M.S. Chawla and Others Vs. State of Punjab and Another
EmailAppeal: Civil Appeal No. 907 of 2001 with no.908 of 2001
(From the Judgment and Order dated 12.3.1999 of the Punjab and Haryana High Court in CWP no. 4351 of 1998)
(From the Judgment and Order dated 12.3.1999 of the Punjab and Haryana High Court in CWP no. 4351 of 1998)
Petitioner: M.S. Chawla and Others
Respondent: State of Punjab and Another
Apeal: Civil Appeal No. 907 of 2001 with no.908 of 2001
(From the Judgment and Order dated 12.3.1999 of the Punjab and Haryana High Court in CWP no. 4351 of 1998)
(From the Judgment and Order dated 12.3.1999 of the Punjab and Haryana High Court in CWP no. 4351 of 1998)
Judges: G.B. PATTANAIK & B.N. AGRAWAL, JJ.
Date of Judgment: Apr 18, 2001
Appearances:
Mr. P.P. Rao and Mr. Anoop G. Chaudhary, Senior Advocates, Mr. Ravindra Bana, Mr.Manoj Swarup, Mr. Prem Malhotra, Mr. K.C.Bajaj, Mr. Vinod Shukla, Mr. Rajeev Sharma, Mr. Mahabir Singh and Mr.Sandeep Singh, Advocates, with them for the appearing par-ties.
Head Note:
SERVICE LAWS
Punjab Civil Services Rules
Vol. 2, rules 2.1 and 7.18 – Consumer Protection Act, 1986 – Section 10(3) – Consumer Protection (Punjab) Rules, 1987 – Rule 3(1) – District consumer protec-tion forum – Fixation of pay and allowances of president of the forum – Pension drawn from previous employment if deductible – Appellants who were retired district judges ap-pointed as presidents of district consumer protection forum – State government while fixing the salary to the presidents of the forum, deducting the pension drawn by them in respect of their earlier employment as district judges – Action of state challenged through writ before High Court but court dismissing the writ – Whether High Court correct in dismissing the writ – Whether deduction of the pension correct. Held, such appointment being re-employment, in terms of rule 2.1 of chapter 2 of vol. 2 of Punjab Civil Services Rules, state was justified in deducting the pension drawn in respect of earlier employment while determining the salary payable to the appellants.
Held:
The appointment of a district judge, after his superannuation as the president of the district consumer forum under the Consum-er Protection Act, cannot but be held to be a case of re-employ-ment of pensioner inasmuch as the said district judge is in receipt of a pension for the services rendered as a district judge in accordance with the provisions contained in the Punjab Civil Services Rules, vol. 2nd since rule 2.1 of chapter 2nd vol. 2nd unequivocally states that every pension shall be held to have been granted subject to the conditions contained in chapter 7th and chapter 7th contains rule 7.18 as well as note 3(a)(1), which have been extracted before, the conclusion is irresistible that the appropriate authority will have to decide the pay and allowances, which the retired district judge is entitled to receive on being appointed as the president, the district forum notwithstanding the fixation of such pay under the rules framed under the Consumer Protection Act and while fixing the same, the principle underlined in note 3(a)(1) has to be followed. This being the position, we see no infirmity with the government order dated 25-1-1996 and under the said notification the salary of re-employed district judge as president of the district consumer forum, has rightly been fixed, taking into account the pension, which they are in receipt of, as retired district judge. (Para 4)
JUDGEMENT:
PATTANAIK, J.
1. These appeals filed by the presidents of the district consumer forum, appointed under section 10 of the Consumer Protection Act, are directed against the judgment of the Punjab and Haryana High Court and the question for consideration is whether the pension amount received by these appellants in respect of their previous services as district judges, can be deducted from the salary of the president of district consumer forum, fixed under the provi-sions of the Consumer Protection Act and the rules framed there-under. The appellants approached the High Court by filing a writ petition, challenging the legality of the government order dated 25-1-1996, by which order it had been directed that the pension amount of each of these appellants should be deducted from their salary, payable as president of the district consumer forum. The High Court by the impugned judgment, dismissed the writ petition, essentially on the ground that the appellants knew while joining the post of president, district consumer forum that the pension amount received by them as members of the superior judicial service would be deducted from their salary and therefore, they having joined the post with full knowledge and without any protest, do not have any enforceable right under the provisions of the Act and the rules, as contended.
2. Mr P.P. Rao, the learned senior counsel appearing for the appellants, raised the following contentions in assailing the im-pugned judgment of the High Court:
(i) The salary of the president of the district consumer forum, having been fixed under section 10(3) of the Consumer Protection Act,1986 (hereinafter referred to as “the Act”) read with rule 3(1) of the Consumer Protection Rules, 1987 (hereinafter referred to as “the rules”) and there being no provision for deduction of the pension which such president had been drawing in respect of the services rendered, the government is not entitled to issue an administrative order to that effect and, therefore, the order directing deduction of pension is illegal.
(ii) Pension being neither a bounty nor a matter of grace de-pending upon the sweet will of the employer, as has been held by this Court in the constitution bench decision in D.S. Nakara case, the right to receive pension by each of the appellants, is a statutory right governed by the Punjab Civil Services Rules, made under the proviso to Article 309, and in the absence of any provi-sion thereunder, the said pension cannot be deducted from the salary provided for the president of the district consumer forum under the Act and the rules framed thereunder.
(iii) In any view of the matter, the statutory right of receiving pension for services rendered as district judges, cannot be taken away by an administrative order made by the governor.
(iv) The Consumer Protection Act and the rules framed thereunder, itself having provided the conditions of service and having fixed the salary of the president of the district consumer forum, the same cannot be, in any manner altered by an administra-tive order.
In this view of the matter, the impugned order dated 25-1-1996, is on the face of it illegal, inoperative and null and void and must be struck down. Mr Rao also further contended that the conclusion of the High Court, applying the principle of waiver and estoppel is wholly untenable, since there is no question of waiver or estoppel against any statute and the High Court committed error in holding that the appellants knew about the condition that the pension amount would be deducted from the salary/honorarium pay-able to the president of the district consumer forum.
3. Mr A.G.Chaudhary, appearing for the State of Punjab, on the other hand contended that vol.II of the Punjab Civil Services Rules deals with the pension of an employee. In chapter VII of the aforesaid Punjab Civil Services Rules, vol.II, clause 7.18 ena-bles the authority competent to fix the pay and allowances of the post in which the pensioner is re-employed to determine whether his pension shall be held wholly or partly in abeyance. Note 3 of the aforesaid provision unequivocally stipulates that in deter-mining the pay of re-employed pensioner, the principle to be followed is that the pay must not exceed the substantive pay drawn immediately before retirement or the maximum of the scale applicable to the post in which the government employee is re-employed, whichever is less and pension which is non-effective pay, shall not ordinarily be allowed in addition. In view of the aforesaid provisions and the appointment of the retired district judges as president of the district consumer forum being re-employment, the appropriate authority was entitled to fix their salary and fixation of their salary has been done by the appro-priate authority by issuing the government order dated 25-1-1996, and therefore, the said order is within the powers conferred under the Punjab Civil Services Rules and in consonance with the principles enunciated therein. In this view of the matter, the High Court was fully justified in not striking down the aforesaid government order.
4. It is no doubt true, as contended by Mr. Rao, the learned senior counsel appearing for the appellants that if, the emolu-ments attached to a post under any Act are fixed under the Act, then by an executive order, the same cannot be altered or determined contrary to the provisions of the Act and the rules. “District forum” is defined in section 2(h) to mean a consumer disputes redressal forum established under clause (a) of section 9 of the Consumer Protection Act,1986. Section 9(a) makes it obligatory for the state government to establish a consumer disputes redressal forum to be known as the “district forum” in each district of the state by a notification. Section 10(1)(a) of the Act provides that each district forum shall consist of a person who is, or has been, or is qualified to be a district judge, who shall be its president. Sub-section (3) of section 10 provides that 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. Sub-section(2) of section 30 enables the state government by a notification to make rules for carrying out the provisions contained in sub-section(3) of section 10 along with other provisions mentioned in the said sub-section. Thus, the salary or honorarium and allowances payable to and the terms and conditions of service of members of the district forum could be prescribed by the state government by the rules framed for the purpose. In exercise of powers under sub-section (2) of section 30, the Government of Punjab, Department of Food and Supplies (Consumer Protection Branch), has made rules called the Consumer Protection (Punjab) Rules,1987. Sub-rule(1) of rule 3 thereof prescribes that the president of the district forum shall receive the salary of the district judge of a district court if ap-pointed on a whole time basis or an honorarium of Rs. 150 per day if appointed on a part-time basis and other members, if sitting on a whole-time basis, shall receive a consolidated honorarium of Rs 2000 per month and if sitting on a part-time basis, a consolidated honorarium of Rs 100 per day for the sitting. The aforesaid salary and honorarium is defrayed out of the consolidated fund of the state government, as provided in sub-rule(3) of rule 3. These rules of 1987, stood amended by the Consumer Protection (Punjab) (Amendment) Rules, 1993 by notifica-tion dated 2-8-1993. Under the amended Rules, the president of a district forum, if appointed on a whole-time basis, is entitled to pay in the grade of pay admissible to a judge of a district court. Neither in the Act nor in the rules framed thereunder, has there been any indication as to whether on being appointed as president of the district consumer forum, after superannuation as a district judge, the pension receivable is to be deducted. The pension of such superannuated district judges is governed by the Punjab Civil Service Rules, vol. 2nd rule 1.1(a) of the Punjab Civil Services (Pension) Rules vol. 2nd unequivocally stipulates that the rules in this part regulate the grant of pensions to the government employees to whom the rules in vol.1 of these rules apply. The Punjab Civil Services Rules have been issued by the governor of Punjab under the proviso to Article 309 of the Constitution. The Punjab Civil Services Rules apply to all gov-ernment employees except those who are specifically excluded from the operation of the rules by a general or special order of the competent authority. Appendix (2) to the rules contains a list of those employees who have been excluded from the opera-tion of the rules. The expression “state government employees,” has been defined to mean all persons whose conditions of service may be regulated by the rules made by the governor of Punjab under proviso to Article 309 of the Constitution. It is undisput-ed that the pension of a district judge, on his superannuation is determined in accordance with the Punjab Civil Services Rules, vol. 2nd chapter 2nd. Vol. 2nd deals with general provisions relating to grant of pensions. Rules 2.1 thereof provides that every pension shall be held to have been granted subject to the conditions contained in chapter 7th of these rules. Chapter 7th vol. 2nd of the Punjab Civil Services Rules contains rule 7.18, and the same is quoted hereinbelow:
“7.18. The authority competent to fix the pay and allowances of the post in which the pensioner is re-employed shall determine whether his pension shall be held wholly or partly in abeyance. If the pension is drawn wholly or in part, such authority shall take the fact into account in fixing the pay to be allowed to him.”
Note 3(a)(1) to the aforesaid section 7.18 is extracted hereun-der:
“Note 3.(a) In determining the pay of a re-employed pensioner, the following principles shall be observed namely-
(1) the pay must not exceed the substantive pay drawn immediately before retirement or the maximum of the scale applicable to the post in which the government employee is re-employed, whichever is less and pension which is non-effective pay, shall not ordi-narily be allowed in addition.
Provided that if the pension does not exceed Rs. 50 per month, the entire amount of pension and where it exceeds Rs. 50 per month the first Rs. 50 shall not be taken into account in fixing the pay on re-employment.”
The appointment of a district judge, after his superannuation as the president of the district consumer forum under the Consum-er Protection Act, cannot but be held to be a case of re-employ-ment of pensioner inasmuch as the said district judge is in receipt of a pension for the services rendered as a district judge in accordance with the provisions contained in the Punjab Civil Services Rules, vol. 2nd. Since rule 2.1 of chapter 2nd vol. 2nd unequivocally states that every pension shall be held to have been granted subject to the conditions contained in chapter 7th and chapter 7th contains rule 7.18 as well as note 3(a)(1), which have been extracted before, the conclusion is irresistible that the appropriate authority will have to decide the pay and allowances, which the retired district judge is entitled to receive on being appointed as the president, the district forum notwithstanding the fixation of such pay under the rules framed under the Consumer Protection Act and while fixing the same, the principle underlined in note 3(a)(1) has to be followed. This being the position, we see no infirmity with the government order dated 25-1-1996 and under the said notification the salary of re-employed district judge as president of the district consumer forum, has rightly been fixed, taking into account the pension, which they are in receipt of, as retired district judge. The contention of Mr. Rao that the salary fixed under the Act and the rules framed thereunder are being altered by an administra-tive order is of no force, in view of the legal provisions enumerated above and in fact, it is the provision of the Punjab Civil Services Rules, dealing with the salary of re-employed pensioners, which governs the field. The other contention on the basis of the judgment of this Court in D.S. Nakara case, that pension is not a bounty is also of no consequence. In the aforesaid premises, we do not find any legal infirmity with the judgment of the High Court, requiring our interference under Article 136 of the Constitution. These appeals accordingly fail and are dis-missed.
1. These appeals filed by the presidents of the district consumer forum, appointed under section 10 of the Consumer Protection Act, are directed against the judgment of the Punjab and Haryana High Court and the question for consideration is whether the pension amount received by these appellants in respect of their previous services as district judges, can be deducted from the salary of the president of district consumer forum, fixed under the provi-sions of the Consumer Protection Act and the rules framed there-under. The appellants approached the High Court by filing a writ petition, challenging the legality of the government order dated 25-1-1996, by which order it had been directed that the pension amount of each of these appellants should be deducted from their salary, payable as president of the district consumer forum. The High Court by the impugned judgment, dismissed the writ petition, essentially on the ground that the appellants knew while joining the post of president, district consumer forum that the pension amount received by them as members of the superior judicial service would be deducted from their salary and therefore, they having joined the post with full knowledge and without any protest, do not have any enforceable right under the provisions of the Act and the rules, as contended.
2. Mr P.P. Rao, the learned senior counsel appearing for the appellants, raised the following contentions in assailing the im-pugned judgment of the High Court:
(i) The salary of the president of the district consumer forum, having been fixed under section 10(3) of the Consumer Protection Act,1986 (hereinafter referred to as “the Act”) read with rule 3(1) of the Consumer Protection Rules, 1987 (hereinafter referred to as “the rules”) and there being no provision for deduction of the pension which such president had been drawing in respect of the services rendered, the government is not entitled to issue an administrative order to that effect and, therefore, the order directing deduction of pension is illegal.
(ii) Pension being neither a bounty nor a matter of grace de-pending upon the sweet will of the employer, as has been held by this Court in the constitution bench decision in D.S. Nakara case, the right to receive pension by each of the appellants, is a statutory right governed by the Punjab Civil Services Rules, made under the proviso to Article 309, and in the absence of any provi-sion thereunder, the said pension cannot be deducted from the salary provided for the president of the district consumer forum under the Act and the rules framed thereunder.
(iii) In any view of the matter, the statutory right of receiving pension for services rendered as district judges, cannot be taken away by an administrative order made by the governor.
(iv) The Consumer Protection Act and the rules framed thereunder, itself having provided the conditions of service and having fixed the salary of the president of the district consumer forum, the same cannot be, in any manner altered by an administra-tive order.
In this view of the matter, the impugned order dated 25-1-1996, is on the face of it illegal, inoperative and null and void and must be struck down. Mr Rao also further contended that the conclusion of the High Court, applying the principle of waiver and estoppel is wholly untenable, since there is no question of waiver or estoppel against any statute and the High Court committed error in holding that the appellants knew about the condition that the pension amount would be deducted from the salary/honorarium pay-able to the president of the district consumer forum.
3. Mr A.G.Chaudhary, appearing for the State of Punjab, on the other hand contended that vol.II of the Punjab Civil Services Rules deals with the pension of an employee. In chapter VII of the aforesaid Punjab Civil Services Rules, vol.II, clause 7.18 ena-bles the authority competent to fix the pay and allowances of the post in which the pensioner is re-employed to determine whether his pension shall be held wholly or partly in abeyance. Note 3 of the aforesaid provision unequivocally stipulates that in deter-mining the pay of re-employed pensioner, the principle to be followed is that the pay must not exceed the substantive pay drawn immediately before retirement or the maximum of the scale applicable to the post in which the government employee is re-employed, whichever is less and pension which is non-effective pay, shall not ordinarily be allowed in addition. In view of the aforesaid provisions and the appointment of the retired district judges as president of the district consumer forum being re-employment, the appropriate authority was entitled to fix their salary and fixation of their salary has been done by the appro-priate authority by issuing the government order dated 25-1-1996, and therefore, the said order is within the powers conferred under the Punjab Civil Services Rules and in consonance with the principles enunciated therein. In this view of the matter, the High Court was fully justified in not striking down the aforesaid government order.
4. It is no doubt true, as contended by Mr. Rao, the learned senior counsel appearing for the appellants that if, the emolu-ments attached to a post under any Act are fixed under the Act, then by an executive order, the same cannot be altered or determined contrary to the provisions of the Act and the rules. “District forum” is defined in section 2(h) to mean a consumer disputes redressal forum established under clause (a) of section 9 of the Consumer Protection Act,1986. Section 9(a) makes it obligatory for the state government to establish a consumer disputes redressal forum to be known as the “district forum” in each district of the state by a notification. Section 10(1)(a) of the Act provides that each district forum shall consist of a person who is, or has been, or is qualified to be a district judge, who shall be its president. Sub-section (3) of section 10 provides that 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. Sub-section(2) of section 30 enables the state government by a notification to make rules for carrying out the provisions contained in sub-section(3) of section 10 along with other provisions mentioned in the said sub-section. Thus, the salary or honorarium and allowances payable to and the terms and conditions of service of members of the district forum could be prescribed by the state government by the rules framed for the purpose. In exercise of powers under sub-section (2) of section 30, the Government of Punjab, Department of Food and Supplies (Consumer Protection Branch), has made rules called the Consumer Protection (Punjab) Rules,1987. Sub-rule(1) of rule 3 thereof prescribes that the president of the district forum shall receive the salary of the district judge of a district court if ap-pointed on a whole time basis or an honorarium of Rs. 150 per day if appointed on a part-time basis and other members, if sitting on a whole-time basis, shall receive a consolidated honorarium of Rs 2000 per month and if sitting on a part-time basis, a consolidated honorarium of Rs 100 per day for the sitting. The aforesaid salary and honorarium is defrayed out of the consolidated fund of the state government, as provided in sub-rule(3) of rule 3. These rules of 1987, stood amended by the Consumer Protection (Punjab) (Amendment) Rules, 1993 by notifica-tion dated 2-8-1993. Under the amended Rules, the president of a district forum, if appointed on a whole-time basis, is entitled to pay in the grade of pay admissible to a judge of a district court. Neither in the Act nor in the rules framed thereunder, has there been any indication as to whether on being appointed as president of the district consumer forum, after superannuation as a district judge, the pension receivable is to be deducted. The pension of such superannuated district judges is governed by the Punjab Civil Service Rules, vol. 2nd rule 1.1(a) of the Punjab Civil Services (Pension) Rules vol. 2nd unequivocally stipulates that the rules in this part regulate the grant of pensions to the government employees to whom the rules in vol.1 of these rules apply. The Punjab Civil Services Rules have been issued by the governor of Punjab under the proviso to Article 309 of the Constitution. The Punjab Civil Services Rules apply to all gov-ernment employees except those who are specifically excluded from the operation of the rules by a general or special order of the competent authority. Appendix (2) to the rules contains a list of those employees who have been excluded from the opera-tion of the rules. The expression “state government employees,” has been defined to mean all persons whose conditions of service may be regulated by the rules made by the governor of Punjab under proviso to Article 309 of the Constitution. It is undisput-ed that the pension of a district judge, on his superannuation is determined in accordance with the Punjab Civil Services Rules, vol. 2nd chapter 2nd. Vol. 2nd deals with general provisions relating to grant of pensions. Rules 2.1 thereof provides that every pension shall be held to have been granted subject to the conditions contained in chapter 7th of these rules. Chapter 7th vol. 2nd of the Punjab Civil Services Rules contains rule 7.18, and the same is quoted hereinbelow:
“7.18. The authority competent to fix the pay and allowances of the post in which the pensioner is re-employed shall determine whether his pension shall be held wholly or partly in abeyance. If the pension is drawn wholly or in part, such authority shall take the fact into account in fixing the pay to be allowed to him.”
Note 3(a)(1) to the aforesaid section 7.18 is extracted hereun-der:
“Note 3.(a) In determining the pay of a re-employed pensioner, the following principles shall be observed namely-
(1) the pay must not exceed the substantive pay drawn immediately before retirement or the maximum of the scale applicable to the post in which the government employee is re-employed, whichever is less and pension which is non-effective pay, shall not ordi-narily be allowed in addition.
Provided that if the pension does not exceed Rs. 50 per month, the entire amount of pension and where it exceeds Rs. 50 per month the first Rs. 50 shall not be taken into account in fixing the pay on re-employment.”
The appointment of a district judge, after his superannuation as the president of the district consumer forum under the Consum-er Protection Act, cannot but be held to be a case of re-employ-ment of pensioner inasmuch as the said district judge is in receipt of a pension for the services rendered as a district judge in accordance with the provisions contained in the Punjab Civil Services Rules, vol. 2nd. Since rule 2.1 of chapter 2nd vol. 2nd unequivocally states that every pension shall be held to have been granted subject to the conditions contained in chapter 7th and chapter 7th contains rule 7.18 as well as note 3(a)(1), which have been extracted before, the conclusion is irresistible that the appropriate authority will have to decide the pay and allowances, which the retired district judge is entitled to receive on being appointed as the president, the district forum notwithstanding the fixation of such pay under the rules framed under the Consumer Protection Act and while fixing the same, the principle underlined in note 3(a)(1) has to be followed. This being the position, we see no infirmity with the government order dated 25-1-1996 and under the said notification the salary of re-employed district judge as president of the district consumer forum, has rightly been fixed, taking into account the pension, which they are in receipt of, as retired district judge. The contention of Mr. Rao that the salary fixed under the Act and the rules framed thereunder are being altered by an administra-tive order is of no force, in view of the legal provisions enumerated above and in fact, it is the provision of the Punjab Civil Services Rules, dealing with the salary of re-employed pensioners, which governs the field. The other contention on the basis of the judgment of this Court in D.S. Nakara case, that pension is not a bounty is also of no consequence. In the aforesaid premises, we do not find any legal infirmity with the judgment of the High Court, requiring our interference under Article 136 of the Constitution. These appeals accordingly fail and are dis-missed.
