Accountant General, M.P vs S.K.Dubey & Anr

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.

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 3 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.

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 4 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 petition before the High Court challenging the letters dated December 10, 2003 and September 23, 2004 addressed to the Madhya Pradesh State Government and letter dated November 4, 2004 addressed to the respondent that pension and gratuity were not payable to the respondent. In that writ petition, the appellant and the State of Madhya Pradesh were 5 impleaded as respondent - 1 and respondent - 2 respectively. In its counter affidavit in opposition to the writ petition, the appellant set up the case that there was no provision for pension under the 1986 Act or the Madhya Pradesh Consumer Protection Rules, 1987 (for short, `State Rules') for payment of pension to the President, State Commission. Relying upon the decision of this Court in the case of Justice P. Venugopal v. Union of India and Others1, the appellant stated before the High Court that the respondent was not entitled to clubbing of the two services. The appellant said that if the State Government intended to grant pension to the petitioner (respondent herein) for the service rendered by him as President, State Commission then requisite statutory rule would have to be framed and duly ratified by the State Legislature as required under Section 30(2) of the 1986 Act. The State Rules framed by the State Government do not have any provision for payment of pension.

10. The High Court of Madhya Pradesh, on consideration of the matter, vide its judgment dated February 8, 2005 allowed the writ petition filed by the present respondent. The High Court held that by office order dated April 5, 2002, the State Government had passed an order that the service rendered by the petitioner (respondent herein) as President, State Commission 1 (2003) 7 SCC 726 6 would be counted as pensionable service. The High Court, accordingly, did not accept the view of the appellant and directed it to finalize the pension of the petitioner (respondent herein) and make payment of pension and other admissible dues within a period of two months.

11. It is from this order that the present appeal has arisen.

12. This Court granted leave in the matter on August 25, 2005 but refused to grant any stay. It was, however, clarified that the payment made to the respondent, pursuant to the judgment of the High Court, would be subject to the decision in the appeal.

45. Insofar as the order dated April 5, 2002 issued by the Government of Madhya Pradesh according sanction for counting the service of the respondent on the post of President, State 26 Commission for pension is concerned, the same being not inconsistent with the statutory provision contained in Section 16(2) and the State Rules, the view of the High Court that the respondent was entitled to pension from the State Government as per the terms and conditions of appointment cannot be faulted. The High Court rightly observed that the respondent was entitled to pension from the State Government insofar as service rendered by him as the President, State Commission was concerned to the extent provided in the order dated April 5, 2002. Obviously such service shall not be clubbed with the service of the respondent as a High Court Judge and shall not be charged to Consolidated Fund of India.

46. Civil appeal, accordingly, has no merit and is dismissed with no order as to costs.

erudite judgment prepared by my Brother Lodha J., though for the reasons respectfully indicated below, I am not in a position to agree therewith.

Short facts leading to the present appeal

16. When the statute provides that the `terms and conditions shall be such as may be prescribed, and `prescribed' means prescribed by the rules, it is implied that these rules shall be of general application. If pension is to be covered under the concept of terms and condition of service under Section 16 (2), there has to be a general rule concerning the same. Pension denotes a periodical payment to be made available to the employee after his retirement, after long years of service which are governed by the relevant rules [Ref. Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh reported in 2011 (11) SCC 702]. In the instant case, there are general rules laying down the terms and conditions framed under the concerned statute but they do not make any provision for pension. As far as the grant of pension is concerned, in his first letter dated 10.12.2003, the appellant raised the issue with respect to the rate at which the 41 pension is to be calculated. Mr. Mariarputham, submitted that if the service in the consumer commission is not to be clubbed, and even if the State Government is to bear the responsibility, it will also have to be provided as to how many years of service in the commission will qualify for pension. It is not enough merely to provide that the two pensions combined together shall not exceed the maximum of the pension prescribed for Judges of the Hon'ble High Court. These issues can be dealt with if rules are made and not otherwise.

(2) Pension under sub-rule (1) shall be calculated at the rate of rupees seven hundred per annum for each completed year of service 1[**] and irrespective of the number of years of service in the Tribunal, the maximum amount of pension shall not exceed rupees three thousand five hundred per annum:

Hence, this judgment cannot be read as a judgment permitting an additional grant when the rules do not provide for the same.

(emphasis supplied)

25. In the circumstances the appeal deserves to be allowed and the impugned judgment and order passed by the High Court is required to be set-aside. Accordingly, this Civil Appeal is allowed, the judgment and order of the High Court dated 8.2.2005 in Writ Petition No.13302/2004 is hereby set- aside, the said writ petition filed by the first respondent is dismissed though without any order as to costs.

.........................................J. 52 ( H.L. Gokhale ) New Delhi Dated: February 29, 2012 53 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5322 OF 2005 The Accountant General, M.P. .... Appellant Versus S.K. Dubey & Anr. ....Respondents COMMON ORDER In view of divergence of opinion in terms of separate judgments pronounced by us in this appeal today, the Registry is directed to place the papers before Hon'ble the Chief Justice for appeal being assigned to an appropriate Bench.

FEBRUARY 29, 2012.