IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.01.2010 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T. RAJA W.P.Nos.15166 of 2009 and M.P.No.2 of 2009 B.Pandian . . . Petitioner Vs. 1. The Government of Tamil Nadu, Rep. by Secretary to Government, Civil Supplies and Consumer Fort. St. George, Madras. 2.The Registrar, Tamil Nadu State Consumer Disputes, Redressal Commission, RK Mutt Road, Mylapore, Madras – 4. . . . Respondents Writ Petition filed under Article 226 constitution of India for issuance of Writ of Certiorari to call for records the on the file of the 2nd respondent in proceedings notification 1/2009 and dated 15.06.2009 and quash the same in so far as it imposed age restrictions for advocates to partake in the selection process to the post of Presidents in District Consumer Disputes Redressal. For Petitioner : Mr.V.Raghavachari For Respondents: Ms.Malarvizhi Udayakumar, Spl G.P. J U D G M E N T T.Raja, J. The Present Writ Petition is filed seeking a writ of certiorarai to quash the notification No.1 of 2009 dated 15.06.2009 issued by the second respondent Registrar, Tamil Nadu State Consumer Redressal Commission, Chennai, insofar as it imposes age restriction for advocates to partake in the selection process to the post of President, District Consumer Dispute Redressal Fora. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner being a practicing advocate from 1984 is aggrieved by the notification No.1/2009 issued by the second respondent calling for application to fill up the post of President in District Consumer Redressal Fora by fixing the age limit that a lawyer should not have completed 48 years of age for SC/ST and 45 years in the case of other candidates as on 01.07.2009. The bone of contention raised by the learned counsel appearing for the petitioner for the same work a retired District Judge is promoted to assume office till he completes the age of 65 years of age as on 01.07.2009 but in the case of Advocates age restrictions are imposed as 48 years for SC/ST and 45 years for other candidates which is hit by Articles 14 and 16 of the Constitution of India. The age restriction for lawyers at 48 years for SC/ST and 45 years for BC/OBC/FC for selection to the post of President in Consumer District Redressal Forum is against Section 10 (1A) of the Consumer Protection Act. Further, it was also urged that the notification No.1/2009 dated 15.06.2009 prima facie violates Articles 14 and 16 of the Constitution of India, inasmuch as the qualified and experienced persons are excluded from the purview of selection itself. In his further submission it is stated that when the object of selection in judiciary is to secure the best available legal brains, fixing up of age limit namely 48 years for SC/ST candidates and 45 years for BC and other community candidates and appointment of District Judges irrespective of the fact where he has reached 48 years or 45 years and permitting the District Judges to work till the age of 65 years is a complete discrimination which is violative of Articles 14 and 16 of the Constitution of India. Therefore, it was urged that the notification No.1/2009 dated 15.06.2009 being violative of Article 14 is without any justification and on that basis assail the same to be quashed. 3. Further, it was contended that the impugned notification is also contrary to section 10 (1A) of the Consumer Protection Act. As per section 10 (1A) of the Act, qualification to become a District Judge is 7 years as a practicing lawyer. While so, if a District Judge is appointed as a President of the District Consumer Commission he is entitled to retire after completing a period of 5 years or upto the age of 65 years, which ever is earlier. Whereas the impugned notification prescribing not to appoint lawyer on completing 48 years of age for SC/ST and 45 years of age for other is without justification and therefore the learned counsel appearing for the petitioner has not only complained of discriminatory treatment but also violative of Articles 14 and 16 of the Constitution of India. 4. In reply, the learned counsel appearing for the respondents would firstly submit that the impugned notification has been issued in pursuant to the order passed by this court in WP.Nos.15364, 14248, 15401 of 1999 and WP.No.11680 of 2006 dated 13.03.2008 https://hcservices.ecourts.gov.in/hcservices/ directing the State Consumer Disputes Redressel Commission to issue an advertisement for filling up of vacancies for the post of President in the District Fora by inviting applications from the District Judges and qualified advocates. It was further submitted that since this court has directed in the above said writ petition to consider all those applications by making appropriate recommendation to the Government in consonance with the policy decision taken by the National Commission in its letter dated 17.05.2007 an advertisement was made on 18.06.2009 in the 'Daily Thanthi' and 'Indian Express' fixing the last date as 02.07.2009. 5. This court has followed Tamil Nadu State Judicial Service (Cadre and Recruitment) rules issued in G.O.Ms.No.79 Home (Cts.IA) Dept., dated 19.01.2007 to recruit District Judges wherein the qualification for advocates has been specified in Rule 5. In view of the direction issued by this court in the above said WP.No.15364, 14248, 15401 of 1999 and WP.No.11680 of 2006 dated 13.03.2008 read with G.O.Ms.No.79 Home (Cts.IA) Dept., dated 19.01.2007 to recruit District Judge, applications through newspaper advertisement were invited from qualified advocates for appointment to the post of President in the District Fora. Therefore, the second respondent has only followed the direction issued by the High Court which is in consonance with the policy decision taken by National Consumer Disputes Redressal Commission in its letter dated 17.05.2007. Whileso, the second respondent has nothing to do with fixing or relaxation of age for advocates for appointment to the post of President in the District Fora. Further more, it was submitted that the writ petition is not maintainable since the interview has already been conducted and thereafter on the recommendation of the selection Committee 21 retired District Judges have already been appointed as President in various District Fora as per GO.Ms.No.162, Co-operation, Food and Consumer Protection Department dated 16.10.2009 and all of them had joined duty in the respective District Fora and on that basis it was prayed that nothing survives in the writ petition. 6. Heard the parties on both sides. 7. Before going to the question raised by the petitioner herein it is relevant to mention at the out set that the very same notification No.1/2009 dated 15.06.2009 was earlier challenged before this same court in W.P.No.11864/2009. A Division Bench of this court by order dated 02.07.2009 while considering the velidity of the said notification No.1 of 2009 dated 15.06.2009 issued by the very same Registrar, Tamil Nadu State Consumer Disputes Redressal Commission upheld the very same impugned notification on the ground that the same is in conformity with the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules notified in G.O.Ms.No.79, Home (Cts.IA) Dept., dated 19.01.2007 prescribing the qualification for https://hcservices.ecourts.gov.in/hcservices/ the post of District Judges at the entry level. Therefore, when the velidity of the present impugned notification No.1/2009 dated 15.06.2009 issued by the very same Registrar, Tamil Nadu State Consumer Disputes Redressal Commission has already been upheld by this court in WP.No.11864/2009 dated 02.07.2009 and as there was no more appeal against the order passed by this court in WP.No.11864/2009 dated 02.07.2009, the present writ petition challenging the very same notification is liable to be dismissed. 8. The second bone of contention raised by the petitioner is to refer the matter before a larger bench on the ground that this court in the earlier writ petition has not considered Rule 10 (1A) of the Consumer Protection Act 1986 and also further urged that when Section 10 (1A) of Consumer Protection Act contemplates no age restriction for the District Judge to apply for the post of President of District Consumer Dispute Redressal Commission, in the case of advocates alone, age limit of 48 years in the case of SC/ST candidates and 45 years in the case of other communities as on 01.07.2009 is prescribed. Therefore, it was urged that the impugned notification is discriminating a District Judge from practicing advocate in the matter of appointment of the President of the District Fora of Consumer Disputes Redressal Commission and such one sided treatment prevents a successful lawyer who wants to serve the society as a Judicial Officer. A bare perusal of Section 10 (1A) of Consumer Protection Act which is extracted hereunder does not specify any method or mode of recruitment of a person who is qualified to be a District Judge for appointment of President in the District Consumer Fora. Further, this court also has followed the Tamil Nadu State Judicial Service (Cadre and Recruitment) rules in G.O.Ms.No. 79, Home (Cts.IA) Dept., dated 19.01.2007 to recruit District Judges wherein the qualification for Advocate specified in Rule 5 is given as under : Rule 5:Method of Appointment, Qualification and Age : District Judge (Entry level) Qualification :Must be practicing on the date of Notification as an advocate and must have so practiced for a period of not less than seven years as on such date. 3. Must not have attained the age of 48 years in the case of SC/ST and 45 years in the case of others as on 1st July of the year in which the selection for appointment is made. https://hcservices.ecourts.gov.in/hcservices/ Section 10 (1A) of the Consumer Protection Act is also extracted 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;] 9. Admittedly, the second respondents Registrar of Tamil Nadu State Consumer Disputes Redressal Commission has also followed the above said rule position strictly for making advertisement by inviting applications from the qualified advocates for appointment to the post of President in the District Consumer Fora. Therefore, the second respondent has nothing to do with the fixation of age limit to the advocates for the above said appointment in the District Fora. The Government of India alone is empowered to make amendments in fixing the age limit of the advocates, in the case of appointments to be made as per the clause "qualified to be a District Judge" in section 10 (1A) of the Consumer Protection Act but without impleading the Union of India, the present Writ Petition has been wrongly filed. 10. When the learned counsel appearing for the petitioner complained of discriminatory treatment in selecting advocates from the bar by putting age limitation like 48 years in the case of SC/ST and 45 years in the case of OBC and others whereas in the case of District Judges they are promoted to serve till the age of 65 years, this court meticulously looked into his arguments, in this context, it is pertinent to mention a vital fact that though the impugned notification as well as section 10 (2) of the Consumer Protection Act specifically mention that every member of the District Fora shall hold office for a term of 5 years or upto the age of 65 years, which ever is earlier, provided that the member shall be eligible for reappointment for another term of 5 years or upto the age of 65 years which ever is earlier, subject to the condition that he fulfills the qualification and other condition for appointment as mentioned in clause (b) and sub section (1) and such re-appointment is also made on the basis of the recommendation of the selection committee. 11. The close reading of section 10 (1A) as well as 10(2) of the Consumer Protection Act does not fall in line with argument advanced by the learned counsel for the petitioner for invoking Article 14 & 16 of the Constitution of India. Prima facie, section 10(2) does not discriminate any one. Since, the words employed herein specifically says that every member of the District Forum shall hold office for a period of 5 years or upto the age of 65 years, whichever is earlier, indeed, if an advocate is appointed at the age of 45 years, he will be holding office for a term of 5 https://hcservices.ecourts.gov.in/hcservices/ years. If he is eligible for reappointment for another term of 5 years subject to the condition that he fulfills the qualifications and other conditions for appointment in clause (b) of sub-section (1) and if such reappointment is also made on the basis of the recommendation of the selection committee, again, he will be entitled to continue for about 10 years totally, but in the case of Judicial Officer's appointment as a President of the District Fora, if he is appointed only at the verge of his retirement age of 60 years, he is not entitled to continue for 10 years as President of the District Forum. Therefore, the legislators in their wisdom thought fit to mention 65 years is the maximum retirement age for the President. Hence, if a Judicial Officer is appointed at the age of 58 years or 57 years after completing the full term of 5 years, if he is to be reappointed for a second term, he cannot hold office beyond 65 years. Therefore, section 10(2) indeed helps only the lawyers but not the Judicial Officers. In this view of this matter, the feeble attempt made by the learned counsel appearing for the petitioner to invoke the equality clause under Article 16 of the Constitution of India as well as 14 of the Constitution of India does not merit any consideration at all. 12. The further prayer of the learned counsel appearing for the petitioner to refer the matter before the larger bench to consider the velidity of the present impugned notification on the ground that the same has not been properly dealt with by the earlier Division Bench does not merit any more consideration. Since the point of discrimination has already been dealt with by this court on two earlier occasions, firstly in WP.No.15364/1999 etc., wherein this court by order dated 13.03.2008 had directed the Government to receive and consider applications from qualified advocates as well. By virtue of the said direction issued by this court in the above said writ petition, the impugned notification No.1/2009 dated 15.06.2009 has included the advocates to be eligible for appointment to the post of President of District Consumer Disputes Redressal Commission. Thereafter, the Tamil Nadu State Judicial Service (cadre and recruitment) rules were notified in G.O.Ms.No.79 Home (Cts.IA) Dept., dated 19.01.2007 by prescribing the following qualifications for the post of District Judge at the entry level. (2) Must be practising on the date of Notification as an advocate and must have so practised for a period of not less than 7 years as on such date. Must not have attained the age of 48 years in the case of SC/ST and 45 years in case of others as on 1st July of the year in which the selection for appointment is made. when a WP.No.11864/2009 was filed challenging the velidity of notification No.1/2009 dated 15.06.2009 issued by the Registrar of https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu State Consumer Redressal Commission complaining that the age qualification of advocate mentioned in the above said notification is against section 10 (1A) and also unconstitutional, this court after considering the said pleas, has held that the impugned notification is in conformity with the above said qualifications and the said order passed in WP.No.11864/2009 dated 02.07.2009 has become final and concluded. Therefore, the contention of the learned counsel for the petitioner to refer the matter before a larger bench does not merit any consideration since all these legal please were concluded on two earlier occasions in WP.No.15364/1999 dated 13.03.2008 and on second time in another writ petition No.11864/2009 by order dated 02.07.2009. Hence, the present 3rd writ petition arising the same contention does not stand to any good reasons. 13. Finally it is also relevant to mention an another aspect that the second respondent as per the judgment passed by this court in the above said writ petition which is in consonance with the policy decision of the National Consumer Redressal Commission, has appointed 21 District Judges as President in various District Fora as per G.O.Ms.No.162 Co-operation, Food and Consumer Protection Department dated 16.10.2009 and all of them have joined duty in respective District Fora. Since the policy decision of the National Consumer Redressal Commission says that the preference has to be given to retired District Judges and if no retired District Judges are available, the application received from advocates can be considered for appointment to the post of President in the District Fora have been properly followed by the respondents. If at all the petitioner is aggrieved, he should have challenged the order passed by this court in the above said WP.No.15364, 14248, 15401 of 2009 and 11680/2006 dated 13.03.2008 before the Apex Court. Admittedly, the same has not been done so, since the respondents have followed the direction issued by this court in the above said writ petition and also the decision taken by the National Consumer Disputes Redressal Commission dated 17.05.2007 the petitioner cannot be allowed to reopen the order passed by this court in the above said writ petition through this third round of writ petition. 14. Accordingly, the present writ petition does not merit any more consideration and accordingly the same is dismissed. No costs. Consequently, connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ tsh To 1. The Secretary to Government of Tamil Nadu, Civil Supplies and Consumer Fort. St. George, Madras. 2.The Registrar, Tamil Nadu State Consumer Disputes Redressal Commission, RK Mutt Road, Mylapore, Madras – 4. +1cc to Mr.V.Raghavachari, Advocate Sr 2773 +1cc to Govt. Pleader Sr 2937 RS(CO) km/27.1. W.P.No.15166 of 2009 and M.P.No.2 of 2009 https://hcservices.ecourts.gov.in/hcservices/