Amar Nath Purohit vs State of Rajasthan

Sandeep Mehta, J.—Heard learned counsel for the parties.

The petitioner, a retired member of Rajasthan Higher Judicial Services (RHJS) has approached this Court by way of the instant writ petition with the following prayers:--

"i. the impugned order dated 24.6.99 may kindly be quashed and set aside.

ii. by a positive direction, the respondents be directed to fix the petitioner in the revised Pay Scale Rules, 1998 in the pay scale of Rs. 18,400-22,400/- w.e.f. 1.9.96 and he be given difference of salary from the said date with interest @ 12% p.a.

iii. The respondent be further directed to allow annual grade increment to the petitioner which is admissible in the Pay Scale of Rs. 18,400-22,400/- and the respondents be further directed to grant him the benefit of dearness allowance as granted by the State Govt. from time to time.

iv. Any other appropriate order or direction which this Hon''ble Court considers just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioner."

Succinctly stated the facts relevant and essential for the disposal of the instant writ petition are that the petitioner was initially selected as a member of Rajasthan Judicial Services (RJS) in the year 1963. He gained promotions from time to time and finally, he was promoted as a member of RHJS. While working as a member of RHJS, the petitioner acquired eligibility for being appointed as President, District Consumer Forum (for short, referred to herein after as ''Forum''). The composition of Forum is provided for in Section 10 of the Consumer Protection Act. The petitioner applied for and was selected for being appointed as President of the Forum and thereby became entitled to hold the office for a term of 5 years or upto 65 years, whichever was earlier.

It is averred in the writ petition that as the petitioner was appointed on the post of President of Forum while working on the post of RHJS, by the effect of a notification dated 2.6.1994, he was entitled to continue on the post for five years irrespective of the age of superannuation of a RHJS officer. It is further averred that there was some misconception on this issue in the State Government and thus, when the petitioner attained the age of superannuation as a RHJS officer, he was sought to be discontinued from the post of President of Forum vide order dated 7.3.1995. However, the petitioner represented to the respondents that he was entitled to continue on the post of President for a period of 5 years irrespective of the age of superannuation of RHJS officers. Upon receiving the petitioner''s representation, the Government realized its mistake and withdrew the order dated 7.3.1995 vide another order Annex. 1 dated 20.10.1995 making it clear that the earlier order would not bring about a break in service and the petitioner shall be entitled to continuity in service.

The order Annex. 1 dated 20.10.1995 was passed stipulating that the intervening period for which the petitioner had not worked, would be treated as leave and it was further ordered that from 1.2.1995 onwards, he shall be entitled to get salary and perquisites in accordance with Rule 337 of the Rajasthan Service Rules, 1951 (for short, referred to herein after as ''RSR'').

The petitioner has challenged the said action of the Government on the ground that Rule 337 of the RSR dealt with re-employment of an employee whereas the petitioner''s case was not one of re-employment. Nonetheless, the petitioner resumed his duty on 9.11.1995 in response to the order dated 20.10.1995. Thereafter, he submitted a number of representations to the Government praying that reference to Rule 337 of RSR in the order dated 20.10.1995 was erroneous and be rectified and omitted. The request thus made was not acceded to and instead, a communication Annex. 2 dated 27.2.1996 was sent to the petitioner intimating that it was not possible to make any correction in the order dated 20.10.1995. Another order Annex. 3 dated 30.5.1996 was issued by the Government purporting to fix his salary treating him to be reemployed in service.

Being aggrieved of the orders dated 20.10.1995, 27.2.1996 and 30.5.1996, the petitioner filed a writ petition before this Court being S.B. Civil Writ Petition No. 2468/1996. The said writ petition was allowed by order dated 11.8.1997 and the last two paras of the order dated 20.10.1995 and the orders dated 27.2.1996 and 30.5.1996 were quashed and set aside. The respondents were directed to accord to the petitioner all consequential benefits flowing from the quashing of the aforesaid orders at the earliest.

The respondents challenged the said Single Bench''s order dated 11.8.1997 by filing a D.B. Civil Special Appeal No. 698/1998. The special appeal was decided vide judgment Annex. 4 dated 1.12.1998 with a slight modification that the petitioner would be entitled to get all the emoluments, but out of the emoluments, the amount of pension shall be deducted but no further deduction was allowed from his salary and perquisites. The petitioner thereafter received an office order Annex. 5 dated 24.6.1999 purporting to fix his salary in compliance of the Division Bench judgment.

It is averred in the writ petition that when the petitioner was appointed as President of the Forum, he was drawing salary in the pay scale of Rs. 5900-6700. In the meantime, pursuant to the Pay Commission''s recommendations, new Pay Scale Rules of 1998 were promulgated and the pay scales were revised w.e.f. 1.9.1996. The pay scale of Rs. 5900-6700, which the petitioner was drawing earlier, was revised to Rs. 18400-22400. The petitioner claims that in view of the new pay scale Rules of 1998, his salary ought to have been revised to Rs. 18,400/- per month and in view of the Division Bench judgment, only the amount of pension should have been deducted from the basic pay as per the directions of the Division Bench. The petitioner has submitted a calculation chart in the light of the aforesaid developments and has claimed that from his basic pay of Rs. 18,400/-, the revised pension of Rs. 8,101/- was to be deducted and thereafter, the basic pay of the petitioner came to be Rs. 10,299/-. The petitioner has raised a grievance in the writ petition that while revising the pay scales vide order dated 24.6.1999, his pay was not revised to the corresponding pay scales and instead of fixing his pay at Rs. 18,400/-, it was fixed at Rs. 16,810/- per month. It is further claimed in the writ petition that the petitioner was also entitled to get the increments under the Rules of 1998 as are admissible to other Government servants.

A grievance has further been raised in the writ petition that the petitioner''s pay fixation has been made in an arbitrary fashion without any justification at Rs. 16,810/-The pay scale has been fixed as if the petitioner was reemployed and no corresponding revision of pay scales has been effected. The petitioner has averred in the writ petition that he should have been treated as if in continuous employment as President of Forum and consequently, he is entitled to draw salary as being drawn by the other RHJS officers under the revised pay scales.

It is further claimed in the writ petition that vide order dated 30.5.1996, the petitioner''s emoluments were fixed as basic pay being Rs. 3,553/-, D.A. being Rs. 6,660/- and H.R. being Rs. 770/- which comes to Rs. 10,983/- per month. After coming into force of new Pay Scale Rules, 1998, the petitioner''s pay was fixed with the basic pay of Rs. 8709/- D.A. of Rs. 697/- that comes to Rs. 9,406/- per month. It is claimed in the writ petition that the revision of pay scales is aimed at increasing the emoluments of a Government servant but in case of the petitioner, his emoluments has been reduced causing him a recurring loss. The petitioner submitted representations Annex. 6 and Annex. 7 dated 18.8.1999 and 10.9.1999 to the respondents raising grievance against this arbitrary action and praying to rectify the same.

The Deputy Commissioner-II, Food and Supply Department wrote a letter Annex. 8 dated 13.12.2000 informing the petitioner that the matter was examined afresh and after seeking opinion from the Finance department, no further action was permissible at the level of the Government. Upon this, the petitioner served a notice for demand of justice (Annex. 9) dated 21.3.2001 through his advocate to the authorities but the said notice was also not heeded to.

Reliance is placed in the writ petition on the Full Bench reference made in the case of State of Rajasthan v. Shyam Sunder Gupta wherein the following questions were framed for decision :--

"1. Whether President, Consumer Forum gets salary of a District Judge?

If a person already in service is appointed as President, Consumer Forum, he will continue to get the same salary till he reaches the age of superannuation provided under the Rajasthan Higher Judicial Service Rules?

After date of retirement from the Higher Judicial Services, if the person still continues as President of the Consumer Forum to complete the tenure provided under the Act, whether he will continue to get the same salary last drawn by him or usual salary of a District Judge plus the pension for which he was otherwise entitled for after his due retirement as member of Higher Judicial Services.

During the tenure as President of Consumer Forum whether a person can be treated as member of Higher Judicial Services even after he reaches the age of superannuation so as to entitle him to all the benefits of the services for the remaining period of his tenure as President, Consumer Forum?

Whether there can be any re-employment of President, Consumer Forum during the fixed tenure, if the person appointed as President while in service, after his retirement from the services?

What is the status of a member of RHJS who is appointed as President, District Forum while in the RHJS and continuing as such after his superannuation in the RHJS?

Whether aforesaid appointment of a member of RHJS at any stage can be reckoned as "re-employment" or whether it is to be held as "statutory appointment"?"

The respondents have filed a reply to the writ petition claiming that the service of the petitioner after reappointment cannot be termed as a regular service. It is claimed that it amounts to reemployment without any break i.e. notional reemployment. The respondents have further taken resort to Rule 337 of RSR claiming that the petitioner''s case is governed by the said Rule. An issue has been raised regarding non-applicability of the particular para of the Division Bench judgment, on which the petitioner relies. Finally, it has been pleaded in the reply that as the petitioner was given reemployment in service, he is not entitled to the reliefs claimed for in the writ petition.

Mr. M.R. Singhvi, learned senior counsel appearing for the petitioner contended that the Larger Bench reference made in the case of Shyam Sunder Gupta was answered on 7.12.2003 in the following terms:--

"51. In the light of above discussions, we answer the questions referred to this Bench as Under:--

(1) The President, District Consumer forum gets the salary of a District Judge on his appointment i.e. he will get salary what he was getting in Rajasthan Higher Judicial Service on the date of his appointment.

(2) The person who is a member of Rajasthan Higher Judicial Service and appointed as a President, District Consumer Forum, he will continue to get the same salary in pay scale of RHJS till he reaches to the age of superannuation in Rajasthan Higher Judicial Service.

(3) A person who has been appointed as President of the District Consumer Form while in Rajasthan Higher Judicial Service on his retirement from the Rajasthan Higher Judicial Service, he will get the last drawn salary which he was getting on the date of his superannuation from Rajasthan Higher Judicial Service minus pension which he gets on retirement from Rajasthan Higher Judicial Service.

(4) A person who has been appointed as President of the District Consumer Forum while in Rajasthan Higher Judicial Service, on his superannuation from Rajasthan Higher Judicial Service, he cannot be treated as member of the Rajasthan Higher Judicial Service after his superannuation from Rajasthan Higher Judicial Service though he will get all the benefits and allowances which RHJS officers gets till his completion of the tenure in District Consumer Forum, but pension has to be deducted from his salary.

(5) The person who has been appointed as President of the District Consumer Forum while in Rajasthan Higher Judicial Service retires from Rajasthan Higher Judicial Service before completion of 5 years, there is no question of his re-employment in Consumer Forum for rest of the tenure Period. He will continue for 5 years in Consumer Form on the basis of his statutory appointment in Consumer Forum.

(6) A person who has been appointed as President of the District Consumer Forum while he was in Rajasthan Higher Judicial Service, after his retirement he will have the status as that of the President of District Consumer Forum.

(7) The person who has been appointed as President of the District Consumer Forum while he was in Rajasthan Higher Judicial Service, one he was given the appointment as President of the District Consumer Forum for 5 years, he will hold that post for 5 years irrespective of his superannuation in the Rajasthan Higher Judicial Service. Therefore, the superannuation in the Rajasthan Higher Judicial Officer will not affect his tenure of 5 years in District Consumer Forum."

Learned senior counsel further submitted that the Larger Bench also laid the controversy of re-employment and applicability of Rule 337 of the R.S.R. to rest in para 50 of the judgment:--

"50. Therefore, no fresh appointment order need be passed to continue him for completion of the period of 5 years. Statute itself provides the tenure of 5 years and when he was eligible at the time of appointment, there is no question to cut short his tenure period. He will continue for 5 years tenure period and superannuation from Rajasthan Higher Judicial Service will not come in his way for completion of 5 years tenure period, thus, in our view, when an officer of judicial service is appointed as president of District Consumer Forum for 5 years and he retires from Rajasthan Higher Judicial Service before completion of 5 years in Consumer Forum, he will not be re-appointed as President of District Consumer Form for the rest of the period, specially there is no provision of re-appointment in the Act, 1986. Rule 337 of the Rajasthan Service Rules, 1951 strictly has no application." 17. Learned counsel thus urged that Rule 337 of RSR has no application whatsoever to the petitioner''s case. He thus prayed that the petitioner is entitled to the reliefs claimed in the writ petition.

Learned Dy. Govt. counsel Mr. L.R. Bishnoi feebly tried to oppose the submissions advanced on behalf of the petitioner but he also was not in a position to dispute that the controversy involved in this writ petition is squarely covered by the judgment rendered by the Larger Bench of this Court in Shyam Sunder Gupta''s case (supra).

Heard and considered the arguments advanced at the Bar and perused the material available on record.

The basic controversy in the case revolves around two issues, viz., (i) whether the petitioner''s appointment by order Annex. 1 dated 20.10.1995 was reemployment as claimed by the respondents thereby bringing about a break in service? and (ii) whether the petitioner is entitled to receive the salary and emoluments drawn by the officers in the pay scale of RHJS during his tenure as President of the Forum, or whether his case is governed by Rule 337 of the R.S.R.?

The petitioner''s discontinuance from the post of President vide order dated 7.3.1995 was realized as a mistake and by order Annex. 1 dated 20.10.1995, the said order dated 7.3.1995 was withdrawn. It was specifically mentioned in order Annex. 1 that the order dated 7.3.1995 shall not be construed as causing a break in service of the petitioner but he shall be treated on duty on continuous basis. However, the break period was ordered to be treated as leave. Simultaneously, the petitioner''s salary and perquisites were directed to be governed by Rule 337 of RSR. The Division Bench while considering the special appeal preferred by the State against the order dated 11.8.1997 passed in the petitioner''s earlier writ petition No. 2468/1996 was not in favour of the decision rendered by the Single Bench in the case of Shyam Sunder Gupta and observed that it was unable to reconcile with the decision taken by the Single Judge in Shyam Sunder Gupta''s case. It was further held that there is a vagueness in the Rules regarding the emoluments and salary admissible to the persons who are appointed as President while working in RHJS and cross the age of superannuation during the period of assignment. It was further observed by the Division Bench that the vagueness in the Rules as to the salary, deserves to be removed and the State Government would be well advised to amend the Rules suitably specifying the salary which would be payable to a person who is appointed as President while in service in the RHJS as also to persons who have been District Judges or who are qualified to be a District Judge. The Division Bench ultimately held as under:--

"However, so long as the Rule is not amended we will have to construe it harmoniously and reasonably. It appears just, proper and reasonable that a person who is appointed as President of the District Forum while he is in the RHJS should continue to draw the salary he was drawing in the RHJS as President of the District Forum. He should also continue to get all emoluments and increments in the salaries and allowance to which he would have been entitled to if he had continued in the mainstream judiciary during the period he is in the District Forum till his retirement on superannuation from RHJS. On retirement on superannuation from RHJS he should not be entitled to double benefit by getting an extension of service up to 65 years of age or till completion of 5 years'' term as also salary plus pension. At best, such a person can be deemed to have continued in the RHJS beyond the age of superannuation for the purpose of calculation of salaries and other emoluments. The most reasonable construction which can be put on the provisions is that the last salary drawn by such a person in the RHJS on the date of his retirement should be his salary for the purpose of the rules. This means that he would not be entitled to draw the amount of pension also alongwith the salary. It is true that Rule 337 of the Rajasthan Service Rules applies to Re-employment and this being not a re-employment as such and which at best can be called to be re-employment in advance, the Rule 337 strictly would not apply.

....

We therefore partially allow this appeal, set aside the impugned order and direct that respondent shall be entitled to his last salary in the RHJS minus the amount which he receives as pension. We however see no reason to deprive the respondent of his salary and other emoluments for the period of discontinuation. Though he himself raked up the issue he cannot be punished for raising doubts. The period of discontinuation shall be counted as effective period for completion of the tenure of five years. There shall be no order as to costs."

Thus, it is evident that the Division Bench had already decided the issue that the officer cannot be penalized for the period of discontinuance brought about by the mistake of the respondents. Therefore, the plea raised by the respondents in their reply on this aspect is per se unacceptable. The controversy was virtually decided by the Division Bench whilst deciding the aforesaid appeal and as a matter of fact, the respondents would have been better advised to accept and comply with the judgment of the Division Bench in its letter and spirit. The issue attained absolute finality in Full Bench decision of Shyam Sunder Gupta (supra).

In view of the aforesaid discussion and in view of the answer given in Full Bench reference in Shyam Sunder Gupta''s case (supra), the instant writ petition deserves to be and is hereby allowed. The respondents are directed to grant all benefits to the petitioner in terms of the aforesaid Full Bench judgment by treating the petitioner to be a member of RHJS after his superannuation. The petitioner shall be entitled to revised pay scale in accordance with the Revised Pay Scale Rules, 1998 and the subsequent amendments made thereunder. For the period during which the petitioner has been wrongfully deprived of the amount to which he is entitled, he shall also be entitled to interest at the rate of 9% per annum from the date of accrual to the date of actual payment. The respondents shall make payment of the accrued amount to the petitioner within a period of two months from the date of receipt of certified copy of this order, failing which the interest shall stand enhanced to 12% per annum.

No order as to costs.