- (1.) BY the Court.-Heard Sri Siddharth Srivastava for the petitioners and learned Standing Counsel for the respondents.
(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. 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. 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 Court's 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 Hon'ble 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 transfer the President since he is paid salary and not the Members who are paid only honorarium and who will be seriously and adversely affected. (8) Transfer of Members in the facts and circumstances will amount to compelling them to resign since they cannot work at a place other than that where they were initially appointed. It amounts to indirect termination of their appointment.
(3.) HAVING considered the aforesaid we find that none of the aforesaid submission is tenable in law. Coming to the question as to whether the petitioners are employees of the State Government or not it would be appropriate to consider certain provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the "1986 Act") where under the petitioners admittedly have been given the aforesaid assignment.;