PHILIP THOMAS Vs. GOVERNMENT OF TAMIL NADU
LAWS(MAD)-2001-12-66
HIGH COURT OF MADRAS
Decided on December 04,2001

PHILIP THOMAS Appellant
VERSUS
GOVERNMENT OF TAMIL NADU REP. BY THE HOME SECRETARY, SECRETARIAT, CHENNAI - 600 009. Respondents

JUDGEMENT

B. Subhashan Reddy, J. - (1.)THESE writ petitions have been filed as pro bono publico by two practising advocates questioning the appointment of the second respondent as the Member of Tamil Nadu State Human Rights Commission. The second respondent was formerly a District Judge and retired on superannuation with effect from 31.3.2000. On 7.7.2000, he was appointed as a Member of Tamil Nadu State Public Service Commission. He resigned the said post on 29.3.2001 in view of his appointment as a Member of the State Human Rights Commission on 28.3.2001. By resigning his office as a Member of Tamil Nadu Public Service Commission on 29.3.2001, he had assumed the office as a Member of Tamil Nadu State Human Rights Commission on 30.3.2001. THESE are the admitted facts.
(2.)THE appointment is challenged on the premise that Article 319 (d) of the Constitution of India creates a bar on a Chairman or a Member of a Public Service Commission to take up any employment either under the Union Government or under the State Government even after ceasing to be the Chairman or Member of the Public Sendee Commission. Apart from this, some other facts are also stated seeking to impute mala fides on the part of the former Chief Minister Sri M. Karunanidhi. But during the arguments, the learned counsel for the petitioners M/s.T.S.Sasikumar and P. Arivudai Nambi have not projected the said facts, but based their arguments only on the Constitutional bar under Section 319 (d) of the Constitution.
Mr. T.S. Sasikumar, learned counsel for the petitioner, submits that once a person occupies - the post of a Chairman or a Member of the Service Commission, he is debarred from holding any post including the post of the Member of the Tamil Nadu State Human Rights Commission, and as such, a writ of Quo Warranto should be issued against the second respondent interdicting him to function as a Member, any further. This argument is adopted by Mr. P. Arivudai Nambi, learned counsel for another petitioner. Mr. G. Masilamani, learned senior counsel appearing for the second respondent, countered the said argument on the ground that neither the second respondent is appointed by the first respondent - State Government nor is he under the employment of the State Government. He further submitted that the State Government has got no control over the functions of the second respondent and is not removable from office by the State Government and the second respondent performs his functions strictly in accordance with the provisions of the Protection of Human Rights Act, 1993, hereinafter referred to as the 'Human Rights Act' with no obligations to obey any directions from the State Government and as such, the Constitutional bar under Article 319 (d) is inapplicable to the second respondent as he is not under the employment of the State Government and that he is entitled to continue in his office uninterruptedly till the expiry of tenure of his appointment of five years from the date of assumption of charge as a Member of State Human Rights Commission. The learned Government Pleader has produced the records stating that the fight is essentially between the petitioners and the second respondent. Mr. T.S. Sasikumar, learned counsel, led the argument for the petitioners,, and mainly relied on the judgments of the Apex Court in (a) V.S. Mallimath v. Union of India, AIR 2001 S.C. 1455 and (b) M.S. Chawla v. State of Punjab, AIR 2001 S.C. 1706 while Mr. G. Masilamani, learned senior counsel for the second respondent, has mainly relied upon the judgments of the Supreme Court in (i) Pradyat Kumar v. Chief Justice of Calcutta, AIR 1956 S.C. 285, (ii) Baldev Raj v. Punjab & Haryana High Court, AIR 1976 S.C. 2490, (iii) Hargovind v. Raghukul, AIR1979 S.C. 1109, (iv) Chandra Bhan Singh v. State of Rajasthan, AIR 1983 Raj. 149, and (v) Union of India v. Pratibha Bonnerjea, 1995 AIR SCW 4713.

Article 319 of the Indian Constitution places an embargo on the Chairman and Members of the Union Public Service Commission as also the Chairman and Members of the State Public Service Commissions from accepting any other employment either under the Central Government or under the Government of a State, once the said persons functioned as the Chairman and Members respectively. Of the four clauses of Article 319 of the Constitution, relevant to this case is sub-clause (d) thereof, which reads,

" a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State ."

In the context of the argument as also the above Constitutional provisions, the phraseology 'employment either under the Government of India or under the Government of a State' assumes significance and the entire adjudication of this matter revolves around the said words. In Pradyat Kumar v. C.J. of Calcutta, AIR 1956 S.C. 285, the said phraseology came up for consideration before the Supreme Court. In the said case, the appellant therein was the Registrar and Accountant General of the High Court of Calcutta at its Original Side, and was dismissed in a disciplinary action. The dismissal order was passed by the Chief Justice and a contest was made by the appellant that it was only the Governor, that too with prior consultation of the Public Service Commission under Article 320 (3) (c) of the Constitution, who can dismiss him, and the Chief Justice had no jurisdiction in that regard. He filed writ petition in the High Court assailing the order of dismissal passed by the Chief Justice but unsuccessfully, and then sought for the leave of the High Court to appeal to the Supreme Court, which was granted. The argument advanced on behalf of the appellant therein was repelled by the Supreme Court affirming the order of the High Court. Article 320 (3) (c) of the Constitution mandates that on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, the Union Public Service Commission or the State Public Service Commission - the Union Public Service Commission relating to Central Service and the State Public Service Commission relating to State Service -shall be consulted. Dealing with the power of the Chief Justice of a High Court under Article 229 of the Constitution, which empowers him to appoint the High Court staff and take disciplinary action against them, it was held that Chief Justice is the sole authority in that regard and that there was no role to play by the Public Service Commission. The Supreme Court held that the phrase, "Persons serving under the Government of India or the Government of a State" have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The Supreme Court emphatically ruled that as the Registrar of the High Court is appointed by the Chief Justice, the latter is the sole authority to take disciplinary action against him as he has got administrative control over the staff appointed by him, under Article 229 of the Constitution and that neither the Government nor any other authority has power to deal with such disciplinary matters. The same is the view taken by the Supreme Court in Baldev Raj v. Punjab & Haryana High Court, AIR 1976 S.C. 2490. There the Supreme Court was dealing with the powers of the High Court under Article 235 of the Constitution as the disciplinary action was against a subordinate judicial officer. It was held that even though the authority for appointment and dismissal of a Judicial Officer was the Governor, the administrative control lay in the High Court and as such, the recommendation of the High Court imposing punishment in a disciplinary action against the judicial officer of State Judicial Service was binding on the Governor and the Governor has to accept the same. It was further held that even if the Governor wants to deviate from the recommendation of the High Court, it could be only in the rarest of rare cases and even then, he has to refer the matter pointing out the factus of dissent and refer it back to the High Court for reconsideration; In the said case also, the argument of the State Judicial Officer that he could be dismissed only by the Governor and that too with the prior consultation of the Public Service Commission was repelled by the Supreme Court holding that

".. It is true that under Article 235 as well as under the Appointment and Punishment Rules, the Governor is the appointing and punishing authority. But under Article 235, the High Court is the sole custodian over the discipline of the judicial officers. There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer. Judicial Officers although holding posts in civil capacity, are not serving under the Government of a State. They hold posts in connection with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of control and discipline. There is, therefore, no constitutional justification or sanction for the Governor, even if he wishes to consult the Public Service Commission under Article 320 (3) (c) in respect of judicial officers."
In so far as the Hargovind v. Raghukul, AIR1979 S.C. 1109, is concerned, it deals with the proposition as to whether the office of governor is under the employment of Government of India. The respondent therein Sri Raghukul Tilak, by virtue of his office of Governor, was ex-officio Chancellor of Rajasthan University and there were serious differences between himself and the Vice Chancellor i.e. the appellant in the above case, which led into legal fight and the Rajasthan High Court dealt with the matter. The contention raised was that the respondent was hitherto a Member of the State Public Service Commission and in view of the bar contained under Article 319 (d) of the Constitution, he was ineligible to hold the post of Governor and consequently, was not entitled to act as the Chancellor and his decisions were non est. The Full Bench of the Rajasthan High Court has repelled the said contention. The appellant, who was the Vice Chancellor, filed appeal in the Supreme Court and the Supreme Court upheld the decision of the Rajasthan High Court. Referring to the earlier judgment of the Supreme Court in Pradyat Kumar's Case, AIR 1956 S.C. 285 and Baldev Raj's Case, AIR 1976 S.C. 2490, and approving the ratio decidendi in the above decisions, it was held that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment and as the Governor is not subordinate or subservient to the Government of India, he was not amenable to the directions of the Government of India nor is he accountable to them for the manner in which he carries out his functions and duties and that his was an independent constitutional office which is not subject to the control of the Government of India. In Chandra Bhan Singh v. State of Rajasthan, AIR 1983 Raj 149, the Rajasthan High Court was dealing with an ex-officio member of a State Public Service Commission appointed to the post of Advocate General for the State and the similar contention that he was not eligible to hold the post of Advocate General in view of the Constitutional bar under Article 319 (d), was raised. Upholding the appointment of the Advocate General, it was held that Advocate General is appointed under Article 165 of the Constitution and is not subordinate to the Government of a State and for discharging of functions and duties of his office, he is not controlled by the Governor or the State Government because while giving advice to the State Government upon any legal matter referred to him, or while performing duties of a legal character assigned by the Governor or while discharging the functions conferred on him by or under the Constitution or any other law for the time being in force, he is free to exercise his discretion though according to law and according to his best ability in the manner which he considers best and that the Governor or the State Government was not empowered to ask him to discharge his functions or to perform his duties in the manner in which they like.
As seen from the above judicial precedents, the stress is on the relationship of a master and servant and the control exercised by the master, be it Government of India or State Government, over his servant. We now consider as to whether the second respondent is under the employment of the State Government as contended by the learned counsel for the petitioners in the light of the above ratio decidendi.

(3.)THE Human Rights Act has been enacted to provide for better protection of human rights by constituting a National Human Rights Commission as also State Human Rights Commissions and Human Rights Courts. Section 2 (1) (d) of the Act defines 'human rights' as the rights relating to life, liberty, quality, dignity of the individual, guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. It is needless to mention that the above rights are all traceable to Part III of the Indian Constitution guaranteeing the Fundamental Rights and particularly Articles 14, 19, 20, 21 and 22. Chapter V consisting of Sections 21 to 29 deal with the Constitution of the State Human Rights Commission, hereinafter referred to as the State Commission, and functions thereto. State Commission consists of a Chairperson and four members, out of whom, one should be a sitting or retired District Judge. THE Chairperson and the Members are appointed by the Governor after obtaining the recommendation of a Committee consisting of the Chief Minister as the Chairperson and Speaker of the Legislative Assembly, Home Minister and Leader of the Opposition in the Legislative Assembly, as Members thereof. THE tenure of office is assured for a term of five years from the date of assumption of charge as a Chairman or Members of the State Commission and they can be removed from the office only by order of the President on the ground of proved misbehaviour or incapacity or for the reasons enumerated in sub-Section (2) of Section 23. THEre is no role for the State Government in the removal of a Chairman or Members of the State Commission. In fact, sufficient safeguards have been made in Section 23 for basing the opinion of the President while considering the case for removal of the Chairman or the Members of the State Commission. Consultation with the Governor or the State Government is not at all contemplated under Section 23. Section 12 of the Act spells out the functions and powers of both the National Commission and State Commission and it is apt to extract the same.
"12. Functions of the Commission:- THE Commission shall perform all or any of the following functions, namely: - (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of-(i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant (b) intervene in any proceedings involving any allegation of violence of human rights pending before a Court with the approval of such Court; (c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon; (d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures; (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; (g) undertake and promote research in the field of human rights; (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the pro-tection of these rights through publications, the media, seminars and other available means; (i) encourage the efforts of non-Governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the promotion of human rights."
In none of the above statutory provisions, we find either the control of the Central Government or State Governments over the National Commission or State Commissions respectively. THE said Commissions function independently according to the provisions of the Act and there is no role either for the Central Government or the State Governments in the functioning of the said Commissions or control over the same. In fact, the very nature of the functions entrusted to the abovesaid Commissions mostly involves Government, whenever there are any excesses committed by the authorities violating the human rights of the citizens. THE Act obligates the State Commission under Section 18 to send the enquiry report after enquiring into the complaints as contemplated under Section 17 thereof. Sending such enquiry report or annual report or special reports by the State Commission under Section 28 cannot be construed as any control by the State Government. So also the prescription of salaries and allowances and other terms and conditions of service by the State Government under Section 26 does not have the implication of bringing the Chairman and Members of the State Commission within the purview of 'employment under the State Government'. In fact, this is the legal position, which has been clarified by the decisions in V.S. Mallimath v. Union of India, AIR 2001 S.C. 1455 and M.S. Chawla v. State of Punjab, AIR 2001 S.C. 1706. THE aforesaid decisions only deal with the provisions as to whether computation of the salary payable either to a Member of the National Human Rights Commission or the President of the District Consumer Forum appointed under the Consumer Protection Act, has got any relevance with regard to the relationship of master and servant. In Union of India v. Pratiba Mookerjea, 1995 AIR SCW 4713, the question was as to whether the appellant therein, who was hitherto a Judge of Calcutta High Court and on retirement appointed as the Vice Chairman of the Central Administrative Tribunal was entitled to pension as allowable to a Judge of the High Court. It was held by the Supreme Court that a Judge of the High Court is not under the employment of the Central Government or the State Government as he is not under the employment of the Government and that he holds office independently in accordance with me Constitution. In V.S. Mallimath v. Union of India, AIR 2001 S.C. 1455, the question was as to the fixation of salary of the Chairperson and Members of Human Rights Commission. Making the distinction of the earlier judgment in Union of India v. Pratibha Bonnerjea, 1995 AIR SCW 4713 the Supreme Court held that conferment of the independent status to a High Court Judge under Constitution so as to enable him to discharge his duties without fear or favour, affection or ill-will has got nothing to do with interpreting a particular provision of the Rules governing the service of the Chairman and the Members of the Human Rights Commission when such Judge on retirement as Chief Justice is appointed as a Member of the Human Rights Commission. It was held that deduction of pension received by the retired Chief Justice from the salary, which he is entitled as a Member of the Human Rights Commission under the proviso to Rule 3 (b) would not in any way affect the independence of the judiciary nor would it affect the Constitutional scheme and. the unique position, a Judge occupies under, the Constitution. It was held that the expression 'Government' used in proviso to Section 3 (b) has therefore to be construed in the wider sense and the service rendered by a Judge or Chief Justice of a High Court must be held to be a service in connection with the affairs of the Union and as such, the proviso to Rule 3 (b) of the Rules would govern the case of such retired Judge or Chief Justice in determining the salary which he would be entitled to on being appointed as a Member of the Human Rights Commission. It was held that the contention to the effect that the previous service as Chief Justice of High Court not being under the Government of the Union must be held to be not governed by the proviso, cannot be accepted, reading the Rules as a whole and that the said proviso would apply to the retired Chief Justice of India or the retired Chief Justice of the High Court, who are appointed with the Commission and the pension which they are in receipt of, apart from the disability or wound pension has to be deducted from their salary which they are entitled to under the Rules. In M.S. Chawla v. State of Punjab, AIR 2001 S.C. 1706 , the question was whether the Presidents of the District Consumer Forum appointed under Section 10 of the Consumer Protection Act are entitled for full salary and their pension, which is payable to them as retired District Judges, is not deductible. By construing the provisions, the Supreme Court held that appointment as President of the District Consumer Forum amounts to re-employment and as such, the pension payable as District Judges is deductible from the salary payable as the President of the District Consumer Forums.
There is no ratio decidendi laid down by the Supreme Court in the V.S. Mallimath's Case, AIR 2001 S.C. 1455 that the Chairman or Member of the Commission is under the employment of the Government. In fact, it is clearly laid down that service rendered by a Judge or a Chief Justice of a High Court must be held to be a service in connection with the affairs of the Union. It was not held by the Supreme Court that service as a Chairman or Member of the Human Rights Commission is under the employment of the Government. Even the appointment of a District Judge as the President of the District Consumer Forum amounts to 're-employment' in the decision M.S.Chawla's Case, AIR 2001 S.C. 1706 does not help the argument of the learned counsel for the petitioner as the pension which is to be computed, has got no relevance to the independent functions to be discharged under the Consumer Protection Act, 1986.

In view of what is stated supra, we hold that holding of office of a Member of the State Commission by the second respondent and discharging the functions attached thereto as mentioned in the Human Rights Act, cannot be construed to be under the employment of the State Government and as such, he is entitled to continue to function as Member of the State Commission in accordance with his appointment. The writ petitions are, therefore, dismissed. No costs. Consequently, W.M.Ps. are closed.



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