Allowed

Lethika Bhai.C v. State of Kerala

Kerala HC20 Nov 2017WP(C)/26940/2017

Case brief

AI extract

What is this about?

The petitioner challenged Rule 7 of the Consumer Protection (Kerala) Rules, 2005, which authorized the District Collector to shortlist candidates for consumer forum membership. The Single Judge held that Parliament consciously entrusted selection powers exclusively to the Selection Committee under Section 10(1A), making the rule ultra vires the Act. The court quashed the rule's operation and direc

What did the court decide?

Rule 7 of the Kerala Rules, 2005 interfered so as to permit District Collector to shortlist is quashed; direction to District Collector to forward all 25 applications to the Selection Committee.

Lethika Bhai.C Vs State of Kerala — Service and Employment | Kerala HC (2017)

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'C.R'

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K. VINOD CHANDRAN, J. --------------------------------------------W.P (C) No. 26940 of 2017

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Dated this the 20^th day of November, 2017

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JUDGMENT

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The petitioner is aggrieved with the selection procedure, adopted by the Government for filling up the vacant post of a woman member in the Consumer Disputes Redressal Forum, Pathanamthitta. The selection was notified as per Ext.P5. Ext.P5 indicated the essential qualifications for a woman member as enumerated in Section 10(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'). The petitioner applied under the notification and the petitioner was also found to be eligible to be considered for the post, having satisfied the qualifications as stipulated in the Act. Later the petitioner was informed that the District Collector is intending to short list 5 candidates from among the 25 who applied. The petitioner was before this Court challenging the short listing attempted. This Court granted a stay of selection till the disposal of the writ petition.

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The question hence is only on the procedure as prescribed in the Act and the Rules. The petitioner has also raised a challenge to the rule prescribing short listing by the District Collector; Rule 7 of the Consumer Protection (Kerala)

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Rules, 2005 (hereinafter referred to as 'the Kerala Rules'). The learned counsel for the petitioner argues that the selection has to be done by the selection committee under Section 10(1A) of the Act. The President of the State Commission, Law Secretary and the Secretary in-charge of consumer affairs are respectively Chairman and Members of the Selection Committee. If at all, short listing has to be done, it has to be done by the Selection Committee itself is the argument.

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The petitioner challenges Rule 7 in so far as it authorises the Convenor of the Selection Committee being the District Collector to short list 5 candidates per vacancy before the applicants are scrutinised by the Selection Committee. The rule is violative of Article 16 of the Constitution and ultra vires the Act. Section 30 confers power respectively by sub sections (1) & (2) on the Central Government and the State Government to make rules for effective implementation of the provisions separately enumerated in the respective subsections. The State Government is not conferred with a power to prescribe a procedure under sub-section 1A of Section 10; is the compelling argument.

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The learned Government Pleader relies on two decisions of this Court. One by a learned Single Judge dated 25.09.2017 in WP(C) No. 9221/2017 Renu P. Gopalan Vs. State of Kerala and the other by a Division Bench reported in State of Kerala & others v. K.Reghu Varma and others [2009(3) KHC 582]. The learned Government Pleader would submit that it is trite that in conducting a selection, only 3 to 4 times the number of posts available need be called for the interview. In the present case, there was only one post and there were 25 applications. It was hence there was short listing carried on by the District Collector. It is also submitted that the procedure adopted by the District Collector was transparent, judicious and perfectly in order. The Court is invited to look into the manner in which the short listing was carried out.

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The learned Government Pleader would submit that in Renu.P , the challenge against the rule was considered and negatived by harmonising the rule with the provisions in the statute. It was held that the Convenor of the Selection Committee, has to carry out the short listing on the modality as prescribed by the Selection Committee. It is also submitted that the Government has a specific power to prescribe dis-

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qualification as per sub-clause (f) of Section 10(1), which the Government has conferred on the District Collector as per the rules.

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Renu.P sought a direction to make appointment to the vacancy arising in the State Commission; for which a selection as per the Act and the Rules was conducted. The Government defended the case on the ground that the selection itself is liable to be cancelled for not complying with the statutory provisions. The grounds for cancellation were that the District Collector had not carried out the short listing under Rule 17 (in pari materia to Rule 7)of the Kerala Rules and that, there were about 35 candidates interviewed within two days. The Selection Committee, according to the Government, did not have the time to assess the competence of the candidates, who on selection are expected to carry out the onerous task of adjudication. The petitioner, upon such defence raised by the Government, had challenged Rule 17 of the Kerala Rules by way of an amendment.

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This Court looking at Rule 17 and sub-section 1A of Section 16 of the Act found that though a short listing could be conducted; it can only be on the decision of the Selection Committee. The rule was held to be directory and not

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mandatory. Employing the well accepted principle of the Courts, as far as possible harmonising the provisions, if possible, to avoid setting it aside; the provision was upheld. This Court also found on facts that, Selection Committee; with reference to the working hours in a day and the number of candidates, had at least twenty minutes to assess each candidate, which was found to be sufficient, especially since the Chairman of the committee was a former Judge of this Court.

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K.Reghu Varma considered the issue whether the Selection Committee could forward a list with the candidates selected in the order of merit. The Division Bench held that even if such a list was forwarded; the Government could appoint any person from the list, whose suitability was found by the Selection Committee. The Division Bench did not deal with the sustainability of of Rule 7 and there never was raised a question of short listing. Hence the said decision is not applicable herein.

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The method of short listing is permissible to cut down the number of applicants called for the interview as has been held in B. Ramkichenin Vs. Union of India (2008) 1 SCC 362. But the question is whether any one other than the

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selection committee can do it. Useful reference can be made to the Consumer Protection Rules, 1987 as brought out by the Central Government. The Central Government while framing the rules, taking into account the situation of there being more number of applications as against a lesser number of posts; provided short listing by the Selection Committee itself. 10. Having looked at Section 30, this Court is inclined to find that the Rule providing for short listing by the District Collector, the Convenor of the Selection Committee,is ultra vires the Act. The Act by Section 10(1A) provides for a Selection Committee constituted of the President of the State Commission as the Chairman with the Secretaries of the Law Department and the Consumer Affairs Department as the members. Section 30 confers power on the State Government to make rules for carrying out the provisions inter alia in clause (b) of sub-section (1) and sub-section (3) of Section 10, but omits sub-section (1A). Section 30 as now found in the Act and sub-section (1A) of Section 10 were brought in; inserted by amendment Act 62 of 2002. Sub-clause (b) of sub-section (1) & (3) of Section 10 were substituted by the same amendment Act. The Parliament hence consciously conferred the power of selection exclusively on the Selection Committee

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and did not grant any power to make rules prescribing modes of selection. The provision in the Rules of 2005, providing for a short listing by the Convenor of the Selection Committee is ultra vires the Act.

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This Court normally would have referred the matter to a Division Bench, since another learned Single Judge harmonised a similar rule [R.17(3)] with the statute[S.16(1A)] permitting a short listing by the Convenor on the modalities as laid down by the Selection Committee. But the learned Single Judge had not noticed Section 30, the rule making power which did not confer power on the State Government to prescribe procedure under sub-section (1A) of section 10 and provide for such short listing. Rule 7 is interfered with to the extend it permits the District Collector to shortlist the applicants and hence there would be a direction to the District Collector to forward all the 25 applications to the Selection Committee. The Selection Committee, at its discretion, shall carry out short listing with reference to the single post available in the District Forum on modalities which are laid down at a meeting of the Selection Committee.

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The writ petition would stand allowed with the

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above direction. No order as to Costs.

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Sd/- K. VINOD CHANDRAN, Judge

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lsn