THE SECRETARY MINISTRY OF CONSUMER AFFAIRS versus DR. MAHINDRA BHASKAR LIMAYE & ORS. on 3 March 2023

[2023] 4 S.C.R. 289

THE SECRETARY MINISTRY OF CONSUMER AFFAIRS

v.

DR. MAHINDRA BHASKAR LIMAYE & ORS.

(Civil Appeal No. 831 of 2023)

MARCH 03, 2023

[M. R. SHAH AND M. M. SUNDRESH, JJ.]

Consumer Protection (Qualification for appointment, methodof recruitment, procedure of appointment, term of office, resignationand removal of President and Members of State Commission andDistrict Commission) Rules, 2020 – rr.3(2)(b), 4(2)(c), 6(9) – Validityof – Held: rr.3(2)(b), 4(2)(c), 6(9) which are contrary to thedecisions of Supreme Court in State of Uttar Pradesh and Others v.All Uttar Pradesh Consumer Protection Bar Association [2016] 8 SCR851 and Madras Bar Association v. Union of India and Another [2020]2 SCR 246 are unconstitutional, arbitrary and violative of Art.14 –rr.3(2)(b) & 4(2)(c) struck down to the extent providing minimum20 years’ and 15 years’ experience for appointment as a Member inthe State and District Commission, respectively – Central Governmentand the concerned State Governments to amend the 2020 Rules –Till amendments are made, directions issued for appointment ofPresident and Members of the State Commission and DistrictCommission – A person having bachelor’s degree from a recognizedUniversity and who is a person of ability, integrity and standingand having special knowledge and professional experience of notless than 10 years in consumer affairs, law, public affairs etc., shallbe treated as qualified for appointment of President and Membersof the State and District Commission – Appointment shall be madeon the basis of performance in written test consisting of two papers– Qualifying marks in each paper shall be 50% and there shall bea viva voce of 50 marks – Consumer Protection Act, 2019 –Consumer Protection Act,1986 – Consumer Protection(Appointment,Salary, Allowance and Conditions of Service of President andMembers of State Commission and District Forum) Rules, 2017 –Constitution of India – Art.14, 142.

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Aand removal of President and Members of State Commission andDistrict Commission) Rules, 2020 – r.6(9) – Held: Under r.6(9), theSelection Committee is empowered with uncontrolled discretionarypower to determine its procedure to recommend candidates to beappointed as President and Members of the State and DistrictCommission – Transparency and selection criteria are absent –BWhile making the appointment as Members of the District Fora,State Commission there is a need to assess the skill, ability, andcompetency of the candidates before they are empanelled andrecommended to the State Government – 2020 Rules do notcontemplate written examination to test the merits of the candidateC– Written examination which was confirmed by the Supreme Courthas been removed under the new 2020 Rules – No justification shownto do away with it – Consumer Protection Act, 2019 – ConsumerProtection Act, 1986 – Consumer Protection (Appointment, Salary,Allowance and Conditions of Service of President and Members ofState Commission and District Forum) Rules, 2017.D

Tribunals – Quasi-judicial authorities, standards expectedfrom the members – Held: Commissions are quasi-judicial authorities,therefore, the standards expected from the members of the tribunalshould be as nearly as possible as applicable to the appointment ofjudges exercising such powers – Consumer Protection Act, 2019 –EConsumer Protection (Qualification for appointment, method ofrecruitment, procedure of appointment, term of office, resignationand removal of President and Members of State Commission andDistrict Commission) Rules, 2020 – Consumer Protection Act, 1986– Consumer Protection (Appointment, Salary, Allowance andFConditions of Service of President and Members of State Commissionand District Forum) Rules, 2017.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1.1 The High Court in the impugned judgment andorder has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c)Gand Rule 6(9) of the Rules, 2020 which are contrary to thedecisions of this Court in the cases of State of Uttar Pradesh andOthers Vs. All Uttar Pradesh Consumer Protection Bar Association(UPCPBA) and the Madras Bar Association are unconstitutionaland arbitrary. Even otherwise Rule 6(9) lacks transparency andHit confers uncontrolled discretion and excessive power to the Selection Committee. Under Rule 6(9), the Selection Committeeis empowered with the uncontrolled discretionary power todetermine its procedure to recommend candidates to be appointedas President and Members of the State and District Commission.The transparency and selection criteria are absent under Rule6(9). In absence of transparency in the matter of appointments ofPresident and Members and in absence of any criteria on meritsthe undeserving and unqualified persons may get appointmentwhich may frustrate the object and purpose of the ConsumerProtection Act. It cannot be disputed that the Commissions areempowered with the powers of court and are quasi-judicialauthorities and empowered to discharge judicial powers with theadequate powers of the court including civil and criminal.Therefore, the standards expected from the members of thetribunal should be as nearly as possible as applicable to theappointment of judges exercising such powers. Under Rule 6(9)of Rules, 2020, the Selection Committee is having power todetermine its own procedure. Such provisions are also givingexcessive and uncontrolled discretionary powers to the SelectionCommittee. 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 itsprocedure for making its recommendation for appointment ofPresident and Members of the District and the State Commissionsis arbitrary and unreasonable. It is always desirable that whilemaking the appointment as Members of the District Fora and/orthe State Commission there is a need to assess the skill, ability,and the competency of the candidates before they are empanelledand recommended to the State Government. The Rules, 2020 donot contemplate written examination so as to test the merits ofthe candidate. In the case of UPCPBA, this Court expresseddeep concern over the bureaucratic and political interference inprocess of appointments. [Paras 6.4, 6.5][319-E, H; 320-A-D]

Madras Bar Association v. Union of India and Another(2021) 7 SCC 369 : [2020] 2 SCR 246; State of UttarPradesh and Others v. All Uttar Pradesh ConsumerProtection Bar Association (2017) 1 SCC 444 : [2016]8 SCR 851 – relied on.

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A1.2 Mechanism of having written examination was confirmedby this Court which has been removed under the new Rules,2020. Earlier under Consumer Protection Act, 1986, there wereRules, 2017 in so far as some of the States are concerned andRules, 2019 so far as the State of Maharashtra is concerned, whichprovided for a written examination and viva voce, which was underBthe Consumer Protection Act, 1986. The Consumer ProtectionAct, 1986 has been repealed and the Consumer Protection Act,2019 has come into force w.e.f. 24.07.2020 with a sole intentionto provide adequate safeguards to the consumers and thepecuniary jurisdiction of the District Fora and State CommissionsCare enhanced substantially. However, there is no substantialchange in the scheme with respect to the adjudication of theconsumer disputes. No justification at all is shown to do awaywith the written examination while framing the Rules, 2020 underthe Consumer Protection Act, 2019. Therefore, as rightlyobserved by the High Court, the Rule 6(9) of the Rules, 2020 isDunconstitutional, arbitrary and violative of Article 14 of theConstitution of India, more particularly, when the same is whollyimpermissible to override/overrule the earlier decisions of thisCourt and that too without any justification. This Court is incomplete agreement with the view taken by the High Court. [ParasE6.6-6.8][320-E-H; 321-A]

1.3 Under provision 4(1) of Rules, 2020, a person who iseligible to be appointed as a district judge (having minimumexperience of 7 years) is qualified to be appointed as Presidentof the District Commission but in order to be appointed as aFMember, Rule 4(2)(c) mandates a minimum experience of 15years which is rightly held to be violative of Article 14 of theConstitution. Similarly providing 20 years’ experience under Rule3(2)(b) also rightly held to be arbitrary and violative of Article 14of the Constitution. Even under Rule 3(1) a judge of the HighCourt, present or former, shall be qualified for appointment ofGthe President. As per Article 233 of the Constitution, a lawyerneeds to have only 7 years of practice as an advocate in HighCourt. Under the circumstances to provide 20 years’ experienceunder Rule 3(2)(b) is rightly held to be unconstitutional, arbitraryand violative of the Article 14 of the Constitution of India. ThisHCourt is in complete agreement with the view taken by the High Court. In the case of Madras Bar Association– MBA III, this Courtdirected to consider 10 years’ experience, after detail reasoning.[Paras 7.1, 7.2][321-C-F]

Madras Bar Association v. Union of India & Anr.- MBAIII (2017) 7 SCC 369 – relied on.

1.4 There is no reason to interfere with the impugnedjudgment and order passed by the High Court declaring Rule3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection(Qualification for appointment, method of recruitment, procedureof appointment, term of office, resignation and removal ofPresident and Members of State Commission and DistrictCommission) Rules, 2020 as arbitrary, unreasonable and violativeof Article 14 of the Constitution of India. The Central Governmentand the concerned State Governments have to amend Rules, 2020,more particularly, Rule 6(9) of the Rules, 2020, providing thatthe Selection Committee shall follow the procedure forappointment as per Model Rules, 2017 and to make theappointment of President and Members of the State Commissionand the District Commission on the basis of the performance inwritten test consisting of two papers of 100 marks each and 50marks for viva voce and the written test consisting of two papersmay be as per the schemes enumerated. The Central Governmentand the concerned State Governments have also to come with anamendment in the Rules, 2020 to provide 10 years’ experienceto become eligible for appointment of President and Member ofthe State Commission as well as the District Commission insteadof 20 years and 15 years respectively, provided in Rule 3(2)(b)and Rule 4(2)(c) which has been struck down to the extentproviding 20 years and 15 years of experience, respectively. Tillthe suitable amendments are made in Consumer Protection(Qualification for appointment, method of recruitment, procedureof appointment, term of office, resignation and removal ofPresident and Members of State Commission and DistrictCommission) Rules, 2020 as above, in exercise of powers underArticle 142 of the Constitution of India and to do complete justice,it is directed that in future and hereinafter, a person havingbachelor’s degree from a recognized University and who is aperson of ability, integrity and standing, and having special A

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Aknowledge and professional experience of not less than 10 yearsin consumer affairs, law, public affairs, administration, economics,commerce, industry, finance, management, engineering,technology, public health or medicine, shall be treated as qualifiedfor appointment of President and Members of the StateCommission. Similarly, a person of a person of ability, integrityBand standing, and having special knowledge and professionalexperience of not less than 10 years in consumer affairs, law,public affairs, administration, economics, commerce, industry,finance, management, engineering, technology, public health ormedicine, shall be treated as qualified for appointment of PresidentCand Members of the District Commissions. It is also directedunder Article 142 of the Constitution of India that for appointmentof President and Members of the State Commission and DistrictCommission, the appointment shall be made on the basis ofperformance in written test consisting of two papers as per thescheme enumerated. The qualifying marks in each paper shallDbe 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. 2021SCC OnLine SC 463; State of Uttar Pradesh v. All UttarPradesh Consumer Protection Bar Association (2018)E7 SCC 423 : [2018] 4 SCR 503 – referred to.

GFrom the Judgment and Order dated 14.09.2021 of the High Courtof Judicature at Bombay at Nagpur in WP No. 1096 of 2021.

With

Civil Appeal Nos. 832 and 833 of 2023.

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R Venkataramani, A.G., Sanjay Jain, A.S.G., Ms. Sonia Mathur,Sr. Adv., Ms. Shraddha Deshmukh, Ms. Chinmayee Chandra, SidhantKohli, Chitvan Singhal, Ms. Mansi Sood, Amrish Kumar, Ms. HarshitaSukhija, Nishank Tripathi, Ms. Tanya Aggarwal, Arkaj Kumar, PadmeshMishra, Yuvraj Sharma, Dr. Uday Prakash Warunjikar, Pravartak SuhasPathak, Ms. Ankita Chaudhary, Siddharth Dharmadhikari, AadityaAniruddha Pande, Bharat Bagla, Ms. Kirti Dadheech, Ms. Astha Sharma,Dr. Tushar Mandlekar, Ravinder Singh, Ms. Raveesha Gupta, SrisatyaMohanty, Sanjeev Kaushik, Mantika Haryani, Shreyas Awasthi, HimanshuChakravarty, Devvrat Singh, Ms. Muskan Surana, Tejas Fadnavis, YatinM. Jagtap, Sunil Kumar Sharma, Ms. Kashmira Lambat, Ms. KishorLambat, Sachin Pahwa, Vaishnavi Gupta, M/s. Lambat & Legiteam,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

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 14.09.2021 passed by the High Court ofJudicature Bombay at Nagpur Bench at Nagpur in Public InterestLitigation No. 11/2021 and Writ Petition No. 1096 of 2021, by which, theDivision Bench of the High Court has struck down and has declaredRule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection(Qualification for appointment, method of recruitment, procedure ofappointment, term of office, resignation and removal of President andMembers of State Commission and District Commission) Rules, 2020(hereinafter referred to as the Rules, 2020) as arbitrary, unreasonableand violative of Article 14 of the Constitution of India, the Ministry ofConsumer Affairs, Union of India and State of Maharashtra havepreferred the present appeals.

2. In exercise of powers conferred by Sections 29 and 43, readwith clauses (n) and (w) of Sub-section (2) of Section 101 of theConsumer 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 appointmentof President and members of the State Commission. Rule 3(2)(b)

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Aprovided that a person shall not be qualified for appointment as a memberof the State Commission unless he possesses a bachelor’s degree froma recognized university and is a person of ability, integrity and standing,and has special knowledge and professional experience of not less thantwenty years in consumer affairs, law, public affairs….

B2.2 Rule 4 of Rules, 2020 provides for appointment of Presidentand member of District Commission. Rule 4(2)(c) provided that a personshall not be qualified for appointment as a member of the DistrictCommission unless he is a person of ability, integrity and standing, andhaving special knowledge and professional experience of not less thanfifteen 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 itsprocedure for making its recommendation keeping in view therequirements of the State Commission or the District Commission andafter taking into account the suitability, record of past performance,Dintegrity and adjudicatory experience.

2.4 Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) were the subjectmatter of challenge before the High Court being unconstitutional, arbitraryand 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 andmembers of the State Commission.—(1) A person shall notbe qualified for appointment as President, unless he is, or hasbeen, a Judge of the High Court; F(2) A person shall not be qualified for appointment as a memberunless he is of not less than forty years of age and possesses-—

(a) an experience of at least ten years as presiding officer of adistrict court or of any tribunal at equivalent level or combinedservice as such in the district court and tribunal:

GProvided that not more than fifty percent of such members shallbe appointed; or (b) a bachelor’s degree from a recognised university and is aperson of ability, integrity and standing, and has special knowledgeand professional experience of not less than twenty years inHconsumer 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 State Commissionshall be a woman.

4. Qualifications for appointment of President and memberof District Commission.—(1) A person shall not be qualifiedfor appointment as President, unless he is, or has been, or is qualifiedto be a District Judge.

(2) A person shall not be qualified for appointment as memberunless he—

(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 specialknowledge and professional experience of not less than fifteenyears 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 DistrictCommission shall be a woman.

6. Procedure of appointment.—(1) The President and membersof the State Commission and the District Commission shall beappointed by the State Government on the recommendation of aSelection Committee, consisting of the following persons,namely:—

(a) Chief Justice of the High Court or any Judge of the HighCourt nominated by him- Chairperson; (b) Secretary in charge of Consumer Affairs of the StateGovernment “ Member;

(c) Nominee of the Chief Secretary of the State—Member.

(2) The Secretary in charge of Consumer Affairs of the StateGovernment shall be the convener of the Selection Committee.

(3) No appointment of the President, or of a member shall beinvalid merely by reason of any vacancy or absence in the A

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Selection Committee other than a vacancy or absence of theChairperson.

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(4) The process of appointments shall be initiated by the StateGovernment at least six months before the vacancy arises.

(5) If a post falls vacant due to resignation or death of a memberor creation of a new post, the process for filling the post shall beinitiated immediately after the post has fallen vacant or is created,as the case may be.

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(6) The advertisement of a vacancy inviting applications for theposts from eligible candidates shall be published in leadingnewspapers and circulated in such other manner as the StateGovernment may deem appropriate.

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(7) After scrutiny of the applications received till the last datespecified for receipt of such applications, a list of eligible candidatesalong with their applications shall be placed before the SelectionDCommittee.

(8) The Selection Committee shall consider all the applications ofeligible applicants referred to it and if it considers necessary, itmay shortlist the applicants in accordance with such criteria as itmay decide.

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(9) The Selection Committee shall determine its procedure formaking its recommendation keeping in view the requirements ofthe State Commission or the District Commission and after takinginto account the suitability, record of past performance, integrityand adjudicatory experience.

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(10) The Selection committee shall recommend a panel of namesof candidates for appointment in the order of merit for theconsideration of the State Government.

(11) The State Government shall verify or cause to be verified thecredentials and antecedents of the recommended candidates.

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(12) Every appointment of a President or member shall be subjectto submission of a certificate of physical fitness as indicated inthe annexure appended to these rules, duly signed by a civil surgeonor District Medical Officer.

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(13) Before appointment, the selected candidate shall furnish anundertaking that he does not and will not have any such financialor other interest as is likely to affect prejudicially his functions asa 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 originalwrit petitioner on the following grounds: - (a)Uncontrolled discretion and excessive power to the selectioncommittee to determine its procedure to recommendcandidates to be appointed is arbitrary, unreasonable and inviolation of Article 14 of the Constitution of India.

(b) Considering the nature of work, the candidate’s competencyneeds to be tested before being recommended for theappointment to discharge judicial functions. Therefore, thecandidates who are being appointed must have a legalbackground.

(c) In the absence of the appointment of competent candidates,the object of the Consumer Protection Act is likely to befrustrated.

(d) The president and members of the State and DistrictCommission are empowered with the powers of the Court.In the appointment of Judicial Magistrate First Class(JMFC), the candidates are tested by written examinationand viva voce.

(e) The Draft model rules approved by this Hon’ble Court andaccepted by all the parties are not adhered with. Hence,contrary to the directions of this Hon’ble Court.

(f) The transparency and selection criteria are absent in thesaid rules.

(g) In absence of transparency in the matter of appointmentsof Chairman and Members, there is strong apprehension ofpolitical and executive interference.

2.6 It was also the case on behalf of the original writ petitionersbefore the High Court that this Court in the case of State of UttarPradesh and Others Vs. All Uttar Pradesh Consumer Protection A

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ABar Association; (2017) 1 SCC 444 (hereinafter referred to asthe UPCPBA), directed to frame model rules under the ConsumerProtection Act, 1986. Accordingly, model rules were framed by this Courtand accepted by all the parties. It was also the case on behalf of theoriginal writ petitioners that by adopting the model rules, many statesnotified the Consumer Protection (Appointment, Salary, Allowance andBConditions of Service of President and Members of State Commissionand District Forum) Rules, 2017 (hereinafter referred to as the Rules,2017) on 18.05.2018. It was submitted that model rules 2012 were alreadyin existence in the State of Maharashtra made on 03.01.2012 underSection 30 of the Consumer Protection Act, 1986 and the said RulesCalready had the provision of written examination of 100 marks for aspiringcandidates/applicants for the post of President and Members of DistrictConsumer Forum under Rule 10. It was submitted that the ConsumerProtection Act, 2019 (hereinafter referred to as the Act, 2019) cameinto force with effect from 20.07.2020 by repealing the erstwhile statuteConsumer Protection Act, 1986. It was also argued on behalf of theDoriginal writ petitioners that under the Rules 2020, the power conferredupon the Selection Committee to determine its own procedure for selectionof President and Members of the District and the State Commissionconstituted under the Act, 2019 is in contravention of the decision of thisCourt in the case of UPCPBA (supra). It was also argued on behalf ofEthe original writ petitioners that looking at the judicial functions to beperformed by President and Members of the District and StateCommissions constituted under the Act, 2019, the selection without holdingwritten examination, but, only on the basis of viva voce, would result intoselection of unsuitable candidates which will further result in denial ofjustice. It was also argued on behalf of the original writ petitioners thatFprescribing minimum experience of 20 years and 15 years for Presidentand Members of State and District Commission respectively, is contraryto the directions issued by this Court in the case of Madras BarAssociation Vs. Union of India and Another; (2021) 7 SCC 369.That thereafter, by the impugned common judgment and order the HighGCourt 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 andviolative of Article 14 of the Constitution of India and contrary to theobservations and directions issued by this Court in the case of UPCPBA(supra). The High Court has specifically observed that granting completediscretion under the Rules 2020 to the Selection Committee to determineH

its own procedure would result in creating a situation which has beennarrated in the case of UPCPBA (supra) and will again lead to widevariations in standards as well as a great deal of subjective, bureaucraticand political interference, and finally it will result in denial of justicewhich will be in violation of Article 14 of the Constitution of India. Thatwhile holding the aforesaid provisions unconstitutional, unreasonable andarbitrary, the High Court has considered the historical background oftribunalisation and the fact that the tribunals are endowed with the judicialfunctions with a duty to decide the matters in judicious manner. Therefore,the High Court has opined and observed that the standards expectedfrom the judicial members of the tribunals and standards applied forappointing such members, should be as nearly as possible as applicableto the appointment of judges exercising such powers. That thereafter,following the decisions of this Court in the case of Madras BarAssociation (supra) and UPCPBA (supra), the High Court hasconcluded and passed the final order as under: - A

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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) andRule 6(9) of the Rules of 2020, are arbitrary, unreasonableand violative of Article 14 of the Constitution of India for thereasons recorded herein above and hence are quashed andEset aside;

iv. The Union of India is directed to provide for appropriatelymade Rules as substitutes for Rule 3 (2)(b), Rule 4(2)(c) andRule 6(9) of the Rules, 2020, declared unconstitutional, keepingin view the observations made in the judgment, within fourweeks from the date of the judgment and order; F

v.The vacancy notice dated 2nd February, 2021 issued by therespondent no. 2 for inviting applications for the post ofMembers of the State Commission and President andMembers of the District Commission, is hereby quashed andGset aside; vi. The process of selection of Members of the State Commissionand President and the Members of the District Commission,initiated in pursuance to the vacancy notice dated 2ndFebruary, 2021, stands cancelled; H

Avii. Fresh process of selection of members of the StateCommission, President and the members of the DistrictCommission be initiated in accordance with the amended Rulesand completed at the earliest as directed by the Hon’bleSupreme Court of India; Bviii. It is made clear that we have not dealt with the validity ofappointment 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 theCHigh Court is the subject matter of present appeals.

3. Shri R. Venkataramani, learned Attorney General for India hassubmitted that after the matters were heard by this Court on 17.11.2022and 18.11.2022, where this Court was of the prima facie view that Rule6(9), which deals with the procedure of appointment, left too muchDdiscretion in the hands of the selection committee, and that there oughtto have been some objective criteria on the basis of which the fitnessand suitability of candidates be tested, such as a written examination. Itis pointed out that based on the observations that fell from this Court onthe previous dates of hearing, the matter was considered by theEGovernment and pursuant thereto, a meeting was called between theUnion of India and all the State governments to consider the desirabilityand feasibility of conducting a written examination for appointment tothe State and District Commissions, or in the alternate, to consider as towhether rules or guidelines can be made which would reduce thediscretion available to the Search-cum-Selection Committees whileFcarrying out appointments. It is submitted that in the course of discussionsbetween the States, it was observed that most states were not in favourof conducting written tests. It is submitted that based on the discussionin the said meeting, it was observed that a written examination forappointments of members of tribunals as a uniform policy would be neitherGfeasible 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 beeconomically or practically feasible to conduct anexamination for five or six posts., H

(ii) Most tribunals require appointment of members withAexpertise in varied relevant fields, such as consumer affairs,economics, law, securities, finance, telecom, electricity, andso on. A single written examination with a common syllabuswould not be possible and one may have to conduct adifferent examination for each different area of expertise,Bwhich would make the whole process arbitrary and unwieldy.

(iii) Competent, eminent, and successful persons aged overthirty five or forty or even fifty may not be willing to writea written examination and then have their marks publishedopenly, which would dissuade a large number of people whomay be desirable from applying.

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(iv) Persons with experience of fifteen or twenty years may nolonger have the requisite examination giving skills, and awritten examination may unduly favour academics orresearchers as opposed to people who are in the fieldpractically or in a corporate environment or in some othernon academic field.

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(v) Conducting a written examination may lengthen the entireprocess of appointment, which already takes 4-6 monthson account of the requirement of advertisement, publicnotice, receipt of applications and verification of documents,IB inputs, tax and medical reports, and then a personalinteraction with the Selection Committee. This may end upincreasing the number of vacancies in the tribunals, whichis not desirable.

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(vi) Prescribing a uniform requirement of a written examinationacross states would fail to take into account the localrequirements of each state - for instance, the number ofapplications received in the smaller states such as Assamor Goa or Sikkim are very low, and sometimes even lesserthan the number of posts advertised. A written examinationmay lead to greater difficulties in filling up the vacant posts.

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(vii) Prescribing a uniform requirement of a written examinationacross tribunals is also not considered desirable, as eachtribunal has its own eligibility criteria and different categoriesof persons would fall in their zone of consideration. For H

Ainstance, several posts can only be manned by retired judges,and it would not be appropriate to subject judges of theSupreme Court or the High Courts to a written examination.Equally, very few people are actually eligible to be appointedas technical members to specialised tribunals such asTDSAT or APTEL, and eminent persons in the field ofBtelecom or electricity may not wish to write examinationsto leave lucrative careers in their areas of expertise. Thiswould lead to the tribunals losing out on desirable persons,who may otherwise wish to join these tribunals in the spiritof public service.

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3.1 Shri R. Venkataramani, learned Attorney General for Indiahas further submitted that based on the further discussions in the meetingheld on 13.01.2023 between Union of India and all the States/UTs toconsider the uniform measures to guide the Selection Committees in theexercise of their selection processes, it has been proposed that theDfollowing proviso, to provide for the issuance of necessary instructionsto guide the discretion available to the Selection Committee, could beconsidered to be inserted below Rule 6(9) of the Rules, 2020: - “Provided that the Selection Committee shall be guided by theinstructions, as may be issued, by order, by the Central GovernmentEfrom time to time, while making assessment of a candidate inregard to his suitability for appointment as President or memberin the State Commission or the District Commission.”

3.2 It is further submitted that in so far as the development ofuniform measures to be applicable to appointments in the StateFCommissions and the District Commissions (President and Members)across the country is concerned, the following measures, keeping in viewthe level of the posts, the statutory functions to be discharged by theholders of these posts, the very objective enshrined in the ConsumerProtection Act, 2019, are considered to be formulated:- Ga.The selection of a candidate for appointment as the Presidentor member in the State Commission or the DistrictCommission may be based on the marks secured by him,out of a total of 100 marks. The total marks (100) may bethe sum of; (i) 60 marks for an interview; and, (ii) 40 marksfor certain special achievements of a candidate.

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b.The aforesaid formulation, if found in order by this Hon’bleACourt, can be treated as an instruction under the abovesaid proviso.

c.The rationale behind the proposed distribution of marks insuch a way where the interview component would outweighthe other, is to ensure the selection of the most suitableBcandidate, given the level of the posts and duties attachedthereto.

d.The distribution of 40 marks for special achievements maybe considered as under:

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3.3 It is submitted that on an overall consideration of thedeliberations, it appears that the conduct of a written test which hasseveral handicaps will not be feasible and shall not be most suitablemeasure for the purpose of selection.

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4. While opposing the present appeals Dr. Uday Prakash Warnjikarand Dr. Tushar Mandalekar, learned counsel appearing on behalf of therespective respondents have vehemently submitted that in the facts and H

Acircumstances of the case the High Court has not committed any errorin declaring Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of Rules, 2020as arbitrary, unreasonable, and violative of Article 14 of the Constitutionof India.

4.1 It is submitted that the bone of contention of the presentBrespondent is to have the highest standards and strict scrutiny before thecandidates are being appointed in the Consumer State Commission andDistrict Commissions. It is submitted that the selection method underthe Rules, 2020 and the process adopted by the appellant will lead to theappointment of incompetent candidates to adjudicate the consumerdisputes. It is submitted that under Rule 6(9), the selection committee isCempowered with uncontrolled discretionary powers to determine itsprocedure in the appointment of the President and Members of the Stateand District Commission. It is submitted that such delegation ofuncontrolled powers will cause undesirable results.

4.2 In support of their submissions that Rule 3(2)(b) and RuleD4(2)(c) and Rule 6(9) of Rules, 2020 are arbitrary, unreasonable, andviolative of Article 14 of the Constitution of India, it is submitted asunder: - (a)That the selection method under Rules, 2020 confersuncontrolled discretion and excessive power to the selectionEcommittee to determine its procedure to recommendcandidates to be appointed is arbitrary, unreasonable and inviolation of Article 14 of the Constitution of India; (b)Considering the nature of work, the candidate’s competencyneeds to be tested before being recommended for theFappointment to discharge judicial functions;

(c) In the absence of the appointment of competent candidates,the object of the Consumer Protection Act is likely to befrustrated; (d)The president and members of the State and DistrictGCommission are empowered with the powers of the Court.In the appointment of Judicial Magistrate First Class, whenthe candidates are tested by written examination and vivavoce, the similar procedure to be adopted for appointmentin the District and State Commissions; H

(e) The transparency and selection criteria are absent in theARules, 2020; (g)In absence of transparency in the matter of appointmentsof Chairman and Members, there is strong apprehension ofpolitical and executive interference.

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4.3 It is further submitted that even the Law Commission in its272[nd] Report suggested that the members of the newly constitutedtribunals should possess the qualifications akin to the judges of the HighCourt and District Court. The Report further recommended uniformityin the appointments.

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4.4 It is further submitted that as such this Court in the case ofUPCPBA (supra) directed to frame model rules under the ConsumerProtection Act, 1986. It is submitted that by the said judgment, modelrules were approved by this Court and accepted by all the parties. It issubmitted by adopting the model rules, many states notified the ConsumerProtection (Appointment, Salary, Allowances and Conditions of Serviceof President and Members of State Commission and District Forum)Rules, 2017 (hereinafter referred to as the Rules, 2017). It is furthersubmitted that the State of Maharashtra also adopted and approved themodel rules on 24.05.2019 in exercise of powers conferred under theprovisions of the Consumer Protection Act, 1986. It is further submittedthat even prior thereto, model rules 2012 were already in existence inthe State of Maharashtra under Section 30 of the Consumer ProtectionAct, 1986 and the said rules already had the provision of writtenexamination of 100 marks for aspiring candidates/applicants for the postof President and Members of District Consumer Forum under Rule 10.

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4.5 It is further submitted that as observed hereinabove this Courtapproved the uniform model rules for appointment, salary, servicecondition etc., for the effective adjudication of consumer disputes underthe Act, 1986. The said model rules were adopted by all the parties. It issubmitted that the adjudicatory powers of the consumer fora/commissionsare judicial functions. There is no change in the judicial functions of thePresident and Members of the State and District Commission. There isno change in the judicial functions of President and Members of theState and District Commission even post-Consumer Protection Act, 2019(Act, 2019) which have come into force with effect from 20.07.2020. Itis submitted that there is no change in the legislative scheme concerning G

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Aadjudication of consumer disputes under the Act of 2019. It is submittedthat as such the Consumer Protection Act, 2019 has come into forcewith effect from 20.07.2020 by repealing the erstwhile statute ConsumerProtection Act, 1986. It is submitted that the sole intention of thelegislature is to provide adequate safeguards to the consumers due todrastic changes in the modern market and the constantly emergingBvulnerability of the consumers. Under the Act, 2019, the pecuniaryjurisdictions of the District and State Commissions are enhancedsubstantially. However, there is no substantial change in the schemewith respect to the adjudication of the consumer disputes. Therefore,consumer commissions are quasi-judicial authorities empowered toCdischarge 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, theCommissions are empowered with the powers of the civil court andunder Section 72, the Commissions are empowered with the powers ofDJMFC. It is submitted that despite the above when the Rules, 2020 areframed by the Central Government in exercise of powers under Section101 of the Act, 2019 which provides for the impugned Rule 3(2)(b) andRule 4(2)(c) and Rule 6(9) made the things worse than the prevailing,prior to Rules, 2020.E4.7 It is further submitted that therefore, when the State and theDistrict Commissions are performing the quasi-judicial functions andjudicial functions and exercising the powers of the Court, to test thecompetence of the candidate written examination and viva-voce wouldbe necessary. Only interviews of the aspiring candidates would lead topolitical interference and undeserving results through such a selectionFprocess.

4.8 It is further submitted that Rule 6(9) provides uncontrolleddiscretion to the Selection Committee. Uncontrolled discretion in thematter of recommendations of candidates to be appointed to dischargejudicial functions is in clear violation of Article 14 of the Constitution ofGIndia. It is submitted this Court in the case of Madras Bar Association(supra) declared that “Article 14 clearly includes a right to have theperson’s rights adjudicated by a forum which exercises judicial powersin an impartial and independent manner, consistent with the recognizedprinciples of adjudication.” It is submitted that in the present case underHRule 6(9) the Central Government has granted complete discretion to determine the selection procedure without laying down criteria andstandards and the same is unreasonable and arbitrary.

4.9 It is further submitted that even the said provision is alsounreasonable on the ground that there is no check and balance underRules, 2020 over the Selection Committee. The Selection Committeehas absolute discretion in the recommendations of the candidates.

4.10 It is further submitted that there are four sources of candidatesto be appointed as president and members of the Commissions, viz.,serving judicial officers, retired judicial officers, advocates, or any otherindividuals having certain knowledge and experience. It is submitted thatthe Rules direct the selection committee to take into account suitability,a record of past performance, integrity and adjudicatory experience.The selection committee may consider the suitability of the retired orserving judicial candidates based on available record, however, thesuitability of the candidates coming from non-judicial sources, cannot bedetermined without testing the overall competency. It is submitted thatthe appointments with bias and without transparency would frustratethe object of the Consumer Protection Act.

4.11 It is further submitted that the Rules, 2020 as such nullify thejudgment of this Court in the case of UPCPBA (supra).

4.12 It is submitted that as observed and held by this Court in thecase of Madras Bar Association Vs. Union of India & Anr.; (2021SCC OnLine SC 463) in Writ Petition (C) No. 502/2021 decided on14.07.2021 that the permissibility of legislative override in this countryshould be in accordance with the principles laid down by this Court inthe catena of decision which are as under: - “44. The permissibility of legislative override in this countryshould be in accordance with the principles laid down by this Courtin the aforementioned as well as other judgments, which havebeen culled out as under:

a) The effect of the judgments of the Court can be nullifiedby a legislative act removing the basis of the judgment. Such lawcan be retrospective. Retrospective amendment should bereasonable and not arbitrary and must not be violative of thefundamental rights guaranteed under the Constitution.

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Ab) The test for determining the validity of a validatinglegislation is that the judgment pointing out the defect would nothave been passed, if the altered position as sought to be broughtin by the validating statute existed before the Court at the time ofrendering its judgment. In other words, the defect pointed outshould have been cured such that the basis of the judgementBpointing out the defect is removed.

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c) Nullification of mandamus by an enactment would beimpermissible legislative exercise [See : S.R. Bhagwat (supra)].Even interim directions cannot be reversed by a legislative veto[See : Cauvery Water Disputes Tribunal (supra) and MedicalCCouncil of India v. State of Kerala.

d) Transgression of constitutional limitations and intrusioninto the judicial power by the legislature is violative of the principleof separation of powers, the rule of law and of Article 14 of theConstitution of India.”D

4.13 It is further submitted that even the criteria of havingexperience of minimum 20 years for appointment of Member in theState Commission under Rule 3(2)(b) and criteria of having experienceof minimum 15 years for appointment of Member in District Commissionas per Rule 4(2)(c) is absolutely arbitrary and illegal and unconstitutionaland contrary to the provisions of Article 217 and 233 of the Constitutionof India. It is further submitted that even the same is violative of thejudgment and order passed by this Court in the case of Madras BarAssociation (supra).

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4.14 It is submitted that the High Court has rightly quashed theFprovision of Rule 4(2)(c) as the requirement of having experience of 15years for a lawyer in order to get the appointment as Member in DistrictForum/Commission is arbitrary and illegal. It is submitted that even inaccordance with the Article 233 of the Constitution of India a lawyerneeds to have only seven years of practice as an advocate in High Court.GEven in according to the provisions of Rule 4(1) a person who is eligibleto be appointed as a District Judge (having minimum experience of sevenyears as per Article 233 of Constitution of India) is qualified to be appointedas President of District Commission. But in order to be appointed asMember, the Section 4(2)(c) mandates a minimum experience of 15years which is violative of Article 14 of the Constitution of India.

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4.15 It is further submitted that the scheme envisaged inappointment of President under Rule 3(1) for President of StateCommission has a different criteria and that of Member under Rule3(2)(b) is different and distinct. The person can be qualified to be aPresident if he is or has been a judge of High Court. However, in orderto get appointment as a Member of State Commission the Rule 3(2)(b)mandates a minimum experience of 15 years, which is illegal and violativeof Article 14, because the requirement of qualification and experienceof a lawyer to get appointed as a High Court Judge is only ten years asper 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 theArticle 14 of the Constitution of India. It is submitted that while holdingso the High Court has discussed and considered the decision of thisCourt in the case of Madras Bar Association (supra) : (2021) 7SCC 369.

4.16 Making the above submissions and relying upon the abovedecisions, it is prayed to dismiss the present appeals.

5. Heard Shri R. Venkataramani, learned Attorney General forIndia, appearing on behalf of the appellant(s) and Dr. Uday PrakashWarunjikar and Dr. Tushar Mandalekar, learned counsel appearing onbehalf of the respective respondent(s).

6. By the impugned judgment and order the High Court hasdeclared Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of the ConsumerProtection (Qualification for appointment, method of recruitment,procedure of appointment, term of office, resignation and removal ofPresident and Members of State Commission and District Commission)Rules, 2020 as unconstitutional, arbitrary, and violative of Article 14 ofthe Constitution of India. Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) ofRules, 2020 which are declared to be unconstitutional read as under: - “3. Qualifications for appointment of President andmembers of the State Commission.—

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(2) A person shall not be qualified for appointment as a memberunless he is of not less than forty years of age and possesses—

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(b) a bachelor’s degree from a recognised university and is aperson of ability, integrity and standing, and has special knowledgeand professional experience of not less than twenty years inconsumer affairs, law, public affairs, administration, economics,commerce, industry, finance, management, engineering, technology,public health or medicine:

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4. Qualifications for appointment of President and memberof District Commission.—(1) A person shall not be qualifiedfor appointment as President, unless he is, or has been, or is qualifiedto be a District Judge.

(2) A person shall not be qualified for appointment as memberunless he—

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(c) is a person of ability, integrity and standing, and having specialknowledge and professional experience of not less than fifteenDyears in consumer affairs, law, public affairs, administration,economics, commerce, industry, finance, management, engineering,technology, public health or medicine.

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6. Procedure of appointment.

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(9) The Selection Committee shall determine its procedure formaking its recommendation keeping in view the requirements ofthe State Commission or the District Commission and after takingFinto account the suitability, record of past performance, integrityand adjudicatory experience.

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6.1 While considering the correctness of the impugned judgmentand order passed by the High Court and while considering the constitutionalGvalidity 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 thecase of UPCPBA (supra) which was under the Consumer ProtectionAct, 1986 is required to be referred to. The issue with respect to theconditions of eligibility for appointment of non-judicial members was oneHof the issues before this Court in the case of UPCPBA (supra). This Court earlier constituted a committee presided over by Mr. Justice ArijitPasayat, a former Judge of this Court to examine various issues includingthe conditions of eligibility for appointment of non-judicial members. TheCommittee in its interim report observed that the Fora constituted underthe Consumer Protection Act, 1986 do not function as effectively asexpected due to a poor organizational set-up; grossly inadequateinfrastructure; absence of adequate and trained manpower and “lack ofqualified members” in the adjudicating bodies. This Court in paragraphs4 to 6 noted and observed as under:

“4. The quality of presiding members, especially of non-judicialmembers at the State and district levels is poor. One of the reasonsis that the remuneration which is being paid to non-judicial membersof consumer for a varies from State to State and is too meagre toattract qualified talent. Most of the non-judicial members are noteven capable of writing or dictating small orders. At certain placesnon-judicial members act in unison against the Presiding Officer,while passing orders contrary to law, damaging the reputation ofthe adjudicating body. The Presidents, as a result, prefer a situationwhere such non-judicial members absent themselves from workif only so that judicial work can be carried out by the PresidingJudge impartially and objectively. Many non-judicial members donot maintain punctuality and others attend to work sporadicallyonce or twice a week. The Committee has observed that theproblem lies in — (i) absence of proper remuneration; (ii)appointment of former judicial officers who lack motivation andzeal; (iii) appointment of practising lawyers as Presiding Officersof District Fora; and (iv) political and bureaucratic interference inappointments. Many of the non-judicial members attend to theplace of work only to sign orders which have been drafted by thePresiding Officer.

5. The Committee has furnished concrete examples of howbureaucratic and political influence has marred the selectionprocess as a result of which the functioning of consumer fora isdetrimentally affected. Three instances furnished in the Reportof the Committee provided a telling example of the state of affairs:

“(15) The Committee could make out that there has beenconsiderable bureaucratic and political influence/interference inthe “selection process” and functioning of the consumer fora.

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AJust to cite a few instances, the Committee found that relatives ofpoliticians, 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 goneBunheeded. The result is that his post has not been declared vacantand another non-Judicial Member posted elsewhere has beenattached in his place.

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(16) One non-Judicial Member who had her first term atLucknow and has now been enjoying her second term, havingCbeen appointed for District Forum, Barabanki but has beenattached to Greater Noida and as per the reports, comes to Forumonce or twice a week. Another woman non-Judicial Member whohappens to be wife of a bureaucrat was appointed for DistrictForum, Baghpat but was attached/posted at Greater Noida. TheseDfew instances make it crystal clear that there is definite politicalinfluence and interference and in such a scenario, the work ofDistrict Consumer Fora is affected as it results in lowering themorale of the President.

(17) In Haryana, a non-Judicial Woman Member did/doesnot attend the District Forum regularly, as she has to travel around150/160 km every day. The President of one District Forum whohappens to be former President of Bar Association has been servingthe second term as President. Such non-Judicial Members manageto get selected and then misuse their position as Members, asthey call themselves “Judges”.”

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6. The selection of persons as Presiding Officers and as Membersof the fora lacks transparency without a fixed criteria for selection.The Committee has, in our view with justification, proposed that awritten test should be conducted to assess the knowledge ofpersons who apply for posts in the District Fora. Issues of conflictGof interest also arise when persons appointed from a local areaare appointed to a District Forum in the same area.”

Ultimately in paragraph 28, this Court issued the followingdirections: - “28.1. The Union Government shall for the purpose ofensuring uniformity in the exercise of the rule-making power underSection 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 besubmitted to this Court for its approval; 28.2. The Union Government shall also frame within fourmonths model rules prescribing objective norms for implementingthe provisions of Section 10(1)(b), Section 16(1)(b) and Section20(1)(b) in regard to the appointment of members respectively ofthe District Fora, State Commissions and National Commission; 28.3. The Union Government shall while framing the modelrules have due regard to the formulation of objective norms forthe assessment of the ability, knowledge and experience requiredto be possessed by the members of the respective fora in thedomain areas referred to in the statutory provisions mentionedabove. The model rules shall provide for the payment of salary,allowances and for the conditions of service of the members ofthe consumer fora commensurate with the nature of adjudicatoryduties and the need to attract suitable talent to the adjudicatingbodies. These rules shall be finalised upon due consultation withthe President of the National Consumer Disputes RedressalCommission, 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 byframing appropriate rules in the exercise of the rule-making powersunder Section 30 of the Consumer Protection Act, 1986; 28.5. The National Consumer Disputes RedressalCommission is requested to formulate regulations under Section30-A with the previous approval of the Central Government withina period of three months from today in order to effectuate thepower of administrative control vested in the National Commissionover the State Commissions under Section 24-B(1)(iii) and inrespect of the administrative control of the State Commissionsover the District Fora in terms of Section 24-B(2) as explained inthis judgment to effectively implement the objects and purposesof the Consumer Protection Act, 1986.”

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A6.2 That thereafter, vide a further order dated 18.05.2018 Stateof Uttar Pradesh Vs. All Uttar Pradesh Consumer Protection BarAssociation – Civil Appeal No. 2740/2007 reported in (2018) 7SCC 423, this Court considered the draft model rules which were framedby the Union of India. Before this Court the model rules came to beaccepted by the counsel representing all the parties before the Court.BTherefore, this Court directed that the State Governments shall frameappropriate rules in exercise of the rule-making power under Section 30of the Consumer Protection Act, 1986 in accordance with the Final DraftModel Rules submitted by the Union of India. It appears that thereaftermany States notified the Consumer Protection (appointment, salary,Callowances and conditions of service of President and Members of theState Commission and District Forum) Rules, 2017. Rules, 2017 whichwere adopted provided that in every cases, the selection of Members ofthe District Fora and State Commission shall be on the basis of a writtentest of two papers (Rules 5 and 7). It appears that even the State ofMaharashtra also adopted and approved the model rules on 24.05.2019Dand framed Rules, 2019 which had a written examination of 200 marks.It provided that State Commission shall hold the final examination of 250marks for the post of Members. Out of 250 marks, 200 marks shall befor written examination and 50 marks shall be for viva-voce examination.In the case of Madras Bar Association (supra) decided onE27.11.2020 – (2017) 7 SCC 369, this Court directed that whileconsidering 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 experienceof at least 10 years eligible for appointment as judicial members in thetribunals. That thereafter, the Central Government framed TribunalFReforms (Rationalisation and Conditions of Service) Ordinance, 2021which fell for consideration before this Court in Writ Petition (C) No.502/2021 decided on 14.07.2021 – 2021 SCC Online SC 463. Inthe said decision this Court also considered the permissibility of legislativeoverride. After considering catena of decisions of this Court onGpermissibility of legislative override this Court observed and held inparagraphs 42 to 44 as under: - “42. The judgment of this Court in Madan Mohan Pathak v. Unionof India (1978) 2 SCC 50 requires a close scrutiny as it wasadverted to and relied upon by both sides. A writ petition was filedHin the High Court of Calcutta for a mandamus directing the Life

Insurance Corporation (LIC) to act in accordance with the termsof settlement dated 24.01.1974 read with administrative instructionsdated 29.03.1974. The writ petition was allowed by the learnedsingle Judge against which a Letters Patent Appeal (LPA) waspreferred by the LIC. During the pendency of the LPA, the LIC(Modification of Settlement) Act, 1976 came into force. The LPAwas withdrawn in view of the subsequent legislation and thedecision of the learned single Judge became final. Validity of thesaid statute was assailed in a writ petition filed under Article 32by the employees of the LIC. Justice Bhagwati, speaking for themajority, was of the opinion that the judgment of the CalcuttaHigh Court was not a mere declaratory judgment holding an impostor tax as invalid so that a validating statute can remove the defectpointed out in the judgment. He observed that the judgment of theCalcutta High Court gave effect to the rights of the petitioners bymandamus, directing the LIC to pay annual cash bonus. As longas the judgment of the learned single Judge is not reversed inappeal, it cannot be disregarded or ignored. The LIC was held tobe bound by the writ of mandamus issued by the Calcutta HighCourt. Justice Beg, in his concurrent opinion, held that the rightswhich accrued to the employees on the basis of the mandamusissued by the High Court cannot be taken away either directly orindirectly by subsequent legislation. Thereafter, Madan MohanPathak (supra) came up for discussion in Sri Ranga MatchIndustries v. Union of India 1994 Supp (2) SCC 726. Justice JeevanReddy was of the opinion that the Madan Mohan Pathakcase cannot be treated as an authority for the proposition thatmandamus cannot be set aside by a legislative act. Justice Hansariawas not in agreement with such view. Relying upon the judgmentof this Court in A.V. Nachane v. Union of India (1982) 1 SCC205, Justice Hansaria held that the legal stand taken by JusticeBeg in the Madan Mohan Pathak case had received majority’sendorsement and it was because of this that retrospectivity givento the relevant rule assailed in A.V. Nachane was held to havenullified the effect of the writ and was accordingly invalid. Inview of the difference of opinion, the matter was referred to alarger bench. We are informed by the leaned Amicus Curiae thatthe difference of opinion could not be resolved as the case wassettled out of court.

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43. In Virender Singh Hooda (2004) 12 SCC 588, this Court didnot accept the contention of the petitioners therein that vestedrights cannot be taken away by retrospective legislation. However,it was observed that taking away of such rights would beimpermissible if there is violation of Articles 14, 16 or any otherconstitutional provision. The appointments already made inimplementation of a decision of this Court were protected withthe reason that “the law does not permit the legislature to takeaway what has been granted in implementation of the Court’sdecision. Such a course is impermissible.” This Court in CauveryWater Disputes Tribunal 1993 Supp (1) SCC 96 (2) declared theordinance which sought to displace an interim order passed bythe statutory tribunal as unconstitutional as it set side an individualdecision inter partes and therefore, amounted to a legislativeexercise of judicial power. When a mandamus issued by theMysore High Court was sought to be annulled by a legislation,this Court quashed the same in S.R. Bhagwat v. State of Mysore(1995) 6 SCC 16 on the ground that it was impermissible legislativeexercise. Setting at naught a decision of the Court without removingthe defect pointed out in the judgment would sound the deathknell of the rule of law. The rule of law would cease to have anymeaning, because then it would be open to the Government todefy a law and yet to get away with it.50

44. The permissibility of legislative override in this country shouldbe in accordance with the principles laid down by this Court in theaforementioned as well as other judgments, which have been culledout as under:

a) The effect of the judgments of the Court can be nullified by alegislative act removing the basis of the judgment. Such law canbe retrospective. Retrospective amendment should be reasonableand not arbitrary and must not be violative of the fundamentalrights guaranteed under the Constitution.

b) The test for determining the validity of a validating legislation isthat the judgment pointing out the defect would not have beenpassed, if the altered position as sought to be brought in by thevalidating statute existed before the Court at the time of renderingits judgment. In other words, the defect pointed out should have been cured such that the basis of the judgement pointing out thedefect is removed.

c) Nullification of mandamus by an enactment would beimpermissible legislative exercise [See: S.R. Bhagwat (supra)].Even interim directions cannot be reversed by a legislative veto[See : Cauvery Water Disputes Tribunal (supra) and MedicalCouncil of India v. State of Kerala (2019) 13 SCC 185].

d) Transgression of constitutional limitations and intrusion into thejudicial power by the legislature is violative of the principle ofseparation of powers, the rule of law and of Article 14 of theConstitution of India.”

6.3 In the said decision, this Court struck down and declared thatfirst proviso to Section 184(1) of the Finance Act, 2017, which providedfor 50 years minimum age for appointment as Chairman or Member asunconstitutional by observing that the said first proviso to Section 184(1) is in violation of the doctrine of separation of powers as the judgmentof this Court in the case of Madras Bar Association Vs. Union ofIndia & 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 HighCourt in the impugned judgment and order has rightly observed and heldthat Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020 whichare contrary to the decisions of this Court in the cases of UPCPBA(supra) and the Madras Bar Association (supra) are unconstitutionaland arbitrary.

6.5 Even otherwise also we are of the opinion that Rule 6(9)lacks transparency and it confers uncontrolled discretion and excessivepower to the Selection Committee. Under Rule 6(9), the SelectionCommittee is empowered with the uncontrolled discretionary power todetermine its procedure to recommend candidates to be appointed asPresident and Members of the State and District Commission. Thetransparency and selection criteria are absent under Rule 6(9). In absenceof transparency in the matter of appointments of President and Membersand in absence of any criteria on merits the undeserving and unqualifiedpersons may get appointment which may frustrate the object and purposeof the Consumer Protection Act. It cannot be disputed that theCommissions are empowered with the powers of court and are quasi- AB

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Ajudicial authorities and empowered to discharge judicial powers with theadequate powers of the court including civil and criminal. Therefore, thestandards expected from the members of the tribunal should be as nearlyas possible as applicable to the appointment of judges exercising suchpowers. Under Rule 6(9) of Rules, 2020, the Selection Committee ishaving power to determine its own procedure. Such provisions are alsoBgiving excessive and uncontrolled discretionary powers to the SelectionCommittee. As rightly observed and held by the High Court, consideringthe object on behalf of the Consumer Protection Act, 2019, suchuncontrolled discretion power to determine its procedure for making itsrecommendation for appointment of President and Members of theCDistrict and the State Commissions is arbitrary and unreasonable. It isalways desirable that while making the appointment as Members of theDistrict Fora and/or the State Commission there is a need to assess theskill, ability, and the competency of the candidates before they areempanelled and recommended to the State Government. The Rules, 2020do not contemplate written examination so as to test the merits of theDcandidate. In the case of UPCPBA (supra), this Court expressed deepconcern over the bureaucratic and political interference in process ofappointments.

6.6 At this stage, it is required to be noted that mechanism ofhaving written examination was confirmed by this Court which has beenEremoved under the new Rules, 2020.

6.7 At this stage, it is required to be noted that earlier underConsumer Protection Act, 1986, there were Rules, 2017 in so far assome of the States are concerned and Rules, 2019 so far as the State ofMaharashtra is concerned, which provided for a written examinationFand viva voce, which was under the Consumer Protection Act, 1986.

6.8 The Consumer Protection Act, 1986 has been repealed andthe Consumer Protection Act, 2019 has come into force w.e.f. 24.07.2020with a sole intention to provide adequate safeguards to the consumersand the pecuniary jurisdiction of the District Fora and State CommissionsGare enhanced substantially. However, there is no substantial change inthe scheme with respect to the adjudication of the consumer disputes.No justification at all is shown to do away with the written examinationwhile framing the Rules, 2020 under the Consumer Protection Act, 2019.Therefore, as rightly observed by the High Court, the Rule 6(9) of theHRules, 2020 is unconstitutional, arbitrary and violative of Article 14 of the Constitution of India, more particularly, when the same is whollyimpermissible to override/overrule the earlier decisions of this Court andthat too without any justification. We are in complete agreement withthe 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 provisionswhich provided for having a minimum 20 years’ experience forappointment as a Member in State Commission under Rule 3(2)(b) andhaving a minimum 15 years’ experience for appointment as a Memberin District Commission under Rule 4(2)(c).

7.1 It is required to be noted that under provision 4(1) of Rules,2020, a person who is eligible to be appointed as a district judge (havingminimum experience of 7 years) is qualified to be appointed as Presidentof the District Commission but in order to be appointed as a Member,Section 4(2)(c) mandates a minimum experience of 15 years which isrightly held to be violative of Article 14 of the Constitution.

7.2 Similarly providing 20 years’ experience under Rule 3(2)(b)also rightly held to be arbitrary and violative of Article 14 of theConstitution. It is required to be noted that under Section 3(2)(b), apresiding officer of a Court having experience of 10 years is eligible forbecoming President of the State Commission. Even under Section 3(1)a judge of the High Court, present or former, shall be qualified forappointment of the President. As per Article 233 of the Constitution, alawyer needs to have only 7 years of practice as an advocate in HighCourt. Under the circumstances to provide 20 years’ experience underRule 3(2)(b) is rightly held to be unconstitutional, arbitrary and violativeof the Article 14 of the Constitution of India. We are in completeagreement with the view taken by the High Court. At this stage, it isrequired to be noted that in the case of Madras Bar Association (supra)– MBA III, this Court directed to consider 10 years’ experience, afterdetail reasoning.

8. In view of the above and for the reasons stated above, we seeno reason to interfere with the impugned judgment and order passed bythe High Court declaring Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of theConsumer Protection (Qualification for appointment, method ofrecruitment, procedure of appointment, term of office, resignation andremoval of President and Members of State Commission and DistrictCommission) Rules, 2020 as arbitrary, unreasonable and violative of A

B

C

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E

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AArticle 14 of the Constitution of India. The Central Government and theconcerned State Governments have to amend Rules, 2020, moreparticularly, Rule 6(9) of the Rules, 2020, providing that the SelectionCommittee shall follow the procedure for appointment as per ModelRules, 2017 and to make the appointment of President and Members ofthe State Commission and the District Commission on the basis of theBperformance in written test consisting of two papers of 100 marks eachand 50 marks for viva voce and the written test consisting of two papersmay be as per the following schemes: - C

D

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8.1 The Central Government and the concerned StateGovernments have also to come with an amendment in the Rules, 2020Fto provide 10 years’ experience to become eligible for appointment ofPresident and Member of the State Commission as well as the DistrictCommission instead of 20 years and 15 years respectively, provided inRule 3(2)(b) and Rule 4(2)(c) which has been struck down to the extentproviding 20 years and 15 years of experience, respectively. Till theGsuitable amendments are made in Consumer Protection (Qualificationfor appointment, method of recruitment, procedure of appointment, termof office, resignation and removal of President and Members of StateCommission and District Commission) Rules, 2020 as above, in exerciseof powers under Article 142 of the Constitution of India and to do completejustice, we direct that in future and hereinafter, a person having bachelor’sH

degree from a recognized University and who is a person of ability,integrity and standing, and having special knowledge and professionalexperience of not less than 10 years in consumer affairs, law, publicaffairs, administration, economics, commerce, industry, finance,management, engineering, technology, public health or medicine, shallbe treated as qualified for appointment of President and Members of theState Commission. Similarly, a person of a person of ability, integrity andstanding, and having special knowledge and professional experience ofnot 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 asqualified for appointment of President and Members of the DistrictCommissions. We also direct under Article 142 of the Constitution ofIndia that for appointment of President and Members of the StateCommission and District Commission, the appointment shall be made onthe basis of performance in written test consisting of two papers as perthe following scheme: - A

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8.3 The qualifying marks in each paper shall be 50 per cent andthere shall be viva voce of 50 marks. Therefore, marks to be allotted outof 250, which shall consist of a written test consisting two papers, eachGof 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(Assisted by : Abhishek Agnihotri and Shevali Monga, LCRAs)

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