Serial No. 8 Regular Cause list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 1018/2024 CM No. 2776/2024 Aijaz Ahmad Mir ….. Appellant/petitioner(s) Through: - Mr. Salih Pirzada, Advocate with Mr. Bhat Shafi, Advocate V/s UT of J&K and Ors. ….. Respondent(s) Through: - Mr. Hakim Aman Ali, Dy. AG CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR JUSTICE SANJAY PARIHAR, JUDGE (ORDER) 07.05.2025 01. Vide Advertisement Notification No. 06-FCS&CA of 2021 dated 09.04.2021, applications were invited by the department of Food, Civil Supplies and Consumer Affairs for appointment to the post of President, District Consumer Disputes Redressal Commission [“District Commission”] in different districts of Jammu and Kashmir. 02. The petitioner applied for the post of President, District Commission, Srinagar. The Selection Committee constituted vide Government order No. 14-JK(FCS&CA) of 2021 dated 03.02.2021, conducted the selection process. The said Committee in its meeting held on 10.10.2021, made recommendations to the department of Food and Civil Supplies and Consumer Affairs [“the Department”] for the appointment of Presidents and Members of District Consumer Commissions. The recommendations of the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Selection Committee were forwarded by the department to the department of General Administration for placing before the competent authority. The approval of the competent authority was conveyed by the General Administration Department (GAD) vide U.O No. GAD-CORD/14/2021 dated 21.01.2022 for the appointments of four candidates as Presidents of four different District Commissions. The selection of the petitioner came to be approved as President of District Commission, Srinagar. 03. Pursuant to the approval granted by the competent authority as conveyed by the GAD, the department vide its letter dated 24.01.2022, called upon all the four candidates, including the petitioner herein to furnish certain requisite documents so as to enable the department to issue formal orders of appointment in their favour. The other three candidates, who were approved for appointment as President, District Commissions, Jammu, Kathua and Udhampur, completed their requisite formalities within stipulated time and formal appointment orders in their favour were issued by the department. The petitioner, who at the relevant time was serving as Member Advisory Board under J&K Public Safety Act, 1979, could not submit ‘No Objection Certificate’ from his employer. The petitioner was given a reminder by the department on 15.03.2022, to complete the requisite formalities by 17.03.2022, making it clear to the petitioner that in case he would not complete the requisite formalities and submit required NOC, his case shall be forwarded to the competent authority for cancellation of appointment as President, District Commission, Srinagar. The petitioner could not submit the NOC within the time prescribed by the department. The department, being constrained to make appointments to the District Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Consumer Commissions within the timeline prescribed by the Hon’ble Supreme Court, was left with no option, but to process the case of the petitioner for cancellation of his appointment for not submitting the requisite documents. The Chief Secretary approved the proposal submitted by the department for cancellation of the appointment of the petitioner on 21.04.2022 and submitted the File to the competent authority for taking final call in the matter. 04. While the matter with regard to the cancellation of appointment of the petitioner was pending consideration before the competent authority, one Mr. Abdul Rashid Malik, (retired District and Sessions Judge) filed a writ petition, i.e., WP(C) No. 1464/2022, before this Court on 07.07.2022. By way of interim arrangement, this Court directed the respondents not to fill up the post of President, District Commission, Srinagar. 05. The writ petition was disposed of finally on 22.07.2022 with the following directions:- “ 08. In view of the aforesaid facts and circumstances, we need not to go into the respective submissions made by the parties and with the consent of the parties dispose of the writ petition with the direction to the Secretary Department of Food, Civil Supplies and Consumer Affairs, who is the convener of the Selection Committee, to place the aforesaid representation of the petitioner before the Selection Committee forthwith whereupon the Selection Committee, on verification of the facts from the record, will consider the same and pass appropriate orders preferably within a period of two weeks from the date the representation is placed before the Selection Committee. It is made clear that till any decision on the said representation is made, appointment to the post of President of the Commission at Srinagar, shall remain in abeyance.” 06. In compliance with the order of this Court dated 22.07.2022 supra, the representation of Mr. Abdul Rashid Malik, was considered by the Selection Committee and the same was found devoid of any merit or justification. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document After rejecting the representation of Mr. Abdul Rashid Malik, the case of the petitioner herein, was taken on hand by the respondents to accord fresh consideration. This was so because in the meanwhile, the department had received NOC dated 21.06.2022, from the Home Department. Since the appointment to the post in question had remained in limbo because of the pendency of writ petition, filed by Mr. Abdul Rashid Malik, and also awaiting the submission of requisite NOC by the petitioner which now also stood issued by the Home Department, as such a pragmatic view was taken by the respondents to fill up the post by making offer to the petitioner. Accordingly, the department vide its communication No. 77254- 15604/FCSCA/Legal/2021 dated 09.09.2020, requested the petitioner to indicate his willingness for appointment either as Member, State Commission or President, District Commission, Srinagar. The option was given by the department keeping in view the fact that the petitioner had responded to both the positions and was in the zone of selection for both the posts. 07. Be that as it may, the petitioner immediately conveyed his willingness to be appointed as President, District Commission, Srinagar, through e-mail on 13th September, 2022. Before the department could proceed further and issue formal appointment order in favour of the petitioner, there came a Judgment in the case of Secretary, Ministry of Consumer Affairs Vs. Dr. Mahindra Bhaskar Limaye and Others, 2023 SCC OnLine SC 231, changing the mode and manner of conducting selection to the post in question. There was specific direction in the aforesaid Judgment to conduct selection for the posts of President and Members of the State Commissions and District Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document Commissions, strictly as per the criteria laid down in para 45 of the Judgment in future and after passing of the Judgment. The respondents as it appears from the reply affidavit declined to issue formal order of appointment in favour of the petitioner for the reason that in terms of the Judgment in Dr. Mahindra Bhaskar Limaye, the department had to initiate a fresh process of selection and make appointments in terms of the procedure and criteria of selection laid down in para 45 of the Judgment. 08. Feeling aggrieved by the decision of the respondents not to issue formal order of appointment in favour of the petitioner, the petitioner approached this Court by way of instant petition, claiming inter alia a direction to the respondents to issue formal order of appointment in his favour for the post of President, District Commission (Department), Srinagar. 09. The petition is filed and relief aforesaid is claimed by the petitioner primarily on the ground that the Judgment passed by the Hon’ble Supreme Court in case of Dr. Mahindra Bhaskar Limaye was not applicable to the case of the petitioner, in that, the process of selection stood concluded and the appointment of the petitioner approved even before the Judgment was passed by the Bombay High Court on 14.09.2021, which Judgment has been upheld by the Hon’ble Supreme Court in the case of Dr. Mahindra Bhaskar Limaye. 10. Per contra, learned counsel appearing for the respondents would submit that the petitioner had forfeited his right to be appointed as President, District Commission, Srinagar, by having failed to complete the requisite formalities, viz submission of NOC from the employer within the stipulated Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document period. He would further submit that the department had decided to condone the lapse of the petitioner and offer him appointment, but it could not be done because of the Judgment passed by the Hon’ble Supreme Court. 11. Heard learned counsel for the parties and perused the material on record. 12. It is seen that the only issue that begs determination in this case can be put as under: “Whether the right of the petitioner to be appointed as President, District Commission, Srinagar is affected by and taken away by the Judgment passed by the Hon’ble Supreme Court in Dr. Mahindra Bhaskar Limaye’s case. 13. If the answer is in the negative, the petitioner would succeed in this petition. To find answer to this question, few admitted facts are required to be noticed. i. That the process of selection to fill up, amongst others, the post of President, District Commission, Srinagar was set in motion vide Advertisement Notification dated 09.04.2021. ii. That the Selection Committee constituted by the Government completed its selection process and made recommendations on 10th October, 2021. iii. That the competent authority accepted the recommendations and approved the appointment of petitioner and three others on 21.01.2022. The three other candidates approved for appointment as Presidents, District Commission Jammu, Kathua and Udhampur, were appointed on 17.03.2022. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document iv That the petitioner could not be offered the appointment despite his approval by the competent authority for the reasons that he had failed to submit NOC from his employer, i.e., the department of Home. v. That on account of his failure to submit NOC within stipulated period, the Chief Secretary approved the proposal of the department for cancellation of appointment of the petitioner on 21.04.2022 and submitted the File to the competent authority for consideration and appropriate orders. vi. That before formal decision with regard to cancellation of appointment of the petitioner could be taken, Mr. Abdul Rashid Malik, filed a writ petition, WP(C) No. 1464/2022 before this Court, which remained pending till it was disposed of on 22.07.2022. vii. That in compliance with the Judgment passed by this Court in Abdul Rashid Malik’s case, a representation of Mr. Malik was considered and rejected by the Selection Committee. viii. That the NOC dated 21.06.2022 was received by the department vide communication dated 28.06.2022. ix. That the department with a view to issue formal order of appointment in favour of the petitioner after condoning the lapse, if any, attributed to him for having failed to submit NOC in time, considered the case of the petitioner afresh and decided to offer him appointment either as Member of State Commission or President, District Commission (Department) Srinagar. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document x. That vide communication dated 09.09.2022, the department asked for willingness of the petitioner to be appointed either as Member of State Commission or President of District Commission, Srinagar. xi. That on 13.09.2022, the petitioner responded through e-mail and conveyed his willingness to be appointed as President, District Commission, Srinagar. xii. That on 03.03.2023, the Judgment came to be passed by the Hon’ble Supreme Court in case Dr. Mahindra Bhaskar Limaye’s case. 14. From the aforesaid admitted position, it clearly transpires that the process of selection, in which the petitioner came to be approved for appointment as President, District Commission, Srinagar, came to be concluded on 10.10.2021, when the recommendations were submitted by the Selection Committee to the competent authority. It is relevant to state that in suo moto writ petition No. 02/2021, the Hon’ble Supreme Court vide its order dated 22.10.2021, made it clear that notwithstanding the Judgment of the Bombay High Court dated 14th September, 2021, the process of selection initiated by the States to fill up the vacancies of President and Members of State Commission and District Commissions in terms of an order dated 11th August, 2021 passed in that suo moto writ petition shall be taken to the logical end. The aforesaid direction came to be issued by the Hon’ble Supreme Court in the context of the fact that in some cases, the appointments stood already made and in others the appointment process was at an advance stage. For facility of reference, we set out below relevant Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document observation of the Hon’ble Supreme Court made in the order dated 22.10.2021 supra: “Learned ASG submits that the two weeks window was provided by the judgment of the High Court to enable the Central Government or any party aggrieved by the judgment toa assail the same before us and the Union of India and the State of Maharashtra are in process of filing the SLP. Be that at it may, the question is whether the process which has been initiated in the different States in pursuance to our comprehensive order passed on 11.08.2021, should be kept in abeyance in view of this judgment. On consideration of the importance of filling up of the vacancies, we are of the view that the timeline and process fixed by us must continue as in some of the cases the appointments have been made and in others the appointment process is at an advance stage. Thus, the process initiated in pursuance to that order should not be impeded by the subsequent judgment of the Nagpur Bench of the Bombay High Court whatever be the ultimate result of further proceedings to be filed by the Government in that behalf.” 15. In the case on hand, the process of selection in which the petitioner came to be approved for appointment had already been concluded on 10.10.2021 and even three persons approved along with petitioner stood appointed. In that view of the matter, the Judgment passed by the Hon’ble Supreme Court in the case of Dr. Mahindra Bhaskar Limaye was not applicable. From reading of para 46 of the Judgment, which we will set out hereinbelow, makes it abundantly clear that the procedure for appointment as per the rules and the selection criteria indicated in para 45 was applicable only to the selections and appointments to the post in question to be made in future, i.e, after the date of the Judgment viz 03.03.2023. Para 46 of the Judgment reads as under:- “46. The Central Government and the concerned State Governments have also to come with an amendment in the Rules, 2020 to provide 10 years’ experience to become eligible for appointment of President and Member of the State Commission as well as the District Commission instead of 20 years and 15 years respectively, provided in Rule 3(2)(b) and Rule 4(2)(c) which has been struck down to the extent providing 20 years and 15 years of experience, respectively. Till the suitable amendments are made in Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 as above, in exercise of powers under Article 142 of the Constitution of India and to do complete justice, we direct that in future and hereinafter, a person having bachelor’s degree from a recognized University and who is a person of ability, integrity and standing, and Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the State Commission. Similarly, a person of a person of ability, integrity and standing, and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, shall be treated as qualified for appointment of President and Members of the District Commissions. We also direct under Article 142 of the Constitution of India that for appointment of President and Members of the State Commission and District Commission, the appointment shall be made on the basis of performance in written test consisting of two papers as per the following scheme:- paper Topics Nature of test Max. marks Duration Paper-I (a) General knowledge and current affairs (b) Knowledge of Constitution of India (c) Knowledge of various Consumers related Laws as indicated in the Schedule Objective Type 100 2 hours Paper -II (a) One Essay on topics chosen from issues on trade and commerce consumer related issues or Public Affairs. (b) One case study of a consumer case for testing the abilities of analysis and cogent drafting of orders. Descriptive type 100 3 hours 16. In the instant case, the appointment of the petitioner stood approved by the competent authority on 21.01.2022 and what for the intervention made by Mr. Abdul Rashid Malik by filing writ petition before this Court, the same would have fructified into a formal order of appointment much before 03.03.2023. We are not in agreement with learned counsel for the respondents that the appointment to the petitioner could not be offered along with three others because of delay in submitting the NOC from the Home Department, which delay was entirely attributable to the petitioner. From reading of the NOC dated 21.06.2022, it is evident that the department had Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document solicited the NOC from the department of Home vide its communication issued only on 05.05.2022. 17. Be that as it may, the fact remains that with the renewal of offer of appointment to the petitioner vide letter dated 09.09.2022, the lapse, if any, attributable to the petitioner stood condoned. 18. In view of the aforesaid discussion and the admitted factual position obtaining in the case, we are of the considered opinion that the Judgment passed by the Hon’ble Supreme Court in the case of Dr. Mahindra Bhaskar Limaye, could not be pressed into service by the respondents to deny appointment to the petitioner as President of District Commission, Srinagar, which appointment he has earned because of his merit. 19. For the foregoing reasons and discussions made hereinabove, we find merit in this petition and the same is, accordingly, allowed. The respondents are directed to issue, forthwith, a formal order of appointment in favour of the petitioner for the post of President, District Consumer Disputes Redressal Commission (District Commission), Srinagar. The needful be done within a period of four weeks from the date copy of this order is served upon the respondents. 20. Disposed of along with connected CM(s). (SANJAY PARIHAR) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR 07.05.2025 “Mohammad Yasin Dar” Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document