S. NARAYANA v. STATE OF KARNATAKA — 1986 DIGILAW 60 (KAR)

RAMA JOIS, J. ( 1 ) THE appellant has presented this appeal against the order of the Learned Single Judge dismissing the Writ Petition in which he had prayed for the issue of a Writ of Mandamus directing the respondent to pay the special pay, gratuity and also permitting him to encash the leave due to him as on the date on which his appointment as member of the Sales Tax Tribunal was terminated. ( 2 ) THE facts of the case in brief are as follows: (i) The appellant was appointed as an Accounts member of the Sales Tax Appellate Tribunal with effect from 2-3-1972 for a period of five years. Before his tenure of 5 years came to an end the Karnataka Appellate Tribunal Act came into force with effect from 1-1-1976. Under the provisions of the said Act the Sales Tax appellate Tribunal was abolished. As a result the term of office of the appellant also stood terminated. By that time he had put in about 3 years and 9 months of service. (ii) The appellant presented the Writ Petition inter alia praying for a direction to the Government to pay him (1) gratuity in terms of Rule 64 of the Karnataka Sales Tax Rules (2) salary equivalent to the period of leave to his credit as on the date on which his tenure of office came to an end and (3) special pay of Rs. 100/- per month from the date of his appointment till the date of termination of his tenure. (iii) As far as, gratuity is concerned the petitioner claimed four months' salary on the ground that he had put in three years and 9 month's service. But according to Sub-rule (6) of Rule 64 of the rules he was entitled to gratuity at the rate of one month's salary for every completed year of service and therefore, he was only entitled to three months salary for the reason, he had completed only three years of service. In fact the Government had passed orders for paying the said amount and therefore the Learned Single Judge did not consider the said prayer. The said prayer does not survive. (iv) The prayer of the appellant for encashment of leave was rejected on the ground that there was no provision under the Rules and regarding his claim for special pay of Rs. The said prayer does not survive. (iv) The prayer of the appellant for encashment of leave was rejected on the ground that there was no provision under the Rules and regarding his claim for special pay of Rs. 100/- per month the Learned Judge held that the Government order on which the appellant relied was applicable only to Government servants in regular service and not to the appellant whose appointment was a tenure appointment. (v) Aggrieved by the said order the appellant has, presented this appeal. ( 3 ) THE provision of the Karnataka Sales Tax Rules which regulated the conditions of service of non-official members is Rule 64. It reads : "64. THE TERMS AND CONDITIONS OF SERVICE OF NON-OFFICIAL MEMBER : l (a) the term of office of the non-official member of the Tribunal shall be (five years ). Provided that the member may after giving three months' notice in writing to the Government resign his office : provided further that the State Government may, if it thinks fit, terminate the appointment after giving him three months' notice in writing: (b) The Government may, by notification in the official gazette extend the term of office of the non-official member by such period as may be specified in such notification. (2) The pay of the non-official member shall be (one thousand five hundred rupees) per mensum. (3) The non-official member shall be entitled while touring on duty connected with his office to travelling, daily and other allowances at the rates for the time being applicable to a Class 1 officer of the State Civil Services drawing a (pay) of (one thousand five hundred rupees) per mensum. (4) The non-official member shall be entitled to earned leave in accordance with the Rules in part III of the Karnataka Civil Services Rules, and for the purpose of the said Rules he shall be deemed to be an Officer not in permanent employment. He may avail himself of the earned leave during the term of his office, but the Government may permit to avail himself of the earned leave not utilised during the term of his office as terminal leave on the expiry of his term of office. He may avail himself of the earned leave during the term of his office, but the Government may permit to avail himself of the earned leave not utilised during the term of his office as terminal leave on the expiry of his term of office. (5) The non-official member shall not during the term of his office, undertake the work of auditing of accounts of any person, institution, firm or body of persons without the previous sanction of the State Government, and such sanction shall not be given except when the State government is satisfied that such work will not prejudice the official duties of the member and the person, institution, firm or body of persons concerned is not and is not likely to be, liable to sales tax, agricultural income-tax or entertainment tax. (6) The non-official member shall be eligible for gratuity equivalent to one months' pay for each completed year of service including interruption or interruptions, if any, the total duration of which does not exceed 180 days but shall not be eligible for any pension or other remuneration. " A reading of different Clauses of the Rules indicates that as far as conditions of service of non-official members are concerned it is a complete Code and whatever a non-official member is entitled to get has to be decided with reference to the various Clauses of the Rule 64 only. ( 4 ) ACCORDING to Sub-Rule (2) of Rule 64 a non-official member is given a consolidated salary of rs. 1500/- per month. Therefore, the question of payment of any other allowance to a non-official member does not arise. Unless the rule was amended and provision was made for payment of special allowance the appellant was not entitled to get the special allowance. ( 5 ) LEARNED Counsel for the appellant relied on Government Order dated 19-2-1970 Ex. G in which a special pay of Rs. 100/- was sanctioned to members of the Appellate Tribunals. He submitted that special pay granted to members of the Appellate Tribunals in the said order was also applicable to the appellant as be was also a member of the Sales Tax Appellate Tribunal. He also relied on a Government Order dated 27-4-1977 (Ex. L) under which the Special pay of Rs. He submitted that special pay granted to members of the Appellate Tribunals in the said order was also applicable to the appellant as be was also a member of the Sales Tax Appellate Tribunal. He also relied on a Government Order dated 27-4-1977 (Ex. L) under which the Special pay of Rs. 100/- was sanctioned to one R. B. Kuragund, a non-offical member of the Karnataka co-operative Appellate Tribunal which was one of the other statutory tribunals functioning in the State. This claim was negatived by the Learned Judge, on the ground that the Government order was applicable to only members in the regular service and not to non-official members. As regards grant of special pay to Kuragund the stand taken in the statement of objection was that the payment of special allowances to him was irregular and further it was not in respect of a member of Sales Tax Appellate Tribunal and therefore the appellant cannot claim to be similarly situated. ( 6 ) IN our view the salary payable to a non-official member is regulated by Rule 64 of the Rules and therefore a non official member cannot claim any salary or allowance more than what is payable to him under Sub-rule (2) of Rule 64. The Government Order on which the Learned counsel rely is an order made by the State Government in exercise of its executive power under article 162 of the Constitution. Even if it has the status of a rule made by the Governor under proviso to Article 409 of the Constitution, still the said Rule cannot override the Sub-rule (2) of rule 64 for the reason it is made under an act of legislature and therefore the rule framed under article 409 has to yield to the rule framed under an Act of legislature. Further Rule 64 is a special provision applicable to the non-official members of the Sales Tax Appellate Tribunal. Therefore, any other general provision applicable to other members of the Tribunal, by necessary implications stands excluded. Therefore, we find no substance in the claim of the appellant regarding special pay. Further Rule 64 is a special provision applicable to the non-official members of the Sales Tax Appellate Tribunal. Therefore, any other general provision applicable to other members of the Tribunal, by necessary implications stands excluded. Therefore, we find no substance in the claim of the appellant regarding special pay. ( 7 ) AS far as the claim for leave salary is concerned, Sub-rule (4) of Rule 64 expressly provides that the Government may grant the leave to the credit of a non-official member on the date on which his tenure would come to an end after such date, as 'terminal leave'. This rule is intended to give the benefit of salary for the period equivalent to the period of leave, standing to the credit of a non-official member on the date on which his tenure comes to an end so that the benefit of earned leave by the member is not lost to him. ( 8 ) IN the present case, though the appellant was appointed as a non-official member for a period of five years, his appointment stood terminated with effect from 1-1-1976 consequent on the abolition of the Sales Tax Tribunal under the provisions of the Karnataka Sales Tax Appellate tribunal Act. As the appellant came to know that, the Tribunal would be abolished with effect from 1-1-1976 when the Karnataka Appellate Tribunal Ordinance was promulgated on 8-12-1975 he made an application on 22-12-1975 (Annexure-E) in which he requested the government to grant earned leave for 111 days from 1-1-1976 to 21-4-1976 (b. d. . ). The application of the appellant was rejected as per communication dated 1-1-1976 addressed by the secretary to Government, Finance Department to the appellant. The relevant portion of the letter reads thus: "with reference to your leave application and letter seeking clarification. I am directed to state that consequent to on promulgation of an Ordinance constituting a combined Karnataka appellate Tribunal to come into effect from 1-1-1976, the term of office of all the members comes to an end due to abolition of the posts. Consequently the agreement also conies to an end on account of frustration. I am directed to state that consequent to on promulgation of an Ordinance constituting a combined Karnataka appellate Tribunal to come into effect from 1-1-1976, the term of office of all the members comes to an end due to abolition of the posts. Consequently the agreement also conies to an end on account of frustration. I am to add that as the Karnataka Sales Tax Appellate Tribunal itself ceases to exist and as the post of 'accounts Member' is abolished with effect from 31-12-1975, the question of granting terminal leave under Rule 64 of the Karnataka Sales Tax Rules does not arise. " In the above communication the reason given for rejecting the prayer of the appellant for grant of terminal leave was that since the post held by the appellant was abolished with effect from 31-12-75, the gram, of terminal leave did not arise. In our opinion the reason given is patently untenable. Sub-rule (4) of Rub 64 authorises the Government to sanction leave standing to the credit of a non-official member on the date on which his term of office comes to an end as terminal leave which moans the leave would extend beyond the date of termination of his tenure. Whether the tenure of office comes to an end by abolition of post or by the expiry of the tenure for which he was appointed or by the giving of three months notice as provided under the Rule, it makes no difference. The whole object of the Rule is to ensure the payment to an outgoing non-official member an amount equal to the salary for the period of leave to his credit. For the purpose of granting terminal leave there is no requirement that the post or vacancy must continue to exist. To illustrate : Rule 110 of the Karnataka Civil Service Rules authorises the grant of leave standing to the credit of a civil servant, which he was not permitted to avail before the date of superannuation, after the date of superannuation. To illustrate : Rule 110 of the Karnataka Civil Service Rules authorises the grant of leave standing to the credit of a civil servant, which he was not permitted to avail before the date of superannuation, after the date of superannuation. If in the case of a Civil Servant the vacancy caused by his retirement were to be filled up on substantive basis with effect from the date of retirement itself by appointing another person substantively or the post is abolished, the request for grant of refused leave extending beyond the date of retirement cannot be rejected on the ground that no vacancy or post existed. The same anology applies to the case of the appellant. ( 9 ) SRI Chandrasekharaiah, appearing for the State submitted that the benefit of terminal leave could be granted only to a non-official member whose full term of office comes to an end. What sub-rule (4) of Rule 64 provides is that the leave standing to the credit of non-official member can be granted even after the date on which his term of office comes to an end. Rule does not say that the terminal leave should be granted only to the person who has completed his full period for which he was appointed. For instance if the tenure of a non-official member were to be terminted by the State Government by giving three months notice as provided under Second proviso to Rule 1 after he had put in about four years of service and it so happens that the member had-not utilised all or part of the leave to his credit, it cannot be said that he is not entitled to the sanction of terminal leave as it could be granted after the data with effect from which termination of his tenure takes place. Therefore, we are of the view that the appellant is entitled to a Writ of Mandamus directing the Government to reconsider the said request. ( 10 ) BEFORE concluding it is necessary to state that even after 1-1-1976 the appellant has drawn the salary, as the termination of tenure of the appellant consequent on the abolition of post was not brought to the notice of the Accountant General. ( 10 ) BEFORE concluding it is necessary to state that even after 1-1-1976 the appellant has drawn the salary, as the termination of tenure of the appellant consequent on the abolition of post was not brought to the notice of the Accountant General. We do not express any opinion either on the question as to whether the drawing of salary by the appellant until the expiry of 5 years for which appellant was appointed was valid or not, or on the question whether the Government has the power to withhold the amount of gratuity or leave salary, if granted pursuant to this order, on the ground that the appellant has drawn salary to which he was not entitled to. ( 11 ) IN the result, we make the following order: (i) The writ appeal is partly allowed. (ii) The order of the Government dated 1. 1. 1976 by which the application of the appellant for grant of terminal leave was rejected is set aside. (iii) A direction shall issue to the State Government to reconsider the application of the the appellant dated 22-12-1975 for grant of 111 days earned leave as terminal leave in the light of this order and to sanction the consequential salary, if the leave to his credit is granted. (iv) The appeal in other respects stands dismissed.