Sri Ginka Reddy Sekhar vs Gollakaram Ravi Sankar on 25 April, 2025

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Andhra Pradesh High Court - Amravati

Sri Ginka Reddy Sekhar vs Gollakaram Ravi Sankar on 25 April, 2025

1. The present Writ Appeal is filed questioning the Order dated 15.11.2024 passed in W.P.No.40274 of 2022 whereunder the appointment of the Appellant/Respondent No.5 as the President, District Commission, SPSR Nellore District was set-aside.

2. The parties are referred to as they were arrayed in the Writ Petition. This appeal was heard along with a batch of appeals and case law was cited by the Counsel and Senior Counsel appearing for the respective parties. As facts in each appeal are not similar, separate Judgments are being passed addressing the contentions advanced.

3. The introductory facts:-

A Notification was issued on 17.03.2021 by the State of Andhra Pradesh vide Roc.No.3/DC-P/Sectt/CS-II Dept/2020 inviting applications to fill up vacant posts of Presidents of District Commissions of Ananthapuramu, Tirupathi, Kakinada, Rajahmundry, Guntur, YSR Kadapa, Machilipatnam, Ongole, Srirakulam, Visakhapatnam-II, Vizianagaram, Eluru and Chittoor, totalling to 13 vacancies. 4

4. As per the Notification, the applicants should have the qualifications prescribed for the post of a District Judge and should be above 35 years and below 65 years under Sections 28 to 30 of the Consumer Protection Act, 2019. The procedure for selection is that the Selection Committee shall, on the basis of the assessment made by it in the interview and after satisfying the eligibility criteria and after taking into account the suitability, record of past of performance, integrity and adjudicatory experience, will recommend a panel of names of applicants for appointment as Members/Presidents from amongst the applicants in the order of merit for approval to the State Government and for issuance of appointment orders to the selected applicants.

5. The Selection Committee shortlisted the applicants and conducted interview and after considering the applications recommended the individuals in the order of merit based on the marks awarded in the interview. Out of the appointments made, the dispute is restricted to the Nellore, Guntur, YSR Kadapa and Chittoor District Commissions.

6. Out of the recommended candidates for appointment to the post of District President/Member, the Respondent-State issued appointments contrary to the order of merit even though nothing detrimental was noted against the Writ Petitioner contrary to the order of merit vide G.O.Rt.No.27, Consumer Affairs, Food & Civil Supplies (CS.II) 5 Department, Dated 24.05.2022. Hence, the Writ Petition was filed questioning the appointment.

7. In the present case, the order of merit for appointment to the post of President of Nellore District Commission, SPSR Nellore District is as follows:

LIST OF CANDIDATES SHORTLISTED FOR FURTHER PROCESS FOR THE POST OF PRESIDENT, DISTRICT COMMISSION, NELLORE.

     Sl.     Application     Name of the        Marks         Marks         Marks       Total
     No.        No.           applicant      allotted by   allotted by   allotted by   Marks
                                              Hon'ble      Secretary,    Secretary,    allotted
                                              Judges       CA, F&Cs          Law
     1.          7         Sri Gollakaram          7             7             8         22
                           Ravi Sankar
     2.          6         Ms Chollangi          6             6             6           18
                           Vani Bala
     3.          5         Sri Ginka Reddy       5             5             5           15
                           Sekhar

8. Contrary to the same, the person at S.No.3 was appointed. In the affidavit filed in support of Writ Petition, the Writ Petitioner pleaded that he is a practising Advocate and had served as Additional Public Prosecutor for VI Additional District Judge from 2005 to 2010 and had received service awards as the best Additional Public Prosecutor from the District Administration. It was also pleaded that the Writ Petitioner was a trained Mediator by the Legal Services Authority and High Court Legal Services Committee and has been conducting meditations before the District Legal Services Authority, Ongole. It was contended that the Respondent No.5 was working as Special Judicial II Class Magistrate in YSR Kadapa District by the date of notification and being a non-practising Advocate, is 6 not qualified to be a District Judge, which is the criteria prescribed for appointment as President of the District Consumer Commission.

9. The Respondent No.5 filed his counter contending that he was enrolled as an Advocate from the year 2002 with Enrollment No.AP/97/2002 at Bar Council of Andhra Pradesh and had practised till the year 2020. It was further pleaded that the Respondent No.5 had worked as Legal Aid Counsel in the Junior Civil Judge's Court, Lakkireddipalle, Annamayya District from the year 2013 to 2016 and also worked as Assistant Government Pleader in the same Court from the year 2016 to 2020 apart from being a Legal Advisor for Kadapa Consumer Protection Council (Association), Kadapa from the year 2006 to 2020.

10. It was further pleaded that the Respondent No.5 was appointed as Special Judicial Second Class Magistrate, Rayachoti with a consolidated honorarium of Rs.15,000/- per month and was appointed as President, District Consumer Disputes Redressal Commission, SPSR Nellore District vide G.O.Rt.No.27, Consumer Affairs, Food & Civil Supplies Department, dated 24.05.2022 and he resigned for the post of Special Judicial Second Class Magistrate, Rayachoti on 31.05.2022. According to the Respondent No.5, he is entitled to be appointed as District Judge since he has practised for more than 17 years and had assumed office after resigning as Special Judicial Second Class Magistrate. 7

11. The Respondent No.5 contended that the recommendation of the panel of names by the Selection Committee is subject to verification and credentials and antecedents and the Writ Petitioner was appointed only after the said exercise and therefore the appointment of Respondent No.5 cannot be faulted.

12. The Respondent-State filed its counter contending that the appointment was made after considering the antecedent report and therefore there is no merit in questioning the appointment of the Respondent No.5. However, there is no plea in the Counter Affidavit that the Petitioner was facing any trial for grave offence under IPC/BNS.

13. The learned Single Judge after referring to Rule 6 of the Rules held that the antecedent report relied on by the Respondent No.5 is not in consonance with the Circular Memo vide Cir. Memo No.132/SC.B/A1/2012-I, General Administration (SC.B) Department, dated 15.11.2012 and does not contain any signature of any authority, set-aside the appointment of Respondent No.5 and the Official Respondents were directed to obtain fresh credentials/antecedents as per the Circular Memo dated 15.11.2012 and in the meantime, the Official Respondents were directed to place an in-charge to avoid inconvenience to the District Commission proceedings. The Official Respondents were directed to issue appointment orders on the basis of the 8 credentials/antecedents and the time calendared for compliance was two months. Hence, the present Writ Appeal.

14. Contentions:- Heard Sri M. Vijaya Kumar, learned Senior Counsel assisted by Sri Dheera Krishna, learned counsel for the Appellant and Sri Pavan Kumar Pasupuleti, learned counsel for the Respondent/Writ Petitioner and the learned Additional Advocate General.

15. The counsel for the Appellant contended that the rules provide for discretion to the State for appointment among the panel of names of candidates recommended by the Selection Committee depending on the antecedent report. The counsel for the Appellant emphasized on Rule 6(11) of the Rules to substantiate his plea that the State Government shall verify the credentials and antecedents of the candidates before issuing appointment orders. It was contended that in this particular case the antecedent report received against the Writ Petitioner was not satisfactory and there were doubts regarding her integrity and therefore, the appointment of the Appellant/Respondent No.5 cannot be faulted. It was further contended that the State Government has discretion to appoint Members from the selection panel and choice of the State Government cannot be questioned for not following the order of merit.

16. The counsel for the Appellant further contended that the Circular Memo dated 15.11.2012 is not relevant as even assuming that the antecedent report is contrary thereto, the same is not of much relevance since the core content of the report was taken note by the State Government before issuing appointment order. It was further contended that the State Government has discretion to appoint Members from the Selection Panel and the choice of the State Government cannot be questioned for not following the order of merit.

17. The counsel for the Respondent/State contended that the appointment was made after receiving the antecedent reports of the recommended candidates and that there is no violation of any Circular Memo. It was contended that Writ Petitioner was ineligible as per Rule 5(v) of the Rules in view of adverse antecedent report. Further, it was contended that the antecedent report was sent along with a covering letter by the concerned authority to the State Government and therefore the antecedent report cannot be said to be not in the prescribed format.

18. The counsel for the Respondent/Writ Petitioner contended that the antecedent report relied upon by the Respondent/State is running contrary to the antecedent report furnished by the then Superintendent of Police vide C.No.1358/VR-SB/KDP/2021 sent to the Director General of Police, Andhra Pradesh for verification of the antecedents of the Petitioner along with other persons, who were shortlisted for interview to 10 the post of President of District Consumer Forum, YSR Kadapa. As per the said report, there is no adverse remark regarding the character and conduct of the Writ Petitioner.

19. The counsel for Respondent further contended that a reading of the antecedent report relied on by the Appellant and Respondent- State shows that the same is inconsistent and wholly unreliable as the same does not have signature of any individual verifying the correctness of the report and that it is apparent that the antecedent report was customised to suit for appointment of Respondent No.5.

20. The counsel relied upon Division Bench Judgment of Punjab and Haryana High Court in Ashish Kumar Grover and Others vs. State of Punjab and Others1, dated 15.02.2024 which was confirmed by the Hon'ble Supreme Court in SLP (Civil) Diary No.11196 of 2024 dated 01.04.2024. The other cited judgements were the Division Bench Judgment of Punjab and Haryana High Court in Urvasi Agnihotri vs. State of Punjab2 and the Division Bench Judgments of Kerala High Court in State of Kerala vs. K. Reghu Varma & Others3 and N. Premkumar vs. State of Kerala4 1 2024 LawSuit (P&H) 323 2 2024 LawSuit (P&H) 447 3 2009 SCC OnLine Ker 3620 4 2015 SCC OnLine Ker 25225 11

21. Issues:- After hearing the respective counsel, the issue that falls for consideration is as follows:-

Whether the State Government had exceeded its scope under the Rules in appointing President/Members of District Consumer Forum?

22. Reasoning:-

The procedure for appointment to the post of President of the District Consumer Forum is prescribed in Rule 6 of the Rules. The Rule 6 is extracted below for ready reference:-

"6. Procedure of appointment.--

(1) The President and members of the State Commission and the District Commission shall be appointed by the State Government on the recommendation of a Selection Committee, consisting of the following persons, namely: -

(a) Chief Justice of the High Court or any Judge of the High Court nominated by him;

(b) Secretary in-charge of Consumer Affairs of the State Government -

Member;

(c) Nominee of the Chief Secretary of the State--Member. (2) The Secretary in-charge of Consumer Affairs of the State Government shall be the Convener of the Selection Committee. (3) No appointment of the President, or of a member shall be invalid merely by reason of any vacancy or absence in the Selection Committee other than a vacancy or absence of the Chairperson. 12 (4) The process of appointment shall be initiated by the State Government at least six months before the vacancy arises. (5) If a post falls vacant due to resignation or death of a member or creation of a new post, the process for filling the post shall be initiated immediately after the post has fallen vacant or is created, as the case may be.

(6) The advertisement of a vacancy inviting applications for the posts from eligible candidates shall be published in leading newspapers and circulated in such other manner as the State Government may deem appropriate.

(7) After scrutiny of the applications received till the last date specified for receipt of such applications, a list of eligible candidates along with their applications shall be placed before the Selection Committee. (8) The Selection Committee shall consider all the applications of eligible applicants referred to it and if it considers necessary, it may shortlist the applicants in accordance with such criteria as it may decide. (9) The Selection Committee shall determine its procedure for making its recommendation keeping in view the requirements of the State Commission or the District Commission and after taking into account the suitability, record of past performance, integrity and adjudicatory experience.

(10) The Selection Committee shall recommend a panel of names of candidates for appointment in the order of merit for the consideration of the State Government.

(11) The State Government shall verify or cause to be verified the credentials and antecedents of the recommended candidates. 13 (12) Every appointment of a President or member shall be subject to submission of a certificate of physical fitness as indicated in the annexure appended to these rules, duly signed by a Civil Surgeon or District Medical Officer.

(13) Before appointment, the selected candidate shall furnish an undertaking that he does not and will not have any such financial or other interest as is likely to prejudicially affect his functions as a President or member.

23. Under Rule 6(8) and (9), the Selection Committee is given the liberty to prescribe the criteria for shortlisting of eligible applicants and formulate the procedure for recommendation after taking into account the suitability, record of past performance, integrity and adjudicatory experience. In the present case, in the process of shortlisting of applicants for interview, the Selection Committee having liberty to formulate the procedure for recommendation had sought for antecedent report from the State Government as a criteria for shortlisting the applicants for interview and thereupon recommended candidates after taking into account their suitability, record of past performance, integrity and adjudicatory experience.

24. The scope of the State Government under Rule 6(11) is to verify the antecedents and credentials of the recommended candidates i.e. to examine whether recommended candidates suffer any disqualification prescribed in Rule 5. The Rule 5 reads as under:

5. Disqualification for appointment of President or member of State Commission and District Commission. - A person shall be disqualified for appointment as the President or a member of a State Commission or District Commission if he--

(i) has been convicted and sentenced to imprisonment for an offence which involves moral turpitude; or

(ii) has been adjudged to be insolvent; or

(iii) is of unsound mind and stands so declared by a competent court; or

(iv) has been removed or dismissed from the service of the State Government or Central Government or a body corporate owned or controlled by such Government; or

(v) has, in the opinion of the State Government, such financial or other interest as is likely to prejudicially affect his functions as the President or a member.

25. The above extracted Rule has facets of eligibility as well as suitability. The Rules 5 (i),(ii),(iii) and (iv) are aspects of eligibility and matters of fact, whereas Rule (v) falls in the domain of suitability and a matter of opinion.The Hon'ble Supreme Court in Registrar General, High Court of Madras Vs R. Gandhi and Others explained the distinction between eligibility and suitability as under;

"As stated above, "eligibility" is a matter of fact whereas "suitability" is a matter of opinion."

26. There would not be any issue for bypassing the recommendations in the order of merit of the Selection Committee if the individuals recommended suffer from disqualifications under Rule 5 (i), (ii), (iii) and

(iv) of the Rules as they would be documented and are aspects of eligibility.

27. The grey area in Rule 5 is the sub-rule(v) which is quite uncontrolled and enables the State Government to examine the suitability and integrity of the recommended candidates even though the said function is the exclusive domain of the Selection Committee under Rule 6(9) of the Rules as stated above.

28. It is to be noted that aspects prescribed in Rule 5(v) come under "Suitability" and within the scope of the Selection Committee as recognised in parallel legislations. The Section 85 of the Electricity Act, 2003 provides for selection of Chairperson and members of the Electricity Regulatory Commission. As per Section 85, a Selection Committee will be constituted for selection of Chairperson and members and the mandate of the Selection Committee under Section 85(5) is verbatim similar to Rule 5(v) of the Rules. The Section 85(5) of the Electricity Act, 2003 reads as under:

"(5) Before recommending any person for appointment as the Chairperson or other Member of the State Commission, the Selection Committee shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as such Chairperson or Member, as the case may be."

29. Ideally, the Rule 5(v) should have been included in Rule 6 of the Rules within the exclusive scope of Selection Committee. Coming back, in the event, the State Government after receiving the antecedent report is of the opinion that candidate ranked No.1 in the order of merit is not suitable, there would be a conflict of opinion vis-a-vis suitability and integrity of the recommended candidates. The superimposed opinion of the State Government on suitability and integrity gives scope for favouritism and allied allegations apart from tilt in the balance in favour of the State in making appointments to judicial posts.

30. Prior to the formulation of the present Rules, the Hon'ble Supreme Court in State of Uttar Pradesh And Others vs. All Uttar Pradesh Consumer Protection Bar Association5 had appointed a Committee presided by Justice Arijit Pasayat to examine the shortcomings in the functioning of the Consumer Forums. The said Committee inquired extensively regarding functioning of consumer forums in a number of States including Telangana and Andhra Pradesh and noted the political and bureaucratic influence in the selection of presiding members. The Hon'ble Supreme Court after referring to the Committee's report directed the Union Government to frame rules regarding appointment of members in District, State and National Consumer Forums. 5 (2017) 1 SCC 444 17

31. Initially, the Section 22E regarding appointments to National Consumer Forum alone was introduced into the Act of 1986 under the Finance Act, 2017. This amendment vide Finance Act, 2017 was subject of challenge before the Constitutional Bench in Rojer Mathew vs South Indian Bank Ltd.6. Thereafter, the Act of 1986 was repealed and Consumer Protection Act, 2019 was introduced and the Central Government framed Rules regarding appointments on 15.7.2020 and the State Government also framed verbatim similar Rules under Section 102 of the Act, 2019. The above was only to narrate the purpose of the present Rules i.e. to bear in mind the effort of the stakeholders to bring in transparency to the selection process, so that we do not go back in time.

32. Considering this overlap of opinion regarding suitability and integrity under Rule 5(v) and Rule 6(9) of the Rules, a workable view has to be adopted so as to maintain the primacy to the recommendation and avoid politico-executive overreach in the manner of appointments. The Hon'ble Supreme Court in H.S. Vankani v. State of Gujarat7 after referring to precedents held at paragraph 48 as under:

"48. The above legal principles clearly indicate that the Courts have to avoid a construction of an enactment that leads to an unworkable, inconsistent or impracticable results, since such a 6 (2020) 6 SCC 1 7 (2010) 4 SCC 301 18 situation is unlikely to have been envisaged by the rule-making authority. The rule-making authority also expects rule framed by it to be made workable and never visualises absurd results."

33. Therefore, in cases where the Government is of the opinion that a particular individual ranked first in the order of seniority is not considered to be fit for appointment as Chairman/member on account of antecedent report vis-a-vis suitability and integrity, then such a report along with the opinion of the State Government should be placed before the Selection Committee for reconsideration of order of merit. If the Selection Committee after taking note of the antecedent report and the opinion of the Government may still recommend the said individual and then the Government is bound to appoint the individual.

34. This procedure of going back to the Selection Committee is required in appointments of this nature, firstly for the reason, no other service rule enables the State Government to re-evaluate the suitability and integrity after recommendation by the Selection Committee, secondly to avoid politico-executive overreach and thirdly to maintain primacy to the recommendation made by Selection Committee headed by the Chief Justice or his nominee Judge.

35. One exception to the above paragraph is when the recommended candidate is facing trial in a grave offence either under IPC/BNS etc., It would be odd for the State Government to appoint an individual adorning the judicial post while undergoing trial in a criminal case.

36. The Hon'ble Supreme Court in Kavita Kamboj v. High Court of Punjab & Haryana emphasized the requirement of consultation in the appointment of District Judges as the High court is best placed to assess the suitability. Though, the said case pertains to appointment of District Judges, the paragraph 66 thereof provides for a well balanced approach in the manner of appointments to judicial forums by ensuring primacy to the order of merit of recommended candidates.

"66. In matters of appointment of judicial officers, the opinion of the High Court is not a mere formality because the High Court is in the best position to know about the suitability of candidates to the post of District Judge. The Constitution therefore expects the Governor to engage in constructive constitutional dialogue with the High Court before appointing persons to the post of District Judges under Article 233."

37. The Division Bench Judgments of Punjab and Haryana High Court i.e. Ashish Kumar Grover and others Vs State of Punjab and others and Urvashi Agnihotri Vs State of Punjab cited by the counsel for the Writ petitioner though are factually in a slightly different factual scenario, 20 but the primacy of the recommendation of the Selection Committee was upheld. The Division Bench Judgments of Kerala High Court cited above were rendered while considering the Rules for appointment framed under the Consumer Protection Act, 1986. In those Rules, the Selection committee was headed by the Chairman of the State Consumer Forum and a panel was recommended for appointment. There was no requirement of order of merit in those Rules. As there is substantial variance in the present rules, the said Judgments are not of relevance.

38. In that view, it is beyond doubt that the State Government had exceeded the discretion to appoint President/Members of Consumer Forum by superimposing their opinion on suitability and appointing the Appellant. The issue is accordingly answered.

39. In the light of the above, the Writ Appeal is disposed of with the following directions:

(i) The conclusion arrived at by the learned Single Judge in setting aside G.O.Rt.No.27 dated 24.05.2022 to the extent of appellant is upheld;

(ii) The direction to obtain fresh credentials/antecedents report from the candidates and State Government to reconsider the same is set- aside;

(iii) A Selection Committee shall be re-constituted as per the Rules within a period of one month;

(iv) The Second antecedent report, opinion of the State Government and any other information as sought shall be placed before the Selection Committee for re-consideration.

(v) As the Judicial work in the concerned Consumer Forum is affected, the above mentioned exercise shall be completed in two (02) months time;

There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed.

____________________ B. KRISHNA MOHAN, J __________________ NYAPATHY VIJAY, J Date: 25.04.2025 IS 22 THE HONOURABLE SRI JUSTICE B. KRISHNA MOHAN AND THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY WRIT APPEAL NO.942 of 2024 Date: 25.04.2025 IS

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Andhra Pradesh High Court - Amravati