IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1959/2009 Reserved on : 19.10.2009 Decided on:21.12. 2009 _____________________________________________ Justice Arun Kumar Goel (Retd.) …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ajay Mohan Goel, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that respondent No.2 issued notification No. FDS-B(2)-1/2005 dated 12.7.2005 appointing the petitioner as President of Himachal Pradesh State Consumer Disputes Redressal Commission. He assumed the office of the President on 5.10.2005. He made a detailed representation on 25.10.2007 to his Excellency the Governor of Himachal Pradesh against the terms and conditions of his appointment being contrary to rules as his pension was being 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 deducted without any authority of law. The representations made by the petitioner from time to time were rejected on 30.3.2009 and the same was conveyed to the petitioner on 9.4.2009. Petitioner has assailed the issuance of Annexures P-9 and P-10 dated 9.4.2009 and 30.3.2009, respectively and has also sought the issuance of writ of mandamus to amend the terms and conditions enumerated in the notification dated 12.7.2005 by bringing them in consonance with amended rule 13 of the Himachal Pradesh Consumer Protection Rules, 1988. He has also prayed for the issuance of directions to the respondents not to deduct the pension from his salary, allowances and perquisite and also to pay the petitioner illegally deducted pension from 5.10.2005 with interest @ 18% per annum. Mr. Ajay Mohan Goel has vehemently argued that the issuance of Annexure-10 dated 30.3.2009 is against the basic spirit of rule 13 of the Himachal Pradesh Consumer Protection Rules, 1988 amended on 13.10.2003. He has argued that the action of the respondents to deduct the pension of the petitioner is illegal and arbitrary thus violative of Article 14 of the Constitution of India. He then contended that on the basis of the plain and literal construction of rule 13 amended on 13.10.2003, the pension of his client could not be deducted. He further contended that though the opinion of the Law Department may not be final, but it has great persuasive value and the same could not be over looked by the Finance Department. He lastly contended that respondent No.1 has not 3 applied its independent mind and has only followed the decision of respondent No.2. Mr. R. K. Sharma, learned Senior Additional Advocate General has supported the issuance of Annexure P-10 dated 30.3.2009. He then contended that there is no illegality in the action of the respondents whereby petitioner’s pension has been deducted by relying upon Annexures R-1 and R-2. He further contended that rule 13 of the Himachal Pradesh Consumer Protection Rules, 1988 has been amended to bring it in conformity with rule 11 of the Consumer Protection Rules, 1987. He lastly contended that the opinion of the Law Department is advisory in nature and not binding upon the State Government. I have heard the rival contentions of the parties and have gone through the pleadings carefully. In order to decide the matter effectively, it will be necessary to take note of salient features of the Consumer Protection Act, 1986 and the Rules framed thereunder as well as the Himachal Pradesh Consumer Protect Rules, 1988 as amended from time to time. The dictionary clause i.e. section 2 (jj) of the Consumer Protection Act, 1986 defines the expression “Member” as under: “Member” includes the President and a member of the National commission or a State Commission or a District Forum, as the case may be.” The composition of State Commission is stipulated under section 16 of the Act, which reads thus: “16. Composition of the State Commission.- (1) Each State Commission shall consist of 4 (a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President: [Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court. [(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:— (i) be not less than thirty-five years of age; (ii) possess a bachelor's degree from a recognised university; and (iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that not more than fifty per cent, of the members shall be from amongst persons having a judicial background. Explanation: For the purposes of this clause, the expression "persons having judicial background" shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provided Further that a person shall be disqualified for appointment as a member if he— (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or (b) is an undischarged insolvent; or 5 (c) is of unsound mind and stands so declared by a competent court; or (d) has been removed or dismissed from the service of the Government of a body corporate owned or controlled by the Government; or (e) has, in the opinion of the State Government, such financial or other interest, as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such other disqualifications as may be prescribed by the State Government.] [(1A) Every appointment under sub-section (1), shall be made by the State Government on the recommendation of a Selection Committee consisting of he following members, namely:— (i) President of the State Commission Chairman; (ii) Secretary of the Law Department of the State Member; (iii) Secretary incharge of the Department dealing with Consumer Affairs in the State Member: Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman. (1B) (i) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof. (ii) A Bench may be constituted by the President with one or more members as the President may deem fit. (iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to 6 the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.] (2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government: [Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission,] [(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier: Provided that a member shall be eligible for re- appointment for another term of five years or up to the age of sixty-seven years, whichever is earlier, subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided Further that a person appointed as a President of the State Commission shall also be 7 eligible for re-appointment in the manner provided in clause (a) of sub-section (1) of this section: Provided Also that a member may resign his office in writing under this hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appoint under the provisions of sub- section (1A) in place of the person who has resigned. (4) Notwithstanding anything contained in sub- section (3), a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.] It is clear from the language employed in sub section (2) of section 16 of the Act that the salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission shall be such as may be prescribed by the State Government. The Central Government has framed the Rules under sub-section (1) of section 30 of the Act. Rule 11 dealing with the salary, honorarium and other allowances of the President and members of the National Commissioner reads thus: “11. Salaries, honorarium and other allowances of the President and members of the National Commission. [(1) (1) The President of the National Commission shall be entitled to salary, allowances and other 8 perquisites as are available to a sitting Judge of the Supreme Court. (1-A) The other members of the National Commission appointed on whole-time basis shall be entitled to the following honorarium and other allowances with effect from the 1st day of April, 2006, namely:- (a) the members shall be paid twenty-three thousand rupees per month by way of honorarium: Provided that the members, who are retired Judges of the High Courts or retired Secretaries to the Government of India shall have the option to either receive consolidated honorarium of twenty-three thousand rupees per month or receive remuneration of last pay drawn less pension; (b) a woman who has not held an office of profit earlier, on appointment as a member shall be entitled to a pay in the scale of Rs 24050-26000 per month along with other benefits; (c) the members shall be provided with Government accommodation or receive house rent allowance of eight thousand rupees per month in lieu thereof; (d) the members shall be paid conveyance allowance at the rate of ten thousand rupees per month, if no chauffeur driven government vehicle is provided in which event one hundred fifty litres of petrol shall be supplied or the price therefor shall be paid; (e) the members shall be entitled to one thousand free calls for the telephone installed at their residence, with STD and ISD facilities; and (f) the members shall be entitled to fifteen days casual leave in a year.] (2) [The members] shall be entitled to travelling and daily allowances on official tours at the same rates 9 as are admissible to Group 'A' Officer of the Central Government. [(2A) ******] (3) The honorarium or the salary, as the case may be, and other allowances shall be defrayed out of the Consolidated Fund of India.” The State Government has also framed the Rules under sub-section (2) of section 30 called “the Himachal Pradesh Consumer Protection Rules, 1988”. Part-III of these rules deals with the State Commission. Rule 13 thereof reads thus: “13. Salary, honorarium and other allowances of the President and members of the State Commission. – (1) Where the President of the State Commission is a sitting Judge of the High Court, he shall enjoy all the benefits which he should have enjoyed as sitting Judge of the High Court. Where the President is not a sitting Judge of the High Court, he shall receive a consolidated honorarium of Rs. 7,000/- per month if appointed on whole-time basis or last pay drawn by him minus pension granted to him or an honorarium of Rs. 300/- per day if appointed on part-time basis. Other members, if appointed on whole time basis shall receive a consolidated honorarium of Rs. 1,500/- per month or if appointed on part-time basis a consolidated honorarium of Rs. 250/- per day for the sitting. Provided that a member shall be eligible to any pension granted to him by the Government or any authority but honorarium plus pension shall not exceed the last pay drawn. 10 (2) The President and the members shall also be entitled to semi-furnished accommodation. (3) The President and the members shall be entitled to traveling and daily allowance on official tours at the same rates as are admissible to the higher Grade-I Officer of the State Government. (40 The honorarium or the salary, as the case may be, and other allowances shall be defrayed out of the Consolidated Fund of the State Government.” The detailed procedure required to be gone into before the amendment of the Rules was undertaken by the State Government. The Administrative Department with a view to obtain concurrence of Finance Department had observed as under: “The circumstances which necessitated the proposed amendment in the rules ibid have been explained at Ns/75-77. Before the matter is placed before the CMM F.D. may be requested to concur in the proposal at earliest as the matter relates to the compliance of the orders of the Hon’ble High Court, H.P.” The Administrative Department supplied the requisite information and ultimately it was observed as under by the Finance Department: “Finance (Regulation) Department: N/87:- Examined. Finance Department concurs in the proposal of A.D.” Thereafter the matter was examined in the Law Department and it came up for consideration before the Cabinet in 11 its meeting held on 26.9.2003. The amendment was notified in the official gazette on 13.10.2003, which reads thus: “No.FDS-B(3)-2-Loose-1.- In exercise of the powers conferred by sub-section (2) of Section 30 of the Consumer Protection Act, 1986 (68 of 1986), the Governor, Himachal Pradesh is pleased to make the following rules further to amend the Himachal Pradesh Consumer Protection Rules, 1988, notified vide this Government Notification No. FDS-A(3)-4/82- III, dated the 20th April, 1988 and published in Rajpatra, Himachal Pradesh (Edtra-ordinary) dated 14th May, 1988, namely:- 1. Short title and commencement-(1) These rules may be called the Himachal Pradesh Consumer Protection (5th Amendment) Rules, 2003. (2). They shall come into force from the date of publication in Rajpatra, Himachal Pradesh. 2. Amendment of rule 13.- In rule 13 of the Himachal Pradesh Consumer Protection Rules, 1988, for sub- rule (1), the following shall be substituted, namely:- “(1) The President of the State Commission shall be entitled to salary, allowances and other perquisites as are available to a sitting Judge of the High Court and other members, if appointed on whole time basis shall receive a consolidated honorarium of Rs.1500/- per month or if appointed on Part time basis a consolidate honorarium of Rs. 600/- per day for sitting shall be paid: Provided that a member shall be eligible to any pension granted him by the Government or any authority but honorarium plus pension shall not exceed the last pay drawn by him.” 12 It is in this backdrop of legal framework, the Court has to deal with the facts enumerated in the pleadings. The notification appointing the petitioner was issued on 12.7.2005. The terms and conditions of the notification read thus: “Mr. Justice Arun Kumar Goel (Judge of High Court) shall be entitled to salary, allowances and other perquisites as were available to him as Judge of High Court (Last pay drawn minus pension). He shall also be entitled to the increase in Dearness allowance on account of revision from time to time subject to the condition that no I.R. and relief on pension shall be payable during the currency of tenure of his appointment as President of State Commission after his retirement as sitting Judge of High Court. Mr. Justice Arun Kumar Goel shall hold office of the President, State Commission for a term of 5 years or upto the age of 67 years, which ever is earlier and shall not be eligible for re- appointment.” He assumed the office of the President of the State Commission on 5.10.2005. He was getting pension of Rs.13,940/- and after commutation it was reduced to Rs. 6,970/-. He made a detailed representation to his Excellency the Governor of Himachal Pradesh on 25.10.2007 relying primarily on the amended rule 13 the Himachal Pradesh Consumer Protection Rules, 1988, notified on 13.10.2003. The main thrust of the petitioner in the representation was that he was entitled to salary, allowances and perquisite as are available to the sitting Judge of the High Court without deducting the pension payable to him for services he 13 has rendered as a Judge of the High Court. He sent communication/reminder on 29.2.2008 for early decision of his representation. Respondent No.1 referred the matter to the Finance Department on 10.7.2008 in the following terms: “Kindly send to F.D. for consideration as it involves financial implication. Justice Goel has a short point. His terms & conditions of appointment cannot be contrary to Consumer Protection Rules. He was appointed in July 2005. The state Govt. had amended Rule 13(1) in October 2003 wherein there was no intention of deduction of pension from salary for the President of the Commission. Therefore, he has requested for correction of notification of the appointment by deleting the reference to deduction of pension.” The matter came up before the Finance Department and it opined as under: “FINANCE (REGULATIONS) DEPTT N-29: The matter was examined. The President of the Forum has been getting his salary in term of the appointment order dated 12.7.2005 which provided for deduction of pension from the salary, as is the practive in all such re-employment instructions of State including Statutory appointments like the State Consumer Forum. The President of the Forum never refused the appointment to the Forum as per Govt. orders dated 12/7/2005. The matter has been referred to the F.D. after about 3 years of the appointment of the President i.e. at a very belated stage. F.D. regrets and AD is requested to process and decide the matter accordingly. “ 14 Respondent No.1 after the receipt of the opinion of the Finance Department sought the opinion of the Law Department of the State Government. The opinion was rendered by the Law Department on 29.1.2009. The complete text of the opinion is reproduced hereinbelow: “Government of Himachal Pradesh Law Department N-35 (ante):- Examined in the Law Department. Mr. Justice Arun Kumar Goel (Retired) has been representing to the State Government that his pension is being deducted wrongly from his salary as the action of the State Government is in conflict with the provisions of Rule 13 of the Himachal Pradesh Consumer Protection (5th Amendment) Rules, 2003. It is the further the contention of the representationist that his terms and conditions of appointment cannot be contrary to the HP. Consumer Protection Rules, 1988 as amended in the year, 2003. It may be noticed that Sh. Arun Kumar Goel, Retired Judge of the High Court was appointed by the State Government as President of the HP State Consumer Disputes Redressal Commission vide notification dated 12.7.2005 under the provisions of Section 16 of Consumer Protection Act, 1986 for a period of five years or up to the age of 67 years whichever is earlier. The terms of his appointment provided that he shall be entitled to salary, allowances and other perquisites as were available to him as Judge of the High Court (Last Pay drawn minus pension). The contention of the representationist is that the provision in the appointment notification dated 12.7.2005 as last 15 pay drawn minus pension is contrary to the amended provisions of Rule 13 amended vide notification dated 13.10.2003. In order to understand the crux of controversy involved in the instant case, there is need to place on record the brief facts of the case. Rule 13 of the Himachal Pradesh Consumer Protection Rules, 1988 as originally notified vide notification dated 25.4.1986 to the extent it is relevant in the context of controversy involved reads as under:- “13(1) Where the President of the State Commission is a sitting Judge of the High Court, he shall enjoy all the benefits which he should have enjoyed as sitting Judge of the High Court. Where the President is not a sitting Judge of the High Court, he shall receive a consolidated honorarium of Rs. 7,000/-, per month, if appointed on whole time basis or last pay drawn by him minus pension granted to him or an honorarium of Rs.300/- per day if appointed on part time basis. Other members, if appointed on whole time basis, shall receive a consolidated honorarium of Rs. 1500/- per month or if appointed on part time basis a consolidate honorarium of Rs. 250/- per day for the sitting.” It is clear from the provision reproduced above that where the President is not the sitting Judge of the High Court there was provision that he shall be entitled for past pay drawn by him minus pension. In the meantime Justice P.N. Nag (Retired) the then President of the State Commission filed writ petition No. 78/2000 in the Hon’ble High Court titled as “Justice P N Nag (Retired) Vs. State of H.P. and others, wherein the 16 Hon’ble High Court while allowing the writ petition vide judgment dated 27.9.2002 directed the State to consider the amendment in Rule 13 of the H.P. Consumer Rules, 1978. The direction for amendment in Rules given by the Hon’ble Court reads as under:- (a) “The respondents shall consider the amendment of Rule 13 of the Consumer Protection Rules, 1988 providing for honorarium and other allowances to the President and Members of the State Commission in para material to rule 11 of the Consumer Protection Rules, 1987 framed by the Central Government in respect of salaries, honorarium and other allowances to the President and Members of the National Commission so as to avoid any dispute or amendment in future so far the salaries, honorarium and allowances of the President and Members of the State Commission are concerned.” In order to implement the judgment of the High Court the State Government amended the provisions of Himachal Pradesh Consumer Protection Rules, 1988 on the analogy of Rule 11 of Consumer Protection Rules, 1987 framed by the Central Government. Rule 13 as amended by the Himachal Pradesh Consumer Protection (5th Amendment) Rules, 2003 to the extent it is relevant for the purpose of this case reads as under:- “13 (1) The President of the State Commission shall be entitled to salary, allowances and other perquisites as are available to a sitting Judge of the High Court. 17 From the combined reading of Rule 13(1) as originally existed and Rule 13(1) as amended by the HP Consumer Protection (5th Amendment) Rules, 2003 vide notification dated 13.10.2003, it is clear that in the original Rule 13(1) there was a specific and express provision for deduction of pension from last pay drawn where the President of the Commission is not a sitting Judge of the High Court and appointed on whole time basis but vide amendment of 2003 notified vide notification dated 13.10.2003 the provision of deduction pension has intentionally been omitted