MEENA VERMAversusSTATE OF HIMACHAL PRADESH AND ANOTHER

690                     [2018] REPORTS
               SUPREME COURT   11 S.C.R. 690               [2018] 11 S.C.R.


A                              MEENA VERMA
                                        v.
            STATE OF HIMACHAL PRADESH AND ANOTHER
                         (Civil Appeal No. 5710 of 2018)
B                            SEPTEMBER 19, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                   DR. D.Y. CHANDRACHUD, JJ.]
            Service Law:
C           Selection – As part time female member of Consumer Disputes
      Redressal Commission – Respondent (Candidate) and the appellant
      (another candidate) obtained equal marks – In the Selection List
      respondent was placed higher than the appellant – List was drawn
      in accordance with performance – State Government selected the
      appellant on the basis of her better public experience – Writ petition
D
      challenging the selection – High Court set aside the selection – On
      appeal, held: As the respondent was higher in the Selection List by
      the Selection Committee on the basis of performance of the
      candidates, she was more suitable than the appellant – Addition of
      public experience, in absence of any Rule or any executive
E     instruction was uncalled for – Selection was rightly set aside by
      High Court.
            Dismissing the appeal, the Court
             HELD: The Selection Committee was presided by the
      President of the Commission and the other members were
F     Principal Secretary (FCS&CA) to the Government of H.P. and
      Principal Secretary (Law) to the Government of H.P. The
      Committee had used the phraseology “On the basis of the
      performance of the candidates”. The panel was drawn for the
      female members. It had placed respondent No. 2 at serial No. 2
G     and the appellant at serial No. 3. The Committee had drawn the
      list in accordance with performance and, therefore, respondent
      No. 2 was more suitable than the appellant. The State Government,
      while issuing the notification, had not ascribed any reasons.
      However, the Principal Secretary had given a note that the

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                                       690
  MEENA VERMA v. STATE OF HIMACHAL PRADESH AND                            691
                    ANOTHER

“present appellant had public experience” and on that basis, the          A
Chief Minister signed the file and the notification was issued.
The matter would have been different had there been a Rule to
enable the State Government to choose a person from the panel.
In the absence of any Rule or any executive instruction, when
the Committee had drawn a panel on the basis of performance
                                                                          B
and placed the candidates in seriatim on the basis of the said
performance, the High Court correctly expressed the opinion
that the addition of public experience was uncalled for. [Para 12]
[698-C-F]
      S. Chandramohan Nair v. George Joseph and others
      (2010) 12 SCC 687 – relied on.                                      C

      State of Kerala and another v. K. Reghu Varma and
      others AIR 2010 Kerala 28 – referred to.
                        Case law reference
AIR 2010 Kerala 28               referred to             Para 7           D
(2010) 12 SCC 687                relied on               Para 7
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5710
of 2018.
      From the Judgment and Order dated 12.12.2017 of the High            E
Court of Himachal Pradesh at Shimla in CWP No. 1571 of 2017
      Ritesh Khatri, Adv. for the appellant.
      Abhinav Mukerji, AAG, H.P., Bihu Sharma, Siddharth Garg, Amit
Singh Chandel, Abhijat P. Medh, Aman Parth, Advs. for the respondents.
                                                                          F
      The Judgment of the Court was delivered by
       DIPAK MISRA, CJI 1. The second respondent, being grieved
by the appointment of the appellant as a part time female member in the
Himachal Pradesh Consumer Disputes Redressal Commission (for short,
‘the Commission’), had assailed the same by way of a Writ Petition        G
being C.W.P. No. 1571 of 2017 preferred under Article 226 of the
Constitution before the High Court of Himachal Pradesh at Shimla. The
High Court, by the impugned judgment and order dated 12.12.2017,
quashed the appointment of the appellant and directed the Commission

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692             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     to consider the case of the writ petitioner stating, inter alia, that she is
      otherwise meritorious and more experienced as compared to the appellant
      for appointment as a member in the Commission. Hence, the appeal by
      special leave.
             2. The facts which are necessary to be enumerated are that on
B     25.04.2016, one post of part time female Member along with other
      vacancies meant for various District Fora was advertised by the Principal
      Secretary (Food, Civil Supplies & Consumer Affairs) of the Government
      of Himachal Pradesh. The advertisement stipulated the qualifications,
      namely, that the candidate shall not be less than 35 years of age; that she
      should possess a Bachelors degree from a recognized University; and
C     that she should be a person of ability, integrity and standing having
      knowledge and experience of at least ten years in dealing with problems
      relating to economics, law, commerce, accountancy, industry, public
      affairs or administration. It was further mentioned therein that the part
      time Member so appointed shall hold office for a term of five years or
D     up to the age of sixty seven years in the case of the Commission and
      sixty five years in the case of District Consumer Forum, whichever is
      earlier. The Selection Committee of which the President of the
      Commission was the Chairman held the interview on 02.07.2016 and
      the Committee recommended four names on the basis of the performance
      of the candidates for the member of the Commission. In the select list,
E     the names of the respondent no. 2 and the appellant appeared at serial
      nos. 2 and 3 respectively. The candidate, who obtained the highest
      mark, was not available for appointment, for she had already been engaged
      against some post in the Himachal Pradesh University. The first
      respondent selected the appellant as a part time member in the
F     Commission. A representation was submitted by the second respondent
      on which no action was taken and, therefore, she approached the High
      Court for redressal of her grievances.
            3. On behalf of the respondent no. 2, the writ petitioner, it was
      contended before the High Court that when the recommendation of the
G     Selection Committee clearly stated that it had prepared a panel on the
      basis of the performance of candidates in the interview and when her
      name was put at serial no. 2, she could not have been ignored.
            4. The first respondent contested the aforesaid stand put forth by
      the writ petitioner and submitted that the writ petitioner and the selected
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  MEENA VERMA v. STATE OF HIMACHAL PRADESH AND                               693
           ANOTHER [DIPAK MISRA, CJI]

candidate had obtained equal marks and the State Government selected         A
the candidate whose name featured at serial no. 3 on the basis of her
public experience. That apart, it was asserted that the duty and
responsibility of the Selection Committee is to empanel the eligible and
suitable candidates for appointment as members of the Commission and
the appointing authority is free to appoint any candidate recommended
                                                                             B
for appointment by the Selection Committee and named in the panel.
According to the first respondent, solely because the writ petitioner was
placed at serial no. 2 and is senior in age to the selected candidate, she
could not claim to be appointed as a matter of right and, therefore, the
appointment of the selected candidate could not be annulled.
      5. The High Court called for the records pertaining to the selection   C
process and the decision taken on the same. The notings in the file are
reproduced as under:-
      “N/155:-
      It has come to the notice that in r/o State Consumer Commission,       D
      the recommended candidate at Sr. No. 1 (Dr. Karuna Machhan)
      has already joined her service on 24.09.2016 in HPU on her
      appointment as Assistant Professor. As such, she may now not
      like to accept this position if offered. .......... Submitted pl.
      Sd/-                                                                   E
      5-10-2016
      Pr. Secy. ((FCS&CA)
      N/156:
      For the State Commission two candidates have equal marks. Based        F
      on public experience Smt. Meena Verma can be appointed. For
      District Forums, N 147 to 150 be seen.
      Sd/-
                                          Principal Secretary
                                          5/10                               G
      Hon’ble Minister F&CS                           Sd/-
                                                  (Minister) 6/10
      Hon’ble CM”

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694             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     6. On the basis of the aforesaid decision, the appellant herein was
      appointed and continued to serve in the Commission as a part time
      member. In the course of hearing, the High Court was not satisfied with
      the reasons as regards the stand pertaining to public experience of the
      selected candidate and directed the Additional Chief Secretary (Food,
      Civil Supplies and Consumer Affairs) to the Government of Himachal
B
      Pradesh to assist the Court. The Additional Chief Secretary made certain
      statements before the High Court which are reflected from the order
      dated 04.12.2017. The said statements are to the following effect:-
            “Mr. Tarun Kapoor, Additional Chief Secretary, Food, Civil Supplies
            and Consumer Affairs to the Government of Himachal Pradesh
C           is present in person.
            We have been informed that as per the practice prevalent, the
            Selection Committee prepares the panel and submit the same to
            the Government for appointment of Member(s) in District
            Consumer Fora and H.P. State Consumer Disputes Redressal
D           Commission, Shimla. In the past also, the Minister/Chief Minister
            has ordered the appointment of such Member(s) without adhering
            to the position of empanelled candidate in the panel so prepared.
            No rules, guidelines or instructions governing the appointment of
            such Member(s) are yet framed. According to Mr. Kapoor, the
E           matter qua framing rules for appointment of the Member(s), District
            Consumer Fora and State Redressal Commission is under
            consideration of the department. It is in this backdrop, this petition
            is to be heard further and for that list on 11.12.2017.”
             7. As the impugned order would show, the High Court further
F     heard the matter and opined that the State Government had discriminated
      against the writ petitioner and its action is arbitrary which invites the
      wrath of Articles 14 and 16 of the Constitution of India. It further
      observed that it is even beyond imagination that the appellant, that is, the
      private respondent before the High Court, is having better public
      experience than the writ petitioner when the latter is senior in age as
G     compared to the former. The High Court was of the view that a person
      senior in age would have better experience in all spheres of life including
      public experience and, therefore, the writ petitioner having enrolled as
      an Advocate in the year 1992 and in effective legal practice since then

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     MEENA VERMA v. STATE OF HIMACHAL PRADESH AND                              695
              ANOTHER [DIPAK MISRA, CJI]

not only in the High Court but also in the State Administrative Tribunal       A
and various quasi judicial authorities including the State Consumer
Disputes Redressal Commission/District Consumer Disputes Redressal
Forum, was certainly well versed with various social problems as
compared to the private respondent who, as per the details in the
documents furnished along with her application, was a post graduate in
                                                                               B
commerce and also did the Master’s degree in business administration,
which qualification she acquired in the year 2012. While the private
respondent was studying up to 2012, the writ petitioner was in effective
legal practice since 1992. The High Court observed that it was not
comprehensible as to what prompted the first respondent to assess her
public experience to be better than that of the writ petitioner. After so      C
saying, the High Court recorded a finding that although the Rules
governing the appointment of the member in the State Commission/
District Consumer Fora had not been framed by the State, yet the Rules
governing the service conditions of the Government employees could be
taken note of. This reason was given to justify the placement of candidates
                                                                               D
on the basis of their performance in the interview by the Commission.
The High Court noted that in a case of bracketed candidates as per the
Government Rules, the senior in age and rank as compared to the
bracketed candidate who is junior in age is to be given priority. It further
observed that though the respondent-State is making the appointment
out of the empanelled candidates to the members of the Commission,             E
yet it is bound to adhere to their merit and the pick and choose policy has
no sanctity in law. It further went on to adjudge the merit of the two
candidates while stating that the writ petitioner was more meritorious,
regard being had to experience in academic, professional and social
spheres as compared to the selected candidate. It distinguished the
                                                                               F
decision rendered by the High Court of Kerala in State of Kerala and
another v. K. Reghu Varma and others1 on the ground that there is a
prevalent Rule in the State of Kerala, while it is not so in the State of
Himachal Pradesh. Placing reliance on the decision in S. Chandramohan
Nair v. George Joseph and others2, the High Court held that the
principles stated therein supported the stand of the writ petitioner           G
inasmuch as there was no justification on behalf of the State Government
to select the candidate on the ground that she had more public experience.

1
    AIR 2010 Kerala 28
2
    (2010) 12 SCC 687
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696            SUPREME COURT REPORTS                         [2018] 11 S.C.R.


A            8. We have heard Mr. Ritesh Khatri, learned counsel for the
      appellant, Mr. Abhinav Mukerji, learned Additional Advocate General
      for the respondent no. 1-State and Mr. Amit Singh Chandel, learned
      counsel for the respondent no. 2.
             9. There is no dispute that the first respondent has not framed any
B     Rules for the purpose of selection. In S. Chandramohan Nair (supra),
      a two-Judge Bench was dealing with a situation wherein the Division
      Bench of the High Court of Kerala had allowed the writ petition and
      quashed the appointment of the appellant therein as the member of the
      Kerala State Consumer Disputes Redressal Commission. This Court
      referred to the Rules, namely, Kerala Consumer Protection Rules, 2005
C     and opined:-
            “17. 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
D           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
E           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
F           for not accepting the recommendation.”
            Further, adverting to the facts, the Court observed:-
            “19. While deciding Writ Appeal No. 968 of 2007, the Division
            Bench of the High Court was unduly influenced by the fact that
G           the Chairman of the Selection Committee had initially recorded
            dissent and at the end of the minutes he separately appended a
            note suggesting that there was no difference of opinion between
            him and two members and concluded that name of the appellant
            was recommended only by the Chairman and not by the members.

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  MEENA VERMA v. STATE OF HIMACHAL PRADESH AND                                697
           ANOTHER [DIPAK MISRA, CJI]

      It appears that attention of the Division Bench was not drawn to        A
      the affidavit filed by Smt Sheela Thomas in Writ Petition No.
      13058 of 2006 wherein she had categorically averred that a panel
      of three names including that of the appellant was recommended
      to the State Government and the difference of opinion was only
      on the candidature of Shri K.V. Thomas. We have no doubt that if
                                                                              B
      the learned counsel appearing for the parties had properly assisted
      the Division Bench of the High Court, it may not have recorded
      the observation that the name of the appellant was recommended
      only by the Chairman and not by the members.
      20. That apart, be that as it may, we are convinced that the name
      of the appellant had been recommended by entire body of the             C
      Selection Committee i.e. the Chairman and the members. If this
      was not so, either of the two members would have, after coming
      to know of the minutes recorded by the Chairman, lodged a protest
      or sent communication to the State Government that they had not
      recommended the name of the appellant and that the minutes              D
      recorded by the Chairman did not reflect the actual
      recommendations. However, the fact of the matter is that neither
      of them lodged any objection nor sent any communication to the
      State Government. Therefore, the contrary observations made
      by the Division Bench in Writ Appeal No. 968 of 2007 cannot but
      be termed as erroneous and the same could not have been relied          E
      upon for quashing the appointment of the appellant.”
        10. In the case at hand, the appellant and the respondent no. 2
have obtained equal marks. The State Government chose to appoint the
appellant who was at serial no. 3 on the foundation that she had better
public experience. In S. Chandramohan Nair (supra), the Rule had              F
conferred power on the Government to select any one of the candidates
from the panel by ascribing reasons. The Court was of the opinion that
the case of the appellant therein was arbitrarily ignored and, accordingly,
it dislodged the judgment and order of the High Court.
      11. In the instant case, the Selection Committee has observed:-         G
      “On the basis of the performance of the candidates, we
      recommend appointment of following candidates as Members of
      the State Commission and various District Fora, out of the following
      panels, drawn separately, for each vacancy:
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698             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A            Female Member, H.P. State Consumer Commission:
             Sr. No.                 Name                          Marks
                                                                   scored
               1.               Dr. Karuna Machhan                 14/20
B              2.               Ms. Sunita Sharma                  11/20
               3.               Smt. Meena Verma                   11/20
               4.               Smt. Yogita Dutta                  10/20"
             12. On a perusal of the same, it is noticeable that the Committee
      was presided by the President of the Commission and the other members
C
      were Principal Secretary (FCS&CA) to the Government of H.P. and
      Principal Secretary (Law) to the Government of H.P. The Committee
      had used the phraseology “On the basis of the performance of the
      candidates”. The panel was drawn for the female members. It had placed
      the respondent no. 2 at serial no. 2 and the present appellant at serial no.
D     3. As it appears, the Committee had drawn the list in accordance with
      performance and, therefore, the respondent no. 2 was more suitable
      than the appellant. The State Government, while issuing the notification,
      had not ascribed any reasons. However, as is seen from the records
      produced before the High Court, the Principal Secretary had given a
      note that the “present appellant had public experience” and on that
E
      basis, the Chief Minister signed the file and the notification was issued.
      The matter would have been different had there been a Rule to enable
      the State Government to choose a person from the panel. In the absence
      of any Rule or any executive instruction, when the Committee had drawn
      a panel on the basis of performance and placed the candidates in seriatim
F     on the basis of the said performance, we are disposed to think that the
      High Court correctly expressed the opinion that the addition of public
      experience was uncalled for.
             13. In view of the aforesaid analysis, we do not perceive any
      merit in this appeal and the same is, accordingly, dismissed with no order
G     as to costs.


      Kalpana K. Tripathy                                          Appeal dismissed.



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