Punjab-Haryana High Court
Dinesh Bagga vs State Of Punjab And Others on 3 February, 2012
Equivalent citations: 2012 LAB. I. C. 1457, (2013) 121 ALLINDCAS 540 (P&H), (2012) 3 SERVLR 621, (2012) 4 RECCIVR 112, (2013) 2 CIVLJ 92, (2012) 2 PUN LR 423
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
LPA No.1645 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.1645 of 2011 (O&M)
Date of decision:03.02.2012
Dinesh Bagga ..... Appellant
Versus
State of Punjab and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Atul Lakhanpal, Senior Advocate with
Mr.R.S.Chahal, Advocate for the appellant.
Ms.Ritu Punj, Addl.A.G., Punjab
for respondents No.1 and 2.
Mr.A.K.Chopra, Senior Advocate with
Mr.N.D.Kalra, Advocate for respondent No.3.
*****
RAJIVE BHALLA, J The appellant prays for setting aside of judgment dated 22.07.2011, passed in Civil Writ Petition No.16266 of 2010.
Counsel for the appellant submits that though respondent No.3 does not fulfill the eligibility criteria prescribed by Section 16 of the Consumer Protection Act, 1986 (for short the 'Act'), she has been selected and appointed as a Lady Member of the State Consumer Disputes Redressal Commission, Punjab (for short the 'Commission'). Section 16 of the Act provides that apart from a judicial member, there shall be two other members one of whom shall be a woman. It further provides that a member must not be less than 35 years of age, must possess a bachelor's degree from a recognised university and should be LPA No.1645 of 2011 (O&M) -2- a person of ability, integrity and standing and should have adequate knowledge and experience of at least ten years in dealing with problems relating to economy, law, commerce, accountancy, industry, public affairs and administration. Admittedly, respondent No.3 has five years' teaching experience and five years' experience of private tuitions. The experience as a private tutor cannot, by any stretch of imagination, falls within the eligibility criteria of experience, prescribed by Section 16(1)(b)(iii) of the Act. It is also submitted that the certificate of service shows that respondent No.3 has drawn salary, as a teacher, for November, 1998 and from April 2002 to March, 2003 thereby failing to even fulfill experience of five years as a teacher. It is also urged that reply filed on behalf of Registrar of the Commission is evasive and does not answer whether the appellant was eligible. The reply contains an averment that as experience of teaching and tuition etc. was accepted by the selection committee, respondent No.3 was found suitable for appointment to the post of lady member of the Commission. The reply does not contain any averment as to how a person taking private tuitions falls within the criteria laid down in Section 16(1)(b)(iii) of the Act. It is further argued that though the impugned judgment notices the contentions, raised by the appellant, but have not been dealt with. The impugned judgment merely records that the eligibility is very broad and includes personal knowledge and experience in dealing with day to day problems of life relating to economics etc., and does not prescribe a condition that a person should LPA No.1645 of 2011 (O&M) -3- have experience in any particular service or appointment. The learned Single Judge has failed to discern that Section 16(1)(b)(iii) prescribes an eligibility criteria as opposed to suitability and only, if eligible, can a candidate be considered by the selection committee. The learned Single Judge has not dealt with the question whether a person, who claims experience of five years as a private tutor would be eligible in accordance with the spirit and provisions of Section 16 of the Act. While holding that a Court can only examine whether a candidate is eligible, the learned Single Judge has not answered the question whether private tuition of five years would render respondent No.3 eligible in terms of Section 16(1)(b)(iii) of the Act.
Counsel for respondent No.3 submits that respondent No.3 fulfills the eligibility criteria set out by Section 16(1)(b)(iii) of the Act, as she has five years' teaching experience and five years' experience of private tuition. The Act does not exclude a person with experience of private tuitions from the eligibility criteria and merely requires a candidate to have adequate knowledge and experience of ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. The provision is wide enough to include a candidate, who has teaching experience, alongwith experience in private tuitions. A private tutor deals with and helps children in dealing with their day-to-day problems. It is further submitted that a writ for quo warranto is not maintainable at the behest of the appellant as he was neither a candidate nor does he have LPA No.1645 of 2011 (O&M) -4- anything to do with appointment of members of the Commission. Furthermore, the appellant has not placed any material on record to show how the appointment of respondent No.3 affects his rights adversely. Reliance for the latter argument is placed upon a judgment of the Hon'ble Supreme Court in S.Chandramohan Nair V/s George Joseph and others, 2011(2), RSJ, page 42.
Counsel for respondents No.1 and 2 submits that respondent No.3 has experience of five years in teaching and five years in private tuitions. As her experience was accepted by the selection committee, there is no merit in the appellant's arguments that the learned Single Judge has committed an error in dismissing the writ petition and holding respondent No.3 eligible for appointment as a lady member of the Commission.
We have heard counsel for the parties, perused the paper book and the impugnment judgment.
The post of a Lady Member of State Consumer Disputes Redressal Commission, Punjab, Chandigarh, was advertised on 16.10.2009. The eligibility criteria set out in the advertisement, which essentially reproduces Section 16 of the Act, reads as follows: -
"Eligibility: -
i) be not less than thirty five years of age.
ii) possess a Bachelor's degree from a
recognized University; and
iii) Be persons of ability, integrity and
standing, and have adequate knowledge and
experience of atleast 10 years in dealing with
problems relating to economics, law, commerce,
accountancy, industry, public affairs of
LPA No.1645 of 2011 (O&M) -5-
administration."
In response to the advertisement, eight applications including an application filed by respondent No.3 were received. Respondent No.3 claimed eligibility on the basis of following information: -
"4.a) Qualification : M.A. (Economics)
(b) Experience : 5 years (teaching) + 5 years tuition- total No.10."
The application forms were perused by the Registrar of the Commission. The Registrar recorded a note that all applicants are eligible for consideration for appointment as Lady Member of the Commission and if approved, these candidates may be called for interview. The office note was duly approved by the Chairman of the Commission and all eight candidates were invited for interview before a selection committee comprising of the Chairman, the Legal Remembrancer & Secretary to Government of Punjab and a Secretary to Government of Punjab. The candidates were interviewed on 07.12.2009. Out of eight applicants, six appeared for interview. The members of the selection committee awarded separate marks to each candidate under various heads, tabulated the marks obtained by candidates, and recommended the appointment of respondent No.3, as she secured the highest marks. The recommendation of the selection committee was accepted by the State of Punjab and vide order dated 19.12.2009, respondent No.3 was appointed as a whole time Lady Member of the Commission. The petitioner filed a writ petition LPA No.1645 of 2011 (O&M) -6- praying for issuance of a writ of quo warranto, to set aside the appointment of respondent No.3 on the ground that she does not fulfill the eligibility criteria as set out in Section 16 of the Act. The Registrar of the Commission filed a reply admitting that respondent No.3 has five years' teaching experience and five years' experience as a private tutor but averred that as the selection committee has considered and satisfied itself about her eligibility, she was rightly selected. The reply also contains an averment that as tuition work was done by respondent No.3 independently, she was not required to attach any certificate of tuition work. Respondent No.3, on the other hand, filed a reply reiterating her eligibility while pleading that five years' experience as a tutor did not make her ineligible. Respondent No.3 further disclosed the names of a few students, who she claimed to have tutored. Respondent No.3 also pleaded that as the selection committee was fully satisfied about her qualifications, eligibility and ability, the writ petition should be dismissed.
After considering the pleadings and arguments addressed by counsel for the parties, the writ petition was dismissed by holding that the eligibility prescribed under Section 16 of the Act is broad enough to include experience as a private tutor as it would fall within personal knowledge and experience in dealing with day to day problems of life etc. It has also been held that as there was no requirement of furnishing any certificate of experience as a private tutor and satisfaction has been recorded by the selection committee, it does not render respondent LPA No.1645 of 2011 (O&M) -7- No.3 ineligible or her appointment violative of Section 16 of the Act.
Before we proceed to adjudicate the present controversy on merits, it would be appropriate to refer to the nature of a writ of quo warranto, in brief. A writ of quo warranto confers power upon a High Court to examine whether a person occupying a public office is legally qualified or not to hold office or has been appointed in violation of the statutory provision that governs his appointment. A writ of quo warranto will only issue where there is a clear and manifest infringement of legal conditions or procedure prescribed for appointment to a public office. Thus, if the occupant of a public office is found to be ineligible for holding such an office or there is an incurable defect in the procedure adopted for his appointment, a writ of quo warranto may issue to unseat such a person. A court seized of a prayer for issuance of a writ of quo warranto, may refuse to issue such a writ where the petition is vexatious, the appointment suffers from a curable defect, the petition is actuated by ill-will, malice or an ulterior motive or the person, who approaches the court has been set up by someone else with an ulterior/malicious motive to settle scores etc. A writ of quo warranto may be issued at the instance of any person whether any fundamental or any other legal right of such person has been infringed or not. A petitioner, who does not seek to enforce any personal right or claim the performance of any duty towards him, may call upon the court to declare that an ineligible person has usurped a public office. The fact that the petitioner is not a candidate is LPA No.1645 of 2011 (O&M) -8- insufficient to reject a prayer for issuance of a writ in the nature of quo warranto. A writ of quo warranto is an exception to the general rule that only an aggrieved person may apply under Article 226. Having set out, though in brief, the nature of a writ of quo warranto, we would now proceed to deal with the controversy on merits.
The controversy in the writ petition pertains to the eligibility of respondent No.3 viz-a-viz the post of Lady Member of the Commission.
Section 16 of the Act, prescribes the eligibility criteria for appointment of the President and members of the State Commission, and reads as follows: -
"Section 16. Composition of the State Commission.
(1) Each State Commission shall consist of: -
a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President;
[Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;]
b) 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 have the following qualifications, namely; -
i) be not less than 35 years of age;
ii) possess a bachelor's degree from a recognized university; and
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 economic, law, commerce, accountancy, industry, public affairs or administration."
A plain reading of sub-clause (iii) of Section 16(1)(b) reveals LPA No.1645 of 2011 (O&M) -9- that, a candidate has to be a person of ability, integrity and standing and in addition thereto, is required to have adequate knowledge and experience of at least 10 years in ".....dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration......". sub-clause (iii) of Section 16 of the Act, prescribes two sets of eligibility conditions, the first being the ability, integrity and standing of a candidate and the second; adequate knowledge and experience of at least 10 years in dealing with problems relating to the fields set out in sub-clause (iii). Accepting that teaching as a profession falls within one of the fields, referred to in sub-clause
(iii), as the list of professions is illustrative and not exhaustive, we fail to discern even after granting the widest possible latitude, permissible to a judicial interpretation that the fields referred to in sub-clause (iii) could possibly include private tuitions as an acceptable criteria of eligibility, for appointment as a Lady Member of the State Commission. The inclusion of private tuition to school children within the meaning of the words and expressions set out in sub-clause (iii), in our considered opinion, would import an element, into the eligibility criteria, that is neither countenanced nor warranted and therefore alien to legislative intent. It is true that sub-clause (iii) is couched in general terms and may lend itself to an interpretation that a teacher would fall within the fields referred to in sub-clause (iii) but we are unable to accept that a private tutor would fall within the expression "dealing with problems relating to economics, law, commerce, accountancy, LPA No.1645 of 2011 (O&M) -10- industry, public affairs or administration", so as to confer eligibility. Even if we were to go a step further and hold that these fields are merely illustrative and not exhaustive of the fields in which a person must have adequate knowledge and experience of at least 10 years, we cannot but hold that a private tutor would not be eligible under the above provision. While construing a statutory provision, one may take the aid of the principle of Noscitur a Sociis i.e., the meaning of a word is to be judged by the company, it keeps and words and expression take colour from the words that precede and follow the words and expressions that arise for interpretation. We are, therefore, of the firm opinion that private tuitions would not fall within the words and expressions used in sub-clause (iii) of Section 16 of the Act, so as to render such a person eligible for appointment as a Lady Member of the Commission. We cannot loose sight of the fact that such a person would be sitting as a member of the highest Consumer Tribunal in a State and would be required to adjudicate judicial disputes of law and fact.
While dismissing the writ petition, it has been held that the definition is very broad and includes personal knowledge and experience in dealing with day to day problems of life relating to economics etc. We cannot possibly have any quarrel with this general enunciation of the meaning of words appearing in Section 16 of the Act, but after holding as above, the nature of respondent No.3's experience, as a private tutor, was ignored. If experience as a private LPA No.1645 of 2011 (O&M) -11- tutor, which is more often than not unverifiable, is accepted as part of the eligibility criteria, we would, in essence, be called upon to approve an eligibility criteria that is neither countenanced nor warranted by the Statue.
At this stage, we would like to make a reference to the reply filed by the Registrar of the Commission. In response to an averment in the writ petition relating to eligibility of respondent No.3, the Registrar has admitted that she did not append any certificate with her application in support of her claim that she had worked as a private tutor for five years. It is, therefore, apparent that there was no material before the Registrar or the selection committee that could enable them to record satisfaction about her eligibility. The averment in the reply that the selection committee satisfied itself about the experience of respondent No.3 as a private tutor, is, therefore, both, factually and legally incorrect. A perusal of the record reveals that eligibility was considered by the Registrar, and after recording his satisfaction that all candidates are eligible, it was placed before the Chairman of the Tribunal for orders whether these candidates should be called to appear before the selection committee. The Chairman accepted the recommendation. The eligibility, therefore, was ascertained prior to the meeting of the selection committee. The selection committee, as is the norm, merely determined suitability of candidates in accordance with the criteria set out by the selection committee, as referred to in the record. A perusal of the record also reveals that the selection LPA No.1645 of 2011 (O&M) -12- committee did not consider or record any proceedings with respect to eligibility but merely confined themselves to considering suitability of candidates. For the Commission to aver and urge that the selection committee found respondent No.3 eligible, in our considered opinion, is incorrect. We would not like to make any further comment on this averment but satisfied as we are about the eligibility criteria and the fact that a private tutor does not fulfill the eligibility criteria as set out in sub-clause (iii) of Section 16 of the Act, are constrained to hold that respondent No.3 was not eligible for the post of Lady Member.
Another aspect of the case, that requires an answer is based upon an argument that sub-clause (iii) contains a selection criteria on which the selection committee would base its decision thereby contending that sub-clause (iii) sets out a selection criteria and not an eligibility criteria. We have considered this argument but reject it in its entirety as Section 16 of the Act, clearly prescribes qualifications for appointment as member of the Commission thereby laying down an eligibility, as opposed to a suitability criteria. The notice dated 16.10.2009 inviting applications for filling up the post of Lady Member for the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, duly appended with the writ petition, as Annexure P-1, clearly sets out the eligibility criteria in terms of sub-clause (iii) thereby putting paid to the argument that sub-clause (iii) is merely a guiding factor for the selection committee to base its selection and is, not an eligibility criteria.
LPA No.1645 of 2011 (O&M) -13-
A perusal of the impugned judgment reveals that though the learned Single Judge has held that sub-clause (iii) prescribes an eligibility criteria, but while recording opinion, has held that as the selection committee had satisfied itself as to the experience of respondent No.3 as a tutor, she fulfills the eligibility criteria, thereby treating it as a suitability criteria. We would like to once again emphasise that eligibility is prescribed by the Act and suitability is assessed of only such candidates as fulfill the eligibility criteria. The suitability of a candidate does not confer eligibility and vice versa.
The last argument raised by counsel for respondent No.3 is that as the appellant is neither a candidate nor a person adversely affected by the selection of respondent No.3, he has no locus-standi to maintain the petition much less file the present Letters Patent Appeal. In support of this argument, the appellant has pressed into service a judgment of the Hon'ble Supreme Court rendered in S.Chandramohan Nair V/s George Joseph and others, 2011(2), RSJ, page 42. We have perused the said judgment and are in considered agreement. The Hon'ble Supreme Court has held that as the petitioner was a mere front for one of the candidates, his bonafides were suspect. The pleadings in the present petition do not contain any such averment or allegation that would enable to hold that the appellant has been put up by one or the other candidates or that the motives of the appellants are suspect, malafide or that the petition has been filed with malicious intent. We, therefore, reject this contention. LPA No.1645 of 2011 (O&M) -14-
In view of what has been stated hereinabove, we accept the Letters Patent Appeal, set aside order dated 22.07.2011, passed in Civil Writ Petition No.16266 of 2010, allow the writ petition and hold that as respondent No.3 does not fulfill the eligibility criteria as prescribed by sub-clause (iii) of Section 16 of the Act, her selection being illegal is set aside. No order as to costs.
[ RAJIVE BHALLA ]
JUDGE
03.02.2012 [ NARESH KUMAR SANGHI ]
shamsher JUDGE