Manipur High Court
Khaidem Mani S/O Late Kh. Yaima Of ... vs The State Of Manipur Through The Chief ... on 22 May, 2024
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
Digitally signed by
JOHN JOHN TELEN KOM
TELEN KOM Date: 2024.05.22
14:16:07 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C)No.709 of 2023
1. Khaidem Mani S/o Late Kh. Yaima of Moirangkhom Makha
Loklaobung, PO & PS Imphal, District Imphal West, Manipur.
......Petitioner
- Versus -
1. The State of Manipur through the Chief Secretary, Government of
Manipur, Old Secretariat, Babupara, Imphal, Manipur.
2. The Commissioner (Law), Government of Manipur, New Secretariat,
Babupara, Imphal, Manipur.
3. The Principal Accountant General, Manipur, Babupara, Imphal,
Manipur.
.... Respondents
BEFORE
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Petitioners : Mr. Khaidem Mani, in-person.
For the Respondents : Mr. Shyam Sharma GA & Mr. S. Samajeet, Sr. PCCG
Date of reserved. : 13.05.2024.
Date of order : 22.05.2024
WP(C)No.709 of 2023 Page 1
JUDGEMENT&ORDER
(CAV)
[1] Heard Mr. Khaidem Mani, the petitioner-in-person, Mr. Shyam
Sharma, learned GA for the State respondents and Mr. S. Samarjeet, learned
Sr. PCCG for respondent No.3
[2] By the present writ petition, the petitioner is seeking for issuance of
a writ in the nature of Mandamus or any other appropriate writ or direction,
directing the respondents for pay of due salaries and other allowances which are
yet to paid to the petitioner for performing and acting as the Chairperson of the
Manipur Human Right Commission (MHRC) throughout his full tenure as a
Member.
[3] Brief facts of the case which led to the filing of the instant writ
petition are that the petitioner was initially appointed as a Member of Manipur
Human Rights Commission (MHRC) as per a warrant of appointment dated
25.08.2018 made by Hon'ble Governor of Manipur on the recommendation of
the Committee under the proviso to Sub-Section(1) of Section 22 of the
Protection of Human Rights Act, 1993. On the same day by a separate
notification, Hon'ble Governor of Manipur, in exercise of the power conferred
under Sub-Section(1) of Section 25 of the Protection Human Rights Act, 1993,
authorized the petitioner to act as the Chairperson of the MHRC until a new
Chairperson was appointed.
WP(C)No.709 of 2023 Page 2
[4] It is stated that the petitioner served and acted as the Chairperson
of the MHRC for a period of 4(four) years continuously without any break since
he assumed the office on 30.08.2018 till his demitting the office on 31.08.2022.
[5] It is stated that during his 4(four) year tenure as Acting Chairperson,
several camp sittings of the Commission were held in various districts of
Manipur. Several programmes/events for dissemination of Human Rights and
the remedies available to citizens in cases of violation of human rights were held
on numerous occasions and record of number of cases were filed and disposed
of during his tenure. It is reiterated that during his tenure as the Acting
Chairperson, severable notable tasks were taken up by his Single Bench. For
the first time in the Commission's history, two annual reports of the Commission
for the year 2020-21 and 2021-22 were published and same were placed before
the Manipur Legislative Assembly for its approval. Even during the challenging
times when the nation was struck by the deadly pandemic of Covid-19, the
Commission continued to function.
[6] It is further stated that the petitioner has been given full entitlement,
privileges and other facilities as the full-fledged Chairperson under the Protection
of the Human Rights Act, 1993 and under the Rules of the MHRC (Salaries and
Allowances and other Terms and Conditions of the Service of the Chairperson
and Members) Rules, 2004 as amended from time to time. However, it is alleged
that the petitioner had been denied to draw the salary and allowances of the
WP(C)No.709 of 2023 Page 3
Chairperson under the said Rules. Hence, the petitioner approached this Court
by way of filing the present writ petition seeking the prayers as mentioned above.
Mr. Kh. Mani, the petitioner-in-person submits that when the rule is silent, the
provisions of FR 9, 30 and 49 will be attracted and since the petitioner was
discharging the function and duty of a full-fledged Chairperson throughout his
tenure as a Member of MHRC, he will be entitled to the salary of the Chairperson.
He draws the attention of this Court to the fact that in the pay slip issued by the
office of the Principal Accountant General, Manipur, his designation is mentioned
as Chairperson and hence he is entitled to the salary of the Chairperson. It is
also submitted that a puisne Judge of the High Court is entitled to the salary of
the Chief Justice when he discharges the function of Chief Justice, even for a
brief period. It is prayed that the respondents be directed to grant salary of the
Chairperson of MHRC to the petitioner as he has acted as Chairperson
throughout his tenure as a Member.
[7] Mr. Shyam Sharma, learned GA for the State respondents
submitted that the petitioner is not qualified to be the Chairperson of MHRC as
the qualification of the Chairperson is to be Chief Justice/Retired Chief Justice
of High Court and the substantive post of the petitioner was a Member of the
MHRC. It is submitted that the case of the petitioner is totally based on the letter
dated 20.06.2022 issued by the Deputy Secretary cum Assistant Registrar of the
Manipur Human Right Commission. However, the said Secretary is not an
WP(C)No.709 of 2023 Page 4
appropriate authority to issue such letter regarding the fixation of pay and
allowances of an Acting Chairperson/member of the MHRC. It is further stated
that as per the rules of business of the Government of Manipur, the concurrence
of the Finance department is essential in case of any proposal/order which
affects Finances of state and previous consultation is necessary under Rule 34A
of rules of business of the Government of Manipur. Therefore, letter dated
20.06.2022 was issued by the Deputy Secretary cum Assistant Registrar of the
MHRC in violation of Rules of Business of the Government of Manipur. It is stated
that the writ petition is bad for non-joinder of necessary parties- such as MHRC
and Finance Department. MHRC Rules, 2004 does not stipulates that a Member
who is acting as a Chairperson is entitled to pay and allowance of the
Chairperson. It is further clarified that the provisions of FR and SR will not be
applicable in case of pay and allowances of the Chairperson and Members of
MHRC.
[8] Learned Government Advocate has further submitted that the claim
of the petitioner is barred by principle of estoppel, as he has already accepted
his emoluments and entitlement/allowances of a Member of MHRC without any
protest. It is contended that the petitioner also failed to produce any legal
document for the pending due salaries and allowances and filed his
representation dated 20.02.2023 only after his retirement on 31.08.2022.
WP(C)No.709 of 2023 Page 5
[9] Mr. S. Samarjeet, learned Sr.PCCG for the respondent No.3
[Principal Accountant General, Manipur] submits that the petitioner's pay slip as
per 3rd Amendment Rules, 2018 was issued in the scale of pay fixed for a
Manipur Judicial Service Grade-I @Rs.51,550/- and he is not entitled to the pay
scale of a Chairman. It is submitted that the nothing is left to be done from the
side of the respondent No.3 and prays that it may be deleted from this case.
[10] This Court has considered the materials on record, the submissions
made at bar and the relevant law in this regard.
[11] It is an admitted fact that the petitioner was appointed as a Member
of Manipur Human Right Commission by the warrant/order dated 25.08.2018/
28.08.2018 issued by Hon'ble Governor of Manipur in exercise of power
conferred under Sub-Section (1) of Section 22 of the Protection of Human Rights
Act, 1993. By another order dated 28.08.2018, Hon'ble Governor also authorized
the petitioner to act as the Chairperson of MHRC till appointment of a new
Chairman. It is also an admitted fact that the petitioner discharged the function
of the Chairman of MHRC throughout his tenure as a Member of the Commission
till his retirement on 31.08.2022. It is not in dispute that the petitioner was getting
the salary of a Member of MHRC at the scale of pay and allowances admissible
to MJS Grade-I Officer in terms of 3rd Amendment Rules, 2018. Both parties have
admitted that the petitioner was not given any extra allowances or remuneration
for discharging the function of the Chairperson.
WP(C)No.709 of 2023 Page 6
[12] On bare perusal of the provisions of Manipur Human Rights
Commission (Salaries and Allowances and Other Terms and Conditions of
Service of Chairperson and Members) Rules, 2004 and its amendments made
from time to time specially 2nd and 3rd Amendments, it is seen that Chairperson
is entitled to the pay scale of Chief Justice of the High Court and a Member at
the minimum salary in the scale fixed for a Manipur Judicial Service (MJS)
Grade-I. The Rule is silent about the salary payable to a Member who discharges
function and duty of the Chairperson. It will be relevant to refer the definition of
Chairperson as given in Manipur Human Rights Commission Service Rules,
2021. Rule 2(e) defines "Chairperson" means the Chairperson of the
Commission and shall include the "Acting Chairperson" of the Commission. This
Rule was published in the State Gazette on 25.03.2021. Even though the Rule
of 2021 is with respect to the service conditions for the employees of the
Commission, the definition of the "Chairperson" will have a bearing in the present
case when the relevant rule is silent about the salary of acting Chairperson.
[13] This Court does not find any merit in the preliminary objections of
the State respondents to the maintainability of the writ petition on ground on non-
joinder of necessary party. MHRC itself is espousing the cause of the petitioner
as it has already requested the State Government to correct pay anomaly of the
acting Chairperson of MHRC vide its letter dated 20.06.2022 [Annwxure-A-7]
and the petitioner is not claiming anything against MHRC. The plea of doctrine
WP(C)No.709 of 2023 Page 7
of estoppel is without any force, as the petitioner never relinquished his claim of
the higher salary. It is held that Finance department is not a necessary party and
any concurrence in terms of the rules of business has to be initiated and
processed from the Law department which is the nodal department of MHRC.
[14] When the relevant rule is silent and in order to do complete justice,
it is obligated upon the court to look for the principle and provisions from other
statutory rules of general application. In such situation, the principles embodied
in FR & SR and judicial pronouncements will be relevant.
[15] By any stretch of imagination, the discharge of duty and function of
the Chairperson of MHRC by the petitioner during his tenure as a Member of the
Commission wef 30.08.2018 to 31.08.2022, cannot be said as a stop-gap
arrangement. Rather, the petitioner as a Member of MHRC, was made to
discharge the function of the Chairperson, but denied the full salary by hiding
behind the vagueness of the rules.
[16] It will be relevant to discuss the case law in this regard. Relying on
the leading case of Randhir Singh v. Union of India: (1982) 1 SCC 618 which
postulated the doctrine of equality in the matter of pay and allowances based on
the core principles enshrined in Articles 14 and 16 of the Constitution of India,
Hon'ble Supreme Court held in the case of Arindam Chattopadhyay v. State
of W.B.: (2013) 4 SCC 152, that if a person is made to discharge the function of
a higher post for a considerable long period of time, he/she is entitled to the pay
WP(C)No.709 of 2023 Page 8
and allowances of the higher post, even if not appointed/promoted on regular
basis. The relevant portions are reproduced for ready reference:
13. Reverting to the facts of this case, we find that although the appellants
were recruited as ACDPOs, the State Government transferred and posted
them to work as CDPOs in ICDS Projects. If this would have been a stopgap
arrangement for few months or the appellants had been given additional
charge of the posts of CDPO for a fixed period, they could not have
legitimately claimed salary in the scale of the higher post i.e. CDPO.
However, the fact of the matter is that as on the date of filing of the original
application before the Tribunal, the appellants had continuously worked as
CDPOs for almost 4 years and as on the date of filing of the writ petition,
they had worked on the higher post for about 6 years. By now, they have
worked as CDPOs for almost 14 years and discharged the duties of the
higher post. It is neither the pleaded case of the respondents nor has any
material been produced before this Court to show that the appellants have
not been discharging the duties of the post of CDPO or the degree of their
responsibility is different from other CDPOs. Rather, they have tacitly
admitted that the appellants are working as full-fledged CDPOs since July
1999. Therefore, there is no legal or other justification for denying them
salary and allowances of the post of CDPO on the pretext that they have not
been promoted in accordance with the Rules. The convening of the
Promotion Committee or taking other steps for filling up the post of CDPO
by promotion is not in the control of the appellants. Therefore, they cannot
be penalised for the Government's failure to undertake the exercise of
making regular promotions.
14. In the result, the appeal is allowed. The impugned order 2 as also the
one passed by the Tribunal are set aside and the respondents are directed
to pay salary and allowances to the appellants in the pay scale of the post
of CDPO with effect from the date they took charge of those posts. This
exercise must be completed within 8 weeks from today. The arrears shall be
paid to the appellants within a period of 9 months.
15. Since regular promotions to the post of CDPO have not been made for
more than one decade, we direct the respondents to do the needful within a
period of six months from today.
[17] From the above referred judgment, it is clear that if a person is
made to discharge the function of a higher post for a considerable long period
(as opposed to stop gap arrangement), such person shall be entitled to the salary
WP(C)No.709 of 2023 Page 9
of the higher post. Silence in the rule shall not be an impediment to the entitle of
salary of the higher post. The principles laid down in FR specially FR 49 will be
applicable. The definition of "Chairperson" includes "Acting Chairperson" as per
Rules of 2021.
[18] Adopting the principles laid down in the case of Arindam
Chattopadhyay (supra), this Court has not hesitation in holding that the
petitioner is entitled to the salary of the Chairperson in terms of the provisions of
Manipur Human Rights Commission (Salaries and Allowances and Other Terms
and Conditions of Service of Chairperson and Members) Rules, 2004 and its
amendments made from time to time specially 2nd and 3rd Amendments read with
definition of Chairperson as provided by Rule 2(e) of Manipur Human Rights
Commission Service Rules, 2021.
[19] Accordingly, the writ petition is allowed and the petitioner is entitled
to the salary of the Chairperson of Manipur Human Rights Commission for the
period he discharged the function and duty of the Chairperson in terms of the
order dated 28.08.2018 issued by the Hon'ble Governor. State respondents are
directed to pay the difference of pay of the Chairperson and Member to the
petitioner and shall send necessary papers to the office of Principal Account
General, Manipur within a period of two months from the date of receipt of a copy
of this order. Respondent No.3 shall issue new salary slip of the petitioner in
terms of the above directions and observations within a period of one month from
WP(C)No.709 of 2023 Page 10
the date of receipt of necessary documents from the State respondents. The
process for payment of arrears of pay and allowance shall be completed within
a period of six months from today.
[20] In terms of the above directions and observations, the writ petition
is disposed of. Parties are directed to bear their own costs.
JUDGE
FR/NFR
John Kom
WP(C)No.709 of 2023 Page 11
