Supreme Court of India
THE SECRETARY MINISTRY OF CONSUMER AFFAIRSversusDR. MAHINDRA BHASKAR LIMAYE & ORS.
- Citation
- 2023 INSC 209
- Decided
- 3 March 2023
- Disposal
- Disposed off
- Bench
- M R SHAH
Holding
The Court upheld the High Court’s declaration that Rules 3(2)(b), 4(2)(c) and 6(9) of the 2020 Rules are unconstitutional, arbitrary and violative of Article 14, and ordered their amendment to provide a ten‑year experience requirement and a merit‑based written test for appointments.
Summary
The Supreme Court heard a challenge by the Ministry of Consumer Affairs against the High Court’s order striking down Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020. The petitioners argued that the rules were arbitrary, gave uncontrolled discretion to the selection committee and imposed excessive experience requirements, violating Article 14. The Court examined earlier precedents (State of Uttar Pradesh v. All Uttar Pradesh Consumer Protection Bar Association and Madras Bar Association v. Union of India) and held that the 2020 Rules indeed contravene those decisions and the constitutional guarantee of equality. It affirmed the High Court’s declaration of unconstitutionality, directed the Central and State Governments to amend the Rules to limit experience to ten years and to base appointments on a written test and viva voce, and disposed of the appeals.
Issues considered
- Whether Rule 3(2)(b) requiring a minimum of 20 years’ experience for appointment as a Member of the State Commission violates Article 14 of the Constitution.
- Whether Rule 4(2)(c) requiring a minimum of 15 years’ experience for appointment as a Member of the District Commission violates Article 14 of the Constitution.
- Whether Rule 6(9) granting the Selection Committee unfettered discretion to determine its own procedure is arbitrary and violative of Article 14.
- Whether the 2020 Rules can validly override the Supreme Court’s earlier judgments in State of Uttar Pradesh v. All Uttar Pradesh Consumer Protection Bar Association and Madras Bar Association v. Union of India.
- Whether the amendment to prescribe ten years’ experience and a written examination for appointments is constitutionally permissible.
Legislation cited
- Constitution of Indias. Article 14, s. Article 142, s. Article 217, s. Article 233
- Consumer Protection Acts. 101, s. 1986, s. 2019, s. 30, s. 71, s. 72
- Finance Acts. 184(1)
Subjects
Consumer ProtectionAppointment qualificationsQuasi‑judicial tribunalsArticle 14Arbitrary discretionWritten examinationSelection CommitteeRule validityLegislative override
Judgment
[2023] 4 S.C.R. 289 289
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS A
v.
DR. MAHINDRA BHASKAR LIMAYE & ORS.
(Civil Appeal No. 831 of 2023)
MARCH 03, 2023 B
[M. R. SHAH AND M. M. SUNDRESH, JJ.]
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
C
District Commission) Rules, 2020 – rr.3(2)(b), 4(2)(c), 6(9) – Validity
of – Held: rr.3(2)(b), 4(2)(c), 6(9) which are contrary to the
decisions of Supreme Court in State of Uttar Pradesh and Others v.
All Uttar Pradesh Consumer Protection Bar Association [2016] 8 SCR
851 and Madras Bar Association v. Union of India and Another [2020]
2 SCR 246 are unconstitutional, arbitrary and violative of Art.14 – D
rr.3(2)(b) & 4(2)(c) struck down to the extent providing minimum
20 years’ and 15 years’ experience for appointment as a Member in
the State and District Commission, respectively – Central Government
and the concerned State Governments to amend the 2020 Rules –
Till amendments are made, directions issued for appointment of
E
President and Members of the State Commission and District
Commission – A person having bachelor’s degree from a recognized
University and who is a person of ability, integrity and standing
and having special knowledge and professional experience of not
less than 10 years in consumer affairs, law, public affairs etc., shall
be treated as qualified for appointment of President and Members F
of the State and District Commission – Appointment shall be made
on the basis of performance in written test consisting of two papers
– Qualifying marks in each paper shall be 50% and there shall be
a viva voce of 50 marks – Consumer Protection Act, 2019 –
Consumer Protection Act,1986 – Consumer Protection(Appointment,
G
Salary, Allowance and Conditions of Service of President and
Members of State Commission and District Forum) Rules, 2017 –
Constitution of India – Art.14, 142.
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office, resignation
H
289
290 SUPREME COURT REPORTS [2023] 4 S.C.R.
A and removal of President and Members of State Commission and
District Commission) Rules, 2020 – r.6(9) – Held: Under r.6(9), the
Selection Committee is empowered with uncontrolled discretionary
power to determine its procedure to recommend candidates to be
appointed as President and Members of the State and District
Commission – Transparency and selection criteria are absent –
B
While making the appointment as Members of the District Fora,
State Commission there is a need to assess the skill, ability, and
competency of the candidates before they are empanelled and
recommended to the State Government – 2020 Rules do not
contemplate written examination to test the merits of the candidate
C – Written examination which was confirmed by the Supreme Court
has been removed under the new 2020 Rules – No justification shown
to do away with it – Consumer Protection Act, 2019 – Consumer
Protection Act, 1986 – Consumer Protection (Appointment, Salary,
Allowance and Conditions of Service of President and Members of
State Commission and District Forum) Rules, 2017.
D
Tribunals – Quasi-judicial authorities, standards expected
from the members – Held: Commissions are quasi-judicial authorities,
therefore, the standards expected from the members of the tribunal
should be as nearly as possible as applicable to the appointment of
judges exercising such powers – Consumer Protection Act, 2019 –
E Consumer Protection (Qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation
and removal of President and Members of State Commission and
District Commission) Rules, 2020 – Consumer Protection Act, 1986
– Consumer Protection (Appointment, Salary, Allowance and
F Conditions of Service of President and Members of State Commission
and District Forum) Rules, 2017.
Disposing of the appeals, the Court
HELD: 1.1 The High Court in the impugned judgment and
order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c)
G and Rule 6(9) of the Rules, 2020 which are contrary to the
decisions of this Court in the cases of State of Uttar Pradesh and
Others Vs. All Uttar Pradesh Consumer Protection Bar Association
(UPCPBA) and the Madras Bar Association are unconstitutional
and arbitrary. Even otherwise Rule 6(9) lacks transparency and
H it confers uncontrolled discretion and excessive power to the
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 291
MAHINDRA BHASKAR LIMAYE
Selection Committee. Under Rule 6(9), the Selection Committee A
is empowered with the uncontrolled discretionary power to
determine its procedure to recommend candidates to be appointed
as President and Members of the State and District Commission.
The transparency and selection criteria are absent under Rule
6(9). In absence of transparency in the matter of appointments of
B
President and Members and in absence of any criteria on merits
the undeserving and unqualified persons may get appointment
which may frustrate the object and purpose of the Consumer
Protection Act. It cannot be disputed that the Commissions are
empowered with the powers of court and are quasi-judicial
authorities and empowered to discharge judicial powers with the C
adequate powers of the court including civil and criminal.
Therefore, the standards expected from the members of the
tribunal should be as nearly as possible as applicable to the
appointment of judges exercising such powers. Under Rule 6(9)
of Rules, 2020, the Selection Committee is having power to
D
determine its own procedure. Such provisions are also giving
excessive and uncontrolled discretionary powers to the Selection
Committee. As rightly observed and held by the High Court,
considering the object on behalf of the Consumer Protection Act,
2019, such uncontrolled discretion power to determine its
procedure for making its recommendation for appointment of E
President and Members of the District and the State Commissions
is arbitrary and unreasonable. It is always desirable that while
making the appointment as Members of the District Fora and/or
the State Commission there is a need to assess the skill, ability,
and the competency of the candidates before they are empanelled
F
and recommended to the State Government. The Rules, 2020 do
not contemplate written examination so as to test the merits of
the candidate. In the case of UPCPBA, this Court expressed
deep concern over the bureaucratic and political interference in
process of appointments. [Paras 6.4, 6.5][319-E, H; 320-A-D]
Madras Bar Association v. Union of India and Another G
(2021) 7 SCC 369 : [2020] 2 SCR 246; State of Uttar
Pradesh and Others v. All Uttar Pradesh Consumer
Protection Bar Association (2017) 1 SCC 444 : [2016]
8 SCR 851 – relied on.
H
292 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 1.2 Mechanism of having written examination was confirmed
by this Court which has been removed under the new Rules,
2020. Earlier under Consumer Protection Act, 1986, there were
Rules, 2017 in so far as some of the States are concerned and
Rules, 2019 so far as the State of Maharashtra is concerned, which
provided for a written examination and viva voce, which was under
B
the Consumer Protection Act, 1986. The Consumer Protection
Act, 1986 has been repealed and the Consumer Protection Act,
2019 has come into force w.e.f. 24.07.2020 with a sole intention
to provide adequate safeguards to the consumers and the
pecuniary jurisdiction of the District Fora and State Commissions
C are enhanced substantially. However, there is no substantial
change in the scheme with respect to the adjudication of the
consumer disputes. No justification at all is shown to do away
with the written examination while framing the Rules, 2020 under
the Consumer Protection Act, 2019. Therefore, as rightly
observed by the High Court, the Rule 6(9) of the Rules, 2020 is
D
unconstitutional, arbitrary and violative of Article 14 of the
Constitution of India, more particularly, when the same is wholly
impermissible to override/overrule the earlier decisions of this
Court and that too without any justification. This Court is in
complete agreement with the view taken by the High Court. [Paras
E 6.6-6.8][320-E-H; 321-A]
1.3 Under provision 4(1) of Rules, 2020, a person who is
eligible to be appointed as a district judge (having minimum
experience of 7 years) is qualified to be appointed as President
of the District Commission but in order to be appointed as a
F Member, Rule 4(2)(c) mandates a minimum experience of 15
years which is rightly held to be violative of Article 14 of the
Constitution. Similarly providing 20 years’ experience under Rule
3(2)(b) also rightly held to be arbitrary and violative of Article 14
of the Constitution. Even under Rule 3(1) a judge of the High
Court, present or former, shall be qualified for appointment of
G the President. As per Article 233 of the Constitution, a lawyer
needs to have only 7 years of practice as an advocate in High
Court. Under the circumstances to provide 20 years’ experience
under Rule 3(2)(b) is rightly held to be unconstitutional, arbitrary
and violative of the Article 14 of the Constitution of India. This
H Court is in complete agreement with the view taken by the High
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 293
MAHINDRA BHASKAR LIMAYE
Court. In the case of Madras Bar Association– MBA III, this Court A
directed to consider 10 years’ experience, after detail reasoning.
[Paras 7.1, 7.2][321-C-F]
Madras Bar Association v. Union of India & Anr.- MBA
III (2017) 7 SCC 369 – relied on.
1.4 There is no reason to interfere with the impugned B
judgment and order passed by the High Court declaring Rule
3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection
(Qualification for appointment, method of recruitment, procedure
of appointment, term of office, resignation and removal of
President and Members of State Commission and District C
Commission) Rules, 2020 as arbitrary, unreasonable and violative
of Article 14 of the Constitution of India. The Central Government
and the concerned State Governments have to amend Rules, 2020,
more particularly, Rule 6(9) of the Rules, 2020, providing that
the Selection Committee shall follow the procedure for
appointment as per Model Rules, 2017 and to make the D
appointment of President and Members of the State Commission
and the District Commission on the basis of the performance in
written test consisting of two papers of 100 marks each and 50
marks for viva voce and the written test consisting of two papers
may be as per the schemes enumerated. The Central Government E
and the concerned State Governments have also to come with an
amendment in the Rules, 2020 to provide 10 years’ experience
to become eligible for appointment of President and Member of
the State Commission as well as the District Commission instead
of 20 years and 15 years respectively, provided in Rule 3(2)(b)
and Rule 4(2)(c) which has been struck down to the extent F
providing 20 years and 15 years of experience, respectively. Till
the suitable amendments are made in Consumer Protection
(Qualification for appointment, method of recruitment, procedure
of appointment, term of office, resignation and removal of
President and Members of State Commission and District G
Commission) Rules, 2020 as above, in exercise of powers under
Article 142 of the Constitution of India and to do complete justice,
it is directed that in future and hereinafter, a person having
bachelor’s degree from a recognized University and who is a
person of ability, integrity and standing, and having special
H
294 SUPREME COURT REPORTS [2023] 4 S.C.R.
A knowledge and professional experience of not less than 10 years
in consumer affairs, law, public affairs, administration, economics,
commerce, industry, finance, management, engineering,
technology, public health or medicine, shall be treated as qualified
for appointment of President and Members of the State
Commission. Similarly, a person of a person of ability, integrity
B
and standing, and having special knowledge and professional
experience of not less than 10 years in consumer affairs, law,
public affairs, administration, economics, commerce, industry,
finance, management, engineering, technology, public health or
medicine, shall be treated as qualified for appointment of President
C and Members of the District Commissions. It is also directed
under Article 142 of the Constitution of India that for appointment
of President and Members of the State Commission and District
Commission, the appointment shall be made on the basis of
performance in written test consisting of two papers as per the
scheme enumerated. The qualifying marks in each paper shall
D
be 50 per cent and there shall be viva voce of 50 marks. [Paras 8,
8.1, 8.3][321-G-H; 322-A-B, F-H; 323-A-C, G]
Madras Bar Association v. Union of India & Anr. 2021
SCC OnLine SC 463; State of Uttar Pradesh v. All Uttar
Pradesh Consumer Protection Bar Association (2018)
E 7 SCC 423 : [2018] 4 SCR 503 – referred to.
Case Law Reference
[2016] 8 SCR 851 relied on Para 2.6
[2020] 2 SCR 246 relied on Para 2.6
F
[2018] 4 SCR 503 referred to Para 6.2
(2017) 7 SCC 369 relied on Para 6.3
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 831 of
2023.
G From the Judgment and Order dated 14.09.2021 of the High Court
of Judicature at Bombay at Nagpur in WP No. 1096 of 2021.
With
Civil Appeal Nos. 832 and 833 of 2023.
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 295
MAHINDRA BHASKAR LIMAYE
R Venkataramani, A.G., Sanjay Jain, A.S.G., Ms. Sonia Mathur, A
Sr. Adv., Ms. Shraddha Deshmukh, Ms. Chinmayee Chandra, Sidhant
Kohli, Chitvan Singhal, Ms. Mansi Sood, Amrish Kumar, Ms. Harshita
Sukhija, Nishank Tripathi, Ms. Tanya Aggarwal, Arkaj Kumar, Padmesh
Mishra, Yuvraj Sharma, Dr. Uday Prakash Warunjikar, Pravartak Suhas
Pathak, Ms. Ankita Chaudhary, Siddharth Dharmadhikari, Aaditya
B
Aniruddha Pande, Bharat Bagla, Ms. Kirti Dadheech, Ms. Astha Sharma,
Dr. Tushar Mandlekar, Ravinder Singh, Ms. Raveesha Gupta, Srisatya
Mohanty, Sanjeev Kaushik, Mantika Haryani, Shreyas Awasthi, Himanshu
Chakravarty, Devvrat Singh, Ms. Muskan Surana, Tejas Fadnavis, Yatin
M. Jagtap, Sunil Kumar Sharma, Ms. Kashmira Lambat, Ms. Kishor
Lambat, Sachin Pahwa, Vaishnavi Gupta, M/s. Lambat & Legiteam, C
Rameshwar Prasad Goyal, Gagan Sanghi, Ms. Ankita Chaudhary, Advs.
for the appearing parties.
Gagan Sanghi, Ms. Swati P. (Intervenors)
The Judgment of the Court was delivered by
D
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 14.09.2021 passed by the High Court of
Judicature Bombay at Nagpur Bench at Nagpur in Public Interest
Litigation No. 11/2021 and Writ Petition No. 1096 of 2021, by which, the E
Division Bench of the High Court has struck down and has declared
Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection
(Qualification for appointment, method of recruitment, procedure of
appointment, term of office, resignation and removal of President and
Members of State Commission and District Commission) Rules, 2020
(hereinafter referred to as the Rules, 2020) as arbitrary, unreasonable F
and violative of Article 14 of the Constitution of India, the Ministry of
Consumer Affairs, Union of India and State of Maharashtra have
preferred the present appeals.
2. In exercise of powers conferred by Sections 29 and 43, read
with clauses (n) and (w) of Sub-section (2) of Section 101 of the G
Consumer Protection Act, 2019 (hereinafter referred to as the Act, 2019),
the Ministry of Consumer Affairs, Food and Public Distribution
(Department of Consumer Affairs) framed the Rules, 2020.
2.1 Rule 3 of Rules, 2020 provides for qualifications for appointment
of President and members of the State Commission. Rule 3(2)(b) H
296 SUPREME COURT REPORTS [2023] 4 S.C.R.
A provided that a person shall not be qualified for appointment as a member
of the State Commission unless he possesses a bachelor’s degree from
a recognized university and is a person of ability, integrity and standing,
and has special knowledge and professional experience of not less than
twenty years in consumer affairs, law, public affairs….
B 2.2 Rule 4 of Rules, 2020 provides for appointment of President
and member of District Commission. Rule 4(2)(c) provided that a person
shall not be qualified for appointment as a member of the District
Commission unless he is a person of ability, integrity and standing, and
having special knowledge and professional experience of not less than
fifteen years in consumer affairs, law, public affairs…..
C
2.3 Rule 6 of Rules 2020 provides for procedure for appointment.
Rule 6(9) provided that 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,
D integrity and adjudicatory experience.
2.4 Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) were the subject
matter of challenge before the High Court being unconstitutional, arbitrary
and violative of Article 14 of the Constitution of India. Rule 3, Rule 4,
and Rule 6 reads as under: -
E
“3. Qualifications for appointment of President and
members of the State Commission.—(1) A person shall not
be qualified for appointment as President, unless he is, or has
been, a Judge of the High Court;
F (2) A person shall not be qualified for appointment as a member
unless he is of not less than forty years of age and possesses-—
(a) an experience of at least ten years as presiding officer of a
district court or of any tribunal at equivalent level or combined
service as such in the district court and tribunal:
G Provided that not more than fifty percent of such members shall
be appointed; or
(b) a bachelor’s degree from a recognised university and is a
person of ability, integrity and standing, and has special knowledge
and professional experience of not less than twenty years in
H consumer affairs, law, public affairs, administration, economics,
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 297
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
commerce, industry, finance, management, engineering, technology, A
public health or medicine:
(3) At least one member or the President of the State Commission
shall be a woman.
4. Qualifications for appointment of President and member
of District Commission.—(1) A person shall not be qualified B
for appointment as President, unless he is, or has been, or is qualified
to be a District Judge.
(2) A person shall not be qualified for appointment as member
unless he—
C
(a) is of not less than thirty-five years of age;
(b) possesses a bachelor’s degree from a recognised University;
and
(c) is a person of ability, integrity and standing, and having special
knowledge and professional experience of not less than fifteen D
years in consumer affairs, law, public affairs, administration,
economics, commerce, industry, finance, management, engineering,
technology, public health or medicine.
(3) At least one member or the President of the District
Commission shall be a woman. E
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:— F
(a) Chief Justice of the High Court or any Judge of the High
Court nominated by him- Chairperson;
(b) Secretary in charge of Consumer Affairs of the State
Government “ Member;
G
(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 H
298 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Selection Committee other than a vacancy or absence of the
Chairperson.
(4) The process of appointments 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
B 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
C 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
D 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.
E
(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.
F
(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.
G
(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.
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 299
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
(13) Before appointment, the selected candidate shall furnish an A
undertaking that he does not and will not have any such financial
or other interest as is likely to affect prejudicially his functions as
a President or member.”
2.5 The validity of the aforesaid rules, namely, Rules 3 (2)(b),
4(2)(c) and 6(9) were challenged before the High Court by the original B
writ petitioner on the following grounds: -
(a) Uncontrolled discretion and excessive power to the selection
committee to determine its procedure to recommend
candidates to be appointed is arbitrary, unreasonable and in
violation of Article 14 of the Constitution of India. C
(b) Considering the nature of work, the candidate’s competency
needs to be tested before being recommended for the
appointment to discharge judicial functions. Therefore, the
candidates who are being appointed must have a legal
background. D
(c) In the absence of the appointment of competent candidates,
the object of the Consumer Protection Act is likely to be
frustrated.
(d) The president and members of the State and District
Commission are empowered with the powers of the Court. E
In the appointment of Judicial Magistrate First Class
(JMFC), the candidates are tested by written examination
and viva voce.
(e) The Draft model rules approved by this Hon’ble Court and
accepted by all the parties are not adhered with. Hence, F
contrary to the directions of this Hon’ble Court.
(f) The transparency and selection criteria are absent in the
said rules.
(g) In absence of transparency in the matter of appointments
of Chairman and Members, there is strong apprehension of G
political and executive interference.
2.6 It was also the case on behalf of the original writ petitioners
before the High Court that this Court in the case of State of Uttar
Pradesh and Others Vs. All Uttar Pradesh Consumer Protection
H
300 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Bar Association; (2017) 1 SCC 444 (hereinafter referred to as
the UPCPBA), directed to frame model rules under the Consumer
Protection Act, 1986. Accordingly, model rules were framed by this Court
and accepted by all the parties. It was also the case on behalf of the
original writ petitioners that by adopting the model rules, many states
notified the Consumer Protection (Appointment, Salary, Allowance and
B
Conditions of Service of President and Members of State Commission
and District Forum) Rules, 2017 (hereinafter referred to as the Rules,
2017) on 18.05.2018. It was submitted that model rules 2012 were already
in existence in the State of Maharashtra made on 03.01.2012 under
Section 30 of the Consumer Protection Act, 1986 and the said Rules
C already had the provision of written examination of 100 marks for aspiring
candidates/applicants for the post of President and Members of District
Consumer Forum under Rule 10. It was submitted that the Consumer
Protection Act, 2019 (hereinafter referred to as the Act, 2019) came
into force with effect from 20.07.2020 by repealing the erstwhile statute
Consumer Protection Act, 1986. It was also argued on behalf of the
D
original writ petitioners that under the Rules 2020, the power conferred
upon the Selection Committee to determine its own procedure for selection
of President and Members of the District and the State Commission
constituted under the Act, 2019 is in contravention of the decision of this
Court in the case of UPCPBA (supra). It was also argued on behalf of
E the original writ petitioners that looking at the judicial functions to be
performed by President and Members of the District and State
Commissions constituted under the Act, 2019, the selection without holding
written examination, but, only on the basis of viva voce, would result into
selection of unsuitable candidates which will further result in denial of
justice. It was also argued on behalf of the original writ petitioners that
F
prescribing minimum experience of 20 years and 15 years for President
and Members of State and District Commission respectively, is contrary
to the directions issued by this Court in the case of Madras Bar
Association Vs. Union of India and Another; (2021) 7 SCC 369.
That thereafter, by the impugned common judgment and order the High
G Court has declared Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules,
2020 as ultra-virus and unconstitutional, unreasonable, arbitrary and
violative of Article 14 of the Constitution of India and contrary to the
observations and directions issued by this Court in the case of UPCPBA
(supra). The High Court has specifically observed that granting complete
discretion under the Rules 2020 to the Selection Committee to determine
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 301
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
its own procedure would result in creating a situation which has been A
narrated in the case of UPCPBA (supra) and will again lead to wide
variations in standards as well as a great deal of subjective, bureaucratic
and political interference, and finally it will result in denial of justice
which will be in violation of Article 14 of the Constitution of India. That
while holding the aforesaid provisions unconstitutional, unreasonable and
B
arbitrary, the High Court has considered the historical background of
tribunalisation and the fact that the tribunals are endowed with the judicial
functions with a duty to decide the matters in judicious manner. Therefore,
the High Court has opined and observed that the standards expected
from the judicial members of the tribunals and standards applied for
appointing such members, should be as nearly as possible as applicable C
to the appointment of judges exercising such powers. That thereafter,
following the decisions of this Court in the case of Madras Bar
Association (supra) and UPCPBA (supra), the High Court has
concluded and passed the final order as under: -
i. “The Public Interest Litigation No. 11 of 2021 is allowed; D
ii. The Writ Petition No. 1096/2021 is partly allowed;
iii. It is held and declared that Rule 3(2)(b), Rule 4(2) (c) and
Rule 6(9) of the Rules of 2020, are arbitrary, unreasonable
and violative of Article 14 of the Constitution of India for the
reasons recorded herein above and hence are quashed and E
set aside;
iv. The Union of India is directed to provide for appropriately
made Rules as substitutes for Rule 3 (2)(b), Rule 4(2)(c) and
Rule 6(9) of the Rules, 2020, declared unconstitutional, keeping
in view the observations made in the judgment, within four F
weeks from the date of the judgment and order;
v. The vacancy notice dated 2nd February, 2021 issued by the
respondent no. 2 for inviting applications for the post of
Members of the State Commission and President and
Members of the District Commission, is hereby quashed and G
set aside;
vi. The process of selection of Members of the State Commission
and President and the Members of the District Commission,
initiated in pursuance to the vacancy notice dated 2nd
February, 2021, stands cancelled; H
302 SUPREME COURT REPORTS [2023] 4 S.C.R.
A vii. Fresh process of selection of members of the State
Commission, President and the members of the District
Commission be initiated in accordance with the amended Rules
and completed at the earliest as directed by the Hon’ble
Supreme Court of India;
B viii. It is made clear that we have not dealt with the validity of
appointment made of the President of State Commission,
Maharashtra State;
ix. No orders as to costs.”
2.7 The impugned common judgment and order passed by the
C High Court is the subject matter of present appeals.
3. Shri R. Venkataramani, learned Attorney General for India has
submitted that after the matters were heard by this Court on 17.11.2022
and 18.11.2022, where this Court was of the prima facie view that Rule
6(9), which deals with the procedure of appointment, left too much
D discretion in the hands of the selection committee, and that there ought
to have been some objective criteria on the basis of which the fitness
and suitability of candidates be tested, such as a written examination. It
is pointed out that based on the observations that fell from this Court on
the previous dates of hearing, the matter was considered by the
E Government and pursuant thereto, a meeting was called between the
Union of India and all the State governments to consider the desirability
and feasibility of conducting a written examination for appointment to
the State and District Commissions, or in the alternate, to consider as to
whether rules or guidelines can be made which would reduce the
discretion available to the Search-cum-Selection Committees while
F carrying out appointments. It is submitted that in the course of discussions
between the States, it was observed that most states were not in favour
of conducting written tests. It is submitted that based on the discussion
in the said meeting, it was observed that a written examination for
appointments of members of tribunals as a uniform policy would be neither
G feasible nor desirable, due to, inter alia, the following reasons:
(i) The number of vacancies to tribunals per year is very low,
and in some tribunals only in single digits. It would not be
economically or practically feasible to conduct an
examination for five or six posts.,
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 303
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
(ii) Most tribunals require appointment of members with A
expertise in varied relevant fields, such as consumer affairs,
economics, law, securities, finance, telecom, electricity, and
so on. A single written examination with a common syllabus
would not be possible and one may have to conduct a
different examination for each different area of expertise,
B
which would make the whole process arbitrary and unwieldy.
(iii) Competent, eminent, and successful persons aged over
thirty five or forty or even fifty may not be willing to write
a written examination and then have their marks published
openly, which would dissuade a large number of people who
may be desirable from applying. C
(iv) Persons with experience of fifteen or twenty years may no
longer have the requisite examination giving skills, and a
written examination may unduly favour academics or
researchers as opposed to people who are in the field
practically or in a corporate environment or in some other D
non academic field.
(v) Conducting a written examination may lengthen the entire
process of appointment, which already takes 4-6 months
on account of the requirement of advertisement, public
notice, receipt of applications and verification of documents, E
IB inputs, tax and medical reports, and then a personal
interaction with the Selection Committee. This may end up
increasing the number of vacancies in the tribunals, which
is not desirable.
(vi) Prescribing a uniform requirement of a written examination F
across states would fail to take into account the local
requirements of each state - for instance, the number of
applications received in the smaller states such as Assam
or Goa or Sikkim are very low, and sometimes even lesser
than the number of posts advertised. A written examination G
may lead to greater difficulties in filling up the vacant posts.
(vii) Prescribing a uniform requirement of a written examination
across tribunals is also not considered desirable, as each
tribunal has its own eligibility criteria and different categories
of persons would fall in their zone of consideration. For
H
304 SUPREME COURT REPORTS [2023] 4 S.C.R.
A instance, several posts can only be manned by retired judges,
and it would not be appropriate to subject judges of the
Supreme Court or the High Courts to a written examination.
Equally, very few people are actually eligible to be appointed
as technical members to specialised tribunals such as
TDSAT or APTEL, and eminent persons in the field of
B
telecom or electricity may not wish to write examinations
to leave lucrative careers in their areas of expertise. This
would lead to the tribunals losing out on desirable persons,
who may otherwise wish to join these tribunals in the spirit
of public service.
C 3.1 Shri R. Venkataramani, learned Attorney General for India
has further submitted that based on the further discussions in the meeting
held on 13.01.2023 between Union of India and all the States/UTs to
consider the uniform measures to guide the Selection Committees in the
exercise of their selection processes, it has been proposed that the
D following proviso, to provide for the issuance of necessary instructions
to guide the discretion available to the Selection Committee, could be
considered to be inserted below Rule 6(9) of the Rules, 2020: -
“Provided that the Selection Committee shall be guided by the
instructions, as may be issued, by order, by the Central Government
E from time to time, while making assessment of a candidate in
regard to his suitability for appointment as President or member
in the State Commission or the District Commission.”
3.2 It is further submitted that in so far as the development of
uniform measures to be applicable to appointments in the State
F Commissions and the District Commissions (President and Members)
across the country is concerned, the following measures, keeping in view
the level of the posts, the statutory functions to be discharged by the
holders of these posts, the very objective enshrined in the Consumer
Protection Act, 2019, are considered to be formulated:-
G a. The selection of a candidate for appointment as the President
or member in the State Commission or the District
Commission may be based on the marks secured by him,
out of a total of 100 marks. The total marks (100) may be
the sum of; (i) 60 marks for an interview; and, (ii) 40 marks
for certain special achievements of a candidate.
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 305
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
b. The aforesaid formulation, if found in order by this Hon’ble A
Court, can be treated as an instruction under the above
said proviso.
c. The rationale behind the proposed distribution of marks in
such a way where the interview component would outweigh
the other, is to ensure the selection of the most suitable B
candidate, given the level of the posts and duties attached
thereto.
d. The distribution of 40 marks for special achievements may
be considered as under:
C
D
E
F
3.3 It is submitted that on an overall consideration of the
deliberations, it appears that the conduct of a written test which has
several handicaps will not be feasible and shall not be most suitable G
measure for the purpose of selection.
4. While opposing the present appeals Dr. Uday Prakash Warnjikar
and Dr. Tushar Mandalekar, learned counsel appearing on behalf of the
respective respondents have vehemently submitted that in the facts and
H
306 SUPREME COURT REPORTS [2023] 4 S.C.R.
A circumstances of the case the High Court has not committed any error
in declaring Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of Rules, 2020
as arbitrary, unreasonable, and violative of Article 14 of the Constitution
of India.
4.1 It is submitted that the bone of contention of the present
B respondent is to have the highest standards and strict scrutiny before the
candidates are being appointed in the Consumer State Commission and
District Commissions. It is submitted that the selection method under
the Rules, 2020 and the process adopted by the appellant will lead to the
appointment of incompetent candidates to adjudicate the consumer
disputes. It is submitted that under Rule 6(9), the selection committee is
C empowered with uncontrolled discretionary powers to determine its
procedure in the appointment of the President and Members of the State
and District Commission. It is submitted that such delegation of
uncontrolled powers will cause undesirable results.
4.2 In support of their submissions that Rule 3(2)(b) and Rule
D 4(2)(c) and Rule 6(9) of Rules, 2020 are arbitrary, unreasonable, and
violative of Article 14 of the Constitution of India, it is submitted as
under: -
(a) That the selection method under Rules, 2020 confers
uncontrolled discretion and excessive power to the selection
E committee to determine its procedure to recommend
candidates to be appointed is arbitrary, unreasonable and in
violation of Article 14 of the Constitution of India;
(b) Considering the nature of work, the candidate’s competency
needs to be tested before being recommended for the
F appointment to discharge judicial functions;
(c) In the absence of the appointment of competent candidates,
the object of the Consumer Protection Act is likely to be
frustrated;
(d) The president and members of the State and District
G
Commission are empowered with the powers of the Court.
In the appointment of Judicial Magistrate First Class, when
the candidates are tested by written examination and viva
voce, the similar procedure to be adopted for appointment
in the District and State Commissions;
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 307
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
(e) The transparency and selection criteria are absent in the A
Rules, 2020;
(g) In absence of transparency in the matter of appointments
of Chairman and Members, there is strong apprehension of
political and executive interference.
4.3 It is further submitted that even the Law Commission in its B
nd
272 Report suggested that the members of the newly constituted
tribunals should possess the qualifications akin to the judges of the High
Court and District Court. The Report further recommended uniformity
in the appointments.
4.4 It is further submitted that as such this Court in the case of C
UPCPBA (supra) directed to frame model rules under the Consumer
Protection Act, 1986. It is submitted that by the said judgment, model
rules were approved by this Court and accepted by all the parties. It is
submitted by adopting the model rules, many states notified the Consumer
Protection (Appointment, Salary, Allowances and Conditions of Service D
of President and Members of State Commission and District Forum)
Rules, 2017 (hereinafter referred to as the Rules, 2017). It is further
submitted that the State of Maharashtra also adopted and approved the
model rules on 24.05.2019 in exercise of powers conferred under the
provisions of the Consumer Protection Act, 1986. It is further submitted
that even prior thereto, model rules 2012 were already in existence in E
the State of Maharashtra under Section 30 of the Consumer Protection
Act, 1986 and the said rules already had the provision of written
examination of 100 marks for aspiring candidates/applicants for the post
of President and Members of District Consumer Forum under Rule 10.
4.5 It is further submitted that as observed hereinabove this Court F
approved the uniform model rules for appointment, salary, service
condition etc., for the effective adjudication of consumer disputes under
the Act, 1986. The said model rules were adopted by all the parties. It is
submitted that the adjudicatory powers of the consumer fora/commissions
are judicial functions. There is no change in the judicial functions of the G
President and Members of the State and District Commission. There is
no change in the judicial functions of President and Members of the
State and District Commission even post-Consumer Protection Act, 2019
(Act, 2019) which have come into force with effect from 20.07.2020. It
is submitted that there is no change in the legislative scheme concerning
H
308 SUPREME COURT REPORTS [2023] 4 S.C.R.
A adjudication of consumer disputes under the Act of 2019. It is submitted
that as such the Consumer Protection Act, 2019 has come into force
with effect from 20.07.2020 by repealing the erstwhile statute Consumer
Protection Act, 1986. It is submitted that the sole intention of the
legislature is to provide adequate safeguards to the consumers due to
drastic changes in the modern market and the constantly emerging
B
vulnerability of the consumers. Under the Act, 2019, the pecuniary
jurisdictions of the District and State Commissions are enhanced
substantially. However, there is no substantial change in the scheme
with respect to the adjudication of the consumer disputes. Therefore,
consumer commissions are quasi-judicial authorities empowered to
C discharge judicial functions with the adequate powers of the court,
including civil and criminal.
4.6 It is submitted that under Section 71 of the Act, 2019, the
Commissions are empowered with the powers of the civil court and
under Section 72, the Commissions are empowered with the powers of
D JMFC. It is submitted that despite the above when the Rules, 2020 are
framed by the Central Government in exercise of powers under Section
101 of the Act, 2019 which provides for the impugned Rule 3(2)(b) and
Rule 4(2)(c) and Rule 6(9) made the things worse than the prevailing,
prior to Rules, 2020.
E 4.7 It is further submitted that therefore, when the State and the
District Commissions are performing the quasi-judicial functions and
judicial functions and exercising the powers of the Court, to test the
competence of the candidate written examination and viva-voce would
be necessary. Only interviews of the aspiring candidates would lead to
political interference and undeserving results through such a selection
F process.
4.8 It is further submitted that Rule 6(9) provides uncontrolled
discretion to the Selection Committee. Uncontrolled discretion in the
matter of recommendations of candidates to be appointed to discharge
judicial functions is in clear violation of Article 14 of the Constitution of
G India. It is submitted this Court in the case of Madras Bar Association
(supra) declared that “Article 14 clearly includes a right to have the
person’s rights adjudicated by a forum which exercises judicial powers
in an impartial and independent manner, consistent with the recognized
principles of adjudication.” It is submitted that in the present case under
H Rule 6(9) the Central Government has granted complete discretion to
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 309
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
determine the selection procedure without laying down criteria and A
standards and the same is unreasonable and arbitrary.
4.9 It is further submitted that even the said provision is also
unreasonable on the ground that there is no check and balance under
Rules, 2020 over the Selection Committee. The Selection Committee
has absolute discretion in the recommendations of the candidates. B
4.10 It is further submitted that there are four sources of candidates
to be appointed as president and members of the Commissions, viz.,
serving judicial officers, retired judicial officers, advocates, or any other
individuals having certain knowledge and experience. It is submitted that
the Rules direct the selection committee to take into account suitability, C
a record of past performance, integrity and adjudicatory experience.
The selection committee may consider the suitability of the retired or
serving judicial candidates based on available record, however, the
suitability of the candidates coming from non-judicial sources, cannot be
determined without testing the overall competency. It is submitted that
the appointments with bias and without transparency would frustrate D
the object of the Consumer Protection Act.
4.11 It is further submitted that the Rules, 2020 as such nullify the
judgment of this Court in the case of UPCPBA (supra).
4.12 It is submitted that as observed and held by this Court in the E
case of Madras Bar Association Vs. Union of India & Anr.; (2021
SCC OnLine SC 463) in Writ Petition (C) No. 502/2021 decided on
14.07.2021 that the permissibility of legislative override in this country
should be in accordance with the principles laid down by this Court in
the catena of decision which are as under: -
F
“44. The permissibility of legislative override in this country
should be in accordance with the principles laid down by this Court
in the aforementioned as well as other judgments, which have
been culled out as under:
a) The effect of the judgments of the Court can be nullified
G
by a legislative act removing the basis of the judgment. Such law
can be retrospective. Retrospective amendment should be
reasonable and not arbitrary and must not be violative of the
fundamental rights guaranteed under the Constitution.
H
310 SUPREME COURT REPORTS [2023] 4 S.C.R.
A b) The test for determining the validity of a validating
legislation is that the judgment pointing out the defect would not
have been passed, if the altered position as sought to be brought
in by the validating statute existed before the Court at the time of
rendering its judgment. In other words, the defect pointed out
should have been cured such that the basis of the judgement
B
pointing out the defect is removed.
c) Nullification of mandamus by an enactment would be
impermissible legislative exercise [See : S.R. Bhagwat (supra)].
Even interim directions cannot be reversed by a legislative veto
[See : Cauvery Water Disputes Tribunal (supra) and Medical
C Council of India v. State of Kerala.
d) Transgression of constitutional limitations and intrusion
into the judicial power by the legislature is violative of the principle
of separation of powers, the rule of law and of Article 14 of the
Constitution of India.”
D
4.13 It is further submitted that even the criteria of having
experience of minimum 20 years for appointment of Member in the
State Commission under Rule 3(2)(b) and criteria of having experience
of minimum 15 years for appointment of Member in District Commission
as per Rule 4(2)(c) is absolutely arbitrary and illegal and unconstitutional
E and contrary to the provisions of Article 217 and 233 of the Constitution
of India. It is further submitted that even the same is violative of the
judgment and order passed by this Court in the case of Madras Bar
Association (supra).
4.14 It is submitted that the High Court has rightly quashed the
F provision of Rule 4(2)(c) as the requirement of having experience of 15
years for a lawyer in order to get the appointment as Member in District
Forum/Commission is arbitrary and illegal. It is submitted that even in
accordance with the Article 233 of the Constitution of India a lawyer
needs to have only seven years of practice as an advocate in High Court.
G Even in according to the provisions of Rule 4(1) a person who is eligible
to be appointed as a District Judge (having minimum experience of seven
years as per Article 233 of Constitution of India) is qualified to be appointed
as President of District Commission. But in order to be appointed as
Member, the Section 4(2)(c) mandates a minimum experience of 15
years which is violative of Article 14 of the Constitution of India.
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 311
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
4.15 It is further submitted that the scheme envisaged in A
appointment of President under Rule 3(1) for President of State
Commission has a different criteria and that of Member under Rule
3(2)(b) is different and distinct. The person can be qualified to be a
President if he is or has been a judge of High Court. However, in order
to get appointment as a Member of State Commission the Rule 3(2)(b)
B
mandates a minimum experience of 15 years, which is illegal and violative
of Article 14, because the requirement of qualification and experience
of a lawyer to get appointed as a High Court Judge is only ten years as
per Article 217 of the Constitution of India. It is submitted that therefore,
the High Court has rightly declared that Rule 3(2)(b) and Rule 4(2)(c)
and Rule 6(9) of Rules, 2020 as ultra-virus, arbitrary and violative of the C
Article 14 of the Constitution of India. It is submitted that while holding
so the High Court has discussed and considered the decision of this
Court in the case of Madras Bar Association (supra) : (2021) 7
SCC 369.
4.16 Making the above submissions and relying upon the above D
decisions, it is prayed to dismiss the present appeals.
5. Heard Shri R. Venkataramani, learned Attorney General for
India, appearing on behalf of the appellant(s) and Dr. Uday Prakash
Warunjikar and Dr. Tushar Mandalekar, learned counsel appearing on
behalf of the respective respondent(s). E
6. By the impugned judgment and order the High Court has
declared Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of the Consumer
Protection (Qualification for appointment, method of recruitment,
procedure of appointment, term of office, resignation and removal of
President and Members of State Commission and District Commission) F
Rules, 2020 as unconstitutional, arbitrary, and violative of Article 14 of
the Constitution of India. Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of
Rules, 2020 which are declared to be unconstitutional read as under: -
“3. Qualifications for appointment of President and
members of the State Commission.— G
xxx
(2) A person shall not be qualified for appointment as a member
unless he is of not less than forty years of age and possesses—
xxx
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312 SUPREME COURT REPORTS [2023] 4 S.C.R.
A (b) a bachelor’s degree from a recognised university and is a
person of ability, integrity and standing, and has special knowledge
and professional experience of not less than twenty years in
consumer affairs, law, public affairs, administration, economics,
commerce, industry, finance, management, engineering, technology,
public health or medicine:
B
4. Qualifications for appointment of President and member
of District Commission.—(1) A person shall not be qualified
for appointment as President, unless he is, or has been, or is qualified
to be a District Judge.
C (2) A person shall not be qualified for appointment as member
unless he—
xxx
(c) is a person of ability, integrity and standing, and having special
knowledge and professional experience of not less than fifteen
D years in consumer affairs, law, public affairs, administration,
economics, commerce, industry, finance, management, engineering,
technology, public health or medicine.
xxx
6. Procedure of appointment.
E
xxx
(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
F into account the suitability, record of past performance, integrity
and adjudicatory experience.
xxx
6.1 While considering the correctness of the impugned judgment
and order passed by the High Court and while considering the constitutional
G validity of Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of Rules, 2020,
the earlier decisions of this Court, more particularly, the decision in the
case of UPCPBA (supra) which was under the Consumer Protection
Act, 1986 is required to be referred to. The issue with respect to the
conditions of eligibility for appointment of non-judicial members was one
H of the issues before this Court in the case of UPCPBA (supra). This
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 313
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
Court earlier constituted a committee presided over by Mr. Justice Arijit A
Pasayat, a former Judge of this Court to examine various issues including
the conditions of eligibility for appointment of non-judicial members. The
Committee in its interim report observed that the Fora constituted under
the Consumer Protection Act, 1986 do not function as effectively as
expected due to a poor organizational set-up; grossly inadequate
B
infrastructure; absence of adequate and trained manpower and “lack of
qualified members” in the adjudicating bodies. This Court in paragraphs
4 to 6 noted and observed as under:
“4. The quality of presiding members, especially of non-judicial
members at the State and district levels is poor. One of the reasons
is that the remuneration which is being paid to non-judicial members C
of consumer for a varies from State to State and is too meagre to
attract qualified talent. Most of the non-judicial members are not
even capable of writing or dictating small orders. At certain places
non-judicial members act in unison against the Presiding Officer,
while passing orders contrary to law, damaging the reputation of D
the adjudicating body. The Presidents, as a result, prefer a situation
where such non-judicial members absent themselves from work
if only so that judicial work can be carried out by the Presiding
Judge impartially and objectively. Many non-judicial members do
not maintain punctuality and others attend to work sporadically
once or twice a week. The Committee has observed that the E
problem lies in — (i) absence of proper remuneration; (ii)
appointment of former judicial officers who lack motivation and
zeal; (iii) appointment of practising lawyers as Presiding Officers
of District Fora; and (iv) political and bureaucratic interference in
appointments. Many of the non-judicial members attend to the F
place of work only to sign orders which have been drafted by the
Presiding Officer.
5. The Committee has furnished concrete examples of how
bureaucratic and political influence has marred the selection
process as a result of which the functioning of consumer fora is G
detrimentally affected. Three instances furnished in the Report
of the Committee provided a telling example of the state of affairs:
“(15) The Committee could make out that there has been
considerable bureaucratic and political influence/interference in
the “selection process” and functioning of the consumer fora. H
314 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Just to cite a few instances, the Committee found that relatives of
politicians, bureaucrats and judicial fraternity have been selected.
A non-Judicial Member Mr Jamal Akhtar posted at District Forum,
Meerut has been absenting without permission since 11-5-2015.
The State Government has failed to take any action against him.
Even the plea of the President, State Commission has gone
B
unheeded. The result is that his post has not been declared vacant
and another non-Judicial Member posted elsewhere has been
attached in his place.
(16) One non-Judicial Member who had her first term at
Lucknow and has now been enjoying her second term, having
C been appointed for District Forum, Barabanki but has been
attached to Greater Noida and as per the reports, comes to Forum
once or twice a week. Another woman non-Judicial Member who
happens to be wife of a bureaucrat was appointed for District
Forum, Baghpat but was attached/posted at Greater Noida. These
D few instances make it crystal clear that there is definite political
influence and interference and in such a scenario, the work of
District Consumer Fora is affected as it results in lowering the
morale of the President.
(17) In Haryana, a non-Judicial Woman Member did/does
E not attend the District Forum regularly, as she has to travel around
150/160 km every day. The President of one District Forum who
happens to be former President of Bar Association has been serving
the second term as President. Such non-Judicial Members manage
to get selected and then misuse their position as Members, as
they call themselves “Judges”.”
F
6. The selection of persons as Presiding Officers and as Members
of the fora lacks transparency without a fixed criteria for selection.
The Committee has, in our view with justification, proposed that a
written test should be conducted to assess the knowledge of
persons who apply for posts in the District Fora. Issues of conflict
G of interest also arise when persons appointed from a local area
are appointed to a District Forum in the same area.”
Ultimately in paragraph 28, this Court issued the following
directions: -
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 315
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
“28.1. The Union Government shall for the purpose of A
ensuring uniformity in the exercise of the rule-making power under
Section 10(3) and Section 16(2) of the Consumer Protection Act,
1986 frame model rules for adoption by the State Governments.
The model rules shall be framed within four months and shall be
submitted to this Court for its approval;
B
28.2. The Union Government shall also frame within four
months model rules prescribing objective norms for implementing
the provisions of Section 10(1)(b), Section 16(1)(b) and Section
20(1)(b) in regard to the appointment of members respectively of
the District Fora, State Commissions and National Commission;
C
28.3. The Union Government shall while framing the model
rules have due regard to the formulation of objective norms for
the assessment of the ability, knowledge and experience required
to be possessed by the members of the respective fora in the
domain areas referred to in the statutory provisions mentioned
above. The model rules shall provide for the payment of salary, D
allowances and for the conditions of service of the members of
the consumer fora commensurate with the nature of adjudicatory
duties and the need to attract suitable talent to the adjudicating
bodies. These rules shall be finalised upon due consultation with
the President of the National Consumer Disputes Redressal E
Commission, within the period stipulated above;
28.4. Upon the approval of the model rules by this Court,
the State Governments shall proceed to adopt the model rules by
framing appropriate rules in the exercise of the rule-making powers
under Section 30 of the Consumer Protection Act, 1986; F
28.5. The National Consumer Disputes Redressal
Commission is requested to formulate regulations under Section
30-A with the previous approval of the Central Government within
a period of three months from today in order to effectuate the
power of administrative control vested in the National Commission G
over the State Commissions under Section 24-B(1)(iii) and in
respect of the administrative control of the State Commissions
over the District Fora in terms of Section 24-B(2) as explained in
this judgment to effectively implement the objects and purposes
of the Consumer Protection Act, 1986.”
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316 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 6.2 That thereafter, vide a further order dated 18.05.2018 State
of Uttar Pradesh Vs. All Uttar Pradesh Consumer Protection Bar
Association – Civil Appeal No. 2740/2007 reported in (2018) 7
SCC 423, this Court considered the draft model rules which were framed
by the Union of India. Before this Court the model rules came to be
accepted by the counsel representing all the parties before the Court.
B
Therefore, this Court directed that the State Governments shall frame
appropriate rules in exercise of the rule-making power under Section 30
of the Consumer Protection Act, 1986 in accordance with the Final Draft
Model Rules submitted by the Union of India. It appears that thereafter
many States notified the Consumer Protection (appointment, salary,
C allowances and conditions of service of President and Members of the
State Commission and District Forum) Rules, 2017. Rules, 2017 which
were adopted provided that in every cases, the selection of Members of
the District Fora and State Commission shall be on the basis of a written
test of two papers (Rules 5 and 7). It appears that even the State of
Maharashtra also adopted and approved the model rules on 24.05.2019
D
and framed Rules, 2019 which had a written examination of 200 marks.
It provided that State Commission shall hold the final examination of 250
marks for the post of Members. Out of 250 marks, 200 marks shall be
for written examination and 50 marks shall be for viva-voce examination.
In the case of Madras Bar Association (supra) decided on
E 27.11.2020 – (2017) 7 SCC 369, this Court directed that while
considering Tribunal/Appellate Tribunal and other Authorities
(Qualifications, Experience and other conditions of Service of Members),
the Rules, 2020 shall be amended to make advocates with an experience
of at least 10 years eligible for appointment as judicial members in the
tribunals. That thereafter, the Central Government framed Tribunal
F
Reforms (Rationalisation and Conditions of Service) Ordinance, 2021
which fell for consideration before this Court in Writ Petition (C) No.
502/2021 decided on 14.07.2021 – 2021 SCC Online SC 463. In
the said decision this Court also considered the permissibility of legislative
override. After considering catena of decisions of this Court on
G permissibility of legislative override this Court observed and held in
paragraphs 42 to 44 as under: -
“42. The judgment of this Court in Madan Mohan Pathak v. Union
of India (1978) 2 SCC 50 requires a close scrutiny as it was
adverted to and relied upon by both sides. A writ petition was filed
H in the High Court of Calcutta for a mandamus directing the Life
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 317
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
Insurance Corporation (LIC) to act in accordance with the terms A
of settlement dated 24.01.1974 read with administrative instructions
dated 29.03.1974. The writ petition was allowed by the learned
single Judge against which a Letters Patent Appeal (LPA) was
preferred by the LIC. During the pendency of the LPA, the LIC
(Modification of Settlement) Act, 1976 came into force. The LPA
B
was withdrawn in view of the subsequent legislation and the
decision of the learned single Judge became final. Validity of the
said statute was assailed in a writ petition filed under Article 32
by the employees of the LIC. Justice Bhagwati, speaking for the
majority, was of the opinion that the judgment of the Calcutta
High Court was not a mere declaratory judgment holding an impost C
or tax as invalid so that a validating statute can remove the defect
pointed out in the judgment. He observed that the judgment of the
Calcutta High Court gave effect to the rights of the petitioners by
mandamus, directing the LIC to pay annual cash bonus. As long
as the judgment of the learned single Judge is not reversed in
D
appeal, it cannot be disregarded or ignored. The LIC was held to
be bound by the writ of mandamus issued by the Calcutta High
Court. Justice Beg, in his concurrent opinion, held that the rights
which accrued to the employees on the basis of the mandamus
issued by the High Court cannot be taken away either directly or
indirectly by subsequent legislation. Thereafter, Madan Mohan E
Pathak (supra) came up for discussion in Sri Ranga Match
Industries v. Union of India 1994 Supp (2) SCC 726. Justice Jeevan
Reddy was of the opinion that the Madan Mohan Pathak
case cannot be treated as an authority for the proposition that
mandamus cannot be set aside by a legislative act. Justice Hansaria
F
was not in agreement with such view. Relying upon the judgment
of this Court in A.V. Nachane v. Union of India (1982) 1 SCC
205, Justice Hansaria held that the legal stand taken by Justice
Beg in the Madan Mohan Pathak case had received majority’s
endorsement and it was because of this that retrospectivity given
to the relevant rule assailed in A.V. Nachane was held to have G
nullified the effect of the writ and was accordingly invalid. In
view of the difference of opinion, the matter was referred to a
larger bench. We are informed by the leaned Amicus Curiae that
the difference of opinion could not be resolved as the case was
settled out of court.
H
318 SUPREME COURT REPORTS [2023] 4 S.C.R.
A 43. In Virender Singh Hooda (2004) 12 SCC 588, this Court did
not accept the contention of the petitioners therein that vested
rights cannot be taken away by retrospective legislation. However,
it was observed that taking away of such rights would be
impermissible if there is violation of Articles 14, 16 or any other
constitutional provision. The appointments already made in
B
implementation of a decision of this Court were protected with
the reason that “the law does not permit the legislature to take
away what has been granted in implementation of the Court’s
decision. Such a course is impermissible.” This Court in Cauvery
Water Disputes Tribunal 1993 Supp (1) SCC 96 (2) declared the
C ordinance which sought to displace an interim order passed by
the statutory tribunal as unconstitutional as it set side an individual
decision inter partes and therefore, amounted to a legislative
exercise of judicial power. When a mandamus issued by the
Mysore High Court was sought to be annulled by a legislation,
this Court quashed the same in S.R. Bhagwat v. State of Mysore
D
(1995) 6 SCC 16 on the ground that it was impermissible legislative
exercise. Setting at naught a decision of the Court without removing
the defect pointed out in the judgment would sound the death
knell of the rule of law. The rule of law would cease to have any
meaning, because then it would be open to the Government to
E defy a law and yet to get away with it.50
44. The permissibility of legislative override in this country should
be in accordance with the principles laid down by this Court in the
aforementioned as well as other judgments, which have been culled
out as under:
F a) The effect of the judgments of the Court can be nullified by a
legislative act removing the basis of the judgment. Such law can
be retrospective. Retrospective amendment should be reasonable
and not arbitrary and must not be violative of the fundamental
rights guaranteed under the Constitution.
G b) The test for determining the validity of a validating legislation is
that the judgment pointing out the defect would not have been
passed, if the altered position as sought to be brought in by the
validating statute existed before the Court at the time of rendering
its judgment. In other words, the defect pointed out should have
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 319
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
been cured such that the basis of the judgement pointing out the A
defect is removed.
c) Nullification of mandamus by an enactment would be
impermissible legislative exercise [See: S.R. Bhagwat (supra)].
Even interim directions cannot be reversed by a legislative veto
[See : Cauvery Water Disputes Tribunal (supra) and Medical B
Council of India v. State of Kerala (2019) 13 SCC 185].
d) Transgression of constitutional limitations and intrusion into the
judicial power by the legislature is violative of the principle of
separation of powers, the rule of law and of Article 14 of the
Constitution of India.” C
6.3 In the said decision, this Court struck down and declared that
first proviso to Section 184(1) of the Finance Act, 2017, which provided
for 50 years minimum age for appointment as Chairman or Member as
unconstitutional by observing that the said first proviso to Section 184
(1) is in violation of the doctrine of separation of powers as the judgment D
of this Court in the case of Madras Bar Association Vs. Union of
India & Anr. – MBA III - (2017) 7 SCC 369 decided on 27.11.2020,
has been frustrated by an impermissible legislative override.
6.4 Taking into consideration the aforesaid decisions, the High
Court in the impugned judgment and order has rightly observed and held E
that Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020 which
are contrary to the decisions of this Court in the cases of UPCPBA
(supra) and the Madras Bar Association (supra) are unconstitutional
and arbitrary.
6.5 Even otherwise also we are of the opinion that Rule 6(9) F
lacks transparency and it confers uncontrolled discretion and excessive
power to the Selection Committee. Under Rule 6(9), the Selection
Committee is empowered with the uncontrolled discretionary power to
determine its procedure to recommend candidates to be appointed as
President and Members of the State and District Commission. The
transparency and selection criteria are absent under Rule 6(9). In absence G
of transparency in the matter of appointments of President and Members
and in absence of any criteria on merits the undeserving and unqualified
persons may get appointment which may frustrate the object and purpose
of the Consumer Protection Act. It cannot be disputed that the
Commissions are empowered with the powers of court and are quasi-
H
320 SUPREME COURT REPORTS [2023] 4 S.C.R.
A judicial authorities and empowered to discharge judicial powers with the
adequate powers of the court including civil and criminal. Therefore, the
standards expected from the members of the tribunal should be as nearly
as possible as applicable to the appointment of judges exercising such
powers. Under Rule 6(9) of Rules, 2020, the Selection Committee is
having power to determine its own procedure. Such provisions are also
B
giving excessive and uncontrolled discretionary powers to the Selection
Committee. As rightly observed and held by the High Court, considering
the object on behalf of the Consumer Protection Act, 2019, such
uncontrolled discretion power to determine its procedure for making its
recommendation for appointment of President and Members of the
C District and the State Commissions is arbitrary and unreasonable. It is
always desirable that while making the appointment as Members of the
District Fora and/or the State Commission there is a need to assess the
skill, ability, and the competency of the candidates before they are
empanelled and recommended to the State Government. The Rules, 2020
do not contemplate written examination so as to test the merits of the
D
candidate. In the case of UPCPBA (supra), this Court expressed deep
concern over the bureaucratic and political interference in process of
appointments.
6.6 At this stage, it is required to be noted that mechanism of
having written examination was confirmed by this Court which has been
E removed under the new Rules, 2020.
6.7 At this stage, it is required to be noted that earlier under
Consumer Protection Act, 1986, there were Rules, 2017 in so far as
some of the States are concerned and Rules, 2019 so far as the State of
Maharashtra is concerned, which provided for a written examination
F and viva voce, which was under the Consumer Protection Act, 1986.
6.8 The Consumer Protection Act, 1986 has been repealed and
the Consumer Protection Act, 2019 has come into force w.e.f. 24.07.2020
with a sole intention to provide adequate safeguards to the consumers
and the pecuniary jurisdiction of the District Fora and State Commissions
G are enhanced substantially. However, there is no substantial change in
the scheme with respect to the adjudication of the consumer disputes.
No justification at all is shown to do away with the written examination
while framing the Rules, 2020 under the Consumer Protection Act, 2019.
Therefore, as rightly observed by the High Court, the Rule 6(9) of the
H Rules, 2020 is unconstitutional, arbitrary and violative of Article 14 of
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 321
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
the Constitution of India, more particularly, when the same is wholly A
impermissible to override/overrule the earlier decisions of this Court and
that too without any justification. We are in complete agreement with
the view taken by the High Court.
7. Now so far as the Rule 3(2)(b) and Rule 4(2)(c) of the Rules,
2020 are concerned, the High Court has rightly quashed the said provisions B
which provided for having a minimum 20 years’ experience for
appointment as a Member in State Commission under Rule 3(2)(b) and
having a minimum 15 years’ experience for appointment as a Member
in District Commission under Rule 4(2)(c).
7.1 It is required to be noted that under provision 4(1) of Rules, C
2020, a person who is eligible to be appointed as a district judge (having
minimum experience of 7 years) is qualified to be appointed as President
of the District Commission but in order to be appointed as a Member,
Section 4(2)(c) mandates a minimum experience of 15 years which is
rightly held to be violative of Article 14 of the Constitution.
D
7.2 Similarly providing 20 years’ experience under Rule 3(2)(b)
also rightly held to be arbitrary and violative of Article 14 of the
Constitution. It is required to be noted that under Section 3(2)(b), a
presiding officer of a Court having experience of 10 years is eligible for
becoming President of the State Commission. Even under Section 3(1)
a judge of the High Court, present or former, shall be qualified for E
appointment of the President. As per Article 233 of the Constitution, a
lawyer needs to have only 7 years of practice as an advocate in High
Court. Under the circumstances to provide 20 years’ experience under
Rule 3(2)(b) is rightly held to be unconstitutional, arbitrary and violative
of the Article 14 of the Constitution of India. We are in complete F
agreement with the view taken by the High Court. At this stage, it is
required to be noted that in the case of Madras Bar Association (supra)
– MBA III, this Court directed to consider 10 years’ experience, after
detail reasoning.
8. In view of the above and for the reasons stated above, we see G
no reason to interfere with the impugned judgment and order passed by
the High Court declaring Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the
Consumer Protection (Qualification for appointment, method of
recruitment, procedure of appointment, term of office, resignation and
removal of President and Members of State Commission and District
Commission) Rules, 2020 as arbitrary, unreasonable and violative of H
322 SUPREME COURT REPORTS [2023] 4 S.C.R.
A Article 14 of the Constitution of India. The Central Government and the
concerned State Governments have to amend Rules, 2020, more
particularly, Rule 6(9) of the Rules, 2020, providing that the Selection
Committee shall follow the procedure for appointment as per Model
Rules, 2017 and to make the appointment of President and Members of
the State Commission and the District Commission on the basis of the
B
performance in written test consisting of two papers of 100 marks each
and 50 marks for viva voce and the written test consisting of two papers
may be as per the following schemes: -
C
D
E
8.1 The Central Government and the concerned State
Governments have also to come with an amendment in the Rules, 2020
F
to provide 10 years’ experience to become eligible for appointment of
President and Member of the State Commission as well as the District
Commission instead of 20 years and 15 years respectively, provided in
Rule 3(2)(b) and Rule 4(2)(c) which has been struck down to the extent
providing 20 years and 15 years of experience, respectively. Till the
G suitable amendments are made in Consumer Protection (Qualification
for appointment, method of recruitment, procedure of appointment, term
of office, resignation and removal of President and Members of State
Commission and District Commission) Rules, 2020 as above, in exercise
of powers under Article 142 of the Constitution of India and to do complete
justice, we direct that in future and hereinafter, a person having bachelor’s
H
THE SECRETARY MINISTRY OF CONSUMER AFFAIRS v. DR. 323
MAHINDRA BHASKAR LIMAYE [M. R. SHAH, J.]
degree from a recognized University and who is a person of ability, A
integrity and standing, and having special knowledge and professional
experience of not less than 10 years in consumer affairs, law, public
affairs, administration, economics, commerce, industry, finance,
management, engineering, technology, public health or medicine, shall
be treated as qualified for appointment of President and Members of the
B
State Commission. Similarly, a person of a person of ability, integrity and
standing, and having special knowledge and professional experience of
not less than 10 years in consumer affairs, law, public affairs,
administration, economics, commerce, industry, finance, management,
engineering, technology, public health or medicine, shall be treated as
qualified for appointment of President and Members of the District C
Commissions. We also direct under Article 142 of the Constitution of
India that for appointment of President and Members of the State
Commission and District Commission, the appointment shall be made on
the basis of performance in written test consisting of two papers as per
the following scheme: -
D
E
F
8.3 The qualifying marks in each paper shall be 50 per cent and
there shall be viva voce of 50 marks. Therefore, marks to be allotted out
of 250, which shall consist of a written test consisting two papers, each G
of 100 marks and the 50 marks on the basis of viva voce.
Present appeals are disposed of in terms of the above directions.
Divya Pandey Appeals disposed of.
(Assisted by : Abhishek Agnihotri and Shevali Monga, LCRAs) H
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