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2009 Supreme(All) 398
HIGH COURT OF ALLAHABAD
S.Rafat Alam, Sudhir Agarwal
SAVITRI DEVI
Versus
STATE OF U P
Decided On : 03 February 2009
Writ Petition No. 57334 of 2007
SIDDHARTH SRIVASTAVA,
The main legal point established in the judgment is that the Members of the District Consumer Disputes Redressal Forum are employees of the state government and can be transferred at the discretion of the employer.
Headnote:
Transfer - District Consumer Disputes Redressal Forum - Consumer Protection Act, 1986, Section 10
Fact of the Case:
The petitioners, who were appointed as Members of the District Consumer Disputes Redressal Forum, challenged their transfer to another district. They argued that they were not employees of the state government and therefore could not be transferred. They also contended that the transfer amounted to compelling them to resign, as they were only paid honorarium and not salary.
Finding of the Court:
The court found that the petitioners were indeed employees of the state government, as they were appointed by the state government and their terms and conditions of service were prescribed by the state government. The court also held that the transfer was valid and within the administrative discretion of the employer. The court dismissed the petition and imposed exemplary costs on the petitioners for not joining their new posting and disrupting the functioning of the District Forum.
Issues: The issues raised included the employment status of the petitioners, the validity of the transfer, and the impact of the transfer on the petitioners' employment.
Ratio Decidendi: The court held that the petitioners were employees of the state government, as they were appointed by the state government and their terms and conditions of service were prescribed by the state government. The court also emphasized that the power of transfer is an incident of public service and is within the administrative discretion of the employer.
Final Decision: The writ petition was dismissed with exemplary costs imposed on the petitioners for not joining their new posting and disrupting the functioning of the District Forum.
2. Aggrieved by the order dated 7. 11. 2007 transferring the petitioners from District Consumer Disputes Redressal Forum, Hathras to District Consumer Disputes Redressal Forum, Bulandshahar (hereinafter
referred to as the "district Forum") the petitioners have filed this writ petition under Article 226 of the Constitution of India.
3. The fact which are not disputed in brief are that the petitioner No. 1, Km. Savitri Devi was appointed as Member, District Forum, Hathras vide order dated 26. 7. 2006 (Annexure-5 to the writ petition) by the State Government, for a period of five years or till she attained the age of 65 years whichever is earlier and pursuant thereto she joined on 1. 8. 2006. Similarly, the petitioner No. 2, Harish Kumar Saxena, Advocate was appointed vide order dated 20. 6. 2005 (Annexure-2 to the writ petition) in District Forum, Hathras and pursuant thereto he joined on 2. 7. 2005. The respondent No. 4, Sri B. B. Singh was appointed as President, District Forum, Hathras and joined on 15. 3. 2007 where after it appears that the petitioners and the respondent No. 4 had some dispute among themselves as a result whereof the petitioners and the respondent No. 4 said to have sent certain letters to the State Government and the Chairman, State Consumer Disputes Redressal Forum, U. P, Lucknow making serious allegations against each other. The State Government in the circumstances, by means of the impugned order dated 7. 11. 2007 (Annexure-1 to the writ petition) transferred both the petitioners from Hathras to Bulandshahar and in their place Sri Ravindra Nath Garg and Smt. Kiranwati who were working as Members, District Forum, Bulandshahar were transferred to Hathras.
4. Assailing the order of transfer the learned counsel for the petitioners has mainly raised the following issues :
(1) The petitioners are not the employees of the respondents as they have not been appointed but the arrangement is in fact a contract. The petitioners are not paid salary but only honorarium and, therefore, neither any service rules prevailing in the State of U. P. in respect of employees of the State Government are applicable upon the petitioners nor they can be transferred otherwise.
(2) The Apex Courts decision in state of Rajasthan and others v. Anand Prakash Solanki, 2003 (7) SCC 403, is not applicable to the petitioners for the reasons that the petitioners were not appointed and, therefore, the impugned order of transfer is wholly without jurisdiction.
(3) Referring to para 7 in Anand Prakash Solanki (supra) he contended that the Apex Court has observed therein that the President or a Member can be appointed by transfer and, therefore, even if assuming that the said judgment, would apply since the impugned order is not an order of appointment by transfer but a simple transfer and, therefore, also the impugned order is not covered by the law laid down by Honble Apex Court in the aforesaid case and is nullity.
(4) Rule 3 of U. P. Consumer Protection Rules, 1987 (hereinafter referred to as the "1987 Rules") refers to the payment of salary only to the President of District Forum but in respect to the Members it talks of a consolidated honorarium, therefore, the Members are not employees of the State Government since they are not paid salary but only honorarium.
(5) The aforesaid Rule 3 (1) refers to the term "appointment" only in respect to the President of the District Forum and not with respect to the Members and this also shows that the Members are not appointed hence they are not employees of the State Government and cannot be transferred.
(6) There are mutual allegations amongst the Members and the President but only the Members have been transferred not the President.
(7) Even if for some reasons the State Government find it expedient to transfer the Members or President due to inter se dispute it is always prudent and appropriate to
