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TMI Blog2012 (2) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... fice of the President, State Commission, he had rendered service of 4 years 10 months and 22 days as President, State Commission. 4. The pension for the period of service rendered by the respondent as Judge of the High Court has been determined under the First Schedule of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short, 1954 Act ). That is not the controversy here. The respondent s entitlement to pension for his service rendered as President, State Commission under the office order dated April 5, 2002 issued by the State Government is in issue. 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 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. 6. On April 5, 2002, the Department of Food, Civil Supplies and Consumer Protection, Government of Madhya Pradesh issued another order for counting the period of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Others (2003) 7 SCC 726, 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 her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that executive power of the State was coextensive with the legislative power and when rules are silent, the executive can always fill the gaps by issuing executive order. In this regard, he relied upon decisions of this Court in Sant Ram Sharma v. State of Rajasthan and Others AIR 1967 SC 1910 and Lalit Mohan Deb and Others v. Union of India and Others (1973) 3 SCC 862. 17. Mr. Amrendra Sharan, learned senior counsel for the respondent argued that the use of words shall and may in Section 16(2) was indicative of the legislative intention that may be read as directory. He submitted that firstly, framing of rules by the State Government under Section 16(2) read with Section 30(2) was not mandatory and secondly, the State Rules having been framed for the subjects enumerated in Section 16(2), the power of the State Government to exercise its executive power in respect of the subjects not provided in the State Rules is not taken away. He relied upon the decisions of this Court in M/s. Atlas Cycle Industries Ltd. and Others v. The State of Haryana (1979) 2 SCC 196, Orissa State (Prevention Control of Pollution) Board v. Orient Paper Mills and Another (2003) 10 SCC 421 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1954 Act, particularly, Sections 14, 15 and 16 thereof and the First Schedule appended thereto and decisions of this Court in Union of India and Others v. Pratibha Bonnerjea and Another (1995) 6 SCC 765 and V.S. Mallimath v. Union of India and Another (2001) 4 SCC 31 and held that a High Court Judge was entitled to pensionary benefits only in terms of the 1954 Act and not otherwise. The Court went on to observe (para 16; pgs. 732-733): .A High Court Judge is entitled to pensionary benefits only in terms of the said Act and not otherwise. The said Act is a self-contained code. It does not contemplate grant of pension to a retired High Court Judge for holding any other office of profit. Clubbing of services for the purpose of computation of pension is not contemplated under the said Act and, thus, the court cannot by process of interpretation of statutory or constitutional provisions hold so. In para 26 of the Report (Pg. 736), this Court said : .for the purpose of computation of pension, different services of the petitioner could not have been clubbed in terms of Act 28 of 1954. The pension payable to a High Court Judge would be only for the period rendered in that capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service and, therefore, despite the office order dated April 5, 2002 issued by the State Government to the effect that service rendered by the respondent as President of the State Commission was pensionable service, the respondent is not entitled to any pension for the service he rendered as President, State Commission. 24. Section 16 of the 1986 Act deals with the composition of the State Commission. For the present purposes, the only relevant provision is sub-section (2) of Section 16 which reads as follows : S. 16. Composition of the State Commission.- (1) xxx xxx xxx xxx (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 wholetime 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) xxx xxx xxx xxx (4) xxx xxx xxx xxx 25. Section 2(jj) defines member as follows : S.2(jj) member incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to salary and other allowances and terms and conditions of the President and Members of the State Commission. Rule 6 of the State Rules reads as under : R.6.- Salary and other allowances and terms and conditions of the President and Members of the State Commission :- (1) President of the State Commission shall receive the salary of the Judge of the High Court, if appointed on whole-time basis or a consolidated honorarium of ₹ 200/- per day for the sitting if appointed on part-time basis. Other members, if sitting on whole-time basis, shall receive a consolidated honorarium of ₹ 3,000 per month and if sitting on part-time basis, a consolidated honorarium of ₹ 150 per day for the sitting. (2) The president and the members of the State Commission shall be eligible for such travelling allowance and daily allowance on official tour as are admissible to grade 1 Officer of the State Government. (3) The salary, honorarium, other allowances shall be defrayed out of the Consolidated Fund of the State Government. (4) President and the Members of the State Commission shall hold office for a term of five years or up to the age of 67 years whichever i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Commission shall discharge the functions of the President until the day on which the President resumes the charge of his functions. (11) The President or any Member ceasing to hold office as such shall not hold any appointment in or be connected with the management or administration of an organization which have been subject of any proceeding under the Act during his tenure for a period of five years from the date on which he ceases to hold such office. 30. It is clear from the above Rule that it does not make any provision in making the service of the President and Members of the State Commission a pensionable service. State Rules are totally silent in this regard. The moot question that falls for determination in this appeal is, whether in the absence of any express rule in the State Rules, was it open to the State Government of Madhya Pradesh to have provided by way of an Executive order dated April 5, 2002 that the service rendered by the respondent as President of the State Commission would be counted as pensionable service. The incidental question is whether such order is inconsistent with Section 16(2) or the State Rules. 31. Subject to the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression as may be prescribed by the State Government in Section 16(2) has to be read as prescribed by the rules framed by the State Government, if any. This is the plain meaning of the above expression. If the Parliament intended that salary or honorarium and other allowances and other terms and conditions of service of the President and the Members of the State Commission have to be provided in the rules by the State Government in exercise of its powers under Section 30(2) and in no other manner, the provision in Section 16(2) would have read, 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 only be in accordance with the rules framed by the State Government . The words shall be such followed by the expression as may be prescribed clearly indicate the legislative intent of may being directory and the expression as may be prescribed to mean, 'if any . The construction that I have put to the expression, 'as may be prescribed gets support from the decisions of this Court in Surinder Singh v. Central Government and others (1986) 4 SCC 667 and Orissa State (Preventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to those aspects and in the situation where no rules have been framed in exercise of the power conferred on it, insofar as executive power of the State is concerned. The power that vests in the State Government in Section 30(2) to carry out the provisions contained in Section 16(2) does not take away its executive power to make provision for the subjects covered in Section 16(2) for which no rules have been framed by it. The exercise of such power by the State Government, obviously, must not be inconsistent with the constitutional provisions or statutory provision in Section 16(2) or the State Rules framed by it. In the present case, the exercise of power by the State Government by issuance of the order dated April 5, 2002 does not suffer from any such vice. 39. Two more aspects need to be considered by me, firstly, the effect of Section 31(2) of the 1986 Act which provides that every rule made under the 1986 Act shall be laid before the State Legislature and secondly, whether in view of Section 31(2), the executive power of the State is to be exercised in generality and not for a situation specific. 40. Craies on Statute Law, Seventh Edition, has dealt with the subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Parliament cannot result in nullification of the notification . 42. In light of the above legal position, if Section 31(2) of the 1986 Act is seen, it leaves no manner of doubt that the said provision is directory. 43. I am unable to accept the submission of Mr. A. Mariarputham that having regard to the provision contained in Section 31(2), the executive power of the State Government to fill in the gaps in the rules can only be exercised in generality. 44. It follows from the above discussion that the State Government has power to issue executive order or administrative instructions with regard to subject/s provided in Section 16(2) of the 1986 Act where the State Rules are silent on any of such subject. There is nothing in Section 30(2) or Section 31 of the 1986 Act that abridges the power of the State Government to issue executive order or administrative instructions with regard to pensionable service of the President and Members of the State Commission, although State Rules have been framed but such Rules are silent on the aspect of the pensionable service. In other words, in the absence of any provision in the State Rules relating to the pensionable service of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to some of the essential facts and relevant provisions. Short facts leading to the present appeal 4. The first respondent herein, retired as a Judge from the Madhya Pradesh High Court on 13.8.1998 after putting in a service of more than ten years. He was appointed as the President of the State Commission after a short gap on 21.9.1998 vide Government notification dated 18.9.1998. Thereafter, he worked for a period of four years, ten months and twenty two days as the President, and demitted that office on 12.8.2003. 5. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the State Commission (which include the President) are governed under the above Act. The terms and conditions of appointment of the first respondent were determined under the Government s letter/order dated 26.5/3.6.1999, which included the following terms:- (i) The period of appointment shall be in accordance with Section 16(3) of Consumer Protection Act, 1986. (ii) During the period of appointment he shall get pay equal to the pay payable to Judge of High Court after deducting the pension. The relief on pension shall not be payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.1988 to 13.8.2003 4 10 22 Total 15 4 04 Amount of Pension under Part-I of the High Court Judge (Conditions of Service) Act 1954 and as per Government of India Ministry of Law and Justice Department of Justice Dt. 18.12.1987 and 11.4.1988 ₹ 11,150 X 15 = 167250 = ₹ 13937.50p Maximum is ₹ 13,000/- P.M. OR ₹ 1,56,000/- P.A. Amount of Death-cum-Retirement Gratuity including 55% D.A. as per instructions. Pay ₹ 26,000+ 55% of D.A 14,300 40,300 X 20 X 15 = 4,03,000 Total ₹ 30,3000/- 30 X 1 Maximum limit of DCRG ₹ 3,50,000=00 Less already paid ₹ 2,11,667=00 Balance to be paid ₹ 1,38,333=00 family pension:- w.e.f. 14.8.2003 of ₹ 78,000 per month (or per annum?) to Smt. Manju Dubey, wife of Hon ble Justice Shri S.I. Dubey till her death or remarriage whichever is earlier. 8. The appellant raised certain queries with respect thereto by his letter dated 10.12.2003. It was stated in this letter that according to the pension calculation sheet submitted on behalf of the first respondent, the pension of first respondent had been revised by adding his service as the President to the service rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te it further. In this connection, we must note that the appellant was joined as the first respondent in the Writ Petition in the High Court. He is in charge of the accounts in the State and represents the Comptroller and Auditor General of India, who is a Constitutional Functionary. The payment of pension and its supervision is a part of his responsibility. His letters/orders were challenged in the writ petition, and if it was his view that the decision of the High Court was erroneous, we do not see any reason as to why he should not be held eligible to challenge the decision. He is an administrative authority and his decision was approved by the Ministry of Law and Justice. Such petitions have been filed by the Accountant Generals in the past also. [For reference in the case of Accountant General of Orissa Vs. R. Ramamurthy reported in 2006 (12) SCC 557.] Hence we do not find any substance in this objection. 11. The principal submission on behalf of the appellant is based on Section 16(2) of the Act, which reads as follows:- 16. Composition of the State Commission .. (1) . (2) The salary or honorarium and other allowances payable to, and other terms and condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement these provisions as they are. The section clearly provides that the terms and conditions of service of the member (including President of the Commission) will be as prescribed by the State Government. Prescribed means as laid down in the rules. Section 31 of the Act requires that these rules are to be laid before the legislature. Since the rules do not provide for pension, one cannot incorporate any such concept in the service conditions of the first respondent. Mr. Mariarputham, relied upon the judgment of this Court in the case of State of Uttar Pradesh Vs. Singhara Singh reported in AIR 1964 SC 358, and particularly first part of paragraph 8 thereof which reads as follows:- 8. The rule adopted in Taylor V. Taylor (1876) 1 Ch. D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted 14. As against the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as limited by this law meaning thereby in conformity therewith. 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 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 responsibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Judges of the High Court. It is also relevant to note that it is not stated in the Calculation Sheet as to which portion of the proposed pension was to be paid by the State Government and which would be payable for the services as a High Court Judge. Thus, on these facts the pension claimed was clearly inadmissible. (ii) It is true that in para 26 of its judgment in Justice P. Venugopal (supra) this Court has laid down that the question as to whether a Judge rendering services subsequently would be entitled to pension from the State will depend upon the statute or the terms and conditions of appointment. As noted above, in our understanding the provisions of the statute and the rules in the present case are clear, and therefore the appellant could not be faulted for raising the queries with respect to the claim of the first respondent for the pension as the President of the State Commission, in the absence of specific provision in the rules. 19. The reliance by the respondent No. 1 on the judgment of this Court in Orissa State (Prevention and Control of Pollution) Board (supra) is also erroneous. That was a case, where there was a power under Section 19 of the Air (Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules for that purpose were not framed, and it was contended that the executive government cannot be held to have power to make appointments and lay down conditions of service without making rules in that behalf. There was however, long administrative practice bordering on to a rule of effecting promotions based on merit, and not merely on seniority, and the appellant had also been considered for selection. It was in this context that this Court held that it would not be proper to say that till statutory rules governing promotions to selection grade posts are framed, Govt. cannot issue administrative instructions regarding the principles to be followed. The court repelled the contention by observing at the end of paragraph 9 as follows:- As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N.C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution. Hence, this judgment cannot be read as a judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four corners of law, and the executive power cannot be used to act outside thereof. 23. We cannot ignore that the provisions of statute and the rules are to be read as they are. As stated by Justice G.P. Singh in Principles of Statutory Interpretation (13th Edition, Chapter 2 Page 64), the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. [See also Crawford Vs. Spooner 4 Moo Ind. App. 179 and Nalinakhya Vs. Shyam Sunder AIR 1953 SC 148 Para 9 quoting with approval Crawford Vs. Spooner.] We may as well refer to the observations of this court in para 10 of State of Kerala Vs. K. Prasad reported in 2007 (7) SCC 140 to the following effect:- .. It needs little emphasis that the Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any rule, unless such power exists under the rules, is bound to provide scope for discrimination, arbitrariness and favouritism, which is totally opposed to the rule of law and our constitutional values. It goes without saying that even an executive order is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in 1995 Supp. (1) SCC 18. In that matter the appellant was held to be not entitled to a salary in the revised scale. However, since the higher pay scale was given to him due to wrong construction of the relevant order by the authority concerned and not on account of any misrepresentation by the employee, the amount paid till the date of order was directed not to be recovered. When this appeal was admitted, stay as prayed by the appellant was declined, but it was made clear that the payment made by the appellant pursuant to the judgment of the High Court will be subject to the decision of appeal. Mr. Mariarputham, learned counsel for the appellant submitted that the appeal is canvassed basically in view of the principle involved. In view thereof, although the appeal is allowed, the additional pension paid to the first respondent as the President of the State Commission till the end of February 2012, will not be recovered from him. However, from March, 2012 onwards the first respondent shall be entitled to receive pension only for the service rendered by him as a High Court Judge. In view of divergence of opinion in terms of separate judgments pronounced by us in this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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