N K JAIN Vs. STATE OF M P

JUDGEMENT

(1.) In this petition, the petitioner inter alia seeks quashment of the impugned condition of adjustment of pension of the petitioner against salary payable to him for the post of Chairman, M.P. State Consumer Disputes Redressal Commission (in short "the Commission") incorporated in the order dated 27-9-2003. The petitioner also seeks a direction to the respondent No. 1 to make payment of entire amount deducted from the salary of the petitioner along with interest at the rate of 12% per annum. The facts, essential to be stated for adjudication of the controversy involved in the writ petition are that the petitioner is a retired Judge of High Court of M.P. By an order dated 13-8-2003 the petitioner after consultation with the Chief Justice of the High Court of Madhya Pradesh was appointed as Chairman of the Commission. Thereafter, vide order dated 27-9-2003, the terms and conditions of appointment of the petitioner were notified and it was provided that the petitioner shall draw the salary payable to a Judge of the High Court minus pension payable to him on retirement as Judge of High Court of Madhya Pradesh. The petitioner joined as Chairman of the Commission on 30-9-2003. Being aggrieved by the aforesaid condition, the petitioner submitted representations on 5-9-2008 and 14-1-2009. However, the representations submitted by the petitioner failed to evoke any response. In the aforesaid factual backdrop, the petitioner has approached this Court.

(2.) Learned Senior Counsel for the petitioner submitted that Section 16(2) of the Consumer Protection Act, 1986 (for short "the Act") provides that 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. While inviting the attention of this Court to Section 2(n) of the Act, it is submitted that word 'prescribed' means prescribed by rules made by the State Government. It is pointed out that in exercise of power under Section 30(2) of the Act, the State Government has framed the rules, namely, Madhya Pradesh Consumer Protection Rules, 1987 (in short "the 1987 Rules") and Rule 6(1) of the 1987 Rules provides that President of the State Commission shall receive the salary of the Judge of the High Court if appointed on whole-time basis. It is urged that the impugned condition is contrary to Rule 6(1) of the Rules and by an executive order, no such condition can be prescribed which is contrary to the Statutory Rules.

(3.) It is also submitted that whenever legislature intended to provide for deduction of the amount of pension from the salary, specific provision has been made. In this connection, reference has been made to the provisions of M.P. Lokayukta Avam Up-Lokayukta Adhiniyam, 1981 as well as Rule 3 of the M.P. Human Rights Commission Chairman and Members (Salaries, Allowances and Other Conditions of Service) Rules, 1995. However, no such condition is prescribed in the 1987 Rules and on the other hand an express provision has been made under Rule 6(1) of the 1987 Rules, which provides that President of the State Commission shall receive the salary of the Judge of the High Court. It is also contended that the controversy involved in the instant case has been put to rest by the Division Bench decision of Orissa High Court in the case of Justice Debendra Mohan Patnaik Vs. State of Orissa and others, 2008 AIR(Ori) 28 Learned Senior Counsel has also invited the attention of this Court to the order dated 3-12-2009 passed by Government of Chhattisgarh by which it is provided that the Chairman of Chhattisgarh State Consumer Disputes Redressal Commission shall draw the salary as is admissible to a Judge of the High Court. Lastly, it is submitted that there is no delay in filing the writ petition and even assuming that there is delay on the part of the petitioner, the delay is not such which would disentitle the petitioner to seek enforcement of his right in law and there cannot be any estoppel against law.