2005 Supreme(SC) 773

2005(4) Supreme 70
Supreme Court of India
(From Punjab and Haryana High Court)
K.G. Balakrishnan & B.N. Srikrishna, JJ.
State of Haryana & Anr. —Appellants
versus
National Consumer Awareness Group & Ors. —Respondents
Civil Appeal Nos. 3044-3045 of 2005
(Arising out of SLP (C) Nos. 11261-11262 of 2004)
Decided on 4-5-2005
Counsel for the Parties :
For the Appellants : Shanti Bhushan, Sr. Advocate, Neeraj Kumar Jain and Ms. Kavita Wadia, Advocates.
For the Respondents : M.N. Krishnamani, Sr. Advocate, Mrs. Varuna Bhandari Gugnani, Shreekant N. Terdal, A. Mariarputham, Ms. Aruna Mathur, Advocates.­

Important point
Process and context of “consultation with the Chief Justice of State High Court within the meaning of Section 16(1)(a) of Consumer Protection Act is not to be equated with consultation contemplated under Article 217 of Constitution for appointment of High Court Judge.

Headnote:Consumer Protection Act, 1986—Section 16(1)(a) (As amended by Amendment Act, 2002)—Composition of State Commission including appointment of President and members of State Commission—Issue of “consultation with Chief Justice of High Court” under the provision—Process and context is not to be equated with consultation contemplated under Article 217 of the Constitution for appointment of High Court Judge—Consultation with the Chief Justice would not mean consultation with collegium of High Court—Manner of proposal for a consultation with Chief Justice must take place in the manner as laid down in Ashish Handa’s case—Sub-section (1A) of Section 16 could not be said to be intended for appointment of the President of State Commission itself—Procedure contemplated under sub-section (1A) could apply only in respect of appointment of members—Government circular that procedure contemplated for Constitution of a Selection Committee would be equally applicable for appointment of President of State Commission was incorrect.

       Held : In a recent judgment in Ashok Tanwar and Anr. v. State of Himachal Pradesh and Ors., (2005) 2 SCC 104, (to which both of us were parties), the Constitution Bench of this Court had occasion to consider the issue of “consultation with the Chief Justice of High Court” under Section 16 of the Consumer Protection Act, 1986. The Constitution Bench specifically overruled the decision in Ashish Handa (supra) only on this issue holding that the process and context of “consultation with the Chief Justice of the State High Court” within the meaning of Section 16(1)(a) is not to be equated with the consultation contemplated under Article 217 of the Constitution for appointment of a High Court Judge, observing:

       “It is thus clear that the expression “consultation” used in Article 217 of the Constitution in relation to appointment of High Court Judges cannot be read in the same way into “consultation” as contemplated under Section 16 of the Act in the light of what is stated above in Supreme Court Advocates-on-Record Assn., (1993) 4 SCC 441. (vide paragraph 19)

       The Constitution Bench pointed out that, though the process may be similar in several other aspects, the two consultations cannot be held to be qualitatively identical as one was for appointment to a statutory post, while the other was a Constitutional appointment. It was also held (vide paragraph 20) that the requirement of consultation with two seniormost Judges of the High Court could not be read into the consultation required under Section 16 (1A) for appointment of the Chairman of the State Commission, and that consultation with the Chief Justice of the High Court was sufficient. Although overruling Ashish Handa (supra) on this aspect of the matter, the Constitution Bench referred with approval of the said judgment and said:

       “In Ashish Handa (supra) this Court, having regard to what is stated above, held that it is the Chief Justice of the High Court, who should initiate the process in the matter of appointment of a Judge, sitting or retired, as President of the State Commission.” (vide paragraph 21)

       Finally, it concluded thus:

       “Certain statements made by this Court in Ashish Handa (supra) in para 3, give an impression that the Chief Justice of a High Court has to consult his two seniormost colleagues before recommending a sitting or retired Judge for appointment as President of a State Commission as per Section 16 of the Act. In our view that is not the correct position and we do not approve the same. To put it positively, we state that for the purpose of Section 16 of the Act, a Chief Justice of a High Court need not consult his two seniormost colleagues in the High Court for recommending a sitting or retired Judge of a High Court for appointment as President of a State Commission.” (vide paragraph 22)

       A careful reading of Ashok Tanwar (supra) shows that the Constitution Bench differed from Ashish Handa (supra) only on the issue whether consultation with the Chief Justice meant consultation with the collegium of the High Court. In other respects, Ashish Handa (supra) is approved. (Paras 12 to 14)

       It is inconceivable that sub-section (1A) is intended for appointment of the President of the State Commission itself. In the first place, we cannot accede to the contention that the Chairman of the State Commission, who is or has been a Judge of the High Court, can be selected by a Selection Committee comprising two Secretaries of the State ­Government. Nothing could be more erosive of judicial independence than such interpretation of sub-section (1A). This conclusion of ours is driven home by the proviso to sub-section (1A). This proviso is intended to take care of a contingency where there exists a President of the State Commission, who is unable to Chair the Selection Committee meeting because of absence or other similar reasons. It is only in such a situation, that the State Government may request the Chief Justice of the High Court to nominate a sitting Judge to act as Chairman of the Selection Committee. If the argument of the learned counsel of the Union of India and the construction canvassed by him is admitted, it would mean that even where the President of the State Commission is appointed for the first time, the procedure would be that he would be appointed by a Committee of which two Secretaries would be members. That would be obviously destructive of judicial independence. (Para 18)