-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 747 OF 2008 Mr. Jos Peter D' Souza, 1/S2 Garden Centre (II), Near Police Station, Mapuca, Goa. ...... Petitioner V e r s u s 1. State of Goa, Through its Chief Secretary, Govt. of Goa, Secretariat, Porvorim, Goa. 2. Director, Dept. of Civil Supplies & Consumer Affairs, Junta House, Panaji, Goa. 3. Justice Shri C. K. Mahajan (Retd.) 47 Friends Colony (East), Mathura Road, New Delhi – 110 065. ...... Respondents Petitioner present in person. Mr. S. S. Kantak, Advocate General with Ms. S. Mordekar, Addl. Government Advocate for Respondent nos. 1 and 2. Mr. S. D. Lotlikar, Senior Advocate for the Respondent no.3. CORAM : P. B. MAJMUDAR & U. D. SALVI, JJ. DATE : 18 th March, 2009 . -2- ORAL ORDER (Per P. B. MAJMUDAR, J ) This petition is filed by a practising Advocate of this Court, as a Public Interest Litigation. The petitioner has prayed for issuance of a writ of quo warranto for setting aside the appointment of respondent no.3, by which, the respondent no.3 Justice C. K. Mahajan (Retd.), has been given appointment as President of the State Consumer Disputes Redressal Commission, State of Goa. It is also prayed that appropriate writ, direction may be issued to recover the amount paid to respondent no.3 towards honorarium for the period during which he had not worked. It is case of the Petitioner that the appointment of the respondent no.3, as a President of the State Commission, is in violation of Section 16 of the Consumer Protection Act, 1986, as respondent no.3 was not appointed as per the procedure prescribed in the said Section. According to the petitioner, respondent no.3 could have been appointed only through the Selection Committee and not otherwise. 2. Another grievance of the petitioner is that as respondent no.3 had not actually come to Goa to discharge the duties continuously for about two months, for the subsequent months, he should be asked to refund the amount which has been paid to him at the rate of Rs.10,000/- -3- per month. It is submitted by the petitioner that the respondent no.3 may be directed to pay Rs.50,000/- to the State of Goa being loss caused to the State exchequer. 3. The petition has been resisted on behalf of the State Government, as well as by respondent no.3. The State has also filed an affidavit in reply denying the allegations made in the petition. 4. We have heard the party in person, at length, we have also heard the learned Advocate General and Mr. Lotlikar, learned Senior Counsel for Respondent no.3. The first question which is required to be considered is as to whether the appointment of respondent no.3 as a President of State Commission, can be said to be vitiated on the ground that his appointment has not been made through Selection Committee. During the hearing, it is pointed out to us that respondent no.3 has now already tendered his resignation even before the Petition was filed and the same has also now been accepted. In our view, though it is not necessary now to decide this academic question as to whether the appointment of respondent no.3 was as per procedure prescribed in the Act, however, since the Petitioner, who is practising Advocate of this Court, has submitted that the issue which is raised in this matter is of general public importance and the Court may also consider his -4- arguments. Accordingly, we have considered the case on merits. It is submitted by the petitioner, party in person, that even, otherwise, since the appointment was void ab initio, appropriate directions may be given for refund of the amount of salary paid to the respondent no.3. 5. In order to find out as to whether the appointment of respondent no.3 was as per Section 16 of the Act, it is necessary to refer to the said provision. Relevant provision of Section 16 of the Consumer Protection Act, 1986, provides as under : “16. Composition of the State Commission. - (1) Each State Commission shall consist of - (a) a person who is of has been a Judge of a High Court, appointed by the State Government, who shall be its President: [Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;] [(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:- i) be not less than thirty-five years of age; ii) possess a bachelor's degree from a recognised university; and iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating -5- to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that not more than fifty per cent of the members shall be from amongst persons having a judicial background. Explanation. - For the purposes of this clause, the expression "persons having a judicial background" shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provided further that a person shall be disqualified for appointment as a member, if he - (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or (b) is an undischarged insolvent; or (c) is of unsound mind and stands so declared by a competent court, or (d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or (e) has, in the opinion of the State Government, such financial or other interest, as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such other disqualifications as may be prescribed by the State Government.] (1A) Every appointment under sub-section (1) shall -6- be made by the State Government on the recommendation of a Selection Committee consisting of the following members, namely :- (i) President of the State Commission ..... Chairman; (ii) Secretary of the Law Department of the State ..... Member; (iii) Secretary incharge of the Department dealing with Consumer Affairs in the State ..... Member: Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman. 6. There is also a provision regarding re-appointment i.e. under sub-Section (3), which reads as under : “(1B) (I) … (2) ... (3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty- seven years, whichever is earlier: Provided that a member shall be eligible for re- appointment for another term of five years or up to the age of sixty-seven years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment -7- mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided further that a person appointed as a President of the State Commission shall also be eligible for re-appointment in the manner provided in clause (a) of sub-section (1) of this section: Provided also that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned. (4) Notwithstanding anything contained in sub-section (3), a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.” 7. It is submitted by petitioner, party in person, that Section 16(A) of the said Section was enacted in the year 2003 and as per the same, every appointment under sub-section (1) is to be made through the State Government on recommendation of the Selection Committee. -8- It is submitted that every appointment would include the appointment of the President as well. He has also submitted that all the appointments as per Section 16(1) of the Act are required to be made through the process of Selection Committee. Reference is also made to Section 2(jj), which reads as under : “2.(jj) "member" includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be;” 8. In view of Section 16, as it stands today, all appointments including that of President should be made by Selection Committee. The party in person has also relied on the provisions of Sections 10 and 20 of the Act. Section 10 of the Act provides as under : “10. Composition of the District Forum. - [(1) Each District Forum shall consist of, - (a) a person who is, or has been, or is qualified to be a District Judge, who shall ne its President; [(b) two other members, one of whom shall be a woman, who shall have the following qualifications, namely:- (i) be not less than thirty-five years of age, (ii) possess a bachelor's degree from a recognised university, (iii) be persons of ability, integrity and standing, and -9- have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that a persons shall be disqualified for appointment as a member, if he - (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or (b) is an undischarged insolvent; or (c) is of unsound mind and stnads so declared by a competent court, or (d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or (e) has, in the opinion of the State Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such other disqualifications as may be prescribed by the State Government;]] [(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 dealing with consumer affairs in the State .. Member: -10- Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman. (2) Every member of the District Forum shall hold office for a term of five years or up to the age of sixty- five years, whichever is earlier: Provided that a member shall be eligible for re- appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee: Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, possessing any of the qualifications mentioned in sub- section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned: Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or -11- member, as the case may be, till the completion of his term. (3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government: [Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum." 9. Section 20 of the Act provides as under : “20. Composition of the National Commission. - (1) The National Commission shall consist of - (a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President: Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India; (b) not less than four, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:- (i) be not less than thirty-five years of age; (ii) possess a bachelor's degree from a recognised university; and -12- (iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that not more than fifty percent of the members shall be from amongst the persons having a judicial background. Explanation. - For the purposes of this clause, the expression "persons having judicial background" shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provide further that a person shall be disqualified for appointment, if he - (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude; or (b) is an undischarged insolvent; or (c) is of unsound mind and stands so declared by a competent court; or (d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or (e) has, in the opinion of the Central Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such others disqualifications as may be -13- prescribed by the Central Government: Provided also that every appointment under this clause shall be made by the Central Government on the recommendation of a Selection Committee consisting of the following, namely:- (a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India .. Chairman; (b) the Secretary in the Department of Legal Affairs in the Government of India .. Member; (c) Secretary of the Department dealing with consumer affairs in the Government of India .. Member. (1A) (i) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof. (ii) … (iii) ... (2) The salary or honorarium and other allowances payable to and the other terms and conditions of service of the members of the National Commission shall be such as may be prescribed by the Central Government. (3) Every member of the National Commission shall hold office for a term of five years or up to the age of seventy years, whichever is earlier: Provided that a member shall be eligible for re- appointment for another term of five years or up to the age of seventy years, whichever is earlier, subject to the condition that he fulfills the qualifications and -14- other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided further that a person appointed as a President of the National Commission shall also be eligible for re-appointment in the manner provided in clause (a) of sub-section (1): (4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 2002 shall continue to hold such office as President or member, as the case may be, till the completion of his term.” 10. Sub-section (3) provides for tenure of Office. It also provides for re-appointment. There is also a provision regarding reappointment of a President and such re-appointment can be made in the manner as provided under clause (a) of sub-section (1). 11. It is submitted that the provisions of Section 10 and Section 16 of the Act are pari materia after amendment to Section 16(1A) of the Act, and, therefore, at the time of appointment, both in the District Forum and the State Commission, same procedure is required to be followed i.e. appointment is to be made through Selection Committee. It is submitted that so far as appointment of President of the National -15- Commission is concerned, separate procedure is prescribed under Section 20 of the Act as the wording in Section 20 is different regarding appointment of President. It is submitted that before the amendment to Section 16, the language of both the Sections i.e. Section 16 and Section 20 of the Act were pari materia and accordingly appointment to both, District Forum and the State Commission, it has to be made only through Selection Committee. 12. The party in person has relied upon the decision of the Supreme Court in the case of Ashish Handa, Advocate v. Hon'ble The Chief Justice of High Court of Punjab and Haryana & Ors., reported in AIR 1996 S.C. 1308. In the said case, the Supreme Court was concerned with unamended Section 16 of the Act and considering the said Section along with Section 20 of the Act, it has been held that procedure for appointment of President is to be made only after consultation with the Chief Justice of the High Court. In the aforesaid case, the Supreme Court has considered the scheme of Section 16(1) (a) and Section 20 of the Act and it has been found that provisions of Section 16 (1)(a) for appointment of President of the State Commission and Section 20(1)(a) for appointment of the National Commission are pari materia and have to be similarly construed. It is submitted that now in view of the amendment, the language of Section 16(1A) and Section -16- 10 of the Act having been pari materia, procedure to be followed is under Section 10 (1)(a), so far as Section 16(1A) is concerned. It is submitted that since the said procedure has not been followed, the appointment of respondent no.3 was void ab initio. 13. Learned Advocate General, on the other hand, submitted that from the scheme of the Act, it is clear that so far as the appointment of President of State Commission is concerned, it is to be made only in consultation with the Chief Justice of the High Court and for appointment of the rest of the members selection procedure is to be followed. It is submitted by learned Advocate General that if the Section is to be construed in the manner in which the petitioner wants to construe, then that would result into absurdity as even Secretary of the Department of the State would be a member. It is submitted that appointment is to be made only in consultation of the Chief Justice as per Section 16(1A) of the Act. It is submitted by Advocate General that this point is now even otherwise concluded by the Judgment of the Supreme Court in the case of State of Haryana & anr. v. National Consumer Awareness Group and Ors. reported in AIR 2005 S.C. 2356. The Supreme Court has considered the amended proviso to Section 16(1A), wherein it has been observed in Paras 17, 18 and 19, as under : “17. Learned counsel for the Union of India urged that sub-section (1-A) of Section 16 itself contemplates -17- that every appointment made under sub section (1) of Section 16 has to be made on the recommendation of a Selection Committee consisting of - (i) President of the State Commission as Chairman; (ii) Secretary of the Law Department of the State: and (iii) Secretary -in-charge of the Department dealing with Consumer Affairs in the State as Members. He also emphasized the proviso to sub-section (1A) which has been added to take care of the situation where the President of the State Commission is absent, or otherwise unable to act as Chairman of the Selection Committee in which case the State Government may request for Chief Justice of the High Court to nominate a sitting Judge of that High Court to act as Chairman. 18. We are unable to accept this contention of the learned counsel for the Union of India. It is inconceivable that sub-section (1A) is intended for appointment of the President of the State Commission itself. In the first place, we cannot accede to the contention that the Chairman of the State Commission, who is or has been a Judge of the High Court, can be selected by a Selection Committee comprising two Secretaries of the State Government. Nothing could be more erosive of judicial independence than such interpretation of sub-section (1A). This conclusion of ours is driven home by the proviso to sub-section (1A). This proviso is intended to take care of a contingency where there exists a President of the State Commission, who is unable to -18- Chair the Selection Committee meeting because of absence or other similar reasons. It is only in such a situation, that the State Government may request the Chief Justice of the High Court to nominate a sitting Judge to act as Chairman of the Selection Committee. If the argument of the learned counsel for the Union of India and the construction canvassed by him is admitted, if would mean that even where the President of the State Commission is appointed for the first time, the procedure would be that he would be appointed by a Committee of which two Secretaries would be members. That would be obviously destructive of judicial independence. 19. The learned counsel, alternatively argued that the scheme contemplated by sub-section (1A) is quite workable even in a situation where there exists already a President, but the question arises of his re- appointment which would make him unable to act as Chairman of the Selection Committee. In such cases, a sitting Judge of the High Court could be nominated by the Chief Justice of the High Court to act as a Chairman. Even this argument does not commend itself to us. A literal reading of sub-section (1A) may prima facie suggest that appointments under clauses (a) and (b) of sub-section (1) are also governed by the procedure contemplated therein, under sub-section (1A), but as rightly held by the High Court the two sub-sections have to be harmoniously construed. The procedure contemplated under sub-section (1A) can -19- apply only in respect of appointment of members falling within the contemplation of clause (b) of sub- section (1) of Section 16. In our view, the High Court has given adequate and justifiable reasons for this interpretation with which we agree. The