LAKSHMANAN, CJ. - (1.) THESE two cases raise an interesting question of law as to whether pension can be deduced from the salary of a member of Rajasthan Higher Judicial Service holding the assignment of a President of District Consumer Forum continuing as such after superannuation in the RHJS. The other questions of law would also arise for consideration in these two cases to which we will refer to it later.
(2.) SHYAM Sundar Gupta, respondent in Special Appeal No. 796/97 was appointed as President of Consumer Disputes Redressal Forum, Sikar vide order dated 2. 6. 1994 by the State of Rajasthan under Section 10 (1) (A) of the Consumer Protection Act, 1986. He was relieved from the post of District Judge on 18. 6. 94 and he joined his new posting as President of District Consumer Forum on 18. 6. 94 and he has been working as such since then. The respondent attained the age of superannuation of District Judge on 31. 5. 95. He got his pension decided and commuted and got the released amount of his gratuity and General Provident Fund amount, State Insurance, leave encashment etc. and thus took about Rs. 5 lacs from all these heads as is apparent from the order of the learned Single Judge. The gross pension was sanctioned @ Rs. 3050/- per month which was reduced to net amount payable as Rs. 2034 monthly on account of commutation of pension. The State of Rajasthan passed two orders dated 19. 2. 96 and 14. 6. 96 to the effect that the salary and allowances of the period commencing from 1. 6. 95 (retirement date of the respondent as RHJS) was ordered to be paid according to Rule 337 of the Rajasthan Service Rules, 1951 and further to the effect that the respondent will be eligible to get the salary and allowances etc. after deduction of the pension from the last salary drawn as member of RHJS; D. A. City compensatory allowance were also ordered to be paid on the basis of last salary drawn as member of RHJS after deduction, to the respondent. It was further laid down that the officiating allowance, car allowance and other allowances shall not be paid to the respondent. The respondent challenged the two orders dated 19. 2. 96 and 14. 6. 96 (Annexures 4 and 5) by filing a writ petition in this Court in which the impugned order was passed. The State Government filed reply not disputing the fact of appointment of the respondent as President of District Consumer Forum while he was a sitting District Judge and took defence that because of the fact that the respondent retired as District Judge on 31. 5. 95 and that he treated himself also to have been retired from the post of District Judge on attaining superannuation age on 31. 5. 95 and got all the benefits of retirement as District Judge. The learned Single Judge has allowed the writ petition by holding that according to the provisions of the Act of 1986 and the Rules of 1987 made thereunder the appointment of the respondent was for 5 years or till he attains the age of 65 years whichever is earlier and that the benefits of the post of President Consumer Forum on which he was appointed cannot be varied and allowed the writ petition against which this special appeal has been filed by the State Government. According to the State of Rajasthan, learned Single Judge has not given proper consideration to the Act of 1986 and Rules of 1987 framed thereunder which provide salary to the President, Consumer Forum and at the time of his appointment as President, Consumer Forum, the respondent was a sitting District Judge and got himself relieved from the post of District Judge himself relieved from the post of District Judge and joined as President, Consumer Forum but treated himself to be a Judicial Officer under Judicial Service and as soon as he attained the age of superannuation on 31. 5. 95 he applied for pension and got it commuted and got all other retiral benefits and that the State Government would not have given the balance of amount of Rs. 2 lacs. By taking the retiral benefits the respondent has been benefited about 7,500/- per month as the amount of interest with current rate in the market on the total retiral benefit of Rs. 5 lacs. It is also submitted that there is no illegality or arbitrariness in the impugned order Annexures 4 and 5 challenged in the writ petition and the application of Rule 337 of the Rajasthan Service Rules was a must under the facts and circumstances of the case. In the very same appeal, during the pendency of this appeal, the respondent in the writ petition made an application to refer this matter to a Larger Bench for deciding certain questions in view of the conflicting judgments rendered on the same subject matter by Division Benches of this Court and also by a Division Bench of Kerala High Court. The judgment under appeal was rendered by Mrs. Justice Gyan Sudha Misra is reported in 1997 (2) WLC (Raj.) 365 (1 ). The learned Single Judge quashed the two orders dated 19. 2. 96 and 14. 6. 96 contained in Annexure 4 and 5 to the writ petition and directed that the petitioner shall be entitled to full salary and allowances payable to the President, District Consumer Forum which is equivalent to the Judge of a District Court and shall also be entitled to all other perks including officiating allowance, car allowance and other perks. The deduction for occupying Government residence will be made on the basis of the salary which will be payable and to which the petitioner is entitled to.
(3.) THIS judgment was followed by another learned Single Judge at the Principal Seat, Jodhpur, against which, an appeal was preferred before the Division Bench of the Principal Seat at Jodhpur in D. B. Special Appeal No. 698/98 which was disposed by the judgment dated 1. 12. 1998 (2) by a Division Bench comprising of Hon'ble Mr. Justice V. S. Kokje, Acting Chief Justice and Hon'ble Mr. Justice A. S. Godara. The learned Judges after discussing the points raised by the counsel appearing on either side and also after referring to Section 10 (1) of the Act and Rule 3 of sub clause 1 and other provisions came to the following conclusion: "however, so long as the Rule is not amended we will have to construe it harmoniously and reasonably. It appears just, proper and reasonable that a person who is appointed as President of the District Forum while he is in the RHJS should continue to draw the salary he was drawing in the RHJS as President of the District Forum. He should also continue to get all emoluments and increments in the salaries and allowance to which he would have been entitled to if he had continued in the mainstream judiciary during the period he is in the District Forum till his retirement on superannuation from RHJS. On retirement on superannuation from RHJS he should not be entitled to double benefit by getting an extension of service up to 65 years of age or till completion of 5 years term as also salary plus pension. At best, such a person can be deemed to have continued in the RHJS beyond the age of superannuation for the purpose of calculation of salaries and other emoluments. The most reasonable construction which can be put on the provisions is that the last salary drawn by such a person in the RHJS on the date of his retirement should be his salary for the purpose of the rules. THIS means that he would not be entitled to draw the amount of pension also alongwith the salary. It is true that Rule 337 of the Rajasthan Service Rules applies to re-employment and this being not a re-employment as such and which at best can be called to be re-employment in advance, the Rule 337 strictly would not apply". The Bench has also observed that the person like the respondent (Amar Nath Purohit) shall not be entitled to double benefits of pension for one more reason and that is to be found in Rajasthan Civil Services (Pension) Rules, 1996. The Bench also referred to Rule 151 of the Rules which provides that Government servant who is in receipt of superannuation or retiring pension shall not be re-employed or continued to be employed in service paid from the consolidated fund or from local fund except on public grounds. Rule 152 of the aforesaid Rules provides that re- employed pensioners shall be allowed to draw pay only in the prescribed scales of pay for the post in which they are re- employed, no protection of scales of pay of post held by them prior to retirement shall be given. The Rule further provides that in all cases where the pension is fully ignored, initial pay on re-employment shall be fixed on the minimum of scale of pay of the re-employed post. In case where the entire pension and pensionary benefits are not ignored for pay fixation the initial pay on re-employment shall be fixed at the same stage as the last pay drawn before retirement. Thus, for allowing the respondent to draw pension as well as salary. It is useful to refer to the observations made by the learned Judge in the concluding para of the judgment as well: "the embargo against re-employment contained in Section 10 of the Act applies to factual re-employment of the appointee on factual termination of his earlier appointment. It cannot be treated to be a bar against notional re-employment for the purposes of fixation of salary. Likewise, the protection given to the appointee against reduction of emoluments by Rule 3 (6) of the Rules cannot be construed hypertechnically as a bar against deduction of pension amount from salary. Factual effect on emoluments has to be taken into account. Viewed thus, the deduction of pension amount from salary would not appear to be objectionable as factually the salary emoluments being drawn by the incumbent on the day of his retirement are not reduced at all. It is only that the incumbent is not allowed to get his actual emoluments raised by the pension amount as a consequence of his retirement. If this is allowed to be done that would be permitting unjust enrichment of the officer. We are, therefore, in respectful disagreement with the view taken by the learned Single Judge who decided S. S. Gupta's case which is relied on by the learned Single Judge passing the impugned order. We also do not agree that by accepting appointment as President in the Forum an Officer of the RHJS curtails his tenure in RHJS for which he is entitled to be compensated. In fact such officers get the benefit of automatic extension of employment beyond the maximum tensure in RHJS. They cannot derive double benefit by addition of pension amount also to their emoluments. " ;