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1998 DIGILAW 1286 (RAJ)

State of Rajasthan v. Amarnath Purohit

1998-12-01

A.S.GODARA, V.S.KOKJE

body1998
Honble KOKJE, ACTG. CJ.–This is an appeal against an order passed by learned Single Judge allowing a petition by a person Services appointed as President of District Consumer Disputes Redressal Forum (for short ``District Forum) while in the Rajasthan Higher Judicial Services (for short RHJS) claiming continuation on the post even after retirement from Rajasthan Higher Judicial Service (RHJS) on the same salary and allowances as were being drawn by him before retirement from RHJS. The respondent- petitioner complained that on his retirement his emoluments were reduced in violation of the rule which provides that the conditions of service of a member of the District Forum shall not be altered to his detriment. The learned Single Judge decided the case following another Single Bench decision of Jaipur Bench in S.B. Civil Writ Petition No. 3140/96 decided on 4.4.97, S.S. Gupta vs. State of Rajasthan (1). (2). The appellant State has filed this appeal challenging the decision of the learned Single Judge. (3). We have heard the learned counsel and perused the record. The respondent-petitioner who was a member of Rajasthan Higher Judicial Service was appointed President of the District Forum while in service by an order dated 2.6.94. He joined his duties on 15.7.94. The age of superannuation for RHJS Officers was 60 years and the respondent petitioner completed that in the month of January, 1995 and hence retired on 31.1.95. The tenure of the post of President, District Forum is till the incumbent completes the age of 65 years or 5 years from the date of appointment whichever is earlier. Accordingly, the respondent-petitioner conti- nued in the post of President, District Forum even after his superannuation from RHJS. The respondent petitioner continued to draw the salary to which he was entitled in RHJS on his appointment as President,District Forum. He continued to do so till reaching the age of superannuation in the RHJS. Thereafter, it appears, the confusion arose as to what would be the nature of his appointment after super- annuation from RHJS and what would be the salary payable to him. The respondent-petitioner himself wrote to the State Govt. on 18.1.95 asking for a decision on the point of his continuation in the post. On 7.3.95 the State Govt. Thereafter, it appears, the confusion arose as to what would be the nature of his appointment after super- annuation from RHJS and what would be the salary payable to him. The respondent-petitioner himself wrote to the State Govt. on 18.1.95 asking for a decision on the point of his continuation in the post. On 7.3.95 the State Govt. took a decision relieving the respondent-petitioner from the post on the ground that he was appointed as a serving judicial officer and since he had retired from his original service the State Govt. was not inclined to continue him in the post for administrative reasons. The respondent-petitioner accordingly laid down office on 20.3.95. This order was subsequently withdrawn on 20.10.95 and it was declared that the respondent- petitioner would continue till completion of 5 years from the date of initial appointment or till reaching 65 years of age. It was also ordered that the sa- lary for the period from 1.2.95 i.e. after superannuation from RHJS would be governed by Rule 337 of the Rajasthan Service Rules. The respondent-petitioner rejoined his duties on 9.11.95 and on 10.11.95 again wrote to the State Govt. asking for determination of the salary and allowances with reference to Rule 3(6) of the Rajasthan Consumer Protection Rules, 1987. (4). On 27.12.95 the respondent-petitioner again sent a detailed representation claiming protection of salary under Rule 3(6) of the Rajasthan Consumer Protection Rules 1987 and claiming payment of salary for the period of discontinuation of appointment. On 27.2.96 the respondent-petitioner was told by the State Government that it was not possible to pay him salary for the period he did not ac- tually work and by order dated 30.5.96 the Govt. fixed his salary at Rs 3553/- deducting his pension amount 3147/- from the last pay of Rs. 6700/-. It was also specified that no dearness relief or city compensatory allowance would be payable on the pension and dearness and city compensatory allowance would be payable on last pay of Rs. 6700/- It was also specified that deduction for occupying Govern- ment house would be on the basis of Rs. 6700/- as pay and office maintenance allowance, convenience allowance and other allowance would not be payable. On 14.6.96 the order dated 30.5.96 was amended substituting the words ``interim relief in place of words ``City Compensatory allowance. (5). 6700/- It was also specified that deduction for occupying Govern- ment house would be on the basis of Rs. 6700/- as pay and office maintenance allowance, convenience allowance and other allowance would not be payable. On 14.6.96 the order dated 30.5.96 was amended substituting the words ``interim relief in place of words ``City Compensatory allowance. (5). The respondent-petitioner challenged the aforesaid fixation of pay by fil- ing a petition before the learned Single Judge. The respondent-petitioner contended that since the order discontinuing his appointment was withdrawn he was entitled to emoluments for the entire period even though he had not factually worked on the post. It was further contended that the appointment to the post of President, District Forum under the Act was for a period of 5 years of till the person appointed attains the age of 65 years and therefore, according to the respondent- petitioner a person who was appointed to the post while in service in the RHJS could not be deemed to have vacated the post on his superannuation from RHJS. It was further contended that since the emoluments once fixed cannot be reduced by virtue of Rule 3(6) of the Rajasthan Consumer Protection Rules. The salary of the District Judge which was being drawn by the respondent-petitioner as President of District Forum before his retirement from RHJS could not be reduced by application of Rule 337 of the Rajasthan Service Rules. It was further contended that respondents case was not a case of re-employment as the order of discontinuation was withdrawn resulting in continuation of the appointment and also for the reason that re-employment is prohibited under the Act and the Rules. (6). The contention of the appellant-State is that the respondent is not entitled to double benefit and is not entitled to get the salary of a District Judge over and above the pension amount he was receiving. It is also submitted that the respondent was not entitled to payment of salary for the period for which he has not worked. (7). The learned Single Judge has decided the case relying on a Single Bench decision of Jaipur Bench in S.S. Gupta vs. State of Rajasthan(supra). It is also submitted that the respondent was not entitled to payment of salary for the period for which he has not worked. (7). The learned Single Judge has decided the case relying on a Single Bench decision of Jaipur Bench in S.S. Gupta vs. State of Rajasthan(supra). In that case the learned Single Judge held that the President of the District Forum after retirement from the RHJS shall be entitled to full salary and allowance as a District Judge in addition to the pension earned by him on superannuation from RHJS. (8). Having heard the learned counsel and having gone through the decision in S.S. Guptas case (Supra) we do not find ourselves able to reconcile with the view taken by the learned Single Judge in Guptas Case. The eligibility qualifications and the salary to be paid to the President of the District Forum is governed by Sec- tion 10 of the Act which reads as under:- Sec.10. Composition of the District Forum: (1) Each District Forum shall consist;- (a) a person who is or has been or is qualified to be a District Judge to be nominated by the State Govt., to be its President; (b) a person of eminence in the field of education, trade or commerce; (c) a lady social worker; (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 not be eligible for re- employment; Provided that a member may resign his office in writing under his hand addressed to the State Govt. and on such registration being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentio- ned in sub-section (1) 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 Govt. (9). It is therefore clear that a person who is or has been or is qualified to be a District Judge can be nominated as the President of the District Forum. (9). It is therefore clear that a person who is or has been or is qualified to be a District Judge can be nominated as the President of the District Forum. The term of appointment is 5 years or up to reaching the age of 65 years whichever is earlier and no reappointment of the same person is possible. Salary, honorarium or other allowances payable to and other terms and conditions of the members of the Dis- trict Forum are to be prescribed by the State Govt. In exercise of the aforesaid Rule making power the State Govt. of Rajasthan has framed Rule 3 of the Rajasthan Consumer Protection Rules 1987. The relevant portion of the Rule is reproduced hereunder:- ``Rule 3(1):- The President of the District Forum shall receive the salary of the Judge of a District Court if appointed on part-time basis or an honorarium of Rs. 150 per day if appointed on whole-time basis. Other members if sitting on whole time basis shall receive a consolidated honorarium of Rs. 2000 per month and if sitting on part-time basis, a consolidated honorarium of Rs. 100 per day for the sitting............ Rule 3(3) :- The salary, honorarium and other allowances shall be defrayed out of the consolidated fund of the State Govt..... Rule 3(6):- The terms and conditions of the service of the President and the members of the District Forum shall not be varied to their disadvantage during their tenure of office........ (10). It would be clear from the aforesaid provisions that little difficulty would arise in fixing the emoluments of a person who has been a District Judge or who is qualified to be a District Judge. The difficulty does not arise in respect of a person who is a District Judge when he is appointed President of the District Forum. It arises when such person is allowed to continue as President even after his retirement from service in the Rajasthan Higher Judicial Service. If he is asked to resign from the RHJS before taking over his appointment as President District Forum there would be no difficulty. But as per practice followed, the person continues to be in the RHJS and is treated on deputation to the Govt. during his appointment as President District Forum. If he is asked to resign from the RHJS before taking over his appointment as President District Forum there would be no difficulty. But as per practice followed, the person continues to be in the RHJS and is treated on deputation to the Govt. during his appointment as President District Forum. Because of this, such a person not only continues to draw salary he was drawing in the RHJS on the post of deputation also but is also entitled to increments and higher scale if otherwise found fit. Thus till the date of his superannuation he is paid the salary and other emoluments to which he is entitled as a member of the RHJS. The difficulty arises when such a person is continued on the post of President, District Forum by virtue of Sub Section 2 of Section 10 of the Act. Then the question whether the balance period of his tenure after retirement on superannuation from RHJS should be treated as re-employment or continuation of the appointment arises. There being no clear provision for appointment on deputation to the post of President District Forum, the appointment has to be taken to be an appointment for a term of 5 years or up to the age of 65 years as per Sub Section 2 of Section 10 of the Act. Since the appointment has to be for a term of 5 years or up to the age of 65 years it cannot be taken to be curtailed or to have come to an end on superannuation of an officer on deputation from RHJS. (11). So far as the emoluments are concerned, the rules leave it ambiguous in the sense that no specific amount has been indicated as salary for the post of President. Salary of the Judge of a District Court is a vague term. The Senior Most Judge in RHJS is also a Judge of a District Court and an officer who is at the bottom of the seniority list of the RHJS is also a Judge of the District Court. All of them are technically eligible for appointment as District Judge which is one of the qualification for being appointed as President District Forum. There are different scales in which the Judges of the District Court are fixed. All of them are technically eligible for appointment as District Judge which is one of the qualification for being appointed as President District Forum. There are different scales in which the Judges of the District Court are fixed. Which of these scales will be appli- cable to a person appointed as President of the District Fourm is not specified. As the officer who is appointed on deputation from the RHJS is already drawing a salary in a particular scale he is paid the same salary and allowances which he was drawing in the RHJS. He is allowed increments etc. also on the salary because he is taken to be on deputation. This permits different salaries and emoluments to be paid to different persons working as Presidents of the District Forum in the State. A comparatively junior officer draws a lesser salary and comparatively senior officer draws a higher salary. The vagueness in the Rules as to salary deserves to be removed and the State Govt. would be well advised to amend the Rules suitably specifying the salary which would be payable to a person who is appointed as President while in service in the RHJS as also to persons who have been District Judges or who are qualified to be a District Judge. The Rule should also specify as to what would be the salary payable to a person who has been appointed while he was a District Judge on his superannuation and whether the amount of pension re- ceived by such a person would be deductible from the salary or not. (12). However, so long as the Rule is not amended we will have to construe it harmoniously and reasonably. It appears just, proper and reasonable that a person who is appointed as President of the District Forum while he is in the RHJS should continue to draw the salary he was drawing in the RHJS as President of the District Forum. He should also continue to get all emoluments and increments in the salaries and allowance to which he would have been entitled to if he had continued in the mainstream judiciary during the period he is in the District Forum till his retirement on superannuation from RHJS. He should also continue to get all emoluments and increments in the salaries and allowance to which he would have been entitled to if he had continued in the mainstream judiciary during the period he is in the District Forum till his retirement on superannuation from RHJS. On retirement on superannuation from RHJS he should not be entitled to double benefit by getting an extension of service up to 65 years of age or till completion of 5 years term as also salary plus pension. At best, such a person can be deemed to have continued in the RHJS beyond the age of superannuation for the purpose of calculation of salaries and other emoluments. The most reasonable construction which can be put on the provisions is that the last salary drawn by such a person in the RHJS on the date of his retirement should be his salary for the purpose of the rules. This means that he would not be entitled to draw the amount of pension also alongwith the salary. It is true that Rule 337 of the Rajasthan Service Rules applies to re-employment and this being not a re-employment as such and which at best can be called to be re-employment in advance, the Rule 337 strictly would not apply. (13). The persons like the respondent shall not be entitled to double benefit of salary plus pension for one more reason and that is to be found in the Rajasthan Civil Services (Pension) Rules 1996. Rule 151 of the said rules provides that a Govt. servant who is in receipt of superannuation or retiring pension shall not be re-employed or continued to be employed in service paid from the consolidated fund or from local fund except on public grounds. Rule 152 of the aforesaid Rules provides that re-employed pensioners shall be allowed to draw pay only in the prescribed scales of pay for the post in which they are re- employed, no protection of scales of pay of post held by them prior to retirement shall be given. The Rule further provides that in all cases where the pension is fully ignored initial pay on re-employ- ment shall be fixed on the minimum of the scale of pay of the re-employed post. The Rule further provides that in all cases where the pension is fully ignored initial pay on re-employ- ment shall be fixed on the minimum of the scale of pay of the re-employed post. In case where the entire pension and pensionary benefits are not ignored for pay fixation the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. Thus looked from any angle there is no justification for allowing the respondent to draw pension as well as salary. (14). The embargo against re-employment contained in Section 10 of the Act applies to factual re-employment of the appointee on factual termination of his earlier appointment. It cannot be treated to be a bar against notional re-employment for the purpose of fixation of salary. Likewise, the protection given to the appointee against reduction of emoluments by Rule 3(6) of the Rules cannot be construed hypertechnically as a bar against deduction of pension amount from salary. Factual effect on emoluments has to be taken into account. Viewed thus, the deduction of pension amount from salary would not appear to be objectionable as factually the salary emoluments being drawn by the incumbent on the day of his retirement are not reduced at all. It is only that the incumbent is not allowed to get his actual emoluments raised by the pension amount as a consequence of his retirement. If this is allowed to be done that would be permitting unjust enrichment of the officer. (15). We are therefore in respectful disagreement with the view taken by the learned Single Judge who decided S.S. Guptas case which is relied on by the learned Single Judge passing the impugned order. We also do not agree that by accepting appointment as President in the Forum an Officer of the RHJS curtails his tenure in RHJS for which he is entitled to be compensated. Infact such officers get the benefit of automatic extension of employment beyond the maximum tenure in RHJS. They cannot derive double benefit by addition of pension amount also to their emoluments. (16). We therefore partially allow this appeal, set aside the impugned order and direct that respondent shall be entitled to his last salary in the RHJS minus the amount which he receives as pension. They cannot derive double benefit by addition of pension amount also to their emoluments. (16). We therefore partially allow this appeal, set aside the impugned order and direct that respondent shall be entitled to his last salary in the RHJS minus the amount which he receives as pension. We however see no reason to deprive the respondent of his salary and other emoluments for the period of discontinuation. Though he himself raked up the issue he cannot be punished for raising doubts. The period of discontinuation shall be counted as effective period for completion of the tenure of five years. There shall be no order as to costs.