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2001 DIGILAW 474 (RAJ)

State of Rajasthan v. Shyam Sunder Gupta

2001-03-22

A.R.LAKSHMANAN, ASHOK PARIHAR

body2001
Honble LAKSHMANAN, CJ.–These two cases raise an interesting question of law as to whether pension can be deduced from the salary of a member of Rajasthan Higher Judicial Service holding the assignment of a President of District Consumer Forum continuing as such after superannuation in the RHJS. The other questions of law would also arise for consideration in these two cases to which we will refer to it later. (2). Shyam Sundar Gupta, respondent in Special Appeal No. 796/97 was appointed as President of Consumer Disputes Redressal Forum, Sikar vide order dated 2.6.1994 by the State of Rajasthan under Section 10(1)(A) of the Consumer Protection Act, 1986. He was relieved from the post of District Judge on 18.6.94 and he joined his new posting as President of District Consumer Forum on 18.6.94 and he has been working as such since then. The respondent attained the age of superannuation of District Judge on 31.5.95. He got his pension decided and commuted and got the released amount of his gratuity and General Provident Fund amount, State Insurance, leave encashment etc. and thus took about Rs. 5 lacs from all these heads as is apparent from the order of the learned Single Judge. The gross pension was sanctioned @ Rs. 3050/- per month which was reduced to net amount payable as Rs. 2034 monthly on account of commutation of pension. (3). The State of Rajasthan passed two orders dated 19.2.96 and 14.6.96 to the effect that the salary and allowances of the period commencing from 1.6.95 (retirement date of the respondent as RHJS) was ordered to be paid according to Rule 337 of the Rajasthan Service Rules, 1951 and further to the effect that the respondent will be eligible to get the salary and allowances etc. after deduction of the pension from the last salary drawn as member of RHJS; D.A. City compensatory allowance were also ordered to be paid on the basis of last salary drawn as member of RHJS after deduction, to the respondent. It was further laid down that the officiating allowance, car allowance and other allowances shall not be paid to the respondent. (4). The respondent challenged the two orders dated 19.2.96 and 14.6.96 (Annexures 4 and 5) by filing a writ petition in this Court in which the impugned order was passed. It was further laid down that the officiating allowance, car allowance and other allowances shall not be paid to the respondent. (4). The respondent challenged the two orders dated 19.2.96 and 14.6.96 (Annexures 4 and 5) by filing a writ petition in this Court in which the impugned order was passed. The State Government filed reply not disputing the fact of appointment of the respondent as President of District Consumer Forum while he was a sitting District Judge and took defence that because of the fact that the respondent retired as District Judge on 31.5.95 and that he treated himself also to have been retired from the post of District Judge on attaining superannuation age on 31.5.95 and got all the benefits of retirement as District Judge. (5). The learned Single Judge has allowed the writ petition by holding that according to the provisions of the Act of 1986 and the Rules of 1987 made thereunder the appointment of the respondent was for 5 years or till he attains the age of 65 years whichever is earlier and that the benefits of the post of President Consumer Forum on which he was appointed cannot be varied and allowed the writ petition against which this special appeal has been filed by the State Government. (6). According to the State of Rajasthan, learned Single Judge has not given proper consideration to the Act of 1986 and Rules of 1987 framed thereunder which provide salary to the President, Consumer Forum and at the time of his appointment as President, Consumer Forum, the respondent was a sitting District Judge and got himself relieved from the post of District Judge himself relieved from the post of District Judge and joined as President, Consumer Forum but treated himself to be a Judicial Officer under Judicial Service and as soon as he attained the age of superannuation on 31.5.95 he applied for pension and got it commuted and got all other retiral benefits and that the State Government would not have given the balance of amount of Rs. 2 lacs. By taking the retiral benefits the respondent has been benefited about 7,500/- per month as the amount of interest with current rate in the market on the total retiral benefit of Rs. 5 lacs. 2 lacs. By taking the retiral benefits the respondent has been benefited about 7,500/- per month as the amount of interest with current rate in the market on the total retiral benefit of Rs. 5 lacs. It is also submitted that there is no illegality or arbitrariness in the impugned order Annexures 4 and 5 challenged in the writ petition and the application of Rule 337 of the Rajasthan Service Rules was a must under the facts and circumstances of the case. In the very same appeal, during the pendency of this appeal, the respondent in the writ petition made an application to refer this matter to a Larger Bench for deciding certain questions in view of the conflicting judgments rendered on the same subject matter by Division Benches of this Court and also by a Division Bench of Kerala High Court. The judgment under appeal was rendered by Mrs. Justice Gyan Sudha Misra is reported in 1997(2) WLC (Raj.) 365 (1). The learned Single Judge quashed the two orders dated 19.2.96 and 14.6.96 contained in Annexure 4 and 5 to the writ petition and directed that the petitioner shall be entitled to full salary and allowances payable to the President, District Consumer Forum which is equivalent to the Judge of a District Court and shall also be entitled to all other perks including officiating allowance, car allowance and other perks. The deduction for occupying Government residence will be made on the basis of the salary which will be payable and to which the petitioner is entitled to. (7). This judgment was followed by another learned Single Judge at the Principal Seat, Jodhpur, against which, an appeal was preferred before the Division Bench of the Principal Seat at Jodhpur in D.B. Special Appeal No. 698/98 which was disposed by the judgment dated 1.12.1998 (2) by a Division Bench comprising of Honble Mr. Justice V.S. Kokje, Acting Chief Justice and Honble Mr. Justice A.S. Godara. The learned Judges after discussing the points raised by the counsel appearing on either side and also after referring to Section 10(1) of the Act and Rule 3 of sub clause 1 and other provisions came to the following conclusion: ``However, so long as the Rule is not amended we will have to construe it harmoniously and reasonably. The learned Judges after discussing the points raised by the counsel appearing on either side and also after referring to Section 10(1) of the Act and Rule 3 of sub clause 1 and other provisions came to the following conclusion: ``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. 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. (8). The Bench has also observed that the person like the respondent (Amar Nath Purohit) shall not be entitled to double benefits of pension for one more reason and that is to be found in Rajasthan Civil Services (Pension) Rules, 1996. (8). The Bench has also observed that the person like the respondent (Amar Nath Purohit) shall not be entitled to double benefits of pension for one more reason and that is to be found in Rajasthan Civil Services (Pension) Rules, 1996. The Bench also referred to Rule 151 of the Rules which provides that Government 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-employment shall be fixed on the minimum of 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, for allowing the respondent to draw pension as well as salary. (9). It is useful to refer to the observations made by the learned Judge in the concluding para of the judgment as well: ``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 purposes 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. 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. 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. In fact such officers get the benefit of automatic extension of employment beyond the maximum tensure in RHJS. They cannot derive double benefit by addition of pension amount also to their emoluments. (10). At the time of hearing our attention was drawn to another Division Bench Judgment of Kerala High Court in State of Kerala vs. Govindankutty (3). In the said appeal, the State of Kerala challenged the judgment passed in original petition filed by the respondent and declared that he is eligible to get salary of a District Judge as prescribed under Rule 3(1) of the Consumer Protection Rules (Kerala), 1987 and also re-directed to reimburse salary from the date of appointment till the date of judgment and till his retirement from the particular post on 16.12.96. The Division Bench of Kerala High Court has also framed the following questions:- ``The question that arises for consideration in this case is whether the appointment that the respondent held till 16.12.1996 as President of the Consumer Disputes Redressal Forum entitled him to get the pay and allowances as applicable to a District Judge or whether the pensionary benefits that he could draw for his prior services as a District Judge should be deducted from the emoluments of the post, as it was a post- retirement appointment. (11). The Division Bench after referring to the Rule No. 9 and other provisions and also of the judgment of the Supreme Court Nakara vs. Union of India (4), held that: ``The stand of the Government in Ext. P1 Government order dated 5.2.92 is that his entitlement to pay and allowances would be governed by G.O. (MS) No. 454/98/Fin., dated 29.6.1988. There was no such mention in the appointment order issued to the respondent. P1 Government order dated 5.2.92 is that his entitlement to pay and allowances would be governed by G.O. (MS) No. 454/98/Fin., dated 29.6.1988. There was no such mention in the appointment order issued to the respondent. By issuing an executive order like Ext. P1, the statutory rule contained in Rule 3 quoted above cannot be modified to the detriment of the occupant of the post. The learned Single Judge was, therefore, right in his finding that Ext. P1 executive order cannot abridge or amend the service conditions of the respondent fixed under Rule 3 of the Consumer Protection (Kerala) Rules, 1998. Even on first principles the stand of the Government cannot be accepted as correct. Nakara vs. Union of India, AIR 1988 SC 130 , is a decision which laid down the principle that pension is not a bounty or a gratuitous payment and that it is a vested right granted as a reward for the work rendered for his past services under the employer. The respondents right to get his pension and allowances due thereunder, therefore, is a statutory right and the remuneration for his post-retirement work in the Consumer Redressal Forum has to be separate and independent of what is due to him by way of pension. In fact, this position was accepted by the present appellant itself while passing G.O. (P) 1088/98/Fin., dated 23.3.1998 which is produced as an additional document Ext. A5 before this Court during the pendency of the appeal. However, that order has been given effect to only from 1.1.1996. The petitioner has filed the present O.P. even as early as on 3.03.1994 and we find absolutely no jurisdiction to deny the aforesaid benefit for his entire period of service as President of the Consumer Disputes Redressal Forum. In this view of the matter, we do not find any reason to interfere with the conclusion arrived at by the learned Single Judge. The appeal found to be devoid of merit and if it is accordingly dismissed. The entire arrears due to respondent in consequence of implementation of the judgment in the case will be released within a period of three months from this date, failing which it will attract interest at 12% per annum with effect from the date of expiry of three months from this date. (12). Another Division Bench comprising of the Honble the Chief Justice Dr. AR. Lakshmanan and Honble Mr. (12). Another Division Bench comprising of the Honble the Chief Justice Dr. AR. Lakshmanan and Honble Mr. Justice Bhagwati Prasad in Anand Prakash Solanki vs. State of Rajasthan & Ors. (5), by the order dated 28.2.2001 interpreting Section 10 and on examining the scheme of the Act came to the conclusion that each forum is constituted by three members who can hold the post for 5 years only and that post in question is a tenure post subject to the provisions of Consumer Protection Act 1986. The Bench has also observed that there cannot be seen any independent power with the State to transfer a member of a forum and no provision is available in the Act where transfer has been provided to be made by the State Government and power of transfer has not been spelled out in the Act expressly. The power of transfer is not available to the State under the provisions of Sub Section (1A) of Section 10 of the Act. That being the position it cannot be said that the State has the power of transfer. The Bench has also further observed as follows: ``In the Scheme of the Act, Section 10 provides for a vacancy in the composition of a forum. Such vacancy is to be filled in as provided for in Section 10 of the Act. Filling of such casual vacancy has been provided to be filled up by fresh appointment. While making such provision nothing has been conceived by the Legislature in the nature of transfer. That being the position it appears that the incidence of transfer was never thought of by the Legislature to be embodied in the Scheme of the Act. (13). During the pendency of this appeal, the respondent Officer filed a memo in view of the conflicting judgments and the different view taken by this Court from Amarnath Purohits case that the matter should be referred to a Larger Bench for deciding the question. In the memo a reference has been made to the following Judgments reported in 1997(2) WLC (Raj.) 365 (supra), 1999(2) WLC 23 (supra), AIR 1988 SC 130 (supra) and III 1999 CPJ 109 (DB) (Kerala) (supra). According to the respondent, there was no mention of `Pay minus Pension in appointment order of petitioner issued by State Govt. In the memo a reference has been made to the following Judgments reported in 1997(2) WLC (Raj.) 365 (supra), 1999(2) WLC 23 (supra), AIR 1988 SC 130 (supra) and III 1999 CPJ 109 (DB) (Kerala) (supra). According to the respondent, there was no mention of `Pay minus Pension in appointment order of petitioner issued by State Govt. and relying upon it Kerala High Court has further held that the Rule 3 of Consumer Protection Rules cannot even be modified by State Government to the detriment of the incumbent. Hence, impugned orders of State of Rajasthan dated 19.2.1996 and 14.6.1996 are null and void. It is also submitted that judgment of Division Bench in Amar Nath Purohits case reported in 1999(2) WLC 23 (supra) does not clarify the legal position in a proper perspective and therefore the matter should be referred to a Larger Bench for an authoritative pronouncement. On a consideration of the Rule, and the submission made by the learned Senior counsel Shri Jagdeep Dhankar and learned Additional Advocate General Mr. R.N. Mathur and on perusal of various judgments stated before us we are of the opinion that the subject matter of dispute raised in this appeal and the writ petition has to be referred to a Larger Bench of three Judges for an authoritative pronoucement not only in the interest of the judicial officers of the State but also in public interest. We, therefore, formulate the following questions of law and order this matter to be placed before the Larger Bench of three Judges for its authoritative pronouncement: 1. Whether President, Consumer Forum gets salary of a District Judge? 2. If a person already in service is appointed as President, Consumer Forum, he will continue to get the same salary till he reaches the age of superannuation provided under the Rajasthan Higher Judicial Service Rules? 3. After date of retirement from the Higher Judicial Services, if the person still continues as President of the Consumer Forum to complete the tenure provided under the Act, whether he will continue to get the same salary last drawn by him or usual salary of a District Judge plus the pension for which he was otherwise entitled for after his due retirement as member of Higher Judicial Services. 4. 4. During the tenure as President of Consumer Forum whether a person can be treated as member of Higher Judicial Services even after he reaches the age of superannuation so as to entitled him to all the benefits of the services for the remaining period of his tenure as President, Consumer Forum? 5. Whether there can be any re-employment of President, Consumer Forum during the fixed tenure, if the person appointed as President while in service, after his retirement from the services? 6. What is the status of a member of RHJS who is appointed as President, District Forum while in the RHJS and continuing as such after his superannuation in the RHJS? 7. Whether aforesaid appointment of a member of RHJS at any stage can be reckoned as re-employment or whether it is to be held as ``statutory appointment? (14). The Registry is directed to place the matter before the Honble the Chief Justice for passing orders for referring this matter to a Larger Bench of three Judges.