John Varghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** ## **WP(C).No.4824 OF 2020(C)** ## **PETITIONER:** **JOHN VARGHESE, AGED 56 YEARS S/O. VARGHESE, THAYAPALLIL HOUSE, VAYALAR (P.O.), CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADV. SRI.ROY CHACKO** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.**| |**2**|**SRI.P.THILOTHAMAN, HON'BLE MINISTER,**| ||**DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001.**| |**3**|**THE SECRETARY, DEPARTMENT OF LAW,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN - 695 001.**| ## **SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.4824/2020 2 ## **JUDGMENT** Dated this the 24[th] day of February, 2020 ## S.Manikumar, CJ. Instant writ petition is filed seeking for the following reliefs: - “a) Issue a writ of certiorari, or any other appropriate writ, order or direction calling for the records leading to Exhibit-P9 Government Order dated 31.05.2019 and to quash the same: - b) Issue a writ of certiorari, or any other appropriate writ, order or direction, calling for the records leading to the selection of President, Consumer Disputes Redressal Forum, Alappuzha and to quash the same. - c) Issue a writ of mandamus, or any other appropriate order or direction, directing the respondents to call for a fresh selection in terms of the Consumer Protection Act, 1986 and the rules framed thereunder:” 2. The issue raised in this writ petition is to the legality of the selection procedure and the consequent appointment to the post of the President of District Consumer Redressal Forum at Alappuzha. Petitioner has applied to the above post and he was called for the interview on 03.11.2018 before the selection committee chaired by the President, Kerala State Consumer Redressal Commission and two members of respondents. Thereafter, the selection committee submitted a panel for W.P.(C).No.4824/2020 3 recommendation to the post in question before the State Government. Dissatisfied with the select list thus prepared, the State Government revoked the selection by issuing Exhibit-P9 Government Order dated 31.05.2019 mainly for the reason that the selection panel did not contain the names of Advocates. The selection committee, therefore, made a fresh selection and forwarded a list of three names. 3. The petitioner has reason to believe that on account of the interference made by the Secretary to the Government, Department of Food and Civil Supplies, the selection panel recommended to the State Government is not being favourably considered on account of the absence of applicant, who, according to the State Government, deserves selection. Petitioner has contended that the applicants, who are liable to be favoured for selection are ineligible to be considered both for the reason that their names were not forwarded by this Court and the nominees have completed two terms as Member. Being aggrieved, he has filed the instant writ petition on the following grounds: “A. The Hon’ble Apex Court in the Judgment reported in _S. Chandra Mohan Nair v. George Joseph & Ors._ , (2010) 12 SCC 687, at para 17, held as follows:- “An analysis of these provisions shows that appointment of judicial and other members is required to be made by the State Government on the recommendation of the Selection Committee. If the Chairman and/or the W.P.(C).No.4824/2020 4 members of the Selection Committee do not agree on the candidature of any particular person, then opinion of the majority would constitute recommendation of the Selection Committee. Though, the State Government is not bound to accept the recommendation made by the Selection Committee, if it does not want to accept the recommendations, then reasons for doing so have to be recorded. The State Government cannot arbitrarily ignore or reject the recommendations of the Selection Committee. If the appointment made by the State Government is subjected to judicial scrutiny, then it is duty-bound to produce the relevant records including recommendation of the Selection Committee before the Court to show that there were valid reasons for not accepting the recommendation.” Therefore, the Hon’ble Apex Court have no uncertain terms, expressed the view that the selection made by the Committee constituted to assess the merits of the candidates has primacy in the matter of selection. In case of departure to be made from the selection list prepared by the said Committee, valid reasons have to be recorded and it should be discernible from the files. The facts of this case would indicate that there was an attempt made by the office of the concerned Minister to get a candidate selected and consequently, appointed to the post of Member of the State Commission. Here also, such a situation has arisen, whereby an attempt was made to select a candidate, whose name does not find a place in the select list prepared by the selection committee. Therefore, Exhibit P9 Government Order as well as the selection made consequent to the cancellation of the earlier select list are illegal and are liable to be quashed. The decision of the Hon'ble Apex Court was later approved by a threeJudge Bench in _Meena Verma v. State of Himachal Pradesh_ [2018 (10) SCC 614]. W.P.(C).No.4824/2020 5 B. A Hon'ble Division Bench of this Hon'ble Court in _State of Kerala_ _v. K. Reghu Varma_ , AIR 2010 Ker. 28 held at para 7 as follows:- “The provisions under the Act is very clear. The appointment is to be made by the State Government on the recommendation of the Selection Committee. The appointing authority is the Government. As rightly held by this Court in _Chandramohan Nair v. State of Kerala_ , 2007 (2) KLT 273: (AIR 2007 Ker.203), the legislature has not divested the power of appointment from the Government while making provisions of a Selection Committee. But the appointing authority does not have unfettered discretion in making the appointment. The appointment has to be made on the recommendation of the Selection Committee. ....... .. No doubt, unless recommended by the Selection Committee, the appointing authority cannot make any appointment. In other words, the appointing authority, namely, the Government, cannot appoint the candidate outside the list of qualified candidates furnished by the Selection Committee and only to that extent there is a letter or restriction on the power and method of appointment of the President and Members of the various Forums under the Consumer Protection Act and its State Rules, on the Government.” Therefore, this Court was categorical in taking the view that the Government cannot appoint any candidate outside the list of qualified candidates. In the instant case, the petitioner has reason to believe that on instructions from the office of the 2[nd] respondent, an unqualified candidate is liable to be selected and appointed. C. Section 10 of the Consumer Protection Act, 1986 provides for the composition of the District Forum. It is provided under Section 10(1)(A) that every appointment to the post of President and two other members shall be made by the State Government on the recommendation of a Selection Committee consisting of the following, namely:- W.P.(C).No.4824/2020 6 (i) President of the State Commission — Chairman (ii) Secretary, Law Department of the State - Member (iii) Secretary, in-charge of the Department dealing with consumer affairs in the State — Member. Under Section 10(2), the term of the President and members shall be a period of five years or up to the age of 65 years whichever is earlier. The first proviso to Section 10(2) provides for reappointment of a member for another term of five years or up to the age of 65 years, whichever is earlier and such reappointment shall be made on the basis of the Selection Committee. No member can be appointed for a further term of five years. This is by implication. Member includes President as defined under Section 2(jj) of the Act. Therefore, it is very clear that no member, who had served two consecutive terms in the District Forum, shall be eligible for a third term. In the event of appointment of any such member, by the State Government, that would be an illegal act. D. Rule 7(2) of the Consumer Protection (Kerala Rules) provides that,- “the panel of sitting judges/retired District Judges and persons qualified to be appointed as District Judges shall be obtained from the High Court of Kerala for consideration of appointment to the post of President. The selection of President, CDRF is made from amongst the candidates whose names are forwarded from the Hon'ble High Court. However, in the instant case, none of the applicants now selected is eligible in view of the notification dated 19.6.20219, since all of them applied after a period of one month, on 25.07.2019. This would constitute a valid ground to reject their applications and consequently they are ineligible for selection. The petitioner has no other W.P.(C).No.4824/2020 7 efficacious and alternative remedy other than to approach this Hon'ble Court under Article 226 of the Constitution of India.” 4. Based on the above grounds, learned counsel for the writ petitioner made submissions. 5. Heard learned counsel for the parties and perused the material available on record. 6. Challenge in this writ petition is to the correctness of Exhibit-P9 Government order dated 31.05.2019. That apart, the petitioner has sought for a writ of certiorari, calling for records leading to the selection of the President, Consumer Disputes Redressal forum, Alappuzha and for a writ of mandamus, directing the respondents to call for a fresh selection in terms of the Consumer Protection Act and the rules framed thereunder. 7. The Consumer Protection Act, 1986 is an act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith. Sections 7, 9 and 10 of the Act read thus: **“7. The State Consumer Protection Councils** .—(1) The State Government shall, by notification, establish with effect from such date as it may specify in such notification, a Council to be known as the Consumer Protection Council for ............... (hereinafter referred to as the State Council). W.P.(C).No.4824/2020 8 (2) The State Council shall consist of the following members, namely:— (a) the Minister in charge of consumer affairs in the State Government who shall be its Chairman; (b) such number of other official or non-official members representing such interests as may be prescribed by the State Governments; (c) such number of other official or non-official members, not exceeding ten, as may be nominated by the Central Government. (3) The State Council shall meet as and when necessary but not less than two meetings shall be held every year. (4) The State Council shall meet at such time and place as the Chairman may think fit and shall observe such procedure in regard to the transaction of its business as may be prescribed by the State Government.” “ **9. Establishment of Consumer Disputes Redressal Agencies** .—There shall be established for the purposes of this Act, the following agencies, namely:— - (a) a Consumer Disputes Redressal Forum to be known as the “District Forum” established by the State Government in each district of the State by notification: Provided that the State Government may, if it deems fit, establish more than one District Forum in a district. - (b) a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the State Government in the State by notification; and - (c) a National Consumer Disputes Redressal Commission established by the Central Government by notification.” “ **10. Composition of the District Forum** .—(1) Each District Forum shall consist of— W.P.(C).No.4824/2020 9 - (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 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 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 be made by the State Government on the recommendation of a selection committee consisting of the following, namely:— W.P.(C).No.4824/2020 10 (i) President of the State Commission (ii) Secretary, Law Department of the State —Chairman, —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 reappointment 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 subsection (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 (62 of 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: W.P.(C).No.4824/2020 11 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.” ## 8. Exhibit-P1 is the minutes of the selection committee meeting held on 28.07.2018 and the same reads thus: - “Minutes of the Selection Committee meeting held on 28-07-2018 Present:- 1. Justice Shri.S.S.Satheesachandran(Retired), President, State Consumer Disputes Redressal Commission. (Chairman) 2. Shri. B.G.Harindranath, Secretary, Law Department. (Member) 3. Smt.Mini Antony, Secretary, Consumer Affairs Department. (Convener) A list containing the names and particulars of 31 applications for selection for the post of President, Consumer Disputes Redressal Forum, Alappuzha was placed before the Selection Committee for shortlisting. List contains 7 District Judges/Rtd. District Judges and the rest is from the applicants, who claim the qualification fixed. The applicants as District Judges/Rtd. District Judges are to be included. In the list, Sl.No.;1 and 19 to 24 applicants who have filed the applications beyond the time and incomplete applications are to be excluded as their applications are liable to be rejected. The list of applicants are to be called for interview shall be prepared excluding the applicants who are found to be disqualified on filing the applications beyond time and incomplete applications as indicated above.” W.P.(C).No.4824/2020 12 9. Exhibit-P3 minutes of the Selection Committee meeting held on ## 3.11.2018 at 11.30 AM is extracted hereunder: “Minutes of the Selection Committee Meeting held on 03.11.2018 at 11.30 A.M Government Guest House, Ernakulam. Present: 1. Justice Shri.S.S.Satheesachandran (Retired), President, State Consumer Disputes Redressal Commission.(Chairman) 2. Shri. B.G.Harindranath, Secretary, Law Department. (Member) 3. Smt.Mini Antony, Secretary, Consumer Affairs Department. (Convener) A list containing the names and particulars of 24 candidates was furnished to the Selection Committee for preparing a panel of eligible candidates for the appointment to the vacant post of President, District Consumer Disputes Redressal Forum, Alappuzha. The list contained 7 District Judges/Rtd. District Judges and the rest were from the applicants who claimed the qualification fixed. Interview was conducted on 03-11-2018 at Government Guest House, Ernakulam as decided by the Selection Committee. Among the candidates 4 of them remained absent and the rest were interviewed by the Committee. Selection Committee, after a detailed discussion about the qualification, experience and performance of the candidates participated in the interview, resolved to prepare the following panel of eligible candidates for being sent to Government for consideration for the appointment to the vacant post of President, District Consumer Disputes Redressal Forum, Alappuzha.” W.P.(C).No.4824/2020 13 |Sl. No.|Name.| |---|---| |1.|K. M. Balachandran| |2.|Dr. V. Vijayakumar| |3.|P. S. Ananthakrishnan| |4.|S. Santhosh Kumar| 1. Justice Shri.S.S.Satheesachandran (Retired), President, State Consumer Disputes Redressal Commission. Sd/- 2. Sri.B.G.Harindranath, Secretary, Law Department. Sd/3. Smt. Miny Antony, Consumer Affairs Department. Sd/- ## 10. Exhibit-P6 is the opinion forwarded by the learned Advocate General, Government of Kerala obtained by the petitioner under the Right to Information Act dated 11.02.2019 and the same is reproduced. “No. SS-3/2019/AG 11[th] February, 2019 Sri. P.Thilothaman Honourable Minister for Food & Civil Supplies Government Secretariat, Thiruvananthapuram. Dear Sir, Sub : Appointment of President in Consumer Dispute Redressal Forum, Alappuzha District — legal opinion forwarding of — reg. Ref : Letter No. 3243417/2019/M(F&CSD) dated 08.02.2019 As per Sub Rule (2) of Rule 7 of Kerala Consumer Protection Rules a panel of Sitting Judges/Retired Judges and persons qualified to be appointed as District Judges shall be obtained from the High Court of Kerala for consideration to the post of President. The proviso of Sub Rule says the Government Department dealing with the consumer affairs may, if necessary, advertise directly for the parties. Based on the views expressed W.P.(C).No.4824/2020 14 the High Court of Kerala in their letter No B1(c) 88506/2016 dated 21.06.2017 it is understood that the Government called for a panel of sitting judges/retired judges from the High Court of Kerala. Applications were invited for direct recruitment from persons qualified to be appointed as District Judges. Accordingly, the High Court sent a panel of persons from the category of Sitting Judges/Retired Judges and for selection from the category of persons qualified to be appointed as District Judges, applications were invited for direct recruitment. Seventeen valid applications were received for consideration of the Selection Committee to prepare category wise panel of persons qualified for appointment of District Judges as provided in Sub Rule 7 of the Rules. It seems that the selection committee in the panel prepared by them included one category viz. Sitting Judges/Retired Judges consisting of 4 members. Thus obviously category wise panel as provided in Sub Rule 3 of Rule 7 was not prepared as mandated in the Rules. But, they are duty bound to prepare panel containing both categories viz. Sitting Judges/Retired Judges and persons qualified to be appointed District Judges. Thus, panel prepared excluding one category seems to be not in order. Hence the selection committee has to reconsider the matter preparing a panel of both categories viz. Sitting Judges/Retired Judges and persons who are qualified to be appointed District Judges. From that panel it is for the Government to appoint a suitable person. Yours faithfully, ## C.P. SUDHAKARA PRASAD ADVOCATE-GENERAL” W.P.(C).No.4824/2020 15 ## 11. Exhibit-P7 is the minutes of the Selection Committee headed by the President State Commission and the same reads thus: ## “MINUTES OF MEETING HELD IN THE CHAMBER OF PRESIDENT, CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM, ON 21.02.2019. In the light of the reference made and in deference to the request of the Hon’ble Chief Minister the selection committee met on 21.02.2019 in the Chamber of President of the State Consumer Disputes Redressal Commission. The Committee after considering the reference made is of the view that review of the panel already submitted for selection to the post of President of the Consumer Disputes Redressal Forum, Alappuzha on the premise that the panel does not include any person from one of the three categories of eligible persons included in the list prepared for interview lacks merit. Different categories are included for selection to a post does not postulate that panel prepared after assessing comparative merit of candidates must include persons from all categories. Selection committee conducted interview of persons included in the list from all categories, and after assessing their comparative merit prepared a panel of candidates eligible for selection ranking them in the order of marks secured by them. In such panel if anyone from a particular category is not represented it would only reflect that there was none from that category qualified for inclusion in the panel. Panel already submitted is based on the merit of candidates assessed in the interview and none else who has not been found eligible can be included on the ground that one or other category in the selection list does not find place in the W.P.(C).No.4824/2020 16 panel. Rules mandate only submission of 'a panel of the candidates found having merit in interview and not 'panels' consisting of candidates from different categories included in the list for interview.” 12. Mr. Ranjith Thampan, learned Additional Advocate General, submitted that Government have considered the recommendations of the selection committee and decided to appoint Mr. S. Santhosh Kumar, retired District Judge as Presiding Officer, District Consumer Disputes Redressal Forum, Alappuzha, and orders would be issued shortly. Submission of the learned Additional Advocate General is placed on record. Going through the material on record, we find no infirmity in the selection to the office of the President, District Consumer Redressal forum, Alappuzha, and there are no merits in this writ petition warranting interference. Writ petition is accordingly, dismissed. No costs. Sd/- **S.MANIKUMAR CHIEF JUSTICE** Krj.27/2 Sd/- **SHAJI P. CHALY JUDGE** W.P.(C).No.4824/2020 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **P1:- COPY OF THE MINUTES OF THE SELECTION COMMITTEE DATED 28.7.2018 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **P2:- COPY OF THE NOTICE DATED 23.10.2018 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **P3:- COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING HELD ON 3.11.2018 AT 11.30 AM OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **P4:- COPY OF THE RELEVANT PAGES IN THE FILE CONTAINING THE 2ND RESPONDENT'S REMARK OBTAINED BY THE PETITIONER UNDR THE RIGHT TO INFORMATION ACT DATED 27.11.18.** - **P5:- COPY OF THE RELEVANT PAGES OF THE FILE CONTAINING THE OPINION OF THE 3RD RESPONDENT OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT DATED 5.2.19.** - **P6:- COPY OF THE OPINION FORWARDED BY THE ADVOCATE GENERAL OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT DATED 11.2.19.** - **P7:- COPY OF THE MINUTES OF THE SELECTION COMMITTEE HEADED BY THE PRESIDENT, STATE COMMISSION OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **P8:- COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN WPC NO.651/2019 DATED 25.2.2019.** - **P9:- COPY OF THE GOVERNMENT ORDER DATED 31.5.2019.** - **P10:- COPY OF APPLICATION DATED 28.1.2020.** - **P11:- COPY OF THE JUDGMENT DATED 17.1.2020 PASSED BY THIS HON'BLE COURT IN WPC NO.36892/2019.** W.P.(C).No.4824/2020 18 ## **RESPONDENTS' EXHIBITS:-NIL**