IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 WP(C).No. 17756 of 2008(L) ------------------------- PETITIONER : --------------------- K.VIJAYAKUMARAN ACHARY, AGED 61 S/O. M.K.ACHARY, T.C.NO.7/1421, KOCHUKULAM KATTACHAL ROAD, VATTIYOORKAVU PO, THIRUVANANTHAPURAM 695 013. FORMER DISTRICT AND SESSION JUDGE, SPECIAL JUDGE FOR EDAMALAYAR INVESTIGATION AND ATTITIONAL MACT, ERNAKULAM. BY ADVS. SRI.D.S.WARRIAR SRI.SREELAL N.WARRIER RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E), OFFICE OF THE ACCOUNTANT GENERAL (A&D) , M.G.ROAD P.B.NO.5607, THIRUVANANTHAPURAM 695 039. R1 & R2 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 17756 of 2008(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE ORDER NO. 3761/CA -1/06/FCS & CA. EXT.P2 : PHOTOCOPY OF THE KERALA GOVERNMENT ORDER (MS) NO. 157/2006. EXT.P3 : COPY OF THE REPRESENTATION BY PETITIONER TO THE 2ND RESPONDENT. EXT.P4 : PHOTOCOPY OF THE REPLY FROM 2ND RESPONDENT TO THE PETITIONER. EXT.P5 : PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 864 OF 2008 (C). EXT.P6 : COPY OF THE ORDER, GO(RT) NO. 40/2008/CAD ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.17756 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of June, 2011 J U D G M E N T The petitioner was a District and Sessions Judge of the Kerala Judicial service. After his retirement from service, he was appointed as President of the Consumer Disputes Redressal Forum, Kollam on full-time basis by Ext.P1 Government Order. The petitioner's grievance in this writ petition is that the petitioner was not paid allowances as applicable to a District Judge which is provided by Rule 15 (c) of the Kerala Consumer Protection Rules. The petitioner earlier approached this court by filing W.P. (C) No.864/2008 in which this court by Ext.P5 judgment directed as follows: “After having heard the learned counsel for the petitioner and the learned Government Pleader, the writ petition is disposed of directing the 1st respondent to take a decision as to the applicability of the allowances granted both under Ext.P2, pursuant to the implementation of the recommendations made by the Shetty Commission, and the directions of the Supreme Court, in the manner provided in Rule 15(c) of the Kerala Consumer Protection Rules, 1989, as amended in 2005. A decision shall be taken within two months from the date of receipt of a copy of this judgment. Thereupon, the allowances due to the petitioner, in terms of the Rules, shall be disbursed to him without further delay.” W.P.(C)No.17756 of 2008 -2- Pursuant thereto, the Government passed Ext.P6 order, the relevant portion of which reads as follows: “G.O.(Ms) No.157/2006/Home dated 30/8/2006 is regarding the perks admissible to the Judicial and retired Judicial officers. Perks are sanctioned to Judicial Officers in view of the heavy responsibilities attached to their posts. The nature of function of Judicial Officers and Presidents of the Consumer Disputes Redressal Forums are not alike. Perks are allowed to meet the expenditure incurred by the Judicial Officers in the special circumstances in which their judicial functions are discharged. In the circumstances, the perks and allowances admissible to the Judicial Officers as per G.O.(MS) No.157/06/Home dated 30th August, 2006 (Ext.P2 in the W.P. (C) No.864 of 2008) are not applicable to the Retired District Judge appointed as a presiding officer in the Consumer Disputes Redressal Forums. The salary, allowances and conditions of service of the Presidents in the Consumer Disputes Redressal Forums will be in accordance with the Kerala Consumer Protection Rules, 2005.” The petitioner is challenging the same seeking the following reliefs: “a. Declaring that the exclusion of Pension and Dearness Allowances under Rule 15(c) of the Kerala Consumer Protection Rules as ultra vires the Constitution of India; b. In the nature of Mandamus commanding the Respondents to provide, with effective from 23-6-2007, the last drawn salary and all allowances attached to the post of District Judge the petitioner had held, as provided under Rule 15(c) of the Kerala Consumer Protection Rules, 2005 as amended in 2005 read with Exhibit P2 Government Order without exclusion of the Pension and the Dearness Allowances. c. Directing the Respondents to pay to the petitioner, the interest on the amount due to the Petitioner and kept undisbursed;” W.P.(C)No.17756 of 2008 -3- 2. A counter affidavit has been filed on behalf of the 1st respondent wherein the respondent supports Ext.P6 order on the same reasons mentioned in Ext.P6. 3. I have considered the rival contentions in detail. 4. Rule 15 (1) of the Kerala Consumer Protection Rules 2005 reads thus: 15. Salary, honorarium, other allowances and the conditions of service of the President and members of the District Forum. (1)The President of a District Forum shall be entitled to salary and allowances at the following rates, namely:- (a) If he is a sitting Judge same salary and allowances to which he is entitled to as a District Judge. (b)If he is a person qualified to be appointed as District Judge and is appointed (i) on a full time basis Minimum of the pay in the scale of pay admissible to the District Judge plus allowances attached thereto (ii) on a part time basis An honorarium of rupees 750 (Rupees seven hundred and fifty only) per day for each sitting (c)If he is a retired District Judge, last pay drawn, in the scale of pay of the District Judge plus allowances attached thereto, less the amount of pension including dearness relief to which he is entitled to or an honorarium of Rupees 15,000 (Rupees fifteen thousand only) per month, whichever is higher. (underlining supplied) W.P.(C)No.17756 of 2008 -4- That provision is not in any way vague. It is as clear as day light. As per the same, when a retired District Judge is appointed on full-time basis as President of a Consumer Disputes Redressal Forum, he is entitled to the last pay drawn in the scale of pay of District Judge + allowances attached thereto, less, of course, the pension being drawn by him. The allowances to which a District Judge is entitled to has already been laid down by the Government themselves by Ext.P2 Government order dated 30.08.2006 which is in accordance with the report of the Shetty Commission. Therefore the petitioner is entitled to all the allowances mentioned in Ext.P2. As such, Ext.P6 is clearly contrary to Rule 15 (1) (c) of the Consumer Disputes Redressal Forum Rules 2005. Accordingly Ext.P6 is quashed. It is declared that the petitioner is entitled to the last pay drawn by him in the scale of pay of District Judge + all the allowances stipulated in Ext.P2 Government order, less the amount of pension including dearness relief to which he is entitled to. W.P.(C)No.17756 of 2008 -5- 5. Of course, the petitioner has a further contention that Rule 15 (1) (c) to the extent it authorises deduction of pension and dearness relief is unconstitutional and the petitioner is entitled to both the pay as well as the pension and dearness relief. The counsel for the petitioner submits that, the petitioner is not pressing the said relief. In the above circumstances this writ petition is allowed directing the respondents to pay to the petitioner the last pay drawn by him in the scale of pay of a District Judge + all allowances attached thereto mentioned in Ext.P2 Government order after deducting therefrom the pension and dearness relief to which he is entitled to. Orders in this regard shall be passed and the arrears shall be paid to the petitioner as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// shg/ P.A. TO JUDGE