Bhaskar Bhattacharya, J. - (1.) By this writ application, the petitioner, a Member of West Bengal Human Rights Commission, has challenged Rule 4 and Rule 6 of West Bengal Human Rights Commission (Salaries and Allowances and other Terms and Conditions of the Service of the Members) Rules, 1995 (hereinafter referred to as the Rules) as ultra vires Article 14 of the Constitution of India as well as the Parent Act being Protection of Human Rights Act, 1993 (hereinafter referred to as the Act). The grievance of the writ petitioner is that although according to the provisions contained in the Act, the Members and the Chairperson of a State Commission stand on equal footing, by virtue of Rule 6 enacted in exercise of power conferred under section 41(2) (a) of the Act, the Chairperson has been given authority to grant, refuse, revoke or curtail the leave of a Member. The rules, according to the petitioner, make discrimination between the Chairperson and Member, inasmuch as, the power to grant or refuse leave of the Chairperson or to revoke or curtail such leave vests in Governor. According to the petitioner, the Chairperson is equal in rank with other Members and he is only first among equals. The petitioner complains that by virtue of the provisions contained in the rules, the Chairperson has been given right to exercise authority upon Members who are his equals. This, the petitioner contends, violates not only Article 14 of the Constitution of India but also the spirit of the Act.
(2.) This application is opposed both by the State respondents as well as the proforma respondents, viz., the Chairperson and other Members of the Commission. The objections raised by the State respondents may be summarised thus : (a) The Act does not make the Chairperson and the Members equal in rank or status. The qualification and terms of office of a Chairperson are different from those of a Member. Under the provisions of the Act, the Chairperson is the Head of the Commission having right to call a meeting and select the place of setting (sitting?) of Commission and such powers are not vested in Members. Moreover, only a retired Chief Justice can become a Chairperson while no such qualification is necessary for becoming a Member. Moreover, a Chairperson can be appointed only for one term whereas the Members can be appointed for two terms subject to the condition that such Member should not hold office after attaining the age of 70 years. Therefore, there is nothing wrong in giving power to grant or refuse leave of a Member in favour of a Chairperson.
(3.) The respondent No. 2 viz. the Chairperson, has filed separate affidavit-in-opposition to the instant writ application and his defence/may be summed up thus : (a) The application is not maintainable. (b) The writ-petitioner has not approached the Court with clean hands. Although the petitioner has averred in the writ application that as a mark of protest, he has not been accepting his salaries and that he has not made any leave application to the Chairperson, such statements are not true. The petitioner has not disclosed that since assuming the charge of the office as a Member of the Commission on or about May 16, 2000, the petitioner had regularly submitted applications praying for leave before the Chairperson and that leave on being sanctioned, he had availed of such leave and at present the petitioner has no leave of his credit as a result whereof his salary for the month of December, 2002 had to be withheld. (c) From the provisions of the Act it is clear that office of the Chairperson is a separate class by itself. It cannot be equated with that of Members. The Chairperson heads the institution and the qualification required for appointment as Chairperson of a State Human Rights Commission is that the incumbent must be a retired Chief Justice of a High Court in India. Therefore, a Member of a State Commission can never hold the position of Chairperson of a State Commission. Moreover, the Chairperson enjoys a higher salary of scale than that of Members of the State Commission and he receives a higher amount of a certain allowances than those payable to the Members. Since the Chairperson is the head of the institution, in addition to a status as Member, he has to discharge certain administrative functions. Viewed from these angles, the contention raised by the petitioner should be held as lacking in substance and untenable in law. (d) Besides, administratively it is more convenient for the Chairperson to keep proper recording as regards attendance for the Members which perhaps is not feasible for the Governor to keep a record in this regard. The grievance expressed in the writ application has more to do with regularisation of his absence in office rather than a genuine desire to have a declaration that all the Members of the State Commission including the Chairperson hold equal rank and status. ;