# THE ACCOUNTANT GENERAL, M.P v. · S.K. DUBEY & ANR

- **Citation:** [2012] 3 S.C.R. 720
- **Court:** Supreme Court of India
- **Decided:** 2012-02-29
- **Case number:** Civil Appeal No. 5322 of 2005
- **Bench:** Civil Appeal No. 5322 of 2005) FEBRUARY 29, 2012 • [R.M. Lodha, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-accountant-general-m-p-v-s-k-dubey-anr-28330
- **Pages:** 51

## Headnote

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; 742A-B; 746-H; 747-A]
1.3. Subject to the provisions of the Constitution, the
8 executive power of a State extends to the matters with
respect to which the Legislature of the State has power
to make laws. This is what is provided in Article 162 of
the Constitution. In other words, the executive power of
the State Executive is 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
El

## Text

_Characters 0–39,987 of 93,160. This is a partial read: ask again with offset=39987 for what follows._

A
B
[2012] 3 S.C.R. 720
THE ACCOUNTANT GENERAL, M.P.
V.
· S.K. DUBEY & ANR.
(Civil Appeal No. 5322 of 2005)
FEBRUARY 29, 2012
• [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; 742A-B; 746-H; 747-A]
1.3. Subject to the provisions of the Constitution, the
8 executive power of a State extends to the matters with
respect to which the Legislature of the State has power
to make laws. This is what is provided in Article 162 of
the Constitution. In other words, the executive power of
the State Executive is 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.
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.
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
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
c
D
E
is concerned. The power that vests in the State
Government in Section 30(2) to carry out the provisions
contained in Section 16(2) does not take away its
executive power to make provision for the subjects
covered in Section 16(2) for which no rules have been
framed by it. The exercise of such power by the State
Government, obviously, must not be inconsistent with
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]
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
0 cannot be accepted. [Paras 41, 42 and 43] [751-C-D; 752C-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]
Justice P. Ve_nugopal v. Union of India and Ors. (2003)
F
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-GH; 759-A-C]
G
Accountant General of Orissa Vs. R. Ramamurthy 2006
(12) SCC 557: 2006 (9) Suppl. SCR 776 - referred to.
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
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
B
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]
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
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
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]
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
D
E
F
G
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-AB]
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) [764E-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:
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
G
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
B
1976 (3) SCR 58
Referred to. Para 15
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
F
(1966) 1 SCR 505
Referred to. Para 41
(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
1968 SCR 111
Distinguished.
Para 19
1913 (3) sec 862
Referred to.
Para 21
2007 (11) SCR 863
Referred to.
Para 21
1979 (1) SCR 1070
Referred to.
Para 22
2007 (8) SCR 115
Referred to.
Para 23
2010 (14 ) SCR 22
Referred to.
Para 26
1994 (3) Suppl. SCR 674
Referred to.
Para 26
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5322 of 2005.
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
B
c
D
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.
The Judgment of the Court was delivered by
F
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
H
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:
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
0 appellant stated before the High Court that the respondent was
not entitled to clubbing of the two services. The appellant said
that if the State Government intended to grant pension to the
petitioner (respondent herein) for the service rendered by him
as President, State Commission then requisite statutory rule
would have to be framed and duly ratified by the State
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.
14. Mr. A. Mariarputham, learned senior counsel referred c
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 Nadu5•
15. Mr. Amrendra Sharan, learned senior counsel for the
respondent raised the preliminary objection of the
maintainability of the appeal at the instance of the appellant.
F
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 Others7 and Thammanna v.
K. Veera Reddy and Others8
16. With reference to Article 162 of the Constitution of India,
8 learned senior counsel for the respondent submitted that
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 Others9 and La/it Mohan Deb and
Others v. Union of India and Others10•
17. Mr. Amrendra Sharan, learned senior counsel for the
respondent argued that the use of words 'shall' and 'may' in
,· Section 16(2) was indicative of the legislative intention that
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
B
of appellant. According to him, the appellant, Accountant
General, Madhya Pradesh, is one of the arms of the Comptroller
and Auditor General -
a constitutional functionary - which
monitors and controls all activities connected with audit,
accounts and entitlement functions of the Indian Audit and
Accounts Department. He submitted that authorizing pension
was the function of the appellant. In this regard, he referred to
material titled 'Supreme Audit Institution of India - A Brief
Introduction' to show that there are 29 offices of the Accounts
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.
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
E
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
D
" .......... 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
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.