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.