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
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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,
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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
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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
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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.
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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.
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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
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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
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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.
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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
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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
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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.
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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
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THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
Dated: 31.01.2024
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