Should Retired Judges Appear In Written Exam For Appointments In Consumer Commissions? Supreme Court Seeks Union's Stand

The CJI added that examinations in general should test the potential of the candidate for analytical thinking rather than mere rote learning.  Giving the example of changes in the examination of Law Clerks cum Research Assistants engaged by the Supreme Court, the CJI said “ We used to have an examination, tell us from the code- what are certain provisions of the Penal Code etc.  Eventually, we changed the format of the exam because we realised that it was irrelevant, you are required basically to understand what is the potential of that person, are you able to analyse, summarise thousands of pages of SLP into 2 paragraphs?".

Noting that the present examination requirements have become counter-productive to the purpose of having meritorious ex-judiciary members as part of the State and District Commissions for the Consumer Dispute Redressal, the CJI opined, “To make somebody who is select grade district judge appear for an examination, post-retirement... it really defeats the purpose actually.”

The bench asked SG to inform the considered stand of the Union on this matter, after a discussion with the Secretary of the Ministry of Consumer Affairs. The CJI suggested, “ If you can then sit with the Secretary of Consumer Affairs and maybe call him and ask him what you want to do, because we get a considered position of the Government of India on what has happened as a result of this. You may collect the data, what are the vacancies, what is the feedback of the government etc”

The SG acknowledging the same replied, “We are in the process of collection of data”

The bench in its order dictated today, mentioned, “Mr Tushar Mehta, Learned Solicitor General would seek instructions from the Union Government on the necessity of holding examinations, particularly for posts held by former judges of the High Court or as the case may be Judicial Officers.”

The matter will now be heard on Monday, i.e. 5.2.2024

The Supreme Court Directions Given On March 3, 2023

The Supreme Court bench consisting of Justice MR Shah and Justice MM Sundresh, on March 3, 2023 upheld the decision of the Bombay High Court (Nagpur Bench) to quash the provisions of Consumer Protection Rules, 2020, framed by Central Government u/s 101 of Consumer Protection Act 2019, which prescribe a minimum professional experience of 20 years and 15 years for adjudicating members to the State consumer commissions and District forums respectively and which did away with the requirement of a written exam for appointment.

Exercising power under Article 142 of the Constitution, the Bench directed

"Till the amendments are made, in order to do complete justice under A. 142 we direct that in future a person having Bachelor's degree from a recognised university and who is a person of ability, integrity standing and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration etc. shall be treated as qualified for appointment as President and member of State and District Commission We also direct that for appointment the appointment shall be based on the performance in 2 papers. Qualifying marks in the papers shall be 50% and there must be a viva for 50 marks each."

With respect to the requirement of written test, the Bench observed -

"The Commissions are quasi judicial authorities and the standards expected from the Tribunal should be as nearly as possible to the appointment of Judges... There is a need to assess the skill, and competency of the candidates before they are empanelled. The Rule 2020 does not contemplate written examinations to assess the merits of candidates."

The Bench noted that Rule 6(9) lacks transparency and confers uncontrolled discretion to the Selection Committee. Under Rule 6(9) the Selection Committee is conferred with discretionary and uncontrolled power to determine its procedure, to recommend candidates to be appointed as Presidents and members of the State and District Commission. The transparency in selection criteria is absent. It opined undeserving and unqualified may get appointed, which may frustrate the object and purpose of the Act.

The Bench recognised that the Union Government has tried to override the judgments of the Apex Court, including the one in the Madras Bar Association, which is not permissible.

It added-

"The mechanism of having written examinations was confirmed by this Court which was removed by the 2020 Rules. No justification is shown to do away with the written examination. The High Court rightly observed that Rule 6(9) is unconstitutional, arbitrary and violative of Article 14. We are in complete agreement with the view taken by the High Court."

Background

The present SLPs arise from the October 2023 judgment of the Bombay High Court quashing Rule 6(1) of the f the Consumer Protection((Qualification for Appointment, method of recruitment, procedure for appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Rules, 2020. The quashed Rule prescribed two members from the State bureaucracy and only one member from the judiciary on the Selection Committee that recommends appointment of the President and member-judges to the State Consumer Commission and the District Consumer Fora.

On the previous hearing, the Supreme Court issued notice on the Special Leave Petition filed by some of the appointees. The Court was told that the State has also filed a SLP against the High Court order.

Before the Supreme Court, the petitioners raised two primary points.

Firstly, the interviews are proceeded by a written examination which has to be cleared by all candidates. Secondly, unlike other tribunals where state is involved as a party, in consumer forums, cases usually involve private individuals. Thus, the State has no interest in the outcome of litigation as compared to cases in other tribunals

The State Government made appointments on October 5, 2023, after the High Court reserved its judgment on September 1, 2023, but before officially pronouncing it on October 20, 2023. As the individuals currently in their roles would be affected by the High Court's judgment, it had been directed that the temporary stay granted by the High Court would persist until November 24, 2023. On subsequent hearings, the stay was extended from time to time.

Case Details : GANESHKUMAR RAJESHWARRAO SELUKAR & ORS. v. MAHENDRA BHASKAR LIMAYE & ORS., Diary No(s). 45299/2023