Telangana High Court
S.Surendar Singh vs The State Of Telangana, And Another on 27 June, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 24234 OF 2020
ORDER:
This Writ Petition is filed questioning G.O.Ms.No.43, dated 01.09.2018 issued by the 1st respondent and not paying lawful salary and allowances for the past 35 months to petitioner on par with the members of the Telangana Public Service Commission, Telangana B.C. Commission, Telangana SC,ST Commission as illegal and also against the principles of natural justice and the Telangana State Minorities Commission Act, 1998. Consequently, a direction is sought to the 1st respondent to pay lawful salary and allowances for 35 months to petitioner on par with the members of the Telangana Public Service Commission, Telangana B.C.Commission, Telangana SC,ST Commission.
2. Petitioner is stated to have been appointed as member of Telangana State Minority Commission under the provisions of Telangana State Minority Commission Act, 1998 (Act 31 of 1998) (for short, 'the Act') through Gazette No. 1A, dated 02.01.2018. It is stated, the 1st respondent issued the impugned G.O. fixing the salary and allowances to the Vice- Chairman and members as follows :-
2
" Sitting fee for every sitting Rs.1000/- not exceeding 20,000 Per Month, allowance, Telephone, Stationary and other Expenses Rs. 5000/- Per Month, Travelling Allowances for the tours undertaking as Group A Senior Scale of Government Officer.
It is further stated that the 1st respondent had also issued G.O.Ms. No. 44, dated 01.09.2018 fixing salary and allowances to the Chairman, Telangana State Minority Commission at Rs.1,00,000/- ( Lump-sum Salary) and other allowances on par with cabinet minister for the State of Telangana, whereas petitioner has been drawing average approximately Rs. 45,000/- per month and the Chairman was drawing per month above Rs.3,00,000/-. Further it is stated that, subsequently the 1st respondent had issued G.O.Ms No. 34 dated 18.07.2019 duly revising the pay to the Chairman that drawing lumpsum salary and allowances on par with Chairman of Telangana State Public Service Commission and Chairman Backward Class Commission, which Chairman has been drawing since then till today at Rs. 2,25,000/- per month and allowances. The members of the Telangana State Public Service Commission (TSPSC) and BC Commission are also drawing on par with the members of the Telangana State Public Service Commission Rs.2,24,100/-per month and allowances, but the 1st respondent has not revised the salary of petitioner.
Petitioner further stated that subsequently, he made representation to the Hon'ble Chief Minister to revise 3 salaries and allowances on par with members of TSPSC and BC Commission as enhanced to Chairman of Telangana Minority Commission on 09.09.2019, the same was perused by the Hon'ble Chief Minister Office which directed the 1st respondent to examine the same and take necessary action through proceedings No. 158/ CMP-OV/2019, dated 28.12.2019, but the 1st respondent has not enhanced the salaries and allowances on par with the members of TSPSC and BC Commission which is nothing but discriminatory and arbitrary. It is stated, salary and allowances of Chairman of Telangana State Minority Commission were enhanced on par with Chairman of TSPSC and BC Commission, but the members of the Telangana State Minority Commission Salaries and allowances have not been enhanced on par with the former's members which amounts to violation of Articles 14, 16, 19 and 21 of the Constitution of India, which cannot be allowed by law.
4. On the contrary, the 1st respondent has filed the counter-affidavit stating that the Government vide G.O.Rt.No.43, dated 01.09.2018 issued orders conferring cabinet status to Chairman and vide Memo dated 26.11.2019, clarified that Chairman, Telangana State Minorities Commission is entitled to pay and other facilities as applicable to Hon'ble Ministers as per Act 6 of 2016 from the date of conferring status 4 of cabinet Minister i.e 03.01.2018. It is stated that the government vide G.O.Ms.No.2, dated 02.01.2018 constituted Telangana State Minorities Commission with Chairman, Vice-
Chairman and five Members and petitioner is one among the five. Therefore the said G.O is applicable only to Chairman, Telangana State Minorities Commission but not to Vice-
Chairman and Members thereof. Government vide G.O.Ms. No.44, dated 01.09.2018 and G.O.Ms.No.60, dated 11.09.2018 sanctioned allowances and other emoluments to Vice-Chairman and Members of Telangana State Minorities Commission from the date of assumption of charge as follows:
Sl.No. Allowances and other Emoluments Amount
1. Sitting fee for every sitting Rs.1,000/- per sitting (not exceeding Rs.20,000/- per month.
2 Allowance towards local conveyance, Rs.5,000/- per month.
telephone, stationery and other
expenses.
3 Travelling allowance and dearness At the rates admissible
allowance for the tours undertaken in to Group-A (Senior
performance of the functions. (Provided Scale) Government
that the TA & DA shall be limited to the Officer.
Tours not exceeding 10 days per month) It is stated that the Government issued G.O.Ms.No.34 dated 18.07.2019 revising the pay of Chairman, Telangana State Minorities Commission, Hyderabad on par with Chairman, Telangana State Public Service Commission and Chairman, B.C Commission, Telangana State. It is vehemently contended that it is the Government's prerogative to revise the 5 salaries to the Members of the Commission and it is not mandatory to revise the salaries of the members of Minorities Commission as and when the salaries are hiked for Members of other constitutional bodies. Moreover, there is difference of pay in salaries for Chairman and other bodies. Petitioner is the former member of Telangana State Minorities Commission. The Government already sanctioned certain allowances and other emoluments to Vice-chairman and other members of Telangana State Minorities Commission, hence, there is no violation of law.
It is further contended that Vice-chairman and members of the Commission had requested the Government to revise their salaries and allowances on par with members of Telangana State Commission for SCs and STs and accordingly, after careful consideration, the Government rejected their request; lastly, it was contended that this Writ Petition is neither maintainable in law nor on facts, therefore, sought for dismissal of the Writ Petition
5. Petitioner filed the reply stating that Chairman, who was appointed along with petitioner was paid salaries and allowances under Sections 7 and 8 of the 1998 Act and Regulations 2000 and the same was adopted by the Telangana State on 22.08.2014 and the same are eligible to him also, but petitioner was paid per sitting Rs.1,000/- (Rupees One 6 Thousand Only) not exceeding Rs.20,000/- per month and local conveyance, Telephone, Stationery and other expenses at Rs.5,000/- per month and not paid allowances at par with TSPSC Members, BC Commission Members. G.O.Ms.No.34, dated 18.07.2019 was issued by the 1st respondent pertaining to salary and allowances of the Chairman of the Telangana State Minority Commission, on par with Telangana State Public Service Commission, Chairman and B.C. Commission Chairman at Rs.2,25,000/- per month and other allowances and not paying salaries to petitioner, who was the member of the Telangana State Minority Commission, Rs.2,24,100/- per month.
6. Heard Sri Chikkudu Prabhakar, learned counsel for petitioner and Sri Swaroop Oorilla, learned Special Government Pleader on behalf of learned Additional Advocate General for respondents. Perused the record.
7. Firstly, it is to be noted that Government vide G.O.Rt.No.43, dated 01.09.2018 issued orders conferring cabinet status to Chairman and vide Memo dated 26.11.2019 clarified that Chairman, Telangana State Minorities Commission is entitled to pay and other facilities as applicable to Hon'ble Ministers as per Act 6 of 2016 from the date of conferring the status of Cabinet Minister i.e 03.01.2018. Government vide 7 G.O.Ms.No.2, dated 02.01.2018 constituted Telangana State Minorities Commission with one Chairman, Vice-Chairman and five Members and petitioner was one of the said members. Therefore the said G.O is applicable only to Chairman, Telangana State Minorities Commission but not to Vice- Chairman and Members thereof. Government vide G.O.Ms. No.44, dated 01.09.2018 and G.O.Ms.No.60, dated 11.09.2018 sanctioned allowances and other emoluments to Vice-Chairman and Members of Telangana State Minorities Commission from the date of assumption of charge. Thereafter, the Government issued G.O.Ms.No.34, dated 18.07.2019 revising pay of Chairman, Telangana State Minorities Commission, Hyderabad on par with Chairman, Telangana State Public Service Commission and Chairman, B.C Commission, Telangana State. It is Government's prerogative to revise the salaries to the Members of the Commission and it is not mandatory on their part as and when there is hike in salaries for Members of other constitutional bodies like Telangana State SC, ST Commission and Constitutional bodies like Telangana State Public Service Commission. Moreover, there is difference of pay in salaries for Chairman and other bodies. Petitioner is the former member of Telangana State Minorities Commission. The Government already sanctioned certain allowances and other emoluments to 8 Vice-chairman and other members of Telangana State Minorities Commission.
8. At this juncture, it is convenient to rely upon few cases which deal with interference of the Courts in the policy decisions of the State.
9. Policy decisions of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. In this context, reference may be made to the judgment of the Supreme Court in Federation of Railway Officers Association & Ors. vs. Union of India 1, wherein the Court held as under:
" 12. In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion."
In matters affecting policy and requiring technical expertise, Court would leave the same for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution or arbitrary or irrational or abuse of power, the Courts will not interfere with such matters. Reference may also be made to the judgment of the Hon'ble 1 (2003) 4 SCC 289 9 Supreme Court in Directorate of Film Festivals vs. Gaurav Ashwin 2 where the Court held as follows:
"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate."
10. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy and not the wisdom or soundness of the policy is the subject of judicial review. The scope of judicial review in policy matters is no longer res integra. It is settled law that Courts would not, ordinarily, interfere with the policy decision of the executive unless the same can be faulted on the grounds of mala fides, unreasonableness, arbitrariness or unfairness, in which case the policy would render itself to be declared 2 (2007) 4 SCC 737 10 unconstitutional. In State of Punjab vs. Ram Lubhaya Bagga 3, it was held thus:
".......When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out in affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21when it restricts reimbursement on account of its financial constraints.
11. On similar lines was the pronouncement of Hon'ble Apex Court in Ugar Sugar Works Ltd. Vs Delhi Administration 4 reported in, wherein the Apex Court held as under:
" The challenge, thus, in effect, it to the executive policy regulating trade in liquor in Delhi. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference to the judgment of the executive. The Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."3
(1998) 4 SCC 117 4 (2001) 3 SCC 635 11
12. In Balco Employees Union (Regd.) Vs Union of India 5, the Hon'ble Apex Court in Paragraph 92 and 98 held as under:
" In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.
98. In the case of a policy decision on economic matters, the Courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the Court is satisfied that there is illegality in the decision itself."
13. The Hon'ble Supreme Court in yet another decision in Parisons Agrotech Private Limited vs. Union of India 6, had reiterated the above said view and observed as under:
" No doubt, the Writ Court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution of India, power of Judicial Review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could br more appropriate or better alternatives.
Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is 5 (2002) 2 SCC 333 6 (2015) 9 SCC 657 12 backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the Judicial Review."
14. The Hon'ble Supreme Court while allowing Civil Appeal No. 5133 of 2019 (arising out of SLP (C) No.30090 of 2018) titled Vasavi Engineering College Parents Association vs State of Telangana held as under:
" Judicial review, as is well known, lies against the decision making process and not the merits of the decision itself. If the decision making process is flawed inter alia by violation of the basic principles of natural justice, is ultravires the powers of the decision maker, takes into consideration irrelevant materials or excludes relevant materials, admits materials behind the back of the person to be affected or is such that no reasonable person would have taken such a decision in the circumstances, the court may step in to correct the error by setting aside such decision and requiring the decision maker to take a fresh decision in accordance with the law.
The Court in the garb of Judicial Review, cannot usurp the jurisdiction of the decision maker and make the decision itself. Neither can it act as an Appellate Authority of the Telangana Admission & Fee Regulatory Committee."
15. Likewise, in Fertilizer Corporation Kamgar Union (Regd.), Sindri vs Union of India 7, the Hon'ble Apex Court observed as under:
" ....We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the 7 (1981) 1 SCC 568 13 parameters of judicial review must be clearly defined and never exceeded. If the directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task.
This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration."
16. It is relevant to mention here that the judicial restraint in exercise of judicial review was considered in State of (NCT) of Delhi Vs Sanjeev 8, as follows:
"....One can conveniently classify under three heads the grounds on which administrative action is subject to control by Judicial Review. The first ground is illegality, the second irrationality, and the third procedural impropriety.
These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If power has been exercised on a non-consideration or non-application of mind to relevant factors, exercise of power will be regarded as manifestly erroneous. If power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated.
17. It needs no emphasis that complex executive decisions in economic matters are necessarily empiric and 8 (2005) 5 SCC 181 14 based on experimentation. Its validity cannot be tested on any rigid principles or application of any straitjacket formula. The Court while adjudging the validity of an executive decision in economic matters, must grant a certain measure of freedom or play in the joints to the executive. Not mere errors but only palpably arbitrary decisions alone can be interfered with in judicial review.
18. In yet another decision of the Hon'ble Apex Court in Peerless General Finance & Investment Co. Ltd. Vs Reserve Bank of India 9, it was observed:
" The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts."
It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters, even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts. In the context of Indian jurisprudence, the Constitution is the supreme law. All executive or legislative actions have to be tested on the anvil 9 (1992) 2 SCC 343 15 of the same. Such actions will have to draw their sustenance as also their boundaries under the same. Any action falling foul of the constitutional guarantees will call for corrective action in judicial review to ensure adherence to the constitutional ethos. But so long as the fabric of the constitutional ethos is not set as under, Courts will have to exercise restraint, more particularly in matters concerning domain experts, else the risk of justice being based on individual perceptions which may render myths as realities inconsistent with the constitutional ethos. Courts often adjudicate disputes that raise the question of how strictly should they scrutinise executive or legislative action. Therefore, Courts have identified certain questions as being inappropriate for judicial resolution or have refused on competency grounds to substitute their judgment for that of another person on a particular matter.
19. In the recent decision of the Hon'ble Apex Court, it was held that Courts cannot usurp the jurisdiction of decision- makers in the garb of judicial review, while setting aside the Telangana High Court's Orders fixing Fee Structure of Unaided Minority & Non-minority Institutions for Engineering Courses for 2016-17 & 2018-19 academic years in Civil Appeal Nos. 5133-35 of 2019 (arising out of SLP (C) No. 30090 of 2018) in 16 the case of Vasavi Engineering College Parents Association Vs State of Telangana.
20. In the considered opinion of this Court, the decision taken by the State more particularly with respect to allowances and other emoluments cannot be disturbed since they are not found to be grossly arbitrary or irrational. Further, it is government's prerogative to revise the salaries to the Members of the Commission and it is not mandatory for the Government to revise the salaries of the members of Minorities Commission, as and when the salaries are hiked for Members of other constitutional bodies like Telangana State SC, ST Commission and Constitutional bodies like Telangana State Public Service Commission. Further, there is difference of pay in salaries for Chairman and other bodies. Petitioner is the former member of the Telangana State Minorities Commission and the government had already sanctioned certain allowances and emoluments to Vice-chairman and other members of the Telangana State Minorities Commission. Therefore, viewed from any angle, the relief sought by petitioner is misconceived and any interference from this Court would amount to usurping the jurisdiction of decision-makers in the garb of judicial review which is impermissible in view of the decisions cited supra. 17
21. In the result, the Writ Petition is dismissed. No costs.
22. Consequently, the miscellaneous Applications, if any shall stand closed.
-------------------------------------- NAGESH BHEEMAPAKA, J 27th June 2024 ksld