Important point
In the matter of appointment of a sitting or retired Judge of a High Court as President of the State Commission process must be initiated by the Chief Justice under Article 16 of the Consumer Protection Act and ‘consultation’ contemplated in the said section is ‘consultation’ only with the Chief Justice of the High Court and not with the collegium.

Judgment

Shivaraj V. Patil J.—Leave granted.

2. A Bench of three learned Judges of this Court made the following order of reference on 7th March, 2002:-

“In the present case, under Section 16 of the Consumer Protection Act, the President of the State Consumer Disputes Redressal Commission has to be appointed in consultation with the Chief Justice of the State. The question which arises is whether consultation with an Acting Chief Justice is sufficient compliance or not. This question involves interpretation of Articles 217 and 223 of the Constitution and as there is no decision of this Court which can be applied in the present case, then by virtue of Article 145(3) of the Constitution this case involving the said question of law involving interpretation of the Constitution should be heard by a Bench of not less than five learned Judges.

Let the papers be placed before the Hon’ble the Chief Justice of India for appropriate orders for hearing of the case as expeditiously as possible and within a period of four months.”

Articles 217 to the extent relevant and 223 of the Constitution of India read:-

“217. Appointment and conditions of the office of a judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

“223. Appointment of acting Chief Justice.—When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the court as the President may appoint for the purposes.”

3. On 3rd March, 2000 The Financial Commissioner-cum-Secretary (F&S), Government of Himachal Pradesh, addressed a letter to Registrar General, Himachal Pradesh High Court stating that Justice P.N. Nag (retired Judge of the High Court ) shall cease to hold the post of President of H.P. State Consumer Disputes Redressal Commission, Shimla (for short ‘the State Commission’) on 4.3.2000, after attaining the age of 67 years. In accordance with the provisions contained in The Consumer Protection Act, 1986 (for short ‘the Act’), a person who is or has been a Judge of High Court can be appointed as President of the State Commission, after consultation with the Chief Justice of the High Court. After consideration the State Government decided to take the services of Justice Surinder Swaroop, a sitting Judge of the High Court of Himachal Pradesh for appointment as President of the State Commission. Therefore, he requested that the proposal of the State Government may kindly be placed before the Hon’ble Chief Justice, High Court for consideration and recommending the name of Justice Surinder Swaroop for appointment as President of the State Commission on part-time basis.

4. On the same day the High Court addressed a letter to the State Government indicating that there was defect in the process adopted by the State Government and that the reference made by the State Government was not in conformity with the provisions of law as the executive is expected to approach the Hon’ble Chief Justice when the appointment was to be made, to initiate the proposal as per the procedure to be followed for appointment of High Court Judge.

5. The State Government wrote the second letter to the Registrar General of the High Court requesting the Hon’ble Chief Justice to initiate the process for filling up the vacancy to the post of President of the State Commission in accordance with the provisions of the Act and the law laid down by this Court in Ashish Handa, Advocate vs. Hon’ble the Chief Justice of High Co