Tripura High Court
The State Of Tripura vs Justice (Retired) Alok Baran Pal on 19 September, 2022
Bench: Indrajit Mahanty, S.G. Chattopadhyay
Page - 1 of 11
HIGH COURT OF TRIPURA
AGARTALA
WA No. 143 of 2022
1. The State of Tripura,
To be represented by the Chief Secretary to the Government of Tripura, having
its office at New Secretariat Complex, Agartala, P.O. New Secretariat, PS NCC,
Sub-Division Sadar, District West Tripura, Pin 799010.
2. The Secretary Revenue,
Revenue Department, Government of Tripura, having its office at New
Secretariat Complex, Agartala, P.O. New Secretariat, PS NCC, Sub-Division Sadar,
District West Tripura, Pin 799010.
----- Appellant(s)
Versus
Justice (Retired) Alok Baran Pal,
Son of late Dinanath Pal, 293, resident of T.G. Road, Krishnanagar, P.O.
Agartala, P.S West Agartala, Sub-Division Sadar, District West Tripura, Pin
799001.
-----Respondent(s)
For Appellant(s) : Mr. D. Bhattacharya, GA.
Mr. Anujit Dey, Adv.
For Respondent(s) : None.
Date of hearing & delivery : 19th September, 2022.
of judgment
Whether fit for reporting : YES
B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
[Per S.G. Chattopadhyay], J
The present writ appeal is directed against the judgment and order dated 25.04.2022 passed by the learned Single Judge in WP(C) No.06 of 2022 allowing the claim of the petitioner.
[2] The factual context of the case is as under:
WP(C) No.06 of 2022 came to be registered on the basis of a petition filed under Article 226 of the Constitution by Sri Alok Baran Pal, a Retired WA No.143 of 2022 Page - 2 of 11 Judge of the Gauhati High Court. The petitioner retired on 31.01.2008. After his retirement, he was appointed as the President, State Consumer Disputes Redressal Commission w.e.f. 21.07.2008. Thereafter, by a notification issued on 07.08.2008 by the Home Department, Government of Tripura, petitioner was appointed as the Chairman of the Advisory Board constituted under section 9 of the National Security Act, 1980 (NSA for short). After his term as the President of the State Consumer Disputes Redressal Commission expired on 15.07.2011, he was appointed as the Chairman of the Police Accountability Commission, Tripura constituted under the Tripura Police Act, 2007 from 16.07.2011. His tenure as the Chairman of the Police Accountability Commission came to end on 31.01.2016. But he continued as the Chairman of NSA Advisory Board until the Home Department, Government of Tripura by notification dated 30.11.2018 reconstituted the NSA Advisory Board with Sri S.C. Das, a Retired Judge of the High Court of Tripura as its Chairman.
[3] Even though the petitioner held the post of the Chairman of the NSA Advisory Board from 01.07.2008 to 30.11.2018, he did not claim any remuneration for holding the said position since he simultaneously held the post of the President of the State Consumer Disputes Redressal Commission from 21.07.2008 and after expiry of its term on 15.07.2011 he held the post of Chairman of the Police Accountability Commission from 16.07.2011 to 31.01.2016. For the period from 01.07.2008 to 31.01.2016, petitioner, thus, held dual position and he was drawing due remuneration for the post of President, State Consumer Disputes Redressal Commission and thereafter Chairman, Police Accountability Commission. Only from 01.02.2016 to 30.11.2018, petitioner held the solitary post WA No.143 of 2022 Page - 3 of 11 of the Chairman of the NSA Advisory Board and for this period he was paid no remuneration for holding the said position.
[4] After the NSA Advisory Board was reconstituted by the State Government by a notification dated 30.11.2018 excluding the petitioner as the Chairman of the Board, the petitioner addressed a letter dated 05.12.2018 to the Chief Secretary, Government of Tripura contending that reconstitution of the Board was unsustainable in law because the National Security Act did not provide for such reconstitution. The petitioner also asserted in his letter that the Board could not be reconstituted only because the incumbents completed certain period since no upper age limit or fixed term was prescribed under the said Act. The petitioner, however, wrote that the main purpose of his letter was to settle his claim for remuneration. He claimed pay parity with Justice M.L. Singhal, a Retired Judge of the Gauhati High Court who was appointed by the State Government as the Chairman of the NSA Advisory Board by a notification dated 26.12.2001. [5] In response to his letter dated 05.12.2018, the Additional Secretary to the Government of Tripura in the Home Department vide his letter dated 12.02.2019 informed the petitioner that the State Government decided to pay honorarium @ Rs.5,000/- per month to the petitioner for the period from 01.02.2016 to 30.11.2018 for holding the position of the Chairman of the NSA Advisory Board.
[6] Thereafter, the petitioner addressed another letter to the Chief Secretary, Government of Tripura on 21.06.2021 seeking settlement of his remuneration. The relevant extract of his letter is being reproduced hereunder:
".............................................................................................WA No.143 of 2022
Page - 4 of 11 I may mention here that Justice M.L. Singhal, a retired judge of the Gauhati High court was appointed as Chairman of the NSA Advisory Board of this State in 2000 and his terms and conditions have been notified by this government in the Home department vide notification no. F.3(25)PD/99 dated 26.12.2001. His salary/honorarium was Rs 22440/- per month with vehicle and rent free accommodation. The pay of a high court judge in 2001 was 39000/- only. Reducing the pension his remuneration seems to have been fixed at Rs.19500+2940(allowances)=22440/- (copy enclosed) which is the norm followed in fixing pay of a retired High Court Judge assigned to perform the job of Chairman NSA Advisory board anywhere else in the country. The pay of high court judges was revised to Rs.80000 in 2006 and to Rs.225000 in 2016. It is pertinent to mention that Government of India also had standing order to fix remuneration for retired High Court judges reemployed in various capacities in Government of India following the same formula i.e. pay and allowance of a serving high court judge minus pension...................."
[7] Since his claim was not settled by the State authorities, petitioner approached this Court claiming relief under Article 226 of the Constitution and he sought for the following directions:
"(i) ISSUE RULE, calling upon the respondents and each one of them, to show cause as to why a Writ of Certiorari and/or in the nature thereof, shall not be issued, calling for the records, lying with them for rendering conscionable justice to the petitioner;
ISSUE RULE, calling upon the respondents and each one of them, to show cause as to why a Writ of Mandamus and/or in the nature thereof, shall not be issued, directing/mandating them, to grant the pay of High Court Judges Salary (as on 01.02.2016) reduced by pension plus other allowances to petitioner, for the period 01.02.2016 to 30.11.2018, with interest at the prevailing bank rate and further direct the respondents to revoke/modify their decision fixing a sum of Rs.5,000/- as monthly remuneration, as reflected in the letter dated 12.02.2019;
(ii) CALL FOR THE RECORDS, appertaining to this petition;
(iii) After hearing the parties, be pleased to make the RULE ABSOLUTE in terms of i, & ii above;
(iv) COSTS of and incidental to this proceeding;
WA No.143 of 2022
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(v) Any other RELIEF(s) as to this Hon'ble High Court may deem fit and proper;"
[8] In their counter affidavit filed before the learned Single Judge, the State respondents asserted that the petitioner did not raise any claim for remuneration for holding the post of Chairman, NSA Advisory Board from 01.02.2016 to 30.11.2018 until the board was reconstituted on 30.11.2018. It was stated by the respondents in their affidavit that after the petitioner raised his claim, the State Government decided to pay monthly remuneration of Rs.5,000/-
to the petitioner and monthly honorarium at the rate of Rs.4,000/- to the other members of the Board. It was also stated that for the whole period from 01.02.2016 to 30.11.2018, when the petitioner was the Chairman, only 1(one) case was referred to the NSA Advisory Board and therefore the case of the petitioner was not comparable with the case of Justice (Retired) M.L. Singhal who was appointed as Chairman of NSA Advisory Board on 26.12.2001. It would be appropriate to reproduce the relevant extract of the counter affidavit of the State respondents which is as under:
".............................................................................................
4. That as mentioned above, Shri A.B. Paul was holding the post of Chairman, NSA vide Notification dated 07.08.2008 in addition to his other assigned duties and therefore the question of paying remuneration separately in the post of NSA Advisory Board did not arise. During the period from 01.02.2016 to 30.11.2018, while holding the sole post of Chairman NSA Advisory Board, Shri A.B. Paul did not raise the issue that he is not receiving any honorarium. Only after reconstitution of the NSA Advisory Board, Shri A.B. Paul raised the issue of not receiving of honorarium. Hence, considering his claim; Government had decided to pay @Rs.5000 per month for the period 01.02.2016 to 30.11.2018 to Shri A.B. Paul as other members of the Board were drawing Rs.4000/- per month. It is pertinent to state that during the period from 01.02.2016 to 30.11.2018, only one case was referred to the NSA Advisory WA No.143 of 2022 Page - 6 of 11 Board. Hence, the issue of discrimination vis a vis the treatment meted out to Mr. Justice Singhal (Retd. Judge) is not tenable.
5. That as regards the statements made in paragraphs 6 & 7 it is humbly stated that in case of Hon'ble Mr. Justice (Retd.) M L Singhal is not similar as that of the Writ Petitioner in view of the facts revealed above.
.............................................................................................."
[9] In the course of hearing before the learned Single Judge, it was submitted on behalf of the petitioner that the State Government arbitrarily decided the remuneration of the petitioner @ Rs.5,000/- per month without taking note of the fact that in the case of Justice (Retired) M.L. Singhal who was similarly situated with the petitioner, pay and allowances were given at a much higher rate. Counsel, therefore, contended before the Court that it was an apparent discrimination between two similarly situated persons which warranted exercise of power under Article 226 of the Constitution.
[10] The State counsel argued before the learned Single Judge that petitioner never raised the claim for remuneration as a Chairman of NSA Advisory Board for the period from 01.02.2016 to 30.11.2018. He stepped into action only after the Board was reconstituted excluding him as the Chairman. Counsel contended that case of Justice (Retired) M.L. Singhal was different because during the tenure of the petitioner as the Chairman of the NSA Advisory Board only 1(one) case was referred by the State Government to the Advisory Board. Therefore, the claim of the petitioner for remuneration at the rate of full salary and allowances minus pension was wholly unjustified. [11] On appreciation of the submissions of the counsel representing the parties and the given facts and circumstances of the case, the learned Single Judge allowed the petition directing the State respondents (appellants herein) to WA No.143 of 2022 Page - 7 of 11 pay the petitioner remuneration at the rate of salary of a High Court Judge minus the pension for the period from 01.02.2016 to 30.11.2018 with other benefits as enjoyed by Justice (Retired) M.L. Singhal as the Chairman of the NSA Advisory Board. The learned Single Judge allowed 3 (three) months time for compliance of the order viewing as under:
".....................................The fact that Justice ML Singhal, a retired judge of the Gauhati High Court had been drawing the pay of the High Court Judge minus the pension when he was holding the solitary assignment of Chairman, NSA Advisory Board has not been disputed by the respondents. Apart that, the respondents have filed their reply but have not given any reason why the differentiation has been made in respect of the petitioner; the said action is discriminatory.
It may be noted that the petitioner is also a retired judge of the Gauhati High Court and at the relevant period, i.e. from 01.02.2016 to 30.11.2018 he was also holding the solitary assignment of Chairman, NSA Advisory Board, but the respondents without assigning any intelligible reason has stated that he is entitled to Rs.5000/- only.
Mr. Bhattacharjee, learned GA having referred to the reply filed by the respondents No.1 and 2 has contended that the petitioner was holding the post of Chairman by dint of the notification dated 07.08.2008 in addition to his other assigned duties and therefore paying any remuneration separately as Chairman of NSA Advisory Board did not arise. During the period from 01.02.2016 to 30.11.2018, while the petitioner was holding the solitary post of Chairman, NSA Advisory Board, he did not raise the issue that he was not receiving any remuneration. Only after reconstitution of NSA Advisory Board, the petitioner raised the said issue of not receiving any remuneration. Hence, considering his claim, the government decided to pay @ Rs. 5,000/- per month for the period from 01.02.2016 to 30.11.2018 as the other members of the Board were drawing Rs.4,000/- per month. It has been asserted that during the period from 01.02.2016 to 30.11.2018 only one case was referred to NSA Advisory Board and the issue of discrimination vis-à-vis remuneration allowed to Justice Singhal (Retired High Court Judge) is not tenable.
Mr. P Roy Barman, learned senior counsel appearing for the petitioner has quite succinctly submitted that the remuneration is determined against the position held by the WA No.143 of 2022 Page - 8 of 11 retired judges and not on the basis of how many cases they would deal during their tenure. Even, during the tenure of Justice Singhal, how many cases were referred has not been stated and is also not required, inasmuch as, the remuneration attached to the position is in contemplation to the work to be assigned to them. Even when no work is assigned to them, Chairman, NSA Advisory Board is entitled to get the remuneration attached to the position. As such, the rationale provided by the respondents is not only unintelligible but also unsustainable.
Having appreciated the rival contention as raised by the counsel for the parties, this court is of the view that when there is a precedent for determining the remuneration of Chairman, NSA Advisory Board, the respondents No. 1 & 2 ought to have followed that precedent. Even the guidelines of the Government of India are as such. The respondents should have avoided arbitrarily determining the remuneration at Rs.5,000/- per month. It is disgraceful. Moreover, it is apparent discrimination between the similarly situated persons who have held the same position of Chairman, NSA Advisory Board.
As such, the respondents are directed to pay the petitioner the remuneration at the rate of the salary of a High Court Judge minus the pension during the said period with other benefits as enjoyed by Justice (Retired) M.L. Singhal. The amount that would accrue in view of the aforesaid direction shall be paid to the petitioner within a period of three months from the date when a copy of this order will be furnished by the petitioner to the respondent No.2.
With the aforesaid observation and direction, the writ petition is allowed and disposed of...................."
[12] The basic stand of the State appellants in the writ appeal is as follows:
(i) The writ petitioner (respondent herein) has no legal right to any kind of remuneration as the Chairman, NSA Advisory Board.
(ii) Writ Petitioner's claim is barred by delay and laches because he never lodged any claim for remuneration during his entire tenure as the Chairman of the NSA Advisory Board.WA No.143 of 2022
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(iii) Findings of the learned Single Judge that there are guidelines of the Government of India for fixation of remuneration of a Retired Judge for post retiral employment which should have been followed by the State Government in determining pay and allowances of the petitioner as the Chairman of the NSA Advisory Board is completely erroneous.
(iv) During his entire tenure as Chairman, NSA Advisory Board, petitioner dealt with only 1(one) case and therefore he was not entitled to claim parity with the case of Justice (Retired) M.L. Singhal. [13] We have heard Mr. D. Bhattacharya, learned GA who represents the State appellants who has resorted to the same set of arguments advanced before the learned Single Judge.
[14] It is true that the National Security Act, 1980 does not provide for any remuneration payable to the Chairman or members of the Advisory Board constituted under section 9 of the Act. No provision has been made under the said Act empowering the Union or the State to frame rules prescribing remuneration/honorarium for the Chairman and the members of the NSA Advisory Board. But it is not disputed that the State Government created a precedent by allowing Justice (Retired) M.L. Singhal of the Gauhati High Court to draw salary equivalent to that of a High Court Judge along with other benefits minus pension when he was holding the solitary assignment of the Chairman, NSA Advisory Board w.e.f. 02.11.2001. For better appreciation of the case, it would be appropriate to refer to the said notification dated 26.12.2001 laying down the terms and conditions of appointment of Justice (Retired) M.L. Singhal as the Chairman of NSA Advisory Board which is as under:
WA No.143 of 2022
Page - 10 of 11 "No. F.3(25)-PD/99 GOVERNMENT OF TRIPURA HOME DEPARTMENT Dated, Agartala, the 26th December, 2001.
To The Accountant General (A & E), Tripura Agartala.
Sir, I am directed to convey sanction of the Governor, Tripura to the following terms & conditions for appointment of Justice Mr. M.L. Singhal, Retired Judge of Gauhati High Court, Agartala Bench as the Chairman of the NSA Advisory Board constituted by the State Government vide Notification of even number dated 27.01.2000 and 18.05.2001 under section-9 of the National Security Act, 1980.
(1) Honorarium @ Rs.22,440/- per month.
(2) Use of a vehicle at Government cost in Tripura.
(3) Daily allowance as applicable to sitting Judge of High Court during his stay at Agatala.
(4) Air fare by executive class from Lucknow to Agartala and back for discharging his function as Chairman, NSA Board.
(5) Rent free accommodation at Agartala.
The expenditure involved on this account will be met under the Head if 2055-Police,001-Direction and Administration 00 001 000 01 00- Salaries under Demand No.10(Non-Plan).
This issues with the concurrence of the Finance Department vide their No.559/Fin(G)/2000 dated 28.8.2000 in the Law Department file No.F.10(2)-Law/Con/2000. This will come into force w.e.f. 2.11.2001.
By order of Governor Sd/-
(H. Bhowmik) Under Secretary to the Government of Tripura"
[15] Even though there is no provision in the Act and also there is no rule or other instrument prescribing any remuneration for the Chairman of the NSA Advisory Board, denial of the claim of the writ petitioner (respondent herein) would amount to an apparent discrimination between the similarly situated persons who have held the same position of Chairman, NSA Advisory Board.
Decision of the State Government to pay honorarium at the rate of Rs.5,000/- per WA No.143 of 2022 Page - 11 of 11 month to the petitioner besides being demeaning, strikes at the very foundation of the concept of equality. The petitioner is unquestionably entitled to pay parity with Justice (Retired) M.L. Singhal who held the same position and entrusted with similar duties and responsibilities. Claim of the State appellants that the original writ petitioner cannot claim parity with the case of Justice (Retired) M.L. Singhal does not stand to reason.
[16] In view of the above, we do not find any ground to disagree with the findings of the learned Single Judge. Resultantly, the writ appeal stands dismissed. The respondents are directed to comply with the order of the learned Single Judge within a period of 3 (three) moths from today.
[17] In terms of the above, the appeal stands disposed of. Pending application(s), if any, shall also stand disposed of.
(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ Rudradeep WA No.143 of 2022