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2009 DIGILAW 3 (KAR)

State Of Karnataka v. Mohammed Shafi

2009-01-05

P.D.DINAKARAN, V.G.SABHAHIT

body2009
Judgment :- P.D. Dinakaran, C.J. The appeal is directed against the order dated 15th April, 2008 made in Writ Petition No. 1116 of 2007 where the respondent-writ petitioner prayed to direct the respondent to fix the salary payable to the petitioner as Member of the Karnataka State Minorities Commission for the period from 23-1-2004 to 22-1-2007 in the manner analogous to the fixation of salary to the Members of the Karnataka State Commission for Backward Classes under the following facts and circumstances of the case. 1.2 The respondent/writ petitioner was nominated as a Member of the Karnataka State Minorities Commission (for short hereinafter referred to as “Commission”) under the provisions of the Karnataka State Minorities Commission Act, 1994 (for short hereinafter referred to as `the Act') by notification dated 23-1-2004. 1.3 Section 4 of the Act deals with the term of office and conditions of service of Chairman and Members of the Commission. 1.4 Sub-sections (3) and (4) of Section 4 of the Act reads as hereunder: “(3) The Chairman and other members shall receive such salary and allowance, as may be prescribed. (4) The salary and allowances payable to the Chairman and other members shall be defrayed out of the grants referred to in sub-section (2) of Section 12”. 1.5 Section 17 deals with the rule making power of the Government in the matters referred to thereunder. 1.6 Section 17(2)(b) empowers the Government to frame rules for the salary, allowance and other emoluments payable to the Chairman and Members of the Commission and other conditions of their service. 1.7 Accordingly, the Government framed the Rules by notification dated 10th October, 2000 and the same was published in the Gazette as Karnataka State Minorities Commission Rules, 2000. 1.8 Rule 4 of the Rules deals with allowances admissible to the members and reads as hereunder: "4. Allowances admissible to the members.—The members of the Commission, who attends the meetings of the Commission are entitled to draw Traveling Allowance and Dearness Allowance and sitting fee at rates payable to a Group `A' officer of the State Government”. 1.9 We have already seen that the Chairman and Members of the Commission shall receive such salary and allowances as may be prescribed. 1.9 We have already seen that the Chairman and Members of the Commission shall receive such salary and allowances as may be prescribed. But unfortunately, the rule does not prescribe specific provision for salary but had provided only for the allowances to be paid to the Members of the Commission even though it provides for pay and allowances payable to the Chairman as hereunder: "3. Pay and allowances of the Chairman.—The Chairman is entitled to enjoy the status of a Minister. Except the gunman and the red light being used on the vehicle, he is entitled to the pay, allowances and all the privileges admissible to a Minister as provided in the Karnataka Ministers Salaries and Allowances Act, 1956 (Karnataka Act No. 5 of 1957) Rules, Notifications and Orders issued from time to time thereunder". 1.10 It is under such facts and circumstances of the case, despite the fact that the respondent-petitioner had received the allowances prescribed under Rule 4 referred to above, seeks direction as prayed for. 1.11 The writ petition was resisted by the State on the grounds: [i] the petitioner having received the allowances as per Rule 4 is not now entitled to claim for salary; [ii] he is not entitled for the salary as he had already received allowances instead of salary; and [iii] in any event, when the rules are silent as to the salary to be paid, the respondent-petitioner cannot stake his claim for his term unless the statute provides for the same. 1.12 The learned Single Judge by order dated 15th April, 2008 rejected the contention of the State and allowed the writ petition directing the first appellant herein to fix the salary payable to the petitioner as a Member of the Karnataka State Minorities Commission for the period from 23-1-2004 to 22-1-2007 in the manner and analogous to the fixation of salary to the Members of the Karnataka State Minorities Commission for Backward Classes as per notification at Annexure-E to the writ petition, bearing No. SWE 147 BCA 96, dated 3-6-1999 issued by the Government of Karnataka and make payment thereof to the petitioner within a period of six weeks if not earlier, from the date of receipt of a certified copy of the order. 1.13 Hence the present appeal by the State. 2. 1.13 Hence the present appeal by the State. 2. Heard Sri B. Veerappa, learned Government Advocate appearing for the State and Sri A.N. Jayaram, learned Senior Counsel appearing for the respondent-writ petitioner and both the learned Government Advocate and Senior Counsel reiterated the submissions that were made before the learned Single Judge and we have given our careful consideration to the same. 3.1 It is not in dispute that the respondent-writ petitioner was nominated under the provisions of the Act namely, Section 3 of the Act by notification dated 23-1-2004 and the Act provides for payment of salary and allowances. In our considered opinion, therefore, merely because the Rules do not provide for the payment of salary for the members even though it provides for payment of salary and allowances to the Chairman alone and for the allowances to the members, there cannot be any estoppel to the rights conferred under Section 4(3) of the Act for the Members of the Commission also to claim payment of salary. In that view of the matter, we are of the considered opinion that the State is under an obligation to frame necessary rules for payment of salary of the respondent-writ petitioner also for having nominated him as the member of the Commission and if the respondent-writ petitioner had received any allowances in excess to the allowances allowable under the Rules, the State is at liberty to pass appropriate orders in that regard. The writ appeal is ordered accordingly. 3.2 Since considerable time has already lapsed in settling the salary payable to the respondent-writ petitioner, we direct the first appellant to comply with the above direction at the earliest in any event within 90 days from the date of receipt of a copy of this order.