SCA/9023/2007 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9023 of 2007 With SPECIAL CIVIL APPLICATION No. 11974 of 2007 With SPECIAL CIVIL APPLICATION No. 19512 of 2007 With SPECIAL CIVIL APPLICATION No. 12977 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MS HEENA N THACKER - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR BHUSHAN B OZA for Petitioner(s) : 1, MS SANGEETA VISAN, AGP for Respondent(s) : 1, RULE SERVED for Respondent(s) : 1 - 3. MR AJ SHASTRI for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 25/09/2008 CAV JUDGMENT SCA/9023/2007 2/38 JUDGMENT 1. As in all the petitions, common questions arise for consideration and to some extent, the facts are inter-linked, they are being considered by this common judgement. 2. Special Civil Application No.9023 of 2007 has been preferred by Ms.Heena N. Thacker, who was appointed as a Member of the District Consumer Redressal Forum for Kutch District under the Consumer Protection Act read with Consumer Protection Rules, 1987 (hereinafter referred to as the “Act” and the “Rules” for the sake of convenience). It is the case of the petitioner that she underwent the training programme in capacity as the Member of the Consumer Redressal Forum (hereinafter referred to as the “Consumer Forum” for the sake of convenience) and she discharged the duty satisfactorily from 2001-2006. On 27.9.2005, as the term of the petitioner was to expire on 14.3.2006, she applied for reappointment as per proviso added to Sub- section (2) of Section 10. The application of the petitioner was forwarded, however, the extension was not granted to the petitioner. On 8.8.2006, as advertisement was published for inviting applications of the eligible persons for appointment as the Member of the District Forum, the petitioner in response thereto, submitted application. The SCA/9023/2007 3/38 JUDGMENT interviews were held and ultimately, as per the petitioner, she was selected and her name appeared at Sr. No.1 in the names recommended by the selection committee constituted as per the Act. However, the petitioner was not given appointment, but respondent No.3, another candidate whose name was also included in the select list, but latter to the petitioner, was given appointment. It is under these circumstances, the said petitioner has approached this Court seeking directions to the respondents to appoint the petitioner as full-time lady Member of the District Forum for a term of five years and it is also prayed in the petition by the concerned petitioner to cancel the appointment made of the person other than the petitioner as the lady Member in the District Forum. 3. Special Civil Application No.19512 of 2007 is preferred by Ms.Harshaben Shantilal Chauhan, who was also initially appointed in the year 2001 vide order dated 2.7.2001 as the Member in Ahmedabad District Consumer Redressal Forum for a period of five years. On 6.2.2006, the application was made by the petitioner for reappointment and as per the petitioner, her reappointment was recommended by the selection committee, but the reappointment was granted for a period of one year vide order dated SCA/9023/2007 4/38 JUDGMENT 12.5.2006. It is the case of the petitioner that vide letter dated 2.1.2007, she requested for the reappointment for a further period of four years. It is her case that her name was also recommended being deserving candidate for reappointment, but the State Government, instead of extending the period of extending the period of appointment for a further period of four years, issued advertisement on 27.7.2007 in the newspaper inviting the applications for the post of Member in the District Forum. It is under these circumstances, the petitioner has approached this Court by preferring the present petition to seek for appropriate directions to the respondents to appoint the petitioner on the post of Member of District Forum. It deserves to be recorded that pending the petition, the petitioner has brought about the amendment, seeking alternative prayer to direct the respondents to extend the period of appointment for a further period of four years based on the earlier appointment for a period of one year. The petitioner has also challenged the resolution of the State Government dated 30.11.2004 by amendment contending, inter alia, that the said resolution is ultra vires the powers of the State Government for laying down the manner and mode of appointment of the Member in the District Forum, which otherwise is controlled by the Section 10(2) SCA/9023/2007 5/38 JUDGMENT read with Section 30 of the Act. 4. Special Civil Application No.11974 of 2007 has been preferred by Meenaben J. Dharmani, who was also appointed as the Member in District Forum, Jamnagar in the year 2001 for a period of five years. It is the case of the petitioner that she applied for reappointment under the Act and the selection committee did recommend for reappointment of the petitioner and thereafter the petitioner also pursued the matter, but instead of reappointing the petitioner, an advertisement was published for inviting applications of the eligible persons in Gujarat Samachar and as per the petitioner, there is no uniform policy of the State Government for selection and reappointment of the Members of the District Forum. Therefore, under these circumstances, the petitioner has approached this Court by the present petition. It has been prayed by the petitioner to issue appropriate directions to the respondents to appoint the petitioner as full- time Member of Jamnagar District Consumer Redressal Forum for a period of five years and it is also prayed for quashing and setting aside the appointment of respondent No.3, who has been appointed as the Member in the District Forum pursuant to the advertisement in the newspaper. SCA/9023/2007 6/38 JUDGMENT 5. Special Civil Application No.12977 of 2007 has been preferred by Kumari Hema S. Shukla, who applied for the post of Member in the District Consumer Redressal Forum at Junagadh. It is the case of the petitioner that she was also appointed as the Member in the District Forum. However, as per the petitioner, pursuant to the advertisement, her name was recommended by the selection committee, but the appointment is not given to her and respondents No.4 and 5 are appointed. Therefore, for challenging the appointment and to restrain respondents No.4 and 5 from functioning the petitioner has approached this Court by the present petition. 6. Heard Mr.B.B.Oza, Mr.P.A. Mehta, and Mr.Acharya, learned Counsel for the respective petitioners, Ms.Sangeeta Visan, learned AGP for the State Authorities in all the petitions, Mr.Rana, learned Counsel for respondent No.5 in SCA No.12977 of 2007, Mr.Shastri, learned Counsel for respondent No.3 in SCA No.9023 of 2007 and Mr.Patel, learned Counsel for respondent No.4 in SCA No.12977 of 2007. 7. In order to appreciate the controversy, it would be worthwhile to consider the provisions of the Act read with the Rules and, in any case, prior thereto the object of the Act also deserves to be considered. In the object clause the relevant reads SCA/9023/2007 7/38 JUDGMENT as under:- “Enacted to provide for a better protection of the interest of the consumers and for that purpose to make provisions for establishment of Consumer Council and other authorities for settlement of consumer disputes and for matters connected therewith. (Emphasis supplied) 8. Therefore, the object of the Act itself, inter alia, is to substitute the mechanism for settlement of the consumer disputes. It also deserves to be recorded that prior to enactment of the Act, if the consumer had any grievance against the service provider or any institutions pertaining thereto, he was required to invoke the powers of the Civil Court for adjudication of such disputes and by virtue of the present Act, the jurisdiction, which otherwise had with the Civil Court for settlement of the dispute of the consumers subject to the limits as prescribed under the Act, is now substituted by the present Act with the consumer forum, may be at the District level or at the State level or at the National level. The aforesaid is relevant to record that constitution of the Consumer Forum at any level is by way of a substitution of the power of the Civil Court for administration of justice, may be by way of summary procedure as prescribed under the Act. SCA/9023/2007 8/38 JUDGMENT The scheme of the Act and the inbuilt mechanism provided under the Act for resolution and adjudication of the disputes goes to show that though such forum cannot be fully equated with all trappings of the Court as known by traditional manner, but the power to be exercised by all consumer forums are no less than the exercise of judicial power holding a considerable share in a system of administration of justice, may be in a restricted field of settlement of consumer dispute. 9. Section 10 of the Act, which is mainly of relevance in the present case reads 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 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) possess a bachelor's degree from a recognised 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 a member if he— SCA/9023/2007 9/38 JUDGMENT (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 (I) shall be made by the State Government on the recommendation of a 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 SCA/9023/2007 10/38 JUDGMENT 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, 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.” SCA/9023/2007 11/38 JUDGMENT 10.Sub-section (1) of Section 10 provides that the District Forum shall consist of a person, who is, or has been, or is qualified to be a District Judge, as the President and two other members, one of whom shall be woman holding the qualification as prescribed, of not less than 35 years of age, holding a Degree from a recognised University, be persons of ability, integrity and standing and having adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. Proviso to Sub- section (1) also provides for the disqualification for appointment as a member, if such person is falling in that category of Clause (a) to (f). Therefore, Sub-section (1) of Section 10 provides for the qualification of the President, the Members, including the woman Member and also the disqualification of a Member. Hence, the person should hold requisite qualification, then only he will be eligible to be appointed, but from amongst the persons qualified to be appointed, if anyone is holding disqualification, he or she would not be appointed. Therefore, the disqualifications are to be read as in contradiction to the qualification for appointment as the Member of the District Forum. SCA/9023/2007 12/38 JUDGMENT 11.Sub-section (1)(a), which has been amended by the Act of 1993 speaks for regulating the appointment and it provides that the appointment shall be made by the State Government on the recommendation of a Selection Committee, consisting of the President of the State Commission, being Chairman, Secretary of the Law Department of the State Government as the Member, and the Secretary In-charge of the Department as the Member. Therefore, the language of Sub-section (1)(a) is by the words “shall be made by the State Government” and the second is “on the recommendation of the Selection Committee”. Hence, the recommendation of the Selection Committee is a must for exercise of the power by the State Government and the language as it is shows an obligation upon the State Government to make the appointment after considering the recommendation of the Selection Committee. As regards the discretion left to the State Government, who is the appointing authority after having received the recommendation from the selection committee shall be an aspect which will be dealt with appropriately at the later stage, but the pertinent aspect is that the condition precedent for appointment is the recommendation of the selection committee for the person concerned and the obligation upon the State Government to consider the recommendation of the SCA/9023/2007 13/38 JUDGMENT selection committee and thereafter only to give the appointment. As in the present case this Court is not concerned with the proviso to Sub-section (1)(a) no discussion may be required. 12.Sub-section (2) of Section 10 provides for holding of the office by the Member for a period of five years or up to the age of 65 years, whichever is earlier with the further proviso therein that a Member shall be eligible for reappointment for another term of five years or up to the age of 65 years, whichever is earlier, provided he fulfills the qualifications and other conditions for appointment as per Clause (b) of Sub-section (1) and such reappointment is also made on the basis of the recommendation of the selection committee. Therefore, even at the time of reappointment the person concerned in addition the meeting of requirement of Clause (b), providing for the qualification, and not falling in any of disqualifications, there should also be the recommendation of the selection committee and the exercise of the power by the State Government for reappointment should also be on the basis of the recommendation of the selection committee. It further appears that the proviso to Sub-section (2) provides for eligibility of such person to be SCA/9023/2007 14/38 JUDGMENT reappointed for another term of five years or 65 years whichever is earlier. The language is “another term” and not “other term or other terms” as sought to be canvassed by Mr.Mehta, learned Counsel appearing for one of the petitioners. It is hardly required to be stated that when the plain and literal meaning of any language of the Statute can be extracted, Courts while interpreting would not add the word, unless it is difficult for the Court to extract the real meaning of a particular statute. The fact that the legislature has used the words “another term”, it suggests one term for reappointment and the same could be of five years. Whether the reappointment must be for five years or could be of a lesser period, if considered as it is from the language of the section, it is apparent that the proviso provides for eligibility of a Member to be reappointed for a term of five years, but it does not create a simultaneous obligation on the appointing authority unless the qualification for reappointment is continued for the fullest period of five years or such reappointment is not recommended by the selection committee for a full period of five years. 13.To say in other words, if the person is not recommended by the selection committee for a period SCA/9023/2007 15/38 JUDGMENT of five years and the recommendation is forwarded by the selection committee for reappointment, it would be within the power of the appointing authority to grant reappointment for a period not exceeding five years or 65 years of age, which ever is earlier. It is a different matter if such power is not exercised in bonafide or without considering the ground germane to the exercise of the power, but merely because the recommendation is made by the selection committee and the period is not prescribed, the person concerned, who is holding the eligibility for reappointment cannot seek as of right for reappointment for the maximum period of five years, unless the recommendation by the selection committee is for a period of five years. Therefore, to that extent, the submission of the learned Counsel for the petitioner, seeking right for reappointment for a period of five years, irrespective of the recommendation by the selection committee for a particular period or in absence thereof, creating an obligation upon the State Government to reappoint for a period of five years, cannot be accepted. However, at the same time, it deserves to be recorded that if the person is fulfilling the qualification and not holding any disqualification and his name is recommended by the selection committee for appointment for a period of five SCA/9023/2007 16/38 JUDGMENT years, it would be required for the State Government to reappoint such person for the period as recommended by the selection committee, but subject to the discretion with the appointing authority, as may be dealt with hereinafter. 14.The Act is a law made by the Parliament and for enforcing the provisions contained in the Act, the State Government or the Central Government, as the case may be, are clothed with the power to make Rules as per Section 30 of the Act. Perusal of Section 30(2) of the Act provides the enabling power with the State Government to make Rules for carrying out the provisions contained in Sub-section (3) of Section 10, which relates to fixation of salary and the honorarium and other allowances and the terms and conditions of service of the Members of the District Forum. The pertinent aspect is that no power to make Rules vest to the State Government for carrying out the provisions contained in sub-section 10(1), Sub-section 10(1)(a) and Sub-section 10(2) of the Act. Further, Section 29 of the Act provides for the power with the Central Government to issue order for removal of the difficulties in implementation of the Act. Therefore, such residuary power vest to the Central Government and not with the State Government. Under these SCA/9023/2007 17/38 JUDGMENT circumstances, keeping in view the provisions of Section 30(2) read with Section 29 of the Act, it appears that the Parliament, while enacting the Act, has kept the mechanism for constitution of the District Forum intact, as provided under Sections 10(1), 10(1)(a), 10(2), leaving no further power with the State Government to regulate the same by Rules or to issue any orders for removal of the difficulties for implementation of the said provisions. Therefore, it can be concluded that as per the Scheme of Section 10(1), Section 10(1)(a) and Section 10(2), it is required for the State Government to strictly go by the Section and the language of the Act and no departure therefrom is permissible, save and except the limit of discretion with the appointing authority as shall be dealt with hereinafter. 15.The aforesaid takes me to examine the discretion left with the State Government in capacity as the appointing authority, after having received the recommendation of a selection committee. The contention raised on behalf of the petitioner is that since it is a matter pertaining to the appointment on judicial post of a Member of District Forum, no discretion is left with the State Government to make a departure therefrom, unless the SCA/9023/2007 18/38 JUDGMENT person concerned is holding any disqualification as provided by Sub-section (1) of Section 10. 16.Whereas on behalf of the State Government, it has been contended by learned AGP for the word “recommendation” used by the legislature itself suggests that it is having recommendatory effect and not binding effect as sought to be canvassed on behalf of the petitioner. It has been submitted that the language of section itself suggests the discretion with the appointing authority, which is the State Government, to make a departure from the recommendation of the selection committee in the matter of appointment if there are valid reasons. 17.The learned AGP heavily relied upon the decision of the Apex Court in case of A. Pandurangam Rao vs. State of Andhra Pradesh and Ors.”, reported at AIR 1975 SC, 1922 for contending that the recommendation means “suggest as fit for employment” and the State Government, for good reasons, can reject the recommendation. It was submitted that merely because the name is recommended by the Selection Committee would not confer any right in favour of the candidate to be appointed. Therefore, it was submitted that the recommendation of the Selection Committee cannot be read as binding to the State Government, since the final authority for SCA/9023/2007 19/38 JUDGMENT appointment vests to the State Government. 18.So far as the right of the candidate for appointment after having inclusion of his name in the select list is concerned, since the same is a different aspect, it will be considered at the later stage, but on the aspects of effect of the recommendation upon exercise of the power by the State Government, if is to be considered, as observed hereinabove in the earlier paragraph, the condition precedent for exercise of the power by the State Government for appointing any person as the member of the District