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Judgment
M. Jaichandren, J.—Since, the issues involved in all the writ petitions are similar in nature, they have been taken up together and a common order is being passed.
The writ petition, in W.P. No. 24940 of 2003, had been filed praying that this Court may be pleased to issue a writ of Certiorarified Mandamus to call for and quash the impugned proceedings of the second respondent therein, dated 21.8.2003, and to direct the respondents to restore the petitioner, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, with all attendant benefits, including the salary, allowances and the monetary value of the perquisites, from the date of the impugned order, till the petitioner attains the age of 67 years or the completion of the term of 5 years from the date of his appointment, whichever is earlier.
The writ petition, in W.P. No. 36094 of 2002, had been filed by the petitioner praying that this Court may be pleased to issue a writ of Certiorarified Mandamus to call for and quash the proceedings of the third respondent therein, dated 9.8.2002, and to direct the respondents to restore the amenities and perks provided to the petitioner, with immediate effect.
The writ petition, in W.P. No. 36144 of 2002, had been filed praying that this Court may be pleased to issue a writ of Declaration to declare that the petitioner is entitled to hold the office of the President of the State Disputes Consumer Redressal Commission, Pondicherry, on a full time basis, for a period of five years or till his completion of 67 years of age, whichever is earlier and to pass other appropriate orders.
The petitioner has stated that he had served in the various Districts in the state of Andhra pradesh, as a District and Sessions Judge, from the year, 1977. He had been appointed as a Judge of the Andhra Pradesh High Court, on 4.11.1994. Later, on 23.11.1994, he had been transferred to the High Court of Madras. He had continued as such, till he had attained the age of superannuation, on 16.12.2000. While so, based on the letter, dated 10.9.2001, issued by the Registrar General of the High Court of Madras, on the directions issued by the then Acting Chief Justice, the petitioner had given his consent for his appointment, as the President of the State Consumer Disputes Redressal Commission, Pondicherry. The petitioner had given his consent on the assumption that his appointment as the President of the State Consumer Disputes Redressal Commission, Pondicherry, would be on a whole time basis. By a notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, the petitioner had been appointed as the President of the State Consumer Disputes Redressal Commission, Pondicherry. According to the said Government Order, dated 15.10.2001, the petitioner had been appointed as the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a period of four years, with effect from the date of his assumption of charge, on a part time basis. The petitioner had, by his letter, dated 17.10.2001, had assumed charge, as the President of the State Consumer Disputes Redressal Commission, Pondicherry.
The said appointment had been made, by way of the notification, dated 15.10.2001, issued in exercise of the powers conferred by clause (a) of sub-section (1) of Section 16 of the Consumer Protection Act, 1986, read with the Notification S.O. No. 469(E), dated 15.5.1987, issued by the Government of India. By a notification, in G.O. Ms. No. 20, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 31.12.2001, an amendment had been made in Rule 6 of the Pondicherry Consumer Protection Rules, 1987. In Rule 6 of the Pondicherry Consumer Protection Rules 1987, sub Rule (1) had been substituted as follows:
(1) The president of the State Commission shall receive the salary of the Judges of a High Court if appointed on whole time basis or a consolidated honorarium of Rs. 5,000/- per month plus Rs. 500/- per day for the sitting, if appointed on part time basis. Other members, if sitting on whole time basis, shall receive a consolidated honorarium of Rs. 3500/- per month and if sitting on part time basis a consolidated honorarium of Rs. 1500/- per month plus Rs. 200/- per day for sitting.
The petitioner had stated that, as per Section 16 (3) of the Consumer Protection Act, 1986, every member of the State Commission can hold the post of the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a term of five years or upto the age of 67 years, whichever is earlier. As such, the petitioner is entitled to continue in the office, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, upto 16.12.2005, on a whole time basis. However, by way of the impugned notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, the petitioner had been appointed only on a part time basis, for a period of four years from the date of his assumption of charge, contrary to Section 16(3) of the Consumer Protection Act 1986. Further, Section 16(2) of the Act states that the salary or honorarium and the allowances payable 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.
The words "including tenure of office" in clause 2 of section 16 of the Act had been omitted by Act 50 of 1993. However, the State Government is not empowered to prescribe the salary and the other allowances of the President of the State Consumer Disputes Redressal Commission, Pondicherry, as the President is appointed from the qualified members of the Higher Judiciary. However, in exercise of the powers conferred by sub Section (2) of Section 30 of the Consumer protection Act, 1986, read with the Government of India Notification S.N.469(E), dated 15.5.1987, the salary and other allowances and the terms and conditions of the President and the Members of the State Consumer Disputes Redressal Commission, Pondicherry, had been fixed under Rule 6 of the Pondicherry Consumer Protection Rules, 1987.
By way of a notification in G.O. Ms. No. 20, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 31.12.2001, the honorarium fixed, under Rule 6, had been enhanced. Accordingly, the consolidated honorarium of Rs. 2,000/- fixed for the President of the State Consumer Disputes Redressal Commission, Pondicherry, appointed on whole time basis, had been increased to Rs. 5,000/- per month, along with a sum of Rs. 500/- per day for the sitting.
The petitioner had claimed that his appointment by way of the impugned notification, dated 15.10.2001, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, appointing the petitioner as the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a period of four years from the date of his assumption of charge, on a part time basis, and the fixation of the salary and other allowances, are contrary to the relevant provisions of the Consumer Protection Act, 1986, and the Rules framed thereunder.
The petitioner had further stated that he had been paid travelling and other allowances, as per the Rules applicable to his appointment as the president of the State Consumer Disputes Redressal Commission, Pondicherry. However, based on certain audit objections, with regard to the facilities provided to the President of the State Consumer Disputes Redressal Commission, Pondicherry, the payment of such allowances had been withheld. In such circumstances, the petitioner had made several representations to the Chief Secretary, Government of Pondicherry, and the Lieutenant Governor of Pondicherry, stating that he was entitled to get travelling and daily allowances and the cost of conveyance, and that the bills raised by him had not been cleared, upto 8.8.2002. Since, the response for his representations were in the negative, he had approached this Court. While so, by a communication, dated 9.8.2002, the petitioner had been informed that he was not entitled to the daily allowances and the conveyance facilities, as claimed by him. In such circumstances, the petitioner had filed a writ petition, in W.P. No. 36094 of 2002, for quashing the said communication, dated 9.8.2002, and for restoration of the daily allowances and the conveyance facilities, as prayed for by the petitioner. He had also filed a writ petition, in W.P. No. 36144 of 2002, praying for a writ of declaration to declare that he is entitled to hold the post of President on full time basis, for a period of five years or till he attains the age of 67 years, whichever is earlier.
Aggrieved by the fact that the petitioner had filed the said writ petition before this Court, the Under Secretary to Government, (Civil Supplies & Consumer Affairs), Government of Pondicherry, had terminated the service of the petitioner, by his order, dated 21.8.2003. The said order, dated 21.8.2003, had been challenged by the petitioner, in W.P. No. 24940 of 2003.
The First Bench of this Court, by its order, dated 15.3.2005, had set aside the order of termination, dated 21.8.2003, and had held that the petitioner would be entitled to his salary, allowances and perquisites, from the date of the said impugned order, till he completes the term of 5 years from the date of his appointment or till he attains the age of 67 years, whichever is earlier. The First Bench had also directed that the entire amount due to the petitioner shall be paid to him, with interest at 10% per annum, within a period of two months from the date of receipt of a copy of the said order. Challenging the order, dated 15.3.2005, made in W.P. No. 24940 of 2003, an appeal had been filed before the Supreme Court of India, in Civil Appeal No. 3616 of 2005. Before the Supreme Court, it had been submitted that the petitioner had been appointed as the President of the State Consumer Disputes Redressal Commission, Pondicherry, vide Notification dated 15.10.2001, issued u/s 16(1)(a) of the Consumer Protection Act, 1986, for a period of four years, on a part-time basis.
It had also been stated that in an Audit conducted by the Accountant General (Audit) Tamil Nadu and Pondicherry, in the month of April, 2002, certain adverse observations had been made, with regard to the drawal of dearness allowance and with regard to the telephone bills of the State Commission and the District Forum, Pondicherry. In such circumstances, the Director of Civil Supplies, vide his letter, dated 9.8.2002, had informed the petitioner in the writ petitions that he would not be entitled to draw certain allowances.
Challenging the said communication, the petitioner had filed a writ petition, in W.P. No. 36094 of 2002. Another writ petition had been filed by the petitioner, in W.P. No. 36144 of 2002, praying for a writ of declaration that he is entitled to hold the post of the President of the State Consumer Disputes Redressal Commission, Pondicherry, on a full time basis, for a period of five years or till the completion of 67 years of age, whichever is earlier.
It had also been stated that during the pendency of the said writ petitions, the Government of Pondicherry had issued a notification, dated 21.8.2003, terminating the tenure of the petitioner as the President of the State Consumer Disputes Redressal Commission, Pondicherry, well before the expiry of the four years period specified in the notification, dated 15.10.2001. The said notification had been challenged by the petitioner, in W.P. No. 24940 of 2003.
The Division Bench of this Court had allowed the writ petition, in W.P. No. 24940 of 2003, and had declared that the petitioner is entitled to the salary, allowances and other monetary benefits till he attained the age of 67 years or on his completion of five years in the said post, from the date of his appointment, whichever is earlier. Challenging the said order, dated 15.3.2005, made in W.P. No. 24940 of 2003, the appeal had been filed before the Supreme Court of India in Civil Appeal No. 3616 of 2005.
On hearing the submissions made on behalf of the parties concerned, the Supreme Court had held that the Division Bench of this Court had committed a serious error by declaring that the petitioner would be entitled to all the benefits to the post of the President of the State Consumer Disputes Redressal Commission, Pondicherry, as if he had been appointed for a period of five years, ignoring the fact that the only prayer made in the writ petition, in W.P. No. 24940 of 2003, was for quashing the notification, dated 21.8.2003, by which the tenure of the petitioner had been abruptly curtailed, while the other two writ petitions filed by the petitioner are pending adjudication.
The Supreme Court had further stated that it was inclined to agree with the contentions of the learned counsel appearing on behalf of the appellants, in the civil appeal filed before the said Court, that the impugned order of the Division Bench of the High Court of Madras had the effect of amending the terms and conditions incorporated in the notification, dated 15.10.2001, by which the petitioner in the writ petition, who is the first respondent in the civil appeal, had been appointed as the President of the State Consumer Disputes Redressal Commission, Pondicherry.
The Supreme Court had further held that the Division Bench of the High Court of Madras ought not to have passed the impugned order, without pronouncing upon the legality of the notification, dated 15.10.2001. Accordingly, the Supreme Court had allowed the civil appeal, setting aside the order of the Division Bench of the High Court of Madras, dated 15.3.2005. The Supreme Court had also issued a direction to the High Court of Madras to hear the parties concerned and to decide all the writ petitions filed by the first respondent in the civil appeal, by a single order, without being influenced by the observations contained in the impugned order of the Division Bench of the High Court, as well as those, which had been made in the order of the Supreme Court. In such circumstances, all the above writ petitions filed by the petitioner had been taken up together for hearing and disposal.
The learned counsel appearing on behalf of the petitioner in the above writ petitions had submitted that the letter, dated 9.8.2002, issued by the Director of Civil Supplies, the third respondent in W.P. No. 36094 of 2002, stating that the petitioner would not be entitled to the daily allowances and for the conveyance facilities for his travel to Chennai, as Pondicherry was specified to be the head quarters for the State Commission. The said communication was contrary to Sub Rule 7 of Rule 6 of the Pondicherry Consumer Protection Rules,1987, which prescribes that the terms and conditions of the service of the President of the State Consumer Disputes Redressal Commission, Pondicherry, and the Members shall not be varied to their disadvantage during their tenure of office. The action of the respondents in withdrawing the facilities provided to the petitioner would amount to direct interference by the executive in the administration of justice, contrary to the decision of the Supreme Court reported in All India Judges'' Association Vs. Union of India and others, . The action of the respondents is also contrary to the decision of the Division Bench of this Court reported in Justice S.T. Ramalingam Vs. State AIR 1994 MAD 252.
The learned counsel appearing on behalf of the petitioner had further submitted that the notification, dated 15.10.2001, issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, cannot be held to be valid in the eye of law, as it is contrary to Sub Section 3 of Section 16 of the Consumer Protection Act, 1986, read with Rule 6(4) of the Pondicherry Consumer Protection Rules, which prescribes that every member of the State Commission shall hold the post of the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a term of five years or upto the age of 67 years, whichever is earlier. Contrary to the said provisions, the notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, had appointed the petitioner as the President of the State Consumer Disputes Redressal Commission, Pondicherry, only for a period of four years and on a part time basis.
The learned counsel appearing on behalf of the petitioner had further stated that the act of appointing the petitioner for a period of four years on a part time basis, goes contrary to the spirit of the Consumer Protection Act, 1986. The appointment of a person, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a limited period of four years, on a part time basis, would lead to an unhealthy trend. The executive would be in a position to wield undue influence on a person, if they are allowed to make such appointment, contrary to the provisions of the Consumer Protection Act, 1986, and it would make the President and the Members of the State Consumer Disputes Redressal Commission, Pondicherry, unduly dependent on the executive. Further, such a situation would be destructive of the independence of the Judiciary and would dilute the Doctrine of Separation of Powers between the executive and the judiciary, enshrined in the Constitution of India. It would have a serious repercussion in the efforts of the State Commission to maintain its dignity and independence.
The learned counsel appearing on behalf of the petitioner had further submitted that the respondents had acted in a vengeful manner, adding insult to injury, by issuing a notification, dated 21.8.2003, terminating the tenure of the petitioner, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, due to the petitioner approaching this Court, by way of filing the writ petition, in order to agitate his rights, as per law.
The learned counsel appearing on behalf of the petitioner had further submitted that, as the act of the respondents, in issuing the said notification is totally unlawful, the First Bench of this Court, by an order, dated 15.3.2005, made in W.P. No. 24940 of 2003 had set aside the same and had granted all the monetary and other allowances due to the petitioner and had declared that the petitioner was entitled to continue as the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a period of five years from the date of his assumption of charge in the said post, pursuant to the notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, or till he attained the age of 67 years, whichever is earlier. However, the Supreme Court had set aside the said order and had remitted the matter back to this Court to decide all the issues arising in the above writ petitions, together.
The learned counsel appearing on behalf of the petitioner relying on the decision of the Supreme Court, in ITW Signode India Ltd. Vs. Collector of Central Excise, , wherein, it had been held that a subordinate legislation should be read in its context and it must give way if it conflicts with the parent Act, which is the substantive statute, had submitted that any rule or notification, which is in conflict with the provisions of the Consumer Protection Act, 1986, should be held to be null and void. As such, the notification, dated 15.10.2001, appointing the petitioner as the President of the State Consumer Disputes Redressal Commission, Pondicherry, for a period of four years, with effect from the date of his assumption of charge, on a part time basis, is contrary to sub Section 3 of Section 16 of the Consumer Protection Act, 1986, which states that every member of the State Commission shall hold office for a term of five years or upto the age of 67 years, whichever is earlier and therefore, the terms and conditions, as specified in the said notification shall be invalid in the eye of law.
He had also relied on the decision of the Supreme Court, in Bharathidasan University Vs. All India Council for Technical Education (AIR 2001 SC 2861) wherein, it had been held that the fact that the regulations may have the force of law or when made have to be laid down before the legislature concerned do not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations are confined to certain limits and made to flow in a well defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the courts are bound to ignore them when the question of their enforcement arise and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack.
Counter affidavits had been filed on behalf of the respondents denying the claims and the allegations made on behalf of the petitioner.
It has been stated that, based on the objections raised by the Accountant General (Audit) Pondicherry, the payment of dearness allowance to the petitioner would not be made, as Pondicherry was his headquarters. Further, the petitioner was not eligible for the conveyance facilities claimed by him. The petitioner had been paid the honorarium as well as the sitting fee, as per the Pondicherry Consumer Protection Rules, 1987, as it was felt, at the time of the appointment of the petitioner that there was no need for a full time President for the State Consumer Disputes Redressal Commission, Pondicherry, due to the less number of cases pending before the State Commission.
The petitioner had been appointed only on a part time basis, by way of a notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001. The petitioner had assumed charge based on the said notification, which had clearly prescribed that the appointment would only be for a period of four years, on a part time basis. Having accepted the said condition, it would not be open to the petitioner to challenge the same stating that the said notification is arbitrary and contrary to the provisions of the Consumer Protection Act, 1986.
The learned Special Government Pleader appearing for the respondents had submitted that the petitioner had not challenged Rule 6 of the Pondicherry Consumer Protection Rules, 1987, which prescribes the honorarium and the sitting fee. The petitioner, having accepted the appointment, for a period of four years, on a part time basis, cannot be permitted to state that his appointment is contrary to the spirit of the Consumer Protection Act, 1986.
She had also submitted that this court does not have the power to alter the terms and conditions of the appointment, as the appointment of the President and the Members of the State Consumer Disputes Redressal Commission, Pondicherry, and their conditions of service have to be made only by the concerned State Government.
The learned counsel appearing on behalf of the respondents had relied on the decision, in V.S. Mallimath Vs. Union of India (AIR 2001 SCW 1298), wherein, it had been held that the Court, in AIR 1995 SCW 4713, on interpreting Articles 50, 214, 217, 219 and 221 of the Constitution, did come to the conclusion that a Judge of a High Court belongs to the third organ of the State, which is independent of the other two organs, namely the Executive and the Legislature. In that sense the Court had also further observed that a Judge of the High Court occupies a unique position under the Constitution. But conferring that status to a judge of the High Court, so as to enable him to discharge his duties without fear or favour, affection or ill-will, has got nothing to do in interpreting a particular provision of the Rules governing the service conditions of the Chairman and Members of the Human rights Commission, when such Judge on retirement as Chief Justice, is appointed as a member of the Human Rights Commission. By interpreting, that pension received by a retired Chief Justice of a High Court is to be deducted from the salary which he is entitled to, as a member of the Human Rights Commission, under the proviso to R.3(b), would not, in any way, affect the independence of the judiciary, nor would it affect the constitutional scheme and the unique position, a Judge occupies under the Constitution.
In view of the submissions made by the learned counsels appearing on behalf of the petitioner and the respondents and in view of the decisions cited above, we are of the considered view that the contentions raised on behalf of the petitioner cannot be countenanced.
It is not in dispute that the petitioner had accepted his appointment, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, made by way of a notification, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, in which it had been clearly stated that the appointment would be only for a period of four years, on a part time basis.
Having accepted the said condition prescribed in the notification, it is not open to the petitioner to challenge the same at a later point of time stating that the notification, dated 15.10.2001, by which he had been appointed, as the President of the State Consumer Disputes Redressal Commission, Pondicherry, is contrary to the provisions of the Consumer Protection Act, 1986, especially section 16 of the said Act. However, we are of the view that the termination of the tenure of the petitioner, by way of a notification issued by the Lieutenant Governor of Pondicherry, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, for the reason that the petitioner had approached this Court, by way of a writ petition, is arbitrary and illegal. Without doubt, it tends to lower the dignity and the respect attached to the office of the President of the State Consumer Disputes Redressal Commission, Pondicherry, especially, when the appointee is a retired Judge of the High Court, as in the present case.
There is no doubt that the State Government concerned has been ill-advised in issuing such a notification. Therefore, the act of the State Government in issuing the notification, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, terminating the tenure of the petitioner as the President of the State Consumer Disputes Redressal Commission, Pondicherry, much before the expiry of the tenure of four years prescribed in the notification, dated 15.10.2001, deserves serious condemnation.
In such view of the matter, the notification, in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, is set aside and the first respondent state Government is directed to pay the honorarium and the other allowances due to the petitioner, as per the terms and conditions of his appointment, in accordance with the Pondicherry Consumer Protection Rules, 1987, within a period of four weeks from the date of receipt of a copy of this order. The first respondent State Government shall also pay to the petitioner Rs. 15,000/- (Rupees Fifteen thousand only) as costs. The writ petition, in W.P. No. 24940 of 2003 is ordered, accordingly. However, the reliefs sought for by the petitioner in the writ petitions, in W.P. No. 36094 of 2002 and W.P. No. 36144 of 2002, cannot be granted, as we are of the view that the petitioner, having accepted the terms and conditions of his appointment, by way of a notification in G.O. Ms. No. 11, Department of Civil Supplies & Consumer Affairs, Pondicherry, dated 15.10.2001, it would not be open to him to challenge the same thereafter, on the ground that such a notification is contrary to the provisions of the Consumer Protection Act, 1986, and the Rules framed thereunder. In such view of the matter, the writ petitions stand dismissed. Connected Miscellaneous petition No. 54314 of 2002 is closed.