*THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.CHANDRAIAH + WRIT PETITION No.17194 of 2010 % 17.08.2010 Between: # Smt B.Durga Kumari ..... PETITIONER(S) And $ Government of Andhra Pradesh, rep. by its Ex-Officio Secretary to Government, Consumer Affairs, Food & Civil Supplies Dept., A.P. Secretariat, Hyderabad and others .....RESPONDENT(S) ! Counsel for Petitioner : Sri G.Vidya Sagar ^ Counsel for Respondents : Govt. Pleader for Civil Supplies <GIST: >HEAD NOTE: ? CASES REFERRED: 1. AIR 1985 SUPREME COURT 582 2. 1996-AIR(KER)-0-22 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.17194 of 2010 Between: Smt B.Durga Kumari ..... PETITIONER(S) AND Government of Andhra Pradesh, rep. by its Ex-Officio Secretary to Government, Consumer Affairs, Food & Civil Supplies Dept., A.P. Secretariat, Hyderabad and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.17194 of 2010 ORDER: (per HON'BLE SRI JUSTICE GHULAM MOHAMMED) This Writ Petition is filed with a prayer to declare the action of the respondents in appointing the 4th respondent as Lady Member, District Consumer Forum, Kadapa, as arbitrary and also to declare that the writ petitioner herein is eligible for appointment to the post of Lady Member, District Consumer Forum, Kadapa, in terms of Section 10 (2) of the Consumer Protection Act, 1986 (for short – ‘the Act’), subject to fulfillment of qualification and other conditions for appointment in terms of Section 10(1)(b) and 10(3) of the Act and to direct the respondents to consider the claim of the writ petitioner herein for re-appointment as Lady Member in District Consumer Forum, Kadapa. 2. The facts, in brief, are that as the petitioner possesses the required qualification, she was appointed as a Lady Member, District Consumer Forum, Kadapa, and she worked as such for two terms i.e. from 21.04.1999 to 20.04.2004 and from 12.07.2004 to 11.07.2009. It is stated that during the second term she submitted an application dated 26.03.2009 to the State Commission, Andhra Pradesh, Hyderabad, requesting to consider her case for re-appointment and the same was not considered. Later, a notification for the post of Lady Member, District Consumer Forum, Kadapa, dated 22.07.2009 was issued by the second respondent wherein it is made clear that the existing members of the said Forums may also seek re-appointment for another term under Section 10(2) of the Act. The relevant portion reads as follows. “…… This notification is subject to the re-appointment, if any, of eligible, existing Members of the above Consumer Disputes Redressal Forums on the basis of their performance. The eligible sitting members of the above District Forums who are seeking re-appointment for another term U/s.10 (2) of the C.P. Act are also required to submit their applications through proper channel. …… …… …… The eligible sitting members who are seeking re-appointment for another term U/s.10 (2) of C.P. Act need not sit for written examination. However, they are required to appear for interview whenever called for. Their merit will be assessed on the basis of their past performances simultaneously with assessment of the suitability of the candidates who will go through the process of selection under Rule 6-A of A.P. State Consumer Protection Rules, 1987.” It is stated that, though she submitted an application dated 27.07.2009 seeking her re-appointment through proper channel, the same was not considered and she came to know that the 4th respondent herein was selected for the said post. According to the petitioner, as per Section 10 (2) of the Act every Member of the District Consumer Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier and, according to the proviso thereof, 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, and such re-appointment is also made on the basis of the recommendation of the Selection Committee. The contention of the petitioner is that the respondents have misunderstood Section 10 (2) of the Act and the proviso thereof to the effect that a person shall hold the office for a term of five years or up to the age of sixty-five years whichever is earlier and there is embargo that a Member is not eligible for re- appointment for more than one term. According to the petitioner, a person is eligible for re-appointment any number of times up to the age of sixty-five years. 3. Though initially the appointment of 4th respondent for the said post is challenged, since the 4th respondent has already joined in the said post, the learned counsel for the petitioner has restricted his claim only to that of the eligibility of the petitioner for re-appointment and, therefore, the eligibility or otherwise of the 4th respondent to hold the said post need not be gone into. 4. The learned counsel for the petitioner would contend that there is no embargo for considering the candidature of the petitioner for re-appointment and that she can compete with the other candidates and undergo the process of selection and the respondents have misread Section 10(2) of the Act and the proviso therein and failed to interpret the meaning thereof. To support his case, he relied on S.Sundaram v. V.R.Pattabhiraman[1]. 5. Per contra, the learned Government Pleader for Civil Supplies contends that, according to the proviso to Section 10 (2) of the Act, the intention of the legislature is to give an opportunity to a Member who has already appointed in the said post, for being considered his/her case for re-appointment for another term of five years or up to the age of sixty-five years, whichever is less. It is stated that prior to Amendment Act 62 of 2002, which came into force with effect from 15.03.2003, a member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not be eligible for re-appointment and since the petitioner was re-appointed after the Amendment Act 62 of 2002, she is not further eligible for re-appointment in one District Forum or other District Forum. To support his case, he relied on State of Kerala v. S.Samuel[2]. 6. At this juncture, it is pertinent to refer to Section 10 of the Act, which reads as follows: “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 be 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) possesses a bachelor's degree from a recognized university, (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 a person shall be disqualified for appointment as 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; (1-A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of selection committee consisting of the following, namely:-- (i) The 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. 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 fulfils 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, 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: 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 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.” However, sub-Section (2) of Section 10 of the Act was amended by Act 62 of 2002, which came into force with effect from 15.03.2003, and prior to such substitution, it read as under: "(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not be eligible for re-appointment: Provided 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 the appointment of a person possessing any of the qualifications mentioned in sub- section (1) in relation to the category of the member who has resigned." 7. Therefore, prior to amendment to Section 10(2), a member is not eligible for re-appointment and after the amendment a member is 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 fulfils 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. 8. In our considered view, the decision in S.Samuel case (2 supra) relied on by the learned Government Pleader squarely applies to the case on hand. In that case, a Division Bench of the Kerala High Court dealt with a similar issue and interpreted Section 10(2) of the Act prior to amendment, the relevant portion reads as under: “(15) The argument of learned senior counsel is that since a definite article “the” has been used before the words “district Forum” in Section 10(2), the implications could reasonably be gathered that the term of five years is meant only in respect of one District Forum and it does not prevent the same person from holding office in another District Forum for another term of five years. We have noted that same definite article “the” has been employed in the corresponding provisions also at places just before State Commission and National Commission are mentioned. We have already pointed out that there is no scope for even conceiving that the term of members of those for forums could be extended beyond five years in any eventuality. Could the use of a definite Article (the) in relation to the District Forum in Section 10(2) of the Act be of such assistance as to extend the period of five years as for the member of a District Forum by shifting him to another District? We cannot persuade ourselves to give such an interpretation, which would frustrate the clear intention of the legislature in fixing the period of five years uniformly as for all the members in respect of all the three tiers of agencies. We may further notice in this context hat there is a ban against re-appointment which is couched in peremptory tone i.e. “and shall not be eligible for re- appointment”. This is yet another clear message that the period of five years is unextendable through any governmental or executive exercise. (16) Craies on Statute Law has sated thus at page 83 (of the Seventh Edition): “the language of statutes is not always that which a rigid grammarian would use, it must be borne in mind that a statute consists of two parts, the letter and the sense”. It is a rule of construction, which gained general acceptance that the provisions of a statute are to be read together and given effect to “and that it is the duty of the Court to constru a statute harmoniously”. (State of Andhra Pradesh v. Ganesweara Rao, AIR 1963 SC 1850: (1963 (2) CriLJ 671). The principle that literal meaning of the word in a statute is to be preferred is subject to the exception that if such literal sense would give rise to any anomaly or would result in something which would defeat the purpose of the Act, a strict grammatical adherence to the words should be avoided as far as possible. (Management, S.S.L. Rly. Co. v. S.S.R. W.Union, 1969 (I) SCWR 1199: (AIR 1969 SC 513). The above principles would held us to desist from affording undue stress on the definite article used just before the words “district Forums” in Section 10(2) of the Act.” 9. Even in S.Sundaram case (1) supra, relied on by the learned counsel for the petitioner, the Supreme Court, while dealing with the rule of interpretation of proviso, held as follows: “26. ……… The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. 27. Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.... The natural presumption is that, but for the proviso, the enacting part of the section would have included the subject- matter of the proviso." 28. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients: P. 317 "Provisos - These are clauses of exception or qualification in an Act, excepting something out of, or qualifying something in, the enactment which, but for the proviso, would be within it." P.318 "Though framed as a proviso, such a clause may exceptionally have the effect of a substantive enactment." 29. Sarathi in 'Interpretation of Statutes' at pages 294-295 has collected the following principles in regard to a proviso:- "(a) When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. (b) A proviso must be construed with reference to the preceding parts of the clause to which it is appended. (c) Where the proviso is directly repugnant to a section, the proviso shall stand and be held a repeal of the section as the proviso speaks the later intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide to its interpretation; but when it is clear, a proviso cannot imply the existence of words of which there is no trace in the section. (e) The proviso is subordinate to the main section. (f) A proviso does not enlarge an enactment except for compelling reasons. (g) Sometimes an unnecessary proviso is inserted by way of abundant caution. (h) A construction placed upon a proviso which brings it into general harmony with the terms of section should prevail. (i) When a proviso is repugnant to the enacting part, the proviso will not prevail over the absolute terms of a later Act directed to be read as supplemental to the earlier one. (j) A proviso may sometimes contain a substantive provision." 30. In the case of Local Govt. Board v. South Stoneham Union, 1909 AC 57, Lord Macnaghten made the following observation: "I think the proviso is a qualification of the preceding enactment, which is expressed in terms too general to be, quite accurate." 31. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, (1966) 1 SCR 367: (AIR 1966 SC 459) it was held that the main object of a proviso is merely to qualify the main enactment. In M and S.M. Railway Co. Ltd. v. Bezwada Municipality, AIR 1944 PC 71. Lord Macmillan observed thus: "The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case." 32. The above case was approved by this Court in Commr. of Income Tax, Mysore, v. Indo Mercantile Bank Ltd., 1959 Supp (2) SCR 256 : (AIR 1959 SC 713). where Kapur, J. held that the proper function of a proviso was merely to qualify the generality of the main enactment by providing an exception and taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yogaj Sinha, (1962) 2 SCR 159: (AIR 1961 SC 1596), Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: "As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule." 33. In West Derby v. Metropolitan Life Assurance Co. 1897 AC 647 while guarding against the danger of interpretation of a proviso, Lord Watson observed thus: "a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute." 34. A very apt description and extent of a proviso was given by Lord Oreburn in Rhodda Urban District Council v. Taff Vale Railway Co. 1909 AC 253 where it was pointed out that insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. To the same effect is a later decision of the same Court in Jennings v. Kelly 1940 AC 206, where it was observed thus: "We must now come to the proviso, for there is. I think, no doubt that in the construction of the section the whole of it must be read and a consistent meaning if possible given to every part of it. The words are "provided that such licence shall be granted only for premises situate in the ward or district electoral division in which such increase in population has taken place." There seems to be no doubt that the words "such increase in population" refer to the increase of not less than 25 per cent of the population mentioned in the opening words of the section." 35. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. 36. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. 37. Apart from the authorities referred to above, this Court has in a long course of decisions explained and adumbrated the various shades, aspects and elements of a proviso. In State of Rajasthan v. Leela Jain (1965) 1 SCR 276 : (AIR 1965 SC 1296), the following observations were made: "So far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section and carve out something which but for the proviso would have been within the operative part." 38. In the case of Sales Tax Officer, Circle 1, Jabalpur v. Hanuman Prasad (1967) 1 SCR 831 : (AIR 1967 SC 565), Bhargava. J. observed thus: "It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the legislature desires should be excluded." 39. In Commr. of Commercial Taxes v. R. S. Jhaver (1968) 1 SCR 148: (AIR 1968 SC 59), this Court made the following observations: "Generally speaking, it is true that the proviso is an exception to the main part of the section, but it is recognised that in exceptional cases a proviso may be a substantive provision itself." In Dwarka Prasad v. Dwarka Das Saraf (1976) 1 SCC 128: (AIR 19752SC 1758), Krishna Iyer, J. speaking for the Court observed thus : "There is some validity in this submission but if, on a fair construction, the principal provision is clear, a proviso cannot expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso; sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw fight on each other and result in a harmonious construction." 41. In Hiralal Rattanlal v. State of U.P. (1973) 1 SCC 216 : (AIR 1973 SC 1034) this Court made the following observations: "Ordinarily,