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2010 DIGILAW 1717 (RAJ)

Milap Chandra Jain v. State of Rajathan

2010-10-06

JAGDISH BHALLA, M.N.BHANDARI

body2010
JUDGMENT Hon'ble BHANDARI, J.—By this appeal, a challenge has been made to judgment dated 17.9.2002 whereby writ petition of appellant was dismissed. 2. Respondent herein preferred a writ petition to seek determination of pension as per Rule 9(3)(VII) of the Rajasthan Taxation Tribunal Rules, 1995 (hereinafter referred to as 'the Rules of 1995'). 3. The appellant was initially recruited in Rajasthan Judicial Services, promoted to Rajasthan Higher Judicial Services followed by elevation as a Judge of the Rajasthan High Court. On retirement, appellant was nominated/ appointed as Chairman, Rajasthan Taxation Tribunal. A claim of difference amount of Rs. 24,000/- per year is made on the ground that maximum pension payable to the Chief Justice is Rs. 1,80,000/- per year as per provisions of Part III of the First Schedule of the High Court Judges (Condition of Service) Act, 1954 whereas appellant is paid Rs. 1,56,000/- per annum. 4. On appointment as Chairman in Rajasthan Taxation Tribunal, appellant became entitled to seek pay at par with the Chief Justice in view of the provisions of the Rules, 1995. The Rules were subsequently amended vide notification dated 27.1.1997 making provisions for entitlement of pensionary benefits. The pay of the Chairman so as the pension is kept at par with the Chief Justice, hence, appellant is entitled for such benefit. At he time of retirement as High Court Judge, appellant started getting pension and on retirement as Chairman, Rajasthan Taxation Tribunal, he was given additional pension of Rs. 10,400/- per year. Referring to Rule 9 of the rules of 1995, it is urged that pay and allowance of the Chairman is provided at par with the Chief Justice of the High Court and so far as the pensionary benefits are concerned, it is to be governed by the provisions as are applicable to the Judges of the High Court, accordingly, appellant is entitled to receive the benefits as claimed in the writ petition. 5. Learned counsel for respondents, on the other hand, submits that petitioner retired as High Court Judge sometime in the year 1994. The pension was thereupon fixed as per the Act of 1954. After a gap of around six months, he was appointed as Chairman of the Rajasthan Taxation Tribunal. On his retirement, petitioner was paid additional special pension of Rs. 10,800/- per year. The pension was thereupon fixed as per the Act of 1954. After a gap of around six months, he was appointed as Chairman of the Rajasthan Taxation Tribunal. On his retirement, petitioner was paid additional special pension of Rs. 10,800/- per year. The petitioner's claim is basically to award pension over and above maximum ceiling provided for High Judge. As per the relevant rules, maximum pension payable to the Chief Justice was Rs. 1,80,000/- per year and for Judges, it was Rs. 1,56,000/-. In view of the revision in the pay scale pursuant to 6th Pay commission, petitioner started getting pension of Rs. 1,56,000/- per year i.e. he was taken to the maximum limit of pension as per the Act of 1954. The claim of the petitioner is that maximum pension payable to the Chief Justice should have been given to him. This is mainly on the ground that the pay of the Chairman of the Tribunal is kept at part with the Chief Justice, however, merely doing so, the Chairman cannot be reckoned as Chief Justice for getting all consequential benefits. In fact, even the special pension granted to him over and above the maximum ceiling is illegal. However same having been awarded, the respondent does not intend to withdraw the same. It is, thus, prayed that appeal may be dismissed. 6. We have considered rival submissions of the parties and scanned the matter carefully. 7. The main grievance as was raised by the petitioner appellant before the learned single Judge is in regard to non-grant of benefit of Rule 9(3)(vii) of the R.T.T. Rules, of 1995. Under the Rules, entitlement for pension is being given and to be governed by the specific Rules framed for the Judges of the High Court. As per the relevant provisions applicable to the High Court Judges, petitioner was entitled for fixation of his pension under Part-III of the appended schedule. Part-III of the appended schedule is quoted hereunder: "1. The provisions of this part apply to a Judge who has held any pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I. 2. Part-III of the appended schedule is quoted hereunder: "1. The provisions of this part apply to a Judge who has held any pensionable post under the Union or a State (but is not a member of the Indian Civil Service) and who has not elected to receive the pension payable under Part I. 2. The pension payable to such a Judge shall be- (a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension, and (b) a special additional pension of Rs. 5200/- per annum in respect of each completed year of service for pension Provided that the pension under clause (a) and the additional pension under clause (b) together shall in no case exceed Rs. 1,80,000/-per annum in the case of a Chief Justice and Rs. 1,56,000/- per annum in no case exceed Rs. 1,80,000/- per annum in the case of a Chief Justice and Rs. 1,56,000/- per annum in the case of any other Judge." 8. Perusal of the aforesaid shows that apart from fixation of pension under Clause-A, benefit of special additional pension is also given but proviso creates a ceiling for maximum pension for the Chief Justice and for a Judge. If we look into Rule 9 of the R.T.T. Rules of 1995, then it talks about the salaries and allowances of the Chairman at part with the Chief Justice. For ready reference, aforesaid rule is quoted hereunder:- "9. Salaries and Allowances payable to, and other terms and conditions of service of, the Chairman and other member of Tribunal - (1) The Chairman of the Tribunal shall receive such salary and allowances as are admissible to the Chief Justice of the Rajasthan High Court. (2) The Judicial member and Technical Member shall receive such salary and allowances as are admissible to a High Court Judge in Rajasthan. (3) The Chairman and other Members of the Tribunal shall be entitled to such other facilities as may be prescribed by the State Government in this behalf. (2) The Judicial member and Technical Member shall receive such salary and allowances as are admissible to a High Court Judge in Rajasthan. (3) The Chairman and other Members of the Tribunal shall be entitled to such other facilities as may be prescribed by the State Government in this behalf. (4) The Chairman and any other Member after ceasing to hold office shall not hold any appointment in or be connected with the management or Administration of an Organization which has been the subject of any proceedings under the Act during his tenure, for a period of three years from the date on which he ceases to hold such office." 9. Perusal of the aforesaid does not show the status of the Chairman to be of Chief Justice other than for grant of salaries and allowances. Rules were thereafter amended in the month of January 1997 and substituted rule is also quoted hereunder:- NOTIFICATION GSR - 30 - In exercise of the powers conferred by Section 18 of the Rajasthan Taxation Tribunal Act, 1995 (Act No.19 of 1995), the State Government hereby makes the following amendments in the Rajasthan Taxation Tribunal Rules, 1995, namely:- AMENDMENT In the said Rules : The existing sub-rules (1), (2) and (3) of Rule 9 shall be substituted as follows :- "(1) Pay to the Chairman and member, Judicial and Technical of the Tribunal shall be equivalent to that of the Chief Justice and justice of the High Court respectively. (2) Dearness Allowance, Interim Relief and City compensatory Allowance to the Chairman and Member, Judicial & Technical of the Tribunal shall be admissible under the Rules applicable in the State of Rajasthan and the Chairman and Members Judicial and Technical of the Tribunal shall be entitled for sumptuary Allowance @ Rs. 500/- and Rs. 300/- per month respectively. (3) (I) The Chairman and Member, Judicial and Technical of the Tribunal shall be entitled for free Government accommodation equivalent to that of the Chief Justice and Justice of the High Court respectively. (II) House Rent Allowance, Electricity and Water facilities at accommodation, Travelling Allowance, Medical facilities, leave and other facilities Telephone, Magazines, Domestic facilities etc. to the Chairman Member, Judicial and Technical of the Tribunal shall be equivalent to those of the facilities admissible to the Officer's of the Indian Administrative Service in the State Government to the rank of the Secretary. (II) House Rent Allowance, Electricity and Water facilities at accommodation, Travelling Allowance, Medical facilities, leave and other facilities Telephone, Magazines, Domestic facilities etc. to the Chairman Member, Judicial and Technical of the Tribunal shall be equivalent to those of the facilities admissible to the Officer's of the Indian Administrative Service in the State Government to the rank of the Secretary. (III) The Chairman and Member, Judicial and Technical of the Tribunal shall be allowed rent free furnitures and fixtures in the accommodation upto the limit of Rs. seventy thousand and Rs. fifty thousand respectively. (IV) Vehicle Facilities :- The Chairman and Member Judicial and Technical of the Tribunal shall be allowed consumption of petrol in the government vehicle upto the limit of 75 liters per month. (V) L.T.C. :- Leave Travel Concession facility to the Chairman Member Judicial & Technical of the Tribunal shall be allowed only once in a year. (VI) Summer and winter vacation :- No summer and winter vacations shall be admissible to the Chairman, Member Judicial and Technical of the Tribunal. (VII) Pension : Pensionary Benefits to the Chairman and Member Judicial & Technical of the Tribunal shall be payable in accordance to the specific Rules being framed, in the case of the Judges of the High Court." 10. Perusal of the amended rule also shows that so far as sub-rule (1) is concerned, it provides pay of the Chairman equivalent to the Chief Justice of the High Court. However, other benefits like D.A., house rent allowance, vehicle facility etc. are to be governed in the manner it has been indicated including the benefit of LTC. As per Clause (V) of the sub-rule (3) of Rule 9, Chairman is allowed benefit of LTC only once a year whereas High Court Judge or Chief Justice is having facility of LTC twice in a year. Clause (VI) of sub-rule (3) provides no summer and winter vacations whereas such vacations are provided to the Judge of the High Court and Chief Justice. Clause (VII) of sub-rule (3) provides for pension. Accordingly to the aforesaid sub-rules, pensionary benefit of the Chairman is to be governed by the specific Rule framed for the Judge of the High Court, however, this Rule does not provide that Chairman would be entitled for pensionary benefit equivalent to the Chief Justice. 11. In the light of the aforesaid, the mater is required to be viewed. Accordingly to the aforesaid sub-rules, pensionary benefit of the Chairman is to be governed by the specific Rule framed for the Judge of the High Court, however, this Rule does not provide that Chairman would be entitled for pensionary benefit equivalent to the Chief Justice. 11. In the light of the aforesaid, the mater is required to be viewed. It is not in dispute that the petitioner started getting pension of Rs. 1,56,000/- per annum, which is maximum pension payable to a High Court Judge. Now, the claim is that as per Part-III (a) of the Schedule of the act of 1954, petitioner's pension should have been revised and to be granted beyond the maximum ceiling of Rs.1,56,000/- for a Judge as maximum ceiling for a Chief Justice is Rs. 1,80,000/-. A claim of difference amount of Rs. 24,000/- has been made accordingly. Some and substance of the aforesaid is to treat the petitioner as Chief Justice for all the purposes including for grant of pensionary benefits. the question comes as to whether petitioner gets the status of the Chief Justice under R.T.T. Rules of 1995? We have already quoted Rule 9 in that regard. Rule 9(1) provides grant of pay to the Chairman equivalent to the Chief Justice, which has been misconstrued by the petitioner, treat him to be Chief Justice for all purposes. If the intention of the rules framers would have been that, then there was no reason to provide different dearness allowance, house rent allowance and other benefit, which are not equivalent to the Chief Justice, this includes even the LTC and benefit of summer and winter vacations. Hence, framers of rules provided a specific rule where they thought it proper to provide a particular benefit to the Chairman equivalent to the Chief Justice of the High Court. So far as Pension Rules are concerned, it is not provided that the Chairman would get the pension at the par with the Chief Justice of the High Court. It is, however, given that the Chairman would be entitled for the pensionary benefit as is applicable to the High Court judges but merely for that reason it cannot mean that the petitioner be treated as Chief Justice for all purposes. Equivalence of pay with the Chief Justice cannot be mixed up with grant of other benefits including the pension. It is, however, given that the Chairman would be entitled for the pensionary benefit as is applicable to the High Court judges but merely for that reason it cannot mean that the petitioner be treated as Chief Justice for all purposes. Equivalence of pay with the Chief Justice cannot be mixed up with grant of other benefits including the pension. It is not a case where the Chairman has been given status of the Chief Justice for all purposes. Hence, even if petitioner started getting pay equivalent to the Chief Justice, for grant of benefit of pension, maximum limit cannot be made admissible to the petitioner equivalent to the Chief Justice in absence of any specific provision to that effect, more specifically for the purpose of maximum ceiling of pension. To clarify the aforesaid, any Judge of the High Court appointed as a Chairman of Rajasthan Tax Tribunal would be entitled for pay equivalent to the Chief Justice. While calculating his pensionary benefits, aforesaid pay would be taken into consideration but for the purpose of maximum ceiling of pension, he cannot be treated as a Chief Justice In the present matter, if petitioner would not have received maximum pension, definitely benefit as provided under Part-III would have been admissible. However, the petitioner-appellant was getting maximum pension of Rs. 1,56,000/- before retirement as Chairman of the Tribunal, yet he was given special additional pension of Rs. 10,400/- exceeding the limit of Rs. 1,56,000/-, thus even the additional pension is not payable looking the maximum ceiling of Rs. 1,56,000/- provided under the Act. The respondents, however, show no inclination to withdraw such benefit. Thus, aforesaid observations are to be taken only as a clarificatory note. 12. In one of the documents at Annexure-9 it has been mentioned that the Chairman of the Tribunal is to be treated equivalent to the Chief Justice of the High Court. Such administrative letter is not based on a legal provision, hence, to be ignored. An administrative letter or decision contrary to the rules cannot be accepted as it will amount to perpetuation of the illegality. 13. In view of discussions made above, we find that petitioner-appellant is not entitled for the claim made in the writ petition so as the special appeal. The claim for grant of pension with maximum ceiling of Rs. 1,80,000/- permissible to the Chief Justice cannot be accepted. 13. In view of discussions made above, we find that petitioner-appellant is not entitled for the claim made in the writ petition so as the special appeal. The claim for grant of pension with maximum ceiling of Rs. 1,80,000/- permissible to the Chief Justice cannot be accepted. Accordingly, appeal is found to be devoid of merit, hence, dismissed. Cost of the appeal is, however, made easy.