Bombay High Court
Auroliano De Oliveira @ Auro vs State Of Goa Thr. Chief Secretary And Anr on 23 October, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1882-DB
2024:BHC-GOA:1882-DB
WP-322-2023.DOC
Andreza
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 322 OF 2023
AND
MISC. CIVIL APPLICATION NO. 276 OF 2024
Mr. Auroliano de Oliveira @ Auro, presently
working as a Member of the District
Consumer Disputes Redressal Commission,
North Goa, aged about 46 years, resident of
House no. 4, Sallem Batt, P. O. Santa Cruz,
Near Vernekar House, Merces, Tiswadi, Goa. ... Petitioner
Versus
1. State of Goa, through the Chief Secretary,
Secretariat, Porvorim, Bardez, Goa.
2. The Director, Department of Civil Supplies
& Consumer Affairs, Ex-officio Joint
Secretary, Junta House, 2nd Floor, Panaji, ...Respondents
Goa, 403 001.
Mr. Y. V. Nadkarni, Advocate with Ms. Simran Khadilkar
and Mr. Nilay Naik, Advocates for the Petitioner.
Mr. Manish Salkar, Government Advocate for the
Respondents.
_______________________
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ
RESERVED ON : 16th October 2024
PRONOUNCED ON: 23rd October, 2024
_______________________
JUDGMENT (Per M. S. Karnik, J.)
1. This petition under Article 226 of the constitution of India is
for the following reliefs :
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(a) to issue a writ of Mandamus or an appropriate
order or direction directing the Respondents to pay
to the Petitioner salary in terms of Sub Rules (2) &
(4) of Rule 3 of the Consumer Protection (Salary,
Allowances and Conditions of Service of President
and Members of the State commission and District
Commission), Model Rules, 2020 with effect from
20.07.2020 till 3.07.22 with interest at the rate of
12% per annum till date of payment and further
additional interest of 9% per annum from the date of
order till date of its actual payment.
(b) To issue a writ of Mandamus or appropriate
order or direction directing the Respondents to pay
to the petitioner the following allowances : (i) D.A.
allowance at the prescribed rates on the revised basis
pay. (ii) H.R.A. at the rate of 20% on the revised
basic as per Model Rules (iii) other applicable
allowances such as Medical/Sumptuary allowance, as
are admissible to the Deputy Secretary of the State of
Goa.
(c) to award costs
(d) to grant such other or further relief as this
Hon'ble Court deems just & proper in the
circumstances of the case."
2. The facts of the case are that in June 2017, the Government
appointed the petitioner as the Member of the Consumer Redressal
Forum, North Goa ('Forum', for short), in exercise of the powers
conferred under section 10 of the Consumer Protection Act 1986 ('Act
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of 1986', for short) and on recommendation of the Selection
Committee under sub-section (1A) of Section 10 of the Act. This
appointment was as a whole time Member of the Consumer Forum,
North Goa. Under the said order, the petitioner was entitled to
receive the salary of the Judge of the District Court.
3. Along with the petitioner, on the same date, Shri Pradip
Sawaikar was appointed as a President of the Forum at South Goa.
Shri Sebastian Vales was appointed as President of the Forum, North
Goa.
4. On 16th October 2018, the respondents enhanced the
remuneration of the Members of the District Forums North and
South Goa. In the year 2019, Parliament enacted the Consumer
Protection Act, 2019 (hereinafter referred to as the 'Act of 2019', for
short) to provide for the protection of the interests of consumers and
for the said purpose to establish authorities for timely and effective
administration and settlement of consumers disputes and for matters
connected therewith or incidental thereto. By Notification dated
15.07.2020, the Central Government appointed the 20 th day of July
2020 as the date on which the Act of 2019 shall come into force. The
Act of 2019 repealed the Act of 1986 and the District Forum was re-
designated as District Commission.
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5. The petitioner joined the office as the Member of the District
Commission North Goa and the tenure of the petitioner as former
Member of the Consumer Redressal Forum, North Goa, completed on
03.07.2022; presently the petitioner is re-appointed as a Member of
the Consumer Redressal Commission, North Goa.
6. Learned Counsel for the petitioner submits that in view of the
Model Rules 2020 ('Model Rules' for short), the petitioner is entitled
to receive salary in said scale equal to the pay of the Deputy Secretary
of the State w.e.f. 20.07.2020 i.e. the date on which the Model Rules
framed by the Central Government came into force.
7. The submission of the learned Counsel for the petitioner is that
w.e.f. 20.07.2020 i.e. the date on which the Model Rules were framed
by the Central Government came into force, till 03.07.2022 (date on
which the petitioner completed his term), the petitioner is entitled to
receive salary in the scale equal to the pay of the Deputy Secretary of
the State with an annual increase of three percent per annum.
8. Learned Government Advocate Mr. Salkar submitted that the
petitioner was appointed as a Member of the Consumer Redressal
Forum in terms of the Act of 1986 as a whole time Member. It is by
virtue of the appointment under the Act of 1986 that he was entitled
to receive the salary of the Judge of the District Court. Upon
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enactment of the Act of 2019, it is only those Members who are
appointed under the Act of 2019, who are entitled to receive salary
and other benefits in terms of the Act of 2019. The Petitioner's
entitlement of salary, allowances and other terms and conditions will
continue under the Act of 1986. Mr. Salkar submits that Section 31 is
specific in as much that the provisions clearly contemplates that the
petitioner shall hold office as such Member till the completion of his
term for which he has been appointed. This, according to Mr. Salkar means
that the petitioner continues to be governed by the provisions of the Act of
1986 and that those appointed after the Act of 2019 came into force, are
entitled to the salary and allowances in terms of the Act of 2019.
9. Heard learned Counsel for the parties.
10. Section 30 of the Act of 2019, reads thus :
"30. Salaries, allowances and other terms and
conditions of the service of President and members of
the District Commission.
The State Government may, by notification, makes
rules to provide for salaries and allowances and other
terms and conditions of service of the Presidents and
Members of the District Commission."
11. Section 31 of the Act of 2019, reads thus :
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"31. Any person appointed as President or, as the
case may be, a member of the district Commission
immediately before the commencement of this Act
shall hold office as such President or, as the case may
be, a member of the District Commission
immediately before the commencement of this Act
shall hold office as such President or, as the case may
be, as member till the completion of his terms for
which he has been appointed."
12. Section 102 of the Act of 2019, reads thus :
"(1) The State Governments may, by notification,
make rules for carrying out the provisions of this Act.
Provided that the Central Government may frame
model rules in respect of all or any of the matters
with respect to which the State Government may
make rules under this section, and where any such
rules have been framed in respect of such matter they
shall apply to the State until the rules in respect of
that matter is made by the State Government and
while making any such rules, so far as practicable,
they shall conform to such model rules.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for all or any of the following matters
namely-
....
(h) The salaries and allowances payable to and other
terms and conditions of service of the President and
members of the Commission under Section 30."
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13. Sub-rules (2) and (4) of Rule 3 of the Model Rules, 2020
framed by the Central Government reads as follows :
"3. Salaries & allowances payable to the President &
Members of the District Commission.
(1) ...
(2) A Member shall receive a pay equal to
the pay at the minimum of the scale of pay
of a Deputy Secretary of the State
Government and other allowances as
admissible to such officer.
(3)...
(4) There shall be an annual upward
revision of the pay of the President and the
Member at the rate of 3%"
14. In the context of the provisions of the Act of 2019, it is not possible
for us to give a narrow meaning to the provisions of Section 31 of the Act of
2019. Undoubtedly, the appointment of the petitioner was in terms of the
Act of 1986. The petitioner was receiving salary and allowances in terms of
the Rules framed in exercise of the powers conferred by the Act of 1986.
15. Section 31 ordains that a Member who was appointed before the
commencement of the Act of 2019, shall hold office as such till the
completion of his term for which he has been appointed. The transitional
provision therefore enables the Member to hold office till the completion of
his term.
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16. In terms of Section 30 of the Act of 2019, the State Government is
empowered by notification to make rules to provide for salaries and
allowances and other terms and conditions of service of the Members of the
District Commission.
17. In our considered view, Section 30 cannot be read to mean that it is
meant to cover the cases of only those Members who are appointed after
the Act of 2019 came into force. Section 30 and Section 31 are to be
harmoniously read together. The rules made providing for salary and
allowances and other terms and conditions of service of the Members of the
District Commission will apply to those Members who continue to hold
office under Section 31 after the Act of 2019 comes into force. Whereas
Section 31 specifically provides that a Member appointed before the
commencement of the Act of 2019 shall hold office as such Member till the
completion of his term for which he has been appointed; Section 30 is a
provision empowering the State Government to make rules to provide for
salaries and allowances and other terms and conditions of service of the
Presidents and Members of the District Commission. Section 30 does not
make any distinction between a Member who is appointed under the Act of
1986 and continues to hold office after the Act of 2019 came into force and
the one who is appointed after the Act of 2019 come into force.
18. There is nothing in Section 30 to indicate that the Members
who continue to hold office after the Act of 2019 comes into force are
not entitled to the same salary and allowances as those Members
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appointed after the Act of 2019 comes into force. The intent of
Section 30 is not to create two classes of Members though
discharging the same functions as Members of the Commission.
Section 30 would include a Member who continues to hold office
after the Act of 2019 comes into force, till the completion of his term
for which he was appointed.
19. The petitioner is claiming the benefits of salary and allowances
for the period from 20.07.2020 till 03.07.2022. Atleast till
03.07.2022, the State Government did not make rules to provide
salaries and allowances to the Members in terms of Section 30 of the
Act of 2019. In terms of Section 102 of the Act of 2019, the Model
Rules 2020 framed by the Central Government are applicable to the
Members of the Commission. In terms of such Model Rules, the
Member shall receive pay equal to the pay at the minimum of the
scale of pay of a Deputy Secretary of the State Government and other
allowances as admissible to such officer.
20. Learned Counsel for the petitioner relied upon the decision of
the Gauhati High Court in Vijay Kumar L. vs. The State of
Assam & 4 Ors.1 We are in respectful agreement with the view
taken by the learned Single Judge of the Gauhati High Court.
1 WP(C) 5223/2022 decided on 05.06.2024
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21. We, therefore, have no hesitation in allowing the Writ Petition.
The Writ Petition is allowed. The respondents are directed to pay to
the petitioner salary in terms of sub-rules 2 and 4 of Rule 3 of the
Consumer Protection (Salary, allowances and condition of service of
President and Members of the State Commission and District
Commission) Model Rules, 2020 w.e.f. 20.07.2020 till 03.07.2022
with all consequential benefits as admissible within a period of three
months from today.
22. There shall be no order as to costs.
23. Applications, if any, stands disposed of.
VALMIKI MENEZES, J M. S. KARNIK, J
23rd October 2024
