IMPORTANT POINT
Appellant is not entitled to compensation on cessation of functioning as Chairman of the abolished Rajasthan Taxation Tribunal.

Headnote:Rajasthan Taxes and Tribunal Act, 1995-Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999-Constitution of India-Articles 166 and 310(2)-Appellant s prayer for writ of mandamus to the State of Rajasthan to pay him compensation on cessation of functioning as Chairman of abolished Rajasthan Taxation Tribunal-Dismissed by High Court-Appeal to Supreme Court-Contention that decision of the cabinet was enforceable-Whether correct? (No)-Whether compensation is payable under Article 310(2)? (No)-(See paras 9 to 24)-Whether principles of legitimate expectations have any application to the facts of the case? (No) (see paras 25 to 31)-Result-Appeal dismissed.
       Held : We need not delve into the disputed question as to whether there was any Cabinet decision, as it has not been established that there was any Government order in terms of Article 166 of the Constitution. The Constitution requires that action must be taken by the authority concerned in the name of the Governor. It is not till this formality is observed that the action can be regarded as that of the State. Constitutionally speaking the Council of Ministers are advisors and as the head of the State, the Governor is to act with the aid or advice of the Council of Ministers. Therefore, till the advice is accepted by the Governor, views of the Council of Ministers does not get crystalised into action of the State. (See: The State of Punjab vs. Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh vs. State of Punjab and Anr. AIR 1963 SC 395). That being so, the first plea of the appellant is rejected. Coming to the plea relating to clause (2) of Article 310, it has to be noted that compensation is payable for premature termination of contractual service. The clause is only an enabling provision which empowers the Governor to enter into the contract with specially qualified person(s) providing for payment of compensation where no compensation is payable under the doctrine "service at the pleasure of the State". In the absence of any specific term regarding compensation, it cannot be countenanced that the intention was to pay it. Had there been an inbuilt requirement to pay compensation as contended by the appellant, there was no necessity for specifically incorporating a provision in that regard. A bare reading of clause (2) makes it clear that there can be a stipulation for payment of compensation in the contract to a person who is holding a civil post under the Union or a State, if before the expiry of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate the post. Being an enabling provision in the matter of payment of compensation on the basis of a contractual obligation, it cannot be said that even when there is no stipulation in a contract of employment, the same is implicit. Submission of learned counsel that such a provision is inbuilt and has to be read into the Act and the Ordinance is clearly unacceptable. (Paras 8, 9 and 10)
       Held further : The principles of legitimate expectation have no application to the facts of the present case. (Para 31)
       Held finally : Looking at from any angle the appeal is devoid of any merit and deserves dismissal, which we direct.
        (Para 32)

JUDGMENT

Arijit Pasayat, J.-Appellant s prayer for issuing a writ of mandamus to the State of Rajasthan to pay compensation on cessation of functioning as Chairman of the abolished Rajasthan Taxation and Tribunal ( in short the Tribunal ) having been turned down by learned Single Judge and Division Bench of the Rajasthan High Court, this appeal has been preferred. As the core question involved is pristinely legal, it is unnecessary to enter into the factual aspects in detail.

2. Factual panorama in a nutshell is as follows:

Appellant was appointed as Judicial Member of the Tribunal in terms of notification dated 16-9-1995 issued by the Finance Department (Taxation Division) of the Government of Rajasthan. Appointment of the appellant was made by the Governor in exercise of the powers conferred by clause (a) of sub-section (2) of Section 3 of the Rajasthan Taxes and Tribunal Act 1995 (in short the Act ). By the notification dated 16-9-1995 referred to above. Chairman and the technical member were also appointed. Subsequently, he was appointed to discharge functions of Chairman of the Tribunal till appointment of regular Chairman. This contingency arose on the previous Chairman attaining the age of 65 years. State Government vide notification dated 27-2-1999 issued an Ordinance No. 1/1999 styled The Rajasthan Taxation Tribunal (Repeal) Ordinance, 1999 (in short the Ordinance ). The same became operative w.e.f. the date of notification i.e. 27-2-1999. By the above Ordinance under Section 5 matters and proceedings pending before Tribunal on the date of commencement of the Ordinance stood automatically transferred to the High Court for disposal. As a consequence of Tribunal being abolished, continuance of appellant as Chairman automatically came to an end. Appellant claimed compensation of Rs.5,35,648/- with interest @ 15 per annum by filing a writ petition on the ground that his tenure appointment was to continue up to 18-9-2000. Since there was a premature termination of the tenure appointment, claim of compensation for the balance period from the date of termination of the appointment till 18-9-2000 (which according to him was the last date of the period of tenure appointment) was made. The writ application was filed before the Rajasthan High Court at Jaipur Bench. The stand of the appellant before the learned Single Judge was that there was a Cabinet decision taken to release salary to the appellant for the balance period which was to be paid. As the tenure of the appellant could not have been curtailed, he was entitled to compensation. By judgment dated 27-9-1999 in SB Civil Writ Petition No.4379 of 1999 the writ petition was dismissed by learned Single Judge. It was noted that the validity of the Ordinance was not challenged. Since the Tribunal itself was abolished and all cases pending before it have been transferred to the High Court, no interference was called for. It was noted that the exact amount of compensation can only be decided by a competent court after taking evidence of the parties. So far as implementation of the Cabinet decision is concerned, it was noted that the same was a matter of discretion of the Government and it was open to the appellant to make a representation to the concerned authorities. It was not open to the High Court to enforce the Cabinet decision. The matter was carried in appeal before the Division Bench which dismissed the same holding that the learned Single Judge has pronounced a well-reasoned judgment and no interference is called for.

3. Learned counsel for the appellant primarily took three stands in support of the appeal. Firstly, it was submitted that the decision of the Cabinet was enforceable. In the meeting of the Cabinet four decisions were taken. They related to: (1) Promulgation of Ordinance, (2) repatriation of the Technical Member to his parent department (3) absorption of the members of the staff and (4) payment of compensation to the appellant. While the first three decisio

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2003 Supreme(SC) 318

IMPORTANT POINTAppellant is not entitled to compensation on cessation of functioning as Chairman of the abolished Rajasthan Taxation Tribunal.

Cases Referred (16)

IMPORTANT POINT
Appellant is not entitled to compensation on cessation of functioning as Chairman of the abolished Rajasthan Taxation Tribunal.