Full Judgment Text
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PETITIONER:
ASHISH HANDA, ADVOCATE
Vs.
RESPONDENT:
HON’BLE THE CHIEF JUSTICE OF HIGHCOURT OF PUNJAB & HARYANA &
DATE OF JUDGMENT: 15/03/1996
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SINGH N.P. (J)
KIRPAL B.N. (J)
CITATION:
1996 AIR 1308 1996 SCC (3) 145
JT 1996 (3) 248 1996 SCALE (2)771
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
J.S. VERMA. J.
The petitioner is an Advocate and a member of the Bar
Association of the High Court of Punjab & Haryana. He filed
a Writ Petition in the High Court of Punjab & Haryana
challenging the appointment of Shri M.R.Agnihotri, a former
Judge of the Punjab & Haryana High Court as the President of
the Haryana State Consumer Disputes Redressal Commission on
completion of the term of Shri S,S.Sandhewalia, a former
Chief Justice of the High Court, with effect from June 30,
1994. The challenge was made on the ground that the
appointment of Shri M.R.Agnihotri was not in accordance with
Section 16 of the Consumer Protection Act, 1986 and in
consonance with the principles applicable or making such an
appointment. That writ petition (C.W.P.No.7067 of 1994) was
transferred to this Court for decision, in view of the
importance of the question involved.
The Consumer Protection Act, 1986 prescribes in Section
16 for the composition of the State Commission as under :
"Composition of the State
Commission -(1) Each State
Commission shall consist of-
(a) a person who is or has been a
Judge of a High Court, appointed by
the State Government who shall be
its President:
1[Provided that no appointment
under this clause shall be made
except after consultation with the
Chief Justice of the High Court;]
(b) two other members, who shall be
persons of ability, integrity and
standing and have adequate
knowledge or experience of, or have
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shown capacity in dealing with,
problems relating to economics,
law, commerce, accountancy,
industry, public affairs or
administration, one of whom shall
be a woman:
2[Provided that every appointment
made under this clause shall be
made by the State Government on the
recommendation of a selection
committee consisting of the
following, namely-
(i) President of the State
Commission Chairman.
(ii) Secretary of the Law
Department of the State - Member.
(iii) Secretary, incharge of
Department dealing with consumer
affairs in the State - Member.]
(2) The salary or honorarium and
other allowances payable to, and
the other terms and conditions of
service 1[*] of, the members of
the State Commission shall be such
as may be prescribed by the State
Government.
2[3) Every member of the State
Commission shall hold Office for a
term of five years or up to the age
of sixty-seven years, whichever is
earlier and shall not be eligible
for re-appointment.
(4) Notwithstanding anything
contained in sub-section (3), a
person appointed as a President or
as a member before the commencement
of the Consumer Protection
(Amendment) Act, 1993, shall
continue to hold such office as
President or member, as the case
may be, till the completion of his
term.]
-----------------------
1. Ommitted by the Consumer
Protection (Amendment) Act, 1993
(w.e.f.18th June, 1993).
2. Inserted by ibid".
We are, in this matter concerned, primarily with the
requirement of Section 16(1)(a) which prescribes the mode of
appointment of the President of the State Commission.
The Consumer Protection Act, 1986 is an Act to provide
for better protection of the interests of consumers and for
that purpose to make provision for the establishment of
consumer councils and other authorities for the settlement
of consumers’ disputes and for matters connected therewith’.
The National Commission, the State Commission and the
District Forum are established as the agencies for the
redressal of consumer disputes by Section 9 of the Act.
Section 10 of the Act provides for composition of the
District Forum, Section 16 for the State Commission and
Section 20 for the National Commission. The scheme is that
these three agencies constituted for redressal of consumer
disputes at different levels have as its President a person
who is, or has been a Judge at the corresponding level. This
is so because the function of these agencies is primarily
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the adjudication of consumer disputes and, therefore, a
person from the judicial branch is considered to be suitable
for the office of the President. The appointment to the
office of the President of the State Commission is to be
made only after consultation with the Chief Justice of the
High Court’ and to the office of the President of the
National Commission after consultation with the Chief
Justice of India’. Such a provision requiring prior
consultation with the Chief Justice is obviously for the
reason that he is the most suitable person to know about the
suitability of the person to be appointed as the President
of the Commission. The provisions in Section 16(1)(a) for
appointment of the President of the State Commission and in
Section 20(1)(a) for appointment of the President of the
National Commission are in Pari materia and have to be
similarly construed. The construction of the proviso in
Section 16(1)(a) and that in Section 20(1)(a) must be the
same because of the identity of the language. The expression
after consultation with the Chief Justice of the High Court
and after consultation with the Chief Justice of India must
be construed in the same manner as the expression after
consultation with the Chief Justice of India, the Chief
Justice of the High Court in Article 217 of the Constitution
of India made in Supreme Court Advocates-on-Record
Association and Ors. Vs. Union of India. (1993(4)SCC 441).
Accordingly, the opinion of the Chief Justice of the High
Court and the requirement of consultation with him according
to the proviso in Section 16(1)(a) must have the same status
as that of the Chief Justice of the High Court in the
appointment of a High Court Judge under Article 217 of the
Constitution of India; and the process of appointment to the
office of the President of the State Commission must also be
similar. It is unnecessary to restate the same which is
summarized in the majority opinion in the Judges-II case
(supra). This is necessary to maintain independence of the
judiciary and to avoid any possibility of a sitting or a
retired Judge depending on the executive for such an
appointment. Our attention was drawn to certain observations
in Sarwan Singh Lamba & Ors. Vs. Union of India & Ors.,
((1995)4 SCC 546), to suggest that the name for appointment
to the Administrative Tribunal may be suggested even by the
executive which may have the effect of initiating the
proposal. In the facts of that case, substantial compliance
of the requirement of approval by the Chief Justice of India
was found proved and, therefore, the appointments were
upheld. The requirement of consultation with the Chief
Justice in the proviso to Section 16(1)(a) and Section
20(1)(a) of the Consumer Protection Act being similar to
that in Article 217, the principles enunciated in the
majority opinion in the Judges-II case must apply, as
indicated earlier, even for initiating the proposal. The
executive is expected to approach the Chief Justice when the
appointment is to be made for taking the steps to initiate
the proposal, and the procedure followed should be the same
as for appointment of a High Court Judge. That would give
greater credibility to the appointment made.
The question now is : whether there has been due
compliance of the proviso to Section 16(1)(a) of the
Consumer Protection Act in the present case? The affidavit
dated 9th July, 1994 of Shri B.L. Gulati, Registrar of the
High Court of Punjab & Haryana mentions the procedure
adopted in making the appointment of Shri M.R.Agnihotri, a
retired Judge of the High Court as the President of the
Haryana State Commission. It is stated that the Chief
Justice of the High Court of Punjab & Haryana considered the
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names of certain retired Judges of that High Court and
ultimately gave his consent for the appointment of Shri
M.R.Agnihotri as the President of the State Commission which
was communicated by the Registrar to the Haryana Government
on 10th June, 1994, after which the appointment of Shri M.R.
Agnihotri was made. In the facts of the present case, we
find that there was substantial compliance of the proviso to
Section 16(1)(a) of the Act and the appointment of Shri
M.R.Agnihotri was made after consultation with the Chief
Justice of the High Court. However, we may add that the
appropriate course to adopt, as indicated in the Judges-II
case, is for the Chief Justice of the High Court to initiate
the proposal and to mention the name approved by him for
appointment instead of the Chief Justice only approving the
name suggested by the State Government. It appears from the
affidavit of the Registrar that the Chief Justice had
indicated to the State Government the proper procedure
relating to initiation of the proposal for filling up the
post and he has accorded his approval to the appointment of
Shri M,R.Agnihotri only after considering several names,
including that of Shri M.R.Agnihotri. The appointment made
in the present case does not, therefore, call for any
interference.
Consequently, the transferred case is dismissed.