Supreme Court of India
THE ACCOUNTANT GENERAL, M.P.versusS.K. DUBEY & ANR.
- Citation
- 2012 INSC 122
- Decided
- 29 February 2012
- Disposal
- Matter referred to larger bench
- Bench
- RAJENDRA MAL LODHA
Holding
The service as President of the State Commission is not pensionable because the State Rules are silent on pension and an executive order cannot override that; only the pension for the respondent’s High Court service is payable.
Summary
The case concerned a former High Court judge who, after retirement, served as President of the Madhya Pradesh State Consumer Disputes Redressal Commission for nearly five years. He claimed pension for that period based on a 2002 executive order of the State Government, although the Madhya Pradesh Consumer Protection Rules, 1987 made no provision for pension to the President. The Supreme Court examined whether, in the absence of a specific rule, the State could deem the service pensionable and whether such service could be clubbed with his judicial service. It held that the terms and conditions of service for members of the State Commission are to be prescribed by the rules, and where the rules are silent on pension, an executive order cannot create a pensionable right. Consequently, the respondent is entitled only to the pension for his High Court service, not for his tenure as President, and the High Court’s order granting the additional pension was set aside. The appeal was allowed.
Issues considered
- Whether service rendered as President of the State Consumer Disputes Redressal Commission is pensionable under the Consumer Protection Act, 1986 in the absence of a specific provision in the State Rules.
- Whether the State Government can, by executive order, deem such service pensionable despite the silence of the Rules.
- Whether the pension for the subsequent service can be clubbed with the pension for the respondent’s High Court judicial service.
- Whether the executive order is consistent with Section 16(2) and Section 30(2) of the Consumer Protection Act, 1986 and the Madhya Pradesh Consumer Protection Rules, 1987.
- Whether the High Court judgment granting the additional pension is legally valid.
Legislation cited
- Constitution of Indias. Article 162
- Consumer Protection Act, 1986s. 16(2), s. 30(2), s. 31(2)
- High Court Judges (Conditions of Service) Act, 1954
Subjects
pensionservice pensionabilityexecutive orderConsumer Protection ActState Rulespublic financenon-clubbing of serviceconstitutional lawArticle 162interpretation of statutesdelegated legislation
Judgment
[2012] 3 S.C.R. 720
A THE ACCOUNTANT GENERAL, M.P.
V.
· S.K. DUBEY & ANR.
(Civil Appeal No. 5322 of 2005)
FEBRUARY 29, 2012
B
• [R.M. LODHA AND H.L. GOKHALE, JJ.]
Consumer Protection Act, 1986 - ss. 16(2), 30(2), 31,
20j), 2(n) - Retired High Courtjudge appointed as President
C of State Consumer Dispute Redressal Commission -
Rendered service as President, State Commission for 4
years, 10 months and 22 days - Pension for the said
subsequent period - Entitlement to - Whether in absence of
any specific provision therefor in the State Rules for grant of
o pension, it is open to the State Government to have provided
by way of an executive order that the service rendered by the
respondent as President of the State Commission would be
counted as pensionable service - Held: In view of difference
of opinion, . matter referred to the larger Bench - Reference
E to larger bench - Madhya Pradesh Consumer Protection
Rules, '1987 - r. 6 - Constitution of India, 1950 - Article 162.
The question which arose for consideration in the
instant appeal was whether the first respondent who
functioned as the President of the State Consumer
F Disputes Redressal Commission, in Madhya Pradesh for
a period of about 4 years and 11 months, after his
retirem'ent as a High Court Judge, was entitled to receive
pension for this subsequent period in the absence of any
specific provision therefor in the Madhya Pradesh
G Consumer Protection Rules, 1987 framed under the
Consumer Protection Act, 1986 and whether in the
absence of any express rule in the State Rules, was it
open to the State of Madhya Pradesh to have provided
by way of an Executive order dated April 5, 2002 that the
H 720
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 721
ANR.
service rendered by the respondent as President of the A
State Commission would be counted as pensionable
service.
Referring the matter to larger bench, the Court
HELD: Per Lodha,J.: B
1.1. 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 C
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 o
respondent in the High Court nor it is disputed before this
Court. [Para 21] [741-A-C]
1.2. The State Government of Madhya Pradesh in
exercise of the power conferred by sub-section (2) of
Section 30 of the Consumer Protection Act, 1986 has E
framed the State Rules for the subjects enumerated
therein including Section 16(2). Rule 6 of the M.P.
Consumer Protection Rules, 1987 thereof provides for
salary and other allowances and terms and conditions of
the President and Members of the State Commission. The F
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 respondent as President of the State G
Commission was pensionable service, the respondent is
not entitled to any pension for the service he rendered
as President, State Commission. It is clear from the Rule
6 that it does not make any provision in making the
service of the President and Members of the State H
722 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Commission a pensionable service. State Rules are
totally silent in this regard. [Paras 23, 30] [741-G-H; 742-
A-B; 746-H; 747-A]
1.3. Subject to the provisions of the Constitution, the
executive power of a State extends to the matters with
8
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 co-extensive with that of the State
C Legislature. [Para 31] [747-C]
Sant Ram Sharma vs. State of Rajasthan AIR 1967 SC
1910: 1968 SCR 111; La/it Mohan Deb vs. Union of India
1973 (3) SCC 862; Union of India and Anr. v. Central
Electrical and Mechanical Engineering Service (CE&MES)
D Group 'A' (Direct Recruits) Association, CPWD and Ors.
(2008) 1 SCC 354: 2007 (11) SCR 863 - referred to.
1.4. The statutory provision contained in Section 16(2)
is quite clear. It provides that the salary or honorarium
E 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
F made a condition of service is beyond any question. As
regards the meaning of the expression, 'as may be
prescribed by the State Government' occurring in Section
16(2), 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,
G if any. This is the plain meaning of the said expression.
If the Parliament 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
H Government in exercise of its powers under Section 30(2)
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 723
ANR.
and in no other manner, the provision in Section 16(2) A
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 B
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'. [Paras 35 and 36) [748-C-H; 749-A]
Orissa State (Prevention & Control of Pollution) Board v. c
Orient Paper Mills and Anr. (2003) 10 SCC 421: 2003 (2 )
SCR 741; Surinder Singh v. Central Government and Ors.
(1986) 4 SCC 667: 1986 (3) SCR 946; T. Cajee v. U.
Jormanik Siem and Anr. AIR 1961 SC 276:1961 SCR 750 -
referred to. D
1.5. There is no 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 E
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 F
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 G
the constitutional provisions or statutory provision in
Section 16(2) or the State Rules framed by it. In the instant
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. [Para 38] [750-C-F]
H
724 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 1.6. 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
B 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. In light of said legal position, if Section 31 (2) of the
c 1986 Act is seen, it leaves no manner of doubt that the
said provision is directory. The submission that having
regard to the provision contained in Section 31 (2), the
executive power of the State Government to fill in the
gaps in the rules can only be exercised in generality
cannot be accepted. [Paras 41, 42 and 43] [751-C-D; 752-
0
C-D]
Hukum Chand Etc. v Union of India and others (1972) 2
SCC 601; Mis. Atlas Cycle Industries Ltd. and Ors. v. The
State of Haryana (1979) 2 SCC 196: 1979 (1) SCR 1070 ;
E Jan Mohammad Noor Mohammad Begban v. State of
Gujarat and Anr.(1966) 1SCR505; Narendra Kumar and Ors.
v. The Union of India and Ors. (1960) 2 SCR 375 - referred
to.
F Craies on Statute Law, Seventh Edition - referred to.
1.7. 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.
G 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
H have been framed but such Rules are silent on the aspect
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 725
ANR.
of the pensionable service. In other words, in the absence A
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 B
President, State Commission. [Para 44] [753-D-G]
1.8. 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 C
of President, State 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 D
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 E
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 lndia.[Para
45] [752-H; 753-A-C]
F
Justice P. Ve_nugopal v. Union of India and Ors. (2003)
7 SCC 726: 2003 (1) Suppl. SCR 286; State of Uttar
Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358;
Chandra Kishore Jha v. Mahavir Prasad and Ors. (1999) 8
SCC 266: 1999 (2) Suppl. SCR 754; Shin-Etsu Chemical G
Co. Ltd. v. Aksh Optifibre Ltd. and Anr. (2005) 7 SCC 234:
2005 (2) Suppl. SCR 699; Tamilselvan v. State represented
by Inspector of Police, Tamil Nadu (2008) 7 SCC 755: 2008
(11) SCR 888; Bar Council of Maharashtra v. M. V. Dabholkar
and Ors. (1975) 2 SCC 702: 11976 (1) SCR 306; Jasbhai H
726 SUPREME COURT REPORTS [2012] 3 S.C.R.
A Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and
Ors. (1976) 1 SCC 671: 1976 (3) SCR 58; Thammanna v.
K. Veera Reddy and Ors. (1980) 4 SCC 62: 1981 (1)
SCR 73; La/it Mohan Deb and Ors. v. Union of India and Ors.
(1973) 3 SCC 862; Delhi Airtech Services Private Limited
B and Anr. v. State of Uttar Pradesh and Anr. (2011) 9 SCC 354;
Union of India and Ors. v. Pratibha Bonnerjea and Anr.· (1995)
6 SCC 765: 1995 (5) Suppl. SCR 511.; V. S. Ma/limath v.
Union of India and Anr. (2001) 4 SCC 31: 2001 (2) SCR 567
- referred to.
c PER H.L. GOKHALE. J:
1.1. 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
D 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, there is
E no 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. Thus, there is no
F substance in the objection to the maintainability of the
appeal at the instance of the appellant. [Para 10) [758-G-
H; 759-A-C]
Accountant General of Orissa Vs. R. Ramamurthy 2006
(12) SCC 557: 2006 (9) Suppl. SCR 776 - referred to.
G
1.2. Section 30 of the Consumer Protection Act, 1986
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
H others, the State Government may by a notification make
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 727
ANR.
rules for carrying out the provisions of Sub-section (2) of A
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 B
pension or other benefits. However, wherever it is done
without framing rules, it would be difficult to say that it is
authorized by the statute. As far as the Madhya Pradesh
Consumer Protection Rules, 1987 are concerned, there
is no difficultly in noting that the rules do not provide for c
pension either to the President or to the members. Rules
6 (1) to (3) are the relevant rules with regard to Salary and
other allowances and terms and conditions of the
President and Members of the State Commission. [Paras
11 and 12] [759-G-H; 760-A-D] D
1.3. Article 162 of the Constitution of India 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.
However, the proviso to this Article lays down that in such E
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 the
instant case, the State Govt. was expressly given the F
power under Section 30 (2) to make rules for carrying out
the provisigns of Section 16 (2) of the Act. Therefore, the
State has to exercise its executive power subject to and
as limited by this law meaning thereby in conformity
therewith. [Para 15] [762-B-G] G
1.4. 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
H
728 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B governed by the relevant rules. [Para 16] [762-H; 763-A-
B]
State of Uttar Pradesh Vs. Singhara Singh AIR 1964 SC
358; Sant Ram Sharma vs. State of Rajasthan AIR 1967 SC
1910: 1968 SCR 111; Orissa State (Prevention and Control
C of Pollution) Board Vs. Orient Paper Mills 2003 (10) SCC 421:
2003 (2) SCR 741; Pepsu Road Transport Corporation,
Patiala Vs. Mangal Singh 2011 (11) SCC 702 - referred to.
1.5. In the instant case, there are general rules laying
D 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 pension is to
E be calculated. It was 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
would also have to be provided as to how many years
of service in the commission would qualify for pension.
F 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. Nothing prevents the State Government from
G 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, Rule 8 of the Central
Administrative Tribunal (Salaries and Allowances and
Conditions of Service of Chairman, Vice Chairman and
H Members) Rules, 1985. [Paras 16 and 17] [763-C-F]
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 729
ANR.
1.6. A clubbing of additional services, if any, for the A
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 B
exceeding the maximum of the pension prescribed for
Judges of the High Court. It is not stated in the
Calculation Sheet as to which portion of the proposed
pension was to be paid by the State Government and
which would be payable for the services as a High Court c
Judge. Thus, on these facts the pension claimed was
clearly inadmissible. The provisions of the statute and the
rules in the instant 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 0
pension as the President of the State Commission, in the
absence of specific provision in the rules. (Para 18) [764-
E-H; 765-B-C]
Orissa State (Prevention and Control of Pollution) Board
Vs. Orient Paper Mills 2003 (10) SCC 421: 2003 (2 ) SCR E
741 - distinguished.
Justice P. Venugopal Vs. Union of India 2003(7) SCC
726: 2003 (1) Suppl. SCR 286; Sant Ram Sharma vs. State
of Rajasthan AIR 1967 SC 1910: 1968 SCR 111; La/it F
Mohan Deb Vs.Union of India 1973 (3) SCC 862; Union of
India and Anr. Vs. Central Electrical and Mechanical
Engineering Service (CE&MES) Group 'A' (Direct Recruits)
Association, CPWD and others 2008 (1) SCC 354: 2007 (11)
SCR 863 - referred to.
G
1.7. In the instant 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. 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 H
730 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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. When Section 16
(2) lays down that the terms and conditions of service
shall be such as may be prescribed, there is an element
B of authoritativeness, and a requirement to act in a
particular way. 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. In the instant case, it is
c 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 becaus.:! it concerns the public
finance and the functioning of the authorities under the
D 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. It cannot be ignored that the
E provisions of statute and the rules are to be read as they
are. [Paras 21, 22 and 23) [767-E-F-H; 768-A-E]
Mis Atlas Cycle Industries Ltd. vs. State of Haryana 1979
(2) SCC 196: 1979 (1) SCR 1070; Crawford vs. Spooner 4
Moo Ind. App. 179; Na/inakhya vs. Shyam Sunder AIR 1953
F SC 148; State of Kera/a Vs. K. Prasad 2007 (7) SCC 140 -
referred to.
Principles of Statutory Interpretation by Justice G.P. Singh
13th Edn. Chapter 2 p 64 - referred to.
G 1.8. 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
H such a grant cannot be made at the instance of the State
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 731
ANR.
Government when the rules do not prescribe the same. A
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 B
of his service as the President of the State Commission
was sought to be 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 c
made by exercising executive power would be violative
of Article 14 of the Constitution of India. Thus, the
impugned judgment and order passed by the High Court
is required to be set-aside. The additional pension paid
to the first respondent as the President of the State
0
Commission till the end of February 2012, would not be
recovered from him. However, from March, 2012 onwards
the first respondent would be entitled to receive pension
only for the service rendered by him as a High Court
Judge. [Paras 24, 25, 26] [769-C-G; 770-F]
E
Justice P. Venugopal Vs. Union of India 2003(7) SCC
726: 2003 (1) Suppl. SCR 286; Yogeshwar Prasad Vs.
National Institute of Education Planning and Admn. 2010 (14)
SCC 323: 2010 (14) SCR 22; Sahib Ram Vs. State of
Haryana 1995 Supp. (1) SCC 18: 1994 (3) Suppl. SCR 674 F
- referred to.
Case Law Reference:
Lodha, J:
G
2003 (1) Suppl. SCR 286 Referred to. Para 9, 20
AIR 1964 SC 358 Referred to. Para 14
1999 (2) Suppl. SCR 754 Referred to. Para 14
H
732 SUPREME COURT REPORTS [2012) 3 S.C.R.
A 2005 (2) Suppl. SCR 699 Referred to. Para 14
2008 (11) SCR 888 Referred to. Para 14
1976 (1) SCR 306 Referred to. Para 15
1976 (3) SCR 58 Referred to. Para 15
B
1981 (1) SCR 73 Referred to. Para 15
1968 SCR 111 Referred to. Para 32
(1973) 3 sec 862 Referred to. Para 32
c
1979 (1) SCR 1070 Referred to. Para 41
2003 (2) SCR 741 Referred to. Para 37, 38
(2011) 9 sec 354 Referred to. Para 17
D 1995 (5) Suppl. SCR 511 Referred to. Para 20
2001 (2) SCR 567 Referred to. Para 20
2007 (11) SCR 863 Referred to. Para 34
E 1986 (3) SCR 946 Referred to. Para 36
1961 SCR 750 Referred to. Para 37
1973 (1) SCR 896 Referred to. Para 40
(1966) 1 SCR 505 Referred to. Para 41
F
(1960) 2 SCR 375 Referred to. Para 41
Gokhale, J:
2003 (1) Suppl. SCR 286 Referred to. Para 9, 18
G
2006 (9 ) Suppl. SCR 776 Referred to. Para 10
AIR 1964 SC 358 Referred to. Para 13
2003 (2) SCR 741 Referred to. Para 13
H
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 733
ANR.
2011 (11) sec 102 Referred to. Para 16 A
1968 SCR 111 Distinguished. Para 19
1913 (3) sec 862 Referred to. Para 21
2007 (11) SCR 863 Referred to. Para 21 B
1979 (1) SCR 1070 Referred to. Para 22
2007 (8) SCR 115 Referred to. Para 23
2010 (14 ) SCR 22 Referred to. Para 26 c
1994 (3) Suppl. SCR 674 Referred to. Para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5322 of 2005.
D
From the Judgment & Order dated 08.02.2005 of the High
Court of Madhya Pradesh at Jabalpur in Writ Petition (S) No.
13302 of 2004.
A. Mariarputham, Sunita Sharma, Yusuf Khan, Kanstubh E
Sinha, Sushma Suri, Anil Katiyar for the Appellant.
..
Amrendra Sharan, Ravindra Shrivastava, Akshat
Shrivastava, P.P. Singh, Vikas Upadhyay (for B.S. Banthia) for
the Respondents.
F
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. 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 G
by the respondent in that Court.
2. The respondent is a former Judge of the Madhya
P~adesh High Court. He was appointed on March 2, 1998. He
H
'
734 SUPREME COURT REPORTS [2012] 3 S.C.R.
A rendered service of more than 10 years and retired on August
13, 1998.
3. By a notification issued on September 18, 1998, the
respondent was appointed as the President, State Consumer
B Disputes Redressal Commission, Madhya Pradesh (for short,
'State Commission') established under clause (b) of Section
9 of the Consumer Protectibn 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
C 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
D 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
E 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
F Commission prescribed the terms and conditions of the
appointment of the 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.
G 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:
H
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 735
ANR. [R.M. LODHA, J.]
"In continuation of Departmental Order of even No. A
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 B
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 C
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." D
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 prepared in the prescribed form and submitted to the E
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. F
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 G
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.
H
736 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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 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
c 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
0
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
E 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
F 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
G Commission 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.
H 1. c2003) 7 sec 12a.
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 737
ANR. [R.M. LODHA, J.]
11. It is from this order that the present appeal has arisen. A
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 8
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.
c
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 o
provision for pension to the President of the State Commission
and, therefore, no order for payment of pension to the
respondent could have been 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, E
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 Another and Tamilselvan v.
State represented by Inspector of Police, Tamil Nadu 5•
F
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 G
the rulings of this Court in Bar Council of Maharashtra v. M. V.
2. AIR 1964 SC 358.
3. (1999) 8 sec 266.
4. c2005) 1 sec 234.
5. c2008) 1 sec 755. H
738 SUPREME COURT REPORTS [2012] 3 S.C.R
A Dabholkar and Others6, Jasbhai Motibhai Desai v. Roshan
Kumar, Haji Bashir Ahmed and Others 7 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
8
executive power of the State was coextensive with the
legislative power and when rules are silent, the executive can
always fill the gaps by issuing ekcutive order. In this regard,
he relied upon decisions of this Court in Sant Ram Sharma v.
C State of Rajasthan and Others 9 and La/it Mohan Deb and
Others v. Union of India and Others 10•
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
D '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
E 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 Mis. Atlas Cycle Industries Ltd. and Others v. The
State of Haryana 11 , Orissa State (Prevention & Control of
Pollution) Board v. Orient Paper Mills and Another12 and Delhi
F Airtech Services Private Limited and Another v. State of Uttar
Pradesh and Another13•
6. (1975) 2 sec 102.
7. (1976) 1 sec 611.
G 8. (1980) 4 sec 62.
9. AIR 1967 SC 1910.
10. (1973) 3 sec 862.
11. (1979) 2 sec 196.
12. c2003) 10 sec 421.
H 13. c2011J g sec 354.
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 739
ANR. [R.M. LODHA, J.]
18. In rejoinder, Mr. A. Mariarputham, learned senior A
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, B
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 C
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,
0
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.
E
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
respondent as President of the State Commission pensionable
by an Executive ord.er although State Rules are in place, has F
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. Venugopa/1. The question for
consideration in that matter was as to whether the period during ,G
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
H
740 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
8 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):
c " .......... A High Court Judge is entitled to pensionary
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
D 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."
E 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
F 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
G · from the State concerned or not would depend upon the
statute or the terms and conditions of appointment."
14. (1995) a sec 765.
H 15. c2001i 4 sec 31.
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 741
ANR. [R.M. LODHA, J.]
21. In view of the above legal position, there is no doubt A
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 B
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 pension from c
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 :
D
"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 E
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 F
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 G
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
H
742 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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 respondent as President of
the State Commission was pensionable service, the
B 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
C 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
D (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.
E 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
F Commission.
(3) xxx xxx xxx xxx
(4) xxx xxx xxx xxx''
G 25. Section 20j) defines 'member' as follows :
"S.20j) "member" includes the President and a member of
the National Commission or a State Commission or a
District Forum, as the case may be;"
H 26. Wherever the word 'prescribed' occurs in the 1986 Act,
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 743
ANR. [R.M. LODHA, J.]
by virtue of Section 2(n), it means prescribed by rules made A
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
8
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 c
(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 SA,
clause (b) of sub-section (1) and sub-section (3) of section D
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.".
E
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 F
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 G
immediately following the session or the successive
sessions aforesaid, both Houses agree 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 H
744 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
C 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
D
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/
E - 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.
F
(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.
G (3) The salary, honorarium, other allowances shall be
defrayed out of the Consolidated Fund of the State
Government.
(4) President and the Members of the State Commission
H shall hold office for a term of five years or up to the age of
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 745
ANR. [R.M. LODHA, J.]
67 years whichever is earlier and shall not be eligible for A
re-nomination:
Provided that President and I or Members may:
(a) by writing under his hand and addressed to the
State Government resign his office any time; B
(b) be removed from his office in accordance with
provisions of sub-rule (5).
(5) The State Government may remove from office, c
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 D
turpitude; or
(c) has become physically or mentally incapable of
acting as such Member; or
(d) has acquired such financial or other interest as E
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 F
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 G
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. H
746 SUPREME COURT REPORTS [2012] 3 S.C.R.
A (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.
B
(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
c 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
D 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.
E (10) When the President of the State Commission is
u·nable 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
F 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
G 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 tile service of the President and
H Members of the State Commission a pensionable service.
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 747
ANR. [R.M. LODHA, J.]
State Rules are totally silent in this regard. The moot question A
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 the State B
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 C
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.
D
32. In the case of Sant Ram Sharma 9 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 E
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
F
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 G
of this Court in La/it Mohan Deb 10 (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
absence of such rules is no bar to the Administration giving
H
748 · SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
8
Recruits) Association, CPWD and others 16 , 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.
C 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
D '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).
E 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 intended that salary or honorarium and other
allowances and other terms and conditions of service of the
F 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
G 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
H 1s. c2ooa) 1 sec 354.
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 749
ANR. [R.M. LODHA, J.]
legislative intent of 'may' being directory and the expression 'as A
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 others 17 and Orissa State (Prevention and
Control of Pollutiori) Board12 • B
37. In Orissa State (Prevention & Control of Pollution)
Boarcf' 2, 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 C
notification under Section 19 of the Air (Prevention and Control
of Poilution) Act, 1981 could be published in the official gazette
or not. Section 19 under 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 D
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 E
rules. In light of these provisions and few decisions of this Court
viz; T. Cajee v. U. Jormanik Siem & another18 and Surinder
Singh 17 , 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): F
" ..... 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 G
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
11. (1986) 4 sec 667.
18. AIR 1961 SC 276. H
750 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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 difference
C 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
D 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
E beep 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
F 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
G 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.
40. Craies on Statute Law, Seventh Edition, has dealt with
the subject, 'Laying before Parliament' in Chapter 13 under the
H title 'Delegated Legislation'. The author has observed that the
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 751
ANR. [R.M. LODHA, J.]
requirement for 'laying' first appeared in the 1830s. According A
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 B
the subject 'laying before Parliament' in Hukam Chand £tc. v.
Union of India and others 19•
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 C
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 D
the subordinate law making authorities or orders passed by
subordinate executive instrumentalities before both Houses of
Parliament with reference to Section 3(6) of the Essential
Commodities Act, 1955, in the case of Mis. Atlas Cycle
Industries Ltd. 11 • Section 3(6) under consideration read, 'every E
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. At/as Cycle Industries Ltd. 11, a three-Judge
Bench of this Court referred to the observations made in the F
Craies on Statute Law and also the decisions of this Court in
Jan Mohammad Noor Mohammad Begban v. State of
Gujarat & and Another2° and Narendra Kumar and Others v.
The Union of India and Others21 and held as under :
G
"32. From the foregoing discussion, it inevitably follows that
the Legislature never intended that non-compliance with the
1s. (1972) 2 sec 601.
20. (1966) 1 SCR 505.
21. (1960) 2 SCR 375. H
752 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
s 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.
c
43. I am unable to accept the submission of Mr. A.
Mariarputham that having regard to the provision contained in
Section 31 (2), the executive power of the State Government to
fill in the gaps in the rules can only be exercised in generality.
D
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
E 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
F 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
G the President, State Commission.
45. Insofar as the order dated April 5, 2002 issued by the
Government of Madhya Practesh according sanction for
counting the service of the respondent on the post of President,
H State Commission for pension is concerned, the same being
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 753
ANR.
not inconsistent with the statutory provision contained in Section A
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 obseived that the respondent was
entitled to pension from the State Government insofar as seivice B
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. C
46. Civil appeal, accordingly, has no merit and is
dismissed with no order as to costs.
H.L. GOKHALE J. 1. I have had the advantage to go 0
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 E
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 absence of any specific provision therefor in the
F
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.
G
3. The broad facts and the statutory provisions relevant to
this case have been referred to in my Brother's judgment and
~herefore I am not repeating them, though I may refer to some
of the essential facts and relevant provisions.
H
754 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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.
c 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
D 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,
E 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
F 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
G 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
H
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 755
. ANR. [H.L. GOKHALE, J.]
the amount of pension for the services rendered as a High court A
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 not
include pension. B
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 c
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."
D
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:-
E
18 Proposed pension Rs. 13,000/-p.m. + DA or
Rs. 1,56,000/- p.a. + DA
19 Proposed death-cum- Rs. 1,38,333=00 (as per
retirement gratuity calculation sheet) F
The calculation sheet enclosed therewith was as follows:-
CALCULATION SHEET
Calculation sheet of amount of Pension and Death-cum- G
retirement Gratuity Payable to Hon'ble Justice Shri S.K. Dubey,
President M.P. State Consumer Disputes Redressal
H
756 SUPREME COURT REPORTS (2012] 3 S.C.R.
A Commission, Bhopal as per present Scale.
Date of Birth 14.8.1936
Date of appointment and joining
as Judge of High Court 2.3.1988
B
Date of appointment as permanent
Judge 4.8.1989
Date of retirement as High Court 14.8.1998 F.N.
C Judge
Date of appointment as President,
M.P. State Consumer Disputes
Redressal Commission, Bhopal 21.9.1998 F.N.
D
Total Service
As High Court Judge 2.3.1988 to 14.8.1998 F.N.
Year Month Day
E 10 5 12
Service as President of 21.9.1988 to 13.8.2003
M.P. State Consumer 4 10 22
Disputes Redressal
F 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.
G 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.
H
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 757
ANR. [H.L. GOKHALE, J.]
Amount of Death-cum-Retirement Gratuity including ·55% D.A. A
as per instructions.
Pay Rs. 26,000+
55% of D.A 14,300 40.300 x 20 x 15 = 4,03,000
Total Rs. 30,3000/- 30 x 1 B
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
c
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 D
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 E
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:-
F
(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 G
Court.
(iii) In the order for counting the said services, there is
no mention about admissibility of gratuity and
commutation of pension. H
758 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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.
B
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
C 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
D 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 petition
to the Madhya Pradesh High Court (W.P. No.13302/2004)
which has allowed that petition by the impugned judgment and
E 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.
F
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
G 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
H of India, who is a Constitutional Functionary. The payment of
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 759
ANR. [H.l. GOKHALE, J.]
pension and its supervision is a part of his responsibility. His A
letters/orders were challenged in the writ petition, and if it was
his view that the decision of the High Court was erroneous, we
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. B
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 C
based on Section 16(2) of the Act, which reads as follows:-
"16. Composition of the State Commission .....
(1) ..................... . D
(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."
E
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 F
by the State Government, or as the case may be, by the
Central Government under this Act.•
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, G
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 H
760 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
8
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:-
C
"6. Salary and other allowances and terms and
conditions of the President and Members of the State
Commission.
D "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
E
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
F 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
G State Government.
•
13. The submission of Mr. Mariarputham, learned Senior
Counsel for the appellant has been that the appellant is required
H to read and implement these provisions as they are. The
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 761
ANR. [H.L. GOKHALE, J.]
section clearly provides that the terms and conditions of service A
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 B
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 thereof
which reads as follows:- c
"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 confeffed a
power to do an act and has laid down the method in which
that power has to be exercised, it necessarily prohibits D
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 ......... "
E
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 abot.1t the provision for pension. It
cannot however mean that the State Government cannot on its F
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 G
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 H
762 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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
c
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 Parliam~nt have power to make
D 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."
E 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
F 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
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
G 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
H 'prescribed' means prescribed by the rules, it is implied that
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 763
ANR. [H.L. GOKHALE, J.]
these rules shall be of general application. If pension is to be A
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 B
Road Transport Corporation, Patia/a Vs. Mangat Singh
reported in 2011 (11) sec 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 c
first letter dated 10.12.2003, the appellant raised the issue with
respect to the rate at which the 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 D
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 E
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. F
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 G
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
H
764 SUPREME COURT REPORTS [2012] 3 S.C.R.
A (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
B
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
c 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.
D
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
E 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
F 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
G of the 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.
H
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 765
ANR. [H.L. GOKHALE, J.]
Venugopal (supra) this Court has laid down that the A
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 B
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
ru~. C
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 D
area as air pollution control area. This was to be done after
consultation 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 E
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 F
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:- G
"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 H
I I
766 SUPREME COURT REPORTS [2012) 3 S.C.R.
A 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
B been framed prescribing the manner, undoubtedly, the
declaration must be in accordance with such rules."
Thus, in the Orissa case the substantive declaration
concerning the pollution control area had been done by
C 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 ir:i 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
D 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
E 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.
F 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
G to selection grade 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
H promotion to selection grade posts in the Indian Police
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 767
ANR. [H.L. GOKHALE, J.]
Service has been based on merit and seniority has been A
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." B
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 La/it Mohan Deb Vs. C
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 D
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 is whether such a provision can be brought in through E
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 F
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". G
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. H
768 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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 Mis Atlas Cycle Industries Ltd. Vs.
B State of Haryana reported in 1979 (2) SCC 196 to submit that
laying down was not mandatory but was a directory provision.
In the p'resent 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
c 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
0
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
E 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
F 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
G Kera/a Vs. K. 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
H scrupulously. Waiver or even relaxation of any rule, unless
ACCOUNTANT GENERAL, M.P. v. S.K. DUBEY & 769
ANR. [H.L. GOKHALE, J.]
such power exists under the rules, is bound to provide A
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 B
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) c
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 D
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 E
by the first respondent, the subsequent period of his service
as the President of the State Commission was sought to be
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 F
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 G
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.
H
770 SUPREME COURT REPORTS [2012] 3 S.C.R.
A 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
B 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 nol be recovered unless it was a
case of misrepresentation or fraud. This judgment in turn
referred to an earlier judgment in Sahib Ram Vs. State of
c 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
0
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
E 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
F the first respondent shall be entitled to receive pension only for
the service rendered by him as a High Court Judge.
COMMON ORDER
G 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 Judtice
for appeal being assigned to an appropriate Bench.
N.J. Matter referred to Larger Bench.
H
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