Punjab-Haryana High Court
S D Anand vs State Of Haryana And Ors on 3 February, 2022
Author: Arun Monga
Bench: Arun Monga
203 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-2388-2019
Date of Decision: 03.02.2022
S.D. ANAND ...Petitioner
Versus
STATE OF HARYANA AND OTHERS ...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present : Mr. Prem Meet Anand, Advocate
and Mr. Sushant Kareer, Advocate
for the petitioner.
Mr. Saurabh Mohunta, D.A.G., Haryana.
ARUN MONGA, J.
Petitioner, a former Judge of this Court, has been compelled to seek indulgence of this Court for mitigation of his grievance qua non-fixation of the terms and conditions of his appointment as President of Appellate Authority, Haryana State Pollution Control Board (here-in-after referred to as `the HSPCB') despite lapse of 22 months after his appointment and his having served as such during the said period.
2. Before adumbrating any further, the statutory requirement of appointment as Appellate Authority as envisaged under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 is relevant to be seen and the same is reproduced here-in-below :-
"(1) Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the appellate authority) as the State Government may think fit to constitute: Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
1 of 14 ::: Downloaded on - 24-04-2022 14:58:52 ::: (2) An appellate authority shall consist of a single person or three persons as the State Government may think fit, to be appointed by that Government.
(3) The form and manner in which an appeal may be preferred under sub-section (1), the fees payable for such appeal and the procedure to be followed by the appellate authority shall be such as may be prescribed.
(4) On receipt of an appeal preferred under sub-section (1), the appellate authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.
(5) If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then,--
(a) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable;
(b) where the appeal is in respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable."
(emphasis supplied)
3. Pursuant to the above statutory requirement of appointing an Appellate Authority, State Government after consulting the Haryana State Pollution Control Board in exercise of the powers conferred by Section 64 of the Act ibid framed and notified Haryana (Prevention and Control of Water Pollution) Rules, 1978. Later on, vide notification dated 24.11.1999 (Annexure R2/1) colly, following Rules to further amend the 1978 Rules were notified :-
"1. These rules may be called the Haryana (Prevention and Control of Water Pollution) Second Amendment Rules, 1999.
2. In the "Haryana (Prevention and Control of Water Pollution) Rules, 1978, in rule 23 -
(a) for sub-rule (i), the following sub-rule shall be substituted, namely :-
"(1) The appellate authority shall consist of the following persons, namely :-
(i)Judge of High Court sitting or retired. He will be designated as President of appellate authority; and 2 of 14 ::: Downloaded on - 24-04-2022 14:58:53 :::
(ii) Two Scientists of high ranking having sufficient experience regarding Environmental management.";
(b) for sub-rules (5) and (6), the following sub-rules shall be substituted, namely :-
"(5) [The fee payable for filing an appeal under section 28 shall be as decided by he Government from time to time. This fee shall be deposited with the Board before filing the appeal.
Each member of the appellate authority may be paid an honorarium per case as decided by the Government from time to time.] (6) [The headquarters of the Appellate Authority shall be such as fixed by the State Government]. [The Board will make the arrangements of the sitting of the appellate authority and will also provide secretarial services to the appellate authority. No travelling allowance/local charges etc. will be payable to the President and other members of the appellate authority for holding the sitting at the headquarters. The sitting shall normally be held at the headquarters except that while hearing any appeal, sitting may be at site, if the visit to the site is considered necessary by the appellate authority. The Board will make all arrangements including boarding/lodging/transportation etc. for the visit of members of appellate authority, as well as of the President. In the absence of the arrangement, the Board will pay travelling allowances/daily allowances at such rates as are admissible to Grade-I officers of the Government.]"
4. It was pursuant to the aforesaid requirement of law, the petitioner was appointed as President (along with two members) of the Appellate Authority of the `HSPCB' vide notification of appointment dated 14/17.04.2017 (Annexure P-1), notifying as below :-
" In exercise of the powers conferred by Sub-section (1) read with sub-section (2) of section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), the Governor of Haryana is pleased to reconstitute the Appellate Authority, Haryana State Pollution Control Board, Panchkula, as under :-
Sr. No. Name and Address Designation
1. Shri S.D. Anand President
S/o Shri I.P. Anand, R/o A-9,
Orbit Apartments, 1 VIP Road,
Zirakpur, Distt. Mohali
2. Major General Harish Jit Singh Member
S/o late ShriSatjit Singh, R/o
H.No.2251-B, Sector-47,
Chandigarh
3. Dr. SukhdevKundu R/o House Member
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No.17, New Generation
Independent Duplex, Houses
Society, Dhakoli, Zirakpur, Distt.
Mohali
2. The term and condition of President and Members will be issued later on."
5. The ambiguity of not having notified the terms of appointment, as is borne out from Clause 2 of the Notification dated 17.04.2017, led to exchange of correspondence and reminders between the learned President of the Appellate Authority and the State Government. Perusal of the record appended herewith would reveal that the petitioner joined as President on 19.04.2017 and immediately informed the Administrative Secretary of the Department.
6. Having waited for his terms to be finalized for about a month, the petitioner sent another letter dated 18.05.2017 to the Administrative Secretary, the contents of which are as below :-
" Subject:- Terms and conditions as President of the Appellate Authority, Haryana State Pollution Control Board, Panchkula - determination of.
Dear Dr. Khandelwal, There are different Haryana dispensations headed by former Hon'ble Judges of the Punjab and Haryana High Court, or of which they are a part (e.g. the Haryana Consumer Commission, the Haryana Human Rights Commission, the Haryana Fee and Admission Committee). I understand that they are getting the pay and perks etc. available to the Hon'ble sitting Judges of the High Court.
I would, accordingly, request the Government to consider the according of those very terms and conditions made available to the former Hon'ble Judges heading the above quoted dispensations in the State of Haryana."
7. Being an independent judicial authority, conscious to maintain the independence of the justice delivery system and keeping in view the sacrosanct placement of judiciary in the scheme of things as envisaged by the Constitution of India, the petitioner was not expected to have written any 4 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: reminders/letters seeking finalization of his terms and conditions and/or remittance of his salary/monthly emoluments. And yet, he was compelled to send letter to the Administrative Secretary as aforesaid. Naturally, the petitioner remained sanguine that having brought it to the notice of the Administrative Secretary, the needful would be done in due course. However, it were not to be so. Even after a lapse of 20 months nothing moved, forcing him to send another letter dated 15.12.2018, this time to the top Administrative functionary i.e. the Chief Secretary to Government of Haryana, wherein, he stated as below :-
" Subject : Institutionalization of Terms and Conditions of the former Judges heading the various statutory Tribunals/Commissions/Appellate Authorities in the State of Haryana - dire need therefor."
Dear Even though the Appellate Authority has completed 20 months of its functional existence today i.e. 17.12.2018, the Terms and Conditions of appointment (of the undersigned and the two Members) are still not in place. The non-fixture of the Terms and Conditions till date must be a record of sorts, though I am open to correction.
I believe the non-finalization of the Terms and Conditions of the Appellate Authority personnel for that inordinate long duration validates the reiteration of the request made by me (vide two earlier DO letters) for considering the institutionalization of the Terms and Conditions of identically situated statutory Tribunals/Commissions/Appellate Authorities headed by the former Judges of the High Court, in order to avoid giving rise to any uncharitable inference, particularly when the Government of Haryana is known for transparent and public-welfare oriented governance.
Having said that, I would request you to direct the quarters competent in the relevant behalf to accord those very Terms and Conditions (Pay + Perks including HRA, Sumptuary Allowance, appropriate official vehicle with fuel and LTC etc.) which have been fixed in the case of the identically placed justicing infrastructures in the State of Haryana. I understand, on point of fact, that the former Hon'ble Judges in all the Haryana dispensations have been accorded the pay and perks available to the sitting Judges of the Hon'ble High Court. I do not even conceptualize/hypothesize a cause for any variation 5 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: therein.
Yours sincerely Sd/-
(JUSTICE S.D. ANAND) 15.12.2018"
8. Thereafter, having waited for over a month, in what the petitioner pleads as "cognizable refrain" and "conscious neglect" on the part of the respondents to fix the terms and conditions and calling their act of omission as "conscious interference in the functioning of the Appellate Authority", the petitioner instituted the instant writ proceedings to seek redressal qua the aforesaid state of affairs.
9. In the return filed by the Under Secretary to Government of Haryana, Environment Department, the writ petition has been opposed inter alia in terms of the following stand taken therein :-
" 3. That after taking into consideration of various facts like work load/dispensations of appeals, liabilities and responsibilities of the President and Members of the Appellate Authority, the Terms and Conditions have been fixed by the Govt. vide Memo No.2/23/2010-1 Env. dated 25.01.2019. Salary of the President (Petitioner) has been fixed equivalent to Chief Secretary to Govt. Haryana minus pension. Dearness allowance has also been granted as per instructions of the Govt. issued from time to time. True typed copy of the Terms and Conditions dated 25.01.2019 are annexed herewith as Annexure R 2/1.
4. That as per letter dated 03.12.2018 of the Registrar General, Punjab and Haryana High Court (Annexure P-7 of CM 2105 of 2019), the basic pay of the Hon'ble Judge of this Court is Rs.2,25,000/- and Dearness allowance is @ 9% of basic pay. The salary of the Chief Secretary is equal to the salary admissible to Hon'ble Judge of this Court i.e. Rs.2,25,000/-. Hence the salary and dearness allowance prayed in the petition by the petitioner has already been granted to the petitioner."
10. In his letter written to the State Government, the petitioner has sought parity to fix his terms and conditions to identically placed other Tribunals/Dispensations in State of Haryana, which are headed by former Judges of High Court, more specifically equivalent to salary and perks to 6 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: that of the President, Haryana State Consumer Dispute Redressal Commission but the department per contra states in its written statement that "the demand of equal Salary and Perks by the petitioner equal to the President Haryana State Consumer Dispute Redressal Commission at Panchkula is not justified as decision is taken on the terms and conditions of the President and Members of the Appellate Authority by the Competent Authority."
11. In the course of proceedings, the petitioner also placed on record the terms and conditions of appointment of Chairman of Haryana Tax Tribunal (a statutory Tribunal constituted under Section 57 of the Haryana Value Added Tax Act, 2003) Annexure P-7 colly as well as Chairman of Haryana Backward Class Commission (a statutory Tribunal/Commission under Section 4 of the Haryana Backward Classes Commission Act, 2016).
12. Terms and conditions of Chairman of Haryana Tax Tribunal per Annexure P-7 (colly) are as below:-
1) Tenure of office The tenure of Justice L.N. Mittal (Retd.) as Chairman of the Haryana Tax Tribunal shall be as prescribed in the HVAT Act, 2003 and Rules framed there under from time to time.
2) Pay and allowances He will be paid salary/dearness allowances minus pension at par with the salary of the Judge of the Punjab & Haryana High Court.
3) Other Perks
(a) Air conditioned car with fuel, medical facility/reimbursement and telephone/mobile facilities will be provided as per entitlement of Judge of the Punjab & Haryana High Court.
(b) Allowances such as sumptuary allowance, house rent allowance in lieu of free accommodation, free electricity and water upto prescribed limit, as fixed by rule/norms of the Government at par with the Judge of Punjab & Haryana High Court admissible.
(c) Personal staff including Private Secretary, English knowing stenographer, Peon will be given as per entitlement.
(d) T.A. Camp Office with the Peon and Chowkidar, Security, LTC Electronic appliances such as iPad, Laptop and 7 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: Printer, change of staff car, free furnishing of residence and camp office and other facilities may be provided at par with sitting Judge of Punjab & Haryana High Court.
The expenditure will be met out from the Major Head 2052-Secretariat General Services-099-Board of Revenue-96-Sitting up of Haryana Tax Tribunal, 51-NA-(Non- Plan).
The Administrative Department (not legible) to confer the powers of the Head of the Department on Chairman, Haryana Tax Tribunal to purchase manuals, tax related citations/books etc. and to efficiently discharge the functions of the Tribunal."
13. As against the above, the petitioner's grievance is qua the terms and conditions conveyed to him vide Memo dated 25.01.2019 (Annexure R2/1), which are as below :-
" The Terms & Conditions of President and Members of Appellate Authority are fixed as under :-
Terms & Conditions for the President.
1. Tenure The terms of appointment of President of Appellate Authority will be for a period of three years from the date they take over.
2 Salary He will be entitled to draw salary equivalent to Chief Secretary to Government Haryana minus pension. He however will draw dearness as per instruction of the Government issued from time to time.
3 Conveyance He will be entitled to vehicle as per his entitlement.
4 Leave He will be entitled to thirty days of earned leave for every completed year of service.
Terms & Conditions for the Member :-
1 Tenure The term of appointment of Members of Appellate Authority will be for a period of three years from the date they take over.
2 Salary He will be entitled to draw salary equivalent Official to Principal Secretary to Government Haryana minus pension. He however will draw dearness as per instructions of the Government issued from time to time.
Non official Non official member will be paid a consolidated monthly salary of Rs.2.00 lacs. 8 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: 3 Leave Members of Appellate Authority will be to entitled to thirty days of earned leave for every completed year of service.
14. The petitioner's case has thus been resisted stating that once the terms and conditions as aforesaid have been finalized, nothing survives for consideration of this Court. It has also been argued that as far as earlier Appellate Authorities of the `HSPCB' are concerned, the same were constituted at different occasions from 2001 to 2004, 2008 to 2011 and 2011 to 2014. The President of the Authority from 2001 to 2004 was Justice N.K. Kapoor (Retd.) and for 2008 to 2011 and 2011 to 2014 Justice A.S. Garg (Retd.). It is further submitted that Justice N.K. Kapoor (Retd.) was paid with honorarium of Rs.4000/- for large and medium industries appeal and Rs.3000/- for small scale industries. Justice A.S. Garg (Retd.) was paid with fixed honorarium @ Rs.50,000/-.
15. Pursuant to the above order, an affidavit dated 30.04.2019 by the Additional Chief Secretary to the Government of Haryana, Environment and Climate Change Department, Haryana was filed, taking the following stand :-
" 4. That the Appellate Authority was constituted for the first time in the year 2000 with Justice N.K. Kapoor (Retd.) as President who was paid with the remuneration of Rs.4000/- per case. This authority continued till year 2006.
5. That the Appellate Authority was again constituted in the year 2008 with Justice A.S. Garg (Retd.) as President who was paid a fixed remuneration of Rs.50,000/- per month. This authority continued till the year 2014.
6. That at the time of appointment of the petitioner as President of the Appellate Authority, it was not likely that the petitioner was not aware of the remuneration granted to his predecessors. There was no offer or promise by Government regarding salary and all perks equal to that of a sitting Judge of the High Court. Even the petitioner did not put any condition of Salary and perks while accepting the appointment or prior to submission of his joining report.
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12. That drawing the parity of pay and perks of the petitioner at par with Justice L.N. Mittal (Retired) Chairman of the Haryana Tax Tribunal and Justice S.N. Aggarwal (Retd.) Chairman of Haryana Backward Classes Commission is not justified as the Terms and Conditions of the appointment of Appellate Authority is decided by the Government as empowered under the Water (Prevention and Control of Pollution) Act, 1974 and Haryana (Prevention and Control of Water Pollution) Rules, 1978. The Act and the rules do not have any provision for establishing a parity with any other Authority."
16. First and foremost adverting to the stand of the State that at the time of his appointment, it is/was unlikely that the petitioner was not aware of the remuneration granted to his predecessors. The said stand flies in the face of the fact that the petitioner was neither conveyed the terms of the predecessors in office nor at the time of notification of his appointment, it was stated that he shall be entitled to remuneration as was earlier being paid to his predecessors. It is therefore, completely illogical to take such a stand, particularly, how would the petitioner have access to the relevant documents revealing the terms and conditions of former Judges who had functioned as President of Appellate Authority, HSPCB in the past.
17. Needless to say, every appointment is governed by the terms and conditions which are offered to an appointee on mutual acceptance of the same. Thus, in the instant case as well, terms and conditions of the petitioner were a matter between appointing authority and the appointees. Likewise, how would the petitioner have any competence or locus to comment upon whatever that may have transpired between the appointing authority and the earlier appointees. Furthermore, there is substance in the stand taken by the petitioner in the replication, pointing out as below :-
" The petitioner has not been able to find any logic in the averment because he could not (and did not, on point of fact) any access to the relevant documentation providing for 10 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: whatever were the terms and conditions of the former Hon'ble Judges who functioned as President, Appellate Authority, HSPCB, at earlier point of time. There was no need, in fact, for the petitioner herein to ascertain the terms and conditions of the former Hon'ble Judges who occupied that placement at any earlier point of time. In reiteration of the averment in the rejoinder, the petitioner herein submits that the fixture of Terms and Conditions of an identical appointment was a matter between the appointing authority and the appointee. The petitioner cannot claim either competence or locus to comment upon whatever may have transpired between the Appointing Authority and the appointees at any earlier point of time. The averment by the deponent of the affidavit that "it was not likely that the petitioner was not aware of the remuneration granted to his predecessors" defies the logical comprehension of the petitioner herein is a conjectured exercise, unsupported by any logic.
Even at the cost of repetition (of the relevant averment in the Rejoinder (to the Written Statement), it may be reiterated that Hon'ble Mr. Justice N.K. Kapoor was perhaps simultaneously holding an assignment with the National Highway Authority of India; while Hon'ble Mr. Justice A.S.Garg had certain health issues due to which he had been holding the hearing at Gurgaon where he had settled after the High Court tenure. Be that as it may, the petitioner herein is not bound by whatever may have actuated the emergence of terms and conditions between the previous holders of the post of President, Appellate Authority."
18. Adverting to the defense adopted by the State that the petitioner has since been already accorded salary, equivalent to the Chief Secretary of the State vide order dated 25.01.2019, therefore, he is not entitled to seek any parity with the President/Chairman of the statutory Tribunals since salary of the Chief Secretary is equal to the salary admissible to a serving Judge of High Court. Once again, the fallacy lies in the State Government in not having finalized the terms and conditions at the time of issuing the notification for appointment.
19. In course of instant writ proceedings, after going through the rival pleadings, my learned sister Ritu Bahri, J. then seized of the matter 11 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: speaking for this Court passed following order dated 04.04.2019 :-
" Learned State counsel has filed written statement of Under Secretary to Government of Haryana, Environment Department and the same is taken on record. In this written statement, the State is justifying the terms and conditions mentioned in the appointment letter of the present petitioner by relying upon terms and conditions mentioned in the appointment letter of Sh. N.K. Kapoor, Judge (Retired) (Annexure R-2/6) and Sh. A.S. Garg, Judge (Retd.) President and members of Appellate Authority for Haryana State Pollution Control Board (Annexure R-2/7). But with respect to terms and conditions in the appointment of Justice L.N. Mittal (Retired) Chairman of the Haryana Tax Tribunal and Justice S.N. Aggarwal (Retd) Chairman of Haryana Backward Classes Commission (P-7 colly) whereby facilities have been provided to them at par with sitting High Court Judges, learned State counsel has not been able to controvert this fact.
Learned State counsel has not been able to explain that why the same terms and conditions has not been incorporated in the appointment letter of the petitioner.
List on 3.5.2019.
In the meantime, let an affidavit be filed by respondent No.2 explaining as to why terms and conditions has not been incorporated in the appointment letter of the petitioner at par with Justice L.N. Mittal (Retired) Chairman of the Haryana Tax Tribunal and Justice S.N. Aggarwal (Retd.) Chairman of Haryana Backward Classes Commission (P-7 colly).
To be shown in the Urgent list."
20. Though the aforesaid interim observations by my learned sister are not in the nature of any finding, but to certain extent they seem to reflect the mind of Court that petitioner ought to be treated on parity with Haryana Tax Tribunal and Haryana Backward Class Commission Chairpersons. I see no reason to take a contrary view. Petitioner himself has relied upon the terms and conditions of these appointees.
21. Furthermore, a perusal of the statutory requirement of appointment on the post of President of the Appellate Authority of HSPCB, as already reproduced in the earlier part of the instant judgment, clearly shows that only a serving Judge of the High Court or a former Judge are eligible to be appointed. If one were to logically apply the legitimate 12 of 14 ::: Downloaded on - 24-04-2022 14:58:53 ::: expectation parameters viz-a-viz other Tribunals, where the eligibility appointment is same i.e. either serving or a former Judge and that too, who have been so appointed by the same very State Government, it would then more certainly be not out of place for the petitioner to have the expectation that as and when the terms and conditions are later on finalized, the State would do it on parity with his counterparts of the other statutory Tribunals.
22. To be noted, it is not the case of the State Government that the post of President of Appellate Authority of the HSPCB is not a statutory Tribunal.
23. As an upshot of my discussions, seen from any angle, the legal infirmity in denying the petitioner of his legitimate expectation has though been sought to be justified but none of the justifications either pleaded or argued, are tenable in law.
24. In the parting, I may hasten to add that the respondents/State Government to note it for their future guidance that henceforth they would do better to notify the terms and conditions of any judicial and/or statutory Tribunal, Chairman/President, at the time of appointment itself and not leave it open to the realm of speculation at later stage.
25. With these observations, the writ petition is partly allowed. It is directed to the respondents that the petitioner be treated at par with and paid his dues in terms of appointment letters issued to the Chairman of the Haryana Tax Tribunal and Chairman of Haryana Backward Classes Commission.
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26. Disposed of in the above terms.
February 03, 2022 (ARUN MONGA)
gurpreet JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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