Kuldip Chand Sood, J.@mdashJustice P.N. Nag (Retd.), is the Petitioner in this writ petition. The Petitioner was appointed permanent Judge of the High Court of Delhi on October 12, 1988. He was transferred to Allahabad High Court on March 4, 1995. Justice Nag (Retd.) was appointed President of the Himachal Pradesh State Consumer Disputes Redressal Commission, u/s 16 of the Consumer Protection Act, 1986 ("Consumer Act" for short) by a notification of the Government of Himachal Pradesh dated July 9,1996 (Annexure PI) on the terms and conditions set out in the notification. One of the conditions was that Justice Nag shall be entitled to salary and allowances and other perquisites as per available to him as Judge of the High Court (last pay drawn minus pension). He was also entitled to increase in dearness allowance on account of the revision from time to time. However, no interim relief or relief in pension was payable to him during his tenure as President of the State Commission.
2. The Petitioner was allowed salary of rupees 8,000 per month, salary drawn by him as Judge of the High Court, minus pension, as President of the State Commission.
3. By an amendment of the High Court and Supreme Court Judges (Conditions of Service) Amendment Ordinance No. 11 of 1998, promulgated on April 24, 1998, the salary of the Judges of the High Courts was revised to rupees 26,000 per month with effect from January 1, 1996. This Ordinance was later on replaced by an'' amendment Act No. 18 of 1998.
4. The Petitioner represented to the Government of Himachal Pradesh for the revision of his salary as President of the Commission on March 18, 1999 (Annexure-P4) and April 17, 1999 (Annexure-P5) for the revision of his salary so as to bring it at par with that of Judges of the High Court. The representations did not evoke any response.
5. Dis-satisfied, the Petitioner is in this petition under Article 226 of the Constitution.
6. The case of Justice Nag (Retd.) is:
(a) When the Petitioner was appointed President of the State Commission on July 9, 1996, the salary of the Judges of the High Court had not been revised. It was revised only when Ordinance, amending the High Court and Supreme Court (Conditions of Service) Act promulgated on July 24, 1998. The revision in the salary of the Judges was given effect from January 1, 1996. The stipulation in the notification of the appointment of the Petitioner as President of the Commission providing for the salary of rupees 8,000, p.m., then admissible to a Judge of the High Court was not intended to mean that the Petitioner would continue to draw the unrevised salary of a Judge of the High Court pegged at rupees 8,000 irrespective of its future revision.
(b) The State Government, in fact, responding to the revision of pay of the Judges of the High Court, amended H.P. Lokayukta Act in the year 1998 so as to bring the salary of the Lokayukta of H.P. at par with the Chief Justice of the High Court as the post of Lokayukta H.P. was manned by a retired Chief Justice of the High Court at the relevant time. It is the case of the Petitioner that Justice P.C. Balakrishna Menon (retired), a former Chief Justice of this High Court, held the office of Lokayukta from February 2, 1994 and laid down his office on December 19,1998. The Lokayukta Act was amended to enable the Lokayukta, Mr. Justice P.C. Balakrishna Menon, to draw the revised salary as payable to a Chief Justice of a High Court from January 1, 1996.
(c) The Government of India also in view of the revision of salaries of the Judges of the Supreme Court and High Courts, amended the H.P. Administrative Tribunals (Salaries and Allowances and Conditions of Service of Chairman and Vice Chairman and Members) Rules, 1986 so as to enable the Chairman of the H.P. Administrative Tribunal to draw revised salary of the Judge of the High Court w.e.f. January 1.1.1996.
(d) At the relevant time, Mr. Justice D.P. Sood (Retd.) was the Chairman of the Administrative Tribunal who after retirement was appointed as such on October 5, 1995. The benefit of the revised salaries of the Judges of the High Court w.e.f. January 1, 1996 was extended to Justice D.P. Sood (Retd.).
(e) Similarly placed, Justice R.K. Mahajan (Retd.) who headed the H.P. State Commission for Backward Classes was also given the benefit of the revised salary of the Judges of the High Court.
7. The Petitioner, in the facts and circumstances, it is pleaded, was entitled to draw enhanced revised salary with effect from January 1, 1996 till he relinquished his office as President of the Commission. He was unjustly denied such benefit without any discernable reason. The action of the Respondents, according to the Petitioner, was arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution.
8. It is also the case of the Petitioner that u/s 16(1)(a) of the Consumer Act, only a person who is or has been a Judge of the High Court can be appointed as its President'' provided that such appointment is made after consultation with'' the Chief Justice of the concerned High Court. Thus, the very fact that a person who is a sitting or retired Judge of the High Court can only be appointed as President of the Commission, would, show that for all intents and purposes, the Statute recognized the President of the Commission equivalent in status to that a Judge of the High Court. In these circumstances it was not open to the Respondents to discriminate between a sitting Judge and retired Judge of a High Court when appointed as President of the Commission in so far as the payment of salaries, allowances and perquisites are concerned.
Justice Nag (Retd.) prays for an appropriate writ, order or directions to the Respondents in the following terms:
(i) to release the financial benefits on account of salary, allowances,, perquisites, traveling allowance etc. to the Petitioner in terms of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1998 (No. 18 of 1998), with effect from 9.7.1996 the date of appointment to 4.3.2000 when the tenure of the Petitioner as President of the State Consumer Commission is going to expire, particularly by raising his salary from Rs. 8,000 to Rs. 26,000 per month;
(ii) to allow interest in favor of the Petitioner @ 18% per annum'' on the enhanced benefits as stated in Clause (a) above with effect; from 9.7.1996 to 4.3.2000 till the amount is actually paid;
(iii) to award cost of the writ petition in favor of the Petitioner and against the Respondents; and
(iv) any other writ order or direction as this Hon''ble Court may dee just and proper in the facts and circumstances of the case may also kindly be issued in favor of the Petitioner and against the, Respondents.
9. The Respondents disputing the claim of the Petitioner, filed their , return on April 26, 2002. However an application (CMP No. 235 of 2001) was filed for permission to amend the reply of the Respondents to enable the Respondents to remove certain defects, which crept up due to inadvertence. Along with this application, amended return was also filed. We allow the application. Amended reply shall be part of the record.
10. We proceed to decide the writ petition on the basis of the amended reply filed by the Respondents.
In the return filed by the Respondents, the claim of the Petitioner is controverter. The jurisdiction of this Court to enter and try this petition, in view of the provisions of H.P. Administrative Tribunals Act, 1985, is disputed. It is the case of the Respondent State that the Petitioner accepted the appointment, as President of the State Commission, fully aware of the terms and conditions for his appointment and the consequences of acceptance of such terms and conditions. Therefore, he is estopped to challenge the terms and conditions of his appointment. It is pleaded that the petition being highly belated deserves to be dismissed. On merits, it is pleaded that the Respondents were not bound to revise and enhance the salary of the Petitioner to bring it at par with the salary of a Judge of a High Court particularly when he retired prior to January 1, 1996 and was reemployed after the revision of the salary of the Judges of the High Court. According to the Respondents, the salary and other perquisites of the Lokayukta are regulated under the HP. Lokayukta Act, 1983 and Legislative Assembly in its wisdom revised the salary of the Lokayukta w.e.f. January 1, 1996. The Respondents maintain that there was no conscious decision of the Government to enhance the salary of the retired Judges of the High Court, who had retired from service prior to January 1, 1996, and were re-employed so as to bring their salary at par with the sitting Judges of High Courts. It is the case of the Respondents that so far the revision of the salary of Chairman, Vice Chairman and Members of the H.P. State Administrative Tribunal is concerned; it was revised by the Government of India without consulting the Government of Himachal Pradesh. The Government of Himachal Pradesh merely implemented the decision of the Government of India. Similarly, it is pleaded, the salaries of the Chairman and Members of the H.P. Public Service Commission are regulated under the Himachal Pradesh Public Service Commission (Members Regulations) 1974 as amended from time to time and they were given the benefits of the revised pay-scales w.e.f. January 1, 1996 in view of the amendment of the regulations. There was no policy decision of the Government to revise the pay scales of any re-employed person who had retired prior to January 1, 1996. The pay scales of only such employees of the Government were revised w.e.f. January 1, 1996 who were in actual employment of the Government on that day and retired subsequently.
11. The terms and conditions of re-employed person, it is the case of the Respondents, are specifically stipulated in the order of their employment unless such terms and conditions are governed by any other regulations or orders having the force of law. The Petitioner having retired prior to January 1, 1996 cannot claim the revised salary w.e.f. January 1, 1996. The Respondents maintain that no discrimination has been made in the case of the Petitioner.
12. The Petitioner, it is pleaded, cannot claim parity with the sitting Judges of the High Court as the conditions of service of re-employment of retired Judge(s) to any post are regulated either by contract of service or by statute. In the case of the Petitioner, these were regulated by the terms-of his employment (Annexure PI).
13. Respondents admit that representations of the Petitioner were received. These representations, maintain Respondents, were considered "at the highest level" but were not accepted in view of the existing rules. According to the Respondents, if the case of the Petitioner is made an exception, it will open "a Pandora''s box" since other retired persons would also claim benefits of revised pay scales w.e.f. January 1, 1996.
14. We have heard Mr. Anuj Nag, learned Counsel for the Petitioner and Mr. S.S. Mittal, learned Senior Counsel for the Respondents. Mr. Anuj Nag, learned Counsel for the Petitioner, raised several contentions. Mr. Nag contended:
(a) Salaries of re-employed Chief Justices/Judges, except the Petitioner, were revised so as to bring their salary at par with the sitting Chief Justice/Judges of the High Court, as the case may be, w.e.f. January 1, 1996, though similarly placed the Petitioner was denied such benefit. The source of appointment in all the cases was the same, i.e., the retired Chief Justice/retired Judge of the High Court;
(b) the classification made by the Respondents in case of the Petitioner is artificial, unreasonable and not referable to any intelligible differential;
(c) the decision of the Respondents not to give benefit of the revised pay to the Petitioner was violative of Article 14 of the Constitution.
15. We may, at the out set, note that Mr. Mittal, learned Senior Counsel for the Respondents, did not press the objection of the Respondents regarding the jurisdiction of this Court to entertain and decide the writ petition.
16. There is no dispute that the Petitioner. Justice Nag (Retired) was drawing a salary of rupees 8,000 per month when he retired as Judge of the High Court on March 4, 1995. It is also not in dispute that when he was appointed as President of the State Commission on July 9, 1996, he was given the salary, which he was drawing as Judge of the High Court, (i.e. rupees 8,000 p.m.). This was the salary of a sitting Judge of the High Court at the relevant time. Salary of the Judges of the Supreme Court and High Courts was revised w.e.f. January 1,1996 to rupees 30,000 and 26,000, respectively, by an amendment of the High Court and Supreme Court Judges (Conditions of Service) Act, by an Ordinance promulgated on April 24,1998. It is also not in dispute that Justice Menon, retired as Chief Justice of this Court much before January 1, 1996. He was appointed as Lokayukta of Himachal Pradesh in February 1994. The salary of the Lokayukta was revised to bring it at par with the salary of a sitting Chief Justice w.e.f. January 1, 1996. This was done in view of the amendment of the High Court and Supreme Court Judges (Conditions of Service) Act on April 24, 1998 w.e.f. January 1, 1996. For this purpose, the Lokayukta Act was amended. Similarly, Government of India, it is admitted position, taking not of the revision of the salaries of the Judges of the High Court and Supreme Court w.e.f. January 1, 1996 amended the H.P. Administrative Tribunals (Salaries, Allowances and Conditions of Service of Chairman, Vice Chairman and Members) Rules, 1986, so as to give benefit of the revised salaries. Justice D.P. Sood (Retired) then Chairman of the Administrative Tribunal though was appointed as Chairman on October 5, 1995, (prior to January 1, 1996) from which date the salaries of the Judges were revised) was also given the benefit of the revision of salary. Similar benefit was also extended to other retired Judges who were re-employed including Justice R.K. Mahajan (retired) who was appointed as Chairman of the H.P. State Commission, for Backward Classes. Mr. Mahajan, it may be noticed retired after January 1, 1996.
17. The contention of Mr. Anuj Nag is that the source of appointment in all the cases was same, i.e. retired Chief Justice or Judge of the High Court and, therefore, classification made in case of the Petitioner was artificial and untenable.
18. Consumer Protection Act, 1986 was enacted with an object to provide for better protection of the interests of consumers. With this end in view, the Act provides for the establishment of consumer councils and other authorities for the settlement of consumers disputes and connected matters. One of the objects sought to be achieved was to provide for speedy and simple Redressal to consumer disputes. For this purpose quasi-judicial machinery was envisaged at the District, State and Central Levels. A prefatory note on the Statement of Object and Reasons to the Act read:
The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.
2. It seeks, inter alia, to promote and protect the rights of consumers such as-
(a) the right to be protected against marketing of goods, which are hazardous to life and property;
(b) the right to be informed about the quality, quantity potency, purity, standard and price of goods to protect the consumer against unfair trade practice;
(c) the right to be assured wherever possible, access to variety of goods at competitive process;'' the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;
(e) the right to seek Redressal against unfair trade practice or unscrupulous exploitation of consumers; and
(f) right to consumer education.
3. These objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State Levels.
4. To provide speedy and simple Redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the district, State and Central levels. These quasi-jujdjcial bodies will observe the principles of natural justice and have been empowered to give reliefs of a specific nature and to award, wherever appropriate, compensation to consumers. Penalities for non-compliance of the orders given by the quasi-judicial bodies have also been provided.
5. The Bill seeks to achieve the above objects. The notes on clauses explain in detail the provisions of the Bill. "(Emphasis supplied)
19. The quasi-judicial authorities, i.e. District Forums, State Commissions and National Commissions, were created by the Act with a view to supplement the existing judicial system. The Supreme Court in
(a) a Consumer Disputes Redressal Forum to be known as the "District Forum" established by the State Government in each district of the State by notification:
(Provided that the State Government may, if it deems fit, establish more than one District Forum in a district);
(b) a consumer Disputes Redressal Commission to be known as the "State Commission" established by the State Government in the State by notification; and
(c) Notional Consumer Disputes Redressal Commission established by the Central Government by notification.
20. Section 16 of the Consumer Act provides for the composition and establishment of State Commissions. Section 16 reads:
16. Composition of State Commission. (1) Each State Commission shall consist of
(a) a person who is or has been a Judge of a High Court, appointed by the State Government who shall, be its President:
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;
(Emphasis supplied)
(b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or adminis tration, one of whom shall be a woman:
Provided that every appointment under this clause shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:
(i) President of the State Commission: Chairman
(ii) Secretary of the Law Department of the State: Member
(iii) Secretary incharge of the Department dealing with consumer affairs in the State Member,
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.
(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier and shall not be eligible for re-appointment.
(4)Notwithstanding anything contained in Sub-section (3)a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993 shall continue to hold such office as President or member, as the case may be, till the completion of his term.
21. Indisputably, the Consumer Disputes Redressal Agencies discharge judicial functions. Such judicial functions are sovereign in nature. It is to be noticed that only a person who is either a sitting Judge of the High Court or has been a Judge of the High Court can be appointed as President of the State Commission. Proviso to Sub-Section 1(a) of Section 16 stipulates that no appointment of the President of the Commission can be made save and except after consultation with the Chief Justice of the High Court concerned. The entire procedure for the appointment of President of the Commission, both at the State and National level under Sections 16 and 20 of the Consumer Act, is different from that provided for other services. The procedure is same as in the case of Chairman under the Administrative Tribunals Act where too u/s 6 of the Administrative Tribunals Act, a person is not qualified for appointment as Chairman unless he is and has been a Judge of a High Court or has, for at least two years held the office of the Vice Chairman. The procedure for the appointment of the President of the Commissions both at the State and National level, like the appointment of the Chairman of the Administrative Tribunal, was made to ensure the judicial independence and to insulate the President of the Commissions from the influence of the Executive. The Apex Court in
It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a Government servant.
The Apex Court proceeded to observe:
...If the relationship between the Government and the High Court Judge is of master and servant it would run counter to the constitutional creed of independence for the obvious reason that the servant would have to carry out the directives of the master. The whole concept of judicial independence and separation of the Judiciary from the Executive would crumble to the ground of such a relationship is conceded. High Court Judges would not be true to their oath if such a relationship is accepted, That is why not only Judges but even the staff members are insulated from executive influence.
22. In Ashish Handa v. Hon''ble The Chief Justice of High Court of
.... This is so because the function of these agencies is primarily the adjudication of consumer disputes and, therefore, a person from the judicial branch is considered to be suitable for the office of the President. The appointment to the office of the President of the State Commission is to be made "only after consultation with the Chief Justice of the High Court" and to the office of the President of the National Commission "after consultation with the Chief Justice of India". Such a provision requiring prior consultation with the Chief Justice is obviously for the reason that he is the most suitable person to know about the suitability of the person to be appointed as the President of the Commission. The provision in Section 16(1)(a) for appointment of the President of the State Commission and in Section 20(1)(a) for appointment of the President of the National Commission are in pari materia and have to be similarly construed".
(Emphasis supplied)
Learned Judges pointed out that the expression "after consultation with the Chief Justice of the High Court" and "after consultation with the Chief Justice of India" must be construed in the same manner as the expression "after consultation with the Chief Justice of India, the Chief Justice of the High Court" in Article 217 of the Constitution of India made in
...To maintain independence of the judiciary and to avoid any possibility of a sitting or a retired Judge depending on the executive for such an appointment.
(Emphasis supplied)
The Apex Court Went on to observe that appropriate course to adopt in the appointment of President of the Stale Commission is for the Chief Justice of the High Court to initiate the proposal and/(r) mention the name approved by him for the appointment instead as suggested by the State Government.
23. It may be noticed that Under Article 226 of the Constitution, a High Court Judge cannot plead and act in any Court or Authority in the territory of India except the Supreme Court and other High Courts. It is also to be noticed that a retired Judge of the High Court when called upon to discharge judicial functions is treated and equated with the sitting Judge of the High Court. This how a retired Judge is protected and insulated. They are expected to live with dignity of the office they held.
24. In
The Judicial Service is not service in the sense of employment. The Judges are not employees. As members of the Judiciary, they exercise the sovereign judicial powers of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature.
The learned Judges further observed:
The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.....
25. In Supreme Court Advocates-on-Record Association and Ors. v. Union of India JT 1993 (5) 479 the Constitutional Bench in para 53 of the judgment observed:
....To say differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of Judges and, secondly, protected by the fulfillment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of Judges will secure and protect the independence of the judiciary. Otherwise not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper functioning of a democracy and the philosophy of this cherished concept will be only a myth rather than a reality.
Government framed the rules known as "The Consumer Protection Rules, 1988". Part-Ill of the rules deals with the State Commission. Rule 13 of the rules provide for salary, honorarium and other allowances of the President and Members of the State Commission, Rule 13 reads:
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. 8,000 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 or 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 rates as are admissible to the highest Grade 1 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.
26. Perusal of Rule 13(1) shows that if the President of the State Commission is sitting Judge of the High Court, he is entitled to the salary and all the benefits, which a sitting Judge of a High Court enjoys. However, where the President is not the sitting Judge of the High Court, he is entitled to a consolidated salary of Rs. 8,000 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.
27. The Petitioner Justice Nag (Retd.) was appointed as the President of the State Commission by a notification dated July 9, 1996 (Annexure-Pl). The notification reads:
Government of Himachal Pradesh, Pood and Supplies Department.
No. FDS.A(4)2/95 Dated Shimla 171002, the 9.7.1996.
NOTIFICATION
The Governor, Himachal Pradesh, in exercise of the powers conferred under Sections 16(1)(a), 16(2) and 16(3) of the Consumer Protection Act, 1986 (As amended by Act 50 of 1993) and in consultation with the Hon''ble Chief Justice of the High Court of Himachal Pradesh, is pleased to appoint Shri P.N. Nag, (Retd. Judge of High Court) as President of Himachal Pradesh Consumer Disputes Redressal Commission (to be known as State Commission) with effect from the date of the assumption of the charge as such on the terms and conditions stated below:
1. Shri P.N. Nag (Retd. 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 IR and relief on pension shall be payable during the currency of tenure of his appointment as President of State Commission.
2. On tours as President of the State Commission, Shri P.N. Nag, shall be entitled to T.A. and D.A. at the same rates as admissible to the highest Grade-I Officers of the State Government.
3. Shri P.N. Nag shall hold office of the President, State Commission for a term of 5 years of upto the age of 67 years, whichever is earlier and shall not be eligible for re-appointment.
4. Shri P.N. Nag will also hold charge of the Chairman of the State Backward Classes Commission. These issues with the prior concurrence of the Finance Department Government of Himachal Pradesh.
(sic)
28. It is noticed that Justice Nag (Retd.) under the notification, extracted above, was to be entitled to salary, allowances and other perquisites, which were available to him as Judge of the High Court immediately before his retirement. The salary so drawn to bring it at par with the sitting Judge of the High Court, naturally was contemplated to be reduced by the pension drawn by him. In our view, it is implicit in the notification that th6 conditions of appointment of the Petitioner as President of the State Commission envisaged that the Petitioner will be entitled to the salary and allowances and other perquisites as may be available to a Judge of a High Court at the relevant time. The salary is to be calculated after deducting the pension drawn by the Petitioner as Judge of the High Court. He was also entitled to the increase in dearness allowance. This shows that the intention of the State Government was not to confine the salary and other allowances, which Justice Nag (Retd.) was drawing at, the time of his retirement. The conditions envisaged the periodical increase in the dearness allowance due to increase in the price index. The reason is not far to seek. The Scheme of the Consumer Act itself envisages independence of the Presidents of the Commissions, as discussed earlier, in the discharge of the sovereign judicial functions.
29. The fact that the salary, honorarium and other allowances of the President of the National Commission and State Commission are intended to be the same as that of a sitting Judge of the Supreme Court or the High Court, as the case may be, is deducible not Only from the provisions of Sections 20 and 16 of the Consumer Act which provides that only a sitting or former Judge of the Supreme Court or High Court, as the case may be, can be appointed as President of the National or State Commission as discussed earlier but also from the rules which were framed by the Central Government u/s 30 of the Consumer Protection Act, 1986 known as Consumer Protection Rules, 1987. Rule 11 provides for the salaries, honorarium and other allowances Of the President and Members of the National Commission. Rule 11 reads:
11. Salaries, honorarium and Ors. allowances of the President and Members of the Commission.-(1) The President of the National Commission shall be entitled to salary, allowances and Ors. perquisites as are available to a sitting Judge of the Supreme Court and other members if sitting on whole-time basis, shall receive a consolidated honorarium of ten thousand rupees per month or if sitting on part-time basis, a consolidated honorarium of five hundred rupees per day for sitting.
(Emphasis supplied)
(2) The President and Members shall be entitled to travelling and daily allowances on official tours at the same rates as are admissible to Group ''A'' Officer of the Central Government.
(2A) The President and the Members of the National Commission shall be entitled to conveyance allowance of one hundred fifty rupees per day of its sitting or a sum of one thousand and five hundred rupees per month, as may be opted by them.
(3) The honorarium of the salary, as the case may be, and other al lowances shall be defrayed out of the Consolidated Fund of India.
30. A bare perusal of Sub-rule (1) of Rule11 shows that the Central Government explicitly provided that the President of the National Commission is entitled to salary, allowances and other perquisites as are available to a sitting Judge of the Supreme Court. Had the intention of the Legislature been to treat a retired Judge who is appointed as President of the Commission differently to that of a sitting Judge for the purpose of salary and allowances, Rule 11 would not have provided that the President of the National Commission would be entitled to salary, allowances and other perquisites as are available to a sitting Judge of the Supreme Court. This rule obviously was framed explicitly so as to obviate future amendments to the rules, which may be necessitated with the revision of the pay of the Judges of the Supreme Court.
31. The contention of Mr. Mittal, learned Senior Counsel for the State that the conditions of service of re-employed/retired Judges to any post have to be in terms of the contract of service is misplaced and against the very Scheme of the Act. Such a contention defeats the very purpose for which the Consumer Act was enacted. As pointed out by us, the President of the Commission discharges sovereign judicial functions and cannot be made, dependent for his salary and allowances on the whims, caprice and fiat of the Executive.
32. Mr. Mittal, learned Counsel for the Respondent-State raised a contention that the Petitioner having accepted his appointment in terms of the notification (Annexure P1) cannot now challenge those very terms and conditions of his appointment. The argument was that the Petitioner is estopped from claiming the benefit in the revision of the pay of the Judges of the High Court. It was also submitted by Mr. Mittal that the Government was not bound to revise or enhance the salary of the Petitioner so as to bring it at par with the salary of the Judge of the High Court.
33. The contentions of Mr. Mittal, in our view, are misplaced and have no merit. As already observed by us, the salary of a sitting Judge of a High Court was rupees 8,000 per month on 9.7.1.996 when the Petitioner was appointed as President of the State Commission and this was the salary which was drawn by him when he retired as Judge of the High Court in March 4, 1995. It was only by an amendment of the Act that the salaries of the judges of the Supreme Court and High Court were revised to rupees 30,000 and 26,000 respectively, by promulgation of an Ordinance on April 24,1998. In the circumstances notification of appointment dated July 9, 1996 could not have provided for the salary of rupees 26,000 w.e.f. the date of his appointment as the salaries of the Judges of the High Court were enhanced on April .24, 1998 though w.e.f. January 1, 1996.
34. The doctrine of estoppel is not applicable in the present case. As pointed out by the Supreme Court in
....There is no common law estoppel founded on a statement of future intention. The doctrine of promissory estoppel is applied to cases where a promiser has been estopped from acting, inconsistently with a promise not to enforce an existing; legal obligation. This doctrine differs from estoppel properly so-called in that the presentation relied upon need not be one of present case. The second requirement of an estoppel by conduct is that it should be unambiguous. Finally an estoppel cannot be relied on if the result of giving effect to it would be something that is prohibited by laws. Estoppel is only a rule of evidence. One cannot found an action upon estoppel. Estoppel is important as a step towards relief on the hypothesis that the Defendant is estopped from denying the truth of something which he has said.
35. In the facts of the present case, the doctrine of estoppel is not evokable. By no stretch it can be said that the Petitioner waived his rights to the benefits, which may accrue to him after his appointment. If this argument was to be accepted, then even a Government servant cannot claim future benefits, incidental to service, including revision of pay or dearness allowance as may be admissible to such Government servant in view of the rise in the price index. He cannot even claim consideration for promotion. The'' Supreme Court in
36. In the present case, it cannot be said that the Petitioner waived * his right for the benefit of the revision of the pay to which he may become entitled after his appointment.
37. In any event, there can be no estoppel against the Statute or: Constitution. The Petitioner in the present case, claim his right for the benefit of the revision of the pay as extended to similarly circumstance retired Judges holding similar posts such as Lokayukta and Chairman of the Himachal Pradesh State Administrative Tribunal under Article 14 of the Constitution. A Constitution Bench in
The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs, This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights.
(Emphasis supplied)
38. In Olga Tellies, the Petitioners had conceded before the Bombay High Court that they have no fundamental right to construct hutments on pavements and that they will not object to the demolition after October 15, 1981. Notwithstanding such representation made in the High Court, J the Constitution Bench held that the Petitioners were entitled to assert that such action on the part of the public authorities would violate their fun- damental rights.
39. Whether or not the claim of the Petitioner stands on merits is another matter but neither waiver nor estoppel can be set up by the Respondent-State when the Petitioner claim his right founded in Article 14 of the Constitution.
40. The Apex Court in Olga Tellies proceeded to observe that plea of estoppel is closely connected with the plea of waiver. The object of both being to ensure bona fides in day-to-day transactions. The Constitution Bench relied upon
41. We have already noticed that salary of Judges of the Supreme Court and High Court was revised to rupees 30,000- and 26,000, respec tively, by an amendment of the ,High Court and Supreme Court fudges (Conditions of Service) Act on April 24, 1998 w.e.f., January 1, 1996. The then Lokayukta retired Chief Justice of this High Court (Justice PCV Balakrishna Menon) was appointed as Lokayukta of Himachal Pradesh in February 1994, i.e. before January 1, 1996. The salary of the Lokayukta was revised by an amendment of Schedule-II of the Lokayukta Act by amending Act of 1998 (Annexure P-2) to bring at par with the salary of the sitting Chief Justice of a High Court w.e.f. January 1996. This was necessitated because of the amendment of the High Court and Supreme Court Judges (Con ditions of Service) Act. The Statement of Objects and reasons reads:
STATEMENT OF OBJECTS AND REASONS
At present Lokayukta is a retired Chief Justice of High Court. Due to the promulgation of the High Court and Supreme Court Judges (Conditions of Service) Amendment Ordinance, 1998 (11 of 1998) by the President on 24th April, 1998, it has become necessary to amend the H.P. Lokayukta Act, 1983 to bring the salary payable to Lokayukta at par with that of the Chief Justice of a High Court with effect from 1.1.1996. Consequential amendments are also required to be made in the said Act on account of the re-enactment of the Municipal and Panchayat Acts. Apart from this, to obviate the chances of filing the complaints after the lapse of long periods, it is desirable that the period of ten years prescribed for filing the complaints be reduced to a period of five years. In addition to this, it is also necessary to harmonize the provisions of Section 15-A of the Act. Thus it has become necessary to amend the provisions of the aforesaid Act.
The Bill seeks to achieve the aforesaid objectives:
(Emphasis given)
42. A bare reading of the Statement of Objects and Reasons show that the salary of the Lokayukta was revised to bring at par with the sitting Chief Justice of the High Court and Judge of the Supreme Court in view of the revision of salaries of the Judges of the High Courts and Supreme court. The Himachal Pradesh Lokayukta (Seventh Amendment) Bill, 1998, relevant for the purpose reads:
In the second schedule of the Principal Act, for the figure "9,000", the figure "30,000", shall be substituted.
43. Similarly, in view of the revision of the pay of the Judges of the , High Court, Himachal Pradesh Administrative Tribunals (Salaries, Allowances and Conditions of Service) of Chairman, Vice Chairman and Members Rules, 1986, were also amended giving benefit of the revised salaries to the then Chairman of the Administrative Tribunal who was appointed as such on October 5, 1995 again prior to January 1, 1996.
44. Similar benefits were also extended to other retired Judges who were re-employed including Justice R.K. Mahajan (Retd.) who was appointed as Chairman of the Himachal Pradesh Backward Classes Commission though Mr. Mahajan had retired after January 1, 1996.
45. The stand of the Respondents is that the salary and other perks of the Lokayukta are regulated under Himachal Pradesh Lokayukta Act, 1983 and it was the Legislature, which thought it fit to revise the salary of the Lokayukta w.e.f. 1.1.1996 and decision to revise the salary of the Chairman of the State Administrative Tribunal was taken by the Government of India. According to the Respondents:
There was no such decision of the Government that the salary of every retired person including the Hon''ble Judges of the High Court who had retired before 1.1.1996 but had been remployed either or after 1.1.1996 should be fixed in the revised pay-scale w.e.f. 1.1.1996. So far as the revision of the salary of the Chairman of the H.P. State Administrative Tribunal was concerned, it is the case of the Respondents that this decision was taken by the Government of India without consulting the Himachal Pradesh Government and the H.P. Government had "only implemented the decision of the former.
46. The stand of the Respondents to say least is untenable. As already seen, the salary of the Lokayukta as well as the Chairman of the Himachal Pradesh Administrative Tribunal was revised so as to bring it at par with the salary of the Chief Justice of the High Court and Judges of the High Court, respectively after the recommendations of the Fifth Pay Commission for the revision of the salaries.
47. Section 3 of the Himachal Pradesh Lokayukta Act, 1983 provides for the appointment of Lokayukta by the Governor of the State. The appointment of Lokayukta can only be made after consultation with the Chief Justice of the High Court of Himachal Pradesh and the Leader of Opposition in the Legislative Assembly. Sub-section (2) of Section 3 provides that a person will not be qualified for appointment as Lokayukta unless he has been a Judge of the Supreme Court or Chief Justice of the High Court in India. In other words, source of appointment of the Lokayukta is from amongst the Chief Justices of the High Court or Judge of the Supreme Court who draw the same salary. Similar is the source of appointment of the Chairman of the Administrative Tribunal, i.e., a serving or retired Judge of the High Court.
48. It is not disputable, as seen earlier, that the Petitioner, the then Lokayukta and the then Chairman of the Himachal Pradesh Administrative Tribunal were similarly placed and circumstanced. The benefit of the revision of the salary to the sitting Judges of the Supreme Court and High Court was extended to the Lokayukta and the Chairman of the Himachal Pradesh Administrative Tribunal. It was only the Petitioner who was left out and not given this benefit. It is also not disputed that other constitutional functionaries like the Chairman of the Public Service Commission was also extended the benefit of the revision of the pay scales. This action of the Respondents, contended Mr. Anuj Nag, is violative of Article 14 of the Constitution.
49. Article 14 of the Constitution mandates that State shall not deny to any person:
(a) Equality before law or;
(b) Equal protection of laws.
Article 14 of the Constitution reads:
4. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the'' laws within the territory of India.
Article 14,it is well settled, provides guarantee for equality before to all persons and protection to all against discrimination by law. As pointed out by the Constitution Bench of the Apex Court in
.....Article 14 prohibits hostile classification by law and is directed against discriminatory class legislation. The propositions deducible from decisions of this Court on this point have been set out in the form of thirteen propositions in the judgment of Chandrachud, C.J., in In re: Special Courts Bill, 1978. The first of these propositions, which describes the nature of the two parts of Article 14, has been extracted earlier. We are not concerned in these appeals and writ petitions with the other propositions set out in that judgment. In early days, this Court was concerned with discriminatory and hostile class legislation and it was to this aspect of Article 14 that its attention was directed. As fresh thinking began to take- place on the scope and ambit of Article 14, new dimensions to this guarantee of equality before the law and of the equal protection of the laws merged and were recognized by this Court. It was realized that to A treat one person differently from another when there was no rational basis for doing so would be arbitrary and thus .discriminatory. Arbi- trariness can take many''forms and shapes but whatever form or shape it takes, it is nonetheless discrimination. It also became apparent that to treat a person or a class of persons unfairly would be an arbitrary act amounting to discrimination forbidden by Article 14. Similarly, this Court, recognized that to treat a person in violation of the prin ciples of natural justice would amount to arbitrary and discrimi natory treatment and would violate the guarantee given by Article 14".
(Emphasis given)
50. It is no longer res Integra that mere classification is not sufficient to fall within the mischief of Article 14 of the Constitution. The classification must be reasonable and rational. As far back as in 1952, in
(a) That the classification is be founded on intelligible differentia which distinguishes those that are grouped together from other and
(b) That the differentia must have rational relations to the object sought to be achieved by the Act.
51. The differentia, basis of the classification and the object of the action are distinct things. It is necessary that the classification must have a nexus with the object sought to be achieved. This test has repeatedly been reiterated by the Supreme Court in its several decisions including
52. It is true that an executive action of the Government does not violate the equality clause in Article 14 of the Constitution if such action operates equally on all persons who are roped in that group. Classification will also not suffer the bias of arbitrariness or caprice if it bears a reasonable nexus to the object sought to be achieved. It is only where the classification made has no rational to the object sought to be achieved that judicial in- terference becomes necessary (See:
53. In the present case, no reasonable or rational classification exists. Admittedly, even those Judges who retired prior to January 1, 1996 and were re-employed, were extended the benefit of revised pay. pursuant to the report of the Fifth Pay Commission and consequent revision of the salary of the Judges of the High Court and Supreme Court. The Petitioner, as noticed earlier, was similarly circumstanced as the then Lokayukta and Chairman of the Tribunal. All of them:
(a) were retired Judges of the High Court;
(b) Retired before January 1, 1996 the date from which the salaries of the Judges of the High court and Supreme Court were revised; and were
(c) re-employed on the posts, which required discharge of judicial functions.
54. In the circumstation and the classification made in this case of the Petitioner was heither nor rational. He was not extended the benefit of the revision of pay not placed on the record. According to the Respondent, the representationmade by the Petitioner was contidered at the highest level and it was decided not to extend the benefit of the revision of the-pay to the Petitioner Reasons for such decision are not disclosed this a part Counsel for the resppondednt was unable to tell us as to what was the nexus between the classification made in case of the Petitioner and the object which was sought to be achieved It is true that there is always a presumption that Governmental action public in terest. It is for the party challenging the validity of such action to show lack of reasonableness or public interest. He must establish that the im pugned action was not relatable to any rational classification and did no have any nexus with the object sought to be achieved. In the present ,case,th classification made by the Respondents in case of the Petitioner indeed i not reasonable, rational or fair. There is no fathomable object which was sought to be achieved by such classification. The action under challenge is manifestly arbitrary and unreasonable. Such action would fall within the mischief of Article 14.
55. Even assuming that the Government has discretion in the matt of revision of pay scales, the discretion vested in the Government as pointe out by the Supreme Court in
(a) Does it admit of the possibility of any real and substantial di crimination and
(b) Does it impinge on the fundamental right granted by the Co stitution?
56. The rule of haw makes it imperative that discretion vested wi the Government must be confined within clearly defined limits. A decisi taken without any principle or rule, as pointed out by the Apex Court
Law has reached its finest moments when it has feed man from the unlimited discretion of some ruler; where discretion is absolute, man has always suffered.
57. The discretion has to be exercised rationally. It must not be arbitrary, vague or fanciful or capricious. It is true that discretionary powers cannot be challenged on the grounds that there exist a possibility that such a power may be misused or abused but at the same time, if the decision is unreasonable or used for oblique or unworthy purpose or with an evil eye and with an unequal hand, the Courts will not hesitate to interfere in its jurisdiction under Article 226 of the Constitution.
58. The impugned action of the Respondents, in the present case, is not only irrational, unfair and arbitrary but also the discretion used is neither informed by reasons nor the decision was guided by any rules or policy.
59. It is true that even a single person can constitute a Class by itself provided there were special circumstances applicable to that individual. The Respondents have not pointed out to any special circumstances, which made the Petitioner a class in itself.
60. In E.P. Royappa v. State of Tamil Nadu and Anr. (1974) SCC 3 a new dimension was given to the content and meaning of Article 14. The Supreme Court laid down the test of arbitrariness as a ground of challenge. In that case it was held that equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to rule of law in a republic while the other, to the whim and caprice of an absolute monarch. If an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. In para 85 of the judgment, the learned Judges held:
The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment, which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article-16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalizing principle? It is a founding faith to use the words of Bose, J. "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and cohfined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate aind relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16 mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.
(Emphasis given)
61. A seven Judges Bench of the Supreme Court in
62. In
Where there is arbitrariness in State action, Article 14- springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reasons. So, whatever be the activity of the public authority, it should meet the test of Article 14.
63. Learned Judges held that all exercise of discretion or power by Public Authority must be judged by standard of reasonableness and taken only upon lawful and relevant grounds of public interest.
64. In our view, it was not open to the Respondents to grant benefit of the revision of the revised salary to one category and deny to the other. We draw support for our view from
Either the Government has made reference in respect of all Gov ernment employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the rec ommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Gov ernment has done as far as these Petitioners are concerned.
65. This apart we find there was no conscious decision of the Government at an appropriate level not to grant benefit of the revised pay scales to the Petitioner. No such decision was placed on the record, as observed earlier. Once the State decided to grant benefit of revised scales to some of the Hon''ble Judges who were re-employed, then there can be no rational to deny such benefit to the similarly placed re-employed Judge(s).
66. In State of Punjab v. V.K. Khanna and Ors. (2001) 2 SC C 330, the Apex Court interpreting Article 14 observed that fairness is synonymous with reasonableness and on the issue of ascertainment of meaning of reasonableness, common English parlance referred to as wha,t is in contemplation of an ordinary man of prudence similarly placed. It is the appreciation of this common man''s perception in its proper perspective which would prompt the court to determine the situation as to whether the same is otherwise reasonable or not.
67. Lastly, it was contended by Mr. Mittal that so far the grant of pay or a particular pay scale is concerned, it should best be left to the Government and therefore, this Court in its extra-ordinary jurisdiction under Article 226 of the Constitution, should not mandate the Govern ment to grant a particular pay to the incumbent of the particular post.
68. In
69. In the present case, we hold that the Petitioner has unjustly and arbitrarily been treated in the grant of benefit of the revision of the pay, to which he was entitled and therefore the court will have no hesitation to interfere to undo the wrong meted out to the Petitioner.
70. No other point was urged before us.
71. In result, we allow the writ. petition in the following terms:
(a) The Respondents are directed to consider the case of the Petitioner for the grant of benefit of the revised salary w.e.f. July 9, 1996, the date of appointment of the Petitioner as President of the Consumer Commission till March 4, 2002 when he laid down the office in the light of the observations made herein above and release the consequential financial benefits accruing to him on account of salary, allowances, perquisites, travelling allowances etc., payable to him within six weeks from today;
(b) The Respondents shall consider the amendment of Rule 13 of the Consumer Protection Rules, 1988 providing for honorarium and other allowances to the President and Members of the State Commission in parimateria to Rule 11 of the Consumer Protection Rules, 1987 framed by the Central Government in respect of salaries, honorarium and other allowances to the President and Members of the National Commission so as to avoid any dispute or amendment in future so far the salaries, honorarium and allowances of the President and Members of the State Commission are concerned:
C.M.P. No. 684 of 2000
72. Not pressed during the course of hearing.
C.M.P. No. 839 of 2000
73. Allowed.
C.M.P. No. 235 of 2001
74. Allowed.
75. No order as to costs.
