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RENU P. GOPALAN V/S STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, CONSUMER AFFAIRS DEPARTMENT & OTHERS, decided on Monday, September 25, 2017.
[ In the High Court of Kerala, WP (C). No. 9221 of 2017 (C). ] 25/09/2017
Judge(s) : P.B. SURESH KUMAR
Advocate(s) : S. Renjith, P. Chandrasekhar, P.A. Mohammed Shah, V.A. Haritha, K. Arjun Venugopal, Sandhya R. Nair, Mary Reshma George, P.M. Mazna Mansoor. R1, R3, R4, T.K. Aravindakumar Babu, Sr. Government Pleader.
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    1. The decision of the Government to cancel a selection process initiated for appointment of a Member in the State Commission established under Section 9 of the Consumer Protection Act 1986 (the Act) is under challenge in this writ petition.2. The facts relevant for consideration of the questions raised in the writ petition are the following: The term of one of the Members of the State Commission was due to expire on 14.05.2016. With a view to fill up that vacancy the Government initiated a selection process well in advance during February 2016 itself by issuing Ext.P3 notification inviting applications for selection. The said selection process was however put to hold when the code of conduct for the election declared later to the State Legislative Assembly came into being. It is seen that the term of appointment of the Members of the Commission was stated wrongly in Ext.P3 notification and consequently after the election a fresh selection process was initiated on 10.08.2016 by issuing Ext.P1 notification inviting applications for selection. The petitioner was one among the applicants for selection pursuant to Ext.P1 notification. 49 applications were received by the Government pursuant to Ext.P1 notification and all the 49 applications were forwarded by the Government to the Selection Committee provided for under Section 16(1A) of the Act for conducting the selection. The Selection Committee thereupon interviewed 35 candidates who have turned up for the interview out of the 49 candidates applied for selection and forwarded its recommendation to the Government. The recommendation made by the Selection Committee was however not acted upon by the Government. In the meanwhile on 08.03.2017 when W.P.(C).No.6640 of 2017 filed by a body called Confederation of Consumer Redressal Centre seeking directions to fill up the vacancies of the Members in the State Commission came up for consideration before this Court it was submitted on behalf of the Government that the Government has decided to cancel the selection process initiated pursuant to Ext.P1 notification on account of inherent infirmities and illegalities. It was also submitted before this Court on behalf of the Government that a fresh selection process will be commenced and concluded expeditiously to fill up the vacancies. In the light of the said submissions made on behalf of the Government this Court closed the said writ petition recording the submissions made on behalf of the Government observing that if the Government is of the view that the selection process initiated can be cancelled without prejudice to the rights of others they are free to do so. Ext.P2 is the judgment rendered by this Court in the said writ petition. This writ petition is instituted thereafter seeking directions to the Government to effect appointment on the basis of the recommendation made by the Selection Committee pursuant to Ext.P1 notification. The case set up by the petitioner in the writ petition is that there are no justifiable reasons at all for cancelling the selection.3. When the writ petition came up for admission it was pointed out by the learned Government Pleader that the selection process initiated pursuant to Ext.P1 notification has been cancelled by the Government as per Ext.P4 order. It is stated by the Government in Ext.P4 order that the selection process was vitiated since the applicants were not shortlisted before the interview as provided for in Rule 17(3) of the Kerala Consumer Protection Rules 2005 (the Rules). The petitioner thereupon amended the writ petition in terms of the order passed by this Court in I.A.No.5538 of 2017 and incorporated a challenge against Ext.P4 order also in the writ petition. After the filing of I.A.No.5538 of 2017 the Government corrected a few mistakes crept in Ext.P4 order by Ext.P5 order. Immediately thereupon a fresh notification was also published by the Government inviting applications for selection through the District Collectors as per Ext.P6 as provided for in Rule 17 (3) of the Rules. In the light of the aforesaid developments the writ petition was amended by the petitioner again in terms of the order passed by this Court in I.A.No.9698 of 2017 for challenging Ext.P5 order and Ext.P6 notification. The amendment carried out in terms of the latter order includes a challenge against Rule 17(3) of the Rules also on the grounds that the same is ultra vires the Act and also unconstitutional.4. A counter affidavit has been filed on behalf of the Government in this matter. It is stated by the Government in the counter affidavit that the candidates applied for selection pursuant to Ext.P1 notification have not been short listed as provided for in Rule 17(3) of the Rules before the Selection Committee conducted the selection. It is also stated in the counter affidavit that since the selection was based solely on the interview the short listing of candidates as provided for in the Rules was mandatory for the purpose of limiting the number of candidates to be interviewed so as to enable the Selection Committee to select the most competent candidate among the applicants. It is further stated by the Government in the counter affidavit that the Selection Committee instead of forwarding its recommendation prepared a rank list of the candidates and forwarded the same to the Government for making the appointment and the said course adopted by the Selection Committee is contrary to the scheme of the Act. It is stated in the counter affidavit that Exts.P4 and P5 orders have been passed in the aforesaid circumstances.5. Heard the learned counsel for the petitioner as also the learned Government Pleader. The files pertaining to the selection process initiated pursuant to Ext.P1 notification were also made available.6. The learned counsel for the petitioner contended that shortlisting of the candidates applied for selection is part of the selection process and since the power to select the candidates to be appointed as Members of the State Commission is conferred by the Act on the Selection Committee as provided for under Section 16 (1A) of the Act Rule 17(3) of the Rules conferring power on the State Government to shortlist candidates applied for selection is ultra vires Section 16(1A) of the Act. According to the learned counsel for the petitioner since the selection process initiated pursuant to Ext.P1 notification has been cancelled solely for noncompliance of the provisions contained in Rule 17(3) of the Rules providing for shortlisting of the candidates which is ultra vires the Act in the absence of any complaint that the selection was vitiated on account of favoritism nepotism or other factors vitiating the selection the petitioner is entitled to a direction to the Government to complete the selection process by appointing one among the candidates included in the recommendation made by the Selection Committee.7. Per contra the learned Government Pleader contended that the omission on the part of the Government in shortlisting the candidates applied for selection is an inherent flaw in the selection process affecting the credibility of the selection. It was pointed out by the learned Government Pleader that the aforesaid omission was fatal since shortlisting was statutorily mandated under the second proviso to Rule 17 (3) of the Rules. The learned Government Pleader demonstrated the said contention pointing out that to select the best and the most suitable candidate among the applicants the number of persons to be interviewed by the Selection Committee is to be limited especially when the selection is solely based on the interview so as to enable the Selection Committee to find out the best suited candidate to hold the office of the Member of the State Commission. According to the learned Government Pleader even in the absence of any statutory provision for shortlisting such a course was mandatory in the light of the decision of the Apex Court in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417]. It was pointed out by the learned Government Pleader that the Selection Committee had interviewed 35 candidates and completed the selection process in two days time and therefore an effective and thorough evaluation of the candidates was not there at all in the selection process. Relying on the decision of the Apex Court in M.P.Public Service Commission v. Navnit Kumar Potdar [(1994) 6 SCC 293] the learned Government Pleader contended that where selection is to be made on the basis of interview such interview must be carried out in a thorough and a scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidate. The learned Government Pleader also contended that the recommendation of the Selection Committee was not in accordance with the provisions contained in the Act for the Selection Committee forwarded to the Government a rank list of the candidates in the order of their merit instead of a panel of the eligible candidates. The learned Government Pleader relied on the decisions of this Court in State of Kerala and others v. K.Reghuvarma and others [2009 (3) KHC 582] and Susheela P.P. v. State of Kerala and others [2015 (2) KHC 78] to substantiate the said contention. Relying on the decision of the Apex Court in Chandramohan Nair v. George Joseph and others [2010 (4) KHC 234] the learned Government Pleader contended that the Government is not bound by the recommendation of the Selection Committee and it has power to initiate a fresh selection process if there are valid reasons. It was further contended by the learned Government Pleader that the Selection Committee is required to disclose to the Government the manner in which it has assessed the suitability of the candidates and the said requirement was also not complied with. According to the learned Government Pleader in the circumstances the Government was fully justified in cancelling the selection process.8. As noted above the reason stated by the Government in Ext.P4 order for cancelling the selection process commenced pursuant to Ext.P1 notification is non-compliance of the provisions contained in Rule 17(3) of the Rules providing for shortlisting of the applicants by the Government before the panel is forwarded to the Selection Committee for interview. The fact that there was no shortlisting of candidates by the Government before the list of candidates to be interviewed was forwarded to the Selection Committee as provided for in Rule 17(3) of the Rules is not in dispute. The question therefore is whether the Government was justified in cancelling the selection process solely on that ground.9. In order to answer the question aforesaid the scheme of the Act in so far as it relates to the appointment of Members of the State Commission has to be understood. Subsection (1) of Section 16 of the Act deals with the composition of the State Commission as also the qualifications and disqualifications of the Members of the State Commission. The said sub-section reads thus:“16. Composition of the State Commission.— (1) Each State Commission shall consist of—(a) A person who is or has been a Judge of a High Court appointed by the State Government who shall be its President:Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;(b)not less than two and not more than such number of members as may be prescribed and one of whom shall be a woman who shall have the following qualifications namely:—(i) Be not less than thirty-five years of age;(ii) Possess a bachelor's degree from a recognised university; and(iii) Be persons of ability integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics law commerce accountancy industry public affairs or administration:Provided that not more than fifty per cent of the members shall be from amongst persons having a judicial background.Explanation.— For the purposes of this clause the expression persons having judicial background'' shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level:Provided further that a person shall be disqualified for appointment as a member if he—(a)has been convicted and sentenced to imprisonment for an offence which in the opinion of the State Government involves moral turpitude; or(b)is an undischarged insolvent; or(c)is of unsound mind and stands so declared by a competent court; or(d)has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or(e)has in the opinion of the State Government such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or(f)has such other disqualifications as may be prescribed by the State Government.”Sub-section (1A) of Section 16 of the Act deals with the appointment of the Members of the State Commission. The said sub-section reads thus:“16(1A)Every appointment under sub-section(1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following members namely:(I) President of the State Commission--Chairman;(ii) Secretary of the Law Department of the State--Member;(iii) Secretary in charge of the Department dealing with Consumer Affairs in the State—Member:Provided that where the President of the State Commission is by reason of absence or otherwise unable to act as Chairman of the Selection Committee the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.”It can be seen that though the power to appoint eligible persons as members of the State Commission is conferred on the State Government in terms of the said provisions the said power is subject to the limitation that the appointments can be made only on the recommendation of the Selection Committee as provided for in Section 16(1A) of the Act. It is obvious therefore from the aforesaid scheme of the statute that the object of the law makers is to ensure that the best suitable among the eligible candidates is appointed as the Member of the State Commission and it is to achieve the said object the task of selecting the suitable among the eligible candidates was entrusted to the Selection Committee.10. Rule 17 of the Rules deals with the procedure for appointment of the Members of the State Commission. Rule 17 reads thus:“17. Appointment of whole-time members in the State Commission. –(1) The President of the State Commission shall be appointed by the Government in consultation with the Chief Justice of the High Court of Kerala.(2) Appropriate panel of candidates for consideration of appointment as judicial members to the State Commission shall be called for by the Department in charge of Consumer Affairs in Government from the High Court of Kerala.(3) In the case of other members of the State Commission appropriate panel of candidates for consideration of appointment shall be called for by the Department in charge of Consumer Affairs in Government from the concerned District Collectors and the District Collectors may after due publicity furnish a short listed panel of candidates not exceeding three candidates per vacancy with relevant documents and details to the Government after due verification and scrutiny of the qualification and other eligibility criteria prescribed in the Act and these Rules:Provided that the Government (Department dealing with the Consumer Affairs) may if necessary advertise directly for the purpose.Provided further that the panel so obtained after further scrutiny and short-listing shall be placed before the Selection Committee at the appropriate time by the convener of the Selection Committee. The Secretary to Government in charge of the Department dealing with Consumer Affairs in the State shall be the convener of the Selection Committee:Provided also that the Selection Committee shall finalize a panel of candidates by adopting such methods as the Selection Committee may deem fit and the list of qualified candidates so finalized shall be sent for consideration of appointment by the Government.”The first proviso to Rule 17(3) of the Rules confers power on the Government Department dealing with consumer affairs to invite applications for appointment of the Member of the State Commission. The second proviso to the said sub-rule states that the Secretary to the Government in charge of the Department dealing with consumer affairs in the State shall be the convener of the Selection Committee who shall place before the Selection Committee the panel of candidates for selection after scrutiny and shortlisting. The third proviso to the said sub-rule states that the Selection Committee shall thereupon finalise the panel of candidates by adopting such methods as the Selection Committee may deem fit and the list of qualified candidates so finalised shall be sent for consideration for appointment by the Government. The task of selecting the best suitable among the applicants being one entrusted to the Selection Committee and the task of shortlisting the applicants being one entrusted to the convener of the Selection Committee so as to enable the selection committee to assess the suitability the candidates in an effective manner it is obvious that the shortlisting can be done by the convener of the Selection Committee only with the concurrence of the Selection Committee. If one understands the provisions of the Act and the Rules in the aforesaid manner the contention of the petitioner that Rule 17(3) of the Rules to the extent it confers power on the convener the Selection Committee to shortlist the candidates is ultra vires Section 16 (1A) of the Act is only to be rejected. But as noted above the question is whether the omission on the part of the convener of the Selection Committee in shortlisting the applicants before the list of candidates to be interviewed was forwarded to the Selection Committee was an inherent flaw justifying cancellation of the selection process.11. One of the main contentions raised by the Government to sustain the decision taken to cancel the selection process is that since there was no shortlisting of candidates large number of candidates had to be interviewed by the Selection Committee to prepare the panel of candidates to be forwarded to the Government and there was therefore no proper assessment of the suitability of the candidates interviewed. It is beyond dispute that shortlisting is a process to eliminate a section of the qualified candidates for the purpose of finding out the suitable candidates. As such the necessity to shortlist the candidates may not arise in every selection. For instance if there are only five applicants for selection in a given case and if the Selection Committee is required to forward a panel of five candidates to the Government for making the appointment the Selection Committee cannot be faulted if all the five applicants are interviewed by the Selection Committee. In other words the necessity to shortlist candidates arises only when there are large number of applicants for selection to a limited number of posts. It appears to me therefore that the question whether there has to be a shortlisting of the applicants at all for selection in a given case is a matter to be decided by the Selection Committee at the relevant time having regard to the number of applications received for a particular selection the number of candidates to be included in the list to be forwarded to the Government for appointment etc. In the said perspective the provision in the Rules for shortlisting the candidates applied for selection is only directory and not mandatory. The question whether the Government was justified in cancelling the selection process for want of shortlisting of the candidates is therefore a pure question of fact to be arrived at having regard to the nature of the selection process the number of candidates participated in the selection process and the time taken for completion of the selection process.12. No doubt the Members of the State Commission are persons required to adjudicate complex questions of law and fact and the Government is obliged to appoint candidates best suitable for discharging the functions of the State Commission. The contemplation of the statute as to the nature of persons to be appointed as Members of the State Commission is evident from the prescription in the statute that they shall be persons aged above 35 years and that they shall be persons of ability integrity and standing and have full knowledge and experience of at least 10 years in dealing with problems relating to economics law commerce accountancy industry public affairs or administration. Looking at the above perspective the purpose of invitation of applications for appointment is to ascertain the willingness of such candidates to hold the office of the Member of the State Commission. Such candidates may not always be interested to undertake a written qualifying examination for at that age they must have been otherwise settled in life. Of course when there are candidates more than the number of vacancies a selection process is inevitable and it appears that it is on account of the said reason that the selection is made solely based on interview. The very purpose of holding the interview is to search and select the best among the applicants. The learned Government Pleader is therefore right in contending that if large number of candidates are invited for the interview to appoint one or two persons the interview would be certainly casual and superficial on account of time constraints. When a selection process is solely based on interview the members of the Selection Committee will not be in a position to make an exhaustive assessment of the suitability of the candidates if sufficient time to make an exhaustive assessment is not granted. The learned Government Pleader is therefore right also in contending that shortlisting of candidates in such cases is permissible so as to enable the Selection Committee to undertake the selection process to find out the best among the applicants. The requirement of law in such cases is that there can be shortlisting of the applicants based on a rational and reasonable criteria to aid and help the process of selection to find out the best among the candidates applied for selection for the post in question without diluting the statutory prescriptions as to the qualifications.13. Coming to the facts of this case as noted above there were 41 applicants and though all the 41 applicants were called for the interview only 35 among them turned up for the interview. It is stated in the counter affidavit filed on behalf of the Government that all the 35 candidates were interviewed by the Selection Committee in two days. There is no pleading in the counter affidavit as to the average time taken by the Selection Committee to interview each candidate. If the normal working hours is taken as the time taken by the Selection Committee to conduct the interview it is seen that more than twenty minutes on an average is spent by the Selection Committee to evaluate each candidate. The Chairperson of the Selection Committee was none other than a former Judge of this Court. I have read each and every sentence in the counter affidavit filed on behalf of the Government. The Government has no case in the counter affidavit that the selection is vitiated on account of favoritism nepotism or other allegations of bias. Further the Selection Committee is expected only to make an assessment of the suitability of the candidates applied for selection and therefore the question whether the candidates found suitable by the Selection Committee are eligible to be appointed as Members of the State commission in terms of the provisions contained in the Act could have been still examined by the Government as clarified by the Division Bench of this Court in W.A.No.2012 of 2016 and connected cases in the context of the similar provisions contained in the Right to Information Act. There is no case for the Government either in Exts.P4 and P5 orders or in the counter affidavit filed in this matter that persons included in the list of candidates forwarded by the Selection Committee are not eligible to be considered for appointment as Members of the State Commission. In the circumstances though it would have been advisable for the Selection Committee to limit the number of candidates to be interviewed to two or three times of the number of persons to be included in the panel to be forwarded to the Government on a rational criteria fixed with the concurrence of the Selection Committee in the absence of any allegation that the selection process was vitiated in any manner and that the persons included in the list of candidates recommended by the selection committee are not eligible to be considered for appointment according to me the Government was not justified in cancelling the selection solely on the ground that there was no shortlisting of candidates at all by the convener of the Selection Committee.14. One of the remaining issues to be considered is as to whether the Government was justified in cancelling the selection for the reason that the Selection Committee has forwarded a rank list instead of a list of candidates found suitable for appointment to the Government for making appointment. As noted above the said contention has been raised by the learned Government Pleader on the basis of the decisions of this Court in Reghuvarma [supra] and Susheela [supra]. In Susheela [supra] this Court only accepted the view taken in Reghuvarma [supra]. The contention raised by the learned Government Pleader in the circumstances has to be examined in the light of the decision of this Court in Reghuvarma [supra]. Paragraph 7 of the judgment in the said case reads thus:“7. The provision under the Act is very clear. The appointment is to be made by the State Government on the recommendation of a Selection Committee. The appointing authority is the Government. As rightly held by this Court in Chandramohan Nair v. State of Kerala 2007 (2) KLT 273 the Legislature has not divested the power of appointment from the Government while making provision of a Selection Committee. But the appointing authority does not have unfettered discretion in making the appointment. The appointment has to be made on the recommendation of the Selection Committee. We find from the records that what the Government directed the Selection Committee also was to 'furnish the panel' for filling up the vacancies. Under R.28(b)(i) of the Kerala State and Subordinate Service Rules 1958 appointments to posts in a selection category or grade in a service or class other than Heads of Departments shall be made from a select list prepared from among the members eligible for appointment to such category or grade on the basis of merit and ability seniority being considered only when merit and ability are approximately equal. It has also to be seen that the select list thus prepared by the Departmental Promotion Committee is only in respect of the vacancies estimated for a year. That select list is placed before the Government only for its approval and the same is published under the Rules. Only under exceptional circumstances in public interest the Government is in a position to depart from the advice of the Departmental Promotion Committee. That is not the scheme or procedure or power in the Selection Committee under the Consumer Protection Act and the Kerala Rules. Though the Act and the Rules have used the expression “Selection Committee” and though in common parlance the Selection Committee is expected to prepare a select list on assessment of merit of each candidate under the Consumer Protection Act and its Rules in the State the duty cast on the Selection Committee is only to recommend a panel. Under R.7(3) the Committee is given freedom to adopt any method as the Committee feels fit for finalising the panel. On finalising the panel under the Rules the Selection Committee forwards “....the list of qualified candidates so finalised” to the Government for consideration for appointment. In other words the duty cast on the Selection Committee under the Act and the Rules is by whatever method they deem fit to assess whether the candidates placed before them by the Government for finalising the panel are duly qualified in the sense whether they are suitable and qualified to hold the position of either President or Member and nothing more or nothing less. Under the Kerala State and Subordinate Service Rules the select list is prepared based on merit and ability and the incumbents are ranked on the basis of such assessment made by the Selection Committee; whereas under the Scheme of the Consumer Protection Act and the State Rules the Selection Committee has no such power. The power conferred on them is only to finalise a panel of candidates after subjecting the candidates to whatever test they may deem fit for the purpose of assessing their merit suitability etc. for holding the post. The Committee is not expected to or called upon to prepare a select list of candidates in the order of merit and suitability. Thus all the candidates included in the list of qualified candidates finalised by the Selection Committee are duly recommended by the Selection Committee. Once the Selection Committee recommends a list of qualified candidates the appointing authority is free to appoint any candidate recommended by the Selection Committee. No doubt unless recommended by the Selection Committee the appointing authority cannot make any appointment. In other words the appointing authority namely the Government cannot appoint the candidate outside the list of qualified candidates furnished by the Selection Committee and only to that extent there is a fetter or restriction on the power and method of appointment of the President and Members of the various Forums under the Consumer Protection Act and its State Rules on the Government.”True it was held by this Court in the said case that the Selection Committee is not expected to or called upon to prepare a select list of candidates in the order of merit and suitability; that the Selection Committee is expected going by the provisions contained in the Act and the Rules only to forward a panel of suitable candidates to the Government and that once the Selection Committee recommends a list of qualified candidates the Government is free to appoint any candidate recommended by the Selection Committee. The essence of the dictum in the said case is only that once the Selection Committee recommends a list of qualified candidates to the Government all candidates included therein shall be deemed to be suitable for appointment and that the Government is free to appoint anyone among them. The said decision cannot be understood as having laid down the proposition that if the Selection Committee indicates in the recommendation the order of merit of the candidates recommended then the same will not be one in accordance with the provisions of the Act. It is all the more so since the purpose of the relevant statutory provision is only that the Government should have the freedom to appoint any one of the candidates included in the panel irrespective of the order of their merits as the Member of the State Commission for valid reasons. In the circumstances according to me there is absolutely no justification for cancelling the selection process on the aforesaid ground and the Government can certainly treat the recommendation of the Selection Committee as one forwarded in accordance with the provisions contained in the Act and appoint any one among the candidates named therein.15. As noted above going by the scheme of the statute the Selection Committee is considering the suitability of the candidates and the eligibility of the candidates found suitable has to be considered by the Government while making appointment from the panel forwarded by the Selection Committee. Suitability and eligibility are distinct concepts. The eligibility is a fact to be assessed objectively and the suitability is a fact to be assessed subjectively [See M. Manohar Reddy v. Union of India (2013) 3 SCC 99]. The Government cannot therefore sit in judgment over the decision of the Selection Committee as to the suitability of the candidates included in the panel forwarded by them to the Government for appointment. There is therefore no substance in the contention raised by the learned Government Pleader that the Selection Committee is required to disclose to the Government the manner in which it has assessed the suitability of the candidates.In the result the writ petition is allowed. Exts.P4 and P5 orders of the Government as also Ext.P6 notification inviting applications for selection are quashed. The Government is directed to complete the selection process initiated pursuant to Ext.P1 notification by appointing one among the candidates included in the recommendation forwarded by the Selection Committee for appointment after considering their eligibility. This shall be done as expeditiously as possible.