NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._________OF 2010 (Arising out of S.L.P. (C) No.33694 of 2009)

S. Chandramohan Nair .......Appellant Versus

George Joseph and others .......Respondents  

J  U  D  G  M  E  N  T

G.S. Singhvi, J.

1. Leave granted.

2. This  appeal  is  directed  against  order  dated  20.11.2009  passed  by  the  

Division Bench of Kerala High Court whereby it allowed the writ petition filed  

by respondent No.1 and quashed the appointment of the appellant as member of  

the  Kerala  State  Consumer  Disputes  Redressal  Commission  (for  short,  ‘the  

State Commission’).

3. Appellant  – S.  Chandramohan Nair,  Smt. Valsala  Sarangadharan,  Shri  

K.V.  Thomas  and  one  more  person  were  interviewed  on  2.3.2006  by  the  

Selection Committee consisting of Justice T.M. Hassan Pillai, President of the  

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State Commission, Shri Sainudeen, Law Secretary, Government of Kerala for  

appointment as members of the State Commission. The Law Secretary and the  

Food, Civil Supplies & Consumer Affairs Secretary recommended the names of  

Smt. Valsala Sarangadharan and Shri K.V. Thomas, but the Chairman did not  

agree with them.  He recommended that name of the appellant be included and  

that of Shri K.V. Thomas be excluded from the panel.  This is clearly evident  

from  the  minutes  of  the  meeting  of  the  Selection  Committee,  the  relevant  

portions of which are extracted below:

“Minutes of the Selection Committee meeting held on 2nd March  2006 at 3.00 P.M. in the chamber of Justice T.M. Hassan Pillai,  President,  Consumer  Disputes  Redressal  Commission,  Thiruvananthapuram.

         Present:

         1. Justice Shri T.M. Hassan Pillai, President,              Consumer Disputes Redressal Commission,              Thiruvananthapuram   (Chairman)

         2. Shri. S. Sainudeen, Law Secretary,              Government of Kerala,              Thiruvananthapuram  (Member)

         3. Smt. Sheela Thomas,              Secretary, Food, Civil Supplies &              Consumer Affairs, Government of Kerala,              Thiruvananthapuram   (Member)

xxx           xxx xxx xxx

V.  Consumer Disputes Redressal Commission,          Thiruvananthapuram.

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        Secretary-Law and Secretary-Consumer Affairs suggested  the   following names for inclusion in the panel for selection of  member to the Consumer Disputes Redressal Commission:

         1.    Smt. Valsala Sarangadharan

         2.    Shri. K.V. Thomas

        As per section 16(1)(b) of the Consumer   Protection Act,  1986 apart from age and  educational qualification, persons to be  appointed as  members  of  the  State  Commission  be persons   of  ability, integrity and standing, and have  adequate knowledge and  experience of at least  ten years dealing with problems relating to  economics, law, commerce, accountancy, industry, public affairs  or administration.

        The members concluded that Smt. Valsala  Sarangadharan  and Shri K.V. Thomas performed  satisfactorily in the interview  and from their  C.V.  also it  is  seen that  they have  the  requisite  qualification  for  appointment  to  the  post  of  member,  State  Commission.  Smt. Valsala  Sarangadharan has experience in the  field  of  law   and  K.V.  Thomas   has  long    experience     in  administration.   Hence  they  are  recommended  from among  the  four persons interviewed for selection to the post of member, State  Commission.                                          

The Chairman of the Committee, President, State C.D.R.C.  dissented to this recommendation and recommended inclusion of  Shri S. Chandramohan Nair and Smt. Valsala Sarangadharan in the  panel and exclusion of Shri K.V. Thomas from the panel for the  following reasons.”

4. The final minutes containing the recommendation which were signed by  

the Chairman and both the members read as under:

“I  recommend  the  following  persons  to  be  appointed  as  the  members of the State Commission.

 1.   Shri. S. Chandramohan Nair

 2.   Smt. Valsala Sarangadharan

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 1.    Justice Shri. T.M .Hassan Pillai, President  Sd/-

 2.   Shri. S. Sainudeen, Law Secretary             Sd/-

 3.   Smt. Sheela Thomas, Secretary,         Food, Civil Supplies and         Consumer Affairs              Sd/-

5. Later,  the  Chairman  of  the  Selection  Committee  incorporated  the  

following in the minutes of the meeting:

“Really what transpired at the Selection Committee Meeting held  on 2nd March 2006 was that there was no difference   of   opinion  among    the  President  and  the  Members  of  the  Selection  Committee  for  including  the  name of  Sri.  Chandramohan Nair.  The   only difference of opinion was regarding the inclusion of  name of Sri. K.V. Thomas in the panel.”

6. When the aforesaid recommendations were placed before the Minister,  

Food, Civil Supplies and Consumer Affairs, he recorded the following note:

“Concurs with the majority decision.

Regarding the dissenting note, I have specific doubts that President  has mistaken the selection as if for a judicial member,  which is  not.  Both the candidates recommended by the majority members  of selection committee are seen to have all necessary qualification  and experience stipulated in the Act.  Competency in the field of  experience is to be the criterion for selection; judicial experience  needed  by  considered  only  for  the  appointment  of  a  judicial  member.  Misinterpretation of section 16(i) (b) is doubted in the  dissenting note.  Appointment of judicial member as per statute is  being  taken  up  separately  and  the  justifications  for  judicial  background shall be considered then:

Appointment of the following persons for State Commission and  District Forum are approved.

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CDRS, Thiruvananthapuram

1) Smt. Valsala Sarangadharan

2) Sri K.V. Thomas

Sd/- 15.3.2006

Minister for Food, Civil  Supplies & Consumer Affairs.”

7. As a sequel to the above, the State Government issued notification dated  

11.5.2006 appointing Smt.  Valsala Sarangadharan and Shri  K.V. Thomas as  

members of the State Commission.

8. The appellant challenged the appointment of Shri K.V. Thomas in Writ  

Petition (C) No. 13058 of 2006.  He pleaded that Shri K.V. Thomas could not  

have been appointed as member of the State Commission because his name had  

not  been recommended by the Selection Committee.  In paragraph 13 of the  

counter affidavit filed by Smt. Sheela Thomas, the then Secretary, Food and  

Civil Supplies Department, who was impleaded as respondent No.2 in the writ  

petition,  it  was  averred  that  a  panel  of  three  names  including  those  of  the  

appellant herein and Shri K.V. Thomas was sent to the State Government.  It  

was further stated that there was difference of opinion among the members of  

the  Selection  Committee  on  the  candidature  of  Shri  K.V.  Thomas  only.  

Simultaneously, she claimed that Shri K.V. Thomas was appointed on the basis  

of  the  recommendations  of  the  majority  of  the  Selection  Committee  and  

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keeping in view the fact that he fulfilled the required qualifications and satisfied  

the conditions of eligibility.

9. On  a  consideration  of  the  pleadings  of  the  parties  and  the  records  

produced before him, the learned Single Judge quashed the appointment of Shri  

K.V. Thomas by observing that even though name of the appellant herein was  

recommended  by  the  Chairman  and  two  members,  the  State  Government  

ignored the  same without  assigning any tangible  reason and appointed  Shri  

K.V. Thomas, whose name was recommended only by two members.  

10. Shri K.V. Thomas challenged the order of the learned Single Judge in  

Writ Appeal No.968 of 2007, which was dismissed by the Division Bench vide  

judgment dated 23.7.2007. The Division Bench referred to the minutes of the  

Selection  Committee  and  observed  that  the  name  of  the  appellant  was  

recommended only by the Chairman and the finding recorded by the learned  

Single Judge that it was a unanimous recommendation was not correct.  The  

Division Bench then took cognizance of the fact that an attempt was made to  

interfere with the process of selection inasmuch as just before the interview, a  

cover  containing  names  of  candidates  including  that  of  Shri  K.V.  Thomas,  

allegedly sent by the office of the then Minister for Food and Civil Supplies,  

Government  of  Kerala  was  handed  over  to  the  members  of  the  Selection  

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Committee and held that recommendation made in favour of Shri K.V. Thomas  

was tainted by malafides and extraneous influence.

11. During the pendency of the writ appeal filed by Shri K.V. Thomas, the  

State  Government  accepted  the  recommendation  made  by  the  Selection  

Committee  for  appointment  of  the  appellant  as  member  of  the  State  

Commission and issued notification dated 25.6.2007.

12. Respondent No.1, who had nothing to do with selection and appointment  

of the members of the State Commission filed Writ Petition No.24963 of 2008  

by describing himself as General Secretary of the Kerala Vayapari Vavyasai  

Ekopana  Samati  (for  short,  `the  Samati’)  and  prayed  for  quashing  the  

appointment  of  the  appellant  on  the  ground  that  his  name  had  not  been  

recommended  by  the  Selection  Committee.   In  support  of  this  assertion,  

respondent No.1 relied upon the observations made by the Division Bench of  

the  High  Court  in  the  order  passed  by  it  in  Writ  Appeal  No.968  of  2007.  

Respondent No.1 claimed that the appellant’s continuance as member of the  

State Commission was detrimental to the interest of the members of the Samati  

and, therefore, he was filing the writ petition in public interest.  He also pleaded  

that the appellant was a usurper of public office.   

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13. In the counter affidavit filed by him, the appellant questioned the locus  

standi and bona fides of respondent No.1 by alleging that the writ petition has  

been filed at the instance of Shri K.V. Thomas.  The appellant also defended his  

appointment by stating that although his name had been recommended by the  

Selection  Committee,  the  State  Government  chose  to  ignore  the  same  and  

appointed Shri K.V. Thomas, whose name was initially recommended by two  

members,  but  after  disposal  of  Writ  Petition  No.13058  of  2006,  the  State  

Government  realised  its  mistake  and  appointed  him  in  place  of  Shri  K.V.  

Thomas.  Along with the counter affidavit, the appellant enclosed a copy of the  

written statement filed by the Secretary, Food, Civil Supplies and Consumer  

Affairs in Writ Petition (C) No.13058 of 2006 wherein it was admitted that a  

panel of three names including that of the appellant was recommended to the  

State Government.

14. The Division Bench of the High Court treated the writ petition filed by  

respondent No.1 as a writ of quo warranto, referred to the observations made by  

the Division Bench in Writ Appeal No.968 of 2007 and held that the appellant  

could not have been appointed as member of the State Commission because his  

name had not been recommended by the Selection Committee.

15. We have heard learned counsel  for  the  parties.   Section  16(1)  of  the  

Consumer Protection Act, 1986 (for short, `the Act’) lays down that each State  

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Commission shall consist of President and at least two members, one of whom  

shall be a woman.  The qualifications of the President and the members are also  

enumerated in that section.  Section 16(1A), which was added by the Consumer  

Protection (Amendment)  Act,  2002 lays down that every appointment under  

sub-section (1) shall be made by the State Government on the recommendation  

of a Selection Committee consisting of the President of the State Commission  

as Chairman, Secretary of the Law Department of the State and Secretary in  

charge  of  the  Department  dealing  with  Consumer  Affairs  in  the  State  as  

Members.   Rule  17(1)  of  the  Kerala  Consumer  Protection  Rules,  2005 (for  

short, `the Rules’) lays down that the President of the State Commission shall  

be appointed by the Government in consultation with the Chief Justice of the  

High Court of Kerala.  Rule 17(2) envisages calling of the panel of candidates  

by the Department in charge of the Consumer Affairs from the High Court of  

Kerala for appointment as judicial members.  Rule 17(3) lays down that in the  

case of other members, the panel of candidates should be called for from the  

concerned District Collectors.  The first proviso to Rule 17(3) envisages that the  

Government (Department dealing with the Consumer Affairs) may also issue  

advertisement  for  appointment  of  other  members.   The  second proviso  lays  

down that the panel obtained by the Department shall, after further scrutiny and  

short-listing, be placed before the Selection Committee.  In terms of the third  

proviso, the Selection Committee is required to finalize the panel of candidates  

by adopting such methods as it may deem fit and send the same to the State  

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Government for consideration for appointment.  

16. An analysis of these provisions shows that appointment of judicial and  

other  members  is  required  to  be  made  by  the  State  Government  on  the  

recommendation  of  the  Selection  Committee.   If  the  Chairman  and/or  the  

members of the Selection Committee do not agree on the candidature of any  

particular  person,  then  opinion  of  the  majority  would  constitute  

recommendation of the Selection Committee.  Though, the State Government is  

not bound to accept the recommendations made by the Selection Committee, if  

it does not want to accept the recommendations, then reasons for doing so have  

to be recorded.  The State Government cannot arbitrarily ignore or reject the  

recommendations of the Selection Committee.  If the appointment made by the  

State  Government is  subjected to  judicial  scrutiny,  then it  is  duty  bound to  

produce  the  relevant  records  including  recommendation  of  the  Selection  

Committee  before  the  Court  to  show that  there  were  valid  reasons  for  not  

accepting the recommendation.  

17. The record of this case shows that just before start of the interview, a  

cover containing the names of candidates, which was sent from the office of the  

minister was handed over to the Chairman by Shri K.V. Thomas, who himself  

was a candidate.  The Law Secretary and the Secretary, Food, Civil Supplies  

and  Consumer  Affairs  Department,  who  were  members  of  the  Selection  

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Committee appear to have been overawed by this development and this must  

have  been  the  operative  reason  for  their  recommending  the  names  of  Smt.  

Valsala Sarangadharan and Shri K.V. Thomas.  The Chairman did not toe their  

line and recommended inclusion of the name of the appellant and exclusion of  

that of Shri K.V. Thomas.  Finally, the names of the appellant and Smt. Valsala  

Sarangadharan  were  recommended  to  the  State  Government.   The  minutes  

containing the recommendation were signed not only by the Chairman of the  

Selection Committee but also by the other two members.  

18. While deciding Writ Appeal No. 968 of 2007, the Division Bench of the  

High  Court  was  unduly  influenced  by  the  fact  that  the  Chairman  of  the  

Selection Committee had initially recorded dissent and at the end of the minutes  

he  separately  appended  a  note  suggesting  that  there  was  no  difference  of  

opinion  between  him  and  two  members  and  concluded  that  name  of  the  

appellant was recommended only by the Chairman and not by the members.  It  

appears that attention of the Division Bench was not drawn to the affidavit filed  

by Smt. Sheela Thomas in Writ Petition No.13058 of 2006 wherein she had  

categorically averred that a panel of three names including that of the appellant  

was recommended to the State Government and the difference of opinion was  

only on the candidature of Shri K.V. Thomas.   We have no doubt that if the  

learned counsel  appearing for  the  parties  had properly  assisted  the  Division  

Bench of the High Court, it  may not have recorded the observation that the  

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name of the appellant was recommended only by the Chairman and not by the  

members. That apart, be that as it may, we are convinced that the name of the  

appellant had been recommended by entire body of the Selection Committee  

i.e.,  the  Chairman and the Members.   If  this  was  not  so,  either  of  the  two  

Members would have, after coming to know of the minutes recorded by the  

Chairman, lodged a protest or sent communication to the State Government that  

they  had not  recommended  the  name of  the  appellant  and that  the  minutes  

recorded  by  the  Chairman  did  not  reflect  the  actual  recommendations.  

However, the fact of the matter is that neither of them lodged any objection nor  

sent  any  communication  to  the  State  Government.   Therefore,  the  contrary  

observations  made  by  the  Division  Bench  in  Writ  Appeal  No.968  of  2007  

cannot but be termed as erroneous and the same could not have been relied  

upon for quashing the appointment of the appellant.   

19. As  mentioned  above,  respondent  No.1  had  nothing  to  do  with  the  

appointment of the members of the State Commission and who did not place  

any material  on record to show as to how the appointment  of  the appellant  

would adversely affect the members of the Samiti.  His position was nothing  

more than that of a meddlesome interloper/busy body and the Division Bench  

of the High Court gravely erred in entertaining the writ petition filed by him  

and converting the same into a writ of quo warranto.    

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20. In the result, the appeal is allowed.  The impugned order is set aside and  

the writ petition filed by respondent No.1 is dismissed.  The parties are left to  

bear their own costs.  

………………………….…J. [G.S. Singhvi]

……………………………..J. [Asok Kumar Ganguly]

New Delhi October 5, 2010.

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