Bombay High Court
Prashant S. P. Tendolkar vs State Of Goa, Thr. The Chief Secretary ... on 1 August, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1217-DB WP-433-2021.DOC
2024:BHC-GOA:1217-DB
Suchitra
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.433/2021
SHRI PRASHANT S. P. TENDOLKAR,
age 65 years, Retired Chief
Information Commissioner,
Goa State Information Commission,
Panaji, Goa, and presently
residing at A6, Raj Heritage,
Shantinagar, Ponda, Goa.
... PETITIONER
Versus
(1) STATE OF GOA, hrough the
Chief Secretary, Secretariat, Porvorim-Goa.
(2) SECRETARY FINANCE,
State of Goa, Secretariat, Porvorim Goa.
(3) SECRETARY INFORMATION
& PUBLICITY, State of Goa,
Secretariat, Porvorim Goa.
(4) DIRECTOR, INFORMATION
& PUBLICITY, Govt. of Goa
Udhyog Bhavan, 3rd Floor,
Near Azad Maidan, Panaji Goa.
(5) SECRETARY, GOA STATE
INFORMATION COMMISSION,
7th Floor, Kamat Towers,
Patto, Panaji, Goa.
... RESPONDENTS
Mr R. G. Ramani, Senior Advocate with Mr Vinayak Nevrekar ,
Advocate for the Petitioner.
Ms Maria Correia, Additional Government Advocate for the
Respondents.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
Reserved on: 18th JULY 2024
Pronounced on: 1st AUGUST 2024
Page 1 of 20
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JUDGMENT:
(Per M. S. Karnik, J.)
1. he petitioner herein invokes the jurisdiction of this Court under
Article 226 of the Constitution of India seeking the following reliefs:
"a) For an appropriate Writ, order or direction of this Hon'ble Court
directing the Respondents to efect the payment of the entire arrears
of salary and allowances and related arrears as per the Amendment
Act of 2018 alongwith interest thereon @ 12% p.a. from 1/4/2018
till the same is fully and inally paid;
b) For an appropriate Writ, order or direction of this Hon'ble Court
directing the Respondents to inalize/Fix the Petitioner's pension and
submit the required papers to the Directorate of Accounts for
payments, within such period as may be ixed by this Hon'ble Court;
c) For an appropriate Writ, order or direction of this Hon'ble Court
directing the Respondents to order the payment of the entire amount
towards Gratuity and the Leave Encashment amount, alongwith
interest thereon @ 12% p.a. from 11/2/2020 till the same is fully
and inally paid;
d) For an appropriate Writ, order or direction of this Hon'ble Court
directing the Respondents to order the reimbursement of the
payment towards domestic help as per the Notiication dated
24/11/2016 of the Hon'ble Supreme Court of India published in the
Gazette of India (Extraordinary) dated 25/11/2016 notifying the
Rules for providing domestic help to former Chief Justice of India
and former Judges of the Supreme Court and as implemented by the
Election Commission of India;"
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2. Before we deal with the facts, it is necessary to refer to the
observations of this Court in the order dated 20.03.2024. Mr Ramani,
learned Senior Advocate for the petitioner admitted that the petitioner has
been paid the entire arrears of the salary and allowances and the related
arrears as per the Amendment Act, 2018. he relief now sought is for the
interest due and payable on this amount for the delayed period. In so far
as the prayer clause (c) is concerned, the petitioner has been paid the leave
encashment amount on 20.11.2020. Interest for the delayed period is
demanded. he petitioner then prayed for gratuity. he core issue in this
petition is the dispute whether the petitioner is entitled to any pensionary
beneit. he petitioner also prays, in the context of prayer clause (d), for
the reimbursement of payment of domestic help in terms of the
notiication dated 24.11.2016.
3. he facts in a nutshell are as follows.
4. he petitioner has been a practising advocate enrolled with the Bar
Council of Maharashtra and Goa from 01.06.1982. Pursuant to the order
of the Governor dated 11.12.2015, issued through the respondent no.4 -
Director, Information and Publicity, Government of Goa and published in
the Oicial Gazette of Government of Goa on 24.12.2015, the petitioner
was appointed as the State Chief Information Commissioner (SCIC for
short) for the Goa State Information Commission. he said appointment
was made in terms of Section 15(3) of the Right to Information Act, 2005
(RTI Act for short).
5. he petitioner entered the oice as SCIC of the Goa State
Information Commission with efect from 01.01.2016. According to the
learned Senior Advocate for the petitioner, the terms and conditions of
service were governed under Section 16(5) of the RTI Act. It is the
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contention of the learned Senior Advocate that in terms of Section 16(5)(a)
of the RTI Act, the salaries and allowances payable to and other terms and
conditions of service of the SCIC shall be the same as that of an Election
Commissioner. Under Section 3 of the Election Commission (Conditions
of Service of Election Commissioners and Transaction of Business) Act,
1991 (Election Commission Act for short), the terms and conditions of
service and the salaries payable to the Election Commissioner are the same
as provided under he Supreme Court Judges (Salaries and Conditions of
Service) Act, 1958 (Act of 1958 for short) and he Supreme Court Judges
Rules, 1959. It is the submission of the learned Senior Advocate that the
petitioner's salary and allowances and other terms and conditions of service
are thus governed as per the provisions of the Act of 1958. here is no
dispute that the petitioner has received salary and allowances as prescribed
under the Act of 1958.
6. By the Amendment Act of 2018, the Act of 1958 was amended by
the Ministry of Law and Justice thereby revising the salaries and allowances
as also some of the terms and conditions of service. here is also no
dispute that the salaries and allowances came to be revised and paid as per
the Amendment Act, 2018. For the delay in payment of arrears, interest is
demanded.
7. he petitioner retired as SCIC on 11.02.2020 on completion of his
tenure. It is the submission of the learned Senior Advocate for the
petitioner that the petitioner is entitled to receive pension and gratuity as
per the Act of 1958 duly amended by the Amendment Act of 2018. he
petitioner however was not paid pension and gratuity though he was
entitled to its receipt. By communication dated 15.01.2020, the
respondent no.5 informed the petitioner that he is not entitled for pension.
In addition to the pension, it is contended that the petitioner is entitled to
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reimbursement towards domestic help as per notiication dated 24.11.2016
of the Hon'ble Supreme Court of India published in the Gazette of India
(Extraordinary) dated 25.11.2016 notifying the Rules for providing
domestic help to former Chief Justice of India and former judges of the
Supreme Court and as implemented by the Election Commission of India.
he said Rules providing for domestic help are made applicable to the
Election Commission of India vide Oice Memorandum dated
05.07.2017 and to the Central Information Commission, New Delhi by
Oice Memorandum dated 09.04.2018.
8. Ms Maria Correia, learned Additional Government Advocate
appearing for the State submitted that the petitioner is not entitled to any
pensionary beneits. It is submitted that pensionary beneits to any given
post are to be granted on the basis of the contract of service or the statute
that governs the service. According to her, pensionary beneits cannot be
granted de hors the statute and/or de hors the contract of service. he
phrase 'others terms and conditions of service' under Section 16(5) of the
RTI Act, 2005 are qualiied by the words ' salaries and allowances' and
hence cannot be construed to include retiral beneits and/or post retiral
beneits. Reliance is placed on the decision of the Division Bench of the
Jharkhand High Court in Shristidhar Mahato v/s State of Jharkhand and
Others - 2023 SCC Online Jhar 3215 which has interpreted Section 16(5)
of the RTI Act, 2005 to be restricted to salaries and allowances only and
not to include pensionary beneits.
9. It is submitted by the learned AGA that in the event it was the
intention of the Legislature to include retiral and/or post retiral beneits,
the same would be mentioned in the provision itself. A reference is made to
the Goa Lokayukta Act, 2011 which contains a similar provision wherein,
when it comes to the conditions of service of the Lokayukta and the Upa
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Lokayukta, reference is made to the service conditions of the Judges of the
Supreme Court and the High Court, respectively. Under Section 6 of the
Goa Lokayukta Act, 2011 it is stated that Lokayukta and the Upa-
Lokayukta shall be entitled to salary, allowances and pension and shall be
subject to the same conditions of service, as a Judge of the Supreme Court
and a Judge of the High Court, respectively. She submits that when the
Legislature intended to extend pensionary beneits, it has clearly stipulated
so. Mere reference to the phrase 'other terms and conditions of service'
would not by default include within its ambit pensionary beneits. he
intent always was not to extend pensionary beneits which is further made
clear by virtue of the 2019 amendment to the RTI Act. Section 16(5)
reads - 'the salaries and allowances payable to and other terms and
conditions of service of the State Chief Information Commissioner and the
State Information Commissioners shall be such as may be prescribed by the
Central Government'. he use of the phrase ' other terms and conditions
of service' only speaks about the beneits which are available to the
incumbent while he or she holds the post of State Chief Information
Commissioner and does not provide for retiral and/or post retiral beneits.
herefore, unless there is speciic mention of pensionary beneits and other
such retiral beneits, the same cannot be included in the phrase 'o ther
terms and conditions of service'. he grant of any pension in terms of Part
III would result in an absurd situation wherein persons who entered the
oice as State Chief Information Commissioner and who did not hold a
pensionable post prior to such entry would not be entitled to pension
whilst persons who held a pensionable post anytime prior to becoming a
judge would be entitled to additional pensionary beneits upon being
appointed as SCIC. In the alternative and without prejudice to the above,
learned AGA submitted that the Petitioner's beneits would be limited to
Part III of the Supreme Court Judges (Conditions of Service) Act, 1958,
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and in terms of the same, the petitioner would only be entitled to the
additional pensionary beneits in terms of sub clause (b) of clause 2 of Part
III of the Supreme Court Judges (Conditions of Service) Act, 1958.
10. It is submitted that gratuity being a post retiral beneit cannot be
extended to the petitioner. In the alternative and without prejudice to the
above, she submits that the gratuity would have to be extended in terms of
clause (b) of sub section (2) of section 6 of the Election Commission
(Conditions of Service of Election Commissioners and Transaction of
Business) Act, 1991 if at all the same is payable.
11. Learned AGA urged that the service conditions spelt out in Section 8
of the Election Commission (Conditions of Service of Election
Commissioners and Transaction of Business) Act, 1991 are all in the
nature of conditions as are applicable to a person whilst he holds the said
post and does not pertain to post retiral beneits. herefore, by placing
reliance upon the said provision, the post retiral beneits which are
applicable to a retired Judge of the Supreme Court cannot be extended to
the retired SCIC. he post retiral beneits are made applicable to retired
Judges of the Hon'ble Supreme Court in light of the esteemed
constitutional position held by them.
12. As regards the entitlement of domestic help, it is submitted that the
Central Government has been given the power to frame Rules under
Section 24 of the Supreme Court Judges (Conditions of Service) Act, 1958
(41 of 1958). he Rules for providing Domestic Help to Former Chief
Justices of India and Former Judges of the Supreme Court upon which the
Petitioner has placed reliance have not been framed in exercise of powers
under Section 24. Instead, the said Rules have been framed by Order and
under the authority of the Chief Justice of India. Further, Rule 3 of the
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said Rules provides that the Rules shall apply to a person who has held
oice either as a Chief Justice of India or as a Judge of the Supreme Court.
Rule 4, further, goes on to deine 'Former Judge' and 'Supreme Court'.
he said Rules are only applicable to the persons who held the posts
mentioned therein and cannot be extended to the petitioner.
13. Learned AGA submits that mere fact that in the past by way of
executive instructions the State of Goa has granted certain beneits which
are under the RTI Act, would not preclude the State of Goa from now
discontinuing the said beneits which are not contemplated in law as there
is no estoppel against law. Further, merely because some retired SCIC has
enjoyed the beneit under the instructions which are de hors the RTI Act,
the same does not create any right in favour of the petitioner as there
cannot be equality in illegality.
14. he rival contentions now fall for our determination.
15. he question is whether the petitioner is entitled to pensionary
beneits upon completion of his tenure as SCIC. Let us irst examine the
provisions of the RTI Act, 2005. he RTI Act, 2005 was enacted to
provide for setting out practicable regime of right to information for
citizens to secure access to information under the control of public
authorities, in order to promote transparency and accountability in the
working of every public authority, the constitution of a Central
Information Commission and State Information Commissions and for
matters connected therewith or incidental thereto. Democracy requires an
informed citizenry and transparency of information which are vital to its
functioning and also to contain corruption and to hold Governments and
their instrumentalities accountable to the governed. he revelation of
information in actual practice is likely to conlict with other public
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interests including eicient operations of the Governments, optimum use
of limited iscal resources and the preservation of conidentiality of sensitive
information. As it is necessary to harmonise these conlicting interests
while preserving the paramountcy of the democratic ideal, it was felt
expedient to provide for furnishing certain information to citizens who
desire to have it. he RTI Act came to be enacted.
16. Chapter IV of the RTI Act deals with provisions regarding the State
Information Commission which shall consist of (a) the State Chief
Information Commissioner, and (b) such number of State Information
Commissioners, not exceeding ten, as may be deemed necessary. Section
15(5) provides that the SCIC and the SICs shall be persons of eminence in
public life with wide knowledge and experience in law, science and
technology, social service, management, journalism, mass media or
administration and governance.
17. Section 16 provides for the term of oice and conditions of service.
Section 16(1) postulates that the SCIC shall hold oice for a term of ive
years from the date on which he enters upon his oice and shall not be
eligible for reappointment, provided that no SCIC shall hold oice after
attaining age of sixty-ive years. Sub-section (5) of Section 16 which is
signiicant from the point of view of the present petition reads thus:-
"(5) of he salaries and allowances payable to and other terms and
conditions of service:
(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."
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he irst proviso to sub-section (5) is of some importance. If the
SCIC at the time of his appointment is in receipt of any pension in respect
of any previous service under the Government of a State, his salary in
respect of the service as the SCIC 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 beneits excluding pension
equivalent of retirement gratuity. It is also necessary to bear in mind the
third Proviso to sub-section (5) of Section 16 which provides that the
salaries, allowances and other conditions of service of the SCIC shall not be
varied to his disadvantage after the appointment.
18. It is important to bear in mind that sub-section (6) of Section 16
which stipulates that the State Government shall provide the SCICs with
such oicers and employees as may be necessary for the eicient
performance of their functions under this Act, and the salaries and
allowances payable to and the terms and conditions of service of the oicers
and other employees appointed under this Act shall be such as may be
prescribed. It is thus seen that when it comes to the SCIC, the salaries and
allowances payable to and other terms and conditions of service shall be the
same as that of an Election Commissioner; whereas, in respect of other
oicers and employees the salaries and allowances payable to and the other
terms and conditions of service shall be such as may be prescribed. he
intent of sub-section (5) of Section 16 is that in respect of salaries and
allowances payable to the SCIC and other terms and conditions of service
shall be the same as that of an Election Commissioner. he learned
Additional Government Advocate pointed out that the phrase ' other terms
and conditions of service' relates to the salaries and allowances payable
during the period of service and has nothing to do with entitling the
petitioner to post retiral beneits.
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19. In the context of sub-section (5) of Section 16, it will now be
important to examine the salaries and allowances payable to and other
terms and conditions of service in respect of Election Commissioner.
Salaries and other terms and conditions of service in respect of Election
Commissioner is provided under Chapter II of the Election Commission
Act, 1991. Section 3 therein provides that there shall be paid to the
Election Commissioner a salary which is equivalent to the salary of a Judge
of the Supreme Court. A brief mention to the proviso to Section 3 is
relevant as it contains a somewhat similar provision as that of an SCIC who
was in receipt of pension immediately before the date of assuming oice as
the Chief Election Commissioner. In Chapter II itself is a provision for
pension payable to Election Commissioners. Section 6(1) ordains that the
person who, immediately before the date of assuming oice as the Chief
Election Commissioner or an Election Commissioner was in service of
Government, shall be deemed to have retired from service on the date on
which he enters upon oice as the Chief Election Commissioner or an
Election Commissioner but his subsequent service as the Chief Election
Commissioner or an Election Commissioner shall be reckoned as
continuing approved service counting for pension in Service to which he
belonged. Sub-section (1) of Section 6 thus is a provision where the
Election Commissioner, immediately before the date of assuming oice as
the Chief Election Commissioner or an Election Commissioner was in
service of Government.
20. What is relevant from the point of view of the petitioner's case,
according to us, is sub-section (2) of Section 6 which reads thus:-
"(2) Where the Chief Election Commissioner or an Election
Commissioner demits oice whether in any manner speciied in sub-
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section (3) or by resignation, he shall, on such demission be entitled
to-
(a) a pension which is equal to the pension payable to a Judge
of the Supreme Court in accordance with the provisions of
Part III of the Schedule to the Supreme Court Judges
(Conditions of Service) Act, 1958 (41 of 1958), as amended,
from time to time; and
(b) such pension (including commutation of pension), family
pension and gratuity as are admissible to a Judge of the
Supreme Court under the said Act and the rules made
thereunder, as amended from time to time."
21. hus, sub-section (2) of Section 6 entitles an Election Commissioner
to pensionary beneits which is equal to the pension payable to the Judge of
Supreme Court in accordance with Part III of the Schedule to the Act of
1958 as amended from time to time, upon his demitting oice in any
manner speciied in sub-section (3). Sub-section (3) of Section 6 provides
that "except where the Election Commissioner demits oice by resignation,
he shall be deemed, for the purpose of this Act, to have demitted his oice
if, and only if, (a) he has completed the term of oice speciied in section 4,
or (b) he has attained the age of sixty-ive years; or ................".
22. It is also signiicant to note the provisions of Section 8 of the
Election Commission Act, 1991 which provide for other conditions of
service. Section 8 reads thus:-
" 8. Other conditions of service.- Save as otherwise provided in this
Act, the conditions of service relating to travelling allowance,
provision of rent-free residence and exemption from payment of
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income-tax on the value of such rent-free residence, conveyance
facilities, sumptuary allowance, medical facilities and such other
conditions of service as are, [for the time being, applicable to a Judge
of the Supreme Court under Chapter IV of the Supreme Court
Judges (Conditions of Service) Act, 1958 (41 of 1958) and the rules
made thereunder, shall, so far as may be, apply to the Chief Election
Commissioner and other Election Commissioners]."
23. We may now examine the provisions of the Supreme Court Judges
(Conditions of Service) Act, 1958. Chapter III of the Act of 1958 deals
with salaries and pension. Section 12(a) is a provision for payment of
salaries to the Judges. Section 13 provides for the pension payable to the
Judges. Section 13 ordains that "subject to the provisions of this Act, a
pension shall be payable in accordance with the provisions of Part I of the
Schedule to a Judge of the Supreme Court on his retirement if, but only
if,- (b) he has attained the age of sixty-ive years; or (c) ........". Section 13A
provides for beneit of added years of service viz. a period of ten years shall
be added to the service of a Judge for the purposes of his pension, who
qualiied for appointment as such Judge under sub-clause (b) of clause (3)
of Article 124 of the Constitution.
24. It is material to note that sub-section (1) of Section 14 provides that
every Judge who has held any other pensionable post under the Union or a
State shall, on his retirement, be paid pension as per the provisions of Part
III of the Schedule. he Proviso to Section 14 stipulates that every such
Judge shall elect to receive the pension payable to him either under Part I
of the Schedule, or as the case may be, Part II or Part III of the Schedule,
and the pension payable to him shall be calculated accordingly.
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25. Section 16A are provisions relating to family pension and gratuity
payable to the Supreme Court judges. Sub-section (2)(i) of Section 16A
provides - (i) the minimum qualifying service for the purpose of
entitlement to the gratuity shall be two years and six months; and (ii) the
amount of gratuity shall be calculated on the basis of ten days salary for
each completed six months period of service as a Judge. Section 17
provides that if, at the time of his appointment to the Supreme Court, a
Judge is in receipt of a pension in respect of any previous service either as a
Judge of a High Court or in any other pensionable civil post under the
Union or a State, the pension payable to him under this Act shall be an
additional pension for service in the Supreme Court equal to the diference
between his original pension and the pension to which he would have been
entitled under this Act, if his service in the Supreme Court had been
rendered in continuation of the previous service for which his original
pension was granted. It is now material to look at the Schedule speciied in
terms of Section 13 and Section 14 of the Act. What is relevant to the
present petition is Part III of the Schedule which deals with pensions of
Judges. Part III reads thus:-
" PART III
1. he provisions of this Part apply to a Judge who has held any
[pensionable post] under the Union or a State (but is not a member
of the Indian Civil Service) and who has not elected to receive the
pension payable under Part 1.
2. he pension payable to such a Judge shall be-
(a) the pension to which he is entitled under the ordinary rules
of his service if he had not been appointed a Judge, his service
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as a Judge in India being treated as service therein for the
purpose of calculating that pension; and
(b) a special additional pension of [Rs. 45,016] per annum in
respect of each completed year of service for pension as a Judge
in India.
[Provided that the pension under clause (a) and the additional
pension under clause (b) together shall in no case exceed
[Rs.16,80,000] per annum in the case of a Chief Justice and
[Rs.15,00,000] per annum in the case of any other Judge.]"
26. According to us, on a reading of the aforesaid provisions, the term
'other terms and conditions of service' in Section 16(5) of the RTI Act
would include pension. It is not possible for us to accept the arguments of
the learned Additional Government Advocate that the phrase ' other terms
and conditions of service' should receive a restricted meaning and that it
applies only to salaries and allowances during the terms of oice as SCIC.
Section 16(5) clearly provides that the salaries and allowances payable to
and other terms and conditions of service of the SCIC shall be the same as
that of an Election Commissioner. he salaries and allowances payable to
the SCIC is obviously during the service tenure as SCIC.
27. he phrase 'other terms and conditions of service' cannot be
curtailed to mean that it is only restricted to ' salaries and allowances
payable to' during the subsistence of employment. he usage of the words
'other terms and conditions of service' in the absence of anything to
indicate that pensionary beneits are excluded, has to be given a proper
meaning and it has to be so understood to cover post retiral beneits if
otherwise admissible. We are not in agreement with the learned Additional
Government Advocate that as the phrase ' other terms and conditions of
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service' are qualiied by the words 'salaries and allowances' and hence
cannot be construed to include retiral beneits and/or post retiral beneits.
In he U.P. State Electricity Board And Another v/s. Hari Shankar Jain
And Others - (1978) 4 SCC 16, heir Lordships held that the true scope
of the rule of "ejusdem generis" is that words of a general nature following
speciic and particular words should be so construed as limited to things
which are of the same nature as those speciied. But the rule is one which
has to be applied with caution and not pushed too far. It is a rule which
must be conined to narrow bounds so as not to unduly or necessarily limit
general and comprehensive words. If a broad-based genus could
consistently be discovered there is no warrant to cut down general words to
dwarf size. If giant it cannot be, dwarf it need not be.
28. In our opinion, the phrase 'other terms and conditions of service' in
the context of Section 16(5) cannot be given a restricted meaning to
exclude pension and post retiral beneits. he provisions clearly ordain that
'other terms and conditions of service' apart from salaries and allowances
payable to SCIC shall be the same as that of an Election Commissioner. In
such view of the matter, if the Election Commissioners are entitled to
receipt of pension under Section 6 of the Election Commission Act, 1991,
which provision is found under Chapter II relating to salaries and other
conditions of service of the Election Commissioners, there is no warrant
then to restrict the scope of the words 'other terms and conditions of
service' under Section 16(5) of the RTI Act to exclude post retiral beneits
though an Election Commissioner is entitled to such post retiral beneits
including pension.
29. he Hon'ble Supreme Court in State of Madhya Pradesh And
Others v/s. Shardul Singh - 1970 (1) SCC 108 had an occasion to
consider the expression 'conditions of service'. Article 309 of the
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Constitution of India provides that subject to the provisions of the
Constitution, acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of the persons appointed, to public
services and posts in connection with the afairs of the Union or of any
State. Proviso to that Article says:-
"Provided that it shall be competent for the President or such person
as he may direct in the case of services and posts in connection with
the afairs of the Union, and for the Governor of a State or such
person as he may direct in the case of services and posts in
connection with the afairs of the State to make rules regulating the
recruitment, and the conditions of services of persons appointed, to
such services and posts until provision in that behalf is made by or
under an Act of the appropriate Legislature under this article, and
any rules so made shall have efect subject to the provisions of any
such Act."
30. In paragraph 8 it is observed that one of the powers conferred under
this proviso is to make rules regulating the conditions of service of persons
appointed to civil services of the Union or the State as the case may be. It
was noted that the expression "conditions of service" is an expression of
wide import. In paragraph 9 heir Lordships observed that the expression
"conditions of service" means all those conditions which regulate the
holding of a post by a person right from the time of his appointment till
his retirement and even beyond it in matters like pension, etc. We
therefore see no reason to give the phrase 'other terms and conditions of
service' a restricted meaning as the learned Additional Government
Advocate wants us to.
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31. he view taken by the Division Bench of this Court in Alagharu
Venkataratnam v/s. he Union of India And Others - Writ Petition
No.653 of 2010 supports the petitioner's cause. We may also draw
support from the decision of the High Court of Karnataka in Wing
Commander G. B. Athri v/s. Union of India And Others - Writ Petition
No.52207 of 2017. he Karnataka High Court held that as per the terms
and conditions of service of the Chief Secretary of State, the State
Information Commissioners will be entitled to pension payable to the
Chief Secretary, subject to deduction of pension already received for their
past service. It was held that in view of sub-section 5 of Section 16, the
SICs are entitled to the same pension, which is payable to the Chief
Secretary.
32. According to us, the decision relied upon by the learned Additional
Government Advocate in Shristidhar Mahato v/s State of Jharkhand and
Others (supra), is distinguishable on facts. he petitioner before the
Jharkhand High Court was not working in any pensionable service the day
he was appointed as SIC and in that context it was held that the petitioner
therein was not entitled to pensionary beneit. he petitioner in the
present case was receiving pension at the time of his appointment as SCIC.
33. he reliance by the learned Additional Government Advocate on he
Right to Information (Term of Oice, Salaries, Allowances and Other
Terms and Conditions of Service of Chief Information Commissioner,
Information Commissioners in the Central Information Commission,
State Chief Information Commissioner and State Information
Commissioners in the State Information Commission) Rules, 2019 to
contend that as there is no provision made for pension in the said Rules,
the intention of the Legislature was obviously to exclude post retiral
beneits is completely misconceived. he Rules of 2019, if at all, will
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WP-433-2021.DOC
operate prospectively. In any case, the third Proviso to Section 16(5)
clearly stipulates that the salaries, allowances and other conditions of
service of the SCIC and SICs shall not be varied to their disadvantage after
their appointment. he petitioner was appointed prior to the coming into
force of the Rules of 2019. he beneit accrued in favour of the petitioner
prior to the coming into force of the Rules of 2019 cannot be taken away.
34. We therefore have no hesitation in holding that the petitioner is
entitled to pension in terms of Part III of the Supreme Court Judges
(Conditions of Service) Act, 1958. It is a common ground that the
petitioner was discharging duties as Additional President of Goa State
Administrative Tribunal, South District and was in receipt of pension
when he was appointed as SCIC. he petitioner would thus be entitled to
receive additional pensionary beneit in terms of the Supreme Court Judges
(Conditions of Service) Act, 1958. he petitioner will also be entitled to
gratuity in terms of Clause (b) of sub-section 2 of Section 6 of the Election
Commissioner Act, 1991. Insofar as prayer clause (d) is concerned, it is
brought to our notice that the petitioner has already been provided with
some assistance. It was the contention of the learned Additional
Government Advocate that the Central Government has been given the
power to frame rules under Section 24 of the Supreme Court Judges
(Conditions of Service) Act, 1958. he rules providing domestic help to
former Chief Justices of India and former judges of the Supreme Court
upon which the petitioner had placed reliance has not been framed in
exercise of powers under Section 24, instead, the said rules have been
framed by the Order and under the authority of the Chief Justice of India.
In such view of the matter, we ind it appropriate that the petitioner makes
a comprehensive representation to the State Government for seeking
redress which he has sought in prayer clause (d) of this petition. he
representation may be decided on its own merits and in accordance with
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WP-433-2021.DOC
law. We are not expressing any opinion so far as prayer clause (d) is
concerned.
35. Learned Senior Advocate for the petitioner on instructions from the
petitioner who was present in the Court graciously agreed not to press for
interest on the delayed payment now that this Court has held him entitled
to retiral beneits afore-stated.
36. In this view of the matter, the pensionary beneits be calculated and
the arrears paid to the petitioner within a period of three months from
today. he gratuity amount be paid in accordance with the provisions of
law expeditiously.
37. he petition is allowed. here shall be no order as to costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
1st August, 2024
