TaxTMI 
TaxTMI 
2025 (5) TMI 1901
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....NDRESH, JJ. For the Appellant : Mr. R Venkataramani, A G for India Mr. Raman Yadav, Adv. Mr. Chitvan Singhal, Adv. Ms. Aishwarya Bhati, Adv. Mr. Abhishek Kumar Pandey, Adv. Mr. Shraddha Deshmukh, Adv. Mr. Ameyavikrama Thanvi, Adv. Mr. Kartikay Aggarwal, Adv. Mr. Shreekant Neelappa Terdal, AOR Dr. Tushar Mandlekar, Adv. Ms. Anju Thomas, AOR Ms. Mantika Haryani, Adv. Ms. Muskan Surana, Adv. Ms. Panistha Bhatt, Adv. Ms. Tejas Fadnavis, Adv. Mr. Tushar Mehta, Solicitor General Mr. Aaditya Aniruddha Pande, AOR Mr. Sourav Singh, Adv. Mr. Chitranshul A. Sinha, AOR Mr. Nishant Ramakantrao Katneshwarkar, AOR Mr. B. Veeraswamy Raju, Adv. Ms. Shilpa Sharma, Adv. Ms. Aswathi M.k., AOR Mr. Sudhir Naagar, AOR Mr. Manohar Naagar, Adv. Mr. Arun Kumar Nagar, Adv. Mr. Rahul Kasana, Adv. 1502 Mr. Amit Anand Tiwari, Sr. Advocate, A.A.G. Ms. Purnima Krishna, AOR Mr. M.F.Philip, Adv. Mr. Karamveer Singh Yadav, Adv. Mr. Togin M. Babichen, Adv For the Respondent : Mr. Siddharth S. Chapalgaonkar, Adv. Ms. Sneha Botwe, Adv. Mr. Pai Amit, AOR Ms. Sakshi Kakkar, AOR Mr. Shakti Singh, Adv. Dr. Tushar Mandlekar, Adv. Ms. Anju Thomas, AOR Ms. Mantika Haryani, Adv. Ms. Muskan Surana, Adv. Ms. Panistha Bhatt....
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....ifficult task to comprehensively do so, as every act or omission of an individual might attract the definition, given the impact it may have on others. Perhaps, its essence is best expressed in the words of Mahatma Gandhi, the Father of the Nation. "A customer is the most important visitor on our premises. He is not dependent on us. We are dependent on him. He is not an interruption on our work. He is the purpose of it. He is not an outsider on our business. He is a part of it. We are not doing him a favour by serving him. He is doing us a favour by giving us an opportunity to do so." (emphasis supplied) 3. He elevated a consumer above every other entity, transforming the concept of consumerism through the principles of truth and dharma. He galvanised people from all walks of life to participate in the freedom struggle, by incorporating the spirit of consumerism in the pivotal Indian Independence Movement, through methods such as non- cooperation and civil disobedience. One classic instance where politics, economics and social order were consciously integrated, was the Dandi March of 1930, whereby civil disobedience was extended through the Salt Satyagraha oppo....
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....ntry and the world at large. As E P Mcguire put it succinctly, "Consumerism is both an idea and a contagious spirit and national boundaries have never proved much of an obstacle to either of these. Thus, consumerism has become an international social force." (emphasis supplied) 7. Consumerism, thus, constitutes the very spirit of the Constitution of India, 1950 (hereinafter referred to as "the Constitution"). It does not end with recognizing and protecting the rights of a consumer vis-à-vis a trader or a service provider, as the case may be, but travels far beyond. The rights of a consumer are not merely constitutional or statutory guarantees, but are in fact, natural, and therefore, inalienable. The fact that the society, economy, polity and the environment, are inseparable from each other, is something that was envisioned even by the framers of the Constitution. Though not explicitly in the context of consumerism, the said vision is reflected in the much-celebrated statement of Dr. B.R. Ambedkar, in his closing speech before the Constituent Assembly of India, on 25.11.1949. Constituent Assembly of India, Friday, the 25th November, 1949 The Honourabl....
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....the Directive Principles of State Policy enshrined under Part IV of the Constitution. Article 38 of the Constitution "38. State to secure a social order for the promotion of welfare of the people.- (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. (2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations." (emphasis supplied) Article 39 of the Constitution "39. Certain principles of policy to be followed by the State.-The State shall, in particular, direct its policy towards securing- xxx xxx xxx (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration ....
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....ter referred to as "the 1986 Act") and thereafter, the Consumer Protection Act, 2019 (hereinafter referred to as "the 2019 Act") have been brought forth to give effect to the discovery and progressive realization of our constitutional rights, culture and ethos. It was felt that a dedicated consumer legislation was needed for citizens, to attain exposure to participative democracy, day-to-day economics, ongoing politics and environmental protection, endeavouring towards socio-economic, political and environmental justice. Perhaps, that might be the reason as to why the 1986 Act, being the first consumer protection legislation in India, does not even draw its origins from any specific provision of the Constitution, as all the salient features of the Constitution are put in a basket and offered to the citizen, for whose benefit it has been enacted. 10. It is needless to state that, while dealing with consumer disputes, the Consumer fora created under the 1986 Act and, thereafter, retained under the 2019 Act, must be mindful of the aforesaid constitutional basis, as a mere dictionary meaning can never do complete justice to the word 'consumer'. Spring Meadows Hospital v. Harjol A....
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....mmon Cause, A Registered Society v. Union of India [(1997) 10 SCC 729] . It was held : (SCC p. 730, para 2) "2. The object of the legislation, as the preamble of the Act proclaims, is 'for better protection of the interests of consumers'. During the last few years preceding the enactment there was in this country a marked awareness among the consumers of goods that they were not getting their money's worth and were being exploited by both traders and manufacturers of consumer goods. The need for consumer redressal fora was, therefore, increasingly felt. Understandably, therefore, legislation was introduced and enacted with considerable enthusiasm and fanfare as a path-breaking benevolent legislation intended to protect the consumer from exploitation by unscrupulous manufacturers and traders of consumer goods. A three-tier fora comprising the District Forum, the State Commission and the National Commission came to be envisaged under the Act for redressal of grievances of consumers." xxx xxx xxx 42. We may in this connection also notice that in Laxmi Engg. Works v. P.S.G. Industrial Institute [(1995) 3 SCC 583] this Court held : (SCC p. 591, para 10) ....
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...., bewildered and shocked." It has further been held : (SCC pp. 254 & 252, para 3) The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. ... It is a milestone in history of socio-economic legislation and is directed towards achieving public benefit." (emphasis supplied) Nivedita Sharma v. Cellular Operators Assn. of India, (2011) 14 SCC 337 "18. The 1986 Act was enacted for the better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation." (emphasis supplied) CONSUMERISM VIS-À-VIS PUBLIC INTEREST 11. Though a consumer seeking to redress his grievance may do so for himself, the benefit of the same often enures to the ....
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....e from. It entails the creation of a society where issues including but not limited to discrimination, and unequal access to food, water, clothing, shelter, education, healthcare and the like, are addressed proactively. A democratic society is premised on the attainment of social justice. Only when the standard of living is equitable, and equality of opportunities are the order of the day, can a society be said to have truly achieved social justice and hence, democracy. 15. To bring about this social revolution, 'consumerism' must be accepted as a social force, as it substantially informs the trajectory of one's life. The manner in which a growing child's basic needs of nutrition and education are fulfilled, plays a huge role in the abilities he acquires and the opportunities he receives and may ultimately avail as an adult. A child consuming sub-standard food, growing in abject poverty, will be materially different from his counterpart, who may have exposure to the best of what the world has to offer. Similarly, a child acquiring knowledge through sound and stable education, equipped with necessary learning tools, ranging from something as basic as a pen and paper, to something....
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.... to the citizens, in adherence with the constitutional mandate. The Directive Principles of State Policy and the Fundamental Duties enshrined under Part IV and Part IVA of the Constitution respectively, reflect the very same understanding. CONSUMERISM VIS-À-VIS POLITICS 21. Man is by nature a political animal. This thought, espoused by the Greek philosopher and polymath Aristotle in the 4th century BCE, has attained tremendous significance in the present day and age. Across the globe, the seeds of political consumerism sprouted during the struggles for a liberal democracy, becoming their very backbone, particularly in light of the fact that consumption has always been an intrinsic part of people's lives. These saplings have today grown into undercurrents in everyday transactions. 22. The choice to consume a particular good or service, or not, reflects our political considerations. It might also be a symbol of class or power. In the words of the acclaimed Polish Nobel Laureate, Olga Nawoja Tokarczuk, "In today's world everything is political. We are a statement - our clothes, haircut, the way we act". 23. A nation's political stability, and its internat....
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.... village, with India growing at a rapid pace to make a permanent place for itself. We may note that according to 'India's Outlook 2025-2026 Story', published by the Union Bank of Switzerland, India is set to become the 3rd largest consumer market in the world by 2026, only behind the United States of America and the People's Republic of China. Demographic studies also show that the population size in India has surpassed all other nations, a factor that is certainly contributing to the expansion of the consumer base, thereby leading to an increase in consumption expenditure. This is corroborated by the statistics released by the National Statistics Office (NSO), Ministry of Statistics and Programme Implementation (MoSPI) vide its Press Note in February 2025, which indicates that Private Final Consumption Expenditure (PFCE) at current prices stood at Rs.181.30 lakh crore for the year 2023-24, as against Rs.165.28 lakh crore in 2022-23, and that in relation to the Gross Domestic Product (GDP), the PFCE to GDP ratio at current prices during 2022-23 and 2023-24 were 61.5% and 60.2% respectively. 28. With rising household income, coupled with development in all spheres, the demand....
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....ment policies that promote green consumption and encourage businesses to do so. The relevance of green consumerism is multi-fold. It can lead to reduced environmental pollution with less waste generation, lower levels of carbon emissions, and improved air, water, and soil quality and therefore contribute to better public health. Sustainable choices can help conserve natural resources and reduce reliance on finite resources. On the ancillary front, it can stimulate innovation and create new jobs in the renewable energy sector and sustainable industries. 33. Thus, green consumerism would lead the country closer towards achieving its milestones under the United Nations Sustainable Development Goals, with better implementation of the polluter pays principle, the precautionary principle, the intergenerational equity principle and the theory of trusteeship. In fact, the urgent need to make sustainable and healthy lifestyle choices available, accessible, and affordable for all consumers - while ensuring that these transitions uphold people's basic rights and needs, has been recognised in the theme for this year's World Consumer Rights Day, 'A Just Transition to Sustainable Lifestyles.'....
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....rred is part of the current legal framework, there is no clear mechanism available, similar to the one provided for under Article 227 of the Constitution. 39. At this juncture, we deem it fit to suggest that the Union of India may consider increasing the strength of Consumer fora at all levels. ON MERITS 40. Based on the aforesaid deliberation on the concept of consumerism, we shall strive to address the issues at hand. For doing so, certain factual narrations would be required. 41. Though we are concerned with three different sets of facts in the present Civil Appeals, two sets pertaining to the State of Maharashtra and one pertaining to the State of Telangana, we are dealing with all of them together, as the issues involved are overlapping. 42. The lacunae prevalent in the implementation of the 1986 Act, was substantially addressed for the first time by this Court in State of Uttar Pradesh and Others v. All Uttar Pradesh Consumer Protection Bar Association (2017) 1 SCC 444 (hereinafter referred to as "UPCPBA"), wherein directions had been issued to the Union of India, to frame Model Rules under the aforementioned statute. State of U.P. v. All U.P. Consumer Prote....
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....Act, 1986." 43. Thus, this Court was pleased to hold that it would only be just and fair to ensure uniformity by way of a common set of rules applicable to the Consumer fora in all the States. Based upon the Model Rules framed by the Union Government in compliance with the aforestated decision, the Consumer Protection (Appointment, Salary, Allowances, and Conditions of Service of President and Members of State Commission and District Forum) Rules, 2019 (hereinafter referred to as "the 2019 Rules") were notified by the State of Maharashtra, invoking its power to make rules under Section 10(3), Section 13(1)(c), Section 14(3), Section 16(2) and Section 30(2) of the 1986 Act. 44. Thereafter, the 1986 Act was substituted by the 2019 Act, with effect from 09.08.2019. While dealing with the Finance Act, 2017, this Court, in Rojer Mathew v. South Indian Bank Limited (2020) 6 SCC 1 (hereinafter referred to as "Rojer Mathew"), was pleased to hold that the composition of the concerned Selection Committee must have maximum participation of the judiciary and that it would only be appropriate to have a minimum tenure of 5 years for the Presiding Officers and Members of the Tribunal and th....
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....einafter referred to as "MBA - IV") vide decisions dated 27.11.2020 and 14.07.2021 respectively, reiterated the views expressed in Rojer Mathew (supra) to the effect that the tenure of office under the legislations impugned therein, must be a minimum of 5 years. 47. In the first round of litigation, a writ petition and a public interest litigation had been filed before the High Court of Bombay, laying a challenge to Rules 3(2)(b), 4(2)(c) and 6(9) of the 2020 Rules. Rule 3 of the 2020 Rules "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; (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: Provided that not more than fifty percent of such members shall be appointed; or (b) a bachelor's degree from a recognised univer....
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....ourt in The Secretary Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye & Ors., 2023 SCC OnLine SC 231 (hereinafter referred to as "Limaye - I"). Vide judgment dated 03.03.2023, it was held that the requirement of 20 years and 15 years of experience for eligibility as Non-Judicial members of the State Commission and the members of the District Commission respectively, was arbitrary and that 10 years of experience is sufficient. It was also held that Rule 6(9) of the 2020 Rules, which conferred unfettered and unbridled powers on the Selection Committee, without the mandate of conducting a written examination followed by a viva voce, cannot be sustained in the eye of law. This was because the 1986 Act and the 2019 Act are pari materia as regards Consumer fora, and the 2019 Rules framed under the 1986 Act, provided for the conduct of written examinations qua appointment to the Consumer fora. Incidentally, the power conferred under Article 142 of the Constitution was exercised, issuing directions to conduct a written examination followed by viva voce for the posts of Presidents and Members of the State and District Commissions. Suggestions had been given on the manner in whic....
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....b) Knowledge of Constitution of India (c) Knowledge of various Consumers related Laws as indicated in the Schedule Objective Type 100 2 hours Paper- II (a) One Essay on topics chosen from issues on trade and commerce consumer related issues or Public Affairs. (b) One case study of a consumer case for testing the abilities of analysis and cogent drafting of orders. Descriptive type 100 3 hours 46. The Central Government 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 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 Commission) Rules, 2020 as above, in exerc....
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....idents and Members of the District Commission (hereinafter referred to as "the advertisement"). Prior to the aforesaid advertisement, a Selection Committee had been constituted by the State of Maharashtra, in which a nominee of the Hon'ble the Chief Justice of the High Court of Bombay, was made the Chairperson vide notification dated 10.04.2023, which was reconstituted vide notification dated 13.06.2023 (hereinafter referred to as "the notifications"). 51. Three writ petitions had been filed before the High Court of Bombay, bearing Writ Petition Nos. 3680/2023, 2107/2023 and 2496/2023, laying a challenge to Rules 6(1) and 10(2) of the 2020 Rules, the advertisement and the notifications. Incidentally, in two of the aforesaid writ petitions, reappointment had also been sought for. We may hasten to add that all the writ petitions had been filed by interested persons. Broadly, the writ petitioners comprised practicing advocates seeking appointment, and functioning Members and Presidents of the District Commissions in the State of Maharashtra, who sought reappointment to their respective posts. There were also intervenors, some of whom supported the case of the writ petitioners, whil....
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....3(2)(a) of the 2020 Rules. 53. In the meanwhile, the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Amendment Rules, 2023 were notified by the Union of India, with effect from 21.09.2023, incorporating the directions issued in Limaye - I (supra). 54. It has been brought to our attention that 112 persons, including some of the appellants before us, have been appointed to the posts of Members of the State Commission, and Presidents and Members of the District Commissions, vide order dated 05.10.2023, by the State of Maharashtra, pursuant to a written examination, followed by viva voce. Consequently, the requests seeking reappointment were rejected by the State of Maharashtra, vide order dated 06.10.2023. 55. The High Court of Bombay, vide judgment dated 20.10.2023 (hereinafter referred to as "Impugned Order - I"), impugned before us in Civil Appeal Nos. 9982/2024, 9987/2024, 9983-9985/2024, 9989/2024, 9990/2024 and 9965-9967/2024, has partly allowed the writ petitions and struck down Rules 6(1) and 10(2) o....
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...., the High Court of Bombay found that it was impermissible to make any addition, alteration or modification to the directions issued in Limaye - I (supra). 60. The High Court of Bombay, taking note of the facts of the case, had stayed the effect and operation of Impugned Order - I for a period of four weeks. 61. At this juncture, we may point out that most of the candidates appointed vide order dated 05.10.2023, by the State of Maharashtra, had not been arrayed as parties before the High Court of Bombay in the aforementioned writ petitions aggrieved by which, some of the present appeals have been filed. The State of Maharashtra as well as the Union of India are also before us challenging Impugned Order - I, apart from one of the writ petitioners before the High Court of Bombay himself. Intervention applications have also been filed before us, by persons similarly placed as some of the appellants. 62. The High Court of Bombay, vide a separate judgment dated 20.10.2023 (hereinafter referred to as "Impugned Order - II"), impugned before us in Civil Appeal No. 9988/2024, has held that the directions issued by this Court in Limaye - I (supra) qua the conduct of the written exam....
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....of Impugned Order - I, the interim stay granted by the High Court of Bombay was directed to remain in operation till 24.11.2023. The said interim order has been extended from time to time. SUBMISSIONS 65. We have heard the learned Additional Solicitor General (ASG) Ms. Aishwarya Bhati, appearing for the Union of India, learned Senior counsel and learned counsel appearing for the respective parties. We have also carefully perused the written arguments along with the documents, filed by all the parties in respect of their respective contentions. Qua the Review Petitions seeking clarification of Limaye - I 66. Learned counsel appearing for the review petitioners submitted that Limaye - I (supra) had mandated the conduct of a written examination followed by a viva voce, despite several States having expressed their difficulty in doing so. It is their contention that it is virtually impossible for persons seeking appointment to the posts of President of the State Commission who must be a former Judge of the High Court, Judicial Members of the State Commission and Presidents of the District Commissions, having a judicial background, to undergo a written examination followed b....
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....er, and that the process for fresh appointment and reappointment of candidates cannot be equated with each other. To buttress the aforesaid submissions, learned counsel has placed reliance on the decision of the High Court of Bombay dated 18.02.2019 in Writ Petition No. 4974/2018 (Mukund v. State of Maharashtra). Learned counsel has also submitted that all the appointments made under the 1986 Act, were saved under Section 31 read with Section 107 of the 2019 Act. Hence, the 'right accrued for re-appointment' as per Rule 10 of the 2020 Rules, would have to be recognised on the basis of Rule 34 of the Maharashtra Consumer Protection Appointment Rules, 2012 and Rule 8(18) of the 2019 Rules read with Rule 14 of the Consumer Protection (Salary, allowance and conditions of service of President and Members of State and District Commission) Model Rules, 2020 made under Section 102(1) of the 2019 Act, by the Central Government. The said Rule 14 clearly specifies that the terms and conditions of service of the Presidents and Members of the State and District Commissions shall not be varied to their disadvantage during the tenure of their office. 69. Similar submissions have been made by s....
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....e 6(1) of the 2020 Rules, is taken care of by Rule 6(3) of the 2020 Rules. On the validity of Rule 10(2) of the 2020 Rules, she submitted that the term of office of the President and Members of the National Commission is 4 years, and therefore, there cannot be two different tenures of office within the hierarchy of Consumer fora. In any case, the term of office is purely a policy decision, in view of the Central Government having been empowered to make rules under clauses (n) and (w) of Section 101(2) of the 2019 Act. She also submitted that the phrase 'another term' used in Rule 10(2) of the 2020 Rules, means one more term and thus, none would be entitled to reappointment for a third term. The decision of the High Court of Bombay dated 18.02.2019, in Writ Petition No. 4974/2018 (Mukund v. State of Maharashtra), is not applicable to the facts of the present case as the rules concerned therein have ceased to operate after the enactment of the 2019 Act. Upon making these submissions, it has been fairly conceded on behalf of the Union of India that a fresh set of Rules would be enacted replacing the existing Rules, after taking note of the lacunae pointed out by the concerned stakehol....
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....Chief Justice of India. 6. Procedure of appointment.- (9) The Selection Committee shall short-list the applicant on the basis of performance in a written test consisting of two papers as specified in the table below, with the qualifying marks of fifty percent in each paper and there shall be viva voce of 50 marks. 6. Procedure of appointment.- (9) The Selection Committee shall shortlist the applicants for the office of President of the State Commission or the District Commission, as the case may be, on the basis of a personal interaction and shall give due weightage inter alia to the personality, knowledge of law, quality of the judgments, adjudicatory experience, integrity and special achievements. (9A) The President of the State Commission maybe appointed on whole time basis or by assigning additional charge to a sitting Judge of the High Court. Provided that appointment of a sitting Judge of High Court, either on whole time basis or on additional charge, shall not be made without the concurrence of the Chief Justice of the High Court. (9B) The Selection Committee shall determine its procedure for shortlist of the applicants for ....
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.... DISCUSSION 76. Having heard the learned Additional Solicitor General (ASG) Ms. Aishwarya Bhati, appearing for the Union of India, learned Senior counsel and learned counsel appearing for the respective parties, we shall now proceed to analyse the merit in their respective submissions. 77. Considering that the issues raised in the Review Petitions are similar to the ones raised in the Civil Appeals, we deem it fit to tag them and pass a common judgment. Qua the Review Petitions seeking clarification of Limaye - I 78. Vide interim order dated 07.03.2024, this Court had already taken note of the anomaly created in Limaye - I (supra), vis-à-vis the requirement of holding written examinations and viva voce for persons with a judicial background, seeking appointment under Rules 3(1), 3(2)(a) and 4(1) of the 2020 Rules. Accordingly, on a concession by the parties, the requirement of holding a written examination and viva voce was relaxed for the post of President of the State Commission, as an interim measure, clarifying that appointments would be made in consultation with and subject to the concurrence of the Chief Justice of the High Court. "1. In the judgme....
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.... being only with respect to the constitutional validity of Rules 3(2)(b), 4(2)(c) and 6(9) of the 2020 Rules, the directions issued therein shall not be applicable to the posts of President of the State Commission, Judicial Members of the State Commission, and President of the District Commission. 81. In light of the aforesaid discussion, the review petitions seeking to clarify the directions issued in Limaye - I (supra) stand allowed to the extent that there shall be no requirement of a written examination followed by a viva voce for selection to the posts of President of the State Commission, Judicial Members of the State Commission and President of the District Commission under Rules 3(1), 3(2)(a) and 4(1) of the 2020 Rules, respectively. Qua Impugned Order - I 82. Before we proceed to deal with the submissions in these appeals, we deem it fit to extract the directions issued by the High Court of Bombay in Impugned Order - I. "31. In the light of aforesaid discussion, the following order is passed:- (A) Rule 6(1) of the Rules of 2020 is struck down on the ground that the same results in diluting the involvement of the judiciary in the process of appoin....
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....mbay, in striking down Rule 6(1) of the 2020 Rules and the consequent notifications, cannot be found fault with. Rule 6(1) of the 2020 Rules, which provides for the composition of the Selection Committee, has been rightly struck down, placing reliance upon the doctrine of separation of powers and earlier decisions of this Court in Rojer Mathew (supra), MBA - III (supra) and MBA - IV (supra), as the composition of the Selection Committee as per the said Rule indicates executive dominance. The setting aside of the notifications is merely consequential. Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 "148. Composition of a Search-cum-Selection Committee is contemplated in a manner whereby appointments of Member, Vice-President and President are predominantly made by nominees of the Central Government. A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some committees, the role of the judiciary is virtually absent. 149. We are in agreement with the contentions of the learned counsel for the petitioner(s), that the lack of judicial dominance in the Search-cum- Selection Committee is ....
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....service, to inspire the confidence of the public at large. Shortcomings in composition, tenure, conditions of service, etc. of the Members of tribunals were also highlighted in the Report as reasons for increased intervention by the executive in the working of judicial institutions. The relevant extract is reproduced below : (SCC pp. 305-06, para 88) "88. ... The observations contained in the Report, to this extent they contain a review of the functioning of the tribunals over a period of three years or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of the Report, "Alternative Modes and Forums for Dispute Resolution", deals with the issue at length. After forwarding its specific recommendations on the feasibility of setting up "Gram Nyayalayas", Industrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of tribunals set up under Articles 323- A and 323-B of the Constitution. The relevant observations in this regard, being of considerable significance to our analysis, are extracted in full as under: 'Functioning of tribunals 8.63. Several tribunals are functioning in the country. No....
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.... circumstances. The same would not at all be conducive to judicial independence and may even tend, directly or indirectly, to influence their decision-making process, especially when the Government is a litigant in most of the cases coming before such tribunal. (See S.P. Sampath Kumar v. Union of India [(1987) 1 SCC 124].) The protagonists of specialist tribunals, who simultaneously with their establishment want exclusion of the writ jurisdiction of the High Courts in regard to matters entrusted for adjudication to such tribunals, ought not to overlook these vital and important aspects. It must not be forgotten that what is permissible to be supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice pr....
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.... referred to the findings recorded in para 70 [Ed. : See also para 120(xii) for the direction in this regard.] of the judgment in Union of India v. Madras Bar Assn. [(2010) 11 SCC 1] that the sponsoring department should not have any role to play in the matter of appointment to the posts of Chairperson and members of the tribunals. Though the ultimate direction of the Court was to constitute a Search-cum-Selection Committee for appointment of members to NCLT and NCLAT of which Secretary, Ministry of Finance and Company Affairs is a member, the ratio of the judgment is categorical, which is to the effect that Secretaries of the sponsoring departments cannot be members of the Search-cum-Selection Committee. We, therefore, see no conflict of opinion in the two judgments as argued by the learned Attorney General. However, we find merit in the submission of the learned Attorney General that the presence of the Secretary of the sponsoring or parent department in the Search-cum- Selection Committee will be beneficial to the selection process. But, for reasons stated above, it is settled that the Secretary of the parent or sponsoring Department cannot have a say in the process of selection....
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....a disincentive for competent persons to seek appointment as Members of Tribunals. The learned Attorney General submitted that the term of four years is subject to reappointment. He contended that advocates who are appointed at an early age can get more than one extension and continue till they reach the age of superannuation. After perusing the law laid down by this Court in MBA (1) [Union of India v. Madras Bar Assn., (2010) 11 SCC 1] and Rojer Mathew [Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1] which held that a short stint is anti-merit, we directed the modification of tenure in Rules 9(1) and 9(2) as five years in respect of Chairpersons and Members of Tribunals in MBA (3) [Madras Bar Assn. v. Union of India, (2021) 7 SCC 369] . This Court declared in SCC para 60.4 that the Chairperson, Vice-Chairperson and the Members of the tribunals shall hold office for a term of five years and shall be eligible for reappointment. The insertion of Section 184(11) prescribing a term of four years for the Chairpersons and Members of Tribunals by giving retrospective effect to the provision from 26-5-2017 is clearly an attempt to override the declaration of law by this Court under ....
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....rashtra were made vide order dated 05.10.2023, subsequent to the matter having been reserved for judgment. However, considering the nature of the lis and the grievance sought to be espoused, the appointed candidates are certainly proper and necessary parties to the litigation, as they have gone through the entire selection process. A decision taking away the civil rights that accrued to them, could not have been rendered, without hearing them. 88. The High Court, under Article 226 of the Constitution, is also a Court of equity and good conscience, and ought to have taken note of the fact that the selection process had almost been completed during the pendency of the writ petitions before it. Thus, we are inclined to hold that the 112 candidates appointed by the State of Maharashtra are entitled to continue and complete their tenure. 89. We are inclined to grant the said relief on one more count. The candidates merely participated in the selection process pursuant to the advertisement made by the State of Maharashtra. Thus, their participation in the selection process was bona fide and genuine. As already held by us, Paper II is valid. Therefore, in the absence of any proof th....
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....he satisfies the qualifications, on a recommendation of the Selection Committee. The Selection Committee while making recommendation shall take into consideration the Confidential Reports, the disposal of cases, the performance during the time of first appointment, a general reputation of a candidate and the complaints, if any, pending against the candidate. 10. Term of office of President or Member.- (2) Every member of the State Commission and the President and every member of the District Commission shall hold office for a term of four years or upto the age of sixty-five years, whichever is earlier and shall be eligible for reappointment for another term of four years subject to the age limit of sixty-five years, and such reappointment shall be made on the basis of the recommendation of the Selection Committee. 92. Rule 8(18) of the 2019 Rules, though not comparable with Rule 10(2) of the 2020 Rules in its entirety, is in fact, narrower in scope qua reappointments, as it restricts the discretion of the Selection Committee, and therefore, a glaring inconsistency comes forth qua Rule 10(2) of the 2020 Rules read with Rule 6(9) of the 2020 Rul....
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....lection of the President and Members of the District Commission and Members of the State Commission, respectively, would be made by the Selection Committee constituted under Section 10(1A) and Section 16(1A) of the 1986 Act. The said Selection Committee comprised the President of the State Commission as Chairman, the Secretary of the Law Department of the State and the Secretary in charge of the Department dealing with Consumer Affairs in the State as Members, and in the event of the President of the State Commission being unable to act as Chairman of the Selection Committee, the matter could be referred to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman. 94. The 2020 Rules, on the other hand, vide Rule 6(1), provides that the Selection Committee would comprise the Chief Justice of the High Court or any Judge of the High Court nominated by him as Chairperson, a Secretary in charge of Consumer Affairs of the State Government and a Nominee of the Chief Secretary of the State, as Members. It is thus evident that the President of the State Commission does not form part of the Selection Committee in the 2020 Rules. This being s....
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....dered after the new Rules are notified. 98. In this connection, we deem it fit to clarify that the consideration for reappointment under the new Rules can be made, subject to the satisfaction of the Selection Committee, qua the posts of President of the State Commission, Judicial Members of the State Commission and President of the District Commission, while for Non-Judicial Members of the State Commissions and Members of the District Commissions, it would depend upon the eligibility and qualification that shall be fixed by the Union of India under the new Rules, subject to the condition that a written examination followed by a viva voce must be conducted. The same would apply for reappointment even beyond a second term. At this juncture, we also deem it fit to clarify that the writ petitions pending before the High Court of Bombay, challenging the termination order dated 06.10.2023 and seeking reappointment on the ground of not being required to give the written examination followed by a viva voce, will have to be decided in terms of this judgment and larger principles of law. 99. Accordingly, Impugned Order - I stands set aside to the extent indicated above. Consequently, C....
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.... in service, if not currently serving, and be allowed to complete their tenure in entirety. DIRECTIONS 102. In view of the aforesaid discussion, we deem it fit to pass the following directions, in exercise of the powers conferred under Article 142 of the Constitution:- 1) The Union of India is directed to file an affidavit on the feasibility of a permanent adjudicatory forum for consumer disputes, either in the form of a Consumer Tribunal or a Consumer Court, within a period of 3 months from today, on the touchstone of the constitutional mandate. Such a forum shall consist of permanent members, including both staff and the Presiding officers. The Union of India may also consider facilitating sitting Judges to head the fora. The strength may be increased adequately. 2) In view of the submission made on behalf of the Union of India, we direct the Union of India to notify the new Rules within a period of 4 months from the date of this Judgment, strictly adhering to the following: a. The earlier view of this Court in Rojer Mathew (supra), MBA - III (supra) and MBA - IV (supra), with respect to the tenure of office being five years, being both logical an....
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....g before the completion of the recruitment process under the new Rules to be notified, their appointment shall be allowed to continue until the completion of the said recruitment process. 2 Persons seeking reappointment in the State of Maharashtra, after their services had been terminated vide order dated 06.10.2023. They can be considered for reappointment in the State and District Commissions, based on the new Rules to be notified, subject to the condition that persons seeking reappointment to the posts of President and Judicial Members of the State Commission and President of the District Commission, shall not be required to undergo a written examination followed by a viva voce, while Non- Judicial Members of the State and District Commissions, shall be required to undergo a written examination followed by a viva voce. The writ petitions pending before the High Court of Bombay challenging the said termination order of the State of Maharashtra dated 06.10.2023, will have to be decided in terms of this judgment and larger principles of law. 3 Presidents and Members of the State and District Commissions who have been appointed and serving prior to Limaye - I (supra).....