Vinod Chaurasiya vs R.S. Bhadoriya

The petitioner before this Court has filed this present writ petition, by way of Public Interest Litigation, challenging the appointment of respondent No.3 - Akhilesh Pandya, to the post of Chief Vigilance Officer - cum - Legal Aid Advisor, M.P. Housing and Infrastructure Development Board - State of Madhya Pradesh.

The contention of the petitioner is that Parliament has enacted Consumer Protection Act, 1986 and Rules have been framed thereunder and the Rules known as M.P.

Consumer Protection Rules provides a bar upon the President or any Member after he ceases to hold the Office of President or Member, to be appointed in or connected with the management or administration of an organisation which have been subject of any proceedings under the Consumer Protection Act, 1986 during his tenure for a period of five years from the date on which he ceases to hold the Office. The contention of the petitioner is that respondent No.3 was a Member w.e.f. July 2014 and was posted as President, District Consumer Redressal Forum, Bhopal till his retirement and, therefore, for a period of 5 years from the date he has ceased to hold the Office, he could not have been appointed as Chief Vigilance Officer.

The petitioner has prayed for quashment of his appointment order in the light of Rule 6(11) of the Consumer Protection Rules.

This Court has issued notices in the matter and all the respondents are served and duly represented before this

Court. This Court, in order to find out whether the respondent No.3 has dealt with the cases of M.P. Housing and Infrastructure Development Board has directed the respondents vide order dated 6/9/2017 to inform this Court whether the respondent No.3 serving as President, District Consumer Redressal Forum, Bhopal has dealt with in any manner, at any point of time, the cases relating to M.P.

Housing and Infrastructure Development Board. The respondent No.3 himself has filed an Affidavit and he has stated in paragraph 7 that while working as President, District Consumer Redressal Forum, Bhopal he has dealt with as many as 9 cases of M.P. Housing and Infrastructure Development Board. Thus, undisputedly, the respondent No.3 has joined as President, District Consumer Redressal Forum, Bhopal on 24/7/2014 and has continued on the post of President till 30/1/2016. He has been appointed as Chief Vigilance Officer - cum - Legal Aid Advisor, M.P. Housing and Infrastructure Development Board on 16/12/2015, meaning thereby, immediately after his retirement / discontinuance as President of the District Consumer Redressal Forum, Bhopal. 4. A reply has been filed by the respondent No.2 also in the matter and an objection has been raised regarding maintainability of the Writ Petition. It has been stated that PIL is not maintainable in case of service matter. The order passed in W.P.No. 4680/2013 has been quoted in the reply on the ground of maintainability.

The respondent No.2 has also placed reliance upon the

M. P. High Court Rules, 2008 and the contention is that as per Rule 4(15), Public Interest Litigation has been defined and the petition is not a Public Interest Litigation. An objection regarding maintainability of the present Writ Petition on the ground of territorial jurisdiction has also been raised as the appointment order of respondent No.3 has been issued from Bhopal. It has also been stated that respondent No.3 was on deputation and, therefore, as he was on deputation, the Rules will not come in his way in the matter of appointment as Chief Vigilance Officer.

Heard learned counsel for the parties at length and perused the record.

In the present case, the undisputed facts reveal that respondent No.3 has worked as President, District Consumer Redressal Forum, Bhopal w.e.f. 24/7/2014 to 30/1/2016. He was at the relevant point of time a member of Higher Judicial Services. The letter dated 8/7/2014 which has been filed by the respondent No.3 himself reveals that his case was recommended for appointment as President, District Consumer Redressal Forum, Bhopal by the High Court of Madhya Pradesh. Thus, respondent No.3 was holding the post of President. Whether he was holding the post by way of deputation or by way of fresh appointment does not make any difference in the matter. The intention of the legislature is to ensure that a person who is holding the post of President or Member is precluded to hold any post in any Organisation which has been the subject of any proceeding under the Act during his tenure. The relevant statutory provision governing the field finds place in Rule 3, sub-Rule

(9) which deals with the President and Members of the

District Forum and the same reads as under:

3.Salaries and other allowances and terms and conditions of

the President and Members of the District Forum:

(1) The President of the District Forum shall receive the salary of the judge of a District Court if appointed on whole-time basis. Other Members and the President, if appointed on part time basis, shall receive consolidated honorarium of Rs.250/- and Conveyance allowance of Rs.50/- per day for the sitting.

(2) The president and the Members of the District Forum shall be entitled for such traveling allowance and daily allowance on official tour as are admissible to the grade I Officer of the State Government.

(3) The salary, honorarium and other allowance shall be defrayed out of the consolidated Fund of the State Government.

(4) Before appointment, the President and Members of the District Forum shall have to give an undertaking that he does not and will not have any such financial or other interest as is likely to affect prejudicially his functions as a Member.

(5) In addition to provision of Section 10(2), State Government may remove from the office, the President and Member of a District Forum who:

(a) has been adjudged an insolvent, or

(b) has been convicted of an offence which in the opinion of the State Government involves moral turpitude, or

(c) has become physically or mentally incapable of acting as such Member, or

(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member, or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest.

(f) is absent himself from three consecutive sittings of the Forum, except for a reasonable cause.

Provided that the President or Member shall not be removed from his office on the ground specified in Clauses (d) and (e) of the Sub-rule (5) except on an inquiry held by State Government in accordance with such procedure as it may specify in its behalf and finds the Member to be guilty of such ground.

(6) The terms and conditions of the service of the service of the President and the Member of the District Forum shall not be varied to their disadvantage during their tenure of office.

(7) Where any vacancy occurs in the office of the President of the District Forum, the senior-most (in order of appointment) Member of District Forum, holding office for the time being, shall discharge the functions of the President until a person appointed to fill such vacancy assumes the office of the President of the District Forum.

(8) When the President of the District Forum is unable to discharge the functions owning to absence, illness of any other cause, the senior-most (in order of the appointment) Member of the District Forum shall discharge the functions of the President until the day on which the President resumes the charge of his functions.

(9) The President or any Member ceasing to hold office as such shall not hold any appointment in or be connected with the management or administration of an organization which has been the subject of any proceeding under the Act during his tenure for a period of 5 years from the date on which he ceases to hold such office.

The statute is very clear on the subject. Whether a person is holding on account of his transfer as Member, on deputation or he has been appointed will not be relevant so far as the statutory provision is concerned because the statute provides that a person holding the post will not be appointed in respect of organisations for a period of 5 years from the date he ceases to hold such post and, therefore, the objection raised by the respondents is of no use.

So far as the definition of Public Interest Litigation on which heavy emphasis has been laid by the learned counsel for the respondent is concerned, the matter certainly does not involve individual or personal or private grievance. The respondent No.3 is certainly occupying the public office dehors the statutory provisions. The petitioner has got no personal interest in the matter and, therefore, Rule 4(15) of the M. P. High Court Rules, 2008 will not come in way of the petitioner. Not only this, the judgment quoted in the reply of respondent No.2 in respect of maintainability of the Writ Petition is also not at all applicable in the peculiar facts and circumstances of the case.

In the present case, though there was a specific bar restraining the respondent No.3 to hold the post of Chief Vigilance Officer - cum - Legal Aid Advisor as he has dealt with cases of M.P. Housing and Infrastructure Development Board, he could not have been appointed in the light of the

Rules. The appointment is void ab initio.

Another objection has been raised by the learned senior counsel that the Writ Petition is not maintainable before this Bench as order of appointment of respondent No.3 was passed from Bhopal.

This Court is of the considered opinion that if such a plea is accepted, the cases of employees who are posted outside the territorial jurisdiction of Principal Bench cannot be heard by other Benches because in most of the cases orders are being passed from Bhopal. In the present case, the petitioner is a permanent resident of Indore. Respondent No.3 has been appointed as Chief Vigilance Officer - cum - Legal Aid Advisor, he is having powers to exercise jurisdiction all over the State of Madhya Pradesh not in respect of Bhopal alone and, therefore, the present Writ Petition is very much maintainable before this Court.

Reliance has been placed upon the judgment delivered by the apex Court in the case of Kusum Ingots & Alloys Ltd., Vs. Union of India and another reported in (2004) 6 SCC 254. Paragraph 6, 9, 12 and 13 of the aforesaid

judgment reads as under :

Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. 9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to a writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors . (1994 (4) SCC 711) held that the question as to whether the court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 13. This Court in Oil and Natural Gas Commission's case (supra) held that all necessary facts must form an integral part of the cause of action. It was observed: "So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action..."

In the light of the aforesaid, it can be safely gathered that this Bench does have the jurisdiction to entertain the present Writ Petition which is a Public Interest Litigation.

Undisputedly, appointment of respondent No.3 is contrary to Rule 3, sub-Rule (9) of the Consumer Protection Rules. The respondent No.3 himself has admitted in his Affidavit that he has dealt with the cases of M.P. Housing and Infrastructure Development Board while serving as President, District Consumer Redressal Forum, Bhopal and, therefore, as he could not have been appointed till expiry of the period of 5 years after demitting the Office of President, the appointment deserves to be quashed and is accordingly hereby quashed. The order appointing the petitioner on 16/12/2015 is hereby quashed.

As this Court has quashed the appointment order of respondent No.3, his continuance from the date of appointment is also illegal and therefore, it is necessary to observe that respondent No.2 shall not initiate any recovery proceeding towards the emoluments and perks received by the respondent No.3 while serving as Chief Vigilance Officer - cum - Legal Aid Advisor of the M.P. Housing and Infrastructure Development Board. The Writ Petition is allowed. No order as to costs.