Himachal Pradesh High Court
State Of Himachal Pradesh vs State Of Kerala And on 17 August, 2021
Bench: Ravi Malimath, Justice, Jyotsna Rewal Dua
1
IN HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
LETTERS PATENT APPEAL No. 23 of 2010
Between :-
1. STATE OF HIMACHAL PRADESH
THROUGH THE ADITIONAL
CHIEF SECRETARY (FCS & CA)
TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2. THE PRINCIPAL SECRETARY (FINANCE)
TO THE GOVERNMENT OF HIMACHAL
PRADESH, H.P. SECRETARIAT, SHIMLA-2.
...APPELLANTS
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL, WITH
MR. RANJAN SHARMA, MR. VIKAS
RATHORE, MS. RITTA GOSWAMI,
ADDITIONAL ADVOCATE GENERALS
AND MS. SEEMA SHARMA,
DEPUTY ADVOCATE GENERAL)
AND
JUSTICE ARUN KUMAR GOEL (Retd.),
S/O LATE SHRI BABU RAM SOOD,
R/O PARK-7, BELOW NIGAM BIHAR,
SHIMLA-2.
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...RESPONDENT
(BY MR. C.N. SINGH AND
MR. SUNIL MOHAN GOEL, ADVOCATES)
.
RESERVED ON : 10th AUGUST, 2021
DATE OF DECISION : 17th AUGUST, 2021
____________________________________________________
This Appeal coming on for orders this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, delivered the following :
JUDGMENT
Whether a Judge of the High Court, on being
appointed as President of H.P. State Consumer Disputes
Redressal Commission, is also entitled to the pension as a High
Court Judge, in addition to the salary, allowances etc. admissible
to the President, H.P. State Consumer Commission under Rule
13(1) of the Himachal Pradesh Consumer Protection Rules, 2003,
is the focal point involved in this appeal.
2 The writ petitioner was a Judge of the High Court of
Himachal Pradesh and was to demit the office as such on
15.10.2005. The appellant/State issued a notification on
12.07.2005 appointing the writ petitioner as President of the
Himachal Pradesh State Consumer Disputes Redressal
Commission (in short State Commission). The writ petitioner
assumed the charge of the President, State Commission on
whole time basis on 05.10.2005. Two years later, i.e. on
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25.10.2007, the petitioner represented to the State against the
terms of his appointment denying him pension as a High Court
.
Judge during the currency of his tenure as President of the State
Commission. The representation was rejected on 30.03.2009,
whereafter the petitioner filed the writ petition.
The appellant/State in its defence pleaded that the
writ petitioner had accepted the terms of his appointment without
any demur. Under these terms, the pension as a High Court
Judge was not admissible to him during the currency of his
tenure as President of the State Commission. The petitioner was
estopped from challenging the very terms under which he was
appointed. The terms and conditions of the appointment were in
accordance with Rule 13(1) of the Himachal Pradesh Consumer
Protection Rules, 2003 (in short the Rules).
Learned Single Judge allowed the writ petition on
21.12.2009. The appellant/State was directed to amend the terms
and conditions of the appointment of writ petitioner as President
of State Commission enumerated in the notification dated
12.07.2005 by issuing a corrigendum. The State was directed not
to make deductions from petitioner's salary, allowances and
perquisites. The State was also directed to pay to the petitioner
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the amount of pension deducted from his pension/salary w.e.f.
05.10.2005 with interest @ 9% per annum.
.
3. The State has assailed the judgment passed by the
learned Single Judge. The main thrust of the arguments
advanced by the appellant is that the writ petitioner had assumed
the charge of the President of the State Commission on
05.10.2005 under the notification dated 12.07.2005 on the terms
and conditions mentioned therein. One of the enumerated
conditions was that the petitioner shall not be entitled to the
pension as a High Court Judge during currency of his tenure as
President of the State Commission. The writ petitioner did not
raise any objection against the terms and conditions of his
appointment before assuming the charge of President of the
State Commission. As per doctrine of waiver and estoppel, he
can not raise such an objection against the enumerated condition
two years after joining the post. The appellant-State is not liable
to pay more to the writ petitioner than what is admissible to a
sitting Judge of the High Court. In case of payment of full pay
equivalent to the pay of a sitting Judge of the High Court
alongwith pension (non-effective pay), then total pay of the
petitioner during the tenure as President of the State Commission
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will exceed that of a sitting Judge of the High Court. This would
be contrary to the provisions of Rule 13(1) of the 2003 Rules.
.
Defending the judgment passed by the learned
Single Judge, learned counsel for the writ petitioner submitted
that under Rule 13(1) of the Rules, as it stood prior to its
amendment on 28.10.2003, the petitioner would not have been
entitled to pension. However, H.P. Consumer Protection Rules
underwent change in the year 2003. An amendment was carried
out in Rule 13(1) of 1988 Rules during the year 2003, which came
into effect from 10.11.2003. Pursuant to the amendment, the
words 'minus pension' figuring in Rule 13(1) of 1988 Rules were
deleted. The petitioner's appointment was under the new Rules
i.e. 2003 Rules. Therefore, the petitioner is entitled to his pension
as a High Court Judge even during his tenure as President of the
State Commission. Learned counsel also drew support from the
opinion of the Law Department rendered in favour of the writ
petitioner.
4. Having heard learned counsel on both sides, we are
of the considered view that this appeal deserves to be allowed for
the following reasons :-
(a) Rule 13 of the Himachal Pradesh Consumer Protection
Rules.
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4(a) (i) Both sides have made submissions on the
interpretation of Rule 13(1) of the H.P. Consumer Protection
.
Rules governing the salary, honorarium etc. of President and
Members of the State Commission. This Rule as it existed prior to
its amendment on 28.10.2003 read as follows :-
"13. Salary, honorarium and other allowances of the
President and members of the State Commission : -
(1) Where the President of the State Commission is a
sitting Judge of the High Court, he shall enjoy all the
benefits which he should have enjoyed as sitting Judge of
the High Court. Where the President is not a sitting Judge
of the High Court, he shall receive a consolidated
honorarium of Rs. 7,000/- per month, if appointed on
whole-time basis or last pay drawn by him, minus, pension
granted to him or an honorarium of Rs. 300/- per day if
appointed on part-time basis. Other members, if appointed
on whole-time basis shall receive a consolidated
honorarium of Rs. 1,500/- per month of if appointed on part-
time basis a consolidated honorarium of Rs. 250/- per day
for the sitting ;
Provided that a member shall be eligible to any
pension granted to him by the Government or any authority
but honorarium plus pension shall not exceed the last pay
drawn.
(2) The President and the members shall also be entitled
to semi furnished accommodation.
(3) The President and the members shall be entitled to
travelling and daily allowance on official tours at the same
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rates as are admissible to the highest Grade I Officer of the
State Government.
(4) The honorarium or the salary, as the case may be,
.
and other allowances shall be defrayed out of the
Consolidated Fund of the State Government."
Subsequent to the amendment carried out on
28.10.2003, Rule 13 was amended to the following effect :-
"2. Amendment of Rule 13 - In rule 13 of the Himachal
Pradesh Consumer Protection Rules, 1988, for sub-rule (1),
the following shall be substituted, namely ;
"1 The President of the State Commission shall be
entitled to salary, allowances and other perquisites as are
available to a sitting Judge of the High Court and other
members, if appointed on whole time basis shall receive a
consolidated honorarium of Rs. 1,500/- per month or if
appointed on part-time basis a consolidated honorarium of
Rs. 600/- per day for sitting shall be paid ;
Provided that a Member shall be eligible to any
pension granted to him by the Government or any authority
but honorarium plus pension shall not exceed the last pay
drawn by him".
4(a) (ii) The case of the writ petitioner is that under Rule
13(1) of 1988 Rules, in case the President of the State
Commission was a sitting Judge of the High Court, then he was
to enjoy all the benefits which he should have enjoyed as sitting
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Judge of the High Court. Where President was not the sitting
Judge of the High Court, then he was to receive Rs. 7,000/- as
.
honorarium if appointed on whole-time basis or last pay drawn by
him minus pension granted to him or an honorarium of Rs. 300/-
per day if appointed on part-time basis. A Member, apart from
receiving the honorarium, was also eligible to any pension
granted to him by the Government or any authority provided that
honorarium plus pension will not exceed the last pay drawn.
According to learned counsel for the petitioner, the words 'minus
pension' were deleted from the 1988 Rules following a legislative
history behind the change. The deletion of these words by way of
amendment to Rule 13(1) which came into force on 10.11.2003
entitles the petitioner to pension as a High Court Judge even
during the currency of his tenure as President of the State
Commission.
4(a) (iii) The above contention is without any force. The
legislative history, if any, and as interpreted by the writ petitioner
is not relevant to the facts of the case. Rule 13(1) of the H.P.
Consumer Protection Rules stood amended prior to petitioner's
appointment as President of the State Commission. The
amended Rule clearly provided that as a President of the State
Commission, the petitioner shall be entitled to salary, allowances
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and other perquisites as are available to a sitting Judge of the
High Court. The sitting Judge of the High Court does not get any
.
pension. The petitioner, therefore, was not entitled to pension
during the currency of his tenure as President of the State
Commission. The proviso to Rule 13(1) of 2003 Rules states that
a Member shall be eligible to any pension granted to him by the
Government or any authority, but honorarium plus pension shall
not exceed the last pay drawn by him. The definition of 'Member'
under Section 2(jj) of the Consumer Protection Act, 1986 includes
within its ambit the President of the State Commission. It is not
disputed by learned counsel for the petitioner that on payment of
pension of the High Court Judge to the writ petitioner alongwith
his salary, allowances and perquisites as President of the State
Commission, his total salary would exceed the last pay drawn by
him. This would be contrary to Rule 13(1) of 2003 Rules.
Therefore, the petitioner cannot be held entitled to his pension as
a High Court Judge during his tenure as President of the State
Commission.
4(b) Notification dated 12.07.2005 appointing the
petitioner as President of the State Commission.
The petitioner was appointed as President of the
State Commission vide Notification dated 12.07.2005 issued by
the State in exercise of powers under Sections 16(1) (a), 16 (2)
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and 16 (3) of the Consumer Protection Act, 1986. The terms and
conditions on which the petitioner was appointed are extracted
.
hereinafter :-
"Mr. Justice Arun Kumar Goel (Judge of High Court)
shall be entitled to salary, allowances and other
perquisites as were available to him as Judge of High
Court (Last pay drawn minus pension). He shall also
be entitled to the increase in Dearness allowance on
account of revision from time to time subject to the
condition that no I.R. and relief on pension shall be
payable during the currency of tenure of his
appointment as President of State Commission after
his retirement as sitting Judge of High Court.
Mr. Justice Arun Kumar Goel shall hold office of the
President, State Commission for a term of 5 years or
upto the age of 67 years, whichever is earlier and
shall not be eligible for re-appointment."
It was specifically mentioned in the notification dated
12.07.2005 that the petitioner shall be entitled to salary,
allowances and other perquisites as were available to him as
Judge of the High Court (last pay drawn minus pension).
Petitioner was also not entitled to relief on pension during the
currency of tenure of his appointment as President of State
Commission. Petitioner assumed the charge of President of the
State Commission on whole-time basis on 05.10.2005. No
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objection was raised by the petitioner to the above terms before
assuming the charge of the President of the State Commission.
.
Therefore, he cannot raise such an objection two years after
accepting the terms. P.S. Gopinathan Vs. State of Kerala and
others (2008) 7 SCC 70 was a case where the appellant was a
judicial officer. He was appointed by the Governor as District &
Sessions Judge on 14.01.1992 There was nothing in the order to
indicate that such appointment was temporary. The High Court on
administrative side while issuing posting order on 29.02.1992
treated his appointment as temporary and mentioned it as such in
the order. The order was acted upon and accepted by the
appellant. On account of his initial appointment being treated as
temporary, the appellant lost his seniority. He raised objections
on 28.10.1992. In the circumstances, the apex Court held that
after accepting the order, the officer cannot turn back and
challenge the conditions. He could have opted not to join at all but
he did not do so. The appellant was stopped and precluded from
questioning order dated 14.01.1992. The relevant paras of the
judgment read as follows :-
"Per Naolekar, J.
33. . The law of equitable estoppel by acquiescence has
been clearly stated by Fry, J. in Wilmott v. Barber, 1880,
15 Ch D 96 : 43 LT 95 (CA). It has been said therein that
the acquiescence which will deprive a man of his legal
rights should amount to fraud. A man is not to be deprived
of his legal right unless he has acted in such a way as
.
would make it fraudulent for him to set up those rights.
What, then, are the elements or requisites necessary to
constitute fraud of that description, are stated thus:
(i) The plaintiff (i.e. the party pleading
acquiescence) must have made a mistake as
to his legal rights;
(ii) The plaintiff must have expended some money
or must have done some act (not necessarily
upon the defendant's land) on the faith of the
mistaken belief;
(iii) The defendant, the possessor of the legal
right, must know of the existence of his own
right which is inconsistent with the right
claimed with the right claimed by the plaintiff. If
he does not know of it, he is in the same
position, as the plaintiff, and the doctrine of
acquiescence is founded upon conduct with a
knowledge of your legal rights;
(iv) The defendant, the possessor of the legal
right, must know of the plaintiff's mistaken
belief of his rights. If he does not, there is
nothing which calls upon him to assert his own
rights; and
(v) The defendant, the possessor of the legal right
must have encouraged the plaintiff in his
expenditure of money, or in the other acts
which he has done, either directly or by
abstaining from asserting his legal right. Where
all these elements exist, there is fraud of such
.
a nature as will entitle the court to restrain the
possessor of the legal right from exercising it,
but nothing short of this will do.
These principles were followed and applied in many
cases in India.
34. x x x x x x x x x x x x x x x x x x x x x x x
35. x x x x x x x x x x x x x x x x x x x x x x x
36. Again when the fresh appointment order was issued
on 15.7.1992 by the Governor and the appellant was
posted on 31.7.1992 treating his first appointment order
as a temporary appointment, no protest was made by
him. In view of the fact that the Governor issued an order
dated 15.7.1992 even when order of 14.1.1992 was in
existence, it is apparent that the appointing authority has
also treated the first order dated 14.1.1992 as an order of
appointment on temporary basis. It is, therefore, apparent
from the second appointment order that the appointing
authority as well as the posting authority have all along
treated the appellant as a temporary District Judge, but
the appellant did not object on both occasions when he
joined on 7.3.1992 and on 31.7.1992 of he being treated
as temporary District Judge. The act and action of the
appellant in accepting his appointment as temporary one
amounts to his assent to the temporary appointment and
the appellant throughout till he raised an objection on
29.10.1992 has slept on his right of being appointed
permanently on the post of District & Sessions Judge. By
.
his conduct at the time of the issuance of the order by the
High Court on 29.2.1992 and thereafter issuance of the
second appointment order on 15.7.1992 with full
knowledge of his own right and the act of the High Court
which infringes it, led the High Court to believe that he
has waived or abandoned his right.
37. Lord Campbel in Cairncross v. Lorrimer, (1860) 3 LT
130 (HL) held that "generally speaking if a party having an
interest to prevent an act being done had full notice of its
being done, and acquiesce it, so as to induce a
reasonable belief that he consents to it and the position of
the others is altered by their giving credit to his sincerity,
he has no more right to challenge the act to their
prejudice than he would have had if it had been done by
his previous license."
38. The aforesaid facts clearly make out an
acquiescence of the appellant of accepting order dated
14.1.1992 being treated as temporary appointment order
on the post of District & Sessions Judge and he cannot
now be permitted to change his position and claim the
permanent appointment from 14.1.1992 to claim seniority
on the post. Besides this, the High Court has rightly held
that in the absence of the challenge to the second
appointment order dated 15.7.1992 from the fresh panel
dated 21.2.1992, that order will stand, though later in
time, and has to be given effect to as an order of
appointing the appellant on permanent basis under Rule 6
of the Rules.
.
Per S.B. Sinha, J. (concurring)
44. No doubt the Governor is the appointing authority of
the District Judges in the State. However, the same in
terms of the constitutional provisions, was required to be
done in consultation with the High Court. The High Court
keeping in view the amendments made in the Rule
treated the appointment of the appellant as temporary.
Apart from the fact that the appellant accepted his posting
orders without any demur in that capacity, his subsequent
order of appointment dated 15th July, 1992 issued by the
Governor had not been challenged by the appellant. Once
he chose to join the mainstream on the basis of option
given to him, he cannot turn back and challenge the
conditions. He could have opted not to join at all but he
did not do so. Now it does not lie in his mouth to clamour
regarding the cut-off date or for that matter any other
condition. The High Court, therefore, in our opinion, rightly
held that the appellant is estopped and precluded from
questioning the said order dated 14th January, 1992. The
application of principles of estoppel, waiver and
acquiescence has been considered by us in many cases,
one of them being Dr. G. Sarana v. University of Lucknow
and others, [ AIR 1976 SC 2428] stating :-
"15......He seems to have voluntarily appeared
before the Committee and taken a chance of having
a favourable recommendation from it. Having done
.
so, it is not now open to him to turn round and
question the constitution of the Committee."
We otherwise also find the terms and conditions of
appointment of petitioner to be in accordance with Rule 13(1) of
2003 Rules. The appellant is not liable to pay to the writ
petitioner more than the amount admissible to him as a sitting
Judge of the High Court. In case the writ petitioner as President
State Commission is paid his full pay equivalent to the sitting
Judge of the High Court alongwith pension as a High Court
Judge, then his total payable salary will exceed that of a sitting
Judge of the High Court which will be contrary to Rule 13(1) of
the 2003 Rules. The terms and conditions of appointment of the
writ petitioner as contained in the notification dated 12.07.2005
are in consonance with Rule 13(1) of H.P. Consumer Protection
Rules 2003.
4 (c) Opinion of Law Department
While deciding the writ petition, learned Single Judge
has heavily relied upon the opinion rendered by Law Department.
Learned counsel for the writ petitioner also drew support from this
opinion. The Law Department had opined that under amended
Rule 13(1), there was no provision for deducting pension from
salary of the President. Therefore, conditions in the appointment
.
notification dated 12.07.2005 denying the petitioner pension of
the High Court Judge during currency of his tenure as President
of State Commission, was outside the scope of Rule 13(1) of
2003 Rules. Taking note of contrary view of the Finance
Department, learned Single Judge observed that State should
have reconciled both the views. After considering the Rules, the
notification dated 12.07.2005 and its acceptance by the petitioner,
we find that the opinion of Law Department was inconsistent with
provisions of relevant rules and the law governing the field. The
State was justified in not accepting the same. The opinion is not
binding on the State.
5. Conclusion
The result of above discussion is that :-
(i) Entitlement of the petitioner to the salary, allowances
etc. as President of H.P. State Consumer Disputes Redressal
Commission is governed by Rule 13(1) of Himachal Pradesh
Consumer Protection Rules 2003. The rules are not under
challenge. According to Rule 13(1) of 2003 Rules, as President of
State Commission, the petitioner was entitled only to salary,
allowances and other perquisites as are available to a sitting
Judge of the High Court. Pension is not the component, which a
sitting Judge of the High Court gets.
.
(ii) 2003 Rules were in force at the time of appointment
of petitioner as President of State Commission vide notification
dated 12.07.2005. The notification appointing the petitioner
clearly disentitled him from pension as a High Court Judge during
the currency of his tenure as President of State Commission. The
notification was issued in conformity with Rule 13(1) of 2003
Rules.
(iii) Petitioner accepted the notification and conditions of
his appointment enumerated in this notification dated 12.07.2005.
He assumed the charge of President, State Commission on
05.10.2005. His challenge to the very terms of his appointment,
two years after accepting the same is even otherwise not
sustainable, more particularly on the face of 2003 Rules.
(iv) On receipt of pension of High Court Judge alongwith
salary, allowances and perquisites of a sitting High Court Judge
as President State Commission, total salary payable to the
petitioner during currency of his tenure as President State
Commission would exceed the salary payable to a sitting Judge
of High Court/last pay drawn by the petitioner. Such a situation
would be contrary to the mandate of Rule 13 (1) of 2003 Rules.
From whichever angle the issue is considered, the
judgment passed by learned writ Court directing the appellant-
.
State to amend the terms and conditions of notification dated
12.07.2005 appointing the writ petitioner as President, State
Commission cannot be sustained. In the net result, this appeal is
allowed. Impugned judgment dated 21.12.2009, titled Justice
Arun Kumar Goel (Retd.) Versus State of Himachal Pradesh and
another, passed by the learned Single Judge in CWP No. 1959 of
2009 is set aside. The writ petition is dismissed. The pending
applications, if any, also stand disposed off.
( Ravi Malimath )
Acting Chief Justice
17th August, 2021 (K) ( Jyotsna Rewal Dua )
Judge
.
