Supreme Court affirms the order of the Bombay High Court supporting lawyers with 10 years’ experience to be considered for Consumer Commission appointment

Supreme Court: Exercising their civil appellate jurisdiction, the division bench of M.R. Shah* and M.M. Sundresh J.J., held that people having a Bachelors degree and a professional experience of at least 10 years in consumer affairs, law, public affairs, administration and alike should be treated as qualified for appointment as president and members of State Consumer Commissions and District Consumer Forums.

In the matter at hand, the Secretary Ministry of Consumer affairs challenged the impugned common order passed by the Bombay High Court in a public interest litigation and in a writ petition by the division bench of the High Court which had struck down and declared 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 (‘2020 Rules’) as arbitrary, unreasonable and violative of Article 14 of the Constitution of India.

Under the 2020 Rules, the power was conferred upon the Selection Committee to determine its own procedure for selection of President and Members of the District and the State Commission which was constituted under the Consumer Protection Act, 2019 (‘2019 Act’) providing for selection of the candidate without holding the written examination, and only on the basis of viva voce.

It was submitted that prescribing minimum experience of 20 years and 15 years for President and Members of State and District Commission respectively, was also contrary to the directions issued by this Court in the case of Madras Bar Association v. Union of India, (2021) 7 SCC 369 (‘Madras Bar Association’). The said case had directed to consider the Tribunal and Appellate Tribunal and other Authorities (Qualifications, Experience and other conditions of Service of Members), the Rules, 2020 to be amended to make advocates with an experience of at least 10 years eligible for appointment as judicial members in the tribunals.

The Bench analysed the fact that the High Court had specifically observed that granting complete discretion under the 2020 Rules to the Selection Committee to determine its own procedure would result in creating a situation which would lead to wide variations in standard as well as a great deal of subjective, bureaucratic and political interference resulting in violation of Article 14 of the Constitution.

The Bench noted that the High Court had considered the historical background of tribunals and the fact that they were endowed with the judicial functions with a duty to decide the matters in judicious manner.

It was contended that in State of Uttar Pradesh v. All Uttar Pradesh Consumer Protection Bar Association, (2017) 1 SCC 444 (‘UPCPBA’) directions were passed to frame Model Rules under the Consumer Protection Act, 1986 (‘1986 Act’) and many States had accordingly notified Consumer Protection (appointment, salary, allowances and conditions of service of President and Members of the State Commission and District Forum) Rules, 2017 (‘2017 Rules’), on the basis of which selection of Members of the District Fora and State Commission would have been on the basis of a written test of two papers.

The Bench therefore, affirmed the decision of the High Court by stating that it had rightly declared Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the 2020 Rules as unconstitutional and arbitrary framed by the Central Government which was contrary to the observations and direction issued in the case of UPCPBA as well as the fact that the 2019 Act had prescribed a minimum professional experience of 20 years and 15 years for adjudicating members to the State consumer commissions and District forums respectively as against the minimum requirement of 10 years and which also did away with the requirement of a written exam for appointment.

The Court opined that Rule 6(9) lacked transparency which conferred uncontrolled discretion and excessive power to the Selection Committee to determine its procedure. It cannot be disputed that the Commissions are empowered with the powers of court and are quasi-judicial authorities who are empowered to discharge judicial powers of the court including civil and criminal. Therefore, the standards expected from the members of the tribunal should be as nearly as possible applicable to the appointment of judges exercising such powers.

The Court while agreeing with the observation made by the High Court stated that there was a need to assess the skill, ability, and the competency of the candidates before they were empanelled and recommended to the State Government and the 2020 Rules did not contemplate written examination so as to test the merits of the candidate which posed a deep concern over the bureaucratic and political interference in process of appointments.

The Court further stated that the provision 4(1) of 2020 Rules provided for a person who was eligible to be appointed as a district judge, having minimum experience of 7 years to be qualified to be appointed as President of the District Commission but in order to be appointed as a Member, Section 4(2)(c) mandated a minimum experience of 15 years which was rightly held to be violative of Article 14 of the Constitution. Similarly providing 20 years’ experience under Rule 3(2)(b) was also rightly declared to be arbitrary and violative of Article 14 of the Constitution which provided for a presiding officer of the Court having experience of 10 years to be eligible for becoming President of the State Commission.

The Court pointed towards the fact that under Section 3(1) even a judge of the High Court, would be qualified for appointment of the President and as per Article 233 of the Constitution, a lawyer with only 7 years of practice as an advocate in High Court. Under the said circumstances to provide 20 years’ experience under Rule 3(2)(b) was rightly to be held unconstitutional, arbitrary, and violative of the Article 14 of the Constitution of India.

With this observation, the Court affirmed the view taken by the High Court and accordingly, the Central Government and the concerned State Governments were to amend the 2020 Rules with certain directions.

[Secretary Ministry of Consumer Affairs v Mahindra Bhaskar Limaye, 2023 SCC OnLine SC 231, decided on 03-03-2023]

Judgment authored by Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

Advocates who appeared in this case:

For the appellant- Attorney General R. Venkataramani;

For the respondent- Advocate Uday Prakash Warnjikar and Advocate Tushar Mandalekar.

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