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whether the first respondent who functioned as the President of the Consumer Disputes Redressal Commission, in Madhya Pradesh (“State Commission” for short) for a period of about 4 years and 11 months, after his retirement as a High Court Judge, was entitled to receive pension for this subsequent period in the = Insofar as the order dated April 5, 2002 issued by the Government of Madhya Pradesh according sanction for counting the service of the respondent on the post of President, State = In view of divergence of opinion in terms of separate judgments pronounced by us in this appeal today, the Registry is directed to place the papers before Hon’ble the Chief Justice for appeal being assigned to an appropriate Bench.

English: Madhya Pradesh Vidhan Sabha

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REPORTABLE

 
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5322 OF 2005

 

The Accountant General, M.P. …. Appellant
Versus
S.K. Dubey & Anr. ….Respondents

 

 

JUDGMENT

 
R.M. Lodha, J.
The Accountant General, Madhya Pradesh is in
appeal, by special leave, aggrieved by the judgment and order dated
February 8, 2005 passed by the High Court of Madhya Pradesh at
Jabalpur in the writ petition filed by the respondent in that Court.

 
2. The respondent is a former Judge of the Madhya
Pradesh High Court. He was appointed on March 2, 1998. He
rendered service of more than 10 years and retired on August 13,
1998.
2
3. By a notification issued on September 18, 1998, the
respondent was appointed as the President, State Consumer
Disputes Redressal Commission, Madhya Pradesh (for short, `State
Commission’) established under clause (b) of Section 9 of the
Consumer Protection Act, 1986 ( for short, `1986 Act’). The
respondent assumed office on September 21, 1998 and continued to
hold that office until the end of the working hours on August 12, 2003.
When he demitted the office of the President, State Commission, he
had rendered service of 4 years 10 months and 22 days as
President, State Commission.

 
4. The pension for the period of service rendered by
the respondent as Judge of the High Court has been determined
under the First Schedule of the High Court Judges (Salaries and
Conditions of Service) Act, 1954 (for short, `1954 Act’). That is not the
controversy here. The respondent’s entitlement to pension for his
service rendered as President, State Commission under the office
order dated April 5, 2002 issued by the State Government is in issue.

 
5. By order dated June 3, 1999, the Department of
Food, Civil Supplies and Consumer Protection, Government of
Madhya Pradesh addressed to the President, State Commission
prescribed the terms and conditions of the appointment of the
3
respondent as President, State Commission. Inter alia, it provided
that during the currency of his appointment, the respondent shall be
paid salary as payable to a Judge of the High Court minus pension
payable.

 
6. On April 5, 2002, the Department of Food, Civil
Supplies and Consumer Protection, Government of Madhya Pradesh
issued another order for counting the period of service as President,
State Commission for the purposes of payability and determination of
the pension. It provided as follows:

 
“In continuation of Departmental Order of even

No. F.5-24/96/2 dated 03-06-99 the State Government

now accords sanction for counting the services of the post

of President Madhya Pradesh State Consumer Dispute

Redressal Commission, Bhopal for pension provided that

the pension on this post and the pension received earlier

from the State Government or Central Government the

two pensions combined together shall not exceed the

maximum of the pension prescribed for judges of

honourable High Court.
2. This sanction has been endorsed to the

Accountant General M.P. Gwalior vide Finance

Department endorsement No. 553/853/2002/C Char

dated 5.4.2002.
By order and in the name of Governor of

Madhya Pradesh.”

 
7. It is the case of the respondent that in accordance
with the above orders of the State Government, the necessary
papers for payment of pension and gratuity to the respondent were
4
prepared in the prescribed form and submitted to the office of the
Accountant General, Madhya Pradesh (appellant) on August 29,
2003 by the Registrar of the State Commission. The Department of
Food, Civil Supplies and Consumer Protection, Government of
Madhya Pradesh also recommended and forwarded the pension
case of the respondent to the appellant.

 
8. The appellant, however, raised the objection that
pension and gratuity were not payable to the respondent as proposed
and recommended. The correspondence ensued between the
appellant and the Department of Food, Civil Supplies and Consumer
Protection, Government of Madhya Pradesh. The appellant
reiterated its position that pension and gratuity were not payable to
the respondent for the period he served as the President, State
Commission.

 
9. The above position taken by the appellant
compelled the respondent to file a writ petition before the High Court
challenging the letters dated December 10, 2003 and September 23,
2004 addressed to the Madhya Pradesh State Government and
letter dated November 4, 2004 addressed to the respondent that
pension and gratuity were not payable to the respondent. In that writ
petition, the appellant and the State of Madhya Pradesh were
5
impleaded as respondent – 1 and respondent – 2 respectively. In its
counter affidavit in opposition to the writ petition, the appellant set up
the case that there was no provision for pension under the 1986 Act
or the Madhya Pradesh Consumer Protection Rules, 1987 (for short,
`State Rules’) for payment of pension to the President, State
Commission. Relying upon the decision of this Court in the case of
Justice P. Venugopal v. Union of India and Others1, the appellant
stated before the High Court that the respondent was not entitled to
clubbing of the two services. The appellant said that if the State
Government intended to grant pension to the petitioner (respondent
herein) for the service rendered by him as President, State
Commission then requisite statutory rule would have to be framed
and duly ratified by the State Legislature as required under Section
30(2) of the 1986 Act. The State Rules framed by the State
Government do not have any provision for payment of pension.

 
10. The High Court of Madhya Pradesh, on
consideration of the matter, vide its judgment dated February 8, 2005
allowed the writ petition filed by the present respondent. The High
Court held that by office order dated April 5, 2002, the State
Government had passed an order that the service rendered by the
petitioner (respondent herein) as President, State Commission

 
1 (2003) 7 SCC 726
6
would be counted as pensionable service. The High Court,
accordingly, did not accept the view of the appellant and directed it
to finalize the pension of the petitioner (respondent herein) and make
payment of pension and other admissible dues within a period of two
months.

 
11. It is from this order that the present appeal has
arisen.

 
12. This Court granted leave in the matter on August 25,
2005 but refused to grant any stay. It was, however, clarified that
the payment made to the respondent, pursuant to the judgment of the
High Court, would be subject to the decision in the appeal.

 
13. We have heard Mr. A. Mariarputham, learned senior
counsel for the appellant and Mr. Amrendra Sharan, learned senior
counsel for the respondent.

 
14. Mr. A. Mariarputham, learned senior counsel
referred to Sections 2(jj), 2(h), 16(2), 30(2) and 31 of the 1986 Act
and submitted that there was no statutory provision for grant of
pension to the President of the State Commission. The State Rules,
learned senior counsel would submit, do not make any provision for
pension to the President of the State Commission and, therefore, no
order for payment of pension to the respondent could have been
7
passed. He argued that when an act is required to be done in a
particular manner, then it must be done in that manner and in no
other manner. In this regard, he relied upon the decisions of this
Court in State of Uttar Pradesh v. Singhara Singh and Others2,
Chandra Kishore Jha v. Mahavir Prasad and Others3, Shin-Etsu
Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Another4 and
Tamilselvan v. State represented by Inspector of Police, Tamil
Nadu5.

 
15. Mr. Amrendra Sharan, learned senior counsel for
the respondent raised the preliminary objection of the maintainability
of the appeal at the instance of the appellant. He submitted that the
appellant was not an `aggrieved person’ and, therefore, appeal was
not maintainable. He relied upon the rulings of this Court in Bar
Council of Maharashtra v. M.V. Dabholkar and Others6, Jasbhai
Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and Others7
and Thammanna v. K. Veera Reddy and Others8.

 

16. With reference to Article 162 of the Constitution of
India, learned senior counsel for the respondent submitted that
executive power of the State was coextensive with the legislative
2 AIR 1964 SC 328

3 (1999) 8 SCC 266

4 (2005) 7 SCC 234

5 (2008) 7 SCC 755

6 (1975) 2 SCC 702

7 (1976) 1 SCC 671

8 (1980) 4 SCC 62
8
power and when rules are silent, the executive can always fill the
gaps by issuing executive order. In this regard, he relied upon
decisions of this Court in Sant Ram Sharma v. State of Rajasthan
and Others9 and Lalit Mohan Deb and Others v. Union of India and
Others10.

 
17. Mr. Amrendra Sharan, learned senior counsel for
the respondent argued that the use of words `shall’ and `may’ in
Section 16(2) was indicative of the legislative intention that `may’ be
read as directory. He submitted that firstly, framing of rules by the
State Government under Section 16(2) read with Section 30(2) was
not mandatory and secondly, the State Rules having been framed
for the subjects enumerated in Section 16(2), the power of the State
Government to exercise its executive power in respect of the subjects
not provided in the State Rules is not taken away. He relied upon the
decisions of this Court in M/s. Atlas Cycle Industries Ltd. and Others
v. The State of Haryana11, Orissa State (Prevention & Control of
Pollution) Board v. Orient Paper Mills and Another12 and Delhi
Airtech Services Private Limited and Another v. State of Uttar
Pradesh and Another13.

 

 

9 AIR 1967 SC 1910

10 (1973) 3 SCC 862

11 (1979) 2 SCC 196

12 (2003) 10 SCC 421

13 (2011) 9 SCC 354
9
18. In rejoinder, Mr. A. Mariarputham, learned senior
counsel submitted that appeal was maintainable at the instance of
appellant. According to him, the appellant, Accountant General,
Madhya Pradesh, is one of the arms of the Comptroller and Auditor
General — a constitutional functionary – which monitors and controls
all activities connected with audit, accounts and entitlement functions
of the Indian Audit and Accounts Department. He submitted that
authorizing pension was the function of the appellant. In this regard,
he referred to material titled `Supreme Audit Institution of India – A
Brief Introduction’ to show that there are 29 offices of the Accounts
and Entitlements (A&E) headed by Accountants General (A & E)
engaged in maintaining accounts of the State Governments and
authorizing GPF and pension payments of their employees. Learned
senior counsel submitted that for maintaining the appeal under Article
136 of the Constitution before this Court, it was not necessary that
the appellant must be an `aggrieved person’. In any case, the
appellant was impleaded as respondent 1 in the writ petition and it
was the appellant’s action that was challenged in the writ petition
before the High Court and, therefore, the appeal was maintainable.

 

19. Initially I thought of considering the preliminary
objection but since an important question relating to the power of
the State Government in making the service rendered by the
10
respondent as President of the State Commission pensionable by an
Executive order although State Rules are in place, has been raised
and which I intend to decide, I do not think it necessary to consider
the preliminary objection.

 
20. I shall first refer to the legal position exposited by
this Court in the case of Justice P. Venugopal. The question for
consideration in that matter was as to whether the period during
which Justice P. Venugopal served as the Commission of Inquiry or
as the Commissioner of Payments under the Madras Race Club
(Acquisition and Transfer of Undertaking) Act, 1986 could be taken
into consideration for computing the pensionary benefits. This Court,
while dealing with the above question, referred to constitutional
provisions, namely, Articles 112(3)(d)(iii), 217(1), 221 and 224A,
the provisions contained in the 1954 Act, particularly, Sections 14, 15
and 16 thereof and the First Schedule appended thereto and
decisions of this Court in Union of India and Others v. Pratibha
Bonnerjea and Another14 and V.S. Mallimath v. Union of India and
Another15 and held that a High Court Judge was entitled to
pensionary benefits only in terms of the 1954 Act and not otherwise.
The Court went on to observe (para 16; pgs. 732-733):
“……….A High Court Judge is entitled to pensionary

 

14 (1995) 6 SCC 765

15 (2001) 4 SCC 31
11
benefits only in terms of the said Act and not

otherwise. The said Act is a self-contained code. It

does not contemplate grant of pension to a retired High

Court Judge for holding any other office of profit.

Clubbing of services for the purpose of computation of

pension is not contemplated under the said Act and,

thus, the court cannot by process of interpretation of

statutory or constitutional provisions hold so.”

 

In para 26 of the Report (Pg. 736), this Court said :
“…….for the purpose of computation of pension,

different services of the petitioner could not have been

clubbed in terms of Act 28 of 1954. The pension

payable to a High Court Judge would be only for the

period rendered in that capacity which would constitute

charge to the Consolidated Fund of India and services

rendered subsequent thereto in terms of the order

made by a State Government would not be charged to

the Consolidated Fund. The question as to whether

such a person would be entitled to pension from the

State concerned or not would depend upon the statute

or the terms and conditions of appointment.”

 
21. In view of the above legal position, there is no doubt
that for the purposes of computation of pension payable to the
respondent his different services, namely, service as a Judge of the
High Court and service as President, State Commission cannot be
clubbed. The respondent is entitled to pension as a High Court Judge
only for the period rendered by him in that capacity. The subsequent
service rendered by him as President, State Commission cannot be
charged to the Consolidated Fund of India. This position was not
disputed by the respondent in the High Court nor it is disputed
before me. The question is, whether respondent is entitled to
12
pension from the State of Madhya Pradesh for the service rendered
by him as President of the State Commission of that State.

 

22. The High Court has recorded in paragraph 15 of the
impugned order as follows :

 
“15. In the instant case, it is not in dispute that State

Govt. has made it a part of condition of appointment of

petitioner/Justice S.K. Dubey as per Order (P. 2) dated

5th April, 2002 that service rendered by him as President

of the State Commission is to be counted as pensionable

service modifying Order (P. 1) dated 03.06.1999. Thus,

Order (P. 2) forms part of condition of appointment of

petitioner that it was further ordered that pension

payable by the State Govt. or from the Consolidated

Fund of Govt. of India shall not exceed the maximum

pension payable to a High Court Judge…….”

 
23. The above statement has not been disputed by Mr.
A. Mariarputham. The argument of Mr. A. Mariarputham is that the
State Government of Madhya Pradesh in exercise of the power
conferred by sub-section (2) of Section 30 of the 1986 Act has
framed the State Rules for the subjects enumerated therein including
Section 16(2). Rule 6 thereof provides for salary and other
allowances and terms and conditions of the President and Members
of the State Commission. The said Rule does not provide that
service of the President, State Commission is a pensionable service
and, therefore, despite the office order dated April 5, 2002 issued by
the State Government to the effect that service rendered by the
13
respondent as President of the State Commission was pensionable
service, the respondent is not entitled to any pension for the service
he rendered as President, State Commission.

 

 

24. Section 16 of the 1986 Act deals with the
composition of the State Commission. For the present purposes, the
only relevant provision is sub-section (2) of Section 16 which reads
as follows :
“S. 16. Composition of the State Commission.–
(1) xxx xxx xxx xxx
(2) The salary or honorarium and other

allowances payable to, 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.
Provided that the appointment of a member on whole-

time basis shall be made by the State Government on

the recommendation of the President of the State

Commission taking into consideration such factors as

may be prescribed including the work load of the State

Commission.
(3) xxx xxx xxx xxx

(4) xxx xxx xxx xxx”

 

 

25. Section 2(jj) defines `member’ as follows :
“S.2(jj) “member” includes the President and a member

of the National Commission or a State Commission or a

District Forum, as the case may be;”

 
26. Wherever the word `prescribed’ occurs in the 1986
14
Act, by virtue of Section 2(n), it means prescribed by rules made by
the State Government, or as the case may be, by the Central
Government.

 

27. Section 30 deals with the power of the Central
Government and the State Government to make rules. As I am
concerned with power of the State Government, sub-section (2) of
Section 30 is reproduced which reads :

 

“S. 30. Power to make rules.–
(1) xxx xxx xxx xxx
(2) The State Government may, by

notification, make rules for carrying out the provisions

contained in clause (b) of sub-section (2) and sub-section

(4) of section 7, clause (b) of sub-section (2) and sub-

section (4) of section 8A, clause (b) of sub-section (1) and

sub-section (3) of section 10, clause (c) of sub-section (1)

of section 13, clause (hb) of sub-section (1) and sub-

section (3) of section 14, section 15 and clause (b) of sub-

section (1) and sub-section (2) of section 16 of this Act.”.

 
28. Section 31 makes a provision that rules and
regulations made under the 1986 Act shall be laid before each House
of Parliament. It reads as under :
“S. 31.- Rules and regulations to be laid before each

House of Parliament. – (1) Every rule and every

regulation made under this Act shall be laid, as soon as

may be after it is made, before each House of

Parliament, while it is in session, for a total period of

thirty days which may be comprised in one session or in

two or more successive sessions, and if, before the

expiry of the session immediately following the session

or the successive sessions aforesaid, both Houses agree
15
in making any modification in the rule or regulation or

both Houses agree that the rule or regulation should not

be made, the rule or regulation shall thereafter have

effect only in such modified form or be of no effect, as

the case may be; so, however, that any such

modification or annulment shall be without prejudice to

the validity of anything previously done under that rule or

regulation.
(2) Every rule made by a State Government under

this Act shall be laid, as soon as may be after it is made,

before the State Legislature.”

 
29. As noticed above, in the State Rules framed by
the Madhya Pradesh State Government, provision has been
made in Rule 6 with regard to salary and other allowances and
terms and conditions of the President and Members of the State
Commission. Rule 6 of the State Rules reads as under :
“R.6.- Salary and other allowances and terms and

conditions of the President and Members of the State

Commission :-
(1) President of the State Commission shall receive the

salary of the Judge of the High Court, if appointed on

whole-time basis or a consolidated honorarium of Rs. 200/-

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. 3,000 per month and if

sitting on part-time basis, a consolidated honorarium of Rs.

150 per day for the sitting.

 
(2) The president and the members of the State

Commission shall be eligible for such travelling allowance

and daily allowance on official tour as are admissible to

grade 1 Officer of the State Government.
(3) The salary, honorarium, other allowances shall be

defrayed out of the Consolidated Fund of the State

Government.
16

 
(4) President and the Members of the State Commission

shall hold office for a term of five years or up to the age of

67 years whichever is earlier and shall not be eligible for

re-nomination:
Provided that President and / or Members may:
(a) by writing under his hand and addressed to the State

Government resign his office any time;
(b) be removed from his office in accordance with

provisions of sub-rule (5).
(5) The State Government may remove from office,

President or any Member of the State Commission who,-
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which in the opinion

of the State Government, involves moral turpitude; or
(c) has become physically or mentally incapable of acting

as such Member; or
(d) has acquired such financial or other interest as is likely

to affect prejudicially his functions as a Member, or
(e) has so abused his position as to render his

continuance in office prejudicial to the public interest:
(f) is absent himself from five consecutive sittings of the

Commission, except for a reasonable cause.
Provided that the President or a Member shall not be

removed from his office on the ground specified in

Clauses (d) and (e) of sub-rule (5) except on an inquiry

held by State Government, in accordance with such

procedure as it may specify in this behalf and finds the

Member to be guilty of such ground.

 
(6) Before appointment, President and a Member of the State

Commission shall have to take an undertaking that he does

not and will not have any such financial or other interest as is

likely to affect prejudicially his functions as such Member.
17
(7) The terms and conditions of the service of the President

and the Members of the State Commission shall not be varied

to their disadvantage during their tenure of office.
(8) Every vacancy caused by resignation and removal of the

President or any other Member of the State Commission

under sub-rule (4) or otherwise shall be filled by fresh

appointment.
(9) Where any such vacancy occurs in the office of the

President of the State Commission, the senior-most (in order

of appointment) Member, holding office for the time being,

shall discharge the functions of the President until a person

appointed to fill such vacancy assumes the office of the

President of the State Commission.
(10) When the President of the State Commission is unable

to discharge the functions owing to absence, illness or any

other cause, the senior-most (in order of the appointment)

Member of the State Commission shall discharge the

functions of the President until the day on which the President

resumes the charge of his functions.
(11) The President or any Member ceasing to hold office as

such shall not hold any appointment in or be connected with

the management or administration of an organization which

have been subject of any proceeding under the Act during his

tenure for a period of five years from the date on which he

ceases to hold such office.”

 
30. It is clear from the above Rule that it does not make
any provision in making the service of the President and Members of
the State Commission a pensionable service. State Rules are totally
silent in this regard. The moot question that falls for determination in
this appeal is, whether in the absence of any express rule in the
State Rules, was it open to the State Government of Madhya
Pradesh to have provided by way of an Executive order dated April
5, 2002 that the service rendered by the respondent as President of
18
the State Commission would be counted as pensionable service.
The incidental question is whether such order is inconsistent with
Section 16(2) or the State Rules.
31. Subject to the provisions of the Constitution, the
executive power of a State extends to the matters with respect to
which the Legislature of the State has power to make laws. This is
what is provided in Article 162 of the Constitution. In other words, the
executive power of the State Executive is coextensive with that of the
State Legislature.
32. In the case of Sant Ram Sharma9 this Court
negated the arguments advanced on behalf of the appellant therein
that in the absence of any statutory rules governing promotions to
selection grade posts the Government cannot issue administrative
instructions and such administrative instructions cannot impose any
restrictions not found in the rules already framed. The Court stated:
“….It is true that Government cannot amend or supersede

statutory rules by administrative instructions, but if the rules

are silent on any particular point Government can fill up the

gaps and supplement the rules and issue instructions not

inconsistent with the rules already framed.”

 
33. The above legal position has been followed and
reiterated by this Court time and again. The Constitution Bench of
this Court in Lalit Mohan Deb10 (para 9; pg. 867) said :
“9. It is true that there are no statutory rules regulating the

selection of Assistants to the selection grade. But the
19
absence of such rules is no bar to the Administration giving

instructions regarding promotion to the higher grade as long

as such instructions are not inconsistent with any rule on the

subject……….”.

 
34. In Union of India and another v. Central Electrical
and Mechanical Engineering Service (CE&MES) Group `A’ (Direct
Recruits) Association, CPWD and others16, this Court held that the
executive instructions could fill in gaps not covered by rules but such
instructions cannot be in derogation of the statutory rules.

 
35. The statutory provision contained in Section 16(2) is
quite clear. It provides that the salary or honorarium and other
allowances payable to, 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 term `member’ includes the
President of the State Commission. That pension can be made a
condition of service is beyond any question. What is the meaning of
the expression, `as may be prescribed by the State Government’
occurring in Section 16(2).

 
36. In my opinion, the expression `as may be
prescribed by the State Government’ in Section 16(2) has to be read
as prescribed by the rules framed by the State Government, if any.
This is the plain meaning of the above expression. If the Parliament

 

16 (2008) 1 SCC 354
20
intended that salary or honorarium and other allowances and other
terms and conditions of service of the President and the Members of
the State Commission have to be provided in the rules by the State
Government in exercise of its powers under Section 30(2) and in no
other manner, the provision in Section 16(2) would have read, `the
salary or honorarium and other allowances payable to, and the other
terms and conditions of service of the members of the State
Commission shall only be in accordance with the rules framed by the
State Government’. The words `shall be such’ followed by the
expression `as may be prescribed’ clearly indicate the legislative
intent of `may’ being directory and the expression `as may be
prescribed’ to mean, ‘if any’. The construction that I have put to the
expression, ‘as may be prescribed’ gets support from the decisions
of this Court in Surinder Singh v. Central Government and others17
and Orissa State (Prevention and Control of Pollution) Board12 .

 
37. In Orissa State (Prevention & Control of Pollution)
Board12, this Court was seized with the question, whether as long as
the manner is not prescribed under the Rules for declaration of an
area as the air pollution control area, the valid notification under
Section 19 of the Air (Prevention and Control of Pollution) Act, 1981
could be published in the official gazette or not. Section 19 under

 
17 (1986) 4 SCC 667
21
consideration read, `the State Government may, after consultation
with the State Board, by notification in the Official Gazette, declare in
such manner as may be prescribed, any area or areas within the
State as air pollution control area or areas for the purposes of this
Act’. Section 2(n) of that Act defines the word `prescribed’ which
means prescribed by rules made by the Central Government or, as
the case may be, the State Government. Section 54 of that Act
provides for power of the State Government to make rules. In light of
these provisions and few decisions of this Court viz; T. Cajee v. U.
Jormanik Siem & another18 and Surinder Singh17, the Court
considered the expression `as may be prescribed’ and held that this
expression means `if any’. This is what this Court said (para12; pg.
429):

 
” . . . . .In one of the cases decided by this Court, to be referred

later in this judgment “as may be prescribed” has been held to

mean “if any”. It is thus clear that such expression leaves the

scope for some play for the workability of the provision under

the law. The meaning of the word “as” takes colour in context

with which it is used and the manner of its use as prefix or suffix

etc. There is no rigidity about it and it may have the meaning of

a situation of being in existence during a particular time or

contingent, and so on and so forth. That is to say, something to

happen in a manner, if such a manner is in being or exists, if it

does not, it may not happen in that manner. Therefore, the

reading of the provision under consideration makes it clear that

manner of declaration is to be followed “as may be prescribed”

i.e. “if any” prescribed.”

 
38. I am of the considered view that there is no
18 AIR 1961 SC 276
22
difference in the legal position in a case where power conferred on
the State Government for framing rules has been exercised but such
rules remain silent on certain aspects although it had power to make
rules with regard to those aspects and in the situation where no rules
have been framed in exercise of the power conferred on it, insofar
as executive power of the State is concerned. The power that vests
in the State Government in Section 30(2) to carry out the provisions
contained in Section 16(2) does not take away its executive power to
make provision for the subjects covered in Section 16(2) for which no
rules have been framed by it. The exercise of such power by the
State Government, obviously, must not be inconsistent with the
constitutional provisions or statutory provision in Section 16(2) or the
State Rules framed by it. In the present case, the exercise of power
by the State Government by issuance of the order dated April 5, 2002
does not suffer from any such vice.

 
39. Two more aspects need to be considered by me,
firstly, the effect of Section 31(2) of the 1986 Act which provides
that every rule made under the 1986 Act shall be laid before the
State Legislature and secondly, whether in view of Section 31(2), the
executive power of the State is to be exercised in generality and not
for a situation specific.
23
40. Craies on Statute Law, Seventh Edition, has dealt
with the subject, `Laying before Parliament’ in Chapter 13 under the
title `Delegated Legislation’. The author has observed that the
requirement for `laying’ first appeared in the 1830s. According to the
author, there are three kinds of laying, (i) laying without further
procedure: (ii) laying subject to negative resolution: and (iii) laying
subject to affirmative resolution. The above three kinds of `laying’
have been then explained. This Court approved the observations
made by Craies on Statute Law in respect of the subject `laying
before Parliament’ in Hukam Chand Etc. v. Union of India and
others19.

 
41. As to whether the laying of rules and regulations
before the Parliament is mandatory or directory or whether laying is a
condition precedent to their operation or be neglected without
prejudice to the effect of the rules, it is now well settled that each
case must depend on its own circumstances or the wording of the
statute under which the rules are made. This Court had an occasion
to deal with the policy and object underlying the provisions relating to
laying the delegated legislation made by the subordinate law making
authorities or orders passed by subordinate executive
instrumentalities before both Houses of Parliament with reference to

 
19 (1972) 2 SCC 601
24
Section 3(6) of the Essential Commodities Act, 1955, in the case of
M/s. Atlas Cycle Industries Ltd.11 . Section 3(6) under consideration
read, `every order made under this Section by the Central
Government or by any officer or authority of the Central Government
shall be laid before both Houses of Parliament as soon as may be,
after it is made’. In M/s. Atlas Cycle Industries Ltd.11, a three-Judge
Bench of this Court referred to the observations made in the Craies
on Statute Law and also the decisions of this Court in Jan
Mohammad Noor Mohammad Begban v. State of Gujarat & and
Another20 and Narendra Kumar and Others v. The Union of India
and Others21 and held as under :

 
“32. From the foregoing discussion, it inevitably follows that the

Legislature never intended that non-compliance with the

requirement of laying as envisaged by sub-section (6) of

Section 3 of the Act should render the order void.

Consequently non-laying of the aforesaid notification fixing the

maximum selling prices of various categories of iron and steel

including the commodity in question before both Houses of

Parliament cannot result in nullification of the notification…….”

 
42. In light of the above legal position, if Section 31(2) of
the 1986 Act is seen, it leaves no manner of doubt that the said
provision is directory.

 
43. I am unable to accept the submission of Mr. A.
Mariarputham that having regard to the provision contained in
20 (1966) 1 SCR 505

21 (1960) 2 SCR 375
25
Section 31(2), the executive power of the State Government to fill in
the gaps in the rules can only be exercised in generality.

 

 

44. It follows from the above discussion that the State
Government has power to issue executive order or administrative
instructions with regard to subject/s provided in Section 16(2) of the
1986 Act where the State Rules are silent on any of such subject.
There is nothing in Section 30(2) or Section 31 of the 1986 Act that
abridges the power of the State Government to issue executive order
or administrative instructions with regard to pensionable service of
the President and Members of the State Commission, although State
Rules have been framed but such Rules are silent on the aspect of
the pensionable service. In other words, in the absence of any
provision in the State Rules relating to the pensionable service of the
President and Members of the State Commission, there is no bar for
the State Government in issuing executive order or administrative
instructions regarding pensionable service of the President, State
Commission.

 

 

45. Insofar as the order dated April 5, 2002 issued by
the Government of Madhya Pradesh according sanction for counting
the service of the respondent on the post of President, State
26
Commission for pension is concerned, the same being not
inconsistent with the statutory provision contained in Section 16(2)
and the State Rules, the view of the High Court that the respondent
was entitled to pension from the State Government as per the terms
and conditions of appointment cannot be faulted. The High Court
rightly observed that the respondent was entitled to pension from the
State Government insofar as service rendered by him as the
President, State Commission was concerned to the extent provided
in the order dated April 5, 2002. Obviously such service shall not be
clubbed with the service of the respondent as a High Court Judge
and shall not be charged to Consolidated Fund of India.

 

 

46. Civil appeal, accordingly, has no merit and is
dismissed with no order as to costs.

 

…………………….J.

(R.M. Lodha)

 
NEW DELHI.

FEBRUARY 29, 2012.

 
27
REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
Civil Appeal No. 5322 OF 2005

 
The Accountant General …

Appellant
Versus
S.K. Dubey and Anr. … Respondents

 

 

J U D G E M E N T

 
H.L. Gokhale J.
I have had the advantage to go through the
erudite judgment prepared by my Brother Lodha J., though for
the reasons respectfully indicated below, I am not in a position
to agree therewith.

 

 

2. The short question in this appeal is as to
whether the first respondent who functioned as the President of
the Consumer Disputes Redressal Commission, in Madhya
Pradesh (“State Commission” for short) for a period of about 4
years and 11 months, after his retirement as a High Court Judge,
was entitled to receive pension for this subsequent period in the
28
absence of any specific provision therefor in the rules framed
under the Consumer Protection Act, 1986 (“The Act” for short).
The ancillary question is as to whether the second respondent
i.e. State of Madhya Pradesh could grant pension for this period
by issuing an executive order.

 

 

3. The broad facts and the statutory provisions
relevant to this case have been referred to in my Brother’s
judgment and therefore I am not repeating them, though I may
refer to some of the essential facts and relevant provisions.

 

 

Short facts leading to the present appeal

 

 

4. The first respondent herein, retired as a Judge
from the Madhya Pradesh High Court on 13.8.1998 after putting
in a service of more than ten years. He was appointed as the
President of the State Commission after a short gap on
21.9.1998 vide Government notification dated 18.9.1998.
Thereafter, he worked for a period of four years, ten months and
twenty two days as the President, and demitted that office on
12.8.2003.
29
5. The salary or honorarium and other allowances
payable to, and the other terms and conditions of service of the
members of the State Commission (which include the President)
are governed under the above Act. The terms and conditions of
appointment of the first respondent were determined under the
Government’s letter/order dated 26.5/3.6.1999, which included
the following terms:-

 
(i) The period of appointment shall be in accordance

with Section 16(3) of Consumer Protection Act, 1986.

(ii) During the period of appointment he shall get pay

equal to the pay payable to Judge of High Court after

deducting the pension. The relief on pension shall not be

payable to him in terms of Finance Department Office

Memorandum No. E-4-Char-79-Ni-5-84 dated 20.10.1984.

(iii) The allowances and other perquisites at par with

Judge of the High Court shall be made available to him.

 

Thus, it was clear that during this period he was
to receive a pay equal to his pay as a High Court Judge after
deducting the amount of pension for the services rendered as a
High court Judge. The relief on pension was also not payable to
him. The allowances and other perquisites were to be made
available to him at par with a Judge of a High Court. Thus, it
was an appointment for a tenure with specific terms which did
30
not include pension.

 

 

6. Later, on 5.4.2002, the Government of Madhya
Pradesh issued an order according sanction for counting the
period of his service as the President of the State Commission
for the purpose of payability and determination of pension. The
order included a proviso as follows:
“provided that the two pensions combined together

shall not exceed the maximum of the pension

prescribed for Judges of the Hon’ble High Court.”

 
7. After the tenure of the first respondent was over,

he submitted his pension papers to the office of the appellant on

29.8.2003 in Form 6 (Form for assessing pension and gratuity).

Clauses 18 and 19 thereof read as follows:-
18 Proposed pension : Rs. 13,000/-p.m. + DA or

Rs. 1,56,000/- p.a. + DA
19 Proposed death-: Rs. 1,38,333=00 (as per calculation

cum-retirement sheet)

gratuity

 

The calculation sheet enclosed therewith was as follows:-
CALCULATION SHEET
Calculation sheet of amount of Pension and Death-cum-

retirement Gratuity Payable to Hon’ble Justice Shri S.K. Dubey,

President M.P. State Consumer Disputes Redressal

Commission, Bhopal as per present Scale.

 

 

Date of Birth 14.8.1936
31
Date of appointment and joining

as Judge of High Court 2.3.1988
Date of appointment as permanent

Judge 4.8.1989
Date of retirement as High Court 14.8.1998 F.N.

Judge
Date of appointment as President,

M.P. State Consumer Disputes

Redressal Commission, Bhopal 21.9.1998 F.N.

 
Total Service
As High Court Judge 2.3.1988 to 14.8.1998 F.N.

Year Month Day

10 5 12
Service as President of 21.9.1988 to 13.8.2003

M.P. State Consumer 4 10 22

Disputes Redressal

Commission
Total 15 4 04

 

 

Amount of Pension under Part-I of the High Court Judge

(Conditions of Service) Act 1954 and as per Government of India

Ministry of Law and Justice Department of Justice Dt. 18.12.1987

and 11.4.1988
Rs. 11,150 X 15 = 167250 = Rs. 13937.50p

12
Maximum is Rs. 13,000/- P.M. OR Rs. 1,56,000/- P.A.
Amount of Death-cum-Retirement Gratuity including 55% D.A. as

per instructions.
Pay Rs. 26,000+
32

 
55% of D.A 14,300 40,300 X 20 X 15 = 4,03,000

Total Rs. 30,3000/- 30 X 1
Maximum limit of DCRG Rs. 3,50,000=00

Less already paid Rs. 2,11,667=00
Balance to be paid Rs. 1,38,333=00
family pension:- w.e.f. 14.8.2003 of Rs. 78,000 per month (or per

annum?) to Smt. Manju Dubey, wife of Hon’ble Justice Shri S.I.

Dubey till her death or remarriage whichever is earlier.

 

8. The appellant raised certain queries with
respect thereto by his letter dated 10.12.2003. It was stated in
this letter that according to the pension calculation sheet
submitted on behalf of the first respondent, the pension of first
respondent had been revised by adding his service as the
President to the service rendered by him as a High Court Judge,
and the same was not in accordance with law. It was pointed
out that there was no provision in the Consumer Protection Act,
1986 about the admissibility of pension. Besides, a clarification
was sought on the following three points:-

 
(i) The rate at which the pension is to be calculated for
each year of service.
(ii) Relief on pension is admissible or not, if admissible then
as per rules applicable to the State Government, Central
Government/Judges of High Court.
33
(iii) In the order for counting the said services, there is no
mention about admissibility of gratuity and commutation of
pension.
It was also pointed out that it was not proper to
revise the pension of the first respondent as sanctioned by the
President of India without amendment in the High Court Judges
(Conditions of Service) Act, 1954. The pension papers were
therefore returned.

 

 

9. This led to further correspondence between the
appellant and the first respondent. Appellant recorded in his
letter dated 23.9.2004, that the case of the first respondent was
referred to the Central Ministry of Law and Justice which had
replied by their letter dated 9.9.2002, alongwith a copy of the
judgment of this Court in SLP No. 15450/2003 i.e. Justice P.
Venugopal Vs. Union of India [reported in 2003(7) SCC 726]
which held that for the purpose of pensionary benefits, the
period undergone as a High Court Judge cannot be clubbed with
an additional period to refix the pension. The same position is
reiterated by the appellant in his subsequent letter dated
4.11.2004 addressed to respondent No. 1. These three
letters/orders were challenged by the first respondent in a writ
34
petition to the Madhya Pradesh High Court (W.P. No.13302/2004)
which has allowed that petition by the impugned judgment and
order dated 8.2.2005. The High Court has noted that this
additional liability is being undertaken by the State Government,
and it is not be drawn from the Consolidated Fund of India, and
that it is not to exceed the maximum pension payable to a High
Court Judge and therefore would be valid.

 

 

The submissions by the rival parties

 

 

10. The learned counsel for the first respondent Mr.
Amrendra Sharan raised an objection to the maintainability of
the appeal at the instance of the appellant. It was contended
that since his decision was challenged, the appellant is not
expected to agitate it further. In this connection, we must note
that the appellant was joined as the first respondent in the Writ
Petition in the High Court. He is in charge of the accounts in the
State and represents the Comptroller and Auditor General of
India, who is a Constitutional Functionary. The payment of
pension and its supervision is a part of his responsibility. His
letters/orders were challenged in the writ petition, and if it was
his view that the decision of the High Court was erroneous, we
35
do not see any reason as to why he should not be held eligible
to challenge the decision. He is an administrative authority and
his decision was approved by the Ministry of Law and Justice.
Such petitions have been filed by the Accountant Generals in
the past also. [For reference in the case of Accountant General
of Orissa Vs. R. Ramamurthy reported in 2006 (12) SCC 557.]
Hence we do not find any substance in this objection.

 

 

11. The principal submission on behalf of the
appellant is based on Section 16(2) of the Act, which reads as
follows:-

 
“16. Composition of the State Commission…..
(1) ………………….

(2) The salary or honorarium and other allowances

payable to, and 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 definition of a `member’ under Section 2(jj) of the
act includes the President of the State Commission, and the
term `prescribed’ has been defined in Section 2 (n) as follows:-

 
“2(n). “prescribed” means prescribed by rules

made by the State Government, or as the case may

be, by the Central Government under this Act.”
36

 
Section 30 which lays down the power of the Central
Government or that of the State Government to make the rules,
specifically provides under Sub-section (2) that amongst others,
the State Government may by a notification make rules for
carrying out the provisions of Sub-section (2) of Section 16 of
the Act. This being so, whatever is prescribed in the rules are
the various terms and conditions of service, for the members of
the State Commission. This does not mean that the State
Government cannot frame additional rules either granting
pension or other benefits. However, wherever it is done without
framing rules, it will be difficult to say that it is authorized by the
statute.

 

 

12. As far as the rules in this behalf viz. The Madhya
Pradesh Consumer Protection Rules, 1987 are concerned, there
is no difficultly in noting that the rules do not provide for
pension either to the President or to the members. Rules 6 (1) to
(3) thereof are the relevant rules in this behalf. They read as
follows:-

 
“6. Salary and other allowances and terms and

conditions of the President and Members of the State
37
Commission.

“1. The President of the State Commission shall

receive salary of the High Court if appointed on whole

time basis or a consolidated honorarium of Rs.200

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.150 per day

for the sitting.

2. The President and the Members of the State

Commission shall be eligible for such travelling

allowance and daily allowance on official tour as are

admissible to grade I Officer of the State Government.

3. The salary, honorarium and other allowances

shall be defrayed out of the Consolidated Fund of the

State Government.

…………………………………”

 
13. The submission of Mr. Mariarputham, learned
Senior Counsel for the appellant has been that the appellant is
required to read and implement these provisions as they are.
The section clearly provides that the terms and conditions of
service of the member (including President of the Commission)
will be as prescribed by the State Government. `Prescribed’
means as laid down in the rules. Section 31 of the Act requires
that these rules are to be laid before the legislature. Since the
rules do not provide for pension, one cannot incorporate any
such concept in the service conditions of the first respondent.
Mr. Mariarputham, relied upon the judgment of this Court in the
case of State of Uttar Pradesh Vs. Singhara Singh reported in
AIR 1964 SC 358, and particularly first part of paragraph 8
38
thereof which reads as follows:-

 
“8. The rule adopted in Taylor V. Taylor (1876) 1

Ch. D 426 is well recognised and is founded on

sound principle. Its result is that if a statute has

conferred a power to do an act and has laid down the

method in which that power has to be exercised, it

necessarily prohibits the doing of the act in any

other manner than that which has been prescribed.

The principle behind the rule is that if this were not

so, the statutory provision might as well not have

been enacted………”
14. As against the submission on behalf of the
appellant, it has been submitted by Mr. Amrendra Sharan,
learned Senior Counsel appearing for the first respondent, that
in the present case the rules are silent about the provision for
pension. It cannot however mean that the State Government
cannot on its own grant pension by issuing an executive order
under Article 162 of the Constitution of India. He relied upon the
judgment of this Court in Sant Ram Sharma Vs. State of
Rajasthan reported in AIR 1967 SC 1910 in this behalf. A strong
reliance was also placed on the judgment of this Court in the
case of Orissa State (Prevention and Control of Pollution) Board
Vs. Orient Paper Mills reported in 2003 (10) SCC 421, particularly
paragraph 12 thereof, to explain the phrase `as may be
prescribed’. It was therefore submitted that where the rule is
silent, it cannot mean a restriction on the exercise of the
39
executive powers of the State, which it has exercised in the
present case.

 
Consideration of the rival submissions
15. Article 162 of the Constitution, lays down the
extent of the executive power of the State in following terms:-

 

 

“162. Extent of executive power of State
Subject to the provisions of this Constitution, the

executive power of a State shall extend to the matters

with respect to which the Legislature of the State has

power to make laws:

Provided that in any matter with

respect to which the Legislature of a State and

Parliament have power to make laws, the executive

power of the State shall be subject to, and limited by,

the executive power expressly conferred by this

Constitution or by any law made by Parliament upon

the Union or authorities thereof.”

 
This Article does lay down in its principal part that the
executive power of the State shall extend to the matters with
respect to which the Legislature of a State has the power to
make laws. It is however important to note that the proviso to
this Article lays down that in such matters the executive power
of the State shall be subject to and limited by the executive
power expressly conferred by the Constitution or by any law
made by Parliament upon the Union or authorities thereof. In
40
the instant case, the State Govt. has been expressly given the
power under Section 30 (2) to make rules for carrying out the
provisions of Section 16 (2) of the act. The State has therefore
to exercise its executive power subject to and as limited by this
law meaning thereby in conformity therewith.

 

 

16. When the statute provides that the `terms and
conditions shall be such as may be prescribed, and `prescribed’
means prescribed by the rules, it is implied that these rules shall
be of general application. If pension is to be covered under the
concept of terms and condition of service under Section 16 (2),
there has to be a general rule concerning the same. Pension
denotes a periodical payment to be made available to the
employee after his retirement, after long years of service which
are governed by the relevant rules [Ref. Pepsu Road Transport
Corporation, Patiala Vs. Mangal Singh reported in 2011 (11) SCC
702]. In the instant case, there are general rules laying down the
terms and conditions framed under the concerned statute but
they do not make any provision for pension. As far as the grant
of pension is concerned, in his first letter dated 10.12.2003, the
appellant raised the issue with respect to the rate at which the
41
pension is to be calculated. Mr. Mariarputham, submitted that if
the service in the consumer commission is not to be clubbed,
and even if the State Government is to bear the responsibility, it
will also have to be provided as to how many years of service in
the commission will qualify for pension. It is not enough merely
to provide that the two pensions combined together shall not
exceed the maximum of the pension prescribed for Judges of
the Hon’ble High Court. These issues can be dealt with if rules
are made and not otherwise.

 

 

17. Nothing prevents the State Government from
making rules in this behalf specifically for this purpose. A
provision for pension has thus been made when the legislature
so wanted it, as can be seen in the case of Central
Administrative Tribunal. Thus, Rule 8 of the Central
Administrative Tribunal (Salaries and Allowances and
Conditions of Service of Chairman, Vice Chairman and
Members) Rules, 1985 reads as follows:-

 

 

“8. Pension- (1) Every person

appointed to the Tribunal as the Chairman, a Vice

Chairman or a Member shall be entitled to pension

provided that no such pension shall be payable-

(i) if he has put in less than two years

of service; or
42
(ii) if he has been removed from an

office in the Tribunal under sub-section (2) of Section

9 of the Act.

(2) Pension under sub-rule (1) shall be

calculated at the rate of rupees seven hundred per

annum for each completed year of service 1[**] and

irrespective of the number of years of service in the

Tribunal, the maximum amount of pension shall not

exceed rupees three thousand five hundred per

annum:

Provided that the aggregate amount

of pension payable under this rule together with the

amount of any pension including commuted portion

of pension, (if any) drawn or entitled to be drawn

while holding office in the Tribunal shall not exceed

the maximum amount of pension prescribed for a

Judge of the High Court.”
1. Omitted by GSR 417 (E), dt. 31.3.1989

 
18. (i) In Justice P. Venugopal (supra), a bench of three
Judges of this Court has laid down that a High Court Judge is
entitled to pensionary benefits only in terms of the High Court
Judges (Conditions of Service) Act, 1954 and not otherwise. A
clubbing of additional services, if any, for the purpose of
computation of pension is not contemplated. As seen from the
calculations tendered by the first respondent it is very clear that
he was clubbing his service as a High Court Judge and as the
President of the State Commission, to claim the pension, though
not exceeding the maximum of the pension prescribed for
Judges of the High Court. It is also relevant to note that it is not
stated in the Calculation Sheet as to which portion of the
43
proposed pension was to be paid by the State Government and
which would be payable for the services as a High Court Judge.
Thus, on these facts the pension claimed was clearly
inadmissible.
(ii) It is true that in para 26 of its judgment in Justice P.
Venugopal (supra) this Court has laid down that the question as
to whether a Judge rendering services subsequently would be
entitled to pension from the State will depend upon the statute
or the terms and conditions of appointment. As noted above, in
our understanding the provisions of the statute and the rules in
the present case are clear, and therefore the appellant could not
be faulted for raising the queries with respect to the claim of the
first respondent for the pension as the President of the State
Commission, in the absence of specific provision in the rules.

 

 

19. The reliance by the respondent No. 1 on the
judgment of this Court in Orissa State (Prevention and Control
of Pollution) Board (supra) is also erroneous. That was a case,
where there was a power under Section 19 of the Air (Prevention
and Control of Pollution) Act, 1981, to declare any area as air
pollution control area. This was to be done after consultation
44
with the said Board by issuing a notification in the official
gazette. This in fact, was done. What was lacking were the
rules to be made under Section 54 of the Act to carry out the
purposes of the Act, and amongst others it was provided under
sub-section (2) thereof that the rules may provide for the manner
in which an area or areas may be declared as air pollution
control area. It was canvassed on behalf of the respondent that
in the absence of rules `prescribing this manner’, the
notifications issued under Section 19 would be bad. This court
negated this argument. The observations of this court
concerning the term `prescribed’ will have to be looked in that
context. It is in this context that what is observed in paragraph
13 of the judgment is more important. It reads as follows:-

 
“13. Thus, in case manner is not prescribed under

the rules, there is no obligation or requirement to

follow any, except whatever the provision itself

provides viz. Section 19 in the instant case which is

also complete in itself even without any manner being

prescribed as indicated shortly before to read the

provision omitting this part “in such manner as may

be prescribed”. Merely by absence of rules, the State

would not be divested of its powers to notify in the

Official Gazette any area declaring it to be an air

pollution control area. In case, however, the rules

have been framed prescribing the manner,

undoubtedly, the declaration must be in accordance

with such rules.”

 
Thus, in the Orissa case the substantive
45
declaration concerning the pollution control area had been done
by following the procedure of issuing a notification in exercise
of the power under Section 19 of the Act, and therefore the
decision was complete and valid in itself. The rules prescribing
the manner were not framed at all, and therefore non-adherence
thereto would not vitiate the notification. In the instant case, the
rules have been framed. They lay down the substantive
provisions concerning the terms and conditions of the service,
and they do not include pension. The scenario in the two cases
is quite distinct.

 
20. Sant Ram Sharma (supra) was a case
concerning promotions to selection grade posts in the Indian
Police Service on the basis of merit. The statutory rules for that
purpose were not framed, and it was contended that the
executive government cannot be held to have power to make
appointments and lay down conditions of service without
making rules in that behalf. There was however, long
administrative practice bordering on to a rule of effecting
promotions based on merit, and not merely on seniority, and the
appellant had also been considered for selection. It was in this
context that this Court held that it would not be proper to say
that till statutory rules governing promotions to selection grade
46
posts are framed, Govt. cannot issue administrative instructions
regarding the principles to be followed. The court repelled the
contention by observing at the end of paragraph 9 as follows:-

 
“As a matter of long administrative practice

promotion to selection grade posts in the Indian

Police Service has been based on merit and seniority

has been taken into consideration only when merit of

the candidates is otherwise equal and we are unable

to accept the argument of Mr. N.C. Chatterjee that

this procedure violates, in any way, the guarantee

under Arts. 14 and 16 of the Constitution.”

 
Hence, this judgment cannot be read as a
judgment permitting an additional grant when the rules do not
provide for the same.

 

 

21. The decisions of this court in Lalit Mohan Deb
Vs. Union of India reported in 1973 (3) SCC 862 and those in
Union of India and another Vs. Central Electrical and Mechanical
Engineering Service (CE&MES) Group `A’ (Direct Recruits)
Association, CPWD and others reported in 2008 (1) SCC 354 are
also to the same effect, namely that the executive instructions
have to be in conformity with the rules and not inconsistent
therewith. In the present case rules have been framed. It is not
a case of absence of rules. It is a case where there is no
concept of pension at all in the concerned rules. The question
47
is whether such a provision can be brought in through an
executive order for the benefit of an individual. In the instant
case there are rules framed for the purpose of Section 16 (2) of
the Act read with Section 30 (2) of the Act. The rules do not
provide for any pension, and if they do not so provide, the
concept and the obligation thereunder cannot be brought in
through an executive order. It is also very relevant to note that
the Oxford Dictionary defines the verb `prescribe’ amongst
others, as follows:-

 
” to state authoritatively that something should be

done in a particular way”.

 
When Section 16 (2) lays down that the terms
and conditions of service shall be such as may be prescribed,
there is an element of authoritativeness, and a requirement to
act in a particular way.

 

 

22. The provision of Section 31 of the Act is to be
looked at from this point of view. It provides for the rules and
regulations to be laid before each House of Parliament and State
Legislature. The first respondent relied upon the judgment of
this Court in the case of M/s Atlas Cycle Industries Ltd. Vs. State
of Haryana reported in 1979 (2) SCC 196 to submit that laying
48
down was not mandatory but was a directory provision. In the
present case, it is difficult to say that this provision is merely
directory. But in any case, what Section 31 indicates is that the
Union Parliament or the State Legislature is to be kept informed
about the rules. This is because it concerns the public finance
and the functioning of the authorities under the Act. It is a
welfare enactment and it cannot be said that these provisions
are such which can be ignored. This is only to emphasize that
one has to function within the four corners of law, and the
executive power cannot be used to act outside thereof.
23. We cannot ignore that the provisions of statute
and the rules are to be read as they are. As stated by Justice
G.P. Singh in Principles of Statutory Interpretation (13th Edition,
Chapter 2 Page 64),

 

 

“the intention of the Legislature is primarily to be

gathered from the language used, which means that

attention should be paid to what has been said as also

to what has not been said.”

 

[See also Crawford Vs. Spooner 4 Moo Ind. App. 179 and
Nalinakhya Vs. Shyam Sunder AIR 1953 SC 148 Para 9 quoting
with approval Crawford Vs. Spooner.] We may as well refer to
the observations of this court in para 10 of State of Kerala Vs. K.
49
Prasad reported in 2007 (7) SCC 140 to the following effect:-

 

 

“…….. It needs little emphasis that the Rules are meant

to be and have to be complied with and enforced

scrupulously. Waiver or even relaxation of any rule,

unless such power exists under the rules, is bound to

provide scope for discrimination, arbitrariness and

favouritism, which is totally opposed to the rule of law

and our constitutional values. It goes without saying

that even an executive order is required to be made

strictly in consonance with the rules. Therefore, when

an executive order is called in question, while

exercising the power of judicial review the Court is

required to see whether the Government has departed

from such rules and if so, the action, of the

Government is liable to be struck down.”

(emphasis supplied)
24. The first respondent was undoubtedly entitled to
receive pension for his tenure of service as a High Court Judge.
The question is with respect to payability of pension for the
service as the President of the State Commission. It is a matter
concerning public finance, and such a grant cannot be made at
the instance of the State Government when the rules do not
prescribe the same. In the instant case the order according
sanction to pension does not prescribe any period for eligibility
nor any rate at which the pension is to be paid. This is apart
from the fact that as seen from the Calculation Sheet tendered
by the first respondent, the subsequent period of his service as
the President of the State Commission was sought to be
50
clubbed with the period of his service as a High Court Judge,
which is impermissible. Such an order for the benefit of an
individual cannot be considered to be a valid one. Any such
exception being made by exercising executive power would be
violative of Article 14 of the Constitution of India.

 

 

25. In the circumstances the appeal deserves to be
allowed and the impugned judgment and order passed by the
High Court is required to be set-aside. Accordingly, this Civil
Appeal is allowed, the judgment and order of the High Court
dated 8.2.2005 in Writ Petition No.13302/2004 is hereby set-
aside, the said writ petition filed by the first respondent is
dismissed though without any order as to costs.

 

 

26. Mr. Amrendra Sharan, learned counsel for the
first respondent submitted that in the event this Court is not
inclined to hold in favour of the respondent No.1, the payment
made so far should not be recovered. He relied upon the
judgment of this Court in the case of Yogeshwar Prasad Vs.
National Institute of Education Planning and Admn. reported in
2010 (14) SCC 323 wherein this court held in the facts of that
case the grant of higher pay scales should not be recovered
51
unless it was a case of misrepresentation or fraud. This
judgment in turn referred to an earlier judgment in Sahib Ram
Vs. State of Haryana reported in 1995 Supp. (1) SCC 18. In that
matter the appellant was held to be not entitled to a salary in the
revised scale. However, since the higher pay scale was given to
him due to wrong construction of the relevant order by the
authority concerned and not on account of any
misrepresentation by the employee, the amount paid till the date
of order was directed not to be recovered. When this appeal
was admitted, stay as prayed by the appellant was declined, but
it was made clear that the payment made by the appellant
pursuant to the judgment of the High Court will be subject to the
decision of appeal. Mr. Mariarputham, learned counsel for the
appellant submitted that the appeal is canvassed basically in
view of the principle involved. In view thereof, although the
appeal is allowed, the additional pension paid to the first
respondent as the President of the State Commission till the end
of February 2012, will not be recovered from him. However,
from March, 2012 onwards the first respondent shall be entitled
to receive pension only for the service rendered by him as a
High Court Judge.

 
…………………………………..J.
52
( H.L. Gokhale )

 
New Delhi

Dated: February 29, 2012
53

 

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5322 OF 2005

 

The Accountant General, M.P. …. Appellant
Versus
S.K. Dubey & Anr. ….Respondents

 

 

COMMON ORDER

 
In view of divergence of opinion in terms of separate
judgments pronounced by us in this appeal today, the Registry is
directed to place the papers before Hon’ble the Chief Justice for
appeal being assigned to an appropriate Bench.

 

 

…………………….J.

(R.M. Lodha)

 
…………………….J.

(H.L. Gokhale)

NEW DELHI.

FEBRUARY 29, 2012.

 

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