1    

REPORTABLE   

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 5710 OF 2018  (Arising out of S.L.P. (Civil) No. 1395 of 2018)  

Meena Verma                    …Appellant(s)  

VERSUS  

State of Himachal Pradesh and another             ….Respondent(s)    

J U D G M E N T  

Dipak Misra, CJI  

     The second respondent, being grieved by the appointment of the  

appellant as a part time female member in the Himachal Pradesh  

Consumer Disputes Redressal Commission (for short, „the  

Commission‟), had assailed the same by way of a Writ Petition being  

C.W.P. No. 1571 of 2017 preferred under Article 226 of the Constitution  

before the High Court of Himachal Pradesh at Shimla. The High Court,  

by the impugned judgment and order dated 12.12.2017, quashed the  

appointment of the appellant and directed the Commission to consider  

the case of the writ petitioner stating, inter alia, that she is otherwise

2    

meritorious and more experienced as compared to the appellant for  

appointment as a member in the Commission. Hence, the appeal by  

special leave.   

2. The facts which are necessary to be enumerated are that on  

25.04.2016, one post of part time female Member along with other  

vacancies meant for various District Fora was advertised by the Principal  

Secretary (Food, Civil Supplies & Consumer Affairs) of the Government  

of Himachal Pradesh. The advertisement stipulated the qualifications,  

namely, that the candidate shall not be less than 35 years of age; that  

she should possess a Bachelors degree from a recognized University;  

and that she should be a person of ability, integrity and standing having  

knowledge and experience of at least ten years in dealing with problems  

relating to economics, law, commerce, accountancy, industry, public  

affairs or administration.  It was further mentioned therein that the part  

time Member so appointed shall hold office for a term of five years or up  

to the age of sixty seven years in the case of the Commission and sixty  

five years in the case of District Consumer Forum, whichever is earlier.   

The Selection Committee of which the President of the Commission was  

the Chairman held the interview on 02.07.2016 and the Committee  

recommended four names on the basis of the performance of the  

candidates for the member of the Commission.  In the select list, the

3    

names of the respondent no. 2 and the appellant appeared at serial nos.  

2 and 3 respectively.  The candidate, who obtained the highest mark,  

was not available for appointment, for she had already been engaged  

against some post in the Himachal Pradesh University.  The first  

respondent selected the appellant as a part time member in the  

Commission. A representation was submitted by the second respondent  

on which no action was taken and, therefore, she approached the High  

Court for redressal of her grievances.   

3.  On behalf of the respondent no. 2, the writ petitioner, it was  

contended before the High Court that when the recommendation of the  

Selection Committee clearly stated that it had prepared a panel on the  

basis of the performance of candidates in the interview and when her  

name was put at serial no. 2, she could not have been ignored.  

4. The first respondent contested the aforesaid stand put forth  by the  

writ petitioner and submitted that the writ petitioner and the selected  

candidate had obtained equal marks and the State Government selected  

the candidate whose name featured at serial no. 3 on the basis of her  

public experience. That apart, it was asserted that the duty and  

responsibility of the Selection Committee is to empanel the eligible and  

suitable candidates for appointment as members of the Commission and  

the appointing authority is free to appoint any candidate recommended

4    

for appointment by the Selection Committee and named in the panel.  

According to the first respondent, solely because the writ petitioner was  

placed at serial no. 2 and is senior in age to the selected candidate, she  

could not claim to be appointed as a matter of right and, therefore, the  

appointment of the selected candidate could not be annulled.   

5. The High Court called for the records pertaining to the selection  

process and the decision taken on the same. The notings in the file are  

reproduced as under:-  

“N/155:-  

It has come to the notice that in r/o State Consumer  Commission, the recommended candidate at Sr.  No. 1 (Dr. Karuna Machhan) has already joined her  service on 24.09.2016 in HPU on her appointment  as Assistant Professor. As such, she may now not  like to accept this position if offered. ..........  Submitted pl.  Sd/-  5-10-2016  Pr. Secy. ((FCS&CA)    N/156:  

For the State Commission two candidates have  equal marks. Based on public experience Smt.  Meena Verma can be appointed. For District  Forums, N 147 to 150 be seen.  

Sd/-        Principal Secretary        5/10  Hon'ble Minister F&CS                            Sd/-        (Minister) 6/10    Hon'ble CM”  

5    

6. On the basis of the aforesaid decision, the appellant herein was  

appointed and continued to serve in the Commission as a part time  

member.  In the course of hearing, the High Court was not satisfied with  

the reasons as regards the stand pertaining to public experience of the  

selected candidate and directed the Additional Chief Secretary (Food,  

Civil Supplies and Consumer Affairs) to the Government of Himachal  

Pradesh to assist the Court.  The Additional Chief Secretary made  

certain statements before the High Court which are reflected from the  

order dated 04.12.2017.  The said statements are to the following  

effect:-  

"Mr. Tarun Kapoor, Additional Chief Secretary,  Food, Civil Supplies and Consumer Affairs to the  Government of Himachal Pradesh is present in  person.    We have been informed that as per the practice  prevalent, the Selection Committee prepares the  panel and submit the same to the Government for  appointment of Member(s) in District Consumer  Fora and H.P. State Consumer Disputes Redressal  Commission, Shimla. In the past also, the  Minister/Chief Minister has ordered the appointment  of such Member(s) without adhering to the position  of empanelled candidate in the panel so prepared.  No rules, guidelines or instructions governing the  appointment of such Member(s) are yet framed.  According to Mr. Kapoor, the matter qua framing  rules for appointment of the Member(s), District  Consumer Fora and State Redressal Commission is  under consideration of the department. It is in this  backdrop, this petition is to be heard further and for  that list on 11.12.2017."

6    

  7. As the impugned order would show, the High Court further heard  

the matter and opined that the State Government had discriminated  

against the writ petitioner and its action is arbitrary which invites the  

wrath of Articles 14 and 16 of the Constitution of India.  It further  

observed that it is even beyond imagination that the appellant, that is,  

the private respondent before the High Court, is having better public  

experience than the writ petitioner when the latter is senior in age as  

compared to the former. The High Court was of the view that a person  

senior in age would have better experience in all spheres of life including  

public experience and, therefore, the writ petitioner having enrolled as  

an Advocate in the year 1992 and in effective legal practice since then  

not only in the High Court but also in the State Administrative Tribunal  

and various quasi judicial authorities including the State Consumer  

Disputes Redressal Commission/District Consumer Disputes Redressal  

Forum, was certainly well versed with various social problems as  

compared to the private respondent who, as per the details in the  

documents furnished along with her application, was a post graduate in  

commerce and also did the Master's degree in business administration,  

which qualification she acquired in the year 2012. While the private  

respondent was studying up to 2012, the writ petitioner was in effective  

legal practice since 1992. The High Court observed that it was not

7    

comprehensible as to what prompted the first respondent to assess her  

public experience to be better than that of the writ petitioner.  After so  

saying, the High Court recorded a finding that although the Rules  

governing the appointment of the member in the State  

Commission/District Consumer Fora had not been framed by the State,  

yet the Rules governing the service conditions of the Government  

employees could be taken note of. This reason was given to justify the  

placement of candidates on the basis of their performance in the  

interview by the Commission. The High Court noted that in a case of  

bracketed candidates as per the Government Rules, the senior in age  

and rank as compared to the bracketed candidate who is junior in age is  

to be given priority. It further observed that though the respondent-State  

is making the appointment out of the empanelled candidates to the  

members of the Commission, yet it is bound to adhere to their merit and  

the pick and choose policy has no sanctity in law.  It further went on to  

adjudge the merit of the two candidates while stating that the writ  

petitioner was more meritorious, regard being had to experience in  

academic, professional and social spheres as compared to the selected  

candidate.  It distinguished the decision rendered by the High Court of  

Kerala in State of Kerala and another v. K. Reghu Varma and others1  

on the ground that there is a prevalent Rule in the State of Kerala, while  

                                                           1  AIR 2010 Kerala 28

8    

it is not so in the State of Himachal Pradesh. Placing reliance on the  

decision in S. Chandramohan Nair v. George Joseph and others2, the  

High Court held that the principles stated therein supported the stand of  

the writ petitioner inasmuch as there was no justification on behalf of the  

State Government to select the candidate on the ground that she had  

more public experience.   

8. We have heard Mr. Ritesh Khatri, learned counsel for the  

appellant, Mr. Abhinav Mukerji, learned Additional Advocate General for  

the respondent no. 1-State and Mr. Amit Singh Chandel, learned  

counsel for the respondent no. 2.  

9. There is no dispute that the first respondent has not framed any  

Rules for the purpose of selection. In  S. Chandramohan Nair (supra), a  

two-Judge Bench was dealing with a situation wherein the Division  

Bench of the High Court of Kerala had allowed the writ petition and  

quashed the appointment of the appellant therein as the member of the  

Kerala State Consumer Disputes Redressal Commission.  This Court  

referred to the Rules, namely, Kerala Consumer  Protection Rules, 2005  

and opined:-   

“17. 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  

                                                           2  (2010) 12 SCC 687

9    

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.”  

 Further, adverting to the facts, the Court observed:-   

“19. 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 name of the appellant was  recommended only by the Chairman and not by the  members.    

10    

20. 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.”  

 10. In the case at hand, the appellant and the respondent no. 2 have  

obtained equal marks. The State Government chose to appoint the  

appellant who was at serial no. 3 on the foundation that she had better  

public experience.  In S. Chandramohan Nair (supra), the Rule had  

conferred power on the Government to select any one of the candidates  

from the panel by ascribing reasons.  The Court was of the opinion that  

the case of the appellant therein was arbitrarily ignored and, accordingly,  

it dislodged the judgment and order of the High Court.  

11. In the instant case, the Selection Committee has observed:-  

“On the basis of the performance of the candidates,  we recommend appointment of following candidates  as Members of the State Commission and various

11    

District Fora, out of the following panels, drawn  separately, for each vacancy:    Female Member, H.P. State Consumer  Commission:    Sr. No.           Name   Marks   

scored   

 1.  Dr. Karuna Machhan  14/20    2.   Ms. Sunita Sharma  11/20    3.  Smt. Meena Verma   11/20    4.            Smt. Yogita Dutta  10/20”  

12. On a perusal of the same, it is noticeable that the Committee was  

presided by the President of the Commission and the other members  

were Principal Secretary (FCS&CA) to the Government of H.P. and  

Principal Secretary (Law) to the Government of H.P.  The Committee  

had used the phraseology “On the basis of the performance of the  

candidates”. The panel was drawn for the female members. It had  

placed the respondent no. 2 at serial no. 2 and the present appellant at  

serial no. 3. As it appears, the Committee had drawn the list in  

accordance with performance and, therefore, the respondent no. 2 was  

more suitable than the appellant. The State Government, while issuing  

the notification, had not ascribed any reasons.  However, as is seen from  

the records produced before the High Court, the Principal Secretary had  

given a note  that the “present appellant had public experience” and on  

that basis, the Chief Minister signed the file and the notification was

12    

issued.  The matter would have been different had there been a Rule to  

enable the State Government to choose a person from the panel.  In the  

absence of any Rule or any executive instruction, when the Committee  

had drawn a panel on the basis of performance and placed the  

candidates in seriatim on the basis of the said performance, we are  

disposed to think that the High Court correctly expressed the opinion  

that the addition of public experience was uncalled for.  

13. In view of the aforesaid analysis, we do not perceive any merit in  

this appeal and the same is, accordingly, dismissed with no order as to  

costs.         

         ..………………………….CJI.           (Dipak Misra)                   

..…………………………….J.               (A. M. Khanwilkar)   

                       ....……………….…….…...J.  

                     (Dr. D.Y. Chandrachud)  New Delhi;     September 19, 2018