Karnataka High Court
Dr H N Krishna vs State Of Karnataka on 21 November, 2017
Author: G.Narendar
Bench: G. Narendar
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IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE G. NARENDAR
WRIT PETITION NO.23010/2015 (S-R)
BETWEEN:
Dr. H.N. Krishna,
Former State Information Commissioner,
No.45, 4th Cross,
Central Excise Layout,
Boopasandra,
Bengaluru-560 094
... Petitioner
(By Sri. K.M. Prakash, Advocate)
AND:
1. State of Karnataka
Represented by its,
Chief Secretary to Government,
Vidhana Soudha,
Bangalore-560 001
2. Chief Secretary, DPAR (Janaspandana)
State of Karnataka,
Podium Block, Vishweshawaraiah Tower,
Bangalore-560 001
3. Principal Secretary
Department of Finance
State of Karnataka
2
Vidhana Soudha,
Bangalore-560 001.
4. Union of India,
Department of Personal and Training,
Represented by its Secretary,
Shashtri Bhavan,
New Delhi-110 001.
... Respondents
(By Sri. Prabhuling K. Navadgi, ASGI for R-4;
Sri. E.S. Indiresh, learned AGA for R-1 to R-3)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the endorsements
issued by the Respondents vide Annexure-F bearing
No.DPAR:44:RTI:2013, dated 1.4.2013, and Annexure-H
bearing No.DPAR:44:RTI:2013 dated 18.12.2013 and etc.
This writ petition having been listed for dictating order
and having been reserved on 16.6.2017 for orders; this day
the Court pronounced the following;
ORDER
Heard the learned Senior Counsel Sri D.L. Jagadish on behalf of the petitioner and the learned Addl. Govt. Advocate Sri. E.S. Indiresh on behalf of the respondents-State.
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2. The stimulus for the present litigation is the proceedings of the Principal Secretary, DPAR, Janaspandana, Bengaluru bearing No.C.AA.SU.E.:44:
RTI: 2013, Bengaluru dated 18.12.2013 whereby, the petitioner has been intimated that on account of his tendering resignation from the post of State Information Commissioner ('SIC' for short) , the services rendered by him over a period of 4 years 2 months has been negated and hence, his representation for payment of pension and other retirement benefits cannot be considered as the salaries and allowances and other terms and conditions of service of the SIC is mandated to be the same as that of the Information Commissioner is mandated to be the same as that of the Chief Secretary to the State Government as provided under Clause-b of Sub-Section (5) of Section 16 of the Right to Information Act, 2005 (hereinafter referred to as ' the Act' for short).4
3. The facts in a nutshell are that the petitioner was appointed as the SIC pursuant to notification dated 29.06.2007 invoking the provisions of Section 15 (3) of the Act by his Excellency Hon'ble Governor of State of Karnataka. Pursuant to his appointment, the petitioner assumed office and continued till his date of resignation on 28.9.2011 without there being any cause for concern and that he discharged his duties diligently and honestly without giving any room, any complaint or adverse remarks.
4. It is contended that on account of personal reasons, the petitioner has constrained to resign from office and tendered his resignation on 28.11.2011 and the same came to be accepted by the Hon'ble Governor. Copy of the notification issued by the office of the Hon'ble Governor vide notification dated 28.9.2011. The resignation was tendered under the provisions of Sub-Section 4 of Section 16 of the Act.
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5. It is contended by the learned Senior Counsel that resignation is one of the modes of demitting office recognized under the Act. He would draw the attention to the provisions of Sub-section 4 of Section 16 of the Act, which reads thus;
"(4) The State Chief Information Commissioner or a State Information Commissioner may, at any time, by writing under his hand addressed to the Governor, resign from his office:
Provided that the State Chief Information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17."
6. He would contend that the petitioner had completed 4 years and 2 months in office as on the date of his resignation and that on account of the tenure of service rendered the petitioner was entitled for pension in view of the notification dated 5.1.2013 issued by the State. He would draw the attention of the Court to Annexure-D being the notification dated 5.1.2013. On 6 perusal it is seen that the said notification is issued in exercise of the powers vested in it under Section 27 of the Act. Under the said notification Information Commissioners who have completed 3 years tenure in the office are made eligible for the pension. The said notification is also in consonance the provisions of Sub- Section 5 of Section 16 which empowers the State Government to provide for the salaries, allowances and the terms and conditions of service.
7. Pursuant to the notification dated 5.1.2013, the State Information Commission addressed a letter to the 3rd respondent regarding grant of pension/ additional pension to the petitioner. The communication emanated in lieu of the representation made by the petitioner to the State Information Commission. That the representation was made on account of recommendation of pension in respect of one Sri. K.K. Mishra who retired as the State Chief 7 Information Commissioner. It is further contended that the petitioner also made a representation to the 2nd respondent seeking grant of pension/ additional pension pursuant to the notification dated 5.1.2013. In response vide Annexure-H dated 18.12.2013 the petitioner was intimated that as the SIC have been accorded the status of Chief Secretary the rules applicable to them have to be followed. It is further stated that as per the service conditions applicable to a Chief Secretary, any officer who tenders his resignation is disentitled for any pension and as the petitioner had quit office by tendering resignation, the tenure of 4 years and 2 months of service are to be discounted thereby disentitling the petitioner to any pension.
8. The learned Senior counsel would contend that the respondents have erred in placing reliance on the service conditions governing a Chief Secretary. He would further contend that the terms and conditions of 8 office and appointment and demitting of office are entirely governed by the various provisions of the Act and that the SIC is a statuary authority exercising statutory powers unlike a Chief Secretary whose nature of work and scope of duties are governed by the All India Service Rules. He would further contend and enlarging the above contention he would submit that the petitioner as a statutory authority was discharging functions which are primarily quasi judicial in nature. He would contend that the appointment of an authority under the Act is wholly different from that of the Chief Secretary who is an appointee of the Government. He contend that the selection of the SCIC and SIC is by a august body comprising of the Chief Minister, the Leader of the Opposition and a Cabinet Minister to be nominated by the Chief Minister.
9. He would contend that rejection of the petitioner's request for grant of pension after having put 9 in more than the minimum stipulated 3 years of service, is arbitrary and contrary to Government Notification dated 5.1.2013. He would contend that the impugned endorsement is vitiated by discrimination as it has rejected the grant of pension/ additional pension to the petitioner and the fact is that other SIC who have completed 3 years tenure in office have been granted pension. The learned Senior Counsel has placed reliance on the ruling of the Hon'ble Apex Court reported in 1997 2 SCC 78. He would draw the attention of the Court to the observation of the Hon'ble Apex in para No.19 and 20, which reads thus;
" 19. Regulation 16 does not cover a case of voluntary resignation. Regulation 16(b) does refer to a case where an officer who has to his credit the minimum period of qualifying service being called upon to resign whose pension can be reduced. Had the Regulations intended to take away the right of a person to the terminal benefits on his voluntary resigning, then a specific provision similar to Regulation 16 (b) would have been 10 incorporated in the Regulations but this has not been done. Once an officer has to his credit the minimum period of qualifying service, he earns a right to get pension and as the Regulations stand, that right can be taken away only if an order is passed under Regulation 3 or 16. The cases of voluntary resignations of officers, who have to their credit the minimum period of qualifying service are not covered by these two Regulations and, therefore, such officers, who voluntarily resign, cannot be automatically deprived of the terminal benefits. (emphasis supplied by this Court)
20. The letter of 25-4-1981 issued by the Army Headquarters does state that pensionary benefits will be lost if an officer resigns from service, but it has not been shown to us that this letter, in any way, supersedes or purports to amend or modify the aforesaid regulations. In view of the specific right of pensionary benefits having granted by the said Regulations no effect need be given to the letter dated 25.4.1981."
10. The learned Senior counsel would contend that in the light of the observation by the Hon'ble Apex Court once a person completes the minimum tenure 11 stipulated to entitle a person to pension the respondents are not empowered to withhold the payment of pension. He would contend that once the State has exercised powers vested in it under the Act in the form of notification dated 5.1.2013 and thereby enabling payment of pension the respondents cannot be permitted to fall back on the service conditions governing a Chief Secretary under the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (Fort short 'the rules').
11. The learned Senior Counsel to buttress his above contention would place reliance on the ruling rendered by the Division Bench of this Court reported in ILR 2003 KAR 2605 and would draw the attention of the Court to paragraph 15, which reads thus;
" In D.S. NAKARA AND OTHERS vs UNION OF INDIA reported in (1983) 1 SCC 305/AIR 1983 SC 130, the Supreme Court held that discernible purpose underlying pension scheme 12 or a statue introducing the pension scheme must receive liberal construction and Courts shall not interpret such statute or the scheme so as to render the same inane. The Supreme Court also held that interpretation of a pension scheme must be in consonance with the constitutional goal of setting up of a socialistic State and the assurance in the Directive Principles of State policy, especially of security in old age atleast to those who have rendered useful service during their active years of service."
12. He would contend that payment of pension is a recognition of the past service rendered which in the instant case is in the nature of quasi judicial functions. He would contend in the light of the above the respondents are estopped from contending that the petitioner has disentitled himself to payment of pension on account of his resignation.
13. The respondents No.1 to 3-State have preferred a detailed statement of objection and thereby oppose the prayer for quashing the endorsement dated 13 1.4.2013 and 18.12.2013 produced as Annexure-F and H to the writ petition. The sole premise on which the respondents endeavor to resist the petitioner's plea and to sustain the impugned endorsements is the provision in Sub-section 5 of Section 16 of the Act, which reads as follows;
"16. Term of office and conditions of service.-(1) The State Chief Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office and shall not be eligible for reappointment:
Provided that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years.
(5) The salaries and allowances payable to and other terms and conditions of service of-
(a) the State Chief Information Commissioner shall be the same as that of an Election Commissioner;
(b) the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government:14
Provided that if the State Chief Information Commissioner or a State Information Commissioner, at the time of his appointment is, in receipt of a pension, other than a disability or wound pension, in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the State Chief Information Commissioner or a State Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity:
Provided further that where the State Chief Information Commissioner or a State Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the State chief Information Commissioner or the State Information Commissioner shall be reduced by the amount of pension equivalent to the reitrement benefits:
Provided also that the salaries, allowances and other conditions of service of the State Chief Information 15 Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment."
14. The learned Additional Government Advocate would draw the attention of the Court to the provisions of Section 16 (5) (b) of the Act. He contend that on a plain reading of the provision of Section 16 (5) of the Act it is made apparent that the salaries and allowances payable to the petitioner and other terms and conditions of service shall be the same as that of the Chief Secretary to the State Government. He would fairly submit that the respondents do not equate the post of Chief Secretary with that of the SIC but going by the plain language of the provision, the terms and conditions of service applicable to a Chief Secretary ought to be made applicable to the SIC also and hence in the light of the provisions of Rule 5, more particularly the provision of Rule 5(1) of the Rules the petitioner, who quit office by tendering his resignation is 16 disentitled to pension. He would draw the attention of the Court to the Rule 5 (1) of the aforesaid rules, which reads as under;
5. Removal, Dismissal or Resignation from Service.-
" 5 (1) No retirement benefits may be granted to a person who has been dismissed or removed from the Service or who has resigned from the Service.
Provided that, if the circumstances of the case so warrant the State Government may grant to a person who has been dismissed or removed from the Service a compassionate allowance not exceeding two-thirds of the retirement benefits which would have been admissible to him if he had been invalidated and not dismissed or removed from the Service.
15. From a reading of the above rule, it is apparent that the said Rule relates to the removal, dismissal or resignation from the service. He would contend that in the light of the provisions of Rule 5(1) no retirement benefits can be granted to a person who 17 has been dismissed or removed from the service or who has resigned from the service and hence he would reiterate the stand of the respondents to deny the petitioner's entitlement to pension and he would enlarge the said contention by stating that in view of the act of the resignation service the tenure of 4 years 2 months in office gets wiped out and cannot be counted upon to enable the petitioner to demand payment of pension under the notification.
16. Nextly, he would contend that the impugned endorsement is not vitiated by discrimination. He would state that the others have been paid pensions are not similarly situated as the petitioner as none of them had resigned from office and additionally they had completed 3 years term in the office as mandated under the notification dated 5.1.2013. He would further contend that the petitioner by his act of resignation has 18 forfeited his earlier services and thereby he is ineligible for receipt of pension.
17. He would further contend that the office of the State Chief Information Commissioner (for short "SCIC") and SIC cannot be equated as the terms and conditions of office are distinctly provided under the Act. The learned Additional Government Advocate has also filed a memo dated 26.4.2017 enclosing therewith copy of a office note detailing the salary allowances and perks attached to the office of Chief Secretary. Further, a copy of the order of the Government of Kerala issued by the Finance (Pension-B) Department dated 29.5.2014 and produced as Annexure-R2. He would draw the attention of the Court to para 10 of the said notification, which reads as under;
"10. State Chief Information Commissioners/ State Information Commissioners who resigned / removed or dismissed shall not be eligible for 19 pensionary benefits including DCRG/terminal gratuity."
18. He would contend that the State has also similarly denied pension to the petitioner who quit office by tendering his resignation and hence he would pray for rejection of writ petition.
19. This Court has given its anxious consideration to the various contentions canvassed before this Court. In the light of the various facts and provisions of law adverted to by the parties, the point that arises for consideration by this Court is whether the State Information Commissioner who resigned from his office is disentitled from claiming pension if he is otherwise entitled to?
The answer is in the Negative for the following reasons;
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The office of a SIC and the post of the Chief Secretary of a State cannot be equated at all for the simple reason that the qualification for the post, the process of appointment and the scope of duties are entirely different. A person who is selected as a Chief Secretary has to possess the minimum education qualification prescribed. Thereafter he has to participate and undergo a competitive process and upon successfully completing the competitive process, he is selected by an authority. In the case of SIC it is by way of consultative process, thus the mode and method of appointments involving a Chief Secretary and SIC are wholly different.
Nextly, the Chief Secretary is a civil servant whereas the Information Commissioner is a statutory authority. The post of a Chief Secretary, unlike that of a SIC, comes within the ambit of service jurisprudence. 21 The office of State Information Commissioner is neither a tenure post or a service post.
Nextly, the scope of duties and functions discharged by Chief Secretary and State Information Commissioner are wholly different. Unlike the Chief Secretary which is primarily an administrative post, the primary duties discharged by a State Information Commissioner are quasi judicial in nature.
20. Though, on a cursory reading of the provisions of Sub- section (5) one would tend to agree with the interpretation placed by the respondents on a closer scrutiny, more particularly of the provisos to Section 16, the same belies the assertion and interpretation placed by the respondent State. Though the heading of the provision refers to terms and conditions of service of a State Information Commissioner and clause (b) states that it is the same that of the Chief Secretary the other attendant 22 provisions of Section16 and 17 dispels the impression created by a reading of the provisions of Sub-section (5) in isolation. A conjoint reading of the various provisions of the Act including the provisions relating to qualification, process of selection, removal etc. clearly demonstrate that the terms of office and conditions of service are those that are stipulated under the Act, which is a self contained Act by itself. If the provisions of Sections 16 and 17 are read in conjunction, it become apparent that the provision 5 of the Rules can neither be imported nor read into the Right to Information Act, 2005.
21. From a bare reading of Rule-5 and it is apparent that it relates to removal, dismissal or resignation from service. With regard to the said aspects the same are distinctly provided under the RTI Act of 2005. The provisions of Section 16 (4) clearly provides the option to a State Chief Information 23 Commissioner or a State Information Commissioner to resign from office at any time by tendering in writing, under his hand and addressed to the Hon'ble Governor a letter of resignation. A further reading of the provision clearly demonstrates that notwithstanding the tendering of resignation by the SCIC or SIC may be removed in manner specified under Section 17 of the Act.
22. A bare reading of Section 17 obviates any further discussion with regard to the applicability of Rule-5 of the Rule 1958 to the appointments made under the RTI Act, 2005. Section 17 provides a distinct mechanism, procedure and grounds for removal and suspension of the SCIC and SIC. Thus, on a conjoint reading of Sub-Section 4 of Sections 16 and 17 of the Act, the conclusion that can be drawn is that a SCIC and a SIC are entitled to quit office by tendering resignation to the Hon'ble Governor. That the SCIC and SIC can be removed only on the grounds detailed in 24 Section 17. Finally, the authority is invested with the discretion to reject the resignation tendered if it is tendered under adverse circumstances and have the SCIC or SIC removed in the manner as provided under Section 17 of the Act. Thus, the inescapable conclusion that one can arrive at is that as the removal and resignation of a SCIC and SIC having been provided under the Act of 2005 itself it cannot be gainfully argued that the provisions of Rule-5 of the All India Services (DCRB) Rules, 1958 get attracted. The SCIC and SIC can only be removed in the manner provided under the Act and for the grounds detailed under the Act and it is impermissible to read into the Act of 2005 the provision of Rule-5 of the AIS (DCRB) Rules, 1958.
23. In the light of the above discussion sub- Section 5 of Section 16 of the Act has to be read as merely detailing the broad guidelines regarding the entitlement that go with the office of SCIC or SIC. This 25 is also made clear by the provisos to the said provision which clearly disentitles the SCIC or the SIC to a salary on par with the Chief Secretary in the event of his being a recipient of any retirement benefits or pension. Moreover, the post of Chief Secretary is not a tenure post. Hence, in view of the above discussion the contention that the provisions of Rule-5 of the AIS (DCRB) Rules, 1958 are attracted to the case of the petitioner on account of his resignation and that the past service of 4 years 2 months stands forfeited in the light of the said resignation requires to be rejected and accordingly is rejected.
Furthermore, it is seen that the State Government as a matter policy has got issued notification vide Annexure-B to the writ petition dated 5.1.2013 whereby it has stipulated that all SICs who have completed a minimum tenure of 3 years in office have been made eligible for receipt of pension but subject to the ceiling 26 and conditions detailed therein. Unlike Annexure-R2 no condition is imposed under the notification disentitling SIC from receiving pension on account of resignation from his office. As noted supra, the Government of Kerala by its order sanctioning pension stipulated a specific clause whereby SICs who resigned from office have been made ineligible from claiming pension. In the absence of such a prohibitory clause in the Government order dated 13.1.2015 the rejection of the petitioner's request for payment of pension stands vitiated. The denial of pension on an erroneous appreciation of law more particularly the application of the Rules of 1958 is unsustainable and hence the impugned endorsements dated 1.4.2013 and 18.12.2013 require to be quashed and accordingly are quashed.
The writ petition is allowed in part.
The respondent Nos.1 to 3 are directed to re- consider the representation of the petitioner dated 27 8.2.2013 in accordance with the Govt. Order dated 5.1.2013 and in the light of the observations made by this Court hereinabove.
Writ petition stands disposed of in the above terms.
There shall be no order as to costs.
Sd/-
JUDGE BL