central Government or any party aggrieved by the judgment toa assail the same before us and the Union of India and the State of Maharashtra are in process of filing the SLP. Be that at it may, the question is whether the process which has been initiated in the different States in pursuance to our comprehensive order passed on 11.08.2021, should be kept in abeyance in view of this judgment. On consideration of the importance of filling up of the vacancies, we are of the view that the timeline and process fixed by us must continue as in some of the cases the appointments have been made and in others the appointment process is at an advance stage. Thus, the process initiated in pursuance to that order should not be impeded by the subsequent judgment of the Nagpur Bench of the Bombay High Court whatever be the ultimate result of further proceedings to be filed by the Government in that behalf."

15. In the case on hand, the process of selection in which the petitioner

came to be approved for appointment had already been concluded on

10.10.2021 and even three persons approved along with petitioner stood

appointed. In that view of the matter, the Judgment passed by the Hon'ble

Supreme Court in the case of Dr. Mahindra Bhaskar Limaye was not

applicable. From reading of para 46 of the Judgment, which we will set out

hereinbelow, makes it abundantly clear that the procedure for appointment

as per the rules and the selection criteria indicated in para 45 was applicable

only to the selections and appointments to the post in question to be made in

future, i.e, after the date of the Judgment viz 03.03.2023. Para 46 of the

Judgment reads as under:-

"46. 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, we direct 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 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    Objective Type     100          2 hours
                                    knowledge         and
                                    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         Descriptive type   100          3 hours
                                    topics chosen from
                                    issues on trade and
                                    commerce consumer
                                    related issues or
                                    Public Affairs.
                                    (b) One case study of
                                    a consumer case for
                                    testing the abilities
                                    of    analysis    and
                                    cogent drafting of
                                    orders.

16. In the instant case, the appointment of the petitioner stood approved

by the competent authority on 21.01.2022 and what for the intervention

made by Mr. Abdul Rashid Malik by filing writ petition before this Court,

the same would have fructified into a formal order of appointment much

before 03.03.2023. We are not in agreement with learned counsel for the

respondents that the appointment to the petitioner could not be offered along

with three others because of delay in submitting the NOC from the Home

Department, which delay was entirely attributable to the petitioner. From

reading of the NOC dated 21.06.2022, it is evident that the department had

solicited the NOC from the department of Home vide its communication

issued only on 05.05.2022.

17. Be that as it may, the fact remains that with the renewal of offer of

appointment to the petitioner vide letter dated 09.09.2022, the lapse, if any,

attributable to the petitioner stood condoned.

18. In view of the aforesaid discussion and the admitted factual position

obtaining in the case, we are of the considered opinion that the Judgment

passed by the Hon'ble Supreme Court in the case of Dr. Mahindra Bhaskar

Limaye, could not be pressed into service by the respondents to deny

appointment to the petitioner as President of District Commission, Srinagar,

which appointment he has earned because of his merit.

19. For the foregoing reasons and discussions made hereinabove, we find

merit in this petition and the same is, accordingly, allowed. The respondents

are directed to issue, forthwith, a formal order of appointment in favour of

the petitioner for the post of President, District Consumer Disputes

Redressal Commission (District Commission), Srinagar. The needful be

done within a period of four weeks from the date copy of this order is served

upon the respondents.