MEENA VERMA versus STATE OF HIMACHAL PRADESH AND ANOTHER on 19 September 2018

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

[2018] 11 S.C.R.

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MEENA VERMA

v.

STATE OF HIMACHAL PRADESH AND ANOTHER

(Civil Appeal No. 5710 of 2018)

BSEPTEMBER 19, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Service Law:

CSelection – As part time female member of Consumer DisputesRedressal Commission – Respondent (Candidate) and the appellant(another candidate) obtained equal marks – In the Selection Listrespondent was placed higher than the appellant – List was drawnin accordance with performance – State Government selected theappellant on the basis of her better public experience – Writ petitionDchallenging the selection – High Court set aside the selection – Onappeal, held: As the respondent was higher in the Selection List bythe Selection Committee on the basis of performance of thecandidates, she was more suitable than the appellant – Addition ofpublic experience, in absence of any Rule or any executiveEinstruction was uncalled for – Selection was rightly set aside byHigh Court.

Dismissing the appeal, the Court

HELD: The Selection Committee was presided by thePresident of the Commission and the other members wereFPrincipal Secretary (FCS&CA) to the Government of H.P. andPrincipal Secretary (Law) to the Government of H.P. TheCommittee had used the phraseology “On the basis of theperformance of the candidates”. The panel was drawn for thefemale members. It had placed respondent No. 2 at serial No. 2Gand the appellant at serial No. 3. The Committee had drawn thelist in accordance with performance and, therefore, respondentNo. 2 was more suitable than the appellant. The State Government,while issuing the notification, had not ascribed any reasons.However, the Principal Secretary had given a note that the H

“present appellant had public experience” and on that basis, theChief Minister signed the file and the notification was issued.The matter would have been different had there been a Rule toenable the State Government to choose a person from the panel.In the absence of any Rule or any executive instruction, whenthe Committee had drawn a panel on the basis of performanceand placed the candidates in seriatim on the basis of the saidperformance, the High Court correctly expressed the opinionthat the addition of public experience was uncalled for. [Para 12][698-C-F]

S. Chandramohan Nair v. George Joseph and others(2010) 12 SCC 687 – relied on.

State of Kerala and another v. K. Reghu Varma andothers AIR 2010 Kerala 28 – referred to.

Case law reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5710of 2018.

From the Judgment and Order dated 12.12.2017 of the HighCourt of Himachal Pradesh at Shimla in CWP No. 1571 of 2017

Ritesh Khatri, Adv. for the appellant.

Abhinav Mukerji, AAG, H.P., Bihu Sharma, Siddharth Garg, AmitSingh Chandel, Abhijat P. Medh, Aman Parth, Advs. for the respondents.

The Judgment of the Court was delivered by DIPAK MISRA, CJI 1. The second respondent, being grievedby the appointment of the appellant as a part time female member in theHimachal Pradesh Consumer Disputes Redressal Commission (for short,‘the Commission’), had assailed the same by way of a Writ Petitionbeing C.W.P. No. 1571 of 2017 preferred under Article 226 of theConstitution before the High Court of Himachal Pradesh at Shimla. TheHigh Court, by the impugned judgment and order dated 12.12.2017,quashed the appointment of the appellant and directed the Commission A

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Ato consider the case of the writ petitioner stating, inter alia, that she isotherwise meritorious and more experienced as compared to the appellantfor appointment as a member in the Commission. Hence, the appeal byspecial leave.

2. The facts which are necessary to be enumerated are that onB25.04.2016, one post of part time female Member along with othervacancies meant for various District Fora was advertised by the PrincipalSecretary (Food, Civil Supplies & Consumer Affairs) of the Governmentof Himachal Pradesh. The advertisement stipulated the qualifications,namely, that the candidate shall not be less than 35 years of age; that sheshould possess a Bachelors degree from a recognized University; andCthat she should be a person of ability, integrity and standing havingknowledge and experience of at least ten years in dealing with problemsrelating to economics, law, commerce, accountancy, industry, publicaffairs or administration. It was further mentioned therein that the parttime Member so appointed shall hold office for a term of five years orDup to the age of sixty seven years in the case of the Commission andsixty five years in the case of District Consumer Forum, whichever isearlier. The Selection Committee of which the President of theCommission was the Chairman held the interview on 02.07.2016 andthe Committee recommended four names on the basis of the performanceof the candidates for the member of the Commission. In the select list,Ethe names of the respondent no. 2 and the appellant appeared at serialnos. 2 and 3 respectively. The candidate, who obtained the highestmark, was not available for appointment, for she had already been engagedagainst some post in the Himachal Pradesh University. The firstrespondent selected the appellant as a part time member in the FCommission. A representation was submitted by the second respondenton which no action was taken and, therefore, she approached the HighCourt for redressal of her grievances.

3. On behalf of the respondent no. 2, the writ petitioner, it wascontended before the High Court that when the recommendation of theGSelection Committee clearly stated that it had prepared a panel on thebasis of the performance of candidates in the interview and when hername was put at serial no. 2, she could not have been ignored.

4. The first respondent contested the aforesaid stand put forth bythe writ petitioner and submitted that the writ petitioner and the selected H

candidate had obtained equal marks and the State Government selectedthe candidate whose name featured at serial no. 3 on the basis of herpublic experience. That apart, it was asserted that the duty andresponsibility of the Selection Committee is to empanel the eligible andsuitable candidates for appointment as members of the Commission andthe appointing authority is free to appoint any candidate recommendedfor appointment by the Selection Committee and named in the panel.According to the first respondent, solely because the writ petitioner wasplaced at serial no. 2 and is senior in age to the selected candidate, shecould not claim to be appointed as a matter of right and, therefore, theappointment of the selected candidate could not be annulled.

5. The High Court called for the records pertaining to the selectionprocess and the decision taken on the same. The notings in the file arereproduced as under:- “N/155:- It has come to the notice that in r/o State Consumer Commission,the recommended candidate at Sr. No. 1 (Dr. Karuna Machhan)has already joined her service on 24.09.2016 in HPU on herappointment as Assistant Professor. As such, she may now notlike to accept this position if offered. .......... Submitted pl.

Sd/-

5-10-2016

Pr. Secy. ((FCS&CA)

N/156:

For the State Commission two candidates have equal marks. Basedon public experience Smt. Meena Verma can be appointed. ForDistrict Forums, N 147 to 150 be seen.

Sd/-

Principal Secretary5/10(Minister) 6/10

Hon’ble Minister F&CS Sd/-Hon’ble CM”

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A6. On the basis of the aforesaid decision, the appellant herein wasappointed and continued to serve in the Commission as a part timemember. In the course of hearing, the High Court was not satisfied withthe reasons as regards the stand pertaining to public experience of theselected candidate and directed the Additional Chief Secretary (Food,Civil Supplies and Consumer Affairs) to the Government of HimachalBPradesh to assist the Court. The Additional Chief Secretary made certainstatements before the High Court which are reflected from the orderdated 04.12.2017. The said statements are to the following effect:- “Mr. Tarun Kapoor, Additional Chief Secretary, Food, Civil Suppliesand Consumer Affairs to the Government of Himachal PradeshCis present in person.

We have been informed that as per the practice prevalent, theSelection Committee prepares the panel and submit the same tothe Government for appointment of Member(s) in DistrictConsumer Fora and H.P. State Consumer Disputes RedressalDCommission, Shimla. In the past also, the Minister/Chief Ministerhas ordered the appointment of such Member(s) without adheringto the position of empanelled candidate in the panel so prepared.No rules, guidelines or instructions governing the appointment ofsuch Member(s) are yet framed. According to Mr. Kapoor, theEmatter qua framing rules for appointment of the Member(s), DistrictConsumer Fora and State Redressal Commission is underconsideration of the department. It is in this backdrop, this petitionis to be heard further and for that list on 11.12.2017.”

7. As the impugned order would show, the High Court furtherFheard the matter and opined that the State Government had discriminatedagainst the writ petitioner and its action is arbitrary which invites thewrath of Articles 14 and 16 of the Constitution of India. It furtherobserved that it is even beyond imagination that the appellant, that is, theprivate respondent before the High Court, is having better publicexperience than the writ petitioner when the latter is senior in age asGcompared to the former. The High Court was of the view that a personsenior in age would have better experience in all spheres of life includingpublic experience and, therefore, the writ petitioner having enrolled asan Advocate in the year 1992 and in effective legal practice since then

not only in the High Court but also in the State Administrative Tribunaland various quasi judicial authorities including the State ConsumerDisputes Redressal Commission/District Consumer Disputes RedressalForum, was certainly well versed with various social problems ascompared to the private respondent who, as per the details in thedocuments furnished along with her application, was a post graduate incommerce and also did the Master’s degree in business administration,which qualification she acquired in the year 2012. While the privaterespondent was studying up to 2012, the writ petitioner was in effectivelegal practice since 1992. The High Court observed that it was notcomprehensible as to what prompted the first respondent to assess herpublic experience to be better than that of the writ petitioner. After sosaying, the High Court recorded a finding that although the Rulesgoverning the appointment of the member in the State Commission/District Consumer Fora had not been framed by the State, yet the Rulesgoverning the service conditions of the Government employees could betaken note of. This reason was given to justify the placement of candidateson the basis of their performance in the interview by the Commission.The High Court noted that in a case of bracketed candidates as per theGovernment Rules, the senior in age and rank as compared to thebracketed candidate who is junior in age is to be given priority. It furtherobserved that though the respondent-State is making the appointmentout of the empanelled candidates to the members of the Commission,yet it is bound to adhere to their merit and the pick and choose policy hasno sanctity in law. It further went on to adjudge the merit of the twocandidates while stating that the writ petitioner was more meritorious,regard being had to experience in academic, professional and socialspheres as compared to the selected candidate. It distinguished thedecision rendered by the High Court of Kerala in State of Kerala andanother v. K. Reghu Varma and others[1] on the ground that there is aprevalent Rule in the State of Kerala, while it is not so in the State ofHimachal Pradesh. Placing reliance on the decision in S. ChandramohanNair v. George Joseph and others[2], the High Court held that theprinciples stated therein supported the stand of the writ petitionerinasmuch as there was no justification on behalf of the State Governmentto select the candidate on the ground that she had more public experience.

1 AIR 2010 Kerala 28

2 (2010) 12 SCC 687

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A8. We have heard Mr. Ritesh Khatri, learned counsel for theappellant, Mr. Abhinav Mukerji, learned Additional Advocate Generalfor the respondent no. 1-State and Mr. Amit Singh Chandel, learnedcounsel for the respondent no. 2.

9. There is no dispute that the first respondent has not framed anyBRules for the purpose of selection. In S. Chandramohan Nair (supra),a two-Judge Bench was dealing with a situation wherein the DivisionBench of the High Court of Kerala had allowed the writ petition andquashed the appointment of the appellant therein as the member of theKerala State Consumer Disputes Redressal Commission. This Courtreferred to the Rules, namely, Kerala Consumer Protection Rules, 2005Cand opined:-

“17. An analysis of these provisions shows that appointment ofjudicial and other members is required to be made by the StateGovernment on the recommendation of the Selection Committee.If the Chairman and/or the members of the Selection CommitteeDdo not agree on the candidature of any particular person, thenopinion of the majority would constitute recommendation of theSelection Committee. Though, the State Government is not boundto accept the recommendations made by the Selection Committee,if it does not want to accept the recommendations, then reasonsEfor doing so have to be recorded. The State Government cannotarbitrarily ignore or reject the recommendations of the SelectionCommittee. If the appointment made by the State Government issubjected to judicial scrutiny, then it is duty-bound to produce therelevant records including recommendation of the SelectionCommittee before the court to show that there were valid reasonsFfor not accepting the recommendation.”

Further, adverting to the facts, the Court observed:- “19. While deciding Writ Appeal No. 968 of 2007, the DivisionBench of the High Court was unduly influenced by the fact thatGthe Chairman of the Selection Committee had initially recordeddissent and at the end of the minutes he separately appended anote suggesting that there was no difference of opinion betweenhim and two members and concluded that name of the appellantwas recommended only by the Chairman and not by the members.

It appears that attention of the Division Bench was not drawn tothe affidavit filed by Smt Sheela Thomas in Writ Petition No.13058 of 2006 wherein she had categorically averred that a panelof three names including that of the appellant was recommendedto the State Government and the difference of opinion was onlyon the candidature of Shri K.V. Thomas. We have no doubt that ifthe learned counsel appearing for the parties had properly assistedthe Division Bench of the High Court, it may not have recordedthe observation that the name of the appellant was recommendedonly by the Chairman and not by the members.

20. That apart, be that as it may, we are convinced that the nameof the appellant had been recommended by entire body of theSelection Committee i.e. the Chairman and the members. If thiswas not so, either of the two members would have, after comingto know of the minutes recorded by the Chairman, lodged a protestor sent communication to the State Government that they had notrecommended the name of the appellant and that the minutesrecorded by the Chairman did not reflect the actualrecommendations. However, the fact of the matter is that neitherof them lodged any objection nor sent any communication to theState Government. Therefore, the contrary observations madeby the Division Bench in Writ Appeal No. 968 of 2007 cannot butbe termed as erroneous and the same could not have been reliedupon for quashing the appointment of the appellant.”

10. In the case at hand, the appellant and the respondent no. 2have obtained equal marks. The State Government chose to appoint theappellant who was at serial no. 3 on the foundation that she had betterpublic experience. In S. Chandramohan Nair (supra), the Rule hadconferred power on the Government to select any one of the candidatesfrom the panel by ascribing reasons. The Court was of the opinion thatthe case of the appellant therein was arbitrarily ignored and, accordingly,it dislodged the judgment and order of the High Court.

11. In the instant case, the Selection Committee has observed:-

11. In the instant case, the Selection Committee has observed:- “On the basis of the performance of the candidates, werecommend appointment of following candidates as Members ofthe State Commission and various District Fora, out of the followingpanels, drawn separately, for each vacancy:

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SUPREME COURT REPORTS

[2018] 11 S.C.R.

AFemale Member, H.P. State Consumer Commission:

12. On a perusal of the same, it is noticeable that the Committeewas presided by the President of the Commission and the other membersCwere Principal Secretary (FCS&CA) to the Government of H.P. andPrincipal Secretary (Law) to the Government of H.P. The Committeehad used the phraseology “On the basis of the performance of thecandidates”. The panel was drawn for the female members. It had placedthe respondent no. 2 at serial no. 2 and the present appellant at serial no.D3. As it appears, the Committee had drawn the list in accordance withperformance and, therefore, the respondent no. 2 was more suitablethan the appellant. The State Government, while issuing the notification,had not ascribed any reasons. However, as is seen from the recordsproduced before the High Court, the Principal Secretary had given anote that the “present appellant had public experience” and on thatEbasis, the Chief Minister signed the file and the notification was issued.The matter would have been different had there been a Rule to enablethe State Government to choose a person from the panel. In the absenceof any Rule or any executive instruction, when the Committee had drawna panel on the basis of performance and placed the candidates in seriatimFon the basis of the said performance, we are disposed to think that theHigh Court correctly expressed the opinion that the addition of publicexperience was uncalled for.

13. In view of the aforesaid analysis, we do not perceive anymerit in this appeal and the same is, accordingly, dismissed with no orderGas to costs.

Kalpana K. Tripathy

Appeal dismissed.

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