K. Ramamoorthy, J.

1. Two Honble Judges of High Court (Retd.) who are the petitioners were appointed as Presidents of the Consumer Courts. The first petitioner was the President from 19.9.1990 to 31.3.1995. The second petitioner was appointed as President from 31.3.1995 for a period of five years. They have been denied their legitimate dues in accordance with law and therefore they were forced to seek redress under Article 226 of the Constitution of India. Before I deal with the controversy it is necessary to refer to a few aspects of the judicial system in general to provide a backdrop as it were, for proper appreciation of the issue involved in the present writ petition.

2.Since the days of Magna Carta in England, the importance of rule of law for maintaining a civilised society without which there can be no peace and there can be no progress in any sphere of life has been the subject of the consideration by the peoples of the world who have had the good fortune of enjoying free way of life under democratic forms of Government. Human ingenuity has been trying to involve effective methods for dispensation of justice. As a result of experience for so many centuries the method of resolving disputes by the Judges appointed by Government, was adopted. It was thought that highly trained and intellectually able men and women should be invited to take upon the task of administering justice. It was also considered necessary for the proper administration of justice that the Judges should be absolutely independent and should be paid remuneration and given facilities and perks for their nature of the work and the life they had to lead. After due circumspection and bestowal of thoughts the Judges were considered a class separate and discrete and they should not be compared with the others who are employed in the other organs of the State. After studying the systems in the United Kingdom and the United States of America and our Republics the founding fathers of the Constitution of India had carved a separate place for the Judges for efficient administration of justice. The Supreme Court of India gave a concrete shape to the vision of the founding further of the Constitution. In All India Judges Association v. Union of India & Ors., JT 1991 (4)SC 285 [LQ/SC/1991/602] considered this aspect.

3. In para 41 of the judgement the Supreme Court observed:

We are alive to the fact that our directions involve a burden on the State Exchequer. Perhaps some justification as to why these expenses should not be grudged must now be indicated. Professor Pannick in his book entitled Judges has observed:

Judges do not have an easy job. They repeatedly do what the rest of us seek to avoid; make decisions.

He further added:

Judges are mere mortals but they are asked to perform a function that is utterly divine.

Professor Harold Laski once wrote to Justice Oliver Holmes that he wished that people could be persuaded to realise that Judges are human beings; it would be a real help to jurisprudence.

4. The Supreme Court approved the view of the Law Commission in its 14th Report and quoted the same:

If the public is to give profound respect to the Judges the Judges should by their conduct try and deserve it; not by word, or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them. It appears to us that not only for the performance of his duties but outside the Court as well a Judge has, to maintain an aloofness amounting almost to self imposed isolation.

The Commission quoted Sir Winston Churchill who had said:

A form of life and conduct far more severe and restricted than that of ordinary people is required from Judges and though unwritten has been most strictly observed. They are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct.

5. The Supreme Court referred to the report of the Law Commission of 1958 and observed:

As we shall point out, later the problem has since grown in dimension because there is unmistakable testimony that the standards of the judicial officers recruited from the Bar and other sources have during recent years fallen in a substantial degree for various reasons. This has been almost the unique view expressed by the witnesses before us. It is thus obvious that no scheme of review of judicial administration will be effective or worthwhile unless the basic problem of providing a trained and capable judicial personnel is satisfactorily solved.

6. The Supreme Court in 1991 observed:

This was adequate and timely notice to the Government and its people. Instead of attending to the problem then, 33 long years have been allowed to roll by and what was then said as a growing dimension has grown to devalue the system. Its resurrection has, therefore, become more costly.

7. About the importance of the liberty and justice the Supreme Court observed:

A Government founded on anything except liberty and justice cannot stand. All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that have passed awayall are a warning that no nation founded upon injustice can stand. From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen or crumbling stone of the once, mighty Rome, comes a wail as it were, the cry that no nation founded on injustice can permanently stand.

8. The Supreme Court also brought to the fear the need for getting talent people from the Bar to the Bench. The Supreme Court observed:

Society, therefore, must understand the problem. Solution to the problem would depend upon realisation of the fact that the more capable people at the Bar are not willing to accept offers of judicial appointments. The plea that the other wings in the States would demand improvement in their scales or pay is not a relevant feature at all when the problem is viewed from this angle. We hope and trust that society would generate the appropriate understanding of the matter and no Government would come forward to take the stand that if the pay scales and perks of the Judicial Officers are improved similar demands would come from other wings of Government.

9. The Supreme Court observed in a very emphatic terms:

We would like to point out that that dispensation of justice is an inevitable feature in any civilised society. Maintenance of law and order require the presence of an efficient system of administration of criminal justice.

10. About Justice the Supreme Court referred to the speech of Daniel Webster:

Justice, Sir, is the greatest interest of man on earth. It is the ligament which holds civilised beings and civilised nations together. Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progresss of our race. And whoever labours on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablateures, or contributes to raise its august dome still higher in the skies, connects himself in name and frame and character with that which is and must be as durable as the frame of human society.

To those who control the purse what Webster said should provide the guideline.

11. The need for a competent judiciary was emphasised by the Supreme Court by referring to the opinion expressed by Burger, Chief Justice of the American Supreme Court as under:

A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the Subordinate Judiciary by its action and the High Court by its appropriate control to ensure it.

It is useful to remember what President Lincoln often said:

If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.

12.Again in All India Judges Association & Others v. Union of India & Others, JT 1993 (4) SC 618 [LQ/SC/1993/648] , the Supreme Court had held:

It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot however, help observing that the failure to realise the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to be directions given in the judgment. The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the Members of the Council of Ministers and the Members of the Legislature. When it is said that in a democracy such as ours, the executive, the Legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The Council of Ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, Legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the Legislature and the heads of the State. The judges, at whatever level they may be, represent the State and its authority unlike the, administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the, judiciary, either constitutionally or functionally.

13. Laying emphasis on judicial independence the Supreme Court observed:

This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it. To keep the Judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself.

14. The Supreme Court rejected the case of the Government of India that the directions given by the Supreme Court would lead to demands from the members of the other services for similar service conditions. The Supreme Court squarely answered the point by stating that:

it is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the judges and, those of the members of the other services.

The Supreme Court further observed:

under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.

15. Mr. David Pannick in his book of Judges noticed the importance of judiciary and what he has stated in his book is very much relevant today in the present context. In para 43 it is stated:

The reasons which Judges must give to justify their decisions can be gnawed over at their leisure by the teams of lawyers trained [and generously paid] to extract for the purpose of an appeal, every morsel of error. The Judge has the burden of resolving, day after day and week after week, a long succession of issues, each one of which occupies the professor-critic for months and even years of specialised study.

16. The Law Commission in its 14th report had said in connection with the work of judicial officers as under:

the great responsibility of the work which a judicial officer is called upon to discharge needs no emphasis..Judicial integrity is of the greatest importance and to expect persons discharging responsible functions to live on low salaries not commensurate with their office and responsibility is unrealistic and ignores present day living conditions. Elsewhere, we have also dealt with the difficulties which judicial officers, as a class, have to face in the matter of securing residential accommodation and how, in some parts of the country, a very high percentage of their salary has to be spent towards house rent alone. Considering these facts and circumstances, we are of the view that the scales of pay should be substantially higher than it is at present in order to enable an officer to maintain a proper standard of living and avoid obligations which may be embarrassing to him in the discharge of his duties.....

17.In Supreme Court Advocates-on-Record Association & Anr. v. Union of India, JT 1993(5) SC 479, the Constitution Bench of the Supreme Court had made the position very clear in para 53. The para reads as under:

No doubt true, that the Constitutional assurances, relating to the basic service conditions are absolutely necessary to protect the independence of the judiciary, but in our view they are not be all and end all. More than the above, one other basic and inseparable vital condition is absolutely necessary for timely securing the independence of judiciary; that concerns the methodology, followed in the matter of sponsoring, selecting and appointing a proper and fit candidate to the (Supreme Court or High Court) higher judiciary. The holistic condition is a major component that goes along with other constitutionally guaranteed service conditions in securing a complete independence of judiciary. To say differently, a healthy independent judiciary can be said to have been firstly secured by accomplishment of the increasingly important condition in regard to the method of appointment of Judges and, secondly, protected by the fulfilment of the rights, privileges and other service conditions. The resultant inescapable conclusion is that only the consummation or totality of all the requisite conditions beginning with the method and strategy of selection and appointment of Judges will secure and protect the independence of the judiciary. Otherwise, not only will the credibility of the judiciary stagger and decline but also the entire judicial system will explode which in turn may cripple the proper functioning of democracy and the philosophy of this cherished concept will be only a myth rather than a reality.

18. The Supreme Court cautioned:

The essence of the above deliberation and discussion is that the independence of judiciary is the livewire of our judicial system and if that wire is snapped, the dooms day of judiciary will not be far off.

19. The Constitution Bench emphasised that for attaining the glorious objectives of securing to all citizens JusticeSocial, Economic and Political, the Constitution has placed a tremendous responsibility on the judiciary and they had conferred jurisdiction of the widest amplitude on the Supreme Court and High Courts for the maintenance of the rule of law which runs through the entire fabric of the Constitution. The Supreme Court had accepted the memorandum before the constituent assembly wherein it is stated:

We have assumed that it is recognised on all hands that the independence and integrity of the judiciary in a democratic system of Government is of the highest importance and interest not only to the Judges but to the citizens at large who may have to seek redress in the last resort in Courts of law against any illegal acts or the high-handed exercise of power by the executive in making the following proposals and suggestions, the paramount importance of securing the fearless functioning of an independent and efficient judiciary has been steadily kept in view.

20. The Constitution Bench approved of the view of his Lordship Mr. Justice Krishna Iyer independence of the Judiciary is not genuflexion nor is it opposition of Government. Krishna Iyer, J. had put this aspect in an altar as Constitution Religion. The Constitution Bench accepted in toto the view of Chandrachud, J. (as his Lordship then was) in Union of India v. Sankal Chand Himatlal Sheth & Anr., 1978 (1) SCR 423 [LQ/SC/1977/267] that independence of judiciary is the cardinal feature and that judiciary which is to act as a bastion of the rights and freedom of the people is given certain constitutional guarantees to safeguard the independence of judiciary. The Constitution Bench accepted with approval the view of Bhagwati, J. (as his Lordship then was) in the same judgment wherein his Lordship said the independence of judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document... The Constitutional Bench again accepted the principle Justice, as pointed out by this Court in Shamsher Singh v. State of Punjab, 1975 (1)SCR 814 can become fearless and free only if institutional immunity and autonomy are guaranteed. The Supreme Court in Guptas case AIR 1982 SC 149 [LQ/SC/1981/463] held that the concept of independence of judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

The Supreme Court further observed:

But it is necessary to reminde ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure of influence that it is a much wider concept which takes within its sweep, independence from many other pressures and prejudices.

21.The Allahabad High Court in Red Light on the Cars of the Honble Judges of the High Court v. State of U.P., AIR 1993 All. 211 [LQ/AllHC/1993/253] , has referred to the importance of maintaining Independence of the Judiciary. The Court observed:

Under the Constitution for the appointment of the High Court and Supreme Court Judges, apart from Advocate General and Attorney General, Educational Qualification is provided. They cannot be illiterate. They are not the Government servant but Constitutional functionaries. The Constitutional functionaries under the Constitution can either be removed by process of impeachment, no confidence or on pleasure theory. The Honble Judges of the High Court are not elected and therefore there is no question of their removal by vote of no confidence. They are appointed and are removable by impeachment on the ground of proved misbehaviour or incapacity and the both procedure and grounds are stricter than other functionaries such as the President, Speaker etc. The oath as administered to the Honble Judge is also different and the words that I will truly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws are found in the oath of the Honble Judge and no other constitutional functionary, which brings in him the faith of the people. Under Art. 226 of the Constitution, a High Court Judge is under restriction not to plead and act in any court or authority in the territory of India except the Supreme Court and other High Courts. A retired Judge can be requested to sit and act as a Judge of the High Court. A Judge can be requested by the Chief Justice of India with the consent and after consultation with the Chief Justice of the Supreme Court as ad hoc Judge. Even a retired Judge of a High Court can sit and act as a Judge of the Supreme Court. Every Honble Judge of the High Court presides over it as a Court of record possessed of all the general powers.

High Court is a creation of and functions under the Constitution and constituted of a Chief Justice and the Judges. In High Court of Judicature at Allahabad v. Amod Kumar Srivastava, a Full Bench case reported in 1993(1) UPLBEC 378: 1993 All. LJ 525 a question arose for consideration as to whether constitutional authority which has been assigned one of the essential functions of the State i.e. dispensation of justice is regal or not and the Court held that the High Court exercises its constitutional function which can be termed as regal or sovereign functions. The relevant portion runs in para 6 is as extracted:

The question which arises for consideration is as to whether a constitutional authority which has been assigned one of the essential functions of the State i.e. dispensation of justice is regal or not. In the case of Bangalore Water Supply v. A. Rajappa, AIR 1978 SC 548 [LQ/SC/1978/73] : 1978 Lab. IC 467, Honble the Supreme Court laid down two tests for finding out as to whether a constitutional authority exercises regal or sovereign functions or not. The tests laid down are, firstly that whether the authority is discharging primary and inalienable functions of the constitutional Government and, secondly, whether the functions of the State could be left to private enterprises to be performed. Let us examine whether the functions of the High Court conforms to the two tests, stated above for being termed as regal or sovereign or not. The dispensation of justice; which is one of the primary function of the State has been exclusively entrusted to the High Court by the Constitution of India. Except the High Court no other authority is entrusted to discharge the function of administration of justice by interpreting law. Further under the Constitution the High Court is not empowered to alienate its function of dispensation of justice and supervision and control of subordinate Courts to any private enterprises or to corporation. In view of this I find that the High Court conforms to the two tests laid down by the Supreme Court for being termed as regal. In the case of the Corporation of the City of Nagpur v. Its Employees, AIR 1960 SC 675 [LQ/SC/1960/70] , it was held that regal functions shall be confined to legislative power, administration of law and judicial power. From this I conclude that the High Court exercises primary and inalienable functions of the State which cannot be left to the private enterprises to be performed.

Thus a Judge of a High Court who is a person appointed under Art. 217 of the Constitution by the President of India functions under the Constitution is a person of distinction, holding a high office of dignity and honour and the word Honble is always prefixed before his name.

22.The Madras High Court had dealt with the same aspect in P. Perumal and 28 Others v. State of Tamil Nadu and Ors., 1993 (2) Madras Law Weekly 681.

The High Court Judges (Conditions of Service) Act, 1954, has received substantial amendment with effect from 1.11.1986 which has defined a Judge to mean a Judge of a High Court including the Chief Justice, theing Chief Justice, an Additional Judge and an Acting Judge of the Court. Sec. 22 provides that every Judge shall receive such reasonable allowance to reimburse him for expenses incurred in travelling on duty within the territory of India and shall be afforded such reasonable facilities in connection with travelling as may, from time to time, be prescribed, has got a boost by the provision in Sec. 22B which has provided that every Judge shall be entitled to a staff car and one hundred and fifty litres of petrol every month or the actual consumption of petrol per month, whichever is less. There is no contemplation in this section that the staff car and 150 litres of petrol per month or the actual consumption of petrol whichever is less, is provided only for the Judges travel from his residence to the Court hours. The entitlement is specific and unambiguous that every judge shall be having a staff car and he shall be entitled to consumption of a maximum of 150 litres of petrol each month, the consumption in excess however of 150 litres will be not at the cost of the State.

How reluctant, however, the executive approach to this provision of a staff car has been, is reflected in a public interest litigation in the Punjab & Haryana High Court in M.L. Puri v. The Punjab & Haryana High Court and others., AIR 1993 P&H 287 [LQ/PunjHC/1993/267] . The State Governments recalcitrance in not ensuring reliable and road-worthy cars to the Honble Judges gave rise to a petition by a practising Advocate in the said High Court and the Court in that context has examined the relevant provisions of law and observed:

If the Government does not place at the disposal of the High Court Judges, staff cars which are reliable and roadworthy, they would be surely failing in their duties as enjoined by the provisions of the.

.It is really sad and that in the fifth decade of our Independent Democratic Polity, we are required to remind a State Government that Art. 229 of the Constitution of India has recognised in the Chief Justice of the Court or such other Judge or officer of the Court, as the Chief Justice may direct, the authority to make appointments of officers and servants of a High Court, and subject to the provisions of any law made by the Legislature of the State to decide and prescribe the conditions of service of officers and servants of a High Court, except that the Rules made thereunder, as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.

23.The Madras High Court in Justice S. T. Ramalingam v. The State of Tamil Nadu Rep. by its Secretary to Government, Public (Special-B) Department, Fort St. George Madras -9, 2. The Registrar, High Court Madras, 1993(2) Vol. 112 Madras Law Weekly 689 has said:

In pre-Constitution days a High Court Judge appointed under the Government of India Act, 1935 held a Civil post under the Crown, but Section. 253 thereof was not applied to him. When the Constitution of India came into force and India became a Sovereign Democratic Republic after breaking with the bonds of the Crown, Art. 395 of the Constitution specifically repeated the Government of India Act and under Art. 376, the Judges of a High Court in any province holding office immediately before the commencement of the Constitution became the Judges of the High Court in the corresponding State on the commencement of the Constitution and thereupon became entitled to such salaries and allowances and such rights in respect of leave of absence and pension as are provided for under Art. 221 of the Constitution. Under the Constitutions frame-work, a High Court which exists for each State, is a Court of Record and has all the powers of such a Court including the power to punish for contempt of itself. It consists of a Chief Justice and such other Judges as the President may from time to time, deem it necessary to appoint. Every person appointed to be a Judge of a High Court, before entering upon his office has to make and subscribe oath or affirmation according to the form set out for the purpose in the III Schedule to the Constitution before the Governor of the State or some persons appointed in that behalf by him. The tenure of office of a Judge is limited by a provision of the Constitution and having once held the office of a permanent Judge of a High Court he is debarred from pleading or acting in the High Court in which he held office or in a Court subordinate to it. Art. 221(1) of the Constitution before the 54th Constitution Amendment provided that there would be paid to the Judges of each High Court such salaries as were specified in the Second Schedule of the Constitution and after the 54th amendment, that there shall be paid to the Judges of each High Court such salaries as may be determined by the Parliament or by law and until provision in that behalf is so made, such salaries as are specified in the Second Schedule. Clause (2) of this Article, however, has remained unamended as follows:

Every Judge shall be entitled to such allowance and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule:

Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

A Judge transferred to another High Court is entitled to receive in addition to his salary such compensatory allowance as may be determined such compensatory allowance as the President may by order fix. The Constitution has, besides other things, a specific provision that the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof, sitting alone or in Division Courts, shall be the same as immediately before the Commencement of the Constitution and its constitutional authority to issue writs, directions or orders throughout the territories, in relation to which it exercise jurisdiction to any person or authority including in appropriate cases any Government within those territories, is recognised under Art. 226 thereof. Its superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, its power to call for returns from such Courts, to make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts etc. is preserved under Art. 227 of the Constitution.

The Supreme Court in High Court of Judicature at Bombay through its Registrar v. Shirishkumar Rangrao Patil & Anr., JT 1997 (5) SC 337 [LQ/SC/1997/782] had observed:

The judicial service is not service in the sense of employment. The Judges are not in employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the Members of the Council of Ministers and the Members of the Legislature. It is an office of public trust and in a democracy, such as ours, the Executive, the Legislature and the Judiciary constitute the three pillars of the State. What is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of the other service.

24. In the light of this legal position the provisions of Consumer Court Act and the Rules have to be considered. The Consumer Protection Act, 1986 was enacted by the Parliament and it came into force on 24.12.1986. Section 9 of theprovides for Establishment of Consumer Disputes Redressal Agencies and the same read as under:

Section 9

Establishment of Consumer Disputes Redressal AgenciesThere shall be established for the purposes for this Act, the following agencies, namely:

(a) a Consumer Disputes Redressal Forum to be known as the District Forum established by the State Government in each District of the State by notification:

Provided that the State Government may, if it deems, fit, establish more than one District Forum in a District;

(b) a Consumer Disputes Redressal Commission to be known as the State Commission established by the State Government in the State by notification; and

(c) a National Consumer Disputes Redressal Commission established by the Central Government by notification.

The following Agencies are required to be established for the purposes of the.

1 A Consumer Disputes Redressal Forum to be known as the District Forum. This is to be established by the State Government in each District of the State by means of a notification, State Governments may establish more than one forum in a single District.

2 A Consumer Disputes Redressal Commission to be known as the State Commission. This has also to be established by the State Government in the State by means of a notification.

3 A National Consumer Disputes Redressal Commission to be established by the Central Government by means of a notification.

The Act thus envisages a hierarchy of these Redressal Forums:

District Forums

State Commissions

National Commission.

A Commission which has been duly constituted becomes competent to act even if one of the members has not taken charge and the vacancy thus caused is not filed by the State.

25. The composition of State Commission is provided in Section 16 of the Consumer Protection Act, 1986. Section 16 of the Consumer Protection Act, 1986 reads as under:

Section 16

Composition of the State Commission(a) Each State Commission shall consist of-

(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President:

Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;

(b) two other Members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman:

Provided that every appointment made under this clause shall be made by the State Government on the recommendation of a Selection Committee consisting of the following, namely:

(i) President of the Chairman

State Commission.

(ii) Secretary of the Law Member

Department of the State.

(iii) Secretary in charge of the Member

Department dealing with

consumer affairs in the State.

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.

Every member of the State Commission shall hold office for a term of five years or up to the age of sixty seven years, whichever is earlier and shall not be eligible for re-appointment.

Notwithstanding anything contained in Sub-section (3), a person appointed as a President or as a Member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or Member, as the case may be, till the completion of his term.

The Commissions which have to be constituted at State levels have to consist of the following Members:

(a) a person who is or has been a Judge of a High Court. The appointment is to be made by the State Government in consultation with the Chief Justice of the High Court. He will be the President of the Commission.

two other Members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. One of them has to be a woman.

The appointment has to be on the basis of recommendation of a Selection Committee. The salary or honorarium, other allowances, conditions of service including tenure of office have been left to be provided in the rules to be prescribed by the State Governments. The appointment can be for a period of five years or till the incumbent reaches the age of sixty-five years whichever is earlier.

26. The Delhi Consumer Protection Rules, 1987 was framed by the Government of Delhi. Rule 6, as amended, is relevant and the same reads as under:

6. Salary and other allowances and terms and conditions of the President and Members of the State Commission.[(1 )(a) The President of the District Forum shall receive the salary, allowances and other perquisites as are admissible to a sitting Judge of the High Court, if appointed on whole-time basis, or an honorarium of three hundred and fifty rupees per day, if appointed on part-time basis.

Note.When a retired Judge of a High Court is appointed as President of the State Commission, his salary, allowances and other perquisites, shall be subject to the rules governing the payment of pension to such retired Judge.

(b) A Member of the State Commission, when appointed on whole-time basis, shall receive a consolidated honorarium of five thousand rupees per month, and, if appointed on part-time basis, a consolidated honorarium of two hundred and fifty rupees per day of sitting.]

[2(a) The President and the Members of the State Commission shall be entitled to such travelling allowance and daily allowances, on official tour as are admissible to Group A Officers of the Administration.

(b) For the purpose of attending the sitting of the State Commission, a Member shall be entitled to actual conveyance charges subject to a ceiling of one hundred rupees per day of sitting.]

(3) The salary, honorarium and other allowances shall be defrayed out of the Consolidated Fund of India.

(4) The President and the Members of the State Commission shall hold office for a term of five years or up to the age of 65 years, whichever is earlier and shall not be eligible for renomination:

Provided that President or a Member may

(a) by writing under his hand and addressed to the Administrator resign his office any time;

(b) be removed from his office in accordance with the provisions of Sub-rule (5).

(5) The Administrator may remove from office, President or a 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 Administrator, involves moral turpitude; or

(c) has become physically or mentally incapable of acting as such President or Member, as the case may be; or

(d) has acquired such financial or other interest as is likely to affect pre- judicially his functions as President or a Member, as the case may be; or

(e) has so abused his position as to render his continuance in office prejudicial to the public interest:

Provided that the President or a Member shall not be removed from his office on the grounds specified in Clauses (d) and (e) of Sub-rule (5), except on inquiry held by the Administrator in accordance with such procedure as he may specify in this behalf and if the President or the Member is found guilty of such grounds in the inquiry:

(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 interests as is likely to affect prejudicially his functions as such President or Member.

(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 office.

(8) Every vacancy caused by resignation and removal of the President or any other Member of the State Commission under Sub-rule (4) or otherwise shall be filled by fresh appointment.

(9) Where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) member, holding office for the time being, shall discharge of functions of the President until a person appointed to fill such vacancy assumes the office of the President of the State Commission.

(10) When the President of the State Commission is unable to discharge the functions owing to absence, illness or any other cause, the senior-most (in order of appointment) Member of the State Commission shall discharge the functions of the President until the day on which the President resumes the charge of his functions.

(11) The President or any Member ceasing to hold office as such shall not hold any appointment in or be connected with the management or administration of an organisation which has been the subject of the proceeding under the during his tenure for a period of five years from the date on which he ceases to hold such office.

The Rule 6(1)(a) is valid. The note to Rule 6(1)(a) runs counter to the judgments of the Supreme Court. Therefore, it is not valid in law. The salary, allowances and perquisites of the Presidents of the Consumer Forum have to be on the basis of what is payable to a High Court Judge. Rule 6(2)(a) & (b) is not valid in law. Once the President of the Forum is paid salary, allowances and perquisites, payable to High Court Judge, any question of paying travelling allowances would arise. Rule 6(3) is not challenged. Rule 6(4) is consistent with the provisions of the Statute and, therefore, is valid. Rule 6 Sub-rules (5) , (6) , (7) , (8) , (9) , (10) and (11) are not challenged.

27.The Government of National Capital Territory of Delhi, Department of Food Supplies & Consumer Affairs issued an order dated 23.9.1996. The order dated 23.9.1996 reads as under:

GOVERNMENT OF NATIONAL CAPITAL

TERRITORY OF DELHI

DEPARTMENT OF FOOD SUPPLIES

& CONSUMER AFFAIRS

No. F.50(15)/94-F&S/CA/1359 dated 23.09.96

ORDER

The Administrator, Government of National Capital Territory of Delhi is pleased to finalise the terms and conditions of service of President of the State Commission of Delhi on whole time basis as follows:

1 He will be entitled to emoluments equal to the last pay drawn by him as Judge of the respective High Court minus pension per mensem in case of a retired High Court Judge.

2 D.A. as per Government rules applicable to Central Government employees.

3 House Rent Allowance (H.R.A.) payable at the rate of Rs. 2,500/- per month in lieu of rent free accommodation.

4 Medical facilities as available to a retired judge of the Delhi High Court in case of appointment of retired High Court Judge.

5 A staff car with driver with a monthly quota of 200 ltrs. of fuel or the actual consumption per month whichever is less.

6 He will be entitled to 16500 Electric Units and 4500 kilo litre water per annum.

7 Leave Travel Concession (L.T.C) as admissible to GroupA officers of the Central Government.

He will be entitled to a telephone at residence and one at office.For the telephone at residence he will entitled for a maximum of 6000 loca1 calls per annum free of cost.

He will be entitled to such leave as is admissible to Group A officers of the Administration.

These terms and conditions are 1iable to be revised from time to time as per the amendments in the provisions contained in the Delhi Consumer Protection Rules, 1987.

Sd/-

Satish Chandra

Secretary Cum Commissioner

Food Supplies & Consumer Affairs

28.This would clearly show that the Government of National Capital Territory of Delhi, had ignored the constitutional mandate and the dictum laid down by the Supreme Court. In the light of the judgement of the Supreme Court, the order issued by the Government of N.C.T of Delhi ,Department of Food Supplies and Consumer Affairs, the salary, allowances and perquisites payable have already been dealt with by me.

GOVERNMENT OF NATIONAL CAPITAL

TERRITORIAL OF DELHI

DEPARTMENT OF FOOD SUPPLIES &

CONSUMER AFFAIRS, B BLOCK

VIKAS BHAWAN, I.P. ESTATE,

NEW DELHl.

F.80(100)/94-F&S/CA/361 dated 31.3.95

To

Mr. Justice A.P. Chowdhri

(Retd.)

Punjab & Haryana High Court,

Chandigarh.

Sir,

I am directed to inform you that the Lt. Governor, Delhi is pleased to offer you the post of President, State Commission, Delhi on the following terms and conditions:

1. The appointment is on whole time basis.

2. The appointment shall be for a period of 5 years or till you attain the age of 67 years, whichever is earlier.

3. Salary Allowances & other perquisites shall be regulated as under:

(i) Pay: Pay together with pension shall not exceed the last pay drawn in regular service.

(ii) DA , CCA , HRA: As admissible to Central Government employees.

(iii) Medical facilities and LTC: For self and family as admissible to re-employed pensioner and the entitlement will be that of highest grade in Central Government.

(iv) Conveyance allowance: As provided in Rule 6(2)(b) in Delhi Consumer Protection Rules, if the Government vehicle is not used.

(v) Leave: As admissible to other re-employed pensioners under CCS (Leave) Rules, 1972.

4. As per the provisions of Rule 6(6) of the Delhi Consumer Protection Rules, 1987 before assuming the charge you will be required to give an undertaking to the effect that you do not and will not have any such financial or other interest which are likely to affect prejudicially your functioning as President of the State Commission.

5. The other terms and conditions of your service shall be regulated through the orders issued by the Competent Authority from time to time and in accordance with the provisions of the Consumer Protection Act, 1986 read with Delhi Consumer Protection Rules, 1987 as amended from time .

29. In case you accept the offer, you are requested to come to the office of the State Commission for assuming the charge on 3.4.94(F.N).

30.With reference to the first petitioner, on 14.6.1993 (Annexure -13), the Director, Directorate of Consumer Affairs, wrote to the first petitioner in the following terms:

Director

Directorate of Consumer Affairs

Delhi Administration,

2, Nooruddin Ahmed Marg,

Delhi-110 054.

No. 50(63)/90-F&S/CA/499 dated 14.06.93

Dear

Kindly refer to your D.O. Letter No. SC/DH-215, dated the 2nd February, 1993 regarding reimbursement of water and electricity charges.

The matter was referred to the Finance Department of the Government of National Capital Territory of Delhi, who have not agreed to the proposal.

With kind regards,

Yours sincerely,

Sd/-

(S.C. Sareen)

This cannot be valid in the light of the settled position of law declared by the Supreme Court.

31.On 21.10.1993 (Annexure-16), the Government of the National Capital Territory of Delhi, Deputy Commissioner, Food and Supply Deptt wrote to the Registrar, State Commission regarding the LTC claim of the first petitioner, Honble Mr. Justice R.N. Mittal in the following terms:

GOVERNMENT OF THE NATIONAL

CAPITAL TERRITORY OF DELHI

OFFICE OF THE COMMISSIONER:

FOOD, SUPPLY DEPARTMENT AFFAIRS

(CASH AND ACCOUNTS BRANCH)

No. F&S/C&A/93-94/3352 dated 21.10.93

The Registrar

State Commission

Tis Hazari,

Delhi.

Sub: L.T.C. Claim of Justice R.N.

Mittal, Chairman, State

Commission

Sir,

L.T.C. claim of Justice R.N. Mittal for Rs. 1,774/- for the period November, 1992 was referred to the Principal Accounts Office, Delhi Administration for advice. They have opined that Justice Mittal is entitled to L.T.C. facility once in a block of Four years. As such, the L.T.C. facility availed by him in November, 1990 and March, 1991 is not covered by rules.

Hence, the amount of Rs. 6,356/- claimed earlier by Justice Mittal may please be deposited into Government Account so that we may be able to entertain the present claim for Rs.1,774/-

Yours faithfully,

Sd/-

Dy. Commissioner (ADMN.)

Food & Supplies Deptt.

32.This is also not valid in law as the Honble Judge would be entitled to LTC as a Judge of the High Court. Accordingly, the writ petition stands allowed. The letters dated 31.3.1995, 14.6.1996 and 21.10.1993 stand quashed.

The respondents are directed to:

(1) Pay to the first petitioner:

(a) Salary as payable to a Sitting Judge of the High Court;

(b) Grant perks to the first petitioner payable to a Judge of High Court from 19.9.1990 to 31.3.1995 and compute the same in terms of money and pay the same to the first petitioner;

(2) Pay to the second petitioner:

(a) Salary as payable to a sitting Judge of the High Court;

(b) Grant perks to the second petitioner payable to the Judge of the High Court w.e.f. 30.3.1995 till he completes his tenure.

(c) To grant all facilities to the second petitioner that available to a Judge of High Court from 30.3.1995 till the completion of his tenure.

(3) Pay Rs. 10,000 to each of the petitioners towards costs.