1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: WP(C) 3845/2014 Dr. (Capt.) Suchitra Kakoty, W/o Sri Lekhoke Kakoty, R/o House No. 18, Bye Lane No.1, Harbala Road, Ulubari, Guwahati-781007, Assam. -Versus-.. Petitioner. 1. Commissioner & Secretary to the Government of Assam, Social Welfare Department, Dispur, Guwahati-781006. 2. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Social Welfare Department, Dispur, Guwahati-781006. 3. The Accountant General (A&E) Beltola, Madaimgaon, Guwahati- 781029, District-Kamrup (Metro), Assam. 4. The Director, Social Welfare, Assam, Bal Bhawan, Uzanbazar, Guwahati-781001. 5. The Chairperson, Assam State Commission for Protection of Child Rights, Six Mile, Jaya Nagar, Guwahati-22, Assam. Page 1 of 11
2 6. The Member Secretary, Assam State Commission for Protection of Child Rights, Six Mile, Jaya Nagar, Guwahati-22, Assam.... Respondents. BEFORE HON BLE MR. JUSTICE NELSON SAILO For the Writ Petitioner : Mr. R. Dubey, Advocate For the Respondents : Mr. A. Chakraborty, Advocate Date of Hearing : 16. 12. 2017 Date of delivery of Judgment & Order : 16. 12. 2017 JUDGMENT AND ORDER (ORAL) Heard Mr. R. Dubey, the learned counsel for the petitioner and Mr. A. Chakraborty, the learned Government Advocate for the respondents. Mr. A.K. Boro appears on behalf of Mr. G. Baishya, the learned Standing Counsel for the Accountant General of Assam. 2. At the outset, Mr. A. Chakraborty submits that the matter is handled by Ms. M. Bhattacharjee, the learned Additional Senior Page 2 of 11
3 Government Advocate who is out of station and therefore, the matter may be adjourned. However, considering the issue and the grievance raised by the writ petitioner, I am of the considered view that the writ petition be taken up for disposal in the manner hereafter provided. 3. Brief facts for disposal of the writ petition may be noted at the outset. The petitioner was appointed as Chairperson of the Assam State Commission for Protection of Child Rights (the Commission) under the provision of Section 17(1) and 18 of the Commission for Protection of Child Rights Act, 2005 (Act of 2005) vide Notification issued by the Commissioner & Secretary to the Government of Assam, Social Welfare Department under Memo No.SWD.79/93/Pt.V/136-A dated 04.03.2010 (Annexure-1). By the same Notification other Members of the Commission were also appointed. The appointment was for a period of 3 (three) years from the date of issue of the Notification or in case of the petitioner, upto the age of 65 years whichever was earlier. It may also be noticed that before such appointment, the petitioner was working as Head of Department of Education in Pragjyotish College, Guwahati wherein she served for about 28 (twenty eight) years. Page 3 of 11
4 4. The petitioner having attained the age 65 (sixty five) years on 07.08.2012 was released from the post of Chairperson of the Commission vide notification dated 04.08.2012. While serving as the Chairperson of the Commission, the petitioner did not received any remuneration or salary against the post except for allowance towards Conveyance and Travelling Allowances (T.A.) The petitioner therefore submitted her representation before the Commissioner & Secretary to the Government of Assam, Social Welfare Department on 21.06.2013 for determination and release of her salary for the period she served as the Chairperson of the Commission. However as the representation despite subsequent reminders having not been considered, the petitioner initiated the present writ petition. 5. The respondents through the affidavit-in-opposition of the respondent No.1 have taken the stand that the petitioner received an amount of Rs.5,25,934/- during her tenure as Chairperson of the Commission towards hiring of vehicle, POL and T.A. However since the quantum of salary/honorarium was not fixed for payment to the Members and the Chairperson of the Commission and in the absence of any Rule to that effect, the salary/honorarium of the petitioner could not be determined and paid to her. The respondents have also taken the stand that non- Page 4 of 11
5 fixation of the salary and honorarium was in fact to the knowledge of the writ petitioner during her tenure and therefore, she could have moved the State Government with proposal for resolving the matter. Therefore, at this stage, without there being any condition towards salary/honorarium stipulated and in the absence of Rules in this regard, no payment could be made to the petitioner. 6. Mr. R. Dubey, the learned counsel appearing for the petitioner by referring to Annexure-A of the rejoinder affidavit filed by the writ petitioner submits that the State Government has notified the Assam State Commission for protection of Child Rights Rules, 2015 (Rules of 2015) vide Notification dated 16.02.2016. The same came into force with effect from date of publication in the Assam Gazette i.e., 04.06.2016. He submits that Rule 9 of the Rules of 2015 provides for the salary and the allowance entitled to the Chairperson and Members of the Commission. Therefore, the said provision can be applied to the case of the petitioner by the State respondents since it is their specific stand that absence of Rules was one of the reason why salary/honorarium could not be paid to the petitioner. Mr. R. Dubey submits that although Rules may have come into force w.e.f 04.03.2016 but nevertheless, the same can be the basis for calculating the Page 5 of 11
6 salary/honorarium of the writ petition. By referring to Annexure-B of the Rejoinder Affidavit filed by the petitioner, he further submits that the petitioner in her previous appointment as Associated Professor in the Department of Education in Pragjyotish College, Guwahati, she was receiving a gross salary to the tune of Rs.55,399/- which was inclusive of the other breakups/components of her salary. The learned counsel by further referring to Section 20 of the Act of 2005 submits that the salary and allowances payable to the petitioner as Chairperson of the Commission cannot be varied to her disadvantage on being appointed as such. Therefore, the petitioner having received her salary in her previous appointment as aforementioned, she is entitled to a monthly remuneration at par to be determined by the State respondents in terms of Section 20 of the Act of 2005. 7. I have heard and considered the submissions advanced by the learned counsel for the petitioner and perused the materials available on record including the affidavit-in-opposition filed by the respondents. 8. Although in the appointment of the petitioner vide Notification dated 04.03.2010 under section 17(1) and 18 of the Act of 2005, there is Page 6 of 11
7 no indication above the remuneration to be received by the Chairperson and the Members appointed under the Commission but nevertheless, Section 20 of the Act clearly provides that the appointed Chairperson or Members of the Commission cannot be varied to their disadvantage after their appointment in the Commission. Section 20 of the Act 2005 may be reproduced for ready perusal:- Sec 20: The salaries and allowances payable to, and other terms and conditions of service of, the Chairperson and Members shall be such as may be prescribed by the State Government: Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member, as the case may be, shall be varied to his disadvantage after his appointment. 9. From a perusal of Section 20 of the Act 2005, it can be seen that the salaries and the allowances payable and other terms and conditions of the service of the Chairperson and Members of the Commission is to be determined by the State Government and that such benefit cannot be varied to the disadvantage of the appointees upon being appointed to the post(s). The amount received by the petitioner towards hiring of vehicle Page 7 of 11
8 and POL including I.A. cannot in any way be constituted to be the salary/honorarium of the petitioner. It also may be noticed that the Rules of 2006 subsequently framed by the State respondents was effective only from 04.03.2016. As submitted at the Bar, after the petitioner demitted the post upon attaining the age of superannuation, subsequent incumbents have been appointed by the State Government who are said to be receiving salary and allowance as determined by the Rules of 2015. It would therefore be highly unjustified if the present incumbent to the post in question receive salary/honorarium while the petitioner is denied merely because her salary/honorarium was not determined during her tenure for want of Rules. Importantly it may be noticed that it is not a case for claim of revised salary/honorarium but a case of none receipt of any salary/honorarium. 10. In the case of Robert Hrangdawla Vs. State of Mizoram & Ors. WP(C) No.60/2013 decided by this Court on 08.11.2013, the question that came up for consideration was as to whether the petitioner who demitted the Office of State Chief Information Commissioner on 01.02.2010 would be entitled to pensionary benefits in terms of the State Chief Information Commissioner, Mizoram (Terms & Conditions of Service) Rules, 2012 (Rules Page 8 of 11
9 of 2012) which came into force only on 01.02.2013. Upon appreciating the provisions under which the petitioner was appointed i.e., the Right to Information Act, 2005 and the provisions of the Election Commissioner (Conditions of Service of Election Commissioners & Transaction of Business) Act, 1991 relating to the posts of Chief Election and Election Commissioners, Court was of the opinion that the terms governing the service conditions of both the posts were comparable in view of the fact that Section 16(5) of the Right to Information Act, 2005 provides that the salary and allowances payable to and other terms and conditions of the State Chief Information Commissioner shall be the same as an Election Commissioner. Therefore, as the service rendered in the post of Chief Election Commission was to be reckoned as continuous approved service counting for pension in service as was also provided for in the Rules of 2012, the writ petitioner would be entitled to similar benefit. In short, it was held that the service of the petitioner as State Chief Information Commissioner will be reckoned as continuous approved service for counting his pension irrespective of the fact that the Rules of 2012 came into force only after his retirement. Page 9 of 11
10 11. In the present case, let alone payment of salary/honorarium to the petitioner, the amount payable has not even been determined by the State respondents. Having regard to the provisions of Section 20 of the Act of 2005, the respondent authorities cannot simply remain oblivious of the situation only for want of Rules. It would therefore be only incumbent on their part to determine pay and allowances that would be admissible to the petitioner and for which purpose, there is no reason as to why the prospects of the Rules of 2015 cannot be adopted. 12. For the above reasons and consideration of the facts and circumstances of the case, I am of the view that the petitioner s grievance is legitimate with substantive cause of action warranting relief. As such, the respondent authorities, more particularly the respondent Nos. 1, 3 and 4 are directed to undertake the exercise of determination of pay and allowances admissible to the petitioner by taking into account the pay enjoyed by the petitioner prior to her appointment as Chairperson of the Commission as has also been provided in the Rules of 2015 as expeditiously as possible. Upon such determination, the respondent authorities shall release the due amount to the petitioner. The entire exercise as directed Page 10 of 11
11 should be completed within a period of 3 (three) months from the date of receipt of certified copy of this order. 13. With the above observations and direction, the writ petition stands allowed. Parties are directed to bear their own cost. B. DEY JUDGE Page 11 of 11