Quashing certain provisions of the new Consumer Protection Rules, 2020 the Bombay High Court has said 10 years of experience in law and in other specialized fields is sufficient for appointment as a judicial member in the Tribunal.
The Nagpur bench of the Bombay HC, therefore, struck down Rules 3(2)(b) and 4(2)(c) of the 2020 Rules prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Forums as unconstitutional and violative of Article 14 of the Constitution of India.
Similarly, in State of U.P. & Ors. vs All U.P. Consumer Protection Bar Association, the Supreme Court observed that both in relation to the State Commissions and the district fora, a member must be a person of ability and standing with adequate knowledge and experience of at least 10 years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
The court observed as follows:
"Thus, it is clear that the Hon'ble Supreme Court of India, has repeatedly held that to have 10 years of experience in law and in other specialized fields as prescribed and stipulated under the statute, is sufficient for appointment as a judicial member in the Tribunal.
The Rules 3(2)(b) and 4(2)(c) of the Rules of 2020 to the extend prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Commission under the Act of 2019, is an attempt to circumvent the directions issued in MBA-2020 and UPCPBA. Hence, they are arbitrary, illegal and violates the principle of equality before law."
Striking down provision 6(9) of the Rules that gives each state's selection committee the power to determine its own procedure to recommend names for appointment in the order of merit for the State Government to consider, the court discussed the adverse effects of not having appropriate criteria for selection and uniformity in selection.
The petitioners had argued that although the Supreme Court approved the model rules, 2017 in UPCPBA, which included a written test, the provision was deleted in the final 2020 Rules.
Additionally in MBA-2020, the court said adjudicating members of consumer forums should maintain the same standards as that of what is expected from the mainstream judiciary. Only then would their order will withstand the scrutiny of the higher judiciary, the bench observed.
However, the Selection committee in Maharashtra had not prescribed a written test but, only a viva test. And during the pendency of the present petition and in the middle of the selection process, a decision was taken by the Selection Committee to hold written test for selection.
The court held this was contrary to the well-settled principle of law that in the middle of the selection process, rules for selection cannot be changed.
"Moreover, the decision of the Selection Committee to hold the written test, supports the case of the petitioner that looking at the judicial functions needed to be performed by the President and Members of District and State Commissions, the criteria for selection and appointment shall be applied as nearly as possible applicable to the judges in mainstream judiciary, exercising the similar powers," the bench held.
Case Title: Vijaykumar Bhima Dighe v. Union of India and others and Dr.Mahindra Bhaskar Limaye v.Union of India and others