Andhra HC (Pre-Telangana)
V. Venkataiah Goud vs Government Of A.P., Hyderabad And ... on 31 December, 1999
Equivalent citations: 2000(2)ALD63
ORDER
1. Heard the learned Counsel for the petitioner, learned Government Pleader for Civil Supplies for respondent No. 1 and learned Counsel for respondent No.2.
2. The writ petition is filed assailing the notification in Dis. No.1173 of 1999 dated 31-3-1999 issued by the second respondent calling for applications for the post of Male Member in District Consumer Forum, Mahabubnagar without appointing the petitioner as per the recommendations of the Selection Committee made pursuant to the earlier notification as illegal.
3. In the affidavit filed in support of the writ petition the petitioner avers that Registrar, State Consumer Redressal Commission, second respondent herein issued notification in Dis. No.4414 of 1998 dated 13-10-1998 calling for applications from the eligible and qualified candidates for the post of Male Member in the District Consumer Forum, Mahabubnagar. The eligibility for the post of Male Member in District Forum is, one should be aged below 65 years and he shall be a person of ability, integrity and standing, and having adequate knowledge or experience of, or has shown capacity in dealing with, problems relating to Economics, Law, Commerce, Accountancy, Industry, Public affairs or Administration. Pursuant to the said notification, the petitioner has made an application on 23-10-1998 to the second respondent and the second respondent issued a call letter requiring the petitioner to attend for the interview conducted by the selection committee consisting of Sri H.S. Bhahma, Law Secretary and President of Consumer Forum. The petitioner claims to have fared welt in the interview and that he was recommended for appointment as member for the District Consumer Forum.
4. Thereafter, the Government of Andhra Pradesh issued proceedings in Memo No.3216/CS-II/98 dated 17-12-1998, wherein the District Collector and the Superintendent of Police, Mahabubnagar were requested to arrange for verification of the antecedents and the character of the petitioner and ask them to report by 20-12-1998. The petitioner states that the said authorities had sent report that were favourable to the petitioner and that he was expecting appointment order for the post of Male Member in the District Consumer Forum, Mahabubnagar. However, the second respondent issued notification in Dis. No.1173 of 1999 dated 31-3-1999 calling for applications from the eligible candidates for the, post of Male Member in the District Consumer Forum, Mahabubnagar. Hence, the writ petition.
5. The second respondent has filed counter-affidavit. According to which, the State Government in its Memo No.32I6/ CS-II/98 dated 16-3-1999 had informed the Commission that the Government had not accepted the recommendations of the selection committee and advised to issue fresh notification for appointment of vacant posts of the members of District Forum and send recommendations to the selection committee urgently. In view of the aforesaid letter of the Government only, the Commission had issued the impugned Notification in Dis. No.1173 of 1999 dated 31-3-1999 calling for applications. It has further been categorically stated that the State Government has no power to reject the recommendations made by the selection committee; that the State Government is bound by the recommendations having regard to the scheme of appointing the President and members of the State Commission/District Forum; that the instrumentalities are statutorily created exercising the judicial functions and that there would be no finality to selections if the recommendations made by the selection committee are rejected in the manner done in the present case.
6. On the contrary, the first respondent i.e., the State Government in its counter-affidavit states that as per Section 10(1-A) of the Consumer Protection Act (the 'Act' for brevity) State Government is the appointing authority for the members of the District Forum on the recommendations of the selection committee duly constituted. The appointment orders will be issued only after receipt of the antecedents from the Police Department of the concerned district. The duty of the selection committee is only to recommend the candidates for approval of the Government as per procedure and the State being tlie appointing authority can either accept or reject the recommendations of the selection committee and call for applications from the eligible candidates with greater efficiency in the interests of State and public. It is further stated that the Government after careful consideration accepted 14 candidates out of 19 candidates recommended by the selection committee in the interest of public and directed the second respondent to call for the fresh applications for appointment of the remaining 5 vacancies. The petitioner was one among rejected.
7. The undisputed basic facts are:
(a) The petitioner had applied for appointment as Male Member of the District Forum, Mahabubnagar. The bio-data reveals various positions he held earlier, qualification, age etc.
(b) He is eligible for the appointment as Member of the District Forum.
(c) The Government of Andhra Pradesh Food Civil Supplies and Consumer affairs Department through Memo N0.3216/CS-II/98 dated 17-12-1998 informed the District Collector and the Superintendent of Police, Mahabubnagar district that the petitioner was selected for the appointment of male member of the District Consumer Forum and those authorities were requested to arrange verification of the antecedents and character of the petitioner and send a report.
(d) The Dislrict Collector, Mahabubnagar vide proceedings No.D4/8497/98 dated 11-1-1998 informed the first respondent, that necessary enquiries into the antecedents conducted by the Superintendent of Police, Mahabubnagar reveal that the petitioner, who was selected as a member of the District Forum, has not come to any adverse notice either politically, criminally or communally in the district as per records.
8. The relevant material pressed into service by the petitioner with regard to the above facts were not disputed by the second respondent much less the first respondent. Therefore, I deem that the respondents have admitted the said material.
9. The contention of the petitioner firstly is that though he was selected by the duly constituted selection committee and recommended for appointment, the inaction -on (he part of the first respondent in not appointing him as member of the District Forum is illegal and the rejection is only due to extraneous consideration. Further, when once the selection committee had selected and recommended his name for appointment as member of the District Forum after following the entire procedure, the Government has no other option except to appoint him after taking necessary verification with regard to antecedents; secondly the Government after receiving the recommendations from the second respondent and also got verified the antecedents and the character etc., of the petitioner through the District Collector and the Superintendent of Police and despite no adverse reports had been received from them, his name was arbitrarily rejected by the Government without assigning any reasons.
10. On the other hand, Ihe learned Government Pleader firstly contends that the Government being the appointing authority under Section 10(1-A) of the Act, has the power either to accept or reject the recommendations of the Selection Committee and secondly after careful consideration only the State Government selected 14 candidates out of 19 candidates and rejected 5 candidates in the interest of State and public and the petitioner is one among the rejected. In this background it is necessary to refer the scheme of the Act with regard to appointment of Members of the District Forum.
"Section 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;
(b) two other members, who shall be person of ability, integrity and standing, and having adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom, shall be a woman.
(1-A) Every appointment under subsection (1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following namely:
(i) The President of the State Com.
...Chairman,
(ii) Secretary, Law Department of the
State ..Member,
(iii)Secretary in charge of the
Department dealing with consumer
affairs in the State ..Member
(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not eligible for reappointment:
Provided 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 the appointment of a person possessing any of the qualification mentioned in Section 1 in relation to the category of the member who has resigned.
(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."
11. The abovesaid provision has been introduced by Consumer Protection (Amendment) Act, 1993 with effect from 18-6-1993. In this context the old Section 10 of the Act, 1986 also deserves reference, which is 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 to be nominated by the State Government, to be its President;
(b) a person of eminence in the field of education, trade or commerce;
(c) a lady social worker.
(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not be eligible for reappointment:
Provided 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 the appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who has resigned.
(3) The salary or honorarium and other allowance 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."
12. A close comparison of these two provisions reveals a distinct and conceptual difference with regard to the appointment of members of the District Forum and the legislative intendment. As per the unamended Section 10 of the Act, the members of the District Forum including the President have to be nominated by the State Government and thereby vesting complete authority in the State to nominate the members of the District Forum, whereas as per Section 10(1-A) of the Amended Act, 1993 it is made abundantly clear that the Government shall appoint the members only after the recommendations of the selection committee consisting of:
(i) The 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.
13. Therefore, as per Section 10(1-A) as amended, all the appointments of the members of the District Forum have to be made only on the basis of the recommendations of such committee by the State. In other words, the authority to the State Government to make appointments is no longer absolute but only subject to the recommendations of the selection committee and explicitly the scope and authority of interference of the State to such appointment of the members of the District Forum directly or indirectly has been narrowed down to the minimum.
14. If the contention of the first respondent that, being the appointing authority under Section 1O(1-A) of the Act, 1993 it can either accept or reject the recommendations of the Selection Committee is accepted, it would only result in redundancy of the scheme and the object of the Amending Act, 1993.
15. The Apex Court in Fair Air Engineers Pvt. Ltd. v. N.K. Modi, , while considering the legal status of the statutory District Forums constituted under the Act opined in clear terms that District Forums being creature of Statute are judicial authorities and the proceedings before such Forums are legal proceedings and accordingly it was held that the District Forums under the Act to be a Court. Therefore, in my view when the District Forum is a Court being a creature of the Statute for its effective functioning, its incumbents must be independent from the executive.
16. In the context of independence of the Forum, being a Court has to be free from the interference of the executive it is necessary to note what the Apex Court observed in S.P. Sampanth Kumar v. Union of India, AIR 1987 SC 386. In the said case Their Lordships while finding fault with the provisions of the Administrative Tribunals Act, 1985 concerning appointment of Chairman, Vice-Chairman and other members on the ground that the Act confers sole and exclusive power to make such appointments on the Government observed as thus:
"..... There is no obligation cast on the Government to consult the chief Justice of India or to follow any particular selection procedure in this behalf. The result is that it is left to the absolute unfettered discretion of the Government to appoint such person or persons, as it likes as Chairman, Vice-Chairman and administrative members of the Administrative Tribunal. ....
if a judicial member or an administrative member is looking forward to promotion as Vice-Chairman or Chairman, he would have to depend on the goodwill and favourable stance of the executive and that would be likely to affect the independence and impartiality of the members of the Tribunal. .....
and that would have a tendency to impair the independence and objectivity of the members of the Tribunal. There can be no doubt that the power of appointment and promotion vested in the executive can have prejudicial effect on the independence of the Chairman, Vice-Chairman and member of the Administrative Tribunal, if such power is absolute and unfettered. If the members have to look to the executive for advancement, it may tend, directly or indirectly, to influence their decision-making process particularly since the Government would be a litigant in most of the cases coming before the Administrative Tribunal....."
17. While making some suggestions to cure the defects in the Administrative Tribunals Act, 1985 the Apex Court observed as follows:
"..... I am, therefore, of the view that the appointment of Chairman, Vice-Chairman and administrative members should be made by the concerned Government only after consultation with the Chief Justice of India and such consultation must be meaningful and effective and ordinarily the recommendation of the Chief Justice of India must be accepted unless there are cogent reasons, in which event the reasons must be disclosed to the Chief Justice of India and his response must be invited to such reasons."
18. The aforesaid ratio, remain untouched in the later larger Bench judgment in L., Chandrakumar v. Union of India, .
19. Therefore, by incorporating the selection criteria and the procedure, the Legislature had made mandatory for the executive to cause selection of persons through a committee on the basis of criteria laid down by the Legislature itself and then appoint them as members in tune with the principle of independence of Forum free from the Executive in tune with the observations made by the Apex Court in Sampanth Kumar's case (supra). Hence, the contention of the first respondent that the Government being the appointing authority lias the absolute power either to accept or reject the recommendations of the selection committee cannot be countenanced.
20. As regards the second contention, I have carefully gone through the entire record. It only indicates that out of 19 candidates 14 candidates were selected and the names of 5 candidates were rejected and the petitioner is one among the rejected. Except saying 'rejected' no other reason whatsoever was assigned for coming to such a conclusion. As already pointed out, the material placed before me by the petitioner which is not disputed by the first respondent shows that the Government of Andhra Pradesh, Food Civil Supplies and Consumer Affairs Department through its proceedings dated 17-12-1998 requested the Collector and Superintendent of Police, Mahabubnagar to arrange for verification of the antecedents and the character of the petitioner on the ground that he was selected for the member of the District Forum, and in response to that the Collector with the assistance of Superintendent of Police, Mahbubnagar informed the first respondent that the enquiry did not reveal any adverse notice either politically, criminally or communally against the petitioner.
21. The above-undisputed material makes obvious that the Government initially had come to the conclusion that the petitioner was fit to be selected since no adverse notice was found. If that be the case, the Government in my view has no option but to accept the recommendations of the selection committee and appoint the petitioner as a member of the Forum. If there were any special reasons for the first respondent to reject the case of the petitioner such reasons must have been spelt out in writing.
22. It is well-established principle that such special reasons need not be communicated to the individual. However, such reasons must imperatively be recorded in writing and made part of the record. In other words, such rejection shall not be an enigma. In the instant case, a perusal of the record reveals that the first respondent did assign any reasons for rejection of the recommendations of the selection committee. The method adopted by the first respondent in rejecting the case of the petitioner for appointment inspite of the undisputed facts already referred to above, is perfunctory and incomprehensible and hence, cannot be sustained.
23. Therefore, the action of the first respondent in my considered view is undoubtedly an act of arbitrariness, contrary to the principles laid down by the Apex Court in Sampanlh Kumar's case (supra) and also would defeat the object and spirit of Section 10(l-A) of the amended Act, 1993. Hence, this Court cannot, in exercise of its power of judicial review, be a silent spectator for sustaining such illegal decision.
24. For the foregoing reasons, the impugned notification dated 31-3-1999 to the extent it relates to the petitioner is liable to be set aside and it is accordingly set aside. The first respondent is directed to reconsider the issue and pass appropriate orders, in the light of the principles stated above, within one month from the date of receipt of a copy of this order.
25. The writ petition is accordingly allowed. No costs.