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2017 DIGILAW 329 (GUJ)

K. D. Desai v. State of Gujarat

2017-02-08

P.P.BHATT

body2017
JUDGMENT : P.P. Bhatt, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus or any other appropriate writ, order or direction for quashing and setting aside the order/communication dated 4.2.2012 of the Gujarat State Consumer Redressal Commission, Ahmedabad. It is also prayed that the respondents may be directed to revise and fix his pay in the pay scales applicable to the cadre of District Judges, under the Revision of pay Rules, 2003 from the date of appointment as President, i.e. 6.5.1999 to 31.12.2005 and under the Revision of Pay Rules 2009 from 1.1.2006 to 8.3.2007, the date of retirement as President of CDRF and pay him arrears of salary accordingly. 2. The brief facts giving rise to the present petition are that the petitioner was appointed in Ahmedabad District Consumer Disputes Redressal Forum (for short 'CDRF') by notification dated 3.4.1999 in the pay scale of Rs. 10000-15200 while he was working as Assistant Judge at Rajkot. He was promoted to the cadre of District Judges by High Court notification dated 16.7.1999, consequent upon which he was permitted to take over charge of the post of the President, CDRF. The petitioner was granted First Assured Career Progression pay scale of Rs. 14200-350-15950-400-18350 by High Court notification dated 13.8.2007. The petitioner retired on superannuation on 31.3.2002 as an Assistant Judge and retired on 8.3.2007 on completion of his tenure as President, CDRF at Ahmedabad. The Revision of Pay Rules 2003 came into force with effect from 1.1.1996 and the Revision of Pay rules, 2009 have come into force with effect from 1.1.2006. Since the petitioner was entitled to get his salary fixed in the revised pay scale prescribed for the cadre of District Judges under the Revision of Pay Rules 2003 from 6.5.1999 to 31.5.2006 and in the pay scale prescribed for the cadre of District Judges under the Revision of Pay Rules 2009 with effect from 1.1.2006 to 8.3.2007, the petitioner requested the respondents to fix his salary as per the aforesaid rules. Thereafter, the petitioner requested the respondents to fix his pension on the basis of 33 years of pensionable service in view of Rule 284 of the B.C.S. Rs. and Rule 37 of the Gujarat Civil Services (Pension Rules) 2002 by his letter dated 28.7.2010. Thereafter, the petitioner requested the respondents to fix his pension on the basis of 33 years of pensionable service in view of Rule 284 of the B.C.S. Rs. and Rule 37 of the Gujarat Civil Services (Pension Rules) 2002 by his letter dated 28.7.2010. However, the respondent authorities by communication dated 4.2.2012 rejected the request of the petitioner and hence this petition. 3. Learned Senior Counsel Mr. S.N. Shelat appearing along with learned advocate Mr. S.J. Gaekwad for the petitioner made the following submissions, "(i) that the petitioner's pay was fixed as per the provisions of Section 10(3) of the Consumer Protection Act, 1986 read with Rule 3 of the Gujarat Consumer Protection Rules, 1988. The petitioner joined service as a President of Consumer Dispute Redressal Forum, Ahmedabad on 6.5.1999. He served as President of District Forum upto 8.3.2007. When he was appointed as President of District Forum, Ahmedabad he was working in the cadre of Assistant Judges, and he was promoted to the cadre of District Judges by Notification dated 16.7.1999 by the High Court, his pay was not revised and fixed under the Rules of 2003. The petitioner is entitled to get his salary in the pay scale prescribed for the cadre of District Judges from 6.5.1999 to 31.5.2006 in the pay scale prescribed for the cadre of District Judges under Revision of Pay Rules, 2003 and from 1.1.2006 to 8.3.2007 in the pay scale of the cadre of the District Judges, i.e. Rs. 51650 under the Revision of Pay Rules 2009. (ii) The Government of Gujarat accepted the recommendations of the First National Judicial Pay Commission, and implemented the said recommendations for fixing the pay scales of the Judicial Officers by issuing a Notification dated 26.6.2009. Therefore, in view of revision of pay pursuant to the said notification, the petitioner should have been given the benefit of the revised pay while he was serving as President, CDRF, Ahmedabad. The petitioner retired as President, CDRF, Ahmedabad but the Civil Supplies Department did not fix the pay of the petitioner on the basis of revision of pay in the parent Department consequent upon revision of pay scales. The petitioner requested the Department to grant him the revised pay scales but his request was turned down by the impugned communication. The petitioner retired as President, CDRF, Ahmedabad but the Civil Supplies Department did not fix the pay of the petitioner on the basis of revision of pay in the parent Department consequent upon revision of pay scales. The petitioner requested the Department to grant him the revised pay scales but his request was turned down by the impugned communication. It is therefore submitted that the impugned decision of the respondent to reject the request of the petitioner for fixation of pay in revised pay scale as per the Revision of Pay Rules 2003 and 2009 is illegal, arbitrary and unjust, and contrary to the services rules. According to Mr. Shelat, Section 10 of Consumer Protection Act is required to be read with sub-rule 1 of Rule 3 of the Consumer Protection Rules which provides that the salary or honorarium and other allowances payable and other terms and conditions of the service of members of the District Forum shall be such as may be prescribed by the State Government. Sub-rule (1) of Rule 3 of the Consumer Protection Rules provides that the President of the District Forum shall receive salary of a District Judge, if appointed on full time basis. In view thereof the petitioner is entitled to get the salary as per the pay scale prescribed for the cadre of the District Judges as revised from time to time. Further, it is implicit in the provision that a retired district Judge on re-appointment as President, CDRF is entitled to salary on the basis of present pay scale applicable to the cadre of District Judges. It is submitted that the Revision of Pay Rules 2003 came into force with effect from 1.1.1996 and not in force now as they stand repealed by the Revision of Pay Rules 2009, therefore, the pay of the petitioner cannot be fixed under the non-existent repealed rules. (iii) that in the Conference of the Presidents, State Consumer Dispute Redressal Commissions and the Secretaries, In-charge Consumer Affairs in State/U.T. Governments held on 14/15 March 2010 at New Delhi, certain resolutions were passed in respect of pay scale of the Presidents of the District Forums whereby it was resolved that the service conditions, including salary, allowances and perquisites of the President of district Forums shall be same as those of the Sitting District Judge and the said resolution was made effective from 1.1.2010. Admittedly, the petitioner was appointed on full time basis in CDRF as its President. It is submitted that the petitioner's services for the period from 30.12.2005 to 31.12.2005 were treated on deputation since he was appointed as President, CDRF while he was in service. Consequently, he was reemployed as President, CDRF, with effect from 1.1.2006, and therefore, he is entitled to get the salary fixed in the pay scale of the cadre of District Judge as revised from time to time. (iv) that the revision of pay was given retrospective effect, and the same was fixed from a prior date, and therefore, the respondent-Food and Civil Supply Department was required to fix the pay of the petitioner after the revision of pay made by the High Court. It is submitted that the representation submitted by the petitioner was also not considered in its proper perspective, and his claim was rejected by the respondents. It is further submitted that Rule 3(1) of the Consumer Protection Rules provides that the President of the District Forum shall receive salary of a District Judge if appointed on full time basis, and the salary of a retired District Judge is required to be fixed as per Rule 172(3)(vii) of the Gujarat Civil Services (Pension) Rules 2002. Rule 172(3)(vii) provides that pay of President, CDRF on reemployment shall be fixed at the same stage at the last pay drawn before the retirement. The Rule further provides that if there is such stage in pay scale of the post or re-employment, the pay shall be fixed at a stage below that stage. Therefore, it is clear that by virtue of Rule 3 of Consumer Protection Rules, the pay scales of District Judge are made applicable to the post of President, CDRF. It is further submitted that it is settled position of law that nothing more can be read into the provision of Rule or a Section of the Act. Neither Rule 3 of the Consumer Protection Rules nor Rule 172(vii) of the Pension Rules provides that while appointing the Retired District Judge as the President of CDRF, his salary shall be fixed at the initial stage of the pay scale. Hence, the petitioner is entitled to the salary as per the Revised Rules of 2003 and 2009. Neither Rule 3 of the Consumer Protection Rules nor Rule 172(vii) of the Pension Rules provides that while appointing the Retired District Judge as the President of CDRF, his salary shall be fixed at the initial stage of the pay scale. Hence, the petitioner is entitled to the salary as per the Revised Rules of 2003 and 2009. Moreover, there is no justification for adopting different criteria for fixation of pay scale of the District Judges retired prior to 1.1.2006 and who retired on or after 1.1.2006 while appointing them as the Presidents, CDRF. Indisputably, the District Judges who retired prior to 1.1.2006 and others retired on or after 1.1.2006 exercise the same powers, discharge the same functions, and shoulder the same responsibilities. Under the circumstances, there is no justification for making a difference between their pay scales because that would amount to making discrimination between two groups of Judges who retired prior to 1.1.2006, and on or after 1.1.2006, which is violative of the provisions of Articles 14 and 16 of the Constitution of India. Further, the law is settled by various decisions of the Hon'ble Supreme Court that equal pay should be given for equal work. All the Presidents of CDRFs, irrespective of their date of appointment, exercise the same powers, and discharge the same functions. In such circumstances, naturally they should be treated on par in the matter of grant of pay scale while they are working as President of CDRF after their reemployment. (v) Learned Senior Counsel Shri S.N. Shelat has referred to and relied upon a judgment dated 6.9.2011 in the case of Justice H.H. Mehta (Retd.) v. State of Gujarat in Special Civil Application No. 15709 of 2010 and submitted that the case of the petitioner is also similar, and therefore, on this ground also, the petitioner is eligible and entitled to get the reliefs as prayed for in this petition. It is therefore submitted that in view of the analogous situation obtained from above, the petitioner's prayer cannot be refused and the order/communication dated 03.09.2011 is required to be set aside and the petitioner may be given the effect of the revised pay scales. It is therefore submitted that in view of the analogous situation obtained from above, the petitioner's prayer cannot be refused and the order/communication dated 03.09.2011 is required to be set aside and the petitioner may be given the effect of the revised pay scales. (vi) that it is settled position of law that even though the appointment of a government servant is contractual, he acquires status after such appointment, and his service conditions are governed by the service rules, and hence the petitioner is entitled to claim salary as per the existing pay scale which is in force for the cadre of the District Judges. Moreover, petitioner was not given the benefit of Revision of Pay Rules of 2003 in the matter of fixation of pay under the rules, which came into force with effect form 1.1.1996 and 1.1.2006. (vii) that different principles are applicable for fixation of pension and fixation of pay. Pension is required to be fixed on the last average pay drawn by the government servant at the time of his retirement, whereas on the re-employment after retirement, the employee gets the salary in the pay scale prescribed for the post. In the present case, no separate pay scales have been prescribed for the post of President, CDRF. The existing pay scale prescribed for the cadre of District Judges is made applicable to the President, CDRF. Further, in exactly similar cases of Mr. M.G. Gulabani and Mr. B.D. Soni, who were appointed as Presidents of respective CDRFs, State has fixed their pay as per the Revision Pay Rules 2009 as made applicable to the judicial officers under notification dated 26.6.2009. Similar benefits were also given to judicial officers, Mr. M.B. Tank and Mr. S.N. Vora. Therefore, such benefit cannot be denied to the petitioner, who also belongs to the cadre of District Judge. This act of the Government is, therefore, arbitrary, unjust and discriminatory and violative of Articles 14 and 16 of the Constitution of India. The petitioner is therefore entitled to get the relief of fixation of his pay on the basis of revised pay scales fixed under the Notification dated 26.6.2009. This act of the Government is, therefore, arbitrary, unjust and discriminatory and violative of Articles 14 and 16 of the Constitution of India. The petitioner is therefore entitled to get the relief of fixation of his pay on the basis of revised pay scales fixed under the Notification dated 26.6.2009. While fixing the pay of the petitioner after the Revision of Pay rules, 2009 which came into force with effect from 1.1.2006, the High Court and the Treasury Officer had given the benefit of revision of pay under the Notification dated 26.6.2009, and hence, the petitioner's pay is required to be fixed as per the Revision of Pay Rules of 2003 and 2009, and the petitioner is also entitled to the arrears of difference of pay." 4. Learned Assistant Government Pleader appearing for the State while opposing the petition, referring to relevant paragraphs from the affidavit-in-reply has tried to justify the order passed by the respondent. It is submitted that the representation submitted by the petitioner was duly considered by the respondent authorities in accordance with law, and there is no infirmity in the order passed by the respondent. It is submitted that since by notification dated 26.6.2009 the cut-off date was prescribed with effect from 1.1.2006, the petitioner is not eligible and entitled to get the benefit. It is submitted that the petitioner has retired on 31.12.2005, and therefore, in view of the cut-off date prescribed in the said Notification dated 26.6.2009, the petitioner is not eligible and entitled to get the salary of a District Judge as claimed by him. 5. Regard being had to the above submissions and considering the facts and circumstances of the present case, it appears that the petitioner was appointed in Ahmedabad District Consumer Disputes Redressal Forum (for short 'CDRF') by notification dated 3.4.1999 in the pay scale of Rs. 10000-15200 while he was working as Assistant Judge at Rajkot. He was promoted to the cadre of District Judges by High Court notification dated 16.7.1999, consequent upon which he was permitted to take over charge of the post of the President, CDRF. The petitioner was granted First Assured Career Progression pay scale of Rs. 14200-350-15950-400-18350 by High Court notification dated 13.8.2007. The petitioner retired on superannuation on 31.3.2002 as an Assistant Judge and retired on 8.3.2007 on completion of his tenure as President, CDRF at Ahmedabad. The petitioner was granted First Assured Career Progression pay scale of Rs. 14200-350-15950-400-18350 by High Court notification dated 13.8.2007. The petitioner retired on superannuation on 31.3.2002 as an Assistant Judge and retired on 8.3.2007 on completion of his tenure as President, CDRF at Ahmedabad. The Revision of Pay Rules 2003 came into force with effect from 1.1.1996 and the Revision of Pay rules, 2009 have come into force with effect from 1.1.2006. Since the petitioner was entitled to get his salary fixed in the revised pay scale prescribed for the cadre of District Judges under the Revision of Pay Rules 2003 from 6.5.1999 to 31.5.2006 and in the pay scale prescribed for the cadre of District Judges under the Revision of Pay Rules 2009 with effect from 1.1.2006 to 8.3.2007, he has requested the respondents to fix his salary as per the aforesaid rules. He has also requested the respondents to fix his pension on the basis of 33 years of pensionable service in view of Rule 284 of the B.C.S. Rs. and Rule 37 of the Gujarat Civil Services (Pension Rules) 2002 by his letter dated 28.7.2010. However, the respondent authorities by communication dated 4.2.2012 rejected the request of the petitioner. Now, in this context, sub-clause (3) of Section 10 of Consumer Protection Act, 1986 is required to be considered along with Sub-Rule (1) of Rule 3 of Consumer Protection Rules, which provide that the President of District Forum shall receive salary of a District Judge if appointed on full time basis. The said provisions are reproduced herein below: "Section 10(3) of the Consumer Protection Act, 1986 - 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: Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum. "Rule 3(1) of the Consumer Protection Rules - the President of the District Forum shall receive salary of a District Judge if appointed on full time basis" Thus, in view of Section 10(3) of the Consumer Protection Act, 1986, read with Sub-Rule 1 of Rule 3 of the Consumer Protection Rules, the petitioner's pay was required to be fixed as per the last pay drawn by him, taking into consideration the effect of revision of pay scales and the revised pay fixed by the High Court in the said pay scales, by granting Selection Grade as well as Super time Pay Scale. The respondent authorities have failed to appreciate and consider the fact that the pay of the petitioner was revised by the High Court by giving effect of Selection Grade as well as Super-time Scale with retrospective effect. The petitioner made a representation in this regard, but the respondent authorities have not properly appreciated the request made by the petitioner, and thereby rejected the representation. Under the circumstances, the petitioner had no other option but to approach this Court by way of the present petition for redressal of his grievance. 6. The case law cited by the learned Senior Counsel Mr. S.N. Shelat is relevant and applicable to the facts and circumstances of the present case. The relevant extract of the judgment dated 6.9.2011 in the case of Justice H.H. Mehta (supra) is reproduced herein below for ready reference: "3. It prima facie appears from the language of the Notification dated 2.12.2003, copy whereof is produced at Annexure 'A', for appointment of the petitioner as Chairman of the Tribunal for continuation of his salary and allowances drawn by him would mean salary of High Court Judge and the allowances as revised and may be revised from time to time. If in respect of High Court Judges of the Country, the salaries and allowances are revised from 1.1.2006 as per the above referred Notification, there is no reason to deprive the petitioner from the said benefit with effect from 1.1.2006 till 12.10.2006. The another relevant aspect is that the pension of the petitioner has been revised accordingly with effect from 1.1.2006, whereas for the continuation of the benefit of the regular salary has not been revised from 1.1.2006, which runs counter to the stand taken on behalf of the State Government. "4. The another relevant aspect is that the pension of the petitioner has been revised accordingly with effect from 1.1.2006, whereas for the continuation of the benefit of the regular salary has not been revised from 1.1.2006, which runs counter to the stand taken on behalf of the State Government. "4. We may record that on the one hand, contention is sought to be canvassed that the revision shall not be effected from 1.1.2006, whereas taking the basis of the revision of the pension with effect from 1.1.2006 a recovery is sought to be effected since the condition was salary and allowances minus the pension which also in our prima facie view, cannot be sustained at all and could also be termed as self contradictory. "5 In our prima facie view, it appears that when the salaries of High Court Judges had been revised with effect from 1.1.2006, the petitioner would also be entitled to the benefit of the revision from 1.1.2006 till his continuation as Chairman of the Tribunal minus the pension and it also prima facie appears that the order of recovery cannot be sustained at all. It is hardly required to be recorded that the petitioner being a former Judge of this Court the request made by him was required to be considered by the officials of the State Government with full seriousness and as against the representation made by the petitioner explaining all the relevant aspects, the same is turned down by one line order that the request is not tenable and therefore the same is not accepted." 7. Clause (vii) of sub-rule (3) of Rule 172 of the Gujarat Civil Services (Pension) Rules, 2002 provides as under: "172(3)(vii) In cases where the pension is not fully ignored, the pay or re-employment shall be fixed at the same stage, as the last pay drawn before retirement. If there is no such stage in pay scale of the post of re-employment the pay shall be fixed at the stage below that stage." In view of the aforesaid Rule, the appointing authority which is competent to re-employ a pensioner shall fix the pay of re-employment at the same stage as the last pay drawn before retirement. Sub-rule (1) of Rule 3 of the Consumer Protection Rules clearly provides that the pay scale of the District Judge is made applicable to the post of President, CDRF. Sub-rule (1) of Rule 3 of the Consumer Protection Rules clearly provides that the pay scale of the District Judge is made applicable to the post of President, CDRF. In view of the aforesaid provision of law, I find substance in the argument advanced by the learned Senior Counsel Mr. S.N. Shelat that it is settled position of law that nothing more can be read into the Section of the Act or the provision of Rule. On perusal of the aforesaid provisions of law, it appears that neither sub-rule (1) of Rule 3 of the Consumer Protection Rules nor clause (vii) of sub-rule (3) of Rule 172 of the Gujarat Civil Services (Pension) Rules 2002 provide that while appointing a retired District Judge as President of CDRF, his salary shall be fixed at the initial stage of the pay scale. The date of retirement of the petitioner is 8.3.2007, therefore, his salary was required to be fixed in the revised pay scales as revised by the High Court from time to time of the cadre of a District Judge. Moreover, there is no justification for adopting different criteria for fixation of pay scale of the District Judges retired prior to 1.1.2006 and who retired on or after 1.1.2006 while appointing them as Presidents, CDRFs. Indisputably the District Judges who retired prior to 1.1.2006 and those retired on or after 1.1.2006 exercise the same powers, discharge the same functions and shoulder the same responsibilities. Under the circumstances, there is no justification for making a difference between their pay scales which would amount to making discrimination between two groups of Judges, who retired prior to 1.1.2006 and on or after 1.1.2006, being violative of the provisions of Articles 14 and 16 of the Constitution of India. Further, the law is settled by various judicial pronouncements of the Honourable Supreme Court that equal pay should be given for equal work. The recent judgment of the Honourable Supreme Court in the case of State of Punjab and others v. Jagjitsingh and others reported in (2017) 1 SCC 148 wherein all the previous case law relating to 'equal pay for equal work' are discussed is also applicable to the present case. The recent judgment of the Honourable Supreme Court in the case of State of Punjab and others v. Jagjitsingh and others reported in (2017) 1 SCC 148 wherein all the previous case law relating to 'equal pay for equal work' are discussed is also applicable to the present case. In light of the above settled position of law, all the Presidents of CDRFs irrespective of their date of appointment, exercise the same powers and discharge the same functions, and therefore, under such circumstances, they are required to be treated at par in the matter of grant of pay scale while they are working as Presidents of CDRFs after their re-employment. 8. In view of the aforesaid discussion, it becomes clear that sub rule (1) of Rule 3 of the Consumer Protection Rules read with Section 10(3) of the Consumer Protection Act, 1986 specifically provides that the President of the District Forum shall receive salary of a District Judge if appointed on full time basis. Thus, it becomes very clear that the petitioner is eligible and entitled to get the salary of a District Judge. 9. Accordingly, the communication dated 4th February 2012 of the Gujarat State Consumer Redressal Commission, Ahmedabad, is hereby quashed and set aside. The respondents are directed to give the effect of the revised salary of a District Judge as fixed by the High Court from time to time and fix his pay in the pay scales applicable to the cadre of District Judges under the Revision of Pay Rules, 2003 from the date of appointment as President, i.e. 6.5.1999 to 31.12.2005 and under the Revision of Pay Rules 2009 from 1.1.2006 to 8.3.2007, i.e. the date of retirement as President of CDRF, and accordingly pay the difference of salary and arrears to the petitioner within a stipulated time. As the petitioner has retired from service, and now he is a senior citizen aged more than 70 years, the respondent-State authorities are directed to pay the difference of salary and arrears at the earliest, preferably within a period of two months from the date of receipt of this order. Rule is made absolute accordingly. No order as to costs.