@JUDGMENTTAG-ORDER
G. Rohini, J.@mdashA common relief is sought in these two Writ Petitions to declare the Memo No.1548/CS.III (2)/2003-2 dated 12-01-2004
issued by the Government of Andhra Pradesh, Consumer Affairs, Food & Civil Supplies Department whereunder the Registrar, A.P. State
Commission, Hyderabad was directed to renotify the vacancies of the Members in the District Forum, Ongole and the District Forum, Warangal
as arbitrary and illegal.
2. The facts which are not in dispute may be noted in brief :
The petitioner in W.P.No.2123 of 2004 was a practising advocate and she was appointed as a Member in the District Forum, Ongole, Prakasam
District after being selected by the Selection Committee constituted u/s 10(1-A) of the Consumer Protection Act, 1986 (for short, ''the Act''). She
assumed the Office on 06-05-1998 and completed her tenure on 05-05-2003. Before the expiry of her tenure, the Registrar of A.P. State
Consumer Disputes Redressal Commission, Hyderabad issued a notification dated 29-04-2003 inviting applications from eligible candidates for
filling-up certain vacancies of Members both Men & Women at several District Fora including the Lady Member of the District Consumer Forum,
Ongole. In pursuance of the said Notification, the petitioner applied for the post of Lady Member at Ongole and her name was recommended by
the Selection Committee on 08-05-2003. However she was not appointed, and under the impugned Memo dated 12-01-2004 it was decided to
renotify the said vacancy. Hence, the petitioner in W.P.No.2123 of 2004 seeks a Writ of Mandamus declaring the Memo dated 12-01-2004 as
arbitrary and illegal and consequently to direct the Government to appoint her as Lady Member of the District Forum, Ongole.
3. In W.P. No. 2306 of 2004, the petitioner is a postgraduate in Civil Engineering. He worked in the Irrigation Department, Government of
Andhra Pradesh and retired from service on 31-07-2002 on attaining the age of superannuation. In pursuance of a notification issued by the A.P.
State Consumer Disputes Redressal Commission, Hyderabad inviting applications from the eligible candidates for appointment to the posts of
Members to various District Fora, the petitioner made an application offering his candidature. He was selected by the Selection Committee duly
constituted under the Act and his name was recommended for appointment to the post of Male Member of the District Forum, Warangal.
However, in spite of the recommendation of the Selection Committee the Government did not appoint the petitioner to the said post and decided
to issue re-notification for the post of Male Member, District Forum, Warangal. Accordingly Memo No. 1548/CS-III(2)/2003-02, dated 12-01-
2004 has been issued, which is questioned in W.P. No. 2306 of 2004.
4. Separate counters have been filed on behalf of the State Government opposing the relief sought for. Though the plea of the petitioners in both
the writ petitions that the Selection Committee has recommended their names has been admitted, it is explained that the Government, keeping in
view the individual performance of the petitioner in W.P.No.2123 of 2004 in dealing with the cases during her tenure and also with a view to
provide an opportunity to fresh candidates, turned down the recommendation of the Selection Committee.
5. So far as the petitioner in W.P.No.2306 of 2004 is concerned, it is stated that the Government was not satisfied with the qualifications of the
petitioner for appointment to the post of Male Member as recommended by the Selection Committee and therefore directed to re-notify the
vacancy with a view to select a suitable candidate. It is also explained that during the visit of the Hon''ble Minister for Food and Civil Supplies to
Warangal he was informed orally by some people of Warangal that the petitioner who was recommended by the Selection Committee for the post
of Male Member, District Forum, Warangal does not have sufficient knowledge in dealing with Consumer Affairs, public affairs or administration,
that he does not have any social service background and that he was never involved in any consumer activities and therefore he cannot be
appointed as Member. Taking into consideration the said facts, the Hon''ble Minister discussed the matter with the Ex-officio Secretary and
decided to issue a re-notification with a view to choose a better candidate who has adequate knowledge in dealing with consumer cases.
6. It is to be noted that in W.P. No. 2123 of 2004 the petitioner who has already completed one term of five years has also pleaded that the A.P.
State Commission, Hyderabad vide letter dated 26-03-2003 called for a performance report of the existing Members of all the District Fora and
in pursuance of the same the President of the District Forum, Ongole sent a report about the performance and conduct of the petitioner. While
relying upon sub-section (2) of Section 10 of the Act as substituted by Act No.62 of 2002, which states that every Member of the District Forum
shall be eligible for reappointment for another period of five years or upto the age of 65 years whichever is earlier, the petitioner contended that in
view of the report sent by the President of District Forum, Ongole about her performance and particularly since the Selection Committee has
recommended her name, there is absolutely no reason to reject her candidature for reappointment for another term.
7. However in the counter-affidavit filed by the Government, the plea of the petitioner that the President of the District Forum, Ongole furnished
performance report has been denied and it has been stated that in the absence of the performance report the petitioner is not entitled for extension
even though her name has been recommended by the Selection Committee.
8. The common stand taken by the respondent in the counter-affidavits in both the writ petitions is that the Government is the final authority either
to accept the recommendation of the Selection Committee or to reject the same and that the impugned Memo dated 12-01-2004 which was
issued for re-notification of vacancies on valid grounds does not call for any interference.
9. It is also relevant to note that during the pendency of these writ petitions, in pursuance of the impugned Memo the A.P. State Consumer
Disputes Redressal Commission, Hyderabad issued Notification dated 10-02-2004 inviting the applications from eligible candidates for filling-up
of all the vacant posts of the Members of several District Fora including the District Forum, Ongole and the District Forum, Warangal. In the
circumstances, the petitioner in W.P.No.2123 of 2004 filed W.P.M.P.No.3688 of 2004 to amend the payer to the effect that the consequential
notification dated 10-02-2004 is also liable to be declared as arbitrary and illegal. The said petition is ordered on 23-02-2004.
10. We have heard the learned Counsel for the petitioners in both the writ petitions and the learned Government Pleader appearing for the State.
11. The learned Counsel for the petitioners contended that the impugned memo directing renotification of the vacancies in question being contrary
to the recommendations of the Selection Committee is arbitrary and illegal.
12. On the other hand, the learned Government Pleader contended that the petitioners have no vested right to claim the appointment. It is further
contended that the mere recommendation by the Selection Committee does not create a right to be appointed which can be enforced by a
Mandamus and therefore the Writ Petitions are liable to be dismissed in limini.
13. For proper appreciation of the rival contentions, it is necessary to note the relevant statutory provisions. Section 10 of the Act as amended by
Act 50 of 1993 and Act 62 of 2002, which provides for the composition of the District Forum, runs as under :
10. Composition of the District Forum:- [1] Each District Forum shall consist of-
(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;
(b) two other members, 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 recognized university,
(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 a person shall be disqualified for appointment as 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.
(1-A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a Selection Committee
consisting of the following, namely :--
(i) the President of the State Commission -- Chairman,
(ii) Secretary, Law Department of the State -- Member,
(iii) Secretary, incharge 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.
[2] Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:
Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier,
subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-
appointment is also made on the basis of the recommendation of the Selection Committee:
Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being
accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-
section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1-A) in place of the
person who has resigned:
Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act,
2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term]
[3] The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum
shall be such as may be prescribed by the State Government:
Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President
of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum.
3. A bare reading of Section 10 of the Act makes it clear that though the State Government is the Appointing Authority for the President as well as
the Members of the District Forum, such power has to be exercised only on the recommendation of the Selection Committee constituted under
sub-section (1-A) of Section 10. It is relevant to note that the qualifications required to be satisfied for appointment as the President and the
Members have been clearly prescribed under sub-section (1). The proviso to sub-section (1) specifies the disqualifications for appointment as
Member. Sub-section (1-A) provides for constitution of the Selection Committee consisting of the President of the State Commission and two
Secretaries of the State. Thus it is clear that the power of appointment is not left to the discretion of the Executive exclusively, but it shall be on the
recommendation of the Selection Committee constituted under the Act and also subject to compliance with the eligibility criteria prescribed under
the Act. The Supreme Court in State of Rajasthan and Others Vs. Anand Prakash Solanki, while considering the question whether the scheme of
the Consumer Protection Act, 1986 prohibits the exercise of power to transfer the President or Members from one District Forum to another
District Forum within the State, examined the scheme of appointment of President and Members u/s 10 of the Act and observed as under:
It cannot be lost sight of that the National Commission, State Commissions and District Fora have all been constituted to exercise jurisdiction over
such grievances of the aggrieved persons which were earlier available to be raised before the conventional courts established under the
Constitution and / or the laws. Inasmuch as the persons appointed to discharge functions under the Act at whatever level exercise judicial powers
and are expected to function judicially consistently with the procedure as laid down by the Act or Rules framed thereunder, the very nature of the
functions discharged by them needs them to un insulated from the control of, or interference by the Executive. So far as the District Fora are
concerned, the purpose is sought to be achieved by sub-section (1A) of Section 10 as also by Section 24B of the Act. Every appointment under
sub-section (1) of Section 10, though made by the State Government, is dependent on the recommendation of a selection committee which is
headed by the President of the State Commission who is, or has been, a Judge of a High Court. .. ... ..
4. Thus, it is clear that the Government has no power to override the recommendation of the Selection Committee and to appoint a candidate of its
own choice. However the question that arises for our consideration is whether it is permissible for the Government to ignore the recommendations
of the Selection Committee and to renotify the vacancies in question?
5. It is to be noted that sub-section (1-A) of Section 10 was introduced by Consumer Protection Amendment Act, 1993 with effect from 18-06-
1993. Prior to the said amendment, the Members of the District Forum including the President were being appointed as per the nomination made
by the State Government. After insertion of sub-section (1-A), a selection Committee has been constituted and the Government shall appoint the
members on the recommendation of the Selection Committee. While interpreting the aforesaid provision, a learned Single Judge of this Court in
V.VENKTAIAH GOUD v. GOVERNMENT OF ANDHRA PRADESH 2000(1) APLJ 48 (HC) held as under :
By incorporating the selection criteria and the procedure, the Legislature had made mandatory for the Executive to cause selection of persons
through a Committee on the basis of criteria laid down by the Legislature itself and then appoint them as members in tune with the principle of
independence of Forum free from the Executive. Hence, the contention of the first respondent from that the Government being the appointing
authority has the absolute power either to accept or reject the recommendations of the selection committee cannot be countenanced.
6. While placing reliance upon the above decision, the learned Counsel for the petitioners contended that the recommendations of the Selection
Committee with regard to the appointment of the Members of the District Forum are binding on the Government and the same cannot be ignored
without assigning any reasons therefor.
7. The contention of the learned Government Pleader is that the Selection Committee is only a recommendatory body and being the Appointing
Authority, it is always open to the Government to disagree with the recommendations in exercise of its discretion.
8. A perusal of the impugned Memo dated 12-01-2004 shows that the Selection Committee in its meeting held on 06-05-2003 has recommended
the names of six persons for appointment to the posts of Members of the District Fora at Karimnagar, Warangal, Nellore, Ongole and Kadapa. In
pursuance thereof, orders have been issued appointing three persons as Members at Karimnagar, Ongole and Nellore. So far as the remaining
vacancies, the Government decided to issue renotification which include the vacancies of the Lady Member, District Forum, Ongole and the Male
Member, District Forum, Warangal with which the petitioners in these two writ petitions are concerned. The fact that the petitioners in these two
writ petitions were among the candidates whose names were recommended by the Selection Committee, but the Government has not accepted the
said recommendations is not in dispute.
9. It is true that a notification of vacancies merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection by
the Selection Committee or by inclusion of their names in the list of selected candidates they do not acquire any right to the post. It is also true that
the Selection Committee is only a recommendatory body and the recommendations of the Selection Committee being advisory in nature,
undoubtedly, the appointing authority can have a say in finalisation of the appointments. But, when objective criteria for selection has been clearly
laid down under a Statute and the business of selection has been entrusted to a Committee constituted under the Statute itself, the question is
whether the appointing authority can ignore the recommendation of the Selection Committee according to its own sweet will and pleasure?
10. In Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, the Supreme Court while dealing with an issue relating to the appointment of
the teachers of Lucknow University under the provisions of the U.P. State Universities Act, 1973, considered in detail the powers of the Executive
Committee and the Chancellor to disagree with the recommendations of the Selection Committee. Section 31 of the U.P. State Universities Act
was analogous to Section 10 of the Consumer Protection Act inasmuch as making it obligatory to appoint the teachers of the University on the
recommendations of a Selection Committee, the composition of which was prescribed under sub-section (4) of Section 31. The Executive Council
or the Managing Committee of the Affiliated or Associated College, as the case may be, was the appointing authority under sub-section (1).
Further sub-section (8)(a) of Section 31 provides that in the case of appointment of a teacher of the University if the Executive Council does not
agree with the recommendation made by the Selection Committee the Executive Council shall refer the matter to the Chancellor along with the
reasons of such disagreement and his decision shall be final. The proviso to sub-section (8)(a) states that if the Executive Council does not take a
decision on the recommendations of the Selection Committee within a period of four months from the date of the meeting of such Committee, then
also the matter shall stand referred to the Chancellor and his decision shall be final.
11. Thus, Section 31 (8) (a) of the U.P. State Universities Act expressly provides that if the Executive Council wants to disagree with the
recommendations made by the Selection Committee, it must give reasons for disagreement and refer the matter to the Chancellor. Then the
decision of the Chancellor shall be binding on the Executive Council. The question that fell for consideration by the Supreme Court was with regard
to the nature and scope of the power to be exercised by the Chancellor u/s 31(8)(a).
12. The Supreme Court having observed that the decision of the Chancellor is indeed a decision with regard to appointment of a particular person
or persons in the light of the recommendation and opinion, if any, of the two statutory authorities and that such a decision appears to be of an
administrative character much the same way as the decision of the Executive Council with regard to appointment, held as under :
In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of
Articles 14 & 16 of the Constitution. There shall be equality of opportunity and no discrimination only on the ground of religion, race, caste, sex,
descent, place of birth, residence or any of them. The eligible candidate has right to have his case considered in accordance with law and that such
requirement in the instant case has been complied with by the Selection Committee.
13. While holding that the power of the Chancellor u/s 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi-
judicial power, the Supreme Court observed that :
........... No judicial or quasi-judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of
his function. The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed
by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council. His decision nonetheless is a decision
on the recommendation of the Selection Committee. Such a power cannot be considered as a quasi judicial power. And we see nothing in that to
justify our thinking that it must conform to the principles of natural justice.
14. It is also relevant to note the following observations made by the Supreme Court :
The Chancellor, however, has to act properly for the purpose for which the power is conferred. He must take a decision in accordance with the
provisions of the Act and the Statutes. He must not be guided by extraneous or irrelevant consideration. He must not act illegally, irrationally or
arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of
power is liable to be quashed being violative of Art.14 of the Constitution. ..............
15. In the light of the ratio laid down in the above case with regard to the power of the Chancellor u/s 31(8)(a) of the U.P. State Universities Act,
1973, it is clear that the power to appoint conferred on the Government u/s 10 of the Consumer Protection Act, 1986 is purely administrative in
nature and as such its decision must be non-arbitrary and not based on extraneous or irrelevant considerations. No doubt, the recommendation
made by the Selection Committee being advisory in nature, even in the absence of an express provision, the Government may disagree with the
recommendations made by the Selection Committee and take a decision to renotify the vacancies. However such disagreement or disapproval
cannot be as a matter of course, but only for valid reasons and on conscious application of mind to the recommendations made by the Selection
Committee and the adverse material, if any.
16. In the instant case, the only explanation offered by the Government in its counter-affidavit is that keeping in view the performance of the
petitioner in W.P.No.2123 of 2004 during her tenure and also with a view to provide an opportunity to fresh candidates the recommendation of
the Selection Committee was turned down. However in the counter-affidavit itself, it is admitted that no performance report has been received
from the President of the District Forum. Then, what is the material available to assess her performance is not known. So far as the petitioner in
W.P.No.2306 of 2004, it is stated that in view of the information received by the Minister for Food & Civil Supplies orally with regard to the
capability of the petitioner, it has been decided to issue a renotification to choose a better candidate. However the record produced by the learned
Government Pleader before us does not disclose any reasons for decision taken by the Government to disapprove the recommendations of the
Selection Committee and to renotify the two vacancies in question. It is true that there is no allegation of mala fides against the respondents, but in
the absence of reasons and any material to show the application of mind before taking the decision to turn down the recommendations of the
Selection Committee, the impugned Memo is liable to be declared as arbitrary and unsustainable.
17. Though the learned Counsel for the petitioner in W.P.No.2123 of 2004 raised yet another contention that in view of the proviso to sub-section
(2) of Section 10 of the Act the petitioner shall be entitled for reappointment for another term of five years, we are unable to agree. The proviso to
sub-section (2) merely states that a Member shall be eligible for reappointment for another term of five years or upto the age of 65 years
whichever is earlier, but the same shall be subject to the condition that fulfillment of other conditions and qualifications prescribed under sub-section
(1) of Section 10 and also the reappointment shall be on the basis of the recommendation of the Selection Committee. Therefore, the petitioner
cannot claim any vested right for reappointment. By virtue of the proviso, it is merely declared that even a candidate who has completed one term
is eligible for reappointment. In terms of the said provision, the candidature of the petitioner has already been considered. Hence, the contention of
the petitioner on the basis of the proviso to sub-section (2) of Section 10 of the Act cannot be accepted. However, as already expressed, the
decision under the impugned Memo which has been taken without application of mind to the relevant factors being arbitrary cannot be sustained
and we accordingly set aside the same. Though the petitioners sought a further direction to appoint them to the posts in question, we decline to
grant the same. It is a matter for consideration by the Government which is the appointing authority under the Statute. We therefore deem it
appropriate to direct the respondents to reconsider the matter afresh and to take an appropriate decision in accordance with law.
18. Accordingly, the impugned Memo dated 12-01-2004 as well as the consequential Notification dated 10-02-2004 so far as they relate to the
appointment of the Lady Member of the District Forum, Ongole and the Male Member of the District Forum, Warangal are set aside and the
respondents are directed to reconsider the issue and to pass appropriate orders in accordance with law within six weeks from the date of receipt
of this order.
19. Accordingly, both the Writ Petitions are disposed of. No costs.