'State Information Commissioner Benefits Not Automatically Pensionable, SIC's Post Distingusiahable From Chief Secy's Role': Jharkhand HC

The Jharkhand High Court has ruled that the entitlement of the State Information Commissioner to certain benefits, based on the terms and conditions granted by the Chief Secretary, does not automatically confer pensionable service status. The court emphasized that the mere pensionable nature of the Chief Secretary's post does not imply similar entitlement for the incumbent of the State Information Commissioner role.

A division bench of Justices Sujit Narayan Prasad and Navneet Kumar observed, “Further argument has been advanced that since the post of State Information Commissioner is held to be at par with the post of Chief Secretary of the State as such similar benefit including pension is to be extended to the holder of the post of State Information Commissioner but according to our considered view based upon the provision of Section 27 read with un-amended provision of Section 16(5) it is only confined to the salary and allowances.”

“The authority by taking into consideration the fact that the holder of the post of State Information Commissioner has been given the benefit as per the terms and conditions of the Chief Secretary but that does not mean that merely because the post of Chief Secretary is pensionable hence the incumbent will be entitled for the pensionable service… ”

The court clarified that the Chief Secretary, upon entering service, was already in a pensionable position. In contrast, the petitioner, upon entering service, did not enjoy a pensionable status, especially considering the existence of a rule under the un-amended Section 16(5) governing pension matters. Consequently, the court concluded that the petitioner cannot claim equivalence with the Chief Secretary regarding the entitlement to pensionary benefits.

The above ruling came in an appeal under clause 10 of the Letters Patent, directed against the judgement passed by the Single Judge in a Writ Petition, whereby and whereunder the writ petition was dismissed declining to interfere with impugned order by which the representation submitted by the petitioner, in pursuance to order passed in another writ petitioner was rejected.

The petitioner, Shristidhar Mahato, assumed the role of State Information Commissioner alongside five others on July 30, 2006. Subsequently, after serving a five-year term, the petitioner concluded their tenure on July 31, 2011.

Post the termination of office on July 31, 2011, the petitioner submitted a representation seeking retiral benefits. However, receiving no response, the petitioner filed a writ petition before thie High Court. The matter was disposed of on March 16, 2016, with an order directing the concerned respondent to make an informed decision regarding the petitioner's post-retiral and other terminal benefits within twelve weeks.

In compliance with the court's directive, the petitioner submitted a comprehensive representation to the respondents-authorities. However, the respondents-authorities did not address the petitioner's representation, prompting the petitioner to file a contempt case.

During the pendency of the contempt petition, the petitioner's representation was eventually addressed through an order dated August 24, 2016. The order rejected the petitioner's claim, citing that the service conditions of the State Information Commissioner were deemed equivalent to those of the Chief Secretary of the State. Furthermore, it mentioned that with the introduction of the new Pension Scheme from January 1, 2004, there was no provision for pension for the said position.

Dissatisfied with the decision, the petitioner once again approached the High Court by filing a Writ Petition, which was dismissed on June 15, 2023. Consequently, the appellant-writ petitioner filed the current intra-court appeal in response to the dismissal.

After hearing the counsels for both the parties, perusing the documents available on record and also taking into account the findings recorded by the Single Judge, the Court framed the following issues to be answered:

I. Whether the State is duty bound to formulate the rule governing the issue of pension as per the mandate of Section 16(5) of the Act, 2005?

II. Whether the writ petitioner can be deprived from the benefit of pension merely because he was not appointed in any pensionable service the day when he was appointed as State Information Commissioner?

III. Whether the finding recorded by the learned Single Judge to the effect that framing out of rule is exclusive domain of the State and there cannot be any direction by the High Court in exercise of power conferred under Article 226 of the Constitution of India by issuing command upon the State to frame out a policy decision can be said to be a correct finding?

Since all the issues were inter-linked therefore the same the Court took them up together to be answered.

In its interpretation of Section 16(5) of the Right to Information Act, 2005, the Court underscored that the conditions governing the terms and conditions of service for both the State Chief Information Commissioner and State Information Commissioner hinged upon the incumbent of the respective post being in receipt of pension. This prerequisite implied that entitlement to pension was contingent upon the appointment of the holder to the specified post, provided they were part of the pensionable service.

The Court further noted that a crucial amendment was introduced to this provision, effective from October 24, 2019. The amendment conferred the authority to determine the salary, allowances, and other terms of service for the State Chief Information Commissioner and the State Information Commissioner upon the Central Government. Importantly, it was stipulated that such terms could not be altered to the detriment of the appointees after their assumption of office.

Highlighting the implications of this amendment, the Court clarified that, post its enactment, all service conditions would be governed by the amended provision, rendering the previous provisions, including the one in Section 16(5), obsolete. Consequently, the service conditions for individuals appointed directly to the positions of State Chief Information Commissioner or State Information Commissioner after October 24, 2019, would be determined solely by the amended provision, which notably omitted any reference to the issuance of pension for such incumbents.

Addressing the question of why the State Government had not formulated a rule, the Court responded by underscoring that when statutory requirements mandate rule formulation by the appropriate government, it becomes the government's responsibility. However, the Court raised a pertinent query about whether the writ petitioner would genuinely benefit from such a rule even if formulated, given the specific circumstances of the case.

The Court opined, “According to our considered view, based upon the facts of the instant case, even if the rule be framed by the State Government as of now the writ petitioner will not be held entitled for pension for the reason that when the writ petitioner started to discharge his duty on 30.07.2006 and demitted his office on 31.07.2011 i.e, the day when the writ petitioner was appointed and demitted his office there was no existence of the rule as now existed under Section 16(5) rather the other provision was there prior to 24.10.2019 wherein the provision has been made for fixing the pension based upon the appointment of either the State Chief Information Commissioner or the State Information Commissioner at the time of appointment to such posts and in receipt of pension other than disability of wound pension.”

The Court underscored that it had duly acknowledged the established fact that the domain in question had been occupied prior to 24.10.2019. It explicitly noted that only after the aforementioned date had a new rule been incorporated into the statute to regulate the salary and other terms and conditions of service for the State Chief Information Commissioner or the State Information Commissioner.

According to the Court, since a rule was already in place to govern the determination of pension claims at the time, there was no justification for directing the State to formulate a new rule in lieu of the existing one. The Court held that if such a directive were to be issued by the High Court under the authority granted by Article 226 of the Constitution of India, it would amount to an overreach of its jurisdiction based on the principle of the "occupied field."

Further addressing the issue of the writ petitioner's awareness regarding the non-pensionable nature of the service at the time of appointment, the Court said, “... according to our considered view cannot be said to be sustainable on the ground that once the writ petitioner has accepted the offer of appointment based upon the statutory provision as was existed even there was the same rule when he demitted the office he cannot insist upon for direction to frame out a new rule holding him entitled for pensionary benefit for the reason that if any appointment is being made the same is to be governed by the existing rule as was in vogue at the time when appointment was made or even the day when the concerned incumbent had demitted the office.”

In response to the argument put forth by the petitioner in favor of the writ, which contended that the Single Judge's determination that there could be no directive for formulating a rule was based on the limited authority granted under Article 226 of the Constitution of India, the Court asserted that it found no fault in that conclusion. The Court's rationale was grounded in the existence of a pre-existing rule when the petitioner vacated the office. According to the principle of "occupied field," the Court deemed it unnecessary to issue any directive through the High Court's powers under Article 226 of the Constitution of India to establish a substitute rule. This was especially true in relation to securing pension benefits for the writ petitioner.

The Court finally opined, “Further there is no question of framing a rule since rule was already available and as such on the principle of 'occupied field‟ there was no need to make out a rule and hence there is no need to issue command by the High Court in exercise of power conferred under Article 226 of the Constitution of India.”

“This Court, on the basis of aforesaid discussion and entirety of facts and circumstances, has considered the order passed by learned Single Judge and found therefrom that the learned Single Judge has appreciated all legal issues along with the facts and hence not interfered with the impugned order, which according to our considered view cannot be said to suffer from any error,” the Court concluded while dismissing the appeal.

Counsel/s For the Appellant : Mr. Manoj Tandon, Advocate

Counsel/s For the Respondents : Mr. Jai Prakash, AAG-IA

Case Title: Shristidhar Mahato vs. The State of Jharkhand and Ors

LL Citation: 2023 LiveLaw (Jha) 147

Case No.:L.P.A. No. 407 of 2023

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