WP/4311/2006 of P.Srinivas, Vs Government of Andhra Pradesh, represented by the on 29 December 2006

COMMON ORDER:

In all these three writ petitions, as common questions arises for consideration, theyare heard together and are being disposed of by this common order.

For the sake convenience in disposal of the cases, I refer to the facts mentioned inWrit Petition No.3787 of 2006, which are similar in the other two cases also.

The petitioner was a retired District Judge Grade-I and appointed as President of theConsumer Disputes Redressal Forum, which is known as a District Forumestablished under Section 9 of the Consumer Protection Act, 1986. He retired on31.10.2001 and thereafter, he was given the benefit of Selection Grade from31.7.2001 to 31.10.2001 vide G.O.Ms.No. 71, Law (LA & J SCF) Department dated 28.6.2004. The petitioner was appointed as the President of District Forum-I,Hyderabad by the first respondent-Government by G.O.Ms.No.58, dated 24.9.2001.The salaries and other allowances and terms and conditions of the President andmembers of District Forum are governed by the Andhra Pradesh State ConsumerProtection Rules, 1987, which are framed in exercise of powers under sub-section(2) of Section 30 of the Consumer Protection Act, 1986. In view of sub-rule 3(1) ofthe A.P. State Consumer Protection Rules, 1987, while appointing the petitioner asthe President of District Forum-I of Hyderabad vide G.O.Ms.No.58, Food, CivilSupplies and Consumer Affairs (CS.III) Department, dated 24.9.2001, it is stated thathe shall draw a consolidated honorarium of Rs.10,000/- (Rupees ten thousand only)per month, or last pay drawn minus pension per month, whichever is beneficial tohim as laid down in G.O.Ms.No.26, dated 4.4.2000. In the light of the above saidappointment orders issued by fixing the honorarium as per G.O.Ms.No.26, dated4.4.2000, the petitioner was drawing honorarium as per the last drawn salary minusnet pension.

However, the Government has amended Rules by issuing G.O.Ms.No.9, dated1.2.2006 fixing the honorarium for the President of the District Forum, at Rs.18000/-per month if retired District Judge is appointed. Consequent to said orders issued bythe Government in G.O.Ms.No.9, dated 1.2.2006, the second respondent – A.P.StateConsumer Disputes Redressal Commission, Hyderabad had issued a letter dated2.2.2006 directing the Presidents of the District Consumer Fora to claimconsolidated amount of honorarium of Rs.18000/- per month in terms ofG.O.Ms.No.9, dated 1.2.2006. Thereafter, circular instructions were also issued bythe second respondent-Commission vide proceedingsRoc.No.127.APSCDRC/ACCTS.1/2005 dated 17.2.2006 to the Presidents (RetiredDistrict Judges) to draw their salary in pre-revised pay scales and to draw monthlyHonorarium in the Revised Pay Scales only after scrutiny and approval of thefixation by the Commission. Therefore, questioning G.O.Ms.No.9, dated 1.2.2006and the circulars of the second respondent dated 2.2.2006 and 17.2.2006, this writpetition is filed.

Conclusion

It is stated in the affidavit filed in support of the writ petition that when the petitionerwas appointed as President of the District Forum, the terms and conditions withregard to honorarium were governed by the rules framed in G.O.Ms.No.26, Food,Civil Supplies and Consumer Affairs (CS.III) dated 4.4.2000 and as such, it is notopen for the first respondent Government to vary the terms and conditions of serviceto their disadvantage during their tenure of office. It is also stated that as per therecommendations of the National Judicial Pay Commission, which was accepted bythe Government in G.O.ms.No.113, Law (LA & J SC.F) Department dated 1.11.2004,the salary of the petitioner was revised. In that view of the matter, he is entitled fordrawal of salary and arrears by calculating the last drawn salary of the petitioner inthe revised pay scales minus net pension, which was being paid to the petitioner. Itis further stated that as much as it is simply stated as last drawn salary minuspension, the net pension which was being paid to the petitioner should be deductedfrom the last drawn salary. It is also stated that taking into account the last drawnsalary in the revised pay scales, honorarium was fixed in respect of some of some ofthe similarly placed Presidents in other Districts and arrears were paid, but, in spiteof representation to the respondents, arrears are not being paid to the petitioner.

Counter affidavit is filed on behalf of the respondents. It is stated in the counteraffidavit that in the order appointing the petitioner as President, honorarium wasfixed at Rs.10,000/- or last pay drawn minus pension, whichever is beneficial to thepetitioner and as such, petitioner cannot claim the honorarium basing on the last salary drawn by him in the revised pay scales. It is further stated that the petitionerand the other similarly placed persons were drawing honorarium consisting of theirlast salary drawn less net pension leaving the commuted portion in the pre-revisedscales. In the counter affidavit, a reference is also made to the clarification issued bythe first respondent-Government vide Memo No.113/CS.III(2)/06-1 dated 16.2.2005clarifying that the retired District Judges, when they are re-employed to work asPresidents in District Consumer Fora in the State, their pay shall be regulated basedon the ‘last pay less pension’ and “pension” means the gross monthly pensionpayable prior to commutation and last pay drawn means actual pay drawn before hisretirement on which original pension was sanctioned. Further, it is stated that asmuch as the Government has already amended the Rules by issuing G.O.Ms.No.9,dated 1.2.2006 fixing the consolidated honorarium of Rs.18,000/- per month, thePresidents are entitled only for Rs.18,000/- if a retired District Judge is appointed asPresident and as such, they are entitled to draw the said amount as fixed inG.O.Ms.No.9, dated 1.2.2006.

With regard to the payment of arrears pursuant to the representation of thepetitioner, it is stated that questioning the rate of D.A. to be allowed during thefixation of pay in the revised pay scales of Judicial Officers, the State has filedI.A.No.152 of 2004 in W.P.No.1022 of 1989 before the Supreme Court and the sameis pending consideration.

Though the petitioner has questioned the validity of G.O.Ms.No.9, dated1.2.2006, by which, the rules relating to salary and other allowances and the termsand conditions are amended by making amendment to the A.P. State ConsumerProtection Rules, 1987, but, however, the learned counsel has confined hisargument to the applicability of the said rules to the petitioners who are appointedprior to the amendment of the Rules vide G.O.Ms.No.9, dated 1.2.2006.

It is not in dispute in this case that the petitioner was appointed as a Presidentof District Forum and his salary and allowances are fixed in terms of the A.P.Consumer Protection Rules, 1987 prior to amendment to Rule 3(1) of the said Rulesvide G.O.Ms.No.9, dated 1.2.2006. Honorarium prescribed for the President of aDistrict Forum prior to amendment by G.O.Ms.No.9, dated 1.2.2006 was aconsolidated amount of Rs.10,000/- per month and if a retired District Judge isappointed on whole time basis, he/she shall receive honorarium of last salary drawnminus pension or Rs.10,000/- whichever is beneficial to him/her. Though in the orderappointing the petitioner, it was inadvertently mentioned as last pay drawn minuspension, but, as the petitioner was appointed by fixing honorarium in terms ofG.O.Ms.No.26, dated 4.4.2000 the petitioner is entitled to draw honorarium of lastsalary drawn minus pension or Rs.10,000/- whichever is beneficial to him in terms ofsub-rule (1) of Rule 3 of the A.P. State Consumer Protection Rules, 1987 which atthe time of the appointment of the petitioner and after amendment by virtue ofG.O.Ms.26 dated 4.4.2000 reads thus:

“3. Salaries and other allowances and terms and conditions of the President andmembers of District Forum:- (1) The President of the District Consumer Forum shall receive aconsolidated amount of honorarium of Rs.10,000/- (Rupees ten thousand only) per month andif a retired District Judge is appointed on whole time basis, shall receive an honorarium of lastsalary drawn minus pension or Rs.10,000/- (Rupees ten thousand only), whichever isbeneficial to him.”

On 1.2.2006, G.O.Ms.No.9 came to be issued making amendment to theAndhra Pradesh State Consumer Protection Rules, 1987 to the following effect:

“ The President of the District Consumer shall receive a consolidated amount of honorarium of Rs.18,000/- (Rupees eighteen thousand only) per month if retired District Judgeis appointed.”

But, in view of the protection provided under sub-rule (6) of Rule 3 of the A.P.StateConsumer Protection Rules, 1987 which reads:

“ The terms and conditions of the service of the President and the members of the DistrictForum shall not be varied to their disadvantage during their tenure of office.”

G.O.Ms.No.9, dated 1.2.2006 by which honorarium of Rs.18,000/- per month is fixed,if retired District Judge is appointed, is not applicable to the Presidents andMembers who were appointed prior to the issuance of said G.O. and the same canonly be made applicable to those who have been appointed subsequent to1.2.2006, as any attempt to vary the terms and conditions of the Presidents andMembers of the District Fora appointed prior to the issuance of the said G.O. wouldbe contrary to sub-rule (6) of Rule 3.

Coming to the aspect of pension to be deducted from the last drawn salary, there isno reason for claiming honorarium by deducting only the net pension. The word‘pension’ used in Rule 3(1) of the A.P. State Consumer Protection Rules, 1987 is agross pension without apportionment towards commutation. In the case of apensioner, a portion of whose pension has been commuted before re-employment,the original amount of the pension should be taken into consideration in fixing thetotal receipts during re-employment or continued employment and not merely theuncommuted pension. Even the commuted portion is nothing but a part of pensionpaid to the retired employee. As such, there is no valid basis to deduct only netpension leaving the commuted portion of the pension.

As far as the fixation of pay pursuant to the recommendation of the National JudicialPay Commission and the payment of arrears is concerned, I.A.No.152 of 2004stated to have been filed by the Government has been ordered by clarifying as to therate of D.A. to be merged in such fixation. Therefore, the pay of the District Judgeshas to be refixed in terms of the order passed by the Apex Court and as the paystands fixed even prior to the date of appointment of the petitioners as Presidents,the petitioners in all these three cases are entitled for the honorarium taking intoaccount the last drawn salary arrived at after fixation in the Revised Pay Scales interms of the order passed by the Honourable Supreme Court minus gross pensioni.e. net pension plus commuted portion, or, Rs.10,000/- (Rupees ten thousand only),whichever is beneficial to them.

Though the petitioners have claimed arrears of salary through their representation,but their actual entitlement to the same can be arrived at only after fixation of theirpay pursuant to the implementation of the orders passed by the HonourableSupreme Court in I.A.No.152 of 2004. Immediately after fixation of the last drawnsalary of the petitioners by the competent authority, the second respondent shallwork out the honorarium payable to the petitioners in all these writ petitions in termsof the findings of this court in this order and take necessary steps for payment ofarrears of salary, if any, by addressing to the first respondent. In case it is found thatthe petitioners are entitled for arrears of salary on account of honorarium in terms ofthe order passed by this court, the first respondent shall pay the said amount to thepetitioners for the service rendered by them to the various District fora.

In the result, the writ petitions are disposed of in the terms stated supra. No costs.

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29--12—2006 R.SUBHASH REDDY, J.

VR