State of Kerala and others v Renu P. Gopalan

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939 WA.No.2316 of 2017 IN WP(C)9221/2017 -------------------------------------AGAINST THE JUDGMENT IN WP(C)9221/2017 of HIGH COURT OF KERALA DATED 25-09-2017 APPELLANTS/RESPONDENTS IN WP(C): ------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE CHAIRMAN SELECTION COMMITTEE, KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM-695 001. 3. THE SECRETARY TO THE GOVERNMENT CONSUMER AFFAIRS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. THE SECRETARY LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV.GOVERNMENT PLEADER SRI.RANJITH THAMPAN RESPONDENT/PETITIONER IN WP(C): ------------------------------- RENU P. GOPALAN D/O V. GOPALAN, AGED 42, PURAKKATTU HOUSE, VALAYANCHINGARA P.O., PERUMBAVOOR-683 556. R BY SRI.S.RENJITH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C.R.** **ANTONY DOMINIC, Ag.C.J. & DAMA SESHADRI NAIDU, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Writ Appeal No.2316 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of November, 2017** ## **JUDGMENT** ## _**Antony Dominic, Ag.C.J.**_ State of Kerala and its officers, who are respondents 1, 3 and 4, in W.P.(C)No.9221/17 are the appellants. The writ petition was filed by Smt.Renu P.Gopalan, impugning Exts.P5 and P6 and also for a declaration that Rule 17(3) of the Kerala Consumer Protection Rules, 2005 ('the Rules', for short) is ultra vires the Consumer Protection Act, 1986. There was also a prayer to direct the first appellant to effect appointment to the post of Member of Kerala State Consumer Disputes Redressal Commission from the panel forwarded by the Chairman of the Selection Committee in pursuance to Ext.P1. 2. By the judgment under appeal, after upholding the validity of Rule 17(3) of the Rules and holding the Rule to be directory, the learned Single Judge quashed Exts.P4, P5 and P6 and directed that Writ Appeal No.2316 of 2017 : 2 : appointments be made from the panel forwarded in pursuance to Ext.P1. It is this judgment, which is under challenge before us. 3. The facts of the case in brief are that under Section 9 of the Consumer Protection Act, 1986 (the Act, for short) there shall be established for the purposes of the Act, a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the State Government. Section 16 of the Act deals with its composition and Section 17 provides for its jurisdiction. In terms of Section 16, the Commission shall consist of a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President and not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall be its members. 4. Insofar as this case is concerned, the term of one of the Members of the State Commission was due to expire on 14.5.2016 and initially, Ext.P3 notification was issued and on its cancellation, Writ Appeal No.2316 of 2017 : 3 : Ext.P1 notification was issued on 10.8.2016, inviting applications from eligible candidates. The appointment of whole-time members in the Commission is to be made in terms of Rule 17 of the Kerala Consumer Protection Rules, 2005 which reads thus: _“17. Appointment of whole-time members in the State Commission - (1) The President of the State Commission shall be appointed by the Government in consultation with the Chief Justice of the High Court of Kerala._ _(2) Appropriate panel of candidates for consideration of appointment as judicial members to the State Commission shall be called for by the Department in charge of Consumer Affairs in Government from the High Court of Kerala._ _(3) In the case of other members of the State Commission, appropriate panel of candidates for consideration of appointment shall be called for by the Department in charge of Consumer Affairs in Government from the concerned District Collectors and the District Collectors may, after due publicity, furnish a short listed panel of candidates, not exceeding three candidates per vacancy, with relevant documents and details to the Government after due verification and scrutiny of the qualification and other eligibility criteria prescribed in the Act and these Rules:_ Writ Appeal No.2316 of 2017 : 4 : _Provided that the Government (Department dealing with the Consumer Affairs) may, if necessary, advertise directly for the purpose._ _Provided further that the panel so obtained, after further scrutiny and short-listing, shall be placed before the Selection Committee at the appropriate time by the convener of the Selection Committee. The Secretary to Government in charge of the Department dealing with Consumer Affairs in the State shall be the convener of the Selection Committee:_ _Provided also 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 finalized, shall be sent for consideration of appointment by the Government.”_ 5. In response to the notification, 53 applications were received. Among the 53 applicants, 49 were found to be eligible and were called for interview. It would appear that 35 candidates turned up and were interviewed by the Selection Committee which consisted of the President of the State Commission, Secretary in charge of the Department of Consumer Affairs and the Secretary (Law) of the State Government. The interview went on for two Writ Appeal No.2316 of 2017 : 5 : days and the Selection Committee forwarded to the State, a panel consisting of three candidates, who were chosen as the most suitable among the candidates interviewed. 6. Subsequently, the Government issued Exts.P4 and P5 orders, ordering that the selection procedure taken for appointment of the Member of the State Commission stands cancelled. This was primarily for the reason that the candidates were not shortlisted before interview. In pursuance thereof, Ext.P6 notification was issued inviting applications afresh. It was thereupon that the writ petition was filed impugning the validity of Exts.P4 to P6, which resulted in the judgment of the learned Single Judge. In the judgment under appeal, the learned Single Judge repelled the challenge against Rule 17(3) and held that the Rule being directory, the absence of shortlisting was not fatal to the panel prepared and on that basis, the learned Single Judge has directed that the selection process initiated in pursuance of Ext.P1 Writ Appeal No.2316 of 2017 : 6 : notification be completed. It is this judgment, which is challenged before us. 7. Heard the Additional Advocate General appearing for the appellants and the learned counsel appearing for the first respondent/ writ petitioner. 8. The first contention raised by the learned Advocate General was that going by the provisions contained in Rule 17(3), scrutiny and short listing of the panel obtained is mandatory and that such a shortlisting has been incorporated in the Rules with the obvious purpose to select the best suitable among the applicants. In support of this plea, learned Advocate General referred us to the judgment of the Apex Court in _**Madhyapradesh Public Service Commission v. Naveen Kumar Potadar and another [1994 (6) SCC 293]**_ , and _**Siraj K.H. v. High Court of Kerala and others [2006 (6) SCC 395]**_ . The second contention raised was that it was taking into account the violation of Rule 17(3) and the fact that instead of Writ Appeal No.2316 of 2017 : 7 : submitting a panel, the Selection Committee had submitted a rank list, the Government has consciously decided not to accept the recommendation and that such a decision, according to him, is for valid reasons and, therefore, was beyond challenge in a proceedings under Article 226 of the Constitution of India. To substantiate this plea, learned Additional Advocate General relied on the judgment of the Apex Court in _**Chandramohan Nair.S v.**_ . _**George Joseph and others [2010 (12) SCC 687]**_ 9. Insofar as this case is concerned, it is the accepted position that after scrutiny of applications of the 53 applicants, 49 were identified as eligible candidates. Without doing any further shortlisting, all the 49 candidates were called for interview and among them, 35 candidates appeared for the interview. It is relying on this fact that the contention is raised that in the absence of the mandatory shortlisting, the recommendation made by the Selection Committee is illegal. According to us, this plea has been rightly Writ Appeal No.2316 of 2017 : 8 : negatived by the learned Single Judge. A reading of the proviso to Rule 17(3) shows that when a panel is obtained, it has to be scrutinised and the Rule also provides for shortlisting. However, such shortlisting need not, in all circumstances, be necessary. As rightly pointed out by the learned Single Judge, in a given situation if the applications received are less than the number of vacancies notified or equal to the number of vacancies received or the applications received are not large in number, there is no need to shortlist the candidates. Therefore, shortlisting is not to be resorted to in each and every case, but only in cases where it is necessary to restrict the number of applicants so that there can be an effective process of selection, in which the best among the candidates can be identified and chosen. 10. Insofar as this case is concerned, it appears that the authorities have decided to proceed without shortlisting and to consider all the eligible candidates to the vacancy notified. When Writ Appeal No.2316 of 2017 : 9 : the Rule is not a mandatory one, in the absence of any malafides shown on the part of the authorities and in the absence of any indication that the selection process is vitiated, mere absence of shortlisting by itself cannot be relied on to indicate that the panel finalised is illegal. In such a situation, the learned Single Judge was fully justified in holding that the absence of shortlisting cannot be relied on to conclude that the selection process is vitiated. 11. Insofar as the judgments that are relied on by the learned Additional Advocate General are concerned, _**Madhyapradesh Public Service Commission v. Naveen Kumar Potadar and another [1994 (6) SCC 293]**_ is a case where, 9 posts of Presiding Officers of the Labour Courts were notified to be filled up. In response to that, 148 applications were received, which were shortlisted and 71 applicants were called for an interview. It was challenging the shortlisting, the writ petitions were filed and were allowed by the High Court, taking the view that so long as the Writ Appeal No.2316 of 2017 : 10 : candidates met the statutory qualifications, they were entitled to be considered for the selection. It was this judgment, which was reversed by the Apex Court and in the course of the judgment, the Apex Court has highlighted the need for short listing of candidates and according to the Supreme Court, interviews must be carried out in a thorough and scientific manner and that this was possible only if the number of candidates is restricted. To our mind, in so far as this case is concerned, there is nothing to indicate that for any reason, the selection process is vitiated and, therefore, we do not think that the judgment relied on has any application to the facts of this case. 12. Similar is the case _**Siraj K.H. v. High Court of Kerala and others [2006 (6) SCC 395]**_ , which also highlighted the purpose and object of interview. In the facts of this case, we do not think that a more detailed reference of the judgment is necessary. Writ Appeal No.2316 of 2017 : 11 : 13. As already stated one other contention of the learned Additional Advocate General is that the Selection Committee, instead of preparing a panel, has made a rank list. According to him, taking note of this aspect and the violation of Rule 17, that the Government have taken a conscious decision to abandon the selection process and not to accept the recommendation of the Selection Committee. It was contended that such a decision taken on valid consideration was beyond challenge in a proceedings under Article 226 of the Constitution of India. 14. Insofar as the issue of ranking is concerned, first of all neither in Ext.P4 nor in Ext.P5 has the Government relied on such a reason to cancel the selection process initiated in pursuance of Ext.P1 notification. Law is settled that the validity of the Government Order has to be judged in the light of the reasons stated in the order and that such reasons cannot be supplemented through affidavits or otherwise. Therefore, in the absence of Writ Appeal No.2316 of 2017 : 12 : assigning ranking as a reason for cancellation of the selection process neither in Ext.P4 nor in Ext.P5, this contention now pressed into service cannot be accepted. As far as violation of Rule 17 is concerned, we have already negatived this contention in the earlier part of the judgment. 15. If that be so, the decision to cancel the selection initiated pursuant to Ext.P1 is vitiated for extraneous considerations and, therefore, rightly interfered by the learned Single Judge. We do not find any merit in the appeal. Appeal fails and it is dismissed. _sd/-_ **ANTONY DOMINIC, ACTING CHIEF JUSTICE** _sd/-_ **DAMA SESHADRI NAIDU, JUDGE** _jes_