WP(C)/24/2012 of K.N. Sharma Vs State Of Sikkim on 11 September 2012

THE HIGH COURT OF SIl(I(IM: GANGTOK(Civil Extra Ordinary Jurisdiction)

DATED : 11.09.2012

CORAM

HON'BLE MRE JUSTICE PERMOD I(OHLI, CHIEF JUSTICEHON'BLE MR. JUSTICE S. P. WANGDI, JUDGE

W. P. (C` No. 24 of 2012

Mr. K. N. Sharma,

Ex-Chairman,

Sikkim Public Service Commission, GangtokPermanent Resident of Tadong Daragoan,P.O. Tadong & P.S. Gangtok,East Sikkim.

•.... Petitioner.

- versus -

State of Sikkim,Through the Chief Secretary,Government of Sikkim,New Secretariat,Development Area,Gangtok.

The Secretary,Department of Personal A. R. & Training,Public Grievances, Career Options,Employment Skill Development andChief Minister's Self Employment Scheme,Government of Sikkim,New Secretariat, Development Area,Gangtok.

Sikkim Public Service Commission,Through the Secretary,Sikkim Public Service Commission,Below Police Head Quarter,Gangtok.

..... Respondents,

For PetitionerMr. A. K. Upadhyaya, Sr.Advocate with Ms. Binita Chhetriand Ms. Dawa Jangmu Sherpa,Advocates.

For state-respondents : Mr. J. B. Pradhan, Addl. AdvocateGeneral.

For spsc-respondent No.3 : Mr. J. K. Kharka, Advocate.

I ± D g u I J± I

Kohli Permod, CJ

The petitioner, a former Secretary, Land RevenueDepartment, Government of Sikkim, came to be appointed asa Member, Sikkim Public Service Commission on hissuperannuation from the State service vide NotificationNo.157/GEN/DOP dated 02,11.2007 (Annexure P-1) from thedate of assumption of the charge for a period of 6 (six) yearsor till he attains the age of 62 years, whichever be theearlier.

Sikkim Public Service Commission (hereinafter tobe referred as Commission) had/has the strength of two Members and one Chairman as prescribed under the SikkimPublic Service Commission (Member) Regulations, 1983framed by the Governor of the State under Article 318(a) ofthe Constitution of India. In the year 2009, the thenChairman of the Commission, namely, Shri Dorji Daduldemitted office on attaining the age of superannuation witheffect from 05.01.2009. This left the Commission with thepetitioner as its lone member. Consequently, the petitionerhad to discharge the duties of both Chairman and Member ofthe Commission. As no regular Chairman was appointed forconsiderable period, the petitioner was appointed asOfficiating Chairman vide Notification No.244/GEN/DOP dated06.04.2010 (Annexure P-3) until further orders. Vide OfficeOrder No.4175/G/DOP dated 23.02.2011, salary of thepetitioner both as Member and Chairman of the Commissionwas notified. The petitioner demitted the office as Chairmanon 07.03.2011 on completion of his tenure.

It seems that the petitioner was not grantedvarious retiral benefits as Member and Chairman of theCommission. Petitioner, accordingly, made certain querieswith regard to his entitlements including the admissibility ofthe Special Duty Allowance (North-East AIIowance) throughRTI. This forced the petitioner to serve legal notice on27.02.2012 through his counsel claiming various retiral -+

benefits including the North-East Allowance. Some benefitswere paid to the petitioner before the filing of this petition,whereas some of the benefits were released during thependency of this petition except the North-East Allowance.Thus the surviving relief in the present petition is only inrespect to claim of North-East Allowance.

The Sikkim Public Service Commission is aconstitutional body created under Article 315 of theConstitution of India. The appointment and terms of office ofmembers including the Chairman are contemplated underArticle 316 of the Constitution. In the case of Public ServiceCommission for a State, appointment of Chairman and itsmembers is to be made by the Governor of the State.However, conditions of service of members and staff of theCommission are to be regulated by regulations framed underArticle 318 of the Constitution of India. The Governor ofSikkim in exercise of power vested in him under Article 318 ofthe Constitution framed the Sikkim Public ServiceCommission (Member) Regulations, 1983 as notified videNotification No. 9(2) Home/82/3557 dated 13.01.1983(Annexure P-4). Regulation 3 fixes the strength of Membersfor the State Commission at three comprising of a Chairmanand two Members. Regulation 4 prescribes the salary of theChairman and its Members, whereas Regulations 6 and 7

make provisions for payment of leave encashment.Regulations 8, 9 and 10 entitle a Member of the Commissionto Pension, Gratuity and General Provident Fund. Regulation13 is a residual provision and makes the Rules applicable tothe Chief Secretary to the Government of Sikkim andSecretary to the Government of Sikkim applicable to theconditions of service of the Chairman and a Member of theCommission respectively, where no express provision is madeunder these Regulations. For the purposes of the presentpetition, Regulation 13 is the only relevant provision,interpretation whereof is called for. The same is reproducedhereunder: - ``13. Matters in which no provision is made.- Theconditions of service of Chairman or a Member for whichno express provision has been made in these regulationsshall be determined by the rules and orders for the timebeing applicable to the Chief Secretary to theGovernment of Sikkim and Secretary to the Governmentof Sikkim, respectively.

Provided that nothing in these amendments shallhave effect so as to give a person who is the Chairman ora Member less favourable terms in respect of any matteraforesaid, than those to which he would be entitled as aChairman or a member, as the case may be, on the dateof his appointment as such."

5. As noticed hereinabove, the only relief requiringdetermination in the present petition is with regard topayment of the North-East AIlowance. This benefit is soughtfor on the basis of residual provisions contained in Regulation13 claiming parity with the Chief Secretary of the State. It is Ei]

contended by Mr. A. K. Upadhyaya, learned Senior Advocateappearing for the petitioner that North-East Allowance is aspecial allowance payable in the State of Sikkim to the ChiefSecretary of the State and the Chairman of the Commissionbeing equal in status, petitioner by virtue of Regulation 13 isentitled to such allowance for the services rendered by him asthe Chairman of the Commission.

The State in its detailed counter-affidavit, however,denied the claim made on behalf of the petitioner and alsodisputed and contested his entitlement for the North-EastAIlowance t.nter a/t.a contending that the North-East Allowanceis payable only to a Member of the All India Service belongingto North-East State cadre and who is posted in the State. Tosupport the plea, reliance is placed upon Office Memorandumdated 10.02.2009 (Annexure R-7) and Office Memorandumdated 29.08.2008 (Annexure R-8). The relevant extracts ofthese Office Memorandums are re-produced hereunder: - ``F. No.14017/4/2005-AIS(II)

Government of India

Ministry of Personnel, Public Grievance and PensionDepartment of Personnel and Training North Block, New Delhi -110001Dated loth February, 2009

Office Memorandum

Subject : Additional monetary incentive to All IndiaService officers belonging to the North-EastCadres.

The undersigned is directed to refer to the subjectcited above and to say that the question of granting additional monetary incentive to officers belonging toNorth-East Cadres of the AII India Services has beenengaging the attention of the Government for some time.Accordingly, it has now been decided to grant a specialallowance to the officers belonging to North-East Cadresof All India Services who are working in the North-Eastern Region. The allowance will be called "SpecialAllowance for officers belonging to North-East Cadres ofAII India Services" and will be payable to the officersbelonging to North-East Cadres Of AII India Services whilethey are actually working in the North-Eastern Region @25% of their basis pay in addition to other allowancespresently peyable to them. These orders will take effectfrom the date of their issue.

2. This issues with the concurrence of Department ofExpenditure (Ministry of Finance).

Sd/-

(Harjot Kaur)

Director (Services)"

"No.11(5)/2008-E.II(B)Government of IndiaMinistry of FinanceDepartment of Expenditure New Delhi, the 2gr August, 2008.

OFFICE MEM0lIANDUM

Suh5ect .- Special (Duty) Allowance for Civilian Employees of theCentral Government serving in the North EasternRegion (including Sikkim and Ladakh -Recommendations of Sixth Central Pay Commission.

2. Special (Duty) Allowance is admissible in NorthEastern Region @ 12.5% of the basic pay as prescribedin Para 2(iii) of this Ministry's O.M. No.11(2)/97-E.II(B),dated 22.7.1998 as amended from time to time, to thoseemployees who are posted from outside the regionhaving `AII India Transfer Liability'. In partialmodification of O.M. dated 22.7.1998, and O.M.No.11(5)/97-E.II(B), dated 29.5.2002, on therecommendations of Sixth Central pay Commission, thePresident is now pleased to decide that this allowanceshall be admissible to the Central government employees@ 12.5% of (the revised Basic Pay + NPA whereapplicable) irrespective of whether the transfer (includingon initial appointment) is from outside the North EasternRegion or from another area of that region. The existingcondition that employees should have All India TransferLiability has also been dispensed with.

Sd/-

(Madhulika P. Sukul)

Joint Secretary to the Government of India"

Based upon the above Government OfficeMemoranda's, it is sought to be argued that the benefit ofNorth-East Allowance is available only to a Member of AllIndia Service belonging to any of the North-Eastern Statecadre and posted therein. It is submitted that the petitionerprior to his appointment as Member/Chairman of the SikkimPublic Service Commission was not a Member of All IndiaService as defined under the All India Services Act, 1951 andthus, he is not entitled to such allowance notwithstanding hisappointment as Chairman of the Sikkim Public ServiceCommission.

8. We have heard the learned counsel for the parties.The controversy in the present petition hinges upon theinterpretation of Regulation 13 of the 1983-Regulations.Indubitably, the regulations framed under Article 318 of theConstitution of India are statutory in nature and are bindingupon the parties. It is admitted position of the parties thatthe petitioner on his superannuation from the State servicewas appointed as the Member of the Sikkim Public ServiceCommission and thereafter, served as its Chairman initiallywithout any formal order with effect from 08.01.2009 andthereafter, in Officiating capacity pursuant to the Notificationdated 06.04.2010 till he demitted his office as the Chairman

of the Commission on 07.03.2011. The regulations noticedhereinabove provide for payment of salary, leaveencashment, gratuity and pension. The regulations do notenvisage the payment of special allowance/North-EastAIlowance obviously for the reason that when the regulationswere framed, perhaps this allowance was not payable.However, Regulation 13 clearly provides for equation of theconditions of service of Chairman of the Commission to thatof the Chief Secretary of the State in respect to all suchmatters for which there is no express provision under theregulations. It signifies that if any benefit other than theprescribed under the regulations is available to the ChiefSecretary of the State as may be determined by the Rulesand Orders for the time being applicable to him, theChairman of the Commission would be entitled to such abenefit. In other words, any such rule or order granting anyservice benefit to the Chief Secretary shall mufafr.s mufandt.sapply to the Chairman of the Commission as conditions of hisservlce.

The contention of Mr. J. 8. Pradhan, learned Addl.Advocate General appearing on behalf of the respondent-State is that the North-East AIlowance is only payable to theAll India Service members belonging to the State cadreposted in the State and not to the Chairman of the Commission is bereft of any logic or legal sanctity. A bareperusal of Regulation 13 wherein unequivocal and unqualifiedemphasis is on equation of conditions of service of theChairman with the Chief Secretary of the State in respect toall matters for which the regulations are silent. Proviso toRegulation 13, however, protects the conditions of service ofthe Chairman or Member on appointment as suchChairman/Member if any of the conditions of service underRegulation 13 is less favourable to him. Its natural corollaryis that only advantageous conditions of service envisagedunder Regulation 13 are applicable to the Chairman/Member.Thus, if any benefit is available to the Chief Secretary underany rule or order, the Chairman shall be entitled to suchbenefit if not disadvantageous subject to regulations framedunder Article 318. It is not in dispute that the ChiefSecretary of the State is entitled and is receiving North-EastAllowance by virtue of the Office Memoranda's (AnnexureR-7 and R-8). This fact is even admitted by Mr.Pradhan. Hence in absence of any express provision underthe regulations disentitling him, the petitioner is entitled toNorth-East AIlowance under the same rule and order, i.e.Office Memoranda's (Annexure R-7 and R-8) as are applicableto the Chief Secretary by virtue of parity of conditions ofservice with that of the Chief Secretary of the State. Any

other interpretation would impinge upon and do violence tothe provisions of Regulation 13.

]0. For the above reasons, this petition is allowed. Therespondents are directed to grant North-East Allowance asreceivable by the Chief Secretary of the State to thepetitioner for the period he has served as a Chairman of theSikkim Public Service Commission. The benefit be calculatedand paid to the petitioner within a period of 3 (three) months,failing which the petitioner shall be entitled to the interest @6% till the amount is actually paid.

In the circumstances, no order as to costs.

P=

Approved for Reporting: Yes/N-t-Internet: Yes/ Dto (Permed Kohli)Chief Justice11.09.2012Judge11.09.2012