- (1.) THE petitioner has challenged the notification contained in Memo No. 2776 dated 17.09.2011 whereby and whereunder the services of the petitioner to the post of President, District Consumer Forum, Godda has been cancelled.
(2.) LEARNED counsel for the petitioner submitted that petitioner was holding the post of Additional District Judge and he was facing departmental enquiry and no punishment order was passed till petitioner retired on 31.10.2008. However, the departmental proceeding continued in the administrative side of the High Court and ultimately on 15.01.2011, taking note of the fact that petitioner had already retired, it was decided not to impose any punishment, except a direction to be recorded in his C.R. that he will not be considered for any post retirement re -employment. It is submitted that the petitioner challenged the order dated 15.01.2011 by preferring writ petition being W.P.(S) No. 885 of 2011 but that was withdrawn by the writ petitioner on 24.02.2011. According to learned counsel for the petitioner since the petitioner was appointed on the post of President, District Consumer Forum on 2.05.209 and on that day there was no disqualification for his being appointed against the said post, therefore, he was qualified to be appointed and was legally appointed. It is also submitted that the order dated 15.01.2011 (Annexure -3) is prospective in nature and, therefore, it can operate after 15.01.2011 and petitioner may be held to be not entitled to re employment after 15.1.2011. Learned counsel for the petitioner submitted that petitioner's appointment was a tenure appointment as per Section 10(2) of the Consumer Protection Act, 1986 and, therefore, petitioner was entitled to hold the post for a term of five years or up -to the age of 65 years, whichever is earlier. It is submitted that in the case of Dr. L.P. Agarwal Vs. Union of India and Ors. reported in (1992) 3 SCC 526, it has been held that in a case where person is holding the tenure post then such person cannot be compulsorily retired. However, the State Government by exercising power under Bihar Consumer Protection Rule,1987 as adopted by the State of Jharkhand has passed the impugned order under Rule 3 (5) (a). The Clause (a) of Sub -Rule 5 of Rule 3 only provides that in a case when the President of the Consumer Forum is declared and adjudged as a insolvent then he can be removed. Admittedly the petitioner has not been adjudged insolvent, therefore, the order is illegal.
(3.) SRI Rajiv Ranjan, earned Additional Advocate General, appearing for the State Government and learned counsel Sri Ajit Kumar, Additional Advocate General for the High Court submitted that the petitioner incurred the disqualification from the day when he committed misconduct and this adverse entry could have been made in the service record of the petitioner for the relevant year when he misconducted and not in the year, in which, the order was passed as on the day when the order was passed he did not commit any punishable misconduct. Learned AAG appearing for the State submitted that the petitioner got the appointment on 2.05.2009 and he got the appointment because he was holding the post of Additional District Judge. The petitioner since got the appointment after retirement and the order of the High Court clearly indicates that he will not be given any post retirement re -employment, therefore, immediately when the petitioner obtained retirement this disqualification came into effect, meaning thereby on the day when the petitioner retired thereafter, he could not have been given appointment. If he would have continued in service after said order dated 15.1.2011, then also the order of High Court creating disqualification against post retiral employment would have come in to operation from future date and not from the date of order. Therefore, the order dated 15.1.2011 is effective from the date of retirement of petitioner irrespective of from past or future. However, the order as referred above was passed subsequent to the petitioner's appointment and, therefore, in view of petitioner's disqualification on the day of his appointment surfaced on 15.1.2011 when so was declared by the High Court in petitioner's departmental enquiry.;