VERY IMPORTANT POINT
A member of NHR Commission is liable to deduction of pension from his salary. He is not entitled to any gratuity. He is however, entitled to encashment of earned leave to the maximum of 240 days including those days earned in previous service.

Headnote:(i) The National Human Rights Commission Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993-Rule 4(2) r/w Rule 3-Salary of Member of Commission-Deduction of pension-Petitioner retired Chief Justice of Kerala High Court served as member of NHRC-Whether his salary was liable to deduction of pension as a retired Chief Justice of High Court? (Yes)-Case Law referred.
       Held : The contention of the petitioner to the effect that the previous service as Chief Justice of a High Court not being one under the Government of the Union, must be held to be not covered by the proviso, cannot be accepted, reading the rules as a whole. We have, therefore, no hesitation in coming to the conclusion that the proviso to Rule 3(b) would apply to the retired Chief Justice of India or the retired Chief Justice of a High Court 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. The contention of Mr. lyer, appearing for the petitioner, on this score, therefore cannot be sustained. (Para 5)
       (ii) NHRC Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993-Rule 10-Residuary Rule applying Rules of IAS for which no express provision is made in Commission s Rules-No express provision of gratuity-Whether a member of NHRC is entitled to gratuity for the period he serves the Commission? (No).
       Held : Rule 14 of the aforesaid orders, stipulates that re-employed officers shall not be eligible for any gratuity/death/retirement gratuity, for the period of re-employment, except in those cases covered in Rules 18 and 19 of the Central Civil Services (Pension) Rules, 1972. The petitioner s case is not covered under the aforesaid provisions of the Central Civil Services (Pension) Rules, 1972. Therefore, the question for consideration is whether the appointment of the petitioner as a Member of the Human Rights Commission would tantamount to re-employment. In the absence of any definition of the expression re-employment and applying the common parlance theory, the conclusion is irresistible that the said appointment would tantamount to re-employment and, therefore, for such period of 240 days, when he retired as the Chief Justice of Kerala High Court. In accordance with Rule 4 of the Rules, he had earned, earned leave for 68 days. But he has not been allowed to encash the same, since he had already encashed the maximum period of 240 days under sub-rule (2) of Rule 4, which sub-rule provides for encashment of leave. The petitioner s contention however is that the expression "previous service" in sub-rule (2) must refer to the preceding service, which the petitioner had served as Chairperson of the Central Administrative Tribunal and since he had earned only 161 days of earned leave as Chairman of the Central Administrative Tribunal, the maximum period provided under sub-rule (2) will not apply to his case, even though he has encashed the leave for 240 days, as the Chief Justice of Kerala High Court. On a bare reading of the aforesaid provisions contained in sub-rule (2) of Rule 4, we are unable to accept this contention inasmuch as what is intended in the aforesaid rule is that no-one would be allowed to encash period of service as Member of the Human Rights Commission, no gratuity would be payable. (Para 6)
       (iii) NHRC Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993-Rule 4(2)-Encashment of leave-Petition under Article 32 of Constitution-Claiming encashment of earned leave of 68 days in NHRC irrespective of having availed encashment of 240 days earned leave when he retired as Chief Justice of Kerala-Whether tenable? (No)-Petition dismissed.
       Held : Under the Rules, Rule 4 entitles a person, on appointment as Chairperson or as a Member for earned leave and half pay leave on medical certificate and extraordinary leave. Rule 4(2) is relevant for our purpose which unequivocally indicates that on the expiry of the term of office in the National Commission, the Chairperson and Members shall be entitled to receive cash equivalent of leave salary in respect of earned leave, standing to his credit subject to the condition that the maximum of leave encashed under this sub-rule or at the time of retirement from previous service, as the case may be or taken together shall not in any case exceed 240 days. The petitioner did encash the cash equivalent of leave for the leave for a period more than 240 days and since the petitioner did encash the earned leave for 240 days as the Chief Justice of Kerala High Court, he would not be entitled to further encashment for the period of 68 days of earned leave, which he might have earned as a Member of the Human Rights Commission under Rule 4(1) of the Rules. The petitioner, therefore, has rightly not been allowed to encash his leave in question. In view of our conclusions on the three items of claim made by the petitioner, we do not see any violation of fundamental rights of the petitioner and as such this petition under Article 32 is dismissed. (Para 7)

JUDGMENT

Pattanaik, J.-This petition under Article 32 is by the retired Chief Justice of High Court of Kerala. The grievance of the petitioner is that he has been illegally denied of certain monetary benefit when he served as a Member of the National Human Rights Commission. It is the case of the petitioner that after retiring as the Chief Justice of the Kerala High Court on 11th June, 1991, he was appointed as Chairman of the Central Administrative Tribunal on 5.12.1991. On his retirement from the Tribunal he was appointed as a Member of the National Human Rights Commission on 14.9.94 and continued there till he attained the age of 70 years. While he was continuing as a Member of the National Human Rights Commission he was not granted full salary, which he was entitled to under the relevant Rules, and on the other hand deductions were made under the Proviso to Rule 3 of the Rules. The contention of the petitioner is that the said Proviso will have no application. The further grievance of the petitioner is that on his retirement from the Commission he was entitled to retiral benefit of gratuity for the period he rendered service as a Member of the National Human Rights Commission, but even that was illegally denied. The third grievance of the petitioner is that the leave which he earned as a Member of the Human Rights Commission was not allowed to be encashed on an erroneous interpretation of the Rules and thereby he was illegally denied of his rights. The Union of India in the Ministry of Home Affairs rejected all the claims of the petitioner on the ground that the relevant Rules do not permit the claims of the petitioner.

2. The National Human Rights Commission has been constituted under the Protection of the Human Rights Commission Act, 1993 (for short the Act ). Under Section 3(2) of the said Act, the Chairperson would be one who has been a Chief Justice of the Supreme Court and a Member could be appointed who is or has been a Judge of the Supreme Court and another Member to be appointed is, who is or has been, the Chief Justice of the High Court. Apart from these three, two Members are to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. The term of office of a Member is 5 years from the date on which he assumes charge of office. But no one can be retained after attaining the age of 70 years. Section 8 of the Act provides that the salaries and allowances payable to, and other terms and conditions of service of Members shall be such as may be prescribed. The expression prescribed has been defined in Section 2(1) to mean prescribed by rules made under this Act. Section 40 confers power on the Central Government to make rules by notification to carry out the provisions of the Act. Section 41 confers power on the State Government to make Rules by notification to carry out the provisions of the Act. In exercise of power conferred under Section 40 of the Act the Central Government has framed the Rules, called, The National Human Rights Commission Chairperson and Members (Salaries, Allowances and other Conditions of Service) Rules, 1993, (hereinafter referred to as The Conditions of Service Rules). Rule 3 provides that there shall be paid to a Member, a salary which is equal to the salary of a Judge of the Supreme Court. Proviso to the said Provision, however, stipulates that the said Member, if is in receipt of the pension other than disability or wound pension, in respect of any previous service under the Government of the Union or the Government of a State, then his salary in respect of a service as a Member shall be reduced. The bone of contention of the petitioner is that the pension he receives as a Retired Chief Justice of Kerala High Court cannot be deducted from his salary as a Member of the National Human Rights Commission under the Proviso to Rule 3(b), inasmuch as the services of the Chief Justice cannot be held to be a service under the Government

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2001 Supreme(SC) 513

VERY IMPORTANT POINTA member of NHR Commission is liable to deduction of pension from his salary. He is not entitled to any gratuity. He is however, entitled to encashment of earned leave to the maximum of 240 days including those days earned in previous service.

Cases Referred (3)

VERY IMPORTANT POINT
A member of NHR Commission is liable to deduction of pension from his salary. He is not entitled to any gratuity. He is however, entitled to encashment of earned leave to the maximum of 240 days including those days earned in previous service.