Back
2012 (4) SCC 578
SUPREME COURT OF INDIA
R.M. LODHA & H.L. GOKHALE, JJ.
THE ACCOUNTANT GENERAL, M.P. -Appellants
VERSUS
S.K. DUBEY & ANR. - Respondents
Civil Appeal No. 5322 of 2005
Decided on : 29-02-2012.
(1975) 2 SCC 702; (1976) 1 SCC 671; (1980) 4 SCC 62 – Referred
(b) High Court Judges (Salaries and Conditions of Service) Act, 1954 – Sections 14, 15 and 16 – Pension to High Court Judge – A High Court Judge is entitled to pensionary benefits only in terms of the Act and not otherwise – Pension as High Court Judge is paid out of Consolidated Fund of India – Emoluments and pension, if any, for service rendered as President, Consumer Commission cannot be paid out of this fund – Both pensions cannot be clubbed. (Para 20, 21)
(2003) 7 SCC 726; (1995) 6 SCC 765; (2001) 4 SCC 31 – Relied upon
(c) Consumer Protection Act, 1986 – Section 2(n) – Prescribed – Means prescribed by Rules made by State Government. (Para 26)
(d) Section 16(2) and 30(2) r/w Rule 6, Madhya Pradesh Consumer Protection Rules, 1987 – No provision for pension to President or Members of State Commission – As per section 16(2), emoluments, pecuniary benefits and conditions of service to be prescribed by State Government – In terms of Article 162, Constitution of India Executive power of the State Executive is coextensive with that of the State Legislature – Therefore executive instructions could fill in gaps not covered by rules, if not in derogation of the statutory rules – Provision of Pension to President of the Commission by Executive Instruction – Not invalid.(Para 30, 31, 34, 38)
AIR 1967 SC 1910; (1973) 3 SCC 862; (2008) 1 SCC 354; (1986) 4 SCC 667; (2003) 10 SCC 421; AIR 1961 SC 276; (1986) 4 SCC 667 – Relied upon
(e) Consumer Protection Act, 1986 – Act, 1986 – Section 31(2) – The provision is directory – Pension is payable for services rendered as President, State Commission – It cannot, however, be clubbed with pension as High Court Judge. (Para 42, 45)
(1972) 2 SCC 601; (1979) 2 SCC 196; (1966) 1 SCR 505; (1960) 2 SCR 375 – Relied upon
Per H.L. Gokhale J.
(f) Constitution of India – Article 136 – Appeal – Maintainability – Appellant Accountant General – Administrative Authority representing CAG responsible for keeping government accounts – His orders challenged in writ petition – Not agreeing with view taken by High Court – No reason why it should not be eligible to challenge High Court order. (Para 10)
(2006) 12 SCC 557 – Relied upon
(g) Consumer Protection Act, 1986 – Section 16(2) r/w rule 6, – High Court Judge can be paid pension under the Act and not otherwise – Services as High Court Judge and President State Commission cannot be clubbed for pension – Act and Rules not providing for pension – Secondly in the calculation sheet respondent not making clear as to which portion is as High Court and which is as President State Commission – Claim not admissible. (Para 18)
(2003) 7 SCC 726; AIR 1964 SC 358; AIR 1967 SC 1910; (2011) 11 SCC 702 – Relied upon
(2003) 10 SCC 421 – Distinguished
(h) Constitution of India – Article 162 r/w section 16(2), Act 1986 and rule 6, – Executive Instructions – Instructions can fill in the gaps where rules are silent – A new concept cannot be introduced in the Rules through Executive Instructions – It would be inconsistent with the Rules. (Para 21
AIR 1967 SC 1910; (1973) 3 SCC 862; (2008) 1 SCC 354 – Distinguished
(i) Consumer Protection Act, 1986 – Section 16(2) – Respondent is not entitled to pension as President, State Commission – However, the amount already received will not be refundable. (Para 26)
(2010) 14 SCC 323; 1995 Supp. (1) SCC 18 – Relied upon
Facts of the case:
The respondent after retiring as Judge of the MP High Court served as President, State Consumer Disputes Redressal Commission.
In terms of appointment as President the respondent was to be paid salary minus pension. In addition, his service period as President was also to be considered for determination of pension.
The appellant denied the pension as calculated and proposed in above terms.
The High Court allowed the petition of the respondent.
Finding of the Court:
The Judges held divergent views.
Result: Matter referred to larger Bench.
JUDGMENT
R.M. Lodha, J.-The Accountant General, Madhya Pradesh is in appeal, by special leave, aggrieved by the judgment and order dated February 8, 2005 passed by the High Court of Madhya Pradesh at Jabalpur in the writ petition filed by the respondent in that Court.
2. The respondent is a former Judge of the Madhya Pradesh High Court. He was appointed on March 2, 1998. He rendered service of more than 10 years and retired on August 13, 1998.
3. By a notification issued on September 18, 1998, the respondent was appointed as the President, State Consumer Disputes Redressal Commission, Madhya Pradesh (for short, `State Commission') established under clause (b) of Section 9 of the Consumer Protection Act, 1986 (for short, `1986 Act'). The respondent assumed office on September 21, 1998 and continued to hold that office until the end of the working hours on August 12, 2003. When he demitted the office of the President, State Commission, he had rendered service of 4 years 10 months and 22 days as President, State Commission.
4. The pension for the period of service rendered by the respondent as Judge of the High Court has been determined under the First Schedule of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short, `1954 Act'). That is not the controversy here. The respondent's entitlement to pension for his service rendered as President, State Commission under the office order dated April 5, 2002 issued by the State Government is in issue.
5. By order dated June 3, 1999, the Department of Food, Civil Supplies and Consumer Protection, Government of Madhya Pradesh addressed to the President, State Commission prescribed the terms and conditions of the appointment of the respondent as President, State Commission. Inter alia, it provided that during the currency of his appointment, the respondent shall be paid salary as payable to a Judge of the High Court minus pension payable.
6. On April 5, 2002, the Department of Food, Civil Supplies and Consumer Protection, Government of Madhya Pradesh issued another order for counting the period of service as President, State Commission for the purposes of payability and determination of the pension. It provided as follows:
"In continuation of Departmental Order of even No. F.5-24/96/2 dated 03-06-99 the State Government now accords sanction for counting the services of the post of President Madhya Pradesh State Consumer Dispute Redressal Commission, Bhopal for pension provided that the pension on this post and the pension received earlier from the State Government or Central Government the two pensions combined together shall not exceed the maximum of the pension prescribed for judges of honourable High Court. 2. This sanction has been endorsed to the Accountant General M.P. Gwalior vide Finance Department endorsement No. 553/853/2002/C Char dated 5.4.2002. By order and in the name of Governor of Madhya Pradesh."
7. It is the case of the respondent that in accordance with the above orders of the State Government, the necessary papers for payment of pension and gratuity to the respondent were prepared in the prescribed form and submitted to the office of the Accountant General, Madhya Pradesh (appellant) on August 29, 2003 by the Registrar of the State Commission. The Department of Food, Civil Supplies and Consumer Protection, Government of Madhya Pradesh also recommended and forwarded the pension case of the respondent to the appellant.
8. The appellant, however, raised the objection that pension and gratuity were not payable to the respondent as proposed and recommended. The correspondence ensued between the appellant and the Department of Food, Civil Supplies and Consumer Protection, Government of Madhya Pradesh. The appellant reiterated its position that pension and gratuity were not payable to the respondent for the period he served as the President, State Commission.
9. The above position taken by the appellant compelled the respondent to file a writ petit
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
