Supreme Court Paves Way For Lawyers With 10 Yrs Experience To Be Considered For Consumer Commission Appointments; Upholds Striking Down Of Centre's Rules

The Supreme Court, on Friday, held that persons having a Bachelors degree and having a professional experience of at least 10 years in consumer affairs, law, public affairs, administration etc. should be treated as qualified for appointment as President and members of State Consumer Commissions and District Consumer Forums.

This means that lawyers with at least 10 years standing are eligible for appointment as President and members of State and District Consumer Commissions.

The Supreme Court 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 comprising Justice MR Shah and Justice MM Sundresh 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.”

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.

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, competency of the candidates before they are empanelled. The Rule 2020 does not contemplate written examinations to assess the merits of candidates.”

The Bench recognised that the Union Government has tried to override the judgments of the Apex Court, including the one in 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.”

On the issue of minimum years of experience, the Bench opined -

“We considered the validity of Rule 3(2)(b) and 4(2)(c) provisioning a minimum of 20 and 15 years of experience. We have also held it is not permissible and directed to consider 10 years experience in line with Madras Bar Association. We see no reason to interfere with the reasons provided by the High Court.”

The Bench directed the Central and State Governments to make the following amendments to the 2020 Rule.

“The concerned Governments have to amend 2020 Rules more particularly R. 6(9). The appointment to be made on the basis of the performance in the written test of 2 papers for 100 marks each and 50 marks for viva. They are also to come with an amendment to provide 10 years experience to become eligible to be president and members of State and District Commission instead of 20 and 15 years respectively.”

The Bombay High Court had struck down provisions of the new Consumer Protection Rules 2020, which prescribe a minimum professional experience of 20 years and 15 years for adjudicating members to the State consumer commissions and District forums, respectively.

The court also struck down the provision 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 order pertains to the New 2020 Rules framed by Central Government u/s 101 of Consumer Protection Act, 2019 for appointments, qualifications, eligibility, removal of members of State Consumer Commission, and District Consumer Forums functioning in India.

A division bench of Justices Sunil Shukre and Anil Kilor struck down Rule 3(2)(b), 4(2)(c), 6(9) for being unconstitutional and violative of Article 14 in petitions filed by Advocate Dr Mahindra Limaye and Vijaykumar Bhima Dighe.

The High Court referred to the Supreme Court's judgments in the series of Madras Bar Association(MBA-2020 and MBA-2021) cases which held that advocates with experience of 10 years should be considered for appointment as members of Tribunals.

In the light of this, the Court observed that the Rules are an attempt to circumvent Supreme Court's directions.

[Case Title: The Secretary, Ministry of Consumer Affairs versus Dr.Mahindra Bhaskar Limaye and others SLP(C) 19492/2021]

Citation : 2023 LiveLaw (SC) 161

For Parties: Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Amrish Kumar, AOR Ms. Astha Sharma, AOR Mr. Tushar Mandlekar, Adv. Mr. Srisatya Mohanty, Adv. Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Mr. Shreyas Awasthi, Adv. Mr. Himanshu Chakravarty, Adv. Mr. Devvrat Singh, Adv. Ms. Muskan Surana, Adv. Mr. Bhanu Mishra, Adv. Dr. Uday Prakash Warunjikar, Adv. Ms. Mrunalini Uday Wsarunjikar, Adv. Deval Anju, Adv. Mr. Pravartak Suhas Pathak, Adv. Ms. Ankita Chaudhary, AOR Mr. Yatin M. Jagtap, Adv. Mr. Sunil Kumar Sharma, AOR M/s. Lambat & Legiteam, AOR Ms. Kashmira Lambat, Adv. Mr. Rameshwar Prasad Goyal, AOR Mr. Gagan Sanghi, Adv.

Summary - Supreme Court upholds the Bombay High Court judgment which struck down provisions of the Consumer Protection Rules which excluded persons with 10 years professional experience from appointment to State Consumer Commissions and District Consumer Forums - for appointment of President and Members of the State Commission and District Commission, the appointment shall be made on the basis of performance in written test consisting of two papers

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020- Rule 3 prescribed a minimum professional experience of 20 years for consideration to appointment of members as State Consumer Commissions- Rule 4 prescribed a minimum professional experience of 20 years for consideration to appointment of members as District Consumer Commissions- Rules struck down as violative of the SC judgment in Madras Bar Association judgment which held that lawyers with 10 years of professional experience are eligible for appointment as Tribunal members -the High Court in the impugned judgment and order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020 which are contrary to the decisions of this Court in the cases of f State of Uttar Pradesh and Others Vs. All Uttar Pradesh Consumer Protection Bar Association; (2017) 1 SCC 444 and theMadras Bar Association Vs. Union of India and Another; (2021) 7 SCC 369. are unconstitutional and arbitrary - Para 6.4

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020-  Rule 6(9) lacks transparency and it confers uncontrolled discretion and excessive power to the Selection Committee. Under Rule 6(9), the Selection Committee is empowered with the uncontrolled discretionary power to determine its procedure to recommend candidates to be appointed as President and Members of the State and District Commission - Para 6.5

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020-- 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 - Para 8.2

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