Monday, April 30, 2012

Whether presidents and members of consumer forums can be transferred?

 The following is the case law related to the subject cited above which may give you some insight.





IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6733 OF 2003

[Arising out of SLP (C) No.13683/2001]




State of Rajasthan & Ors. …Appellants
Versus

Anand Prakash Solanki ...Respondent




J U D G M E N T

R.C. Lahoti, J.





The questions arising for decision in this appeal are: Whether a President or a Member of the District Forum, constituted under Section 10 of the Consumer Protection Act, 1986 (hereinafter ‘the Act’, for short) can be transferred and, if so, which is the competent authority to transfer them? These questions are of significance inasmuch as the answers are likely to have far reaching implications on the working of District Fora under the Act.



Shri Anand Prakash Solanki, the respondent herein, was an officer belonging to the cadre of Rajasthan Higher Judicial Services. In the year 1996, he was working as a Special Judge in the cadre of Addl. District & Sessions Judges in the State of Rajasthan. He was appointed as President, District Consumer Protection Forum, Pali vide order dated 9.2.1996. While he was discharging the function as President of the Forum, sometime in the month of November, 1999 he was informed telephonically by the State Government that he was being transferred and posted as President, District Consumer Protection Forum, Jalore and in his place another person was appointed/posted as the President of the Forum at Pali. This telephonic communication was followed by a written communication dated 15.11.1999 appointing him as President, District Consumer Protection Forum, Banswara in supersession of the earlier orders.





The respondent filed a writ petition challenging the order of his transfer. A Division Bench of the Rajasthan High Court held that the concept of transfer is unknown for the President and members of District Fora in the scheme of the Consumer Protection Act, 1986 and, therefore, a person appointed as President of any District Forum cannot be transferred by the State Government. The order of transfer was directed to be quashed. Feeling aggrieved by the decision of the High Court, the State of Rajasthan has preferred this appeal by special leave. During the pendency of the petition, the respondent has retired and, having lost interest in contesting the matter, he has chosen not to make appearance. We requested Mr. Pallav Sishodia, Advocate, to assist the Court as an amicus curiae, which he agreed to do.



We have heard Shri Ranji Thomas, the learned counsel for the State of Rajasthan and Shri Pallav Sishodia, the learned amicus.



Leave granted.



A complete hierarchy of Commissions and Fora has been constituted from the national level to the district level by the Consumer Protection Act, 1986. There is a National Commission at the national level constituted under Section 20 of the Act and State Commissions constituted for the States under Section 16 of the Act. District Fora are constituted under Section 10 of the Act. These are the three-tier agencies established for the purposes of the Act as contemplated by Section 9. Each State Commission consists of a person, designated as President, who is, or has been, a Judge of a High Court, appointed by the State Government after consultation with the Chief Justice of the High Court. Then there are the members. Section 17 confers on the State Commission appellate and supervisory jurisdiction over the District Fora in quasi-judicial matters. Section 24B inserted by Act No.50 of 1993 w.e.f. 18.6.1993 provides as under:-

“24B. Administrative control.__ (1) The National Commission shall have administrative control over all the State Commissions in the following matters, namely:-



(i) calling for periodical return regarding the institution, disposal, pendency of cases;



(ii) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents;



(iii) generally overseeing the functioning of the State Commission or the District Fora to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.





(2) The State Commission shall have administrative control over all the District Fora within its jurisdiction in all matters referred to in sub-section (1).”



(underlining by us)



Each District Forum in a State is constituted under Section 10 of the Act which reads as under:-

“10. Composition of the District Forum.__



(1) Each District Forum shall consist of, __



(a) a person who is, or has been, or is qualified to be a District Judge, who shall be its President;



(b) two other members, who 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 re-appointment:



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.”



It is clear from a bare reading of the abovesaid statutory provisions that though a District Forum is to be constituted and its President and members are to be appointed by the State Government, the power to appoint is exercisable only on the recommendation of a selection committee consisting of the President of the State Commission and two Secretaries of the State as provided by sub-Section (1A) of Section 10. The concept of appointment by transfer is not unknown to service jurisprudence. A power to appoint includes a power to revoke an appointment, and so also a power to make an appointment includes a power to make an appointment by transfer, subject to satisfying the requirements of Section 10 of the Act. The expression ‘appointment’ takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. (See Indra Sawhney & Ors. Vs. Union of India & Ors., 1992 Supp. (3) SCC 217, para 827, per Jeevan Reddy, J.). In K. Narayanan & Ors. Vs. State of Karnataka & Ors., 1994 Supp.(1) SCC 44, the term ‘recruitment’ came up for the consideration of this Court and it was held that it is a comprehensive term which includes any method provided for inducting a person in public service such as appointment, selection, promotion and deputation which are all well known methods of recruitment and even appointment by transfer is not unknown. In Union of India Vs. A.R. Shinde & anr., (1987) 2 SCC 1, this Court noticed three modes of making recruitment, i.e. promotion, deputation and direct recruitment and at the same time held that an appointment by transfer too was unexceptionable.



It cannot be lost sight of that the National Commission, State Commissions and District Fora have all been constituted to exercise jurisdiction over such grievances of the aggrieved persons which were earlier available to be raised before the conventional courts established under the Constitution and/or the laws. Inasmuch as the persons appointed to discharge functions under the Act at whatever level exercise judicial powers and are expected to function judicially consistently with the procedure as laid down by the Act or Rules framed thereunder, the very nature of the functions discharged by them needs them to be insulated from the control of, or interference by the Executive. So far as the District Fora are concerned, the purpose is sought to be achieved by sub-Section (1A) of Section 10 as also by Section 24B of the Act. Every appointment under sub-Section (1) of Section 10, though made by the State Government, is dependent on the recommendation of a selection committee which is headed by the President of the State Commission who is, or has been, a Judge of a High Court. The administrative control over all the District Fora within the State has been vested in the State Commission in all the matters contemplated by clauses (i), (ii) and (iii) of sub-Section(1) of Section 24B. The power conferred on the National Commission by clause (iii) of sub-Section (1), exercisable by the National Commission over the State Commissions and District Fora, read mutatis mutandis confers the same power on the State Commission qua District Fora within the State by virtue of sub-Section (2). Keeping in view the purpose sought to be achieved by these provisions, Section 24B has to be so construed as to spell out administrative control in favour of the National Commission over all the State Commissions and District Fora and in favour of the State Commission over all the District Fora within its jurisdiction, whenever there is any doubt. In other words, clauses (i), (ii) and (iii) abovesaid have to be liberally and widely interpreted.



It is true that there is no cadre as such of the President and the members of the District Fora contemplated by the Act and this is the principal consideration which has prevailed with the High Court for holding that the President and members of District Fora are not liable to be transferred inasmuch as there is no single cadre of such persons in the State. We cannot subscribe to that view. The existence of one cadre is not essential and is not the sine qua non to make available the power of transfer. As District Fora, more than one, are constituted within the State, there is nothing wrong in the President or members of one District Forum being appointed by transfer to another District Forum, subject to the requirement of sub-Section (1A) of Section 10 being satisfied. Such appointment by transfer shall be made by the State Government but only on the recommendation of the committee consisting of the President of the State Commission and two Secretaries, i.e. the committee composed as per sub-Section (1A) of Section 10. Such appointment by transfer cannot be a frequent or routine feature. The power is there but is meant to be exercised sparingly and only in public interest or in such exigencies of administration as would satisfy the purpose of constituting the District Forum. The broader concept of ‘transfer’ is a change of the place of employment within an organization. Transfer is an incidence of public service and the power to transfer is available to be exercised by the employer unless an express bar or restraint on the exercise of such power can be spelt out. The power, like all other administrative powers, has to be exercised bona fide.



The High Court has in its judgment referred to two decisions of this Court namely General Officer Commanding-in-Chief & Anr. Vs. Dr. Subhash Chandra Yadav & anr., (1988) 2 SCC 351 and Om Prakash Rana Vs. Swarup Singh Tomar & Ors., (1986) 3 SCC 118.



Dr. Subhash Chandra Yadav’s case (supra) is one where the Central Government proposed to transfer the person in employment of one Cantonment Board to another Cantonment. This Court held that under the Cantonments Act, 1924 each of the Cantonment Boards is an autonomous body and the employees of one Cantonment Board cannot be transferred to another Cantonment Board inasmuch as the service under the Cantonment Board is not a centralized service or a service at the State level. The law so laid down has no applicability to the facts of this case. The President and members of the District Forum are in the employment of the State Government and all the Presidents and members of the District Fora within one State serve under the same employer at the State level.



In Om Prakash Rana’s case this Court was mainly concerned with the impact of the Services Commissions Act on the provisions of the Education Act and held that after the commencement of the Services Commissions Act, it was not permissible to invoke the provisions of the Education Act and regulations framed thereunder for the purpose of transferring a Principal from one institution to another because the subsequent Act had superseded the provisions of the earlier Act in that regard. During the course of its judgment the Court held that the scheme under the relevant statutory enactments envisaged the appointment of a Principal in relation to a specific college and to no other. Different colleges may be owned by different bodies or organizations so that each Principal serves a different employer. On appointment as a Principal to a college a contract of employment with a particular employer comes into existence. The Court further held __

“There is no State-level service to which Principals are appointed. Had that been so, it would have been possible to say that when a Principal is transferred from one College to another no fresh appointment is involved. But when a Principal is appointed in respect of a particular College and is thereafter transferred as a Principal of another College it can hardly be doubted that a new appointment comes into existence. Although the process of transfer may be governed by considerations and move through a machinery different from the considerations governing the appointment of a person ab initio as Principal, the nature of the transaction is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution.”



The abovesaid decision is partly distinguishable inasmuch as the transfer therein involved a change of employer which is not the case at hand. The principle laid down by this Court in Om Prakash Rana’s case (supra) rather supports the view which we have taken inasmuch as the Court has clearly spelled out that the process of transfer may involve the same considerations as governing a fresh appointment and there can be an appointment by transfer.



The scheme of the Act does not prohibit or exclude the exercise of power to transfer the President or members from one District Forum to another District Forum within the State. Power to transfer vests in the State Government as employer and is available to be exercised on the recommendation of committee contemplated by sub-Section (1A) of Section 10 of the Act. The view to the contrary taken by the High Court cannot be countenanced.



The appeal is allowed. The judgment of the High Court is set aside.



We place on record the appreciation of valuable assistance rendered by the learned amicus to the Court.





……….....................J

( R.C. LAHOTI )







...........……………….J.

( ASHOK BHAN )

when lawyers taking law into their hands....

Ok we are a free country and have freedom of opinion and expression and we have many many rights given to us by the constitution.But recently you have been seeing that lawyers are also taking law into their hands when they are a part of the legal system and they happen to be implementors of law and order and work as facilitators of justice.
Gone are the days of peaceful strikes and processions and now a days it is just creating small issues which grow like elephant and mountains and not because it is for the benefit of the general public but just some people, political parties and other bureaucracy involve themselves in the issue.Now these elite community of lawyers and bureaucrats should understand that country and public comes first than individual rights.But violence by lawyers is not appreciable in any way..which decrease the dignity of the profession.Starting from the Delhi incident related to lathi charge by Kiran vedi to protest and violence by advocates in chennai and now in Odisha the stir is going on to satisfy some ego and everyone has forgotten the general public and their issues.

Our country perhaps have the most number of laws and that caters to all kind of crimes but still we have crimes happen everyday and increases everyday.Even though there are thousands of political leaders who claim to see the public interest still people are dying in hunger and diseases even in some areas we still do not have electricity and drinking water facilities, and not to mention about roads...
so when a revolution will come to correct the system....everyone now a days seems to be shouting that corruption is here and there but no one claims that he is out of corruption and he will not involve in it...there is lack in harmony in between public authorities, and public representatives and someone is enjoying his position and someone is enjoying politics and power.

Even after so many years of independence no concrete system has been evolved that the problems lie here and this is a full proof system which will eradicate this problem by the year so and so.There are bigger problems like pollution, forest conservation, waste management, non availability of drinking water, energy shortage and the list goes on...but now deviding areas in the name of good management by creating new states for better management is on but without any results only just creation of some new political region for politicians and some new administrative posts and areas...so what is the future of our country any way?

Thursday, April 12, 2012

25% seats now reserved for weaker sections in private schools

Now with  enactment of right to education laws Indian government took  a step forward to secure education to economically poor people so they can afford quality education easily which is really a great movement for India.Implementing constitutional provisions like this envisages real growth for masses.

Another thing is on the anvil is that registration of marriages will be forced and all people who will marry will have to register their marriages with empowered designated government official which is again a milestone and it is more than necessary like the aadhar card through which we will be having an entire database filled with records of indian population and information can be available for any one via these records when needed though some say it will be a threat but if handled properly I feel it is a boon.Already many countries including USA have this and a person's all information is attached to a number given by the government which is said as social security number.

Saturday, April 7, 2012

Now you can get orders of supreme court through email requests...

yes now when egovernance is the mission efiling of cases happening all over India and you can avail supreme court orders by requesting through email..how?Now the information can be accessed at the apex court website but I am giving a glimpse here too for appraisal.

INSTRUCTIONS  FOR  AVAILING ORDER / DOCUMENTS

Note dated 25-06-07 of Ld. Registrar regarding providing of certified copy of order through post and charges thereof.
Whenever any person /party concerned sends application by post or through e-mail for issuance of certified copy of order/document etc. first of all charges are calculated as the details given below
 

1. Folio(per page) 
2. Certification charges 
3. Urgency charges
4. Postal charges(minimum)by Regd. Post
5. Third party


Rs.1/-
Rs.10/-
Rs.5/-
Rs.22/-
Rs.5/-

 
After the calculation of amount according to the number of pages of particular order plus other charges as mentioned above, the party concerned is informed by post or e-mail(if e-mail id is mentioned in his application)to send the charges by the way of "Money Order" in favour of Assistant Registrar(Copying). On receipt of amount, Court fee is purchased and affixed at the application and certified copy of order, as requested, is dispatched by Regd. Post only at the address mentioned in the application.

Wednesday, April 4, 2012

Public Interest Litigation Rules for Odisha

Public Interest Litigation Rules of Odisha High Court...

PUBLISHED UNDER THE AUTHORITY OF THE HIGH COURT
OF JUDICATURE ORISSA
NOTIFICATION
The 20th April 2010
No.270-R- In exercise of powers conferred under Article 225 of the
Constitution of India, and as per direction in the judgment passed by
Hon’ble Supreme Court of India in Civil Appeal Nos. 1134-1135 of 2002
(State of Uttaranchal Vrs. Balwat Singh Chaufal and others) the High
Court of Orissa do hereby make the following Rules:-
1. Short title, Extent and commencement:
(i) These rules may be called the Orissa High Court Public
Interest Litigation rules, 2010.
(ii) They shall come into force all over the State of Orissa from
the date of its notification.
(iii) These Rules shall be in addition to the Rules of the High
Court of Orissa, 1948 as amended from time to time with
regard to filing of writ petitions.
2. Definition:
(i) Public Interest Litigation (PIL) means a legal action initiated
in the Court for the enforcement of any Civil or
Constitutional right of the public in general or a class or a
community as a whole or protection of any general interest
of such public or class or community.
(ii) ‘Court’ means the High Court of Orissa.
(iii) ‘Case’ means Public Interest Litigation case.
(iv) ‘Petition’ means Public Interest Litigation petition.
CHAPTER 1
RULES IN GENERAL
3. A public Interest Litigation petition filed in the Court shall be
genuine and bona fide. Any such petition filed for extraneous
considerations or with oblique motive for personal or individual
gain shall be rejected in lime line by imposing exemplary costs or
by adopting similar methods.
4. The petitions which involve larger public interest, gravity and
urgency shall be given priority over other less important petitions;
the public Interest Litigation must aim at redressal of genuine
public harm or public injury; and must not be for personal gain,
private motive or oblique motive.
5. The Court before entertaining the PIL is to prima facie (i) verify the
credentials of the petitioner/petitioners (ii) shall satisfy with regard
to the correctness of the contents of the petition and (iii) shall
satisfy that substantial public interest involved in the PIL.
CHAPTER 2
RULES RELATING TO FORMAT OF THE P.I.L PETITION
6. Every petition filed in Court in the form of Public Interest
Litigation under Article 226 of the Constitution of India shall be in
the form appended here to and shall be heard and disposed of by a
Division bench presided over by the Chief Justice or any other
Bench assigned by the Chief Justice.
7. The petition shall contain the facts of the case in chronological
order. If the petition is based on news report, it must be stated as to
whether the petitioner has verified the truth of the facts by
personally visiting the place or by talking to the people concerned
or has verified from the reporter or editor of the news paper
concerned.
8. Before filing a PIL, the petitioner must send a representation to the
authorities concerned for taking remedial action, akin to what is
postulated in Section 80 CPC. Details of such representation and
reply, if any, from the authority concerned along with copies
thereof must be filed with the petition. However, in urgent cases
where making of representation and waiting for response would
cause irreparable injury or damage, petition can be filed
straightway by giving prior notice of filing to the authorities
concerned and/or their counsel, if any.
CHAPTER 3
9. Frivolous and Vexatious PIL – Where the Court is of the opinion
that the Public Interest Litigation petition filed by the petitioner is
frivolous or vexatious or is devoid of public interest or is filed as
camouflage to foster personal gain or is filed for extraneous and
ulterior motives, it shall dismiss the same with exemplary cost.
10. In the cases, where interim relief is sought for and where the Court
is inclined to grant the same, it may in order to prevent abuse of
process of the Court insist upon the petitioner to furnish security.
APPENDIX
FORMAT FOR FILING OF PUBLIC INTEREST
PETITION
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P(C) (PIL) No.____________of__________
Code___________
In the matter of
………..Petitioner(s)
Versus
………..Respondent(s)
To
The Hon’ble Chief Justice of Orissa High Court and his companion
Justices of the Hon’ble Court.
The humble petition of the
petitioner(s) above named.
MOST RESPECTFULLY SHOWETH
1. The present petition under Article 226 of the Constitution of India
is being filed by way of public interest litigation and the petitioner
has no personal interest ( if he has any personal interest such
interest must be disclosed). The petition is being filed in the
interest of (give particulars of the class of persons for whose
benefit the petition is filed).
2. That the petitioner is (give short background of the petitioner; if the
petitioner is an organization, the names of the office bearers must
be furnished). The petitioner has earlier filed/ not filed, any other
public interest petition (if filed, details of such PIL filed including
the case number and the court, status and brief description of the
order passed must be given. It must also be stated whether in any
of such cases any cost has been awarded, for. Or imposed against
the petitioner; and whether any appreciation or stricture has been
passed).
3. That the petitioner is filing the present petition on his own and not
at the instance of someone else. The litigation cost, including the
advocate’s fee and the traveling expenses of the lawyer, if any, are
being borne by the petitioner himself ( if not, the petitioner must
disclose the source of funds).
4. That the facts of the case in brief are as follows: (narrate the facts
leading to the filing of the petition in chronological order by
marking paras as 4.1, 4.2 so on).
5. The source of information of the facts pleaded is based
on___________ (if news report, whether the applicant has verified
the facts by personally visiting the place, talking to other people or
from the reporter/editor of the newspaper concerned. If the
petitioner does not wish to disclose the source, he may say so with
reasons)
6. That the petitioner has/has not sent representation in this regard. (If
yes. Details of such representation and reply, if any, from the
authority concerned along with copies thereof must be filed if not,
reason for not sending such representation).
7. That to the best of knowledge of the petitioner, no public interest
petition (whether filed by the petitioner himself or by anyone else)
raising the same issue is filed before this Hon’ble Court or before
any other court. (If filed, details thereof).
8. That the present petition has been filed on the following amongst
other grounds:
GROUNDS
State separate grounds with specific mention of violation of
particular constitutional or statutory provision or any
administrative instruction. The relevant provision of the
Constitution and statue
must be quoted and administrative instruction must be filed.
9. That the petitioner most respectfully prays that this Hon’ble, Court
may be pleased to pass the following order:
PRAYER
Set out the prayer/relief claimed (if more than one relief is claimed,
separate prayers may be made for each relief)
It is therefore, prayed that this Hon’ble Court may graciously be
pleased to admit this PIL writ petition, issue RULE NISI calling
upon the Opposite Parties to show cause, and if the opposite parties
fail to show cause or show insufficient cause, the said rule be
made absolute in granting the relief’s prayed for;
And may further be pleased to pass any other order(s) as deemed
fit and proper;
And for this act of kindness the petitioner shall as in duty bound
ever pray.
Place: Drawn and filed by
Date:
ADVOCATE
Any application for interim relief shall be filed as separate Misc.
Case.
P.K. PANDA
Registrar (Vigilance

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