WP/3787/2006 of G. Bhupathi Reddy, Vs Government of Andhra Pradesh, on 29 December 2006

COMMON ORDER:

In all these three writ petitions, as common questions arisesfor consideration, they are heard together and are being disposed ofby this common order.

For the sake convenience in disposal of the cases, I refer tothe facts mentioned in Writ Petition No.3787 of 2006, which aresimilar in the other two cases also.

The petitioner was a retired District Judge Grade-I andappointed as President of the Consumer Disputes RedressalForum, which is known as a District Forum established underSection 9 of the Consumer Protection Act, 1986. He retired on31.10.2001 and thereafter, he was given the benefit of SelectionGrade from 31.7.2001 to 31.10.2001 vide G.O.Ms.No. 71, Law (LA &J SCF) Department dated 28.6.2004. The petitioner was appointedas the President of District Forum-I, Hyderabad by the firstrespondent-Government by G.O.Ms.No.58, dated 24.9.2001. Thesalaries and other allowances and terms and conditions of thePresident and members of District Forum are governed by theAndhra Pradesh State Consumer Protection Rules, 1987, which areframed in exercise of powers under sub-section (2) of Section 30 ofthe Consumer Protection Act, 1986. In view of sub-rule 3(1) of theA.P. State Consumer Protection Rules, 1987, while appointing thepetitioner as the President of District Forum-I of Hyderabad videG.O.Ms.No.58, Food, Civil Supplies and Consumer Affairs (CS.III)Department, dated 24.9.2001, it is stated that he shall draw aconsolidated honorarium of Rs.10,000/- (Rupees ten thousand only)per month, or last pay drawn minus pension per month, whichever is beneficial to him as laid down in G.O.Ms.No.26, dated 4.4.2000. Inthe light of the above said appointment orders issued by fixing thehonorarium as per G.O.Ms.No.26, dated 4.4.2000, the petitioner wasdrawing honorarium as per the last drawn salary minus net pension.

However, the Government has amended Rules by issuingG.O.Ms.No.9, dated 1.2.2006 fixing the honorarium for the Presidentof the District Forum, at Rs.18000/- per month if retired DistrictJudge is appointed. Consequent to said orders issued by theGovernment in G.O.Ms.No.9, dated 1.2.2006, the secondrespondent – A.P.State Consumer Disputes RedressalCommission, Hyderabad had issued a letter dated 2.2.2006directing the Presidents of the District Consumer Fora to claimconsolidated amount of honorarium of Rs.18000/- per month interms of G.O.Ms.No.9, dated 1.2.2006. Thereafter, circularinstructions were also issued by the second respondent-Commission vide proceedingsRoc.No.127.APSCDRC/ACCTS.1/2005 dated 17.2.2006 to thePresidents (Retired District Judges) to draw their salary in pre-revised pay scales and to draw monthly Honorarium in the RevisedPay Scales only after scrutiny and approval of the fixation by theCommission. Therefore, questioning G.O.Ms.No.9, dated 1.2.2006and the circulars of the second respondent dated 2.2.2006 and17.2.2006, this writ petition is filed.

It is stated in the affidavit filed in support of the writ petition thatwhen the petitioner was appointed as President of the DistrictForum, the terms and conditions with regard to honorarium weregoverned by the rules framed in G.O.Ms.No.26, Food, Civil Suppliesand Consumer Affairs (CS.III) dated 4.4.2000 and as such, it is notopen for the first respondent Government to vary the terms andconditions of service to their disadvantage during their tenure ofoffice. It is also stated that as per the recommendations of the National Judicial Pay Commission, which was accepted by theGovernment in G.O.ms.No.113, Law (LA & J SC.F) Departmentdated 1.11.2004, the salary of the petitioner was revised. In thatview of the matter, he is entitled for drawal of salary and arrears bycalculating the last drawn salary of the petitioner in the revised payscales minus net pension, which was being paid to the petitioner. Itis further stated that as much as it is simply stated as last drawnsalary minus pension, the net pension which was being paid to thepetitioner should be deducted from the last drawn salary. It is alsostated that taking into account the last drawn salary in the revisedpay scales, honorarium was fixed in respect of some of some of thesimilarly placed Presidents in other Districts and arrears were paid,but, in spite of representation to the respondents, arrears are notbeing paid to the petitioner.

Counter affidavit is filed on behalf of the respondents. It isstated in the counter affidavit that in the order appointing thepetitioner as President, honorarium was fixed at Rs.10,000/- or lastpay drawn minus pension, whichever is beneficial to the petitionerand as such, petitioner cannot claim the honorarium basing on thelast salary drawn by him in the revised pay scales. It is furtherstated that the petitioner and the other similarly placed personswere drawing honorarium consisting of their last salary drawn lessnet pension leaving the commuted portion in the pre-revisedscales. In the counter affidavit, a reference is also made to theclarification issued by the first respondent-Government vide MemoNo.113/CS.III(2)/06-1 dated 16.2.2005 clarifying that the retiredDistrict Judges, when they are re-employed to work as Presidents inDistrict Consumer Fora in the State, their pay shall be regulatedbased on the ‘last pay less pension’ and “pension” means the grossmonthly pension payable prior to commutation and last pay drawnmeans actual pay drawn before his retirement on which original

pension was sanctioned. Further, it is stated that as much as theGovernment has already amended the Rules by issuingG.O.Ms.No.9, dated 1.2.2006 fixing the consolidated honorarium ofRs.18,000/- per month, the Presidents are entitled only forRs.18,000/- if a retired District Judge is appointed as President andas 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 therepresentation of the petitioner, it is stated that questioning the rateof D.A. to be allowed during the fixation of pay in the revised payscales of Judicial Officers, the State has filed I.A.No.152 of 2004 inW.P.No.1022 of 1989 before the Supreme Court and the same ispending consideration.

Though the petitioner has questioned the validity ofG.O.Ms.No.9, dated 1.2.2006, by which, the rules relating to salaryand other allowances and the terms and conditions are amended bymaking amendment to the A.P. State Consumer Protection Rules,1987, but, however, the learned counsel has confined his argumentto the applicability of the said rules to the petitioners who areappointed prior 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 wasappointed as a President of District Forum and his salary andallowances are fixed in terms of the A.P. Consumer ProtectionRules, 1987 prior to amendment to Rule 3(1) of the said Rules videG.O.Ms.No.9, dated 1.2.2006. Honorarium prescribed for thePresident of a District Forum prior to amendment by G.O.Ms.No.9,dated 1.2.2006 was a consolidated amount of Rs.10,000/- permonth and if a retired District Judge is appointed on whole timebasis, he/she shall receive honorarium of last salary drawn minuspension or Rs.10,000/- whichever is beneficial to him/her. Though in the order appointing the petitioner, it was inadvertently mentionedas last pay drawn minus pension, but, as the petitioner wasappointed by fixing honorarium in terms of G.O.Ms.No.26, dated4.4.2000 the petitioner is entitled to draw honorarium of last salarydrawn minus pension or Rs.10,000/- whichever is beneficial to himin terms of sub-rule (1) of Rule 3 of the A.P. State ConsumerProtection Rules, 1987 which at the time of the appointment of thepetitioner and after amendment by virtue of G.O.Ms.26 dated4.4.2000 reads thus:

“3. Salaries and other allowances and terms and conditions of thePresident and members of District Forum:- (1) The President of theDistrict Consumer Forum shall receive a consolidated amount ofhonorarium of Rs.10,000/- (Rupees ten thousand only) per month and if aretired District Judge is appointed on whole time basis, shall receive anhonorarium of last salary drawn minus pension or Rs.10,000/- (Rupees tenthousand only), whichever is beneficial to him.”

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

“ The President of the District Consumer shall receive aconsolidated amount of honorarium of Rs.18,000/- (Rupees eighteenthousand only) per month if retired District Judge is appointed.”

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

“ The terms and conditions of the service of the President and themembers of the District Forum shall not be varied to their disadvantageduring 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 notapplicable to the Presidents and Members who were appointedprior to the issuance of said G.O. and the same can only be madeapplicable to those who have been appointed subsequent to1.2.2006, as any attempt to vary the terms and conditions of thePresidents and Members of the District Fora appointed prior to theissuance of the said G.O. would be contrary to sub-rule (6) of Rule

3.

Coming to the aspect of pension to be deducted from the lastdrawn salary, there is no reason for claiming honorarium bydeducting only the net pension. The word ‘pension’ used in Rule3(1) of the A.P. State Consumer Protection Rules, 1987 is a grosspension without apportionment towards commutation. In the case ofa pensioner, a portion of whose pension has been commuted beforere-employment, the original amount of the pension should be takeninto consideration in fixing the total receipts during re-employmentor continued employment and not merely the uncommuted pension. Even the commuted portion is nothing but a part of pension paid tothe retired employee. As such, there is no valid basis to deduct onlynet pension leaving the commuted portion of the pension.

As far as the fixation of pay pursuant to the recommendationof the National Judicial Pay Commission and the payment of arrearsis concerned, I.A.No.152 of 2004 stated to have been filed by theGovernment has been ordered by clarifying as to the rate of D.A. tobe merged in such fixation. Therefore, the pay of the District Judgeshas to be refixed in terms of the order passed by the Apex Court andas the pay stands fixed even prior to the date of appointment of thepetitioners as Presidents, the petitioners in all these three cases areentitled for the honorarium taking into account the last drawn salaryarrived at after fixation in the Revised Pay Scales in terms of theorder passed by the Honourable Supreme Court minus grosspension i.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 throughtheir representation, but their actual entitlement to the same can bearrived at only after fixation of their pay pursuant to theimplementation of the orders passed by the Honourable SupremeCourt in I.A.No.152 of 2004. Immediately after fixation of the last drawn salary of the petitioners by the competent authority, thesecond respondent shall work out the honorarium payable to thepetitioners in all these writ petitions in terms of the findings of thiscourt in this order and take necessary steps for payment of arrearsof salary, if any, by addressing to the first respondent. In case it isfound that the petitioners are entitled for arrears of salary on accountof honorarium in terms of the order passed by this court, the firstrespondent shall pay the said amount to the petitioners for theservice rendered by them to the various District fora.

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

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29--12—2006 R.SUBHASH REDDY, J.VR