V.S. Mallimath.
Vs. Union of India & Anr [2001] Insc 153
(21 March 2001)
G.B.
Pattanaik, S.N. Phukan & B.N. Agarwal. Pattanaik,J.
L.I.T.J
This
petition under Article 32 is by the retired Chief Justice of High Court of Kerala.
The grievance of the petitioner is that he has been illegally denied of certain
monetary benefit when he served as a Member of the National Human Rights
Commission. It is the case of the petitioner that after retiring as the Chief Justice
of the Kerala High Court on 11th June, 1991,
he was appointed as Chairman of the Central Administrative Tribunal on
5.12.1991. On his retirement from the Tribunal he was appointed as a Member of
the National Human Rights Commission on 14.9.94 and continued there till he
attained the age of 70 years. While he was continuing as a Member of the
National Human Rights Commission he was not granted full salary, which he was
entitled to under the relevant Rules, and on the other hand deductions were
made under the Proviso to Rule 3 of the Rules. The contention of the petitioner
is that the said Proviso will have no application. The further grievance of the
petitioner is that on his retirement from the Commission he was entitled to retiral
benefit of gratuity for the period he rendered service as a Member of the
National Human Rights Commission,. but even that was illegally denied.
The
third grievance of the petitioner is that the leave which he earned as a Member
of the Human Rights Commission was not allowed to be encashed on an erroneous
interpretation of the Rules and thereby he was illegally denied of his rights.
The Union of India in the Ministry of Home Affairs rejected all the claims of
the petitioner on the ground that the relevant Rules do not permit the claims
of the petitioner.
The
National Human Rights Commission has been constituted under the Protection of
the Human Rights Commission Act, 1993(for short the Act). Under Section 3(2) of
the said Act, the Chairperson would be one who has been a Chief Justice of the
Supreme Court and a Member could be appointed who is or has been a Judge of the
Supreme Court and another Member to be appointed is, who is or has been, the
Chief Justice of the High Court. Apart from these three, two Members are to be
appointed from amongst persons having knowledge of, or practical experience in,
matters relating to human rights. The term of office of a Member is 5 years
from the date on which he assumes charge of office.
But no
one can be retained after attaining the age of 70 years. Section 8 of the Act
provides that the salaries and allowances payable to, and other terms and
conditions of service of Members shall be such as may be prescribed. The
expression prescribed has been defined in Section 2 (l) to mean prescribed by
rules made under this Act. Section 40 confers power on the Central Government
to make rules by notification to carry out the provisions of the Act.
Section
41 confers power on the State Government to make Rules by notification to carry
out the provisions of the Act. In exercise of power conferred under Section 40
of the Act the Central Government has framed the Rules, called, The National
Human Rights Commission Chairperson and Members (Salaries, Allowances and other
Conditions of Service) Rules, 1993, (hereinafter referred to as The Conditions
of Service Rules). Rule 3 provides that there shall be paid to a Member, a
salary which is equal to the salary of a Judge of the Supreme Court. Proviso to
the said Provision, however, stipulates that the said Member, if is in receipt
of the pension other than disability or wound pension, in respect of any
previous service under the Government of the Union or the Government of a
State, then his salary in respect of a service as a Member shall be reduced.
The bone of contention of the petitioner is that the pension he receives as a
Retired Chief Justice of Kerala High Court cannot be deducted from his salary
as a Member of the National Human Rights Commission under the Proviso to Rule
3(b), inasmuch as the services of the Chief Justice cannot be held to be a
service under the Government of the Union or the Government of a State. Thus,
Rule 3(b) is required to be interpreted by this Court. The aforesaid Rule 3(b)
is extracted herein below in extenso:- 3(b) - a Member, a salary which is equal
to the salary of a Judge of the Supreme Court:
Provided
that if the Chairperson or a Member at the time of his appointment was in
receipt of, or being eligible so to do, had elected to draw, a pension (other
than disability or wound pension) in respect of any previous service under the
Government of the Union or Government of a State, his salary in respect of
service as a Chairperson or as the case may be a Member shall be reduced:
(i) by
the amount of that pension;
(ii)
if he had, before assuming office, received, in lieu of a portion of pension
due to him in respect of such previous service, the commuted value thereof by
the amount of that portion of the pension; and
(iii) by
any other form of retirement benefits, being drawn or availed of or to be drawn
or availed of by him.
Rule 4
deals with the leave and Rule 4(2) deals with encashment of leave salary in
respect of earned leave standing to the credit of the Member. The contention of
the petitioner is that the expression maximum of leave encashed under this
sub-rule or at the time of retirement from previous service, as the case may be
or taken together shall not in any case exceed 240 days would mean his just
immediate previous service, and in his case it would be his service as the Chairman
of the Central Administrative Tribunal and would not bring within its sweep the
encashment of leave which he has made as the Chief Justice of Kerala High
Court. Thus Rule 4(2) crops up for interpretation of this Court. Said Rules
4(1) and 4(2) of the Rules are extracted herein below in extenso :- 4(1) A
person, on appointment as Chairperson or as a Member shall be entitled to leave
as follows :
(i) earned
leave @ fifteen days for every completed calendar year of service or a part
thereof;
(ii)
half pay leave on medical certificate or on private affairs @ twenty days in
respect of each completed year of service and the leave salary for half pay
leave shall be equivalent to half of the leave salary admissible during the
earned leave;
(iii)
leave on half pay can be commuted to full pay leave at the discretion of
Chairperson or a Member if it is taken on medical ground and is supported by a
medical certificate from the competent medical authority;
(iv) extraordinary
leave without pay and allowances upto a maximum of one hundred eighty days in
one term of office.
(2) On
the expiry of his term of office in the National Human Rights Commission, the
Chairperson and Members shall be entitled to receive cash equivalent of leave
salary in respect of earned leave standing to his credit subject to the
condition that the maximum of leave encashed under this sub-rule ior at the
time of retirement from previous service, as the case may be or taken together
shall not in any case exceed 240 days.
Aforesaid
Rule 4(2) has been amended by Notification dated 28th July, 1999, and in place of the words 240 days substitution has been
made to the effect the maximum period prescribed for encashment of such leave
under the All India Service (Leave) Rules 1955. Though the conditions of
Service Rules has no provision for payment of gratuity, but under Rule 10, the
conditions of service of the Chairperson and Members for which no express
provision is made in the Rules has to be determined by Rules and Orders for the
time being applicable to the Secretary to the Government of India belonging to
the Indian Administrative Services. By the aforesaid provision the All India
Services-death-cum retirement benefit Rules, 1958 applies also to the Members
of the Commission in respect of matters for which there is no provision in the
Conditions of Service Rules. Under the All India Service Rules, though it has
been provided for payment of gratuity for the services rendered, but it has
also been stated that no gratuity would be payable on re-employment, as
provided under Central Civil Services (Fixation of Pay of Re-employed
Pensioners) Orders, 1986.
The
stand of the petitioner is that the appointment as a Member in the National
Human Rights Commission cannot be termed as re- employment, and therefore, he
would be entitled to the gratuity for the period of service rendered by him as
a Member, Human Rights Commission. Thus Rule 10 and the relevant provision of
All India Service Death-cum- Retirement benefit Rules, 1958, as well as the
Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders,
1986, crop up for interpretation. The relevant Provision of the said Death-cum
Retirement Benefit Rules is extracted below:- Rule 17(1) Retiring Pension and
Gratuity- A retiring pension and death-cum-retirement gratuity shall be granted
to a member of the Service who retires or is required to retire under rule 16.
Rule
18. Amount of Gratuity or Pension.- (a) In case a member of the Service retires
from service in accordance with the provisions of these rules, before
completing qualifying service of ten years, gratuity shall be admissible at the
rate of half months pay of each completed six monthly periods of qualifying
service.
(b)(i)
In case a member of the service retires from service in accordance with the
provisions of these rules, after completing qualifying service of thirty-three
years or more, pension shall be admissible to him at the rate of fifty per cent
of the average emoluments reckonable for pension. (ii)In case a member of the
Service retires from service in accordance with the provisions of these rules
after completing 10 years of qualifying service but less than 33 years of
qualifying service, the pension admissible, to him shall be such proportion of
the maximum pension admissible under clause (a) of this sub-rule as the
qualifying service rendered by him bears to the qualifying service of 33 years.
(2)An Indian Civil Service member of the Indian Administrative Service shall be
entitled to receive an annuity of Rs.13,333,33 : Provided that if any such
member for the death-cum-retirement gratuity scheme, his annuity shall be
reduced by the annuity equivalent of the amount of gratuity:
Provided
that the amount of invalid pension shall not be less than the amount of family
pension admissible under sub-rule (2) of rule 22B.
[Note:
A member of the Service retired from service before 1st day of January, 1986,
shall be granted such additional relief in pension as may be sanctioned by the
Central Government.] Rule 14 of the Central Civil Services (Fixation of Pay of
Re- employed Pensioners) Orders, 1986 is quoted herein below:
14.
Gratuity/Death/Retirement Gratuity Re-employed officers shall not be eligible
for any gratuity/death/retirement gratuity for the period of re-employment
except in those cases covered in Rules 18 and 19 of the Central Civil Services(Pension)
Rules, 1972, and corresponding rules of the Defence Services Regulations.
Mr.
T.V.L. Iyer, learned senior counsel appearing for the petitioner contends that
the post of Chief Justice of a High Court is a constitutional post and,
therefore, services rendered as the Chief Justice of a High Court cannot be
held to be a service under the Government. Since Proviso to Rule 3(b) of the
Conditions of Service Rules stipulates that pension received by a Member in
respect of any previous service under the Government of Union or Government of
a State could be deducted from the salary, the pension which the petitioner was
receiving as Chief Justice will not come within the sweep of the Proviso to Rule
3 (b) and, therefore, the petitioner was entitled to receive the salary equal
to the salary of a Judge of the Supreme Court and no deduction could be made.
The stand of the Union Government, on the other hand is, that the word
Government in the proviso to Rule 3 (b) should not be interpreted narrowly to
mean, the Executive Government but should be interpreted in a broader sense to
include the three organs of the State, namely, the Executive, the Legislature
and the Judiciary and such an interpretation being given the pension received
by the petitioner as Chief Justice of Kerala High Court has to be deducted from
the salary receivable as a Member of the Commission in terms of the Proviso to
Rule 3(b). Mr. Iyer appearing for the petitioner relied upon the decision of
this Court in Union of India and Ors. vs. Pratibha Banerjee and Anr. - (1995) 6
Supreme Court Cases, 765, where this Court has held that the Judge of a High
Court is a holder of constitutional office and not a Government servant. In the
aforesaid case one Pratibha Banerjee, who retired as a Judge of a Calcutta High
Court with effect from 16.2.1989 was appointed as a Vice-Chairman of the
Central Administrative Tribunal on 3.3.1989 and relinquished said post on
16.2.1992, the question for consideration was for the aforesaid period from
3.3.89 till 16.2.92 what would be her pension. While she had claimed that she
was entitled to pension admissible under Part I of the First Schedule to the
Act, it was the contention of the Union Government that pension would be
admissible under Part III of the First Schedule to the Act. The salary and
allowances of the Vice- Chairman and Member of the Central Administrative
Tribunal is determined under a set of Rules, called, Central Administrative
Tribunal (Salaries and allowances and conditions of Service of Chairman,
Vice-Chairman and Members) Rules, 1985. Rule 15(A) provides that the conditions
of service and other perquisites available to the Chairman, Vice-Chairman of
the Central Administrative Tribunal shall be the same as admissible to a
serving Judge of the High Court as contained in the High Court Judges
(Conditions of Service) Act, 1954, and the High Court Judges (Travelling
Allowances) Rules, 1956. Under the High Court Judges Conditions of Service Act,
1954 a Judge of a High Court is entitled to pension under Chapter III of the
Act and Section 14 provides that every Judge on retirement be paid a pension in
accordance with the scale and provisions in Part I of the First Schedule
provided he is not a member of a ICS or has not held any other pensionable post
under the Union or the State. Section 15, however, provides that a Judge who is
not a Member of ICS but has held any other pensionable civil post under the
Union or the State, shall, on retirement be paid a pension in accordance with
the scale and provisions in Part III of the First Schedule. On interpretation
of the aforesaid provisions this Court held that the provisions of Part III
would apply to a Judge who has held any pensionable post under the Union or State
but is not a Member of ICS and who has not elected to receive the pension
payable under Part I. Pratibha Banerjee having been appointed as a Judge of a
High Court from the Bar, on her retirement she became entitled to pension under
Part I of the First Schedule. When she was appointed as Vice Chairman of
Central Administrative Tribunal she was already drawing pension as Judge of the
High Court under Part I of the First Schedule. The question for consideration
was whether for the services rendered as Vice Chairman of the Tribunal she
would get pension under Part I or Part III. It was the contention of the Union
Government that since she was holding a pensionable post under the Union/State
at the time when she retired as Vice-Chairman of the Tribunal her case would be
governed by Part III. This contention, however, was rejected by this Court and
the Court held that it cannot be said that a Judge of the High Court holds a
post under the Union or the State. The Court then went
on examining the scheme of the Constitution and how the Constitution makers
were keen to ensure that the Judiciary was independent of the Executive and an
independent, impartial and fearless Judiciary is our constitutional creed. The
Court also took note of Articles 233 to 237 and pointed out how even the
subordinate judiciary has been insulated from any executive influence and
ultimately came to the conclusion that there is no relationship of master and
servant between the Government and the Judges of the High Court, and
consequently, it cannot be said that a Judge of the High Court holds a post
under the Union/State.
Though
certain broad observations made in the aforesaid case might support the
contention of Mr. Iyer, but we find it difficult to accept the contention of
Mr. Iyer that the pension received by a Judge of the High Court shall not be
taken into account for determining his salary as a Member of the Human Rights
Commission as the services of a Judge of the High Court by no stretch of
imagination, even though pensionable, can at all be intended to be excluded for
determining the salary which such Member on retirement as a Judge or Chief
Justice of a High Court is entitled to receive under Rule 3(b) of the Rules. In
Pratibha Banerjees case (1995(6) SCC 765) this Court on interpreting Articles
50, 214, 217, 219 and 221 of the Constitution, did come to the conclusion that
a Judge of a High Court belongs to the third organ of the State, which is
independent of the other two organs namely the Executive and the Legislature.
It is
in that sense the Court further observed that a Judge of the High Court
occupies a unique position under the Constitution. But conferring that status
to a Judge of the High Court, so as to enable him to discharge his duties
without fear or favour, affection or ill will, has got nothing to do in
interpreting a particular provision of the Rules governing the service
conditions of the Chairman and Members of the Human Rights Commission, when
such Judge on retirement as Chief Justice, is appointed as a member of the Human
Rights Commission. We are also not in a position to accept the contention that
by interpreting, that pension received by a retired Chief Justice of a High
Court is to be deducted from the salary which he is entitled to, as a Member of
the Human Rights Commission, under the proviso to Rule 3(b) would in any way
affect the independence of the judiciary nor would it affect the constitutional
scheme and the unique position, a Judge occupies under the Constitution, as
discussed in Pratibha Banerjees case. It would be appropriate at this stage to
notice an earlier Judgment of this Court in Pashupati Nath Sukul vs. Nem
Chandra Jain and Ors., 1984(2) SCC 404 where the Court was considering the
question whether the Secretary of a State Legislative Assembly can be held to
be qualified to be appointed as Returning Officer for election to Rajya Sabha
and it is in that context, Articles 102(1)(a), 191(1)(a) and several other
relevant provisions came up for consideration before the Court. The word
Government in Article 102(1)(a) and Article 191(1)(a) of the Constitution was
construed by the Court and it was held that the expression an officer of
Government in Section 21 of the Representation of the People Act, 1951, should
be interpreted liberally so as to include within its scope the Legislature, the
Executive and the Judiciary and the Court further observed that an officer of
the State Legislature, though belongs under Article 187 to the staff of the
State Legislature, is still an officer of Government in the sense the
expression Government is used in Articles 102(1)(a) and 191(1)(a). In the
aforesaid case, this Court had observed that all the three organs, the
Legislature, the Executive and the Judiciary are concerned with the governance
of the country and in this sense, all the three organs together constitute the
Government at their respective level. The Court had also noticed the fact that
the Comptroller and Auditor-General of India, though is assigned an independent
status, is an officer under the Union Government, as was held in the case of Gurugobinda
Basu vs. Sankari Prasad Ghosal, 1964(4) SCR 311. The Court further observed
that the Comptroller and Auditor-General of India and the Judges of the Supreme
Court and of a High Court are not eligible to contest elections to Parliament
and the State Legislatures in view of Article 102(1)(a) and Article 191(1)(a)
of the Constitution, as the case may be, because they are serving in connection
with the affairs of the Union [see Article 360(4)(b) of the Constitution] and are,
therefore, holding offices of profit under the Central Government. The
expression Government used in proviso to Rule 3(b) has, therefore, to be
construed in the wider sense and the services rendered by a Judge or Chief
Justice of a High Court must be held to be as a service in connection with the
affairs of the Union and as such the proviso to Rule 3(b) of the Rules would
govern the case of such retired Judge or Chief Justice in determining the
salary, which he would be entitled to, on being appointed as a Member of the
Human Rights Commission. The question can also be considered from yet another
angle. Under the provisions of the Human Rights Commission Act, 1993, the
Chairperson would be one who has been a Chief Justice of the Supreme Court and
a Member could be appointed who is or has been a Judge of the Supreme Court and
another Member, who is or has been the Chief Justice of the High Court. In the
Rules, when the Rule Making Authority provided for a salary to be paid to a
member under Rule 3(b), a proviso was inserted for deduction from such salary,
the amount of pension other than disability or wound pension, which such Member
was in receipt of, in respect of any previous salaries. The intention of the
Rule making authority is crystal clear that any pension which a Member has been
in receipt of, for the services rendered earlier, has to be deducted from the
salary, which under the Rules has been indicated to be equal to the salary of
the Judge of the Supreme Court. The contention of the petitioner to the effect
that the previous service as Chief Justice of a High Court not being one under
the Government of the Union, must be held to be not covered by the proviso,
cannot be accepted, reading the rules as a whole. We have, therefore, no
hesitation in coming to the conclusion that the proviso to Rule 3(b) would
apply to the retired Chief Justice of India or the retired Chief Justice of a
High Court and the pension which they are in receipt of, apart from the
disability or wound pension, has to be deducted from their salary, which they
are entitled to under the Rules. The contention of Mr. Iyer, appearing for the
petitioner, on this score, therefore cannot be sustained.
Coming
to the question whether a Member of the Human Rights Commission, is entitled to
gratuity for the period he serves the Commission, it appears that there has
been no such provision in the Rules, entitling a Member to claim gratuity. Rule
10 of the Rules, however stipulates that the conditions of service of the
Chairperson and the Members for which no express provision is made in the
Rules, shall be determined by the rules and orders applicable to a Secretary to
the Government of India belonging to Indian Administrative Service. So far as
the service conditions of a Secretary to the Government of India belonging to
the Indian Administrative Service is concerned, the same is governed by a set
of Rules framed under Section 3(1) of the All India Services Act, 1951 called
the All India Services(Death-cum- Retirement Benefits) Rules, 1958. Under the
aforesaid Rules, retirement gratuity is granted to a Member of the Service, who
retires or is required to retire under Rule 16, as provided in Rule 17 of the
Rules. The amount of gratuity is computed under Rule 18. The enabling
provisions contained in Rules 16, 17 and 18 do not provide for payment of
gratuity for a re-employed person. The President of India, however in supersession
of all the earlier orders in relation to fixation of pay of re-employed
pensioners, promulgated an Order called the Central Civil Services (Fixation of
Pay of Re-employed Pensioners) Orders, 1986. The aforesaid order applies to all
the persons who are re-employed in Civil Services and posts in connection with
the affairs of the Union Government, after retirement on getting pension,
gratuity and/or Contributory Provident Fund benefits. Rule 14 of the aforesaid
orders, stipulates that re-employed officers shall not be eligible for any
gratuity/death/retirement gratuity, for the period of re- employment, except in
those cases covered in Rules 18 and 19 of the Central Civil Services (Pension)
Rules, 1972. The petitioners case is not covered under the aforesaid provisions
of the Central Civil Services (Pension) Rules, 1972. Therefore, the question
for consideration is whether the appointment of the petitioner as a Member of
the Human Rights Commission would tantamount to re-employment. In the absence
of any definition of the expression re- employment and applying the common
parlance theory, the conclusion is irresistible that the said appointment would
tantamount to re-employment and, therefore, for such period of service as
Member of the Human Rights Commission, no gratuity would be payable.
The
only other question that remains for consideration is the claim of encashment
of leave. Under the Rules, Rule 4 entitles a person, on appointment as
Chairperson or as a Member for earned leave and half pay leave on medical
certificate and extraordinary leave. Rule 4(2) is relevant for our purpose
which unequivocally indicates that on the expiry of the term of office in the
National Commission, the Chairperson and Members shall be entitled to receive
cash equivalent of leave salary in respect of earned leave, standing to his
credit subject to the condition that the maximum of leave encashed under this
sub-rule or at the time of retirement from previous service, as the case may be
or taken together shall not in any case exceed 240 days. The petitioner did encash
the cash equivalent of leave for the period of 240 days, when he retired as the
Chief Justice of Kerala High Court. In accordance with Rule 4 of the Rules, he
had earned, earned leave for 68 days. But he has not been allowed to encash the
same, since he had already encashed the maximum period of 240 days under
sub-rule (2) of Rule 4, which sub-rule provides for encashment of leave.
The
petitioners contention however is that the expression previous service in
sub-rule (2) must refer to the preceding service, which the petitioner had
served as Chairperson of the Central Administrative Tribunal and since he had
earned only 161 days of earned leave as Chairman of the Central Administrative
Tribunal, the maximum period provided under sub-rule (2) will not apply to his
case, even though he has encashed the leave for 240 days, as the Chief Justice
of Kerala High Court. On a bare reading of the aforesaid provisions contained
in sub-rule (2) of Rule 4, we are unable to accept this contention inasmuch as
what is intended in the aforesaid rule is that no-one would be allowed to encash
leave for a period more than 240 days and since the petitioner did encash the
earned leave for 240 days as the Chief Justice of Kerala High Court, he would
not be entitled to further encashment for the period of 68 days of earned
leave, which he might have earned as a Member of the Human Rights Commission
under Rule 4(1) of the Rules.
The
petitioner, therefore, has rightly not been allowed to encash his leave in
question. In view of our conclusions on the three items of claim made by the
petitioner, we do not see any violation of fundamental rights of the petitioner
and as such this petition under Article 32 is dismissed.
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