JUSTICE S.K. DUBEY (RETIRED) Vs. ACCOUNTANT GENERAL

JUDGEMENT

(1.) PETITIONER , former Judge of this Court, has prayed for quashment of communication dated 10 -12 -2003 issued by Accountant General, M. P. informing respondent No. 2/Department of Food, Civil Supplies and Consumer Protection Department to the effect that pension and gratuity was not payable as proposed by respondent No. 2 State of M. P. as per letter dated 23 -9 -2004 and 4 -11 -2004. Mandamus has been sought to count the period spent by petitioner as President of State Consumer Dispute Redressal Commission as pensionable service as per the terms of appointment issued by State Government.

(2.) IT is averred in the petition that petitioner was appointed as a judge of High Court of M.P., he rendered the services of 10 years 5 months and 12 days, pension for the service rendered as Judge of the High Court has been determined under Schedule -I of High Court Judges (Conditions of Service) Act, 1954. It is further averred that by virtue of power vested in the State Government under section 16 of Consumer Protection Act, 1986 (hereinafter referred to as "the Act") notification dated 18 -9 -1998 was issued by which petitioner was appointed as President of State Consumer Redressal Commission established under section 9(b) of the Act. Office was assumed by petitioner on 21 -9 -1998 and he held the same till 13 -8 -2003. He demitted the office on completion of 67 years of age as per sub -section (3) of section 16 of the Act. Section 16(2) of the Act provides that salary, honorarium and other allowances payable to, and other terms and conditions of service of the members of the Commission shall be such as may be prescribed by the State Government. It is submitted that State Government is fully empowered as per power conferred under the Act to prescribe the terms and conditions of service. State Government on 26.5/3 -6 -1999 issued an Order (P. 1) prescribing the terms and conditions of appointment of petitioner. It was ordered that petitioner shall be paid salary as payable to a Judge of the High Court minus pension payable. Another order (P.2) was issued by Government of M. P. through Department of Food, Civil Supplies and Consumer Protection Department on 5 -4 -2002 for counting the period of service as President of Commission for the purpose of payability and determining the pension making the same as term and condition of service in Order (P.1) dated 3 -6 -1999. It was mentioned that State Government accorded sanction of counting service rendered on the post of President for the purpose of pension subject to condition that cumulative amount of pension receivable for service as Judge and on the post of President shall not exceed the maximum pension payable for a service as Judge of the High Court. Order (P. 2) expressly makes pension payable as the terms and conditions of appointment of petitioner as President of State Commission which in turn was issued after obtaining the due approval of the Finance Department of State Government, copy of order was forwarded to Accountant General, no objection was raised at the relevant time by the Accountant General to the Order (P.2) of State Government.

(3.) PETITIONER has placed reliance on a decision of the Apex Court in Justice P. Venugopal v. Union of India and Others, (2003) 7 SCC 726 to submit that the pension payable to a High Court Judge would depend upon the terms and conditions of the appointment. As the terms and conditions of appointment provide for payment of pension and other benefits, pension shall be payable separately by the State Government it is further submitted that State Government has agreed to bear the financial liability for payment of pension and gratuity, the office of Accountant General of M. P. ought to have ensured by now the legal right of petitioner fructifying the actual payment of pension. Accountant General has sent another letter (P. 10) 23 -9 -2004 and matter was referred to Government of India, Ministry of Law and Justice, New Delhi. Opinion of Government of India, Ministry of Law and Justice was sent, Under Secretary to the Government of India has opined that petitioner is not entitled to any pensionary benefit in respect of the services rendered by petitioner as President of State Commission. Office of the Accountant General (A and E) -II, M. P. has further opined as per letter (P. 11) dated 4 -11 -2004 that services cannot be clubbed for pensionary benefit as a Judge of the High Court and President of MP State Consumer Dispute Redressal Commission. Aggrieved by the action of respondent No. 1 in not following the decision of respondent No. 2 to club the period for the purpose of pension and other benefits this writ petition has been preferred to claim pension and other admissible retrial benefits.