Read Judgment: Vijay Kumar Bhima vs. Union of India

Pankaj Bajpai

Nagpur, September 15, 2021: The Bombay High Court (Nagpur Bench) has held that the Rules 3(2)(b) and 4(2)(c) of the Consumer Protection Rules of 2020 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, are unconstitutional and violative of Article 14 of the Constitution of India.

A Division Bench of Justice S B Shukre and Justice AS Kilor observed that 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 Consumer Protection Act of 2019, is an attempt to circumvent the directions issued by this Court in Madras Bar Association Vrs. Union of India and State of Uttar Pradesh and others Vrs. All Uttar Pradesh Consumer Protection Bar Association.

Hence, they are arbitrary, illegal and violate principle of equality before law, added the Bench.

The observation came to be passed in respect of a PIL challenging the provisions 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.

The Top Court observed that the provisions which are under challenge were Rule 3(2) prescribing a minimum experience of not less than 20 years for appointment of president and members of State Commission;Rule 4(2)(c) prescribing experience of not less than 15 years for appointment of president and members of District Commission; and Rule 6(9) providing for the selection committee to determine its procedure for making its recommendations keeping in view the requirement of the Commission.

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” observed the Division Bench.

The Top Court said that the standard expected from the judicial members of the Tribunal and standards applied for appointing such members, should be as nearly as possible applicable to the appointment of Judges, exercising such powers.

It is also clear that if the qualification or eligibility criteria for appointment fail to ensure that the Members of the Tribunal are able to discharge judicial functions, the said provisions cannot pass the scrutiny of the higher judiciary, added the Court.

In the case in hand admittedly no written test was prescribed in the impugned notice for selection of Members of District and State Commissions but, only a viva voce test. However, during the pendency of the present petition and in the middle of selection process, a decision was taken by the Selection Committee to hold written test for selection, which is contrary to the well settled principle of law that in the middle of the selection process, rules for selection cannot be changed”, observed the Division Bench.

Moreover, the Top court opined that 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.

Therefore, the Apex Court concluded that Sub Rule (9) of Rule 6 of Rules of 2020, framed under the Act of 2019, is ultra vires, and violative of Article 14 of the Constitution of India.

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