'Pensionary Benefit To Retired Employees Is A Vested Right Subject To Fulfilment Of Prescribed Conditions', Orissa High Court Dismisses Claim For post-retirement benefits

A Single Judge Bench of Orissa High Court comprising Justice Dr. S.K. Panigrahi dismissed a Petition seeking pensionary benefits. The Court held that in absence of Rules specifying the grant of such rights, the Petitioner would not be entitled to any benefits.

Background

The Petitioner was appointed to the position of State Information Commissioner in Odisha. As per the recommendations of a committee constituted under Section 15(3) of the Right to Information Act, 2005, the Governor approved his appointment

The Petitioner joined his duties on 07.08.2008 and retired on 06.08.2013. After retirement, he alleged that Section 16(5) of the Act of 2005, referred to “service, allowances, and other terms and conditions,” which he interpreted as 'post-retirement benefits', but there was no formal resolution, order or memorandum issued in this regard.

Pertinently, an official resolution was issued regarding the service conditions of State Chief Information by the State but no policy decision was made.

Aggrieved by the same, the Petitioner made several representations, however, yielding no outcome. In 2019, he approached the High Court and on 11.03.2019, the Opposite Party was directed to consider the representations. As the representations remained unresolved, the Petitioner initiated contempt proceedings in the Court. While the contempt proceedings were still pending, the Opposite Party issued an order dated 22.07.2020 stating since there was no provision for sanction of pension under the Right to Information Act, 2005, the claim of the Petitioner was meritless.

Finding the order perverse, the Petitioner approached the High Court.

Contentions of the Petitioner:

• The Counsel for the Petitioner argued that the phrase “other terms and conditions” as mentioned in Section 16(5) meant post-retirement benefits and the order passed by the authorities was not in consonance with Section 16(5) of the Act, 2005.
• It was contended that orders related to service conditions including post-retirement benefits fell within the scope of the general superintendence, direction, and management of the affairs of the Odisha Information Commission and as such the State Government could not perform the function of issuing such orders.
• Submitting further that as per the Act, the Petitioner was entitled to the salaries and allowances payable as that of the Chief Secretary to the State Government, the Petitioner was deprived of post-retiral benefits, even though the Chief Secretary was entitled to the same.
• The Counsel asserted that post-retiral benefits were allowances made in consideration of past service and not a bounty or a gratuitous payment and thus depriving the same to the Petitioner was against the set principles of law.
• The counsel claimed that the State Information Commissioners in certain states were granted pensionary benefits and therefore the Petitioner had to be extended the benefit.

Contentions of the Opposite Party:

• The Counsel for the Opposite Party contended that the Petitioner's representations were rejected because the there was no provision in the Odisha Information Commission that sanctioned the benefit claimed by the Petitioner.
• Moreover, as per a state policy, only State Chief Information Commissioners were entitled to post-retirement benefits and the Petitioner could not claim such benefits as there was no policy in place for State Information Commissioners.
• Contending that as per Section 16(5) of the Right to Information (Amendment) Act, 2019, the Central Government had the power to formulate rules governing the service conditions of both Central and State Information Commissioners, the Counsel stated that the Opposite Party did not have the jurisdiction to create any rules, memoranda, or orders concerning post-retirement benefits.
• The Counsel further argued that the Petitioner could not claim the entitlement to salary, allowances and other service conditions as that of the Chief Secretary as the Chief Secretary's service conditions were governed by All India Services (Conduct) Rules, 1968 while these Rules did not apply to the Petitioner, he could not seek a Writ of Mandamus.
• Asserting that the State Government had the exclusive power to provide salaries, allowances, and retirement benefits to State Information Commissioners, it was stated that the Odisha Information Commission had no role to play in relation to certain matters including the ones in question.

Findings of the Court:

The Court perused the Act and stated that there was no explicit provision or legislative intent to grant pensionary benefits to individuals in the petitioner's position. Moreover, the provision mentioning the benefits to be granted to the Petitioner at par with the ones granted to the Chief Secretary only included allowances and pay and not pensionary benefits.

The Court held that the Petitioner could not claim pensionary benefits as the Statute did not contain a provision governing such position.

On further perusal of the Act, the Court held that the Petitioner was excluded from the ambit of pensionary benefits. Furthermore, even the Commission was not designated as a pensionable establishment and thus it could not grant the benefit of post retiral pension.

The Court stated that the Right to Information (Term of Office, Salaries, Allowance, and Other Terms and Conditions of Service) Rules, 2019 encompassed provisions related to the term of office, retirement from parent service upon appointment, pay, dearness allowance, leave, cash payment in lieu of unutilized earned leave, medical facilities, accommodation, leave and travel concession, as well as travel and daily allowances. While the insertion of such provisions excluded pension or gratuity for retired State Information Commissioners, the Court inferred that the Legislature intended to not grant pensionary benefits to retired State Information Commissioners unless expressly covered by prior service in a pensionable establishment.

The Court further held that pension was not a bounty but a right vested in those retired employees who fulfil prescribed conditions as mentioned under certain rules, regulations or schemes. Elaborating upon the same, the Court relied on Prabhu Narain v. State of U.P, wherein it was held,

“No doubt pension is not a bounty, it is a valuable right given to an employee, but, in the first place it must be shown that the employee is entitled to pension under a particular rule or the scheme, as the case may be.”

Citing several judgments including UP Roadways Retired Officials and Officers Association v. State of UP & Anr, Shristidhar Mahato v. State of Jharkhand, the Court observed that pensionary benefits could only be extended to an employee if he/she held a pensionable post and fulfilled the conditions laid down under the Statute.

In terms of whether the State was duty bound to formulate Rules for grant of pension to the State Information Commissioners, the Court held that the rules regarding salaries, allowances, or service conditions of State Information Commissioners were not to be mandatorily decided by the State and it could only exercise the power to frame such rules in order to implement the provisions of the Act.

Relying on the judgment of the Supreme Court in Supreme Court Employees' Welfare Association v. Union of India, the Court held that States may choose to exercise the power of extending such benefit but the discretion was a matter of 'exclusive executive prerogative' as a settled principle of law.

Making these observations, the Court concluded that since there were no specific rules to recognize the entitlement of State Information Commissioners to receive pension, no legal right to claim such benefits existed with the Petitioner.

Accordingly, the Petition was dismissed.

Case Title: Jagadananda versus State of Odisha & Ors.

Counsel for the Petitioner: Mr. Debesh Panda, Adv. Ms. S. Guman Singh, Adv.

Counsel for the Opposite Party: Mr.Sonak Mishra, ASC Mr. B. K. Dash, Adv. Along with Mr. R. B. Dash, Adv.

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