'Advocate With 10 Yrs Experience Eligible To Be HC Judge But Not To Be Consumer Commission Member' : Plea In Bombay HC Challenges Consumer Protection Rules

A division bench of Justices Sunil Shukre and Anil Kilor passed the order on a writ petition filed by Advocate Dr Mahindra Limaye, through advocate Tushar Mandlekar, assisted by Advocate Rohan Malviya. The replies are to be filed by June 23, 2021.

According to Rule 3(2)(b) and 4(2)(c) a graduate would need to have special knowledge and professional experience of not less than twenty years to be appointed as an adjudicating member of the State Consumer Disputes Redressal Commission and fifteen years for the district forum in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine.

The plea states that this criterion is violating Article 14 of the Constitution of India.

"It is quite clear that Advocates of more than 10 years practice but less than 20 years of practice in High Courts have categorically been excluded from the appointment of the Members to the State Consumer Disputes Redressal Commission wherein they are held to be qualified and appointed as High Court Judge as per Article 217 (2) of the Constitution of India."

"The said clause is only aimed at bringing government servants in Tribunals for the obvious advantage of the government excluding desired and deserving advocates having practice of more than ten years but less than 20 years," the plea states.

No Written Test

Although the Supreme Court approved the model rules, 2017 in State of U.P. and Ors. v. All U.P. Consumer Protection Bar Association, which included a written test, the provision was deleted in the final 2020 Rules, the plea adds.

"It (A written test) was necessary in view of the concerns expressed by Hon'ble Supreme Court over the bureaucratic and political interference in process of appointments of Presidents/non judicial members & functioning of the Forum."

The petitioners claim that the 2020 Rules don't necessarily require a person to have the basic knowledge of law to be an adjudicating member of the commission.

"Member of the Tribunal can be appointed without having any requisite legal educational qualification and adjudicatory experience thus making him incompetent to adjudicate the legal issues in respective tribunals."

Excessive Powers with the Selection Committee For Appointments

Under Rule 6(9) of 2020 Rules, the Selection Committee has the power to determine its own procedure. However, such provisions also give excessive power and discretion to the Selection Committee and are arbitrary and unreasonable.

"Considering the applications which are coming up before the District Commission and the State Commission, there is a need to assess the skill, ability and the competency of the candidates before they are empanelled and recommended to the State Government."

No Procedure for Recommendations by the Selection Committee

As per the 2020 Rules, the Select Committee is supposed to recommend names for appointment in the order of merit for the State Government to consider.

The petitioner has challenged the vacancy notice issued by the Ministry Of Food, Civil Supplies & Consumer Protection Maharashtra State on February 2, 2021, inviting applications to fill up 33 vacant posts of Members in Maharashtra's commissions as until today the procedure for making the recommendation is not yet determined by the Selection Committee under Rule 6.

Preference to Lawyers

There are more than 1400 law schools and more than 22 lakh lawyers in the entire country. Considering the same, preference ought to have been given to the persons have the legal background so far as the post of Member is concerned. The Petitioner submits that at least the Rules ought to have provided that the desirable qualification should have been LLB as the Member of the Commission is supposed to settle the Consumer Disputes having the pecuniary jurisdiction upto Rs.1 Crore, the plea adds.

The petitoners claimed the Rules also violate the judgement in Madras Bar Association vs. Union of India Writ Petition (C) No.804/202 decided on November 27, 2020.

During the hearing, Assistant Solicitor General UM Aurangabadkar for the Union and Assitant Government Pleader for the State AA Mandiwale sought time to respond.

The petition questions the vires of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the State Commission and District Commission) Rules, 2020, in particular, it challenges Rule 3(2)(b), Rule 4(2)(c) and Rule 6 (8, 9 and 10).

Prayers

It seeks to quash the July, 2020 Rules and to stay its operation in the interim. It further seeks to quash the vacancy notice issued by the Ministry Of Food, Civil Supplies & Consumer Protection Maharashtra State on February 2, 2021.

[Dr. Mahindra Bhaskar Limaye vs. The State of Maharashtra and others]