Kerala High Court
State Of Kerala vs Govindankutty on 9 July, 1999
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. In this appeal, the State challenges the judgment passed in O.P. No. 3155/94 allowing the Original Petition filed by the present respondent and declaring that he is eligible to get the benefit of the salary of a Judge of the District Court as prescribed under Rule 3(1) of the Consumer Protection Rules (Kerala) 1987 and also directing disbursement of arrears of salary from the date of his appointment till the date of judgment, and also till his retirement from the particular post on 16.12.96.
2. The respondent herein retired as a District Judge born on the Kerala Higher Judicial Service on 31.3.1987. Therefore, he was appointed as President of the Consumer Disputes Redressal Forum, Thrissur as per Government Order dated 8.11.91. The question of fixing the salary due to the respondent was considered by the Government in the light of Rule 100 of Part III K.S.R. which relates to re-employment of pensioners and Ext. P1 order issued on 5.2.92. It was declared that he would be treated as on re-employment on whole time basis and regulated as per the pay fixation norms contained in G.O. (MS) 454/88/Fin., dated 29.6.1988 as amended from time to time.
3. Ext. P1 order aforementioned was challenged by the respondent contending that his appointment is under the Consumer Protection Act and the Rules framed thereunder and that the provisions of Rule 100 Part III K.S.R. cannot have overriding effect. He, therefore, contended that he is entitled to get the salary due for the post independent of the pension that he has earned for his services under the Kerala Government as a Judicial Officer. The said contention of the respondent did not find favour with the Government and the respondent, therefore, sought appropriate writ or other orders from this Court quashing Ext. P1 and granting a declaration with regard to his entitlement as above.
4. The learned Single Judge who went into the contentions raised by both sides, accepted the respondent's contention that his appointment was not governed by the provisions in Part III K.S.R. relating to re-employment; that the statutory provisions in Section 10(3) of the Consumer Protection Act cannot be subject to executive orders like Ext. P1 and that the Government stand denying the full salary as applicable to District Judges to the respondent was unjustified.
5. The aforesaid decision, which is also reported in 1996(2) KLT 1007, is under challenge herein. It is the contention of the State that the respondent cannot be differentiated from other pensioners and that he is also governed by the provisions in Rule 100 Part III K.S.R. It is pointed out that similar retired officers who have accepted the appointment of Judge of Family Courts are getting only the salary less pension as per Rule 100 Part III K.S.R.
6. During hearing, the learned Counsel for the respondent took us through certain Government Orders issued subsequent to the filing of the Original Petition including G.O. (P) 1088/98 Fin. dated 23.3.98, which is produced as Ext. A5 alongwith C.M.P. 4073/1998 wherein re-employed pensioners like the present respondent were declared eligible for pay and all other relevant allowances due in the re-employed posts besides all pensionary benefits including D.R. on pension to which they are entitled in full but only with effect from 1.1.96. The petitioner will not be entitled to the full benefits allowed under the said Government Order because after the coming into effect of the Government Order, he was in service only for a period of about 12 months.
7. The question that arises for consideration in this case is whether the appointment that the respondent held till 16.12.96 as President of the Consumer Disputes Redressal Forum entitled him to get the pay and allowances as applicable to a District Judge or whether the pensionary benefits that he could draw for his prior services as a District Judge should be deducted from the emoluments of the post, as it was a post-retirement appointment.
8. The Consumer Protection Act is a Central Act, Section 10 of the Act mandates that the President of the District Forum shall be "a person who is, or has been, or is qualified to be a District Judge." By virtue of the powers under Section 30(2) of the said Act, the Kerala Government framed the Consumer Protection (Kerala) Rules 1987. Rule 3 of the said rules provides as follows:
"3( 1) The President of the District Forum shall receive the salary of the Judge of a District Court if appointed on whole time basis or an hononarium of Rs. 150 per day for the sitting if appointed on part time basis."
9. The said rule was substituted by Rule 9C of 1998 Rules (SRO 566/98) as follows: but that was effective only from 5.6.1998 and as such as inapplicable to the respondent herein.
"9. Salary, honorarium and other allowances and terms and conditions of the President and members of the District Forum (1) The President of the District Forum shall be entitled to salary and allowance at the following rates, namely:--
(a) ................
(b) ................
(c) if he is retired District Judge, appointed on full time basis.
Minimum of the pay and allowances in the scale of pay of the District Judge, less the amount of pension including dearness relief to which he is entitled to or the salary and allowances prescribed under Rule 100 of Part III of the Kerala Service Rules or an honorarium of Rs, 7,500/- per month, whichever is higher."
10. It is an undisputed fact that the respondent's appointment was on full time basis and that oo after retirement. Under Rule 3(1) quoted in para 8 above, he should therefore be entitled to the salary of the Judge of a District Court i.e. the basis pay as applicable to the post of a District Judge plus allowances attached thereto.
11. Since the Consumer Protection Act is aCentral enactment and in view of the specific provisions quoted above, the general rules relating to re-employment of pensioners contained in Rule 100 Part III K.S.R. cannot have any overriding effect vis-a-vis that in the Consumer Protection Act and in the Rules framed thereunder.
12. It may be that the Judges of the Family Court are getting a lesser pay; but it is not shown that the terms and conditions provided for appointment of Judges of the Family Court are the same as that prescribed in the Consumer Protection Rules. During hearing, we were taken through Rule 3 of the Family Court (Kerala) Additional Rules 1990 and we find that the provisions are differently worded therein. Hence, merely because different pay structure is applicable to the Judges of the Family Court, the present respondent can not be denied the benefits to which he is legitimately entitled under the Consumer Protection Act and the Rules framed therein.
13. The stand of the Government in Ext. P1 Government Order dated 5.2.92 is that his entitlement to pay and allowances would be governed by G.O. (MS) No. 454/98/Fin., dated 29.6.88. There was no such mention in the appointment order issued to the respondent. By issuing an executive order like Ext. P1, the statutory rule contained in Rule 3 quoted above cannot be modified to the detriment of the occupant of the post. The learned Single Judge was, therefore, right in his find that Ext. P1 executive order cannot abridge or amend the service conditions of the respondent fixed under Rule 3 of the Consumer Protection (Kerala) Rules 1998.
14. Even on first principles the stand of the Government cannot be accepted as correct. Nakara v. Union of India, AIR 1988 SC 130, is a decision which laid down the principle that pension is not a bounty or a gratuitous payment and that it is a vested right granted as a reward for the work rendered for his past service under the employer. The respondent's right to get his pension and allowances due thereunder, therefore, is a statutory right and the remuneration for his post-retirement work in the Consumer Redressal Forum has to be separate and independent of what is due to him by way of pension. In fact, this position was accepted by the present appellant itself while passing G.O. (P) 1088/98/Fin, dated 23.3.98 which is produced as additional document Ext. A5 before this Court during the pendency of the Appeal. However, that order has been given effect to only from 1.1.96. The petitioner has filed the present O.P. even as early as on 3rd March, 1994 and we find absolutely no jurisdiction to deny the aforesaid benefit for his entire period of service as President of the Consumer Disputes Redressal Forum. In this view of the matter, we do not find any reason to interfere with the conclusion arrived at by the learned Single Judge. The appeal is found to be devoid of merit and it is accordingly dismissed. The entire arrears due to the respondent in consequence of implementation of the judgment in the case will be released within a period of three months from this date, failing which it will attract interest at 12% per annum with effect from the date of expiry of three months from this date.