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CASE NO.: Appeal (civil) 907  of  2001 Appeal (civil)  908      of  2001

PETITIONER: M.S. CHAWLA AND ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT:       18/04/2001

BENCH: G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

PATTANAIK,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   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 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 the District Consumer  Forum, fixed under the provisions of the  Consumer Protection  Act  and  the   rules  framed  thereunder?   The appellants  approached  the  High  Court by  filing  a  writ petition,  challenging the legality of the Government  Order dated  25th  of  January, 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,  they do not have any enforceable right  under the provisions of the Act and the Rules, as contended.

   Mr.   P.P.   Rao, the learned senior counsel,  appearing for  the  appellants,  raised the following  contentions  in assailing the impugned judgment of the High Court:

   (1) 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 past services  rendered, the  Government  is not entitled to issue an  Administrative Order  to  that effect and, therefore, the  Order  directing

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deduction  of pension is illegal.  (2) Pension being neither a bounty nor a matter of grace depending upon the sweet will of  the  employer,  as has been held by this  Court  in  the Constitution  Bench  decision  in D.S.  Nakaras  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  provision  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.   (3)  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.  (4) 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 administrative 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  payable to the President of the  District Consumer Forum.

   Mr.  A.G.  Chaudhary, appearing for the State of Punjab, on  the  other hand contended that Volume II of  the  Punjab Civil  Services Rules deal with the pension of an  employee. In  Chapter VII of the aforesaid Punjab Civil Services Rules of Volume II, Clause 7.18 enables 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 determining  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   Forums   being re-employment, the appropriate authority was entitled to fix their  salary and fixation of their salary has been done  by the  appropriate  authority by issuing the Government  Order dated  25th January, 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.

   It  is  no  doubt  true, as contended by  Mr.   Rao  the learned senior counsel, appearing for the appellants that if the  emoluments  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.  The District Forum  is  defined  in

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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 the 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 appointed on whole-time basis or an honorarium  of Rs.150/-  per day if appointed on part-time basis and  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.  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   Consumer Protection(Punjab)  Rules, 1993 by notification dated 2nd of August,  1993.  Under the amended Rules, the President of  a District  Forum,  if  appointed  on  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,  there  has 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  Services  Rules, Volume II..  Rule 1.1(a)  of  Punjab Civil  Services Rules Vol.II, unequivocally stipulates  that the Rules in this part regulate the grant of pensions to the Government  employees to whom the rules in Volume I of these rules  apply.   The  Punjab Civil Services Rules  have  been issued  by  the Governor of Punjab under proviso to  Article 309  of  the Constitution.  The Punjab Civil Services  Rules apply  to  all  Government 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 operation 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 undisputed  that  the  pension of a District Judge,  on  his superannuation  is determined in accordance with the  Punjab Civil  Services  Rules, Volume II.  Chapter II of Volume  II

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deals with general provisions relating to grant of pensions. Section  2.1  thereof provides that every pension  shall  be held  to  have  been  granted   subject  to  the  conditions contained  in  Chapter VII of these rules.  Chapter  VII  of Volume  II  of  the  Punjab Civil  Services  Rules  contains Section 7.18, and the same is quoted herein below:

   Section  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)(i)  to  aforesaid Section 7.18  is  extracted hereunder:

   Note  3(a):   In determining the pay of a re-  employed pensioner,  the  following  principles   shall  be  observed namely:-  (i)  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:   Provided  that  if the pension does  not  exceed Rs.50  p.m.,  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 Consumer Protection Act, cannot but be held to be a case of re-employment of a 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, Volume  II.   Since Section 2.1 of Chapter II of Volume  II, unequivocally  states  that every pension shall be  held  to have  been  granted subject to the conditions  contained  in Chapter  VII  and Chapter VII contains Rule 7.18 as well  as Note   3(a)(i),  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  of   the   District   Forum notwithstanding  the  fixation of such pay under  the  Rules framed  under  Consumer Protection Act and while fixing  the same,  the  principle underlined in Note 3(a)(i) has  to  be followed.  This being the position, we see no infirmity with the  Government Order dated 25th of January, 1996 and  under the  said  notification the salary of  re-employed  District Judges  as  President of the District Consumer  Forum,  have rightly  been fixed, taking into account the pension,  which they  are  in receipt of, as retired District  Judges.   The contention  of Mr.  Rao that the salary fixed under the  Act and  the  Rules  framed thereunder is being  altered  by  an administrative  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, that pension is not a bounty is also of no

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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 dismissed.

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