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2007 DIGILAW 591 (ORI)

Shuvansu Kumar Mohanty v. State of Orissa

2007-07-31

A.K.SAMANTARAY, B.P.DAS

body2007
JUDGMENT B. P. DAS, J. The petitioner, a retired Judge of this Court, was appointed as the Chairman of the State Finance Commission and functioned as such from 1.12.1996 to 31.5.1998. He has filed this writ application with the following prayers : “........ to admit this Writ Application, call for the records from the Opposite Parties and after hearing the parties allow the same with cost and issue a writ/writs in the nature of mandamus/certiorari and/or any other or further writ quashing Annexure-1 and directing; (a) payment of salary @ Rs. 26,000/- per month along with sump¬tuary allowance and house rent allowance admissible to sitting Judges during the period 1.12.1996 to 31.5.1998. (b) reimbursement of office expenses incurred by the petitioner during the aforesaid period. (c) payment of penal interest on the claimed amount and exem¬plary costs for the inordinate delay, discriminatory attitude of Government to a retired High Court Judge.” So far as the prayer for payment of salary @ Rs. 26,000/- per month is concerned, the same has already been allowed to the petitioner during the pendency of the writ application as would appear from the letter of the State Government in Finance Department vide Annexure-A to the counter affidavit filed by the O.Ps. So far as it relates to payment of sumptuary allowance and house rent allowance admissible to sitting Judges during the period 1.12.1996 to 31.5.1998, the same have not been paid. 2. A counter affidavit has been filed by the O.Ps. indi¬cating therein that the petitioner has already been paid the salary @ Rs. 26,000/- per month during his incumbency as the Chairman of State Finance Commission but he is not entitled to get any further amount as claimed because the House Rent Allow¬ance, which has been given to the petitioner @ 12½%, is as per the notification in Annexure-5 series and so far as sumptuary allowance is concerned, there is no provision for payment of the same. 3. In this regard, let us have a look to Annexure-4. Annexure-4 shows that in pursuance of Article 243-I of the Con¬stitution of India read with Sections 3 and 8 of the Orissa Finance Commission (Miscellaneous Provision) Act, 1993, the Governor of Orissa constituted a Finance Commission consisting of Shri Justice S.K.Mohanty as the Chairman and four others as members. 3. In this regard, let us have a look to Annexure-4. Annexure-4 shows that in pursuance of Article 243-I of the Con¬stitution of India read with Sections 3 and 8 of the Orissa Finance Commission (Miscellaneous Provision) Act, 1993, the Governor of Orissa constituted a Finance Commission consisting of Shri Justice S.K.Mohanty as the Chairman and four others as members. The terms of appointment of the petitioner, i.e, Annexure-3, shows that the petitioner was appointed in exercise of the powers conferred by Section 11 of the Orissa Finance Commission (Miscellaneous Provisions) Act, 1993 (Orissa Act 28 of 1993). Section 4 of the aforesaid Act provides that the Chairman of the Commission shall be a serving or a retired Judge of the High Court. Section 11 of the Act 28 provides : “11. Conditions of service and salaries and allowances of members - There shall be paid to members of the Commission in¬cluding the Chairman and the Member-Secretary such fees or salaries and such allowances as the State Government may, by Notification, determine. 4. The Act is not clear as to whether the Chairman of the Commission shall be paid salary, allowances etc. as admissible to a retired High Court Judge. But subsequently the Government at its own volition fixed the salary of the present petitioner at Rs. 26,000/-. Similar situation arose in case of Justice Prafulla Kishore Mohanti and this Court while disposing of the writ application being O.J.C.No. 6207 of 1997 (Prafulla Kishore Mohanti v. State of Orissa and others), held in paragraphs-9 and 11 as follows : “9. Undisputedly the petitioner was not allowed all the allowances and benefits of a sitting High Court Judge. It appears that he was not allowed free accommodation, free electricity, house rent allowance at the rate admissible to a High Court Judge, enhanced sumptuary allowance and interim reliefs allowed to the High Court Judges pending the revision of pay and allowances. The State Government in its counter affidavit affirmed by the Deputy Secretary of Welfare Department has taken the stand that petitioner was not entitled to any benefit other than those made available under the guidelines issued by the Harijan Welfare Department. The State Government in its counter affidavit affirmed by the Deputy Secretary of Welfare Department has taken the stand that petitioner was not entitled to any benefit other than those made available under the guidelines issued by the Harijan Welfare Department. The petitioner in this writ applica¬tion has asserted with examples that the State Government has always allowed the retired High Court Judges re-employed on whole time basis to enjoy the status, pay, allowances and other bene¬fits of a sitting High Court Judge. In its counter the State Government has not denied the said assertions and has not given any instance other than that of the petitioner where a retired Judge employed on whole time basis was not allowed the same benefits of a sitting High Court Judge. The petitioner has dis¬closed the benefits made available to the Chairperson of the National Commission for Backward Classes and other Backward Class Commission in several other States like West Bengal, Kerala, Assam, and Andhra Pradesh where the Chairpersons being the retired Judge of the Supreme Court or High Court have been given the same benefits as those available to a sitting Judge of Su¬preme Court or High Court. 10. xxx xxx xxx 11. It appears from the Government Memorandum No. CWA-44-98-29996 dated November 11, 1998 that the then President of the State Commission constituted under the Consumer Protection Act, 1986 was allowed all the benefits of the sitting High Court Judge and even the revised pay and allowances from January 1, 1996. It has been also mentioned that Justice B.K.Behera (Retd.) who was the Chairman of the Liquor Tragedy Commission was allowed pay, allowances and benefits of a sitting High Court Judge including sumptuary allowance and rent free accommodation. The State Gov¬ernment has not been able to place any acceptable reason why the writ petitioner has been singled out and treated in a manner which is not only discriminatory, but also derogatory to the status of a retired High Court Judge. Reference to the guidelines is misconceived and meaningless inasmuch as the petitioner did not accept the said terms and persistently put forward his claim that he was entitled to the same benefits as that of a sitting High Court Judge. Reference to the guidelines is misconceived and meaningless inasmuch as the petitioner did not accept the said terms and persistently put forward his claim that he was entitled to the same benefits as that of a sitting High Court Judge. The guideline was just a provisional arrange¬ment till finalization of the rule and it spent its force after the pay and allowances of the High Court Judges were revised with effect from January 1, 1996. As already pointed out, it is the long standing convention and practice without any exception that whenever a retired High Court Judge is re-employed on whole time basis he is entitled to the same pay, allowances and other bene¬fits which are available to a sitting High Court Judge during the tenure of re-employment. No material has been produced before this Court that there was ever any exception to the said practice and convention. If the Central Government or the State Government chooses to appoint a retired High Court Judge on whole time basis it is obliged to give him the status, pay, allowances and other benefits available to a sitting High Court Judge at the relevant points of time, unless of course, the concerned retired Judge expressly agrees to accept any lesser benefit.” 5. The judgment of this Court in case of Prafulla Kishore Mohanti has not been challenged, as stated, and still holds good. According to the learned counsel for the O.Ps. in Annexure-5 series, the Government has taken a conscious decision that the Chairman shall be entitled to rent free furnished quarters or house rent allowance @ 12½% of the pay per month in lieu thereof. Admittedly, the petitioner was not provided a rent free quarters. But this amount is definitely less than the amount of house rent, a Judge was drawing at that point of time. 6. This being the position and relying upon the judgment of this Court in case of Prafulla Kishore Mohanti (supra), we direct that the house rent allowance so also the sumptuary allowance as admissible to a Judge of the High Court at the relevant point of time be calculated for the period the petition¬er functioned as Chairman of State Finance Commission and re¬leased in his favour within a period of three months from the date of communication of this order. 7. With the aforesaid directions, the writ petition is disposed of. 7. With the aforesaid directions, the writ petition is disposed of. Appropriate writ be issued after the petitioner files the requisites for the same. A. K. SAMANTARAY, J. I agree. Petition disposed of.