Karnataka High Court
The State Of Karnataka vs Union Of India, on 23 August, 2018
Bench: Raghvendra S.Chauhan, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
WRIT APPEAL NO. 661 OF 2018 (S-R)
BETWEEN:
1. THE STATE OF KARNATAKA
REP. BY THE CHIEF SECRETARY TO GOVERNMENT,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. THE CHIEF SECRETARY
DPAR (JANASPANDANA),
STATE OF KARNATAKA,
PODIUM BLOCK, V. V. TOWER,
BENGALURU-560 001.
3. THE PRINCIPAL SECRETARY
DEPARTMENT OF FINANCE,
STATE OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
... APPELLANTS
(BY SRI A. S. PONNANNA, AAG A/W
SRI S. S. MAHENDRA, AGA)
2
AND:
1. UNION OF INDIA
DEPARTMENT OF PERSONAL AND TRAINING,
REPRESENTED BY ITS SECRETARY,
SHASHTRI BHAVAN,
NEW DELHI-110 001.
2. DR. H. N. KRISHNA
FORMER STATE INFORMATION COMMISSIONER,
NO.45, 4TH CROSS, CENTRAL EXCISE LAYOUT,
BOOPASANDRA,
BENGALURU-560 094.
... RESPONDENTS
(BY SRI B. S. PRAMOD, CGC FOR R-1;
SRI K. M. PRAKASH, ADV. FOR C/R-2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO ALLOW THE
WRIT APPEAL; SET ASIDE THE IMPUGNED ORDER DATED
21.11.2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT
PETITION NO.23010/2015 (S-R); AND DISMISS THE WRIT
PETITION NO.23010/2015 (S-R).
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, RAGHVENDRA S. CHAUHAN J, DELIVERED
THE FOLLOWING:
JUDGMENT
With the consent of the learned counsel for parties, the matter is being decided finally at this stage itself.
1. The State of Karnataka is aggrieved by the order dated 21.11.2017, passed by a learned Single 3 Judge in W.P.No.23010/2015, whereby, after concluding that Dr. H. N. Krishna, the respondent No.2, the former State Information Commissioner, would be entitled to receive pension, the learned Single Judge has directed the State to consider the representation dated 08.02.2013, filed by the respondent No.2, in accordance with the Government Order dated 05.01.2013, and in the light of the observations made by the Court. The only issue that arose before this Court was, whether after having resigned from his post, the State Information Commissioner would be entitled to receive his pension from the State, or not ?
2. Mr. Ponnanna, the learned AAG appearing for the appellants, has contended that according to Sub-Section (5) of Section 16 of the Right to Information Act, 2005 ('the Act' for short), the terms and conditions of the office of the State Information Commissioner has been defined. According to Section 16 (5) of the Act, the 4 salaries and allowances payable to, and other terms and conditions of service, shall be the same as that of the Chief Secretary to the State Government. He has further pleaded that according to Rule 5 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 ('the Rules' for short), no retirement benefit would be granted to a person who has resigned from the service. Thus, according to him, the learned Single Judge has erred in concluding that the respondent No.2 would be entitled to receive his pension, although he has resigned from his post after serving the State for a period of four years and two months. Therefore, he has pleaded that the impugned order should be set aside by this Court.
3. On the other hand, Mr. K. M. Prakash, the learned counsel for the respondent No.2, submits that the learned Single Judge is justified in concluding that there is a difference in the office of the State Information Commissioner, and the post of Chief Secretary of the 5 State. Hence, both cannot be equated. Moreover, the learned Single Judge has noticed the fact that a co-joint reading of Section 16 and 17 of the Act dispels the impression created by Sub-Section (5) of Section 16 of the Act. Hence the learned counsel has supported the impugned order.
4. Heard the learned counsel for the parties, and perused the impugned order.
5. It is, indeed, trite to state that the office of the State Information Commissioner and the post of the Chief Secretary of the State Government stand on two different footing:
Firstly, the mode and method of appointment of the State Information Commissioner and of the Chief Secretary are wholly different. While the former is appointed under the Act, the latter is a promotional post in the cadre of IAS Officers of the State. While the 6 former is a statutory authority, the latter is a civil servant. While the former occupies neither a tenure, nor a service post, the latter occupies a service post. Most importantly, the duties assigned to the former and the latter are of totally different nature. Therefore, the learned Single Judge is justified in concluding that merely because Section 16 of the Act prescribes that the salary and allowances and other terms of conditions of service would be the same for the State Information Commissioner as that of the Chief Secretary of the State Government, even then the two posts cannot be equated.
Secondly, the removal/resignation of the State Information Commissioner is governed by the Act. The said Act is a complete Code insofar as the appointment, removal and resignation of the State Information Commissioner is concerned. Therefore, the provisions of All India Services (Death-cum-Retirement Benefits) 7 Rules, 1958 would not be applicable to the State Information Commissioner.
Thirdly, the learned Single Judge is justified in concluding that the benefit of pension to the State Information Commissioner has been granted by order dated 05.01.2013, as a matter of policy. According to the said order, the State Information Commissioner would be entitled to a pension upon completion of minimum of three years. Since the respondent No.2 had completed four years of service, he would be entitled to receive the pension under the order dated 05.01.2013. Moreover, since there is no condition mentioned in the order dated 05.01.2013 disentitling the State Information Commissioner from receiving pension ostensibly on the ground that he has resigned from the post, the said condition cannot be read in the order dated 05.01.2013. Therefore, the State Government is unjustified in denying the benefit of 8 pension to the respondent No.2 ostensibly on the ground that he has resigned from the post.
Lastly, the grant of pension is not an act of charity. It is a statutory right, or a right given under an order having the force of law. In the present case, the right emanate from the order dated 05.01.2013. Hence, the right to receive the pension cannot be denied to the respondent No.2 in a highly arbitrary, unfair and unjust manner. Needless to say, if the pension is denied in an arbitrary manner to respondent No.2, such an action would be violative of the fundamental rights of the respondent No.2 under Articles 14 and 21 of the Constitution of India.
6. As far as the legal provisions are concerned, Section 16 of the Act is as under:
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 9 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.
(2) Every State Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner:
Provided that every State Information Commissioner shall, on vacating his office under this sub-section, be eligible for appointment as the State Chief Information Commissioner in the manner specified in sub- section (3) of section 15:
Provided further that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner.
(3) The State Chief Information Commissioner or a State Information Commissioner, shall before he enters upon his office make and subscribe before the Governor or some other person appointed by him in that behalf, an 10 oath or affirmation according to the form set out for the purpose in the First Schedule.
(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.
(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:
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 11 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 retirement benefits:
Provided also that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment.
(6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.12
7. Section 17 of the Act is as under:
17. Removal of State Chief Information Commissioner or State Information Commissioner.--(1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or a State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.
(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,--
(a) is adjudged an insolvent; or 13
(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or
(c) engages during his term of office in any paid employment outside the duties of his office; or
(d) is, in the opinion of the Governor, unfit to continue in office by reason of infirmity of mind or body; or
(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.
(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.
8. Rule 5 of the Rules is as under:
5. Removal, Dismissal or Resignation from Service.- 5(1) No retirement benefits may be granted to a person who has been 14 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.
9. Thus, a co-joint reading of the provisions clearly reveals that the provision of Rule 5 cannot be impetrated into Section 16 of the Act. Moreover, Section 16(4) of the Act clearly provides the State Information Commissioner to resign from his office at any time by tendering his resignation to Hon'ble the Governor of the State. Furthermore, Section 17 of the Act provides a distinct mechanism for removal and suspension of the State Information Commissioner. Therefore, the learned Single Judge is justified that a co-joint reading of Sub- Section (4) of Section 16, and Section 17 of the Act, would lead to the invariable conclusion that the State 15 Information Commissioner is entitled to quit his office by resigning, and that the provisions of Rule 5 of the Rules are not attracted in the present case.
10. Since the learned Single Judge has given cogent and convincing reasons for concluding that the respondent No.2 is entitled to receive his pension, the impugned order cannot be faulted by this Court.
11. For the reasons stated above, this Court does not find any merit in the present appeal. It is, hereby, dismissed.
12. The State is directed to pay the pension to the respondent No.2, within a period of three months from the date of receipt of a certified copy of this judgment.
SD/-
JUDGE SD/-
JUDGE RD