Punjab-Haryana High Court
U.B.Khanduja vs State Of Haryana And Others on 21 December, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
Civil Writ Petition No.449 of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.449 of 2005
Date of decision: December 21, 2013
U.B.Khanduja ....Petitioner
Versus
State of Haryana and others ....Respondents
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. R.K. Gupta, Advocate, for the petitioner
Ms. Shubra Singh, Deputy Advocate General, Haryana
Fateh Deep Singh, J.
Through this writ petition for certiorari, the petitioner has challenged orders passed by the respondents dated 31.03.2004 Annexure P/10, whereby the pay and allowance payable to the petitioner has been re- fixed after reducing the amount of pension and pension equivalent to gratuity.
Shorn of unnecessary details, the case of the petitioner is that he was appointed as Sub Judge on 12.05.1977 and was promoted to Superior Judicial Service on 06.05.1994. It has been averred that he was supposed to retire on attaining 60 years of age on 28.02.1998. It is contended that the respondents in order to fill post of Presidents of the District Consumer Forums in the State of Haryana had sought applications and after adopting Kumar Vimal due process of law he was issued letter dated 18.1.1995 (Annexure P/1) 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 2 holding out that the petitioner's appointment was under the provisions of the Consumer Protection Act, 1986 (in short, the Act) and the Rules framed there under. The petitioner joined his duties on 08.05.1995 and continued to discharge his duties till 7.5.2000.
It is the case of the petitioner that the pre-revised pay scale of Rs.5900-6700 total around Rs.14,000/-, (the super time selection grade of District & Sessions Judges) was granted to the Presidents appointed vide letter dated 18.11.1997 (Annexure P/4) from amongst the members of the bar. The petitioner made a representation dated 27.05.1998 (Annexure P/5) for allowing the petitioner to draw pay in this grade from the date of assuming charge as the State has treated the post of President of Consumer Forum as equivalent to the super time selection grade of the Superior Judicial Service. Such representation was accepted and composite sanction granting regular pay scale of Rs.5900-6700 with effect from 01.11.1997 was made to all the Presidents of the District Forums in the State of Haryana by way of Annexure P/6 dated 10.11.1999. It is the claim of the petitioner that he has been drawing these emoluments on the basis of this order till completion of his statutory tenure of 5 years on 07.05.2000.
It is alleged that an order dated 01.10.2001 Annexure P/7 was received by the petitioner whereby the previous orders of pay fixation were amended for the reason that the retired/superannuated judicial officers will be entitled to last pay drawn excluding deputation allowance minus pension and pension equivalent of gratuity and no dearness allowance or other allowance on pension would be admissible. Since the petitioner had attained the age of superannuation on 28.02.1998, his emoluments stood changed retrospectively with effect from 01.03.1998 to 07.05.2000. As a result, the petitioner will be entitled to last pay drawn excluding deputation allowance minus pension and Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 3 pension equivalent of gratuity and no dearness allowance or other allowance on pension would be admissible to him. By another quirk of fate respondent No.1 issued another order substituting fresh conditions by way of Annexure P7/A relating to pre-retirement period with effect from 01.11.1997 to 28.02.1998 subscribing that the petitioner shall draw pay as admissible in the pay scale of his parent department plus Rs.100/- as deputation allowance and therefore, was not entitled to the emoluments in the pay scale of Rs.5900- 6700. The representation submitted by the petitioner against such action remained unsuccessful as per the order communicated on 31.03.2004 (Annexure P-10). Aggrieved over it has led to the filing of the instant writ petition.
The respondents filed joint written statement and took the preliminary objections that at the time of appointment of the petitioner, while on deputation from Hon'ble Punjab and Haryana High Court, with the State Government for working as President, District Forum, Ambala could draw only that much amount of salary which he would draw had he continued to work in his parent department and is governed by the Civil Service Rules Volume-I. It is the stand of the respondents that for the period from 01.11.1997 to 28.02.1998, had the petitioner been allowed higher scale of Rs.18750-22850 (Revised Scale) his seniors in the parent department would have been made to draw lesser salary than the petitioner which was illegitimate. It has been emphatically reiterated that the petitioner could get salary to the extent which is determined by his parent department and the respondents cannot grant higher or lower pay scale to the petitioner than to which he was entitled in his parent department. The respondents have staked claim that since the petitioner was on deputation, therefore, his emoluments were governed by the Rules of the parent cadre. It is contended that the Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 4 petitioner having been re-employed, the pay is to be fixed by taking into consideration the pension and the pension equivalent to the other forms of retiral benefits such as gratuity relying upon Rule 7.18 of the Punjab Civil Services Rules Volume II. Each and every averment contrary to this was denied by the respondents and claimed that the emoluments so given to the petitioner were in consonance with the law and the Rules and there was no illegality or malice in it.
Heard. Undisputedly what stands reflected from the stand of the two sides in the pleadings as well as the arguments that 14 vacancies of the Presidents of the District Consumer Forums were filled up from two sources. 3 posts were filled from the Members of the Haryana Superior Judicial Services and 11 posts from amongst the Advocates who fulfilled the requisite prescribed qualifications. The appointment order of His Excellency the Governor of Haryana dated 10.11.1999 is contained in Annexure P/6. The order specifies that regular pay scale of Rs.5900-6700 with effect from 01.11.1997 to all the Presidents of the 14 District Consumer Fora is being accorded. In the light of the submissions of the petitioner's counsel, the short point that arises before this Court is whether the order of pay fixation can be changed to the disadvantage of the petitioner vide Annexures P/10, P/12, P/17 and P/20 in view of Rule 3(6) of the Haryana Consumer Protection Rules, 1988 (in short 'the Rules') and on the principal of parity of pay amongst the officers discharging similar duties.
Sub-section (3) of Section 10 of the Consumer Protection Act, 1986 contemplates that 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. The relevant Section reads as under:
Kumar Vimal2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 5
"10. xxx xxx xxx (3) 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."
In exercise of the powers conferred by sub-section (2) of Section 30 of the Consumer Protection Act, 1986, the State of Haryana promulgated the Haryana Consumer Protection Rules, 1988 (for short 'the 1988 Rules'). Rule 3(1) of the said Rules provides that the President of the District Forum would receive the salary of the Judge of the District Court if appointed on whole time basis, whereas sub Rule (6) contemplates that the terms and conditions of the service of the President and the Members of the District Forum shall not be varied to their disadvantage during their tenure of office. The relevant Rule reads as under:
"3. Salaries and allowances and terms and conditions of the President and Members of the District Forum: Section 10(3) - (1) The President of the District Forum shall receive the salary of the Judge of the District Court if appointed on whole time basis or an honorarium of Rs.150 per day if appointed on part time basis. 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, and if a sitting District Judge is appointed on part time basis, he shall receive a consolidated honorarium of Rs.100 per day for the sitting.
xxx xxx xxx
(6) The terms and conditions of the service of the President and the
Members of the District Forum shall not be varied to their disadvantage during their tenure of office.
xxx xxx xxx"
Though such Rules have been repealed with the publication of the Haryana Consumer Protection Rules, 2004 (for short 'the 2004 Rules') on 17.03.2004, but since the period in question relates to the period 1995-2000, it is 1998 Rules which are relevant.
The petitioner was appointed as the President of the District Kumar Vimal Consumer Redressal Forum, Ambala vide order dated 18.01.1995 Annexure 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 6 P-1, but the terms and conditions were to be finalized in consultation with this Court. Such terms and conditions were finalized on 18.10.1995 (Annexure P-
2), which were to the effect that the petitioner will be paid salary and allowances as are admissible to a Judge of District Court of Haryana according to their entitlement in that scale of pay up to the time of their superannuation. It also contemplated that after superannuation, the President will be entitled to last pay drawn excluding the deputation allowance minus their pension. The relevant clause reads as under:
"(iii) They will paid salary and allwances as are admissible to a Judge of District Court of Haryana according to their entitlement in that scale of pay upto the time of their superannuation. They will also be paid in addition Rs.100/- per month as deputation allowance. After superannuation they will be entitled to last pay drawn excluding the deputation allowance minus their pension."
However, the conditions of appointment were changed to the advantage of the petitioner vide order dated 10.11.1999 granting pay scale of Rs.5900-6700. It is after the completion of the tenure on 01.10.2001, the terms and conditions of appointment have been varied to the disadvantage of the petitioner vide office orders Annexures P-7 and P-7/A. In the light of the statutory provisions, as reproduced above, the claim of the petitioner for the following three periods is required to be examined:
(i) Period from 08.05.1995 till 30.10.1997 i.e. before, the terms and conditions of salary were changed;
(ii) Period from 01.11.1997 to 28.02.1998 i.e. the period when the emoluments payable to the petitioner was fixed in the pay scale of Rs.5900-6700 at par with super time scale grade of the superior judicial service allowed to 11 other Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 7 Presidents appointed from amongst the Members of the bar; and
(iii) Period from 01.03.1998 till the age of completion of the tenure on 07.05.2000 i.e. the post retiral period of the petitioner.
As per original terms and conditions fixed vide Annexure P-2, the petitioner was entitled to scale of pay to which he was entitled up to the date of superannuation. In terms of such conditions of appointment, the petitioner is entitled to pay scale of Rs.3200-5600 (pre revised) as in his parent cadre of Haryana Superior Judicial Service. There is no dispute in respect of first period. It was on 10.11.1999, the petitioner was placed in the pay scale of Rs.5900-6700 with effect from 1.11.1997, the pay scale in which 11 other Members of the bar, who were appointed as Presidents, were placed. Since the pay fixation was advantageous to the petitioner, it is not hit by the Rules, reproduced above. Such pay fixation was to maintain parity amongst the Presidents of the District Forums irrespective of source of their appointment. Such fixation was keeping in view the identity of pay to the officers discharging similar functions and is valid on the touchstone of Article 14 of the Constitution of India. Such pay could not be reduced vide officer orders dated 01.10.2001 (Annexures P-7 & P-7/A). Thus, the petitioner would be entitled to pay scale of Rs.5900-6700 (pre-revised), revised scale of Rs.18750-22850 from 01.11.1997 till 28.02.1998 i.e. the date of his superannuation. Sub-section (3) of Section 10 empowers the State Government to prescribe the salary or honorarium and other allowances payable to the Members of the District Forum. Even in the absence of any condition in the 1988 Rules, the State Government has power to issue executive orders or administrative instructions with regard to pay and Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 8 allowances when the Rules are silent on a particular aspect. Sections 30(2) or 31 of the Act does not abridge the power of the State Government to issue executive orders or administrative instructions in respect of service conditions of the Members of the District Forum.
In respect of post-superannuation period, learned counsel for the State submits that in terms of Rule 7.18 of the Punjab Civil Services Rules, the pension and pension equivalent to gratuity, dearness relief or any other allowances on pension is not admissible to the petitioner. The relevant Rule reads as under:
"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.
xxx xxx xxx
Note 4. (a) In determining the pay of a re-employed pensioner the
following principles shall be observed, namely:
(i) The initial pay on re-employment shall be fixed at the minimum
stage of the scale of pay prescribed for the post in which an individual is re-employed.
(ii) In addition to (i) above, the Government employee may be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefit e.g. gratuity, commuted value of pension etc. provided the total amount of initial pay as at (i) plus gross amount of pension and/or the pension equivalent of other forms of retirement benefits does not exceed the pay he drew before his retirement (pre-retirement pay) or (Rs.24,500/-) whichever is less.
(iii) In all cases, where either of these limits is exceeded, the pension and other retirement benefits may be paid in full and necessary adjustment made in pay so as to ensure that the total of pay and pensionary benefits is within the prescribed limits.
(iv) Once the initial pay of a re-employed pensioner has been fixed in the manner indicated above he may be allowed to draw normal increments in the time scale of the post to which he is appointed, provided that the pay and gross pension/pension equivalent of other Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 9 retirement benefits taken together do not at any time exceed Rs.24,500/- per month.
(v) In case where the minimum pay of the post in which the Government employee is re-employed is more than the last pay drawn, the Government employee concerned may be allowed the minimum of the prescribed scale of post, less pension and pension equivalent of other retirement benefits.
(vi) Where after the pay is fixed at the minimum, it is reduced below minimum as a result of adjustment as at (iii) increase in pay may be allowed after each year of service at the rates of increment admissible, as the pay had been fixed at the minimum.
(b) In fixing the pay in accordance with the above principle, the "pension equivalent" of the death-cum-retirement gratuity should always be taken into account, in cases of retired Government employees who before re-
employment were governed by the New Pension Rules or had opted for the modified pension rules vide alternative(c) under rule 1.2-B. The pension equivalent of the death-cum-retirement gratuity will be determined on the basis of the commutation table applicable to the Government employee at the time of retirement."
Learned counsel for the petitioner relies upon an order passed by the learned Single Bench in CWP No.19526 of 2006 titled "P.C.Gupta Vs. The State of Haryana & others" decided on 11.08.2009, wherein it was held that appointment as a Member of the District Forum is not a case of re- employment and Rule 7.18 would not come into play. Learned counsel for the petitioner also relies upon M.S.Chawla & others Vs. State of Punjab & another (2001) 5 SCC 358 to contend that emoluments attached to a post under the Act are fixed under the Act then by executive orders, the same cannot be altered.
The initial term of appointment of the petitioner was that after superannuation, he would entitled to last pay drawn excluding the deputation allowance minus their pension, such term is in tune with Rule 7.18 of the Punjab Civil Services Rules Volume - II. But while revising the terms and conditions of appointment on 10.11.1999, no such condition was imposed. In Kumar Vimal terms of Rule 7.18, the authority competent to fix the pay and allowances is to 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 10 determine whether the pension shall be held wholly or partly in abeyance. In the absence of any decision in the communication dated 10.11.1999, the pension or the pension equivalent to gratuity cannot be deducted as has been done vide Annexures P-7 & P-7/A apart from the fact that the terms and conditions of appointment cannot be altered to the disadvantage of the petitioner.
In P.C.Gupta's case (supra), the petitioner was not paid any pension after his superannuation, but in the present case, it appears that the petitioner has been paid pension. Since the terms and conditions of the petitioner have been fixed in exercise of the statutory powers and such terms cannot be altered to the disadvantage of the petitioner, therefore, the order of deducting pension or the pension equivalent to gratuity cannot be sustained on the strength of Rule 7.18. The power exercised in terms of the Statute while fixing terms and conditions of the petitioner will prevail over the general Rules contained in Rule 7.18 of the Punjab Civil Services Rules.
Thus, the petitioner is entitled to pay and allowances in the pay scale of Rs.5900-6700 (pre-revised)/ Rs.18750-22850 (revised) even for the post retiral period i.e. from 01.03.1998 till the age of completion of the tenure on 07.05.2000.
As per the facts on record, it appears that the petitioner has been paid pension and allowances thereon. In the absence of any other terms and conditions, the amount of pension has to be accounted for while determining the total amount payable to the petitioner in the pay scale of Rs.18750-22850. Thus, the pension would be deemed to be in abeyance from 01.03.1998 till the date of relinquishment of the office by the petitioner. The pension would be payable w.e.f. 08.05.2000.
Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh Civil Writ Petition No.449 of 2005 11
Consequently, we allow the present writ petition and quash the orders Annexures P-7, P-7/A and P-10 and direct the respondents to grant pay and allowances as ordered to be paid to the petitioner vide communication dated 10.11.1999 for the period from 01.11.1997 till the age of superannuation. The pension of the petitioner will be kept in abeyance for the period from 01.03.1998 till 07.05.2000. Resultantly, the petitioner would be entitled to pension from 08.05.2000. While calculating the amount payable to the petitioner, the respondents shall be entitled to adjust the amount of pension and allowances paid to the petitioner towards pension etc. from 01.03.1998 till 07.05.2000.
The respondents are directed to comply with the directions within a period of three months from the date of receipt of copy of the order. In the event of the failure of the respondents to pay the arrears of salary within three months, the respondents shall be liable to pay the same with interest at the rate of 9% per annum on the amount of arrears.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
December 21, 2013 Judge
'tiwana'/Vimal
Kumar Vimal
2013.12.21 17:14
I attest to the accuracy and
integrity of this document
Chandigarh