Case: MEENA VERMA Vs. THE STATE OF HIMACHAL PRADESH

2. The facts which are necessary to be enumerated are that on 25.04.2016, one post of part time female Member along with other vacancies meant for various District Fora was advertised by the Principal Secretary (Food, Civil Supplies & Consumer Affairs) of the Government of Himachal Pradesh. The advertisement stipulated the qualifications, namely, that the candidate shall not be less than 35 years of age; that she should possess a Bachelors degree from a recognized University; and that she should be a person of ability, integrity and standing having knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. It was further mentioned therein that the part time Member so appointed shall hold office for a term of five years or up to the age of sixty seven years in the case of the Commission and sixty five years in the case of District Consumer Forum, whichever is earlier. The Selection Committee of which the President of the Commission was the Chairman held the interview on 02.07.2016 and the Committee recommended four names on the basis of the performance of the candidates for the member of the Commission. In the select list, the names of the respondent no. 2 and the appellant appeared at serial nos. 2 and 3 respectively. The candidate, who obtained the highest mark, was not available for appointment, for she had already been engaged against some post in the Himachal Pradesh University. The first respondent selected the appellant as a part time member in the Commission. A representation was submitted by the second respondent on which no action was taken and, therefore, she approached the High Court for redressal of her grievances.3. On behalf of the respondent no. 2, the writ petitioner, it was contended before the High Court that when the recommendation of the Selection Committee clearly stated that it had prepared a panel on the basis of the performance of candidates in the interview and when her name was put at serial no. 2, she could not have been ignored.4. The first respondent contested the aforesaid stand put forth by the writ petitioner and submitted that the writ petitioner and the selected candidate had obtained equal marks and the State Government selected the candidate whose name featured at serial no. 3 on the basis of her public experience. That apart, it was asserted that the duty and responsibility of the Selection Committee is to empanel the eligible and suitable candidates for appointment as members of the Commission and the appointing authority is free to appoint any candidate recommended for appointment by the Selection Committee and named in the panel. According to the first respondent, solely because the writ petitioner was placed at serial no. 2 and is senior in age to the selected candidate, she could not claim to be appointed as a matter of right and, therefore, the appointment of the selected candidate could not be annulled.5. The High Court called for the records pertaining to the selection process and the decision taken on the same. The notings in the file are reproduced asIt has come to the notice that in r/o State Consumer Commission, the recommended candidate at Sr. No. 1 (Dr. Karuna Machhan) has already joined her service on 24.09.2016 in HPU on her appointment as Assistant Professor. As such, she may now not like to accept this position if offered. .......... Submitted pl. Sd/Pr. Secy. ((FCS&CA) N/156: For the State Commission two candidates have equal marks. Based on public experience Smt. Meena Verma can be appointed. For District Forums, N 147 to 150 be seen. Sd/Principal Secretary 5/10 Honble Minister F&CS Sd/(Minister) 6/10 HonbleOn the basis of the aforesaid decision, the appellant herein was appointed and continued to serve in the Commission as a part time member. In the course of hearing, the High Court was not satisfied with the reasons as regards the stand pertaining to public experience of the selected candidate and directed the Additional Chief Secretary (Food, Civil Supplies and Consumer Affairs) to the Government of Himachal Pradesh to assist the Court. The Additional Chief Secretary made certain statements before the High Court which are reflected from the order dated 04.12.2017. The said statements are to the following effect:"Mr. Tarun Kapoor, Additional Chief Secretary, Food, Civil Supplies and Consumer Affairs to the Government of Himachal Pradesh is present in person. We have been informed that as per the practice prevalent, the Selection Committee prepares the panel and submit the same to the Government for appointment of Member(s) in District Consumer Fora and H.P. State Consumer Disputes Redressal Commission, Shimla. In the past also, the Minister/Chief Minister has ordered the appointment of such Member(s) without adhering to the position of empanelled candidate in the panel so prepared. No rules, guidelines or instructions governing the appointment of such Member(s) are yet framed. According to Mr. Kapoor, the matter qua framing rules for appointment of the Member(s), District Consumer Fora and State Redressal Commission is under consideration of the department. It is in this backdrop, this petition is to be heard further and for that list on 11.12.2017."

Reasoning:
10. In the case at hand, the appellant and the respondent no. 2 have obtained equal marks. The State Government chose to appoint the appellant who was at serial no. 3 on the foundation that she had better public experience. In S. Chandramohan Nair (supra), the Rule had conferred power on the Government to select any one of the candidates from the panel by ascribing reasons. The Court was of the opinion that the case of the appellant therein was arbitrarily ignored and, accordingly, it dislodged the judgment and order of the High Court.On a perusal of the same, it is noticeable that the Committee was presided by the President of the Commission and the other members were Principal Secretary (FCS&CA) to the Government of H.P. and Principal Secretary (Law) to the Government of H.P. The Committee had used the phraseology ?On the basis of the performance of the candidates?. The panel was drawn for the female members. It had placed the respondent no. 2 at serial no. 2 and the present appellant at serial no. 3. As it appears, the Committee had drawn the list in accordance with performance and, therefore, the respondent no. 2 was more suitable than the appellant. The State Government, while issuing the notification, had not ascribed any reasons. However, as is seen from the records produced before the High Court, the Principal Secretary had given a note that the ?present appellant had public experience? and on that basis, the Chief Minister signed the file and the notification was issued. The matter would have been different had there been a Rule to enable the State Government to choose a person from the panel. In the absence of any Rule or any executive instruction, when the Committee had drawn a panel on the basis of performance and placed the candidates in seriatim on the basis of the said performance, we are disposed to think that the High Court correctly expressed the opinion that the addition of public experience was uncalled for.