Holding

The power to appoint under Section 10 of the Consumer Protection Act, 1986 includes the power to appoint by transfer, and the State Government may transfer a President or member of a District Forum on the recommendation of the selection committee under Section 10(IA).

Summary

Anand Prakash Solanki, a former Special Judge, was appointed President of the District Consumer Protection Forum (DCPF) in Pali and later transferred by the Rajasthan Government to Jalore and then Banswara. He challenged the transfer, and the Rajasthan High Court held that the concept of transfer did not exist for DCPF Presidents or members, quashing the order. On appeal, the Supreme Court held that the power to appoint under Section 10 of the Consumer Protection Act, 1986 includes the power to appoint by transfer, provided the transfer is made by the State Government on the recommendation of the selection committee prescribed in Section 10(IA). The Court interpreted Section 248 as conferring administrative control on the State Commission over District Fora, thereby authorising the State Government to transfer DCPF officials. The power of transfer is valid unless expressly barred and must be exercised bona‑fide and sparingly. Consequently, the appeal was allowed and the High Court’s order set aside.

Issues considered

Whether a President or member of a District Consumer Protection Forum can be transferred from one district to another under the Consumer Protection Act, 1986.
If transfer is permissible, which authority is competent to effect such transfer.
Whether the scheme of the Consumer Protection Act, 1986 prohibits transfer of DCPF officials.
Whether the absence of a single cadre of DCPF officials precludes the power of transfer.

Legislation cited

Consumer Protection Act, 1986s. 10, s. 24, s. 248, s. 24B

Subjects

Consumer Protection Acttransfer of serviceappointment by transferadministrative controlDistrict Consumer Protection Forumservice jurisprudencepublic serviceState Government powerselection committee

Judgment

STA TE OF RAJASTHAN AND ORS. A
v.
ANAND PRAKASH SOLANKI

AUGUST 25, 2003

[R.C. LAHOTI AND ASHOK BHAN, JJ.] B

Service Law:

Appointment of President District Consumer Protection Forum by
transfer from another district-Challenge to-Quashing transfer order the C
High Court observed that in the absence of any provisions relating to
transfer ofPresident/Members ofDistrict Forum, the State Government cannot
transfer them-On appeal, Held: Power to make an appointment includes
power to make an appointment by transfer-The power conferred on the
National Commission is exercisable over the State Commissioti/District D
Fora-Reading the provisions mutatis mutandis some power conferred and
exercisable by the State Commission over District Fora-Construing so, the
State could exercise administrative control over District Fora-Hence, power
-'; of transfer could be exercised by the employer State unless there is an express
bar in the provision, but it has to be exercised bonafide-The Consumer
Protection Act does not prohibit the exercise of such power-Hence transfer E
order valid-Consumer Protection Act, 198~ections JO and 24(B)-
Interpretation of Statutes.

Words and Phrases:

'Transfer '-Meaning of-In the context of service jurisprudence. F
The questions which arose in the present appeal were as to whether a
President or a Member of Consumer Protection Forum at district level could
be transferred from one district to another; and if so, which is the competent
authority to transfer them.
G
Allowing the appeal, the Court

HELD: 1.1. 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 H
. 957
958 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A make an appointment by transfer, subject to satisfying the requirements of
Section 10 of the Consumer Protection Act. The expression 'appointment'
takes in appointment by direct recruitment, appointment by promotion and
appointment by transfer. (962-E, Fl

Indra Sawhney and Ors. v. Union ofIndia and Ors., (1992] Supp. 3 SCC
B 217 and K. Narayanan and Ors. v. State ofKarnataka and Ors., (1994) Supp.
1 sec 44, relied on.

1.2. Every appointment under sub-section (I) of Section 10 of the Act,
though made by the State Government, is dependent on the recommendation
C of a selection committee 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 (I)
of Section 248 of the Act. The power conferred on the National Commission
by clause (iii)-ofsub-section (1), exercisable by the National Commission over
D 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) of Section 24 of the Act. Keeping in view the purpose
sought to be achieved by these provisions, Section 248 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 o( the State
E Commission over all the District Fora within its jurisdiction, whenever there
is any doubt. In other words, clauses (i), (ii) and (iii) of sub-section 248 of the
Act have to be liberally and widely interpreted. (963-C, D, El

1.3. 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,
F are constituted within the State, there is nothing wrong in the President or ·1

members of one District Forum being appointed by transfer to another District
Forum, subject to the requirement of sub-section (IA) of Section 10 being
satisfied. Such appointment by transfer sh.all be made by the State Government
but only on the recommendation of the Committee constituted. Such i
G 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. (963-G, H; 964-A)

1.4. The broader concept of 'transfer' is a change of the place of
H employment within an organization. Transfer is an incidence of public service
STATE v. A.P. SOLANKI [LAHOTI, J.] 959

and the power to transfer is available to be exercised by the employer unless A
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..
[964-B)

General Officer Commanding-in-Chiefand Anr. v. Dr. Subhash Chandra
Yadav and Anr., l1988) 2 SCC 351 and Om Prakash Rana v. Swarup Singh B
Tomar and Ors., [1986) 3 SCC 118, distinguished.

1.5. 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 C
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 (IA) of Section
10 of the Act. The view to the contrary taken by the High Court cannot be
countenanced. [965-E, F) D
CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 6733 of 2003.

From the Judgment and Order dated 8.10.98 of the Allahabad High Court
in C.M.W.P. No. 968of1997.
E
Ranji Thomas, Ms. Bharti Upadhyaya and V.N. Raghupathy, Javed
Mahmud Rao for State of Rajasthan.

Pallav Shishodia, T. Mahipal for the Respondent.

The Judgment of the Court was delivered by
F
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 IO 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 G
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 Addi. District & Sessions H
960 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A Judge 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/
B posted as the President of the Forum at Pali. This telephonic communication
was followed by a written communication dated l 5. l l .1999 appointing him as
President, District Consumer Protection Forum, Banswara in supersessiori of
the earlier orders.

c A Division
The respondent filed a writ petition challenging the order of his transfer.
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
D 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.

E 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
F 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 IO of the
Act. These are the three-tier agencies established for the purpose of the Act
G 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 248 inserted by Act No. 50 of 1993 w.e.f.
H l 8.6.1993 provides as under:-
STATE v. A.P. SOLANKI [LAHOTI, J.] 961
"24B. Administrative control.-(l) The National Commission shall A
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 B
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 C
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- D
section (I)."

(underlining by us)

Each District Forum in a State is constituted under Section IO of the Act
which reads as under:- E
"10 Composition of the District Forum.-

(I) Each District Forum shall consist, of-

(a) a person who is, or has been, or is qualified to be a District
)udge, who shall be its President; F
(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 of
administration, one of whom shall be a woman. G
{IA) Every appointment under sub-section {l) 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
H
962 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A (ii) Secretary, Law Department of the State -Member.
(iii) Secretary, incharge of the Depart~ent 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
B 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 va~ant and may be filled by
the appointment of a person possessing any of the qualifications
c mentioned in sub-section (I) 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."
D
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 recomipendation of a selection committee consisting
E of the President of the State Commission and two Secretaries of the State as
provided by sub-Section (1 A) 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 powerto make an appointment
includes a power to make an appointment by transfer, subject to satisfying
the requirements of Section IO of the Act. The expression 'appointment' takes
F in appointment by direct recruitment, appointment by promotion and
appointment by transfer. (See Indra Sawhney and Ors. v. Union of India and
Ors., [1992) Supp. 3 SCC 217, para 827, per Jeevan Reddy, J. In K. Narayanan
and prs. v. State of Karnataka and Ors., [1994) Supp 1 SCC 44, the term
'recruitment' came up for the. consideration of this Court and it was held that
G 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 v. A.R. Shinde and
Anr., [l 987] 2 SCC I, this Court noticed three modes of making recruitment,
i.e. promotion, deputation and direct recruitment and at the same time held
H that an appointment by transfer too was unexceptionable.
STATE v. A.P. SOLANKI [LAHOTI, J. ] 963
It cannot be lost sight of that the National Commission, State A
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 B
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 (IA) of Section 10 as also by Section 248 of
the Act. Every appointment under sub-Section (1) of Section 10, though made C
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 248. The power conferred on the National Commission by clause (iii) D
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 248 has to be so construed as to spell out
administrative control in favour of the National Commission over all the State E
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 wide!y
interpreted.
F
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 G
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 (I A) of Section l 0
being satisfied. Such appointment by transfer shall be made by the State H
964 SUPREME COURT REPORTS (2003] SUPP. 2 S.C.R.

A 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 (IA) of Section IO. 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.
B 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.
c The High Court has in its judgment referred to two decisions of this
Court namely General Officer Commanding-in-Chiefand Anr. v. Dr. Subhash
Chandra Yadav and Anr., (1988] 2 SCC 351 and Om Prakash Rana v. Swarup
Singh Tomar and Ors., (1986] 3 SCC 118.

Dr. Subhash Chandra Yadav 's case (supra) is one where the Central
D
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 autonomus body and the
employees of one Cantonment Board cannot be transferred to another
Cantonment Board inasmuch as the service under th'e Cantonment Board is
E 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.
F In Om Prakash Rana's, case (supra) 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
G 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
H employer. On appointment as a Principal to a college a contract of employment
STATEv. A.P. SOLANKI [LAHOTI,J.] 965
with a particular employer comes into existence. A
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 B
appointment is involved. But when a Principa'I 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 C
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 D
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 E
transfer.

The scheme of the Act does not prohibit or exclude the exercise of
power to transfer the President or Members from one District Fori1m 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 F
of committee contemplated by sub-Section (I A) of Section I 0 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 G
the learned amicus to the Court.
S.K.S. Appeal allowed.