Delhi High Court
Dr. Zafarul Islam Khan vs Govt. Of Nct Of Delhi Through Chief ... on 4 July, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 04, 2022
+ W.P.(C) 3564/2021, CM No. 1647/2022
DR. ZAFARUL ISLAM KHAN ..... Petitioner
Through: Mr. M. R. Shamshad, Mr. Arijit Sarkar and
Ms. Nabeela Jamil, Advs.
versus
GOVT. OF NCT OF DELHI
THROUGH CHIEF SECRETARY & ORS. ..... Respondents
Through: Mr. Sameer Vashisht, ASC (Civil) GNCTD
with Ms. Sanjana Nangia, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
C.M No. 1647/2022 (Condonation of Delay - 18 days)
This is an application filed by the petitioner seeking condonation of 18
days delay in filing the rejoinder affidavit. For the reasons stated in the
application delay in filing the rejoinder affidavit is condoned. The same is
taken on record.
The application stands disposed of.
W.P. (C) No. 3564/2021
1. The present petition has been filed with the following prayers:
"In the facts and circumstances as enumerated hereinabove, it is
most humbly prayed that this Hon‟ble Court:
A. ISSUE appropriate directions ensuring that Decision No.
2600 dated 17.07.2018 is given effect to by the Respondents
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from the said date, including all consequential benefits, such
as HRA, and leave encashment.
B. ISSUE appropriate directions ensuring that the Petitioner is
granted the benefit of Council of Ministers, Govt. of NCT of
Delhi‟s Decision No. 2600 dated 17.07.2018 in terms of prayer
A above.
C. PASS any other direction(s) or order(s) as may be deemed
fit."
2. It is the case of the petitioner / Dr. Zafarul Islam Khan that he served
as the Chairperson of the Delhi Minorities Commission (hereinafter, „DMC‟)
from July 20, 2017, to July 19, 2020.
3. The respondent No.1 is the Govt. of NCT of Delhi (hereinafter,
„GNCTD‟). Respondent No.2 is the Principal Secretary / Divisional
Commissioner (Revenue). The Revenue Department is the Administrative
Department responsible for the DMC. Respondent No.3 is the Principal
Secretary (Finance), GNCTD. That apart, respondent No.5 is the Secretary,
DMC.
4. It is submitted by Mr. M.R. Shamshad, Advocate appearing on behalf
of the petitioner that on February 08, 2000, the Delhi Minorities Commission
Act, 1999 (Delhi Act 1 of 2000) (hereinafter, DMC Act) came to be notified
and published and came into effect on the same date.
5. On November 03, 2000, in exercise of the powers conferred by
Section 16(1) of the DMC Act, the GNCTD notified the Delhi Minorities
Commission Rules, 2000 (hereinafter, „DMC Rules, 2000‟).
6. On July 19, 2017, the petitioner was nominated as Chairperson, DMC,
by the Lt. Governor, Delhi in exercise of powers under Section 3 of the DMC
Act.
7. On November 24, 2017, the petitioner met with the Chief Minister,
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GNCTD, and raised the issue of the abysmal salary / honorarium paid to the
Chairperson and Members of the DMC. Mr. Shamshad submitted that the
Chief Minister orally directed his staff that the same was to be revised on an
urgent basis.
8. As per the Minutes of Meeting of the Council of Ministers dated July
17, 2018, it was decided to enhance the salary of Chairperson of the Delhi
Commission for Safai Karamchari and the Delhi Commission for OBC to
₹2,00,000/- per month. It is contended by Mr. Shamshad that the said decision
was also made applicable to the Chairman of the DMC. The said decision also
stated that the concurrence of the Lt. Governor is not required in light of the
then-recent Supreme Court of India‟s judgment on the issue. On July 20,
2018, the Minutes of Meeting dated July 17, 2018, was circulated by the Joint
Secretary of the Council of Ministers, GNCTD.
9. On October 10, 2018, the revision of the honorarium paid to the
Chairperson and Members of the Delhi Commission for Women in terms of
an amendment to the Delhi Commission for Women (Honorarium and
Allowances and Conditions of the Service of the Chairperson and Members
and Other Provisions) came to be notified. Thereafter, the honorarium of the
Chairperson was increased to ₹2,00,000/- per month and the honorarium of
the Members was increased to ₹1,00,000/- per month.
10. On July 19, 2020, the petitioner‟s term as Chairman of DMC expired
in terms of Section 4 of the DMC Act and Rules 3 and 4 of the DMC Rules,
2000.
11. It is submitted that the petitioner filed a writ petition bearing No.
6836/2020 before this Court seeking issuance of appropriate directions to
ensure the parity of salary and / or honorarium paid to the Chairperson of the
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various Commissions by the GNCTD. Mr. Shamshad stated that this Court
disposed of the said writ petition vide order dated November 04, 2020, by
relying on the submissions made on behalf of the respondents that they would
be treating the petition as a representation and decide the same within a period
of 8 weeks. However, this court also recorded that if the petitioner is
dissatisfied with the response of the respondents, he shall be free to challenge
the same in accordance with the law.
12. Mr. Shamshad submitted that the case of the petitioner is that a policy
decision of the Council of Ministers cannot be kept pending for years and
simultaneously implementing the same Common Resolution for the other
Commissions and selectively discarding the claim of the petitioner to say that
the Notification for the Minority Commission was issued only on June 09,
2021 (after three years) and the same can be only applied from that date and
not from the date of the resolution of the Council of Ministers, which is
contrary to the Notification dated July 05, 2019, issued by the Department for
the welfare of SC/ST/OBC, GNCTD. Hence, the case is of denial of equal
treatment and the discriminatory implementation, in giving effect to the
common executive action which is a violation of Article 14 of the Constitution
of India. Mr. Shamshad submitted that the discretion vested in administrative
authority, which is not properly controlled, would be unreasonable. In this
regard, he relied upon the judgment in the case of Municipal Corporation of
the City of Ahmedabad and Ors. vs. Jan Mohammed Usmanbhai and Ors.,
(1986) 3 SCC 20. That apart, he stated that the exercise of discretionary power
is in taking steps to implement the executive decisions should be in
conformity with the doctrine of equality. To support his view, he placed his
reliance upon the judgment in the case of Satwant Singh Sawhney vs. D.
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Ramarathnam and Ors., AIR 1967 SC 1836.
13. It is submitted that Article 14 of the Constitution of India prohibits
discrimination not only on substantive law but also on procedural law. In this
regard, Mr. Shamshad placed his reliance upon the judgment in the case of
Lachmandas Kewalram Ahuja and Ors. vs. The State of Bombay, AIR 1952
SC 235. That apart, he stated that "any administrative decision has to be fair".
To support his view, he placed reliance upon the judgment in the case of
Mohinder Singh Gill and Ors. vs. The Chief Election Commissioner, New
Delhi and Ors., (1978) 1 SCC 405. He stated that, an „arbitrary‟ and
„unreasonable‟ exercise of power would attract Articles 14 and 21 of the
Constitution of India.
14. Reliance has also been placed upon the judgment in the case of State
of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SC 75:
"17....To sustain a law as not being discriminatory is not, however,
to leave the party affected by a discriminatory application of the
law without a remedy, for, as we have seen, state action on the
administrative side can also be challenged as a denial of equal
protection and unconstitutional"
and E.P. Royappa vs. State of T.N., (1974) 4 SCC 3 for similar
proposition.
15. Mr. Shamshad stated that all the persons covered under the Cabinet
Resolution fall under a class and should be treated equally. In this regard, he
placed his reliance upon the judgment of the Supreme Court in the case of
D.S. Nakara & Others vs. Union of India, (1983) 1 SCC 305.
16. It is further submitted that as per Section 16(2) of the DMC Act the
Government is free to regulate the Salaries, Allowances, Status, and facilities
to which the Chairman or a Member shall be entitled.
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17. On the issue of „Policy Decision‟ of the State and Notification issued
subsequently, Mr. Shamshad relied upon the judgments in the cases of Llyod
Electric & Engineering Ltd. vs. State of HP, (2016) 1 SCC 560, State of
Punjab vs. Nestle India Ltd., (2004) 6 SCC 465, and M.V. Srinivasa vs. State
of A.P., (1997) 6 SCC 589.
18. He further submitted that the legal right is emanating from the policy
decision of the government (resolution of the Cabinet) dated July 17, 2018.
According to Mr. Shamshad, it is the case of the petitioner wherein the issue is
a „matter of procedure‟ and not of creating „substantive right‟. Substantive
right is created by the exercise of power under Section 16 of the DMC Act
through „executive action‟ on July 17, 2018. That apart, it is submitted that the
petitioner is seeking its prospective implementation and is not asking for the
said resolution to be applied for his tenure prior to July 17, 2018. Therefore, in
that sense, it is not the issue of retrospective application of a right created in
terms of resolution on July 17, 2018. It is further submitted by Mr. Shamshad
that „in determining the nature of the Act regard must be had to the substance
rather than to the form‟, in this regard, reliance has been placed upon the
judgment in the case of Commissioner of Income Tax vs. Vatika Township
Private Limited, (2015) 1 SCC 1.
19. Mr. Shamshad also submitted that it is a case of „unequal treatment‟ to
a similarly placed person. The same (common) Cabinet Resolution has been
given effect by the other departments contemporaneously. He contended that
one department issued a notification one year later (i.e., on July 05, 2019)
giving effect to the common resolution from the day it was passed i.e., on July
17, 2018.
20. Mr. Shamshad stated that the contention of the respondents about
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Statute / Rule shall ultimately relate to the conduct of „Government Business‟
as enshrined under Article 166 of the Constitution of India. However, it does
not require any formula of words for compliance with Article 166 of the
Constitution of India. In this regard, he relied upon the judgment in the case of
Dattatraya Moreshwar Pangarkar vs. State of Bombay, AIR 1952 SC 181.
That apart, he also submitted that if the decision was taken and order was
issued by the government, the provision under Article 166 of the Constitution
of India is not „mandatory‟ but only „directory‟. To support his view, he relied
upon the judgment, in the cases of R. Chitralekha vs. State of Mysore, AIR
1964 SC 1823 and P. Joseph John vs. State of Travancore-Cochin, AIR
1955 SC 160. He seeks prayers as made in the petition.
21. On the other hand, Mr. Sameer Vashisht, learned Counsel appearing
for respondent No.2 submitted that the prayer made by the petitioner is not
maintainable as the Notification dated June 09, 2021, issued by the
Department of Revenue, GNCTD is prospective in nature and is not
retrospective. The Notification was issued by the different departments of the
Government notably the Department of Law, Justice and Legislative Affairs,
Department of Finance, and Department of Revenue. It is submitted that
Cabinet Decision No. 2600 dated July 17, 2018, was also considered and the
said Cabinet Decision nowhere directed or decided that the revised salary and
other perks shall be from the date of the said decision and not the notification.
22. It is submitted that after obtaining comments from all the concerned
Departments of the Government, under Section 16 of the DMC Act, the salary
of the Chairperson of the DMC was revised as per Section 16(1) of the DMC
Act. The DMC Rules, 2000, was amended vide Notification dated June 09,
2021, and Delhi Minorities Commission (Amendment) Rules, 2021 was
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notified.
23. It is further submitted that the revision of the salary of the Chairperson
of the DMC is in the form of a fiscal statute and therefore the same has to be
interpreted strictly. According to Rule 1(2) of the Delhi Minorities
Commission (Amendment) Rules, 2021, the amendment shall come into force
on the date of the notification itself and not on the date of the Cabinet
Decision. The said notification was gazetted on the same date and hence, the
same could not be notified retrospectively. Furthermore, the liability / duty of
the government starts from the date the said fiscal statute is notified and not
from the date of the Cabinet Decision, until and unless specified otherwise.
24. It is submitted that respondent No.2 has complied with the Order
dated November 04, 2020, of this Court, and there was no intentional delay
whatsoever in taking the decision by the Government.
25. That apart, respondent No.2 submitted the following details showing
the movement of the file and the prompt action taken by the different
departments:
S. No. Date Course of Action
1. July 17, 2018 Cabinet Decision No. 2600 was taken for
revising the salary of the Chairperson of
DMC.
2. July 05, 2019 Finance Department processed the said draft
Cabinet Note of the Revenue Department to
amend Rule 3 of DMC Rules, 2000.
3. July 11, 2019 The Chairman of DMC was informed by the
Finance Department about the revision of
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salary which is under consideration, and also
forwarded the copy of the reply /
observations received from JSF (Accounts)
and Finance Department.
4. September 21, Writ Petition No. 6836/2020 was filed vide
2020 which the following has been prayed:
A. Issue appropriate directions ensuring
that Decision No. 2600 dated July 17,
2018, is given effect to by the
respondent from the said date,
including all consequential benefits,
such as HRA, and leave encashment.
B. Issue appropriate directions ensuring
that the petitioner is granted the
benefit of Council of Ministers,
GNCTD Decision No. 2600 dated
July 17, 2018, in terms of prayer A
above.
5. November 04, Writ Petition No. 6836/2020 was disposed
2020 of by this Court observing that: "The
respondent shall consider the content of the
present petition as a representation and
decide the same positively within a period of
8 weeks".
6. November 09, A draft notification, thereby amending Rule
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2020 3 of the DMC Rules, 2000 for revision of
the salary of the Chairperson and the
Members of DMC, at par with that of the
Chairperson and Members of the Delhi
Commission for women, in light of the
Cabinet Decision No. 2600, Delhi, was sent
to for vetting to the Department of Law,
Justice and Legislative Affairs, GNCTD.
7. December 10, The Law Department required the following
2020 documents for finalisation of the proposal:
1. An up-to-date amended Gazette copy
of the DMC Act.
2. An up-to-date amended Gazette copy
of the DMC (Salary and Other
conditions of service of the
Chairperson and Members of the
Commission) Rules, 2000.
3. Any notification issued under the
same provision of the said Act;
4. Comments from the Finance
department may be obtained in this
regard.
5. Approval from the Finance
department may be obtained in this
regard.
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8. December 15, Letter was forwarded to DMC for
2020 comments.
9. December 22, Reply was received from DMC, and a file
2020 was sent to the Finance Department,
GNCTD for their comments.
10. February 01, The file was received from Finance
2021 Department, GNCTD, the Finance
Department has no comments to offer.
11. February 04, The file was sent to Law Department for
2021 consideration and to take necessary action.
A draft notification was thereafter prepared
to amend Rule 3 of the DMC Rules, 2000
for revision of the salary of the Chairperson
and the Members of DMC and to bring the
salary at par with that of the Chairperson
and Members of the Delhi Commission for
women. This was done in light of Cabinet
Decision No. 2600.
12. March 17, The Law Department examined the matter
2021 and returned the file with the following
remarks:
In this case, the High Court has observed
that looking at the nature of the relief
sought, it is directed that the respondents
shall consider the contents of the present
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petition as a representation and decide the
same positively within a period of eight
weeks from the date of Order i.e., November
04, 2020, and result of such consideration
shall be communicated to the petitioner
within the same period, if the petitioner is
dissatisfied with the same, it shall be open to
him to challenge the same in accordance
with the law. The High Court did not direct
to take the decision in a specific or particular
manner and left it to the respondents to take
a decision and inform the same to petitioner,
it is hoped that the decision has been taken
by the administrative Department and the
petitioner is informed, as directed by the
High Court.
The Administrative Department, while
proposing the proposed amendments, has
clearly stated that these shall take effect
from the date of notification. Therefore, the
policy decision taken may be given effect
accordingly. It is already clarified that High
Court did not direct to give effect to the
Cabinet Decision from the retrospective
date.
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13. March 23, Following two proposals are submitted for
2021 the approval of the Competent Authority:
1. Firstly, in Compliance of the Order
dated November 04, 2020, of this
Court a draft speaking Order may be
submitted for the approval of the
Competent Authority that the contents
of the petition in W.P. (C) 6836/2020
of Dr. Zafarul Islam Khan, Ex-
Chairperson, DMC considered as a
representation and the Competent
Authority has decided that the
aforesaid request is not maintainable
on the grounds that the Cabinet
Decision No.2600 dated July 17,
2018, does not take effect
retrospectively.
2. Secondly, if agreed, the said fair draft
notification as vetted by the
Department of Law, Justice & LA
Department, GNCTD, regarding an
amendment in Rule 3, in Chapter-II of
DMC Rules, 2000 may be sent for the
approval of the Finance Department,
before submitting the same for the
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approval of the Competent Authority
i.e., Lt. Governor, Delhi.
14. April 13, Speaking Order in respect of W.P. (C)
2021 6836/2020 has been sent to Dr. Zafarul
Islam Khan, Ex-Chairman, DMC.
15. June 04, 2021 Lt. Governor, Delhi approved the proposal
regarding amendment in Rule 3 Chapter-II
of DMC Rules, 2000.
16. June 09, 2021 Notification regarding amendment in Rule 3
Chapter-II of Delhi Minorities Commission
Rules, 2000 was sent to GAD, GNCTD for
publication in the Delhi Gazette. The said
notification was gazette on the same date.
26. Respondent No.4 / DMC has also filed an affidavit wherein an
identical stand as has been taken by the other respondents was reiterated.
27. Having heard the learned counsel for the parties, the only issue which
arises for consideration is whether the petitioner is entitled to the benefit of the
Cabinet Decision No. 2600 dated July 17, 2018, by which it has been decided
that the enhancement of salary on a consolidated basis with regard to
Chairperson of the DMC (in this case) be increased to ₹ 2,00,000/- per month.
28. There is no dispute that the petitioner was appointed as Chairperson of
the DMC on July 19, 2017. The terms and conditions stipulating the term of
office and condition of service is provided in Section 4 of the DMC Act and
Rules 3 and 4 of the DMC Rules, 2000. It appears that Rules 3 and 4 of the
DMC Rules, 2000 provided a consolidated salary of ₹18,000/- per month to
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the Chairperson.
29. The submission of Mr. Shamshad, learned counsel for the petitioner is
that a subsequent Gazette Notification was issued on June 09, 2021, amending
Rule 3 of the DMC Rules, 2000 governing the Salary and other conditions of
Chairperson and Members of the Commission, thereby fixing the salary of
Chairperson at ₹2,00,000/- per month. This according to Mr. Shamshad has
not been given a retrospective effect from the date of appointment or from the
date when the Cabinet has taken a decision. He stated, that the petitioner
having demitted the Office of the Chairperson on July 19, 2020, was not given
the benefit of that notification, as he continued to draw the old salary and the
same is illegal and arbitrary in nature.
30. I am not impressed by the submission made by Mr. Shamshad for
more than one reason. Firstly, the petitioner has not challenged the vires of the
notification dated June 09, 2021, inasmuch as the said notification vide Rule 1
(2) clearly stipulates that the amendment to Rule 3 of the Rules of 2000 shall
come into effect on the date of the notification in the Delhi Gazette.
Admittedly, the said notification was notified on June 09, 2021, and as such
shall have a prospective effect. Secondly, the plea of Mr. Shamshad by relying
upon the notification issued in the case of the Delhi Commission for Women
on October 10, 2018, to state that in the case of the Chairperson of the Delhi
Commission for Women, the salary was increased to ₹2,00,000/- per month
w.e.f October 10, 2018, and nothing precluded the respondents to issue a
similar notification in the year 2018 itself with regard to DMC so as to enable
the petitioner to get the benefit of a higher salary is without merit for two
reasons: (i) the notification with regard to the Delhi Commission for Women
was issued on October 10, 2018, with a similar stipulation that the said
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notification shall come into force on the date of the notification in the Delhi
Gazette; (ii) it is not the case of the petitioner that the notification dated
October 10, 2018, has been given effect to from the date of the Cabinet
decision, i.e., July 17, 2018.
31. In the present case, the respondent has justified the issuance of
notification for reasons highlighted in paragraph 29 above. It appears that
pursuant to Cabinet Decision No. 2600 dated July 17, 2018, the administrative
process has resulted in the issuance of the notification only in the year 2021.
Mr. Shamshad has not contested those reasons highlighted by the respondent.
Hence, the issuance of notification in the year 2021 cannot be contested or set
to naught. It so happened that the petitioner had demitted the office by the
time (i.e., on July 19, 2020), the notification was issued and as such he could
not get the benefit of the notification for enhanced consolidated salary. The
issue can also be seen from another perspective inasmuch as unless there is a
specific stipulation in the Act, i.e., DMC Act for making a rule with
retrospective effect, Rule 3 of the Rules of 2000 of which amendment is
effected cannot be given retrospective effect. This conclusion of mine is de-
hors my conclusion above that the petitioner has not challenged the vires of
Rule 1(2) of the Notification dated June 9, 2021. This issue is covered against
the petitioner in terms of the Judgment of the Supreme Court in the case of
Assistant Excise Commissioner, Kottayam & Ors. v. Esthappan Cherian &
Anr., Civil Appeal No. 5815/2009 wherein the following has been stated:
"14. There is profusion of judicial authority on the proposition that
a rule or law cannot be construed as retrospective unless it
expresses a clear or manifest intention, to the contrary.......
15. Another equally important principle applies: in the absence
of express statutory authorization, delegated legislation in the
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form of rules or regulations, cannot operate retrospectively. In
Union of India v M.C. Ponnose, 1970 SCR (1) 678 this rule was
spelt out in the following terms:
"The courts will not, therefore, ascribe retrospectivity to new laws
affecting rights unless by express words or necessary implication
it appears that such was the intention of the legislature. The
Parliament can delegate its legislative power within the
recognised limits. Where any rule or regulation is made by any
person or authority to whom such powers have been delegated by
the legislature it may or may not be possible to make the same so
as to give retrospective operation. It will depend on the language
employed in the statutory provision which may in express terms or
by necessary implication empower the authority concerned to
make a rule or regulation with retrospective effect. But where no
such language is to be found it has been held by the courts that the
person or authority exercising subordinate legislative functions
cannot make a rule, regulation or bye-law which can operate with
retrospective effect."
(emphasis supplied)
32. In so far as the judgments (as referred to in Para 14 and 15) so relied
upon by Mr. Shamshad are concerned, the same have been relied upon by him
on the following proposition of law:
i. That the discretion vested in administrative authority, which is
not properly controlled, would be unreasonable.
ii. That the exercise of discretionary power is in taking steps to
correct the executive decision that violates the doctrine of equality.
iii. Article 14 of the Constitution of India prohibits discrimination
not only on substantive law but also procedural law.
iv. That unfair procedure amounts to an „arbitrary‟ and
„unreasonable‟ exercise of power and such an act, would attract
Articles 14 and 21 of the Constitution of India.
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v. That all persons covered under the Cabinet Resolution fall
under one class and differences in implementation that result in
unequal treatment is bad.
vi. The executive has a duty to act judiciously and fairly.
vii. That in determining the nature of the Act, regard must be given
to the substance rather than to the form.
viii. That, if the decision was taken / order was issued by the
government, the provision under Article 166 of the Constitution of
India is not „mandatory‟, but only „discretionary‟.
33. Suffice to state, in view of my above conclusion, the judgments relied
upon have no applicability. I do not see any merit in the petition. The same is
dismissed. No costs.
V. KAMESWAR RAO, J
JULY 04, 2022/jg
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