W.P. No. 7416/2006 -1- HIGH COURT OF MADHYA PRADESH JABALPUR SINGLE BENCH: Hon’ble Shri Justice A.K. Shrivastava W.P. No. 7416/2006 ....PETITIONER: Smt. Santosh Dwivedi w/o Late Justice (Retd.) Shachindra Dwivedi, aged 45 years, R/o C/o Dr. Harsh Sharma EN/16, Char Imli, Bhopal (M.P.) -Versus- ....RESPONDENTS : 1. The State of M.P. Through Secretary Department of Energy Mantralaya, Bhopal 2. M.P. State of Electricity Regulatory Commission, Bhopal through its Secretary, Urja Bhawan, Bhopal. ------------------------------------------------------------------------------------- Shri Manikant Sharma, learned counsel for petitioner. Shri Sudesh Verma, learned Government Advocate for respondent No.1. Shri Anoop Nair, learned counsel for the respondent No.2. ------------------------------------------------------------------------------------- O R D E R { 16-03-2011 } By this petition under Article 226 of the Constitution of India the petitioner is seeking following reliefs:- (I) That, this Hon'ble Court may kindly be pleased to issued appropriate writ/order/direction quashing Order dated 13/11/2002 passed by respondent No.1 denying the benefit of furnished house rent to the petitioner. W.P. No. 7416/2006 -2- (ii) That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction directing the respondents to extend the benefits of furnished house rent during his tenure as Chairman M.P. State Electricity Regulatory Commission. (III) Any other writ/order or direction deemed fit and proper in the facts and circumstances of the case necessary be also passed with costs to the petitioner.” 2. This petition was submitted by Justice Shachindra Dwivedi (Retired) who had died during the pendency of this petition and his wife Smt. Santosh Dwivedi has been brought on record. 3. The case of petitioner is that he was appointed as a Judge of this Court on 28.7.1990 and he served as Judge of this Court till the age of 62 years and after retirement on 25.1.1999, the President of India appointed him on the post of Chairman of M.P. Electricity Regulatory Commission (in short “the Commission”) and accordingly vide order dated 8.1.1999 he was appointed as Chairman of the said Commission. The service rendered by the petitioner as Chairman of the Commission has been counted as his “actual service” within the meaning of Para 11(b)(i) of Part-D of the Second Schedule to the Constitution of India read with Section 2(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (hereinafter referred to as “the Act of 1954”). Copy of the order dated 8.1.1999 has been placed on record as Annexure P-1. 4. It is the further case of the petitioner that State of Madhya Pradesh vide Notification dated 2nd March 2001 (Annexure P-2) W.P. No. 7416/2006 -3- has made Rules namely the Madhya Pradesh Electricity Regulatory Commission (Salary, Allowance and other Service Conditions of the Chairman and Members) Rules, 2000 (in short “Rules of 2000”) regarding the pay and allowances of the Chairman and Members of the Commission in exercise of the powers conferred by sub-section (1) of Section 57 read with sub-section (2) of Section 19 of the Electricity Regulatory Commission Act, 1998 (in short “Act of 1998”). 5. According to petitioner, Rule 4 of the said Rules is as clear like a noon day that the Chairman shall be entitled to rent- free and furnished accommodation with water and electricity facilities as permissible to the High Court Judges under the provisions of the Act of 1954. Sub-Rule (2) of Rule 4 of the said Rules contains the provision to the effect that if Chairman is not provided with or does not avail himself of the use of official residence and resides in his own house, he may be paid house rent allowance as admissible to a High Court Judge. 6. According to the learned counsel for the petitioner, after his retirement as Judge of this prestigious High Court, petitioner settled at Bhopal and while holding the office of Chairman of the Commission a furnished official accommodation was not provided to him and he had to stay in the Circuit House. Thereafter, when no furnished house was provided to him as against the furnished house he communicated for grant of either a furnished house or to pay W.P. No. 7416/2006 -4- the requisite house rent allowance etc. in lieu thereof, but, the respondent No.1 did not consider the claim of petitioner and the requisite amount was not paid to him and ultimately he retired from the post of Chairman of the said Commission after discharging his duties. Even after his retirement, late petitioner pursued the matter to make the payment of the dues but they were not cleared and surprisingly vide order dated 13.11.2002 (Annexure P-3) claim of the late petitioner has been refused. In the meantime, late petitioner sustained a severe paralytic attack and remained under treatment for a long duration. Due to this reason he could not pursue the authorities for grant of dues further. 7. Very fairly it has been pleaded by petitioner, in para 5.7 of the memorandum of petition that after a long period he came to know that 25% of the house rent has been sanctioned in favour of the petitioner but no reason has been given by the respondents regarding non-sanctioning of the entire house rent etc. and therefore, impugned action on the part of the respondents is grossly illegal, unreasonable and arbitrary in nature. 8. Hence, it has been prayed to extend the monetary benefits of furnished house rent during his tenure as Chairman of the Commission by issuing the writ of mandamus. 9. Despite several opportunities were provided, respondent No.1/State Government has not filed any return, although W.P. No. 7416/2006 -5- respondent No.2 the Commission has filed the same. The respondent No.2 has stated in its return that petitioner is entitled for the benefit but the net result is that the late petitioner who was making demand to make the requisite payment and who also suffered a paralytic attack and ultimately he was heavenly abode, the amount was not paid to him by the State Government and before his death, he filed this petition. After his death, his wife has been substituted and she is pursuing the remedy which ought to have been provided to her late husband. 10. A blanket impugned order dated 13.11.2002 (Annexure P-3) has been passed by the State Government stating that since the Finance Department has not given its consent, therefore, the claim of the petitioner has been rejected. 11. According to me, the action of respondent No.1 is not only arbitrary and contrary to the law, but is also de hors to the dignity of a retired High Court Judge who had served this prestigious Institution for years together and also served the Commission by holding the post of Chairman. On going through the appointment letter dated 8.1.1999 (Annexure P-1) of the Under Secretary to the Government of India addressed to the Principal Secretary (General Administration Department of the State of M.P.) this Court finds that the President of India was pleased to appoint Hon'ble Shri Justice Shachindra Dwivedi, Judge of the High Court of M.P. to function as the Chairperson with the prior consent of Hon'ble the Chief Justice. In the said W.P. No. 7416/2006 -6- appointment letter it has been specifically mentioned that his appointment is in terms of the Act of 1954. For better understanding it would be profitable to quote the entire appointment letter (Annexure P-1) which reads, thus: No.-L-19011/1/99 JUS. GOVERNMENT OF INDIA, Ministry of Law, Justice (DEPARTMENT OF JUSTICE) JAISALMER HOUSE NEW DELHI, the 8.1.1999 To, The Principal Secretary General Administration Department, Government of Madhya Pradesh, Mantralaya, BHOPAL Subject:Appointment of Justice S.Diwvedi, Judge Madhya Pradesh High Court as Chairperson, Madhya Pradesh State Electricity Regulatory Commission State. Sir, I am directed to refer to Government of Madhya Pradesh's letter No. F.A/5-24/98/1(i) dated the 22nd December 1998, intimating therein about the appointment of Justice S.Diwvedi Judge, Madhya Pradesh High Court, as Chairperson Madhya Pradesh State Electricity Regulatory Commission, with the prior consent of Chief Justice of that High Court. In view of above, President is pleased to request Justice S. Diwvedi Judge, Madhya Pradesh High Court to function as Chairperson, Madhya Pradesh State Regulatory Commission, under the Electricity Regulatory Commission Act, 1988, in terms of the High Court Judges (Salaries and Conditions of Service) Act 1954) 2. The time spent by Justice S. Diwvedi, Judge, Madhya Pradesh High Court, in the performance of the above functions will count as 'Actual Service', within the meaning of para 11(b)(i) of para D of the Second Schedule to the Constitution of India read with Section 2(1)(c)(i) of the High Court Judges (SCS) Act, 1954. Justice S. Diwvedi, Judge Madhya Pradesh High Court will not be entitled to any extra remuneration for the above work except travelling allowance and daily allowance as admissible under the High Court Judges (Travelling Allowances) Rules, 1956. Yours faithfully (P.N. Singh) UNDER SECRETARY TO THE GOVERNMENT OF INDIA W.P. No. 7416/2006 -7- 12. According to me, if his appointment was in terms of the Act of 1954 and with a further stipulation that he shall also be entitled for the travelling allowance etc. under the Act of 1988, why he is not entitled for the full furnished bungalow and in absence of it, the allowances? Hence, the rules of 2000 were framed, which were published in the official gazette vide Notification No.F1086-3-20-13-98 dated 19.2.2011 in M.P. Rajpatra para 4 (Ga) dated 2.3.2001 and which was subsequently amended from time to time. Rule 3 of the said rules speak about the pay and allowance of Chairman and Members while Rule 4 has been enacted in respect to the allotment of the accommodation. According to this Rule 4, a Chairman shall be entitled to rent free and furnished accommodation, water and electricity facility as permissible to the High Court Judges under the provisions of High Court Judges (Conditions of Service) Act, 1954 and Rules made thereunder. According to sub rule (2) of Rule 4, if a Chairman or a Member is not provided with or does not avail himself of the use of official residence and resides in his own house, he may be paid house rent allowance as admissible respectively to a High Court Judge or to the officers of Indian Administrative Service of the corresponding grade. It would be fruitful to quote Rule 4 which reads thus: “4. Accommodation – The Chairman shall be entitled to rent-free and furnish accommodation, water and electricity facilities as permissible to the High Court Judges under W.P. No. 7416/2006 -8- the provisions of High Court Judges (Conditions of Service) Act, 1954 and rules made thereunder. The members shall be entitled to accommodation as may be admissible to Principal Secretaries on rental basis and rent will be payable by them on the basis of rent payable by Principal Secretaries of the State. (2) The Chairman or a Member is not provided with or does not avail himself of the use of official residence and resides in his own house, he may be paid house rent allowance as admissible respectively to a High Court Judge or to the officers of Indian Administrative Service of the corresponding grade.” On perusal of averments made in para 5.4 of memorandum of writ petition, this Court finds that furnished official accommodation was not provided to the petitioner. Firstly, he was staying in a circuit house, thereafter, an unfurnished house was given to him as against the furnished house. There is no denial of the averments made in the petition in this regard since the return has not been filed by respondent No.1. Hence, the averments are deemed to be admitted. The petitioner was not residing in his house, but he was provided an accommodation, which was not furnished. In the return filed by respondent No.2– M.P. State Electricity Regulatory Commission, para 3, this Court finds that Commission was repeatedly requesting the State Government that since unfurnished accommodation has been provided to the petitioner, therefore, necessary allowance etc. be paid to him and the request, which was sent by the Commission to make necessary payment, be also accepted. As W.P. No. 7416/2006 -9- usual, the State of M.P. was not paying any heed either on the request of the petitioner or of the Commission. Needless to say that the height of the arbitrariness and unfair adamancy of the State Government one can observe that the legitimate and statutory right to obtain the necessary allowance was not being provided to the petitioner, who was a retired Judge of this Court and therefore one can think that if a retired Judge of High Court can be harassed by the State Government by not providing him the requisite allowances prescribed under the law and ultimately, the petitioner died without being obtained such allowances, how the State and its functionaries and officers can treat the low paid employees including the class IV. Therefore, looking to the uncalled and unwarranted adamancy of the State Government depriving the petitioner who ultimately had been heavenly abode, his wife is entitled for the reliefs, which have been claimed by her late husband. 13. This petition is accordingly allowed with cost and the respondent No.1/State is hereby directed to pay the requisite benefits of furnished house rent during his tenure as Chairman, M.P. State Electricity Regulatory Commission with interest at the rate of 6% p.a. till the payment is actually made to the present petitioner, who is the wife of original petitioner. The order dated 13.11.2002 (Annexure P/3) passed by the respondent No.1 denying the benefit of furnished house rent to the petitioner is hereby quashed. Counsel fee Rs.10,000/-. W.P. No. 7416/2006 -10- 14. Since a retired Judge of this prestigious High Court has been forced to file this petition and after his death his wife is pursuing it, I hereby hold that petitioner is entitled for exemplary cost of Rs.25,000/-. Let exemplary cost of Rs.25,000/- and counsel fee of Rs.10,000/- in total Rs.35,000/- be added along with monetary benefits, which I have allowed to the petitioner. Let this amount be paid on or before 30.06.2011, failing which on the entire amount, the respondent No.1/State shall pay interest @12% p.a. w.e.f. this date till actual payment is made. (A.K. SHRIVASTAVA) JUDGE S/