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2001 DIGILAW 360 (RAJ)

Anand Prakash Solanki v. State of Rajasthan

2001-02-28

A.R.LAKSHMANAN, BHAGABATI PRASAD BANERJEE

body2001
Honble PRASAD, J.–In the present writ petition, the petitioner has raised a grievance regarding his transfer. (2). The petitioner was an Officer belonging to the cadre of Rajasthan Higher Judicial Service. In 1996 he was working as Special Judge (SC/ST Cases) and Additional Sessions Judge, Bikaner. At the relevant time, composition of various District Forums in the State was to be completed. The petitioner was qualified to be appointed as President of a District Forum. After being considered, the petitioner was appointed as President, District Consumer Protection Forum, Pali (referred hereinafter as `the Forum) vide order dated 9.2.1996. The order has been produced as Ex.1 with the writ petition. (3). While the petitioner was discharging the functions of the President of the Forum, he was informed telephonically that he has been transferred/posted as President, District Consumer Protection Forum, Jalore and in his place respondent No.5 has been appointed/posted as the President of the District Consumer Protection Forum, Pali. Later on the petitioner received a communication from the State Government dated 15.11.1999 whereby he was ordered to be appointed as President, District Consumer Protection Forum, Banswara in supersession of the earlier orders. (4). The petitioner further contended that he offered to be appointed on the post of President, District Consumer Protection Forum pursuant to a communication received by him from the Registrar, Rajasthan High Court, Jodhpur dated 20.11.1995 produced with the writ petition as Ex. 8. In reply to such communication he submitted his willingness vide Ex. 9 dated 27.11.1995. He submitted that he had given his concurrence to be appointed as President, District Consumer Protection Forum at two places. First preference was for Pali and the second was for Nagaur. No other place was opted by the petitioner. He has made it clear in his letter Ex. 9 that he does not give his concurrence to be appointed at any other place. (5). In the writ petition, the petitioner has contended that the District Consumer Protection Forums have been created as separate entities for each district. The composition of such forums was to be completed by the State Government on the recommendations of the Selection Committee consisting of the Members as provided for in Section 10(1A) of the Consumer Protection Act, 1986 (referred to hereinafter as `the Act). The term of the Membership of such Forum was upto the age of 65 years or five years, whichever was earlier. The term of the Membership of such Forum was upto the age of 65 years or five years, whichever was earlier. No one, who has held the position once, was eligible to be reappointed. In proviso to Section 10(2) of the Act it has been provided that as and when a member resigns from his office his office shall become vacant and may be filled in by appointment of a person possessing any of the qualifications mentioned in Sub-Section (1) of Section 10 of the Act in relation to the category of the member who has resigned. (6). The Scheme of the Act does not suggest that the Legislature ever thought of conceiving of a common cadre for manning these forums. Each forum was conceived as an independent entity, Its composition was as provided for in Section 10 of the Act and it was never conceived that any appointment to complete the composition of the forum could be made by transfer. That being the position, the petitioner contends that the transfer ordered by the respondent State is not in accordance with the Scheme of the Act and, thus, the order is without jurisdiction. (7). The petitioner was functioning as a persona designata on the post of President, District Consumer Protection Forum. No transferable cadre has ever been thought, conceived or considered for completing the composition of District Consumer Protection forums. Each Forum was to be constituted independent of there being any right of transfer with the State Government. There was no regular cadre available with the State to complete the composition of District Forums, transfer as incidence of service cannot be seen into the term of appointment of Member, District Consumer Protection Forum. The persons who will be appointed to the forum will not be able to be considered for being reappointed to the service after completion of the term of 5 years. That being the position, it cannot be conceived that a person will agree to an appointment where he can be subjected to the vagaries of being shifted from one place to another in a short term. This is too onerous a condition for a limited period appointment. (8). Learned counsel for the petitioner has relied upon a Supreme Court decision rendered in General Officer Commanding-in-Chief and another vs. Dr. This is too onerous a condition for a limited period appointment. (8). Learned counsel for the petitioner has relied upon a Supreme Court decision rendered in General Officer Commanding-in-Chief and another vs. Dr. Subhash Chandra Yadav and another (1), wherein their Lordships of the Honble Supreme Court has held as under:- ``The observation extracted above clearly supports the contention made on behalf of the respondent that the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralised service or a service at the State-level. (9). Learned counsel for the petitioner has further urged that in the aforesaid case the Honble Supreme Court has considered the rule making power of the authorities and has come to the conclusion that the Cantonment Act has not provided for making a rule for the transfers. Therefore, the rule giving power of transferring the employees was struck down. (10). Further strengtherning his stand, the learned counsel for the petitioner has urged that in the instant case there is no power of transfer made available to the authorities under the Act to disturb the composition of a forum by transfer because neither there are rules or provisions in the Act to this effect nor the composition of a forum can be easily permitted to be disturbed by the respondent State at its sweet will. (11). Learned counsel for the petitioner has also relied upon a Calcutta High Court decision rendered in State of West Bengal and others vs. Hirendra Nath Banerjee (2), wherein the Calcutta High Court held as under:- ``To sum up, we hold that the post of the Registrar, Rent Controllers Office, Calcutta, when it is held by a person who does not belong to a cadre post is non-transferable. (12). In the instant case, there was no regular cadre as such was available for appointment as President, District Consumer Protection Forum. Therefore, the incidence of transfer is not available as far as post of the petitioner as President of the Forum was concerned. (13). The petitioner has also relied upon the following decisions: (14). A decision of the Allahabad High Court rendered in Dr. Prem Beharilal Saksena vs. Director of Medical and Health Services, Lucknow and another (3), and a Supreme Court decision rendered in Om Prakash Rana vs. Swarup Singh Tomar and others (4). (15). (13). The petitioner has also relied upon the following decisions: (14). A decision of the Allahabad High Court rendered in Dr. Prem Beharilal Saksena vs. Director of Medical and Health Services, Lucknow and another (3), and a Supreme Court decision rendered in Om Prakash Rana vs. Swarup Singh Tomar and others (4). (15). Thus, the petitioner contends that the order of transfer made by the respondent is illegal. It has also been clarified by the petitioner that he had applied to the State for being shifted to Jalore when Shri Amar Nath Purohit an erstwhile officer of the Rajasthan Higher Judicial Service was retired but at that time he was informed that his request for transfer cannot be acceded as such transfer is not permissible. (16). The State has joined issue and has filed a reply and refuted the claim of the petitioner. The stand of the State is that the post of the President of one Forum is equivalent to another forum. Therefore, the transfer could be made. It has been contended by the Advocate General on behalf of the State that the Honble Supreme Court has held that State Commission for Consumer Redressal will have complete administrative control over the District Forums in the case of Common Cause, a Registered Society vs. Union of India (5). According to the reply the administrative control means the complete executive management of superintendence and execution of conducting the business and ministerial actions. (17). The respondent State has also relied upon a decision of the Kerala High Court in the case of Addl. District and Sessions Judge vs. State (6), and has contended that the word `control includes the power of transfer. (18). It has been contended by the State that preference given by the petitioner to be appointed on the post of President at Pali or Nagaur does not confer any right to be appointed at a particular place. The State has also contended that the forums are not separate entities and cannot be considered to be separate establishment. The State is even empowered to establish more than one forum in a district. The State in its reply has reiterated its power to transfer from one forum to another. The State has also submitted that the order of transfer is based on administrative ground and the same is in the public interest. (19). The State is even empowered to establish more than one forum in a district. The State in its reply has reiterated its power to transfer from one forum to another. The State has also submitted that the order of transfer is based on administrative ground and the same is in the public interest. (19). Respondent No.5 has also filed a reply and has contested the stand of the petitioner and has submitted that having applied to be transferred to Jalore, the petitioner cannot now be permitted to take a stand contrary to his own submission. He has submitted to the jurisdiction of the State wherein he has accepted the power of transfer with the State and, therefore, having claimed to be transferred he cannot now turn around and say that the right of transfer is not available with the State. (20). We have considered the rival submissions of the parties. (21). The relevant provisions for appointment and composition of the District Forum are contained in Section 10, which reads as under:- ``10. Composition of the District Forum. (1) Each District Forum shall consist of, -(a) a person who is, or who has been, or is qualified to be, a District Judge, who shall be its President; (b) two other members, shall be persons of ability; integrity and standing, and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman. (1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following, namely:- (i) The President of the State Commission -Chairman. (ii) Secretary, Law Department of the State -Member (iii) Secretary incharge of the Department dealing with consumer affairs in the State -Member (2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years, whichever is earlier, and shall not be eligible for reappointment; Provided that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who has resigned. (3) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government. (22). On examining the Scheme of the Act we find that each forum is constituted by three members who can hold the post for 5 years only. The question to be answered here is whether a tenure, only of 5 years, can have attached to it an incidence of transfer? (23). The State Government makes the appointment to the forum, after the name is cleared by the Selection Committee as provided for in Section 10 of the Act. Every appointment to a forum is on the recommendations of the Selection Committee. If power of appointment by transfer is to be seen with the State then it will be seen that before any appointment by transfer is made consultation with the Selection Committee provided for under Sub- Section (1A) of Section 10 of the Act is a must. Therefore, there cannot be seen any independent power with the State to transfer a member of a forum. (24). No other provision is available in the Act where transfer has been provided to be made by the State Government. The power of transfer has not been spelled out in the Act expressly. Whether power of transfer can be seen in the power of appointment, is the question? A Committee constituted under Sub- Section (1A) of Section 10 of the Act decides appointment to the Forum. To every such appointment the provision of the Act attaches singularity. No plurality can be seen in the cases which are to be handled by the Committee for appointment. Thus, broadly speaking, the power of transfer is not available to the State under the provisions of Sub-section (1A) of Section 10 of the Act. That being the position it cannot be said that the State has the power of transfer. (25). No cadre has been conceived under the Act which would be available to the State to man the composition of the forum. The only provision made in Section 10 of the Act is regarding the qualifications of the members of the forum. Such qualifications being available with a person he was capable of being offered appointment. (25). No cadre has been conceived under the Act which would be available to the State to man the composition of the forum. The only provision made in Section 10 of the Act is regarding the qualifications of the members of the forum. Such qualifications being available with a person he was capable of being offered appointment. There being no regular cadre available for such posts in the forum the incidence of transfer also cannot be seen in the power of appointment to the forum from this point of view also. (26). Another aspect which is to be considered is that when the State has power of appointment then all incidences of service are embodied in it. This argument gets defeated by the term of office. How can it be expected that a man who has to serve only for 5 years can be subjected to transfer on any ground by the State Government. Every such transfer will tantamount to appointment by transfer. Every appointment has to be in consultation with the Selection Committee as provided for under Sub-section (1A) of Section 10 of the Act. (27). In the Scheme of the Act, Section 10 provides for a vacancy in the composition of a forum. Such vacancy is to be filled in as provided for in Section 10 of the Act. Filling of such casual vacancy has been provided to be filled up by fresh appointment. While making such provision nothing has been conceived by the Legislature in the nature of transfer. That being the position it appears that the incidence of transfer was never thought of by the Legislature to be embodied in the Scheme of the Act. (28). As and when the composition is not complete and the President is not working then it has been provided that the President of other forum can act as the President or the District Judge of the concerned District can function. Making of such a provision is also suggestive of the absence of right of transfer with the State Government vide Section 18A of the Act. This may also be noted that the case relied upon by the petitioner has no application on the facts of the case. (29). The respondent No.5 has canvassed that the petitioner himself has been the power of transfer with the State Government and, therefore, has sought transfer vide Ex. 2. This may also be noted that the case relied upon by the petitioner has no application on the facts of the case. (29). The respondent No.5 has canvassed that the petitioner himself has been the power of transfer with the State Government and, therefore, has sought transfer vide Ex. 2. In this back- ground, according to the respondent No.5, the petitioner cannot be permitted to blow hot and cold. No doubt, it is true that the petitioner himself has applied for transfer but then such application, unmindful of the power with the State Government, cannot be considered to be an estoppel because there cannot be any estoppel against law and if the law does not provide any power of transfer then it cannot be said that the petitioner cannot maintain a petition challenging the right of transfer of the respondent challenging the right of transfer of the respondent State. (vide Delhi Development Authority vs. Ravindra Mohan Aggarwal (7); M.T. Builders Pvt. Ltd. vs. Radhey Shyam Sahu (8), Union of India vs. Kirloskar Pneumatic Co. Ltd. (9); State of U.P. vs. Harish Chandra (10); Vice-Chancellor, University of Allahabad vs. Dr. Anand Prakash Mishra (11), Dr. H.S. Rikhy etc. vs. The New Delhi Municipal Committee (12) and Bengal Iron Corporation vs. Commercial Taxes Officer (13). (30). The petitioner joined the post of President on 2.03.1996. His tenure comes to end in March 2001. If in the present writ petition any orders are passed quashing the order of transfer then that will destabilize the respondent No. 5 who is presently holding the post of President at Pali. He has a longer time to go. The petitioner will have such a small period to his credit that it will amount to a mere formality. In these circumstances, no useful purpose is likely to be served by granting relief of quashing of order of transfer to the petitioner. In this back-ground, this Court feels that in the present writ petition, the petitioner should not be favoured with a positive order of cancellation of his transfer order, that will amount to causing greater hardship to respondent No. 5 and would not gain fruitful result in favour of the petitioner. However, not doing so would mean that the petitioner would be permitted to suffer financial losses. However, not doing so would mean that the petitioner would be permitted to suffer financial losses. He had not joined his transfer post because this Court had ordered on 25.11.1999 that ``without prejudice of the rights and contention of the petitioner he will not be compelled to join at Banswara. Subsequently on 29.8.2000 this Court has passed the order that ``In the meanwhile, the petitioner Anand Prakash Solanki is at liberty to join at Banswara. The salary will be paid to him from the date of joining. The salary for the period in question uptil now will be decided in the writ petition. The loss will thus on account of the act of the Court. No one can be made to suffer for the act of the Court for the reason that Court can harm no one (vide Mohammed Gazi vs. State of M.P. and others (14). (31). In aforesaid circumstances, the State Government is directed to make up good the financial loss caused to the petitioner because of not joining as he has done so under the orders of the Court. No one can be permitted to suffer financial loss on account of the orders of the Court. Therefore, the State Government will make up the financial loss caused to the petitioner by the order but the order of transfer is not quashed. However, it is declared that the State has no power of transfer of one President from one forum to another. (32). The writ petition is disposed of accordingly.