Renu P. Gopalan 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 ``` ``` TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 ``` ## **`WA NO. 1716 OF 2021`** ## **`AGAINST THE JUDGMENT IN WP(C) 15568/2018 OF HIGH COURT OF KERALA APPELLANT/WRIT PETITOINER:`** ``` RENU P. GOPALAN AGED 45 YEARS, D/O. V. GOPALAN, PURAKKATU HOUSE, VLAYANCHIRANGARA POST, PERUMBAVOOR, PIN - 683 556. ``` ``` BY ADVS.SRI. S.RAMESH BABU(SR) SRI.N.KRISHNA PRASAD SMT.GAYATHRI POTI ``` ## **`RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` ``` 2THE SECRETARY TO GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` ``` 3THE SECRETARY LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` ``` 4RENJITH R. ADVOCATE 4B, SHREE DHANYA CASTLE, KAWDIAR, THIRUVANANTHAPURAM - 695 003. ``` ``` SRI. K.P.HARISH, SR GP FOR R1 TO R3, SRI.M.SREEKUMAR FOR R4 ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **W.A.No.1716 of 2021** ## **-:2:-** ## **JUDGMENT** Dated this the 29[th] day of March, 2022 ## **Shaji P. Chaly, J.** This appeal is preferred by the petitioner in W.P.(C) No.15568 of 2018 challenging the judgment of the learned single Judge dated 24.09.2021, by which, the following reliefs sought for by the petitioner were declined and the writ petition was dismissed. - “i. Call for the records leading to Exhibit P4 and quash the same by issuing a writ of certiorari; - ii. Declare that the petitioner is the most eligible candidate for appointment to the post of member of Kerala State Consumer Dispute Redressal Commission pursuant to notification dated 10.08.2016; - iii. Issue a writ of Mandamus, or any other writ, order or direction in the nature of Mandamus directing the 1[st] respondent to appoint petitioner as member of Kerala State Consumer Dispute Redressal Commission as per the recommendation of the selection committee.” ## 2. Brief material facts for the disposal of the appeal are as under: ## **W.A.No.1716 of 2021** ## **-:3:-** The appellant, while functioning as a member of the District Consumer Redressal Forum, Kottayam, a notification was issued by the State Government inviting applications to the post of Member of the Kerala State Consumer Disputes Redressal Commission. The appellant submitted an application for the post. The Selection Committee, consisting of the President of the Commission, Law Secretary and the Secretary, Department of Consumer Affairs, Government of Kerala, after interviewing the candidates prepared a panel of three candidates, namely the appellant, the 4[th] respondent i.e., Mr.Ranjith R., and one Mr.Badar. The Selection Committee recommended to the 1[st] respondent the candidates for appointment to the said post. The appellant scored the highest mark among the three candidates and had been placed at serial No.1. The 4[th] respondent, who was placed 2[nd] in the said list, scored 15 marks less than the marks secured by the appellant. According to the appellant, in order to avoid appointment of the appellant and to appoint a person of the choice of the Government, the selection process was cancelled by the Government. The appellant challenged the ## **W.A.No.1716 of 2021** ## **-:4:-** said order. While so, the Government re-notified the post and thereupon the said notification was also challenged by the appellant. Later, the writ petition filed by the appellant was allowed, the impugned order and notification were quashed and directed the Government to complete the selection process expeditiously. Even though a writ appeal was preferred by the Government, it was dismissed. Whatever that be, the Government did not take any steps to complete the selection process as directed by this court. But later the appellant came to know that the Government had chosen the 4[th] respondent for appointment as Member of the Commission. Thereupon the appellant has filed W.P. (C)No.3484 of 2018 before this court. However, the Government submitted before this court that no decision was taken in accordance with the directions of this court. Therefore, the said writ petition was disposed of directing the State Government to take appropriate decision in the matter within two months and granted liberty to the appellant to challenge the decision, if aggrieved. Thereafter, the Government issued the impugned order dated 12.04.2018, **W.A.No.1716 of 2021** ## **-:5:-** appointing the 4[th] respondent as Member of the Kerala State Consumer Disputes Redressal Commission. 3. The case projected by the appellant is that since the appellant was ranked No.1, the order issued by the State Government appointing the 4[th] respondent as the Member is arbitrary and illegal . After in-depth consideration of the facts, circumstances and the law involved, the learned single Judge held as follows: “7. As per Section 16(1A) of the Act 1986, the appointment under sub section (1) shall be made by the State Government on the recommendation of a selection committee consisting of the President of the State Commission as the Chairman, Secretary of the Law Department of the State as Member and the Secretary in charge of the department dealing with consumer affairs in the State as the 2[nd] Member. Third proviso to Rule 17(3) says that the selection committee shall finalize a panel of candidates by adopting such methods as the selection committee may deem fit and the list of qualified candidates so finalised shall be sent for consideration of appointment by the Government. 8. Admittedly, the selection committee forwarded a panel to the Government in accordance to Rule 17 in which the petitioner is included. It is also an admitted fact that the petitioner is the person who obtained more marks ## **W.A.No.1716 of 2021** ## **-:6:-** compared to the 4[th] respondent, who is appointed as a member of the State Commission. The short point to be decided is whether the action of the 1[st] respondent in appointing the 4[th] respondent overlooking the petitioner, when the petitioner was given more marks by the Selection Committee. The authority of the Government to appoint one among the selection panel is discussed by this Court in State of Kerala v. Reghu Varma (2009(3) KLT 634). The relevant paragraph is paragraph 7 of the above judgment, the same is extracted hereunder: "7. The provision under the Act is very clear. The appointment is to be made by the State Government on the recommendation of a 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), the Legislature has not divested the power of appointment from the Government while making provision 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. We find from the records that what the Government directed the Selection Committee also was, to "furnish the panel" for filling up the vacancies. Under R.28(b)(i) of the Kerala State and Subordinate Service Rules, 1958, appointments to posts in a selection category or grade in a service or class, other than Heads of Departments, shall be made from a select list prepared from among the members eligible for appointment to such category or grade on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. It has also to be seen that the select list thus prepared by the Departmental Promotion Committee is only in respect of the vacancies estimated for a year. That select list is placed before the Government only for its approval and the same is published under the Rules. Only under exceptional circumstances, in public interest, the Government is in a position to depart from the advice of the Departmental Promotion Committee. That is not ## **W.A.No.1716 of 2021** ## **-:7:-** the scheme or procedure or power in the Selection Committee under the Consumer Protection Act and the Kerala Rules. Though the Act and the Rules have used the expression "Selection Committee", and though in common parlance the Selection Committee is expected to prepare a select list on assessment of merit of each candidate, under the Consumer Protection Act and its Rules in the State, the duty cast on the Selection Committee is only to recommend a panel, Under R. 7(3), the Committee is given freedom to adopt any method as the Committee feels fit for finalising the panel. On finalising the panel, under the Rules the Selection Committee forwards ".... the list of qualified candidates so finalised" to the Government for consideration for appointment. In other words, the duty cast on the Selection Committee under the Act and the Rules is, by whatever method they deem fit, to assess whether the candidates placed before them by the Government for finalising the panel are duly qualified, in the sense whether they are suitable and qualified to hold the position of either President or Member, and nothing more or nothing less. Under the Kerala State and Subordinate Service Rules, the select list is prepared based on merit and ability and the incumbents are ranked on the basis of such assessment made by the Selection Committee; whereas under the Scheme of the Consumer Protection Act and the State Rules the Selection Committee has no such power. The power conferred on them is only to finalise a panel of candidates after subjecting the candidates to whatever test they may deem fit for the purpose of assessing their merit, suitability etc. for holding the post. The Committee is not expected to or called upon to prepare a select list of candidates in the order of merit and suitability. Thus all the candidates included in the list of qualified candidates finalised by the Selection Committee are duly recommended by the Selection Committee. Once the Selection Committee recommends a list of qualified candidates, the appointing authority is free to appoint any candidate recommended by 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 ## **W.A.No.1716 of 2021** ## **-:8:-** Government, cannot appoint the candidate outside the list of qualified candidates furnished by the Selection Committee and only to that extent there is a fetter 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." (emphasis supplied) 9. This Court in the above judgment clearly stated that the duty cast upon the selection committee under the Act and Rules is, by whatever method deem it fit, to assess whether the candidates placed before them by the Government for finalising the panel are duly qualified and whether they are suitable to hold the position of a Member and nothing more or nothing less. This Court observed that as per the scheme of the Consumer Protection Act and State Rules, the selection committee has no power to prepare the select list based on merit and ability and to give rank on the basis of such assessment made by the selection committee. The Division Bench observed that the power conferred on them is only to finalize a panel of candidates after subjecting the candidates to whatever test, they may deem fit for the purpose of assessing their merit suitability etc. for holding the post. The Division Bench clearly stated that the Committee is not expected to or called upon to prepare a select list of the candidate in the order of merit and suitability. In other words, the Government is free to appoint any candidate recommended by the selection committee. The selection committee recommends a list of qualified candidates to the Government and all candidates included therein shall be deemed to be suitable for appointment and that the Government is free to appoint ## **W.A.No.1716 of 2021** ## **-:9:-** anyone among them. Therefore, there is no rank list is contemplated when a panel is sent to the Government by the selection committee. All the 3 members are suitable for the appointment. 10. The apex court in Chandramohan Nair v. George Joseph (2010(4) KLT 267) observed that the State Government is not bound to accept the recommendation made by the selection committee and if it does not want to accept the recommendations, then the reason for doing so had to be recorded. The relevant portion of the above judgment is paragraph 16 and the same is extracted hereunder: "16. 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 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 recommendations 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". 11. The apex court observed that State Government cannot arbitrarily ignore or reject the recommendations of the selection committee. I perused the statement filed by the 2nd respondent in this case along with Annexure R2(a). ## **W.A.No.1716 of 2021** ## **-:10:-** The stand of the Government is that in Annexure-R2(a) preliminary enquiry report, there is a finding against the petitioner and hence the Government recommended for a detailed enquiry in accordance with Consumer Protection Rules, 2005. In such circumstances, the Government concluded that, it is not fair and just to appoint a person like the petitioner as a Member of the State Commission, because the said body is an adjudicatory one. The counsel for the petitioner submitted that, the petitioner filed a reply affidavit rejecting the contentions in Annexure-R2(a). The petitioner has got different explanation to the findings in the preliminary enquiry. According to me, this Court need not decide the correctness of the preliminary report or the genuineness of the allegation or observation against the petitioner in Annexure-R2(a) preliminary report. The counsel for the petitioner submitted that since the Government relied Annexure-R2(a) and filed a statement before this Court in which it is stated that the petitioner is not a suitable person, that will create a stigma on the petitioner. I cannot agree with the counsel for the petitioner. Admittedly, Annexure R2(a) is only a preliminary enquiry, and it is subject to the final decision in the detailed enquiry ordered under the provisions of Consumer Protection Rules 2005. Therefore, there will not be any stigma because of Annexure-R2(a) as contended by the petitioner because it is subject to the final decision in the detailed enquiry. 12. When this Court clearly stated that the panel submitted by the selection committee is not based on merit and it cannot be treated as a rank list and the Government ## **W.A.No.1716 of 2021** ## **-:11:-** can choose any of the person in the list supplied by the selection committee, this Court cannot find fault with the 1 st respondent for selecting the 4th respondent in the facts and circumstances of the case. Annexure-R2(a) preliminary report is not denied by the petitioner. It is a fact that there was a preliminary enquiry against the petitioner and others and there is some observation in Annexure-R2(a) against the petitioner also which is to be considered in detail in the detailed enquiry. In such circumstances, the Government decided to appoint 4[th] respondent instead of the petitioner. I see no reason to interfere with the selection process conducted by the Government. The correctness of Annexure-R2(a) need not be considered by this Court at this stage. All the members in the panel submitted by the selection committee are eligible to be appointed in the light of the Division Bench judgment of this Court in **Reghu Varma** 's case. The Government selected the 4th respondent instead of the petitioner. The Government submitted before this Court that since there is an allegation against the petitioner and there is an observation in the preliminary report as evident by Annexure-R1(a), the Government decided to appoint 4[th] respondent instead of the petitioner. I see no reason to interfere with such a finding of the Government. According to me, the petitioner is not entitled to any relief in this petition.” 4. The basic contention advanced by the appellant is that suitability of the appellant was doubted on the basis of the preliminary report submitted by the President of the **W.A.No.1716 of 2021** ## **-:12:-** District Forum, Kottayam, while the appellant was functioning as a Member of the District Forum. It is also contended that the complaint was an anonymous one and therefore, it should not have been acted upon as it is evident that a serious allegation without revealing the true identity itself is a mischievous exercise. That apart, it is also contended that the preliminary report refers to the difference of opinion between the President and the Members of the Forum and therefore, the complaint by the President of the Forum should not be treated as a surprise. It is also pointed out that it is clear from the preliminary report that it does not even prima facie and much less speak with certainty on any allegations that could be attributed to the appellant. Therefore, it is contended that the learned single Judge has misdirected himself in the report of the preliminary enquiry. It is further contended that since there is no basis in the same and are mere allegations, there was no reason to overlook the suitability of the appellant. It is also submitted that the issues between the President of the Forum and the appellant were already brought to the knowledge of the concerned authority ## **W.A.No.1716 of 2021** ## **-:13:-** and the concerned authority has not appreciated the circumstances in its true perspective and therefore, failure on the part of the State Government in not appointing the appellant is totally arbitrary and illegal. 5. In fact, in the writ petition a detailed statement was filed for and on behalf of the Secretary to the Government, Consumer Affairs Department, refuting the allegations and also justifying its action. Among other things, it is contended as follows: “5. It is submitted that while the petitioner was working as a member of the District Consumer Disputes Redressal Forum, Kottayam Government has received complaints against the petitioner raising some serious allegations. On primary enquiry, it is seen that the allegations were serious in nature. Hence, the Government recommended a detailed enquiry in accordance with the Consumer Protection Rule, 2005. It is not fair and just to appoint an alleged person as a member of the State Consumer Disputes Redressal Commission, since the said body is an adjudicatory one. In the circumstances Government appointed Sri.S.Ranjith as member of the State Commission. 6. It is submitted that Government received a letter from then President of the Kottayam Consumer Disputes Redressal Forum raising some serious allegation against the petitioner ## **W.A.No.1716 of 2021** ## **-:14:-** Smt.Renu P Gopalan, who was working as a member in the said forum. On primary enquiry conducted, it is seen that the allegations were serious in nature. Hence, the Registrar, High Court of Kerala has been requested to conduct an enquiry against the petitioner in accordance with the Consumer Protection Rule, 2005. Hence the petitioner is not considered for appointment as member of the State Consumer Disputes Redressal Commission. The prime concern of the Government is to select the person having the competence, ability and integrity to function as the member of the state commission. Government is of the view that it is not fair and just to appoint an alleged person as a member of the State Consumer Disputes Redressal Commission, since the said body is an adjudicatory one. Hence Government appointed Sri.S.Ranjith, the second ranked person in the ranked list submitted by the Selection Committee, as the member of the State Consumer Disputes Redressal Commission. 7. It is submitted that the appointment of Sri.S.Ranjith as member of the State Commission is strictly in accordance with the provisions contained in the Consumer Protection Act 1986, State Consumer Protection Rule, 2005 and as per the directions of the Hon'ble High Court in the judgment in W.P. (C)No.9221/17. The 4[th] respondent is fully qualified and eligible to be appointed as a member of the State Commission. The allegations raised against the petitioner are serious in nature, hence the Government recommended a detailed enquiry against the petitioner in accordance with the Consumer Protection Rule, 2005.” **W.A.No.1716 of 2021** ## **-:15:-** 6. We have heard the learned Senior Counsel for the appellant Sri.S.Ramesh Babu assisted by Adv.N.Krishna Prasad; the learned Senior Government Pleader Sri.K.P.Harish for the State and its officials and the learned counsel Sri.M.Sreekumar, for the 4[th] respondent and perused the pleadings and the material on record. 7. The sole question to be considered is whether any interference is required to the judgment of the learned single Judge. When the matter came up for hearing since contentions were advanced in regard to the complaint against the appellant, while functioning as the Member of the Consumer Disputes Redressal Forum, Kottayam, we directed the Government to produce the original files about the appointment made. Accordingly the Government has produced the files, which are paginated continuously from page 1 to page 675 and thereafter the note files from page 1 to page 42. The issue with respect to the selection is contained in the note file starting from page 1 and ending at page 42. ## **W.A.No.1716 of 2021** ## **-:16:-** 8. We have gone through the same extensively and we find that the subject issue in respect of the complaint against the appellant was considered by the Government after receipt of the list of three persons from the Selection Committee constituted for the purpose. The discussion in the note files makes it clear that a report was submitted by the President of the District Consumer Redressal Forum and from the report it is evident that the appellant absented herself for six days without submitting any leave, which has affected the functioning of the Forum to a great extent. That apart, it is seen that in the order passed by the President and another Member Sri.K.N. Radhakrishnan, the signature of Sri.K.N. Radhakrishnan was erased later and thus, changed the order by passing a fresh order after 88 days. It is true, from the note files it is not evident as to whether a full-fledged enquiry was conducted in respect of the same. However, taking note of the allegations made against the appellant, the State Government thought it fit to appoint the 4[th] respondent, against whom there was no allegation so as to disqualify him from appointment as a Member of the State Commission was ## **W.A.No.1716 of 2021** ## **-:17:-** existing. Therefore, it cannot be said that the power exercised by the State Government in the matter of assessing the suitability of the appellant is in any way illegal, arbitrary, wrong or perverse. A member of a consumer forum was expected to function with utmost diligence, dedication, punctuality, integrity and honesty, so as to translate the purport and intention for which the Act was made, and attain the target of speedy disposal of the cases. Therefore, the Government cannot be found fault with for not appointing the appellant and deciding to appoint the 4[th] respondent to the post. 9. In our considered opinion, the learned single Judge has taken note of the said aspects and has arrived at the conclusion on the basis of the allegations and blemishes remaining against the appellant. Now, more than three years have elapsed also. Having gone through the pleadings and appreciating the rival contentions of the parties, and the contents of the original files produced, we are of the considered opinion that, there is no jurisdictional error or other legal infirmities in exercising the power of discretion **W.A.No.1716 of 2021** ## **-:18:-** conferred under Article 226, by the learned single Judge. Upshot of the above discussion is that the appellant has not made out any case for interference in an intra court appeal filed under section 5 of the Kerala High Court Act, 1958. Needless to say, the appeal fails. Accordingly, it is dismissed. Pending interlocutory applications, if any, shall stand closed. The original files produced shall be returned to the office of the Advocate General after securing an acknowledgement. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** //true copy// P.A. to Judge