Jharkhand High Court
Shristidhar Mahato vs The State Of Jharkhand on 1 December, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
L.P.A. No. 407 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 407 of 2023
Shristidhar Mahato, aged about 70 years, son of Late
Baidyanath Mahato, resident of Patel Nagar, Road no.
15, near Laxmi Apartment, P.O. & P.S-Hatia, Town
and District-Ranchi.
... Writ Petitioner/Appellant
Versus
1.The State of Jharkhand
2.The Principal Secretary, Department of Personnel,
Administrative Reforms and Rajbhasha, Government
of Jharkhand, having office at Project Bhawan,
Dhurwa, P.O. & P.S. - Dhurwa, District-Ranchi.
3.The Principal Secretary, Finance Department,
Government of Jharkhand, having office at Project
Bhawan, Dhurwa, P.O. & P.S. - Dhurwa, District-
Ranchi.
... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Appellant : Mr. Manoj Tandon, Advocate.
For the Respondents : Mr. Jai Prakash, AAG-IA.
.....
C.A.V. on 07/11/2023 Pronounced on 01/12/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, under clause 10 of the
Letters Patent, is directed against judgment/order
dated 15.06.2023 passed by learned Single Judge in
W.P. (S) No. 7335 of 2016, whereby and whereunder
the writ petition has been dismissed declining to
interfere with impugned order dated 24.08.2016 by
which the representation submitted by the petitioner,
in pursuance to order passed in W.P. (S) No. 5307 of
2014, has been rejected.
2. Brief facts of the case, as per the pleading made
in the writ petition, read as under:
3. The petitioner was appointed as State
Information Commissioner vide letter no. 3899 dated
26.07.2006 along with five others. Accordingly, the
petitioner joined as State Information Commissioner
on 30.07.2006 and started to discharge his duties
and after expiry of tenure of five years demitted his
office on 31.07.2011.
4. After demitting the office on 31.07.2011, the
petitioner submitted representation before the
concerned respondent for the retiral benefits but it
did not evoke any response as such he moved before
this Court by filing writ petition being W.P. (S) No.
5307 of 2014, which was disposed of vide order dated
16.03.2016 directing the concerned respondent to
take an informed decision in the matter of claim of
post retiral and other terminal benefits of the
petitioner in accordance with law within a period of
twelve weeks.
5. In terms of direction passed by this Court in
W.P. (S) No. 5307 of 2014, the petitioner approached
the respondents-authorities and submitted a detailed
representation but the respondents-authorities did
not dispose of the representation of the petitioner and
sat over the matter, as such the petitioner filed
contempt case being Contempt Case (Civil) No. 476 of
2016. However, during pendency of the contempt
petition the representation of the petitioner was
decided vide order dated 24.08.2016 whereby the
claim of the petitioner was rejected stating that since
the service condition of the State Information
Commissioner is equivalent to that of Chief Secretary
of the State and after introduction of new Pension
Scheme w.e.f. 01.01.2004 there is no provision for
pension to the said post.
6. Aggrieved thereof, the petitioner again
approached this Court by filing W.P. (S) No.7335 of
2016 which was dismissed vide order dated
15.06.2023, against which, the instant intra-court
appeal has been filed by the appellant-writ petitioner.
7. Learned counsel for the writ petitioner-appellant
has assailed the impugned order passed by learned
Single Judge on the following grounds:
I. That the statute requires for framing out a rule
in view of provision of Section 16(5) of the Right
to Information Act, 2005 (in short 'Act, 2005')
but still the State Government has not
formulated the rule by making provision for
pensionary benefit to be given to the holder of
the post of State Information Commissioner.
II. That the writ petitioner was appointed and
completed his tenure as per the condition of
appointment but the pensionary benefit has not
been given which is absolutely illegal and
arbitrary.
III. That the writ petitioner although has filed a writ
petition being W.P.(S) No. 5307 of 2014 on
earlier occasion which was disposed vide order
dated 16.03.2016 giving liberty to the writ
petitioner to file representation for consideration
of his claim but the respondent-authority while
considering the claim has rejected the
representation of the petitioner vide order dated
24.08.2016 on the ground that the writ
petitioner was never in service which is said to
be pensionable service hence the condition as
stipulated under Section 16(5) of the Act, 2005
prior to its amendment will be applicable
wherein specific provision has been made that
the pensionary benefit is to be given to Chief
Information Commissioner or State Information
Commissioner who if at the time of appointment
to the said post was in the pensionable service
but herein the writ petitioner was never in the
pensionable service rather he was appointed
directly as State Information Commissioner
hence in view of un-amended provision of
Section 16(5) of the Act, 2005 which has been
amended by virtue of Act, 2019 w.e.f.
24.10.2019 the claim of the writ petitioner has
been rejected but while taking such decision the
authority concerned has not appreciated this
fact that identically placed Chief Information
Commissioner namely Hon'ble Mr. Justice Hari
Shankar Prasad, former Judge of this Court has
been extended with the benefit of pension after
completion of tenure of State Chief Information
Commissioner, hence the authority while
rejecting the claim of the writ petitioner has
discriminated the writ petitioner but the
aforesaid fact has not been appreciated by the
learned Single Judge. Hence, the order passed
by learned Single Judge suffers from error.
IV. That when the mandate requires for framing out
a rule as per Section 16(5) of the Act, 2005 it is
incumbent upon the State Government to frame
out a rule governing the issue of pension of
State Information Commissioner but still the
rule has not been framed which fact has not
been appreciated by learned Single Judge in
right prospective by negating the said claim and
refusing to direct the State Government on the
ground that since the same pertains to policy
decision hence the High Court in exercise of
power conferred under Article 226 of the
Constitution of India is not required to pass any
mandamus directing the State to frame out a
rule rather it is the prerogative of the State to
frame out a rule. The aforesaid finding of the
learned Single Judge is not justified since the
Statute mandates for framing out of rule hence
the rule is required to be framed by the State
Government.
8. Learned counsel for the appellant based upon
the aforesaid ground has submitted that since the
learned Single Judge has not appreciated these
aspects of the matter hence the order passed by
learned Single Judge suffers from an error and as
such is not sustainable in the eyes of law.
9. Per contra, Mr. Jai Prakash, learned A.A.G-IA,
appearing for the respondents-State has defended the
order passed by learned Single Judge by taking the
following grounds:
I. That the learned Single Judge has well
appreciated the factual aspect more particularly
based upon the un-amended provision which
was prior to 24.10.2019 wherein provision has
been made that the benefit of pension is to be
given to incumbent of the post of either the
State Chief Information Commissioner or the
State Information Commissioner who prior to
the date of appointment if in the pensionable
service. As per the aforesaid provision the
incumbent of the holder of the post of pension
has been made entitled for pensionary benefit
but herein in the instant case the writ petitioner
has never served prior to appointment as State
Information Commissioner in pensionable
service hence in view of provision of Act, 2005
[Un-amended] the writ petitioner is not entitled
for the pensionary benefit reason being that he
was appointed as State Information
Commissioner the day when the provision of
Act, 2005 was applicable and subsequently
amended provision has come w.e.f. 24.10.2019
i.e., on repealment of aforesaid provision.
II. Learned AAG -IA by responding to the claim of
the writ petitioner that the rule is required to be
formulated in view of provision of Section 16(5)
has submitted that it has not been disputed, as
per the statutory command, that the rule is to
be formulated but the question herein is that
the writ petitioner is relying upon the provision
of Section 16(5) of the Act, 2019 i.e., amended
rule which has come into being w.e.f.
24.10.2019 by virtue of Act 24 of 2019 and by
that the petitioner was retired from service.
III. Further, the question herein will be that even if
the rule will be framed the writ petitioner will
not be in a position to get the pensionary benefit
in the light of applicable rule which was
applicable prior to 24.10.2019 since the writ
petitioner was appointed on 30.07.2006 and
completed his tenure on 31.07.2011 which was
during the subsistence period of un-amended
rule. As such even if the rule had been framed
the writ petitioner would not have got any
benefit for entitlement of pension.
IV. So far as argument advanced on behalf of the
appellant that the learned Single Judge has
erred in not issuing order/command for making
out the rule is concerned, it is a policy decision
which is under the exclusive domain of the State
which according to learned State counsel cannot
be said to be unjustified reason being that since
it is the policy decision which is exclusive
domain of the State and even if it will be framed
the petitioner in no way is going to be benefited
due to the fact that any rule if formulated will
have prospective application and not
retrospective application.
V. Further on the day when the writ petitioner was
appointed and completed his tenure rule was
already there.
10. The learned AAG-IA based upon the said ground
has submitted that the order passed by learned
Single Judge suffers from no error hence the
impugned order requires no interference by this
Court.
11. We have heard learned counsel for the parties,
perused the documents available on record as also
finding recorded by learned Single Judge.
12. The undisputed facts in this case is that the
petitioner was appointed as State Information
Commissioner on 26.07.2006 where he gave his
joining on 30.07.2006 and after completion of five
years tenure demitted his office on 31.07.2011. After
demitting the office, the petitioner submitted
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representation before the concerned respondent for
grant of retiral benefits but it did not evoke any
response as such he moved before this Court by filing
writ petition being W.P. (S) No. 5307 of 2014, which
was disposed of vide order dated 16.03.2016 directing
the concerned respondent to take an informed
decision in the matter of claim of post retiral and
other terminal benefits of the petitioner in accordance
with law within a period of twelve weeks. In terms
thereof, the petitioner submitted a detailed
representation before the respondents-authorities
which was decided vide order dated 24.08.2016
whereby the claim of the petitioner was rejected
stating inter alia that since the service condition of
the State Information Commissioner is equivalent to
that of Chief Secretary of the State and w.e.f.
01.01.2004 new Pension Scheme has been
introduced where there is no provision of pension and
General Provident Fund.
13. Being aggrieved with order dated 24.08.2016
passed by the respondents-authorities, the petitioner
again approached this Court by filing writ petition
being W.P. (S) No.7335 of 2016 which was dismissed
vide order dated 15.06.2023, against which, the
instant intra-court appeal has been filed.
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14. This Court on consideration of the argument
advanced by learned counsel for the parties, framed
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?
15. Since all the issues are inter-linked therefore the
same are being taken up together to be answered.
16. But before discussing the aforesaid issues the
relevant provision of the Act, 2005 needs to be
referred herein i.e., Section 16(5) of the Act, 2005
(amended), which reads as under:
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Term of office and conditions of service.
(1) The State Chief Information Commissioner shall hold
office [for such term as may be prescribed by the Central
Government] 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 such term as may be prescribed by the Central
Government] 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 subsection, 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 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.
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[(5) 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:
Provided 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:
Provided further that the State Chief Information
Commissioner and the State Information Commissioners
appointed before the commencement of the Right to
Information (Amendment) Act, 2019 shall continue to be
governed by the provisions of this Act and the rules made
there under as if the Right to Information (Amendment)
Act, 2019 had not come into force.]
(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.
17. It is evident from the aforesaid provision that the
substituted provision as under Section 16(5) of the
Act, 2005 has been brought to the statutory provision
w.e.f. 24.10.2019 substituted by Act, 2019 and prior
to its substitution as under sub-section (5) following
provisions was there:
"The salaries and allowances payable to and other terms
and conditions of service of--
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(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 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."
18. It has further been referred therein that provided
that if the State Chief Information Commissioner or a
State Information Commissioner, at the time of his
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appointment is, in receipt of a pension, other than
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 to 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 to other forms of
retirement benefits excluding pension equivalent of
retirement gratuity.
19. It is thus evident that the two conditions
regarding the terms and conditions of service both of
State Chief Information Commissioner and State
Information Commissioner was subject to the
condition that the holder of the post of State Chief
Information Commissioner or the State Information
Commissioner must be in the appointment where he
was incumbent of the said post, as the case may be in
receipt of pension; meaning thereby the very
condition for entitlement of the pension is to depend
upon the appointment of the holder of the post of
State Chief Information Commissioner and State
Information Commissioner if they were in the
pensionable service so as to determine the benefit of
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pension as per the condition stipulated in the
aforesaid proviso as referred hereinabove.
20. The aforesaid provision was amended and
inserted in the statute book w.e.f. 24.10.2019
whereby and whereunder a new provision has been
made to the effect that the salary and allowances
payable to and other terms and conditions of service
of the State Chief Information Commissioner and the
State Information Commissioner shall be such as
may be provided by the Central Government provided
that salaries, allowances and other condition of
service of the State Chief Information Commissioner
and the State Information Commissioner shall not be
varied to their disadvantage after their appointment.
Provided further that State Chief Information
Commissioner and the State Information
Commissioner appointed before commencement of
the RTI (amendment) Act, 2019 shall continue to be
governed by the provision of this Act and rules made
thereunder as if the RTI Act, 2019 had not come into
force.
21. Therefore, it is evident by virtue of the amended
provision that prior to coming into effect of amended
Act and now is existing in the statute book all the
service condition will be said to be governed by the
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provision of this Act and the rules made thereunder
as if RTI Act had not come into force meaning thereby
on or after 24.10.2019 the provision as was there in
sub-section (5) will be said to be superseded and the
service condition will be governed by substituting
amended provision as available now under sub-
section (5) of Section 16 wherein there is no
stipulation regarding issue of pension so far as the
incumbents who have been appointed directly to the
post of either State Chief Information Commissioner
or the State Information Commissioner is
concerned.
22. Learned counsel for the appellant has also taken
aid of Section 27 of the Act, 2005, which confers
power to make rule upon the appropriate government.
The argument has been advanced that when there is
specific provision under Section 27 then why the
State Government is not formulating the rules
governing the pension. Therefore, this Court deems it
fit and proper to refer Section 27 of the Act, which
reads as under:
27. Power to make rules by appropriate Government:- (1)
The appropriate Government may, by notification in the
Official Gazette, make rules to carry out the provisions of
this Act. (2) In particular, and without prejudice to the
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generality of the foregoing power, such rules may provide
for all or any of the following matters, namely:--
(a) the cost of the medium or print cost price of the
materials to be disseminated under sub-section (4) of
section 4;
(b) the fee payable under sub-section (1) of section 6;
(c) the fee payable under sub-sections (1) and (5) of section
7;
(d) the salaries and allowances payable to and the terms
and conditions of service of the officers and other
employees under sub-section (6) of section 13 and Power
to make rules by appropriate Government SEC.1 THE 21
Repeal sub-section (6) of section 16;
(e) the procedure to be adopted by the Central Information
Commission or State Information Commission, as the case
may be, in deciding the appeals under sub-section (10) of
section 19; and
(f) any other matter which is required to be, or may be,
prescribed
23. It is evident from the aforesaid provision more
particularly from the provision as contained under
Section 27 (2) (d) wherein the stipulation has been
made that the salaries and allowances payable to and
the terms and conditions of service of the officers and
other employees under sub-section (6) of section 13
and power to make rules by appropriate Government
sub-section (6) of section 16.
24. Therefore, so far as the argument advanced on
behalf of writ petitioner-appellant regarding the
implication of Section 27 of the Act, 2005 is
concerned, we are of the considered view based upon
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the principle of 'occupied field‟ that since the relevant
provision was already there hence Section 27 in
which there was no amendment is to be read together
with the un-amended provision of Section 16(5)
wherein specific condition is there for holding an
incumbent of the post of State Information
Commissioner for the benefit of pension, the
petitioner is not entitled for pension.
25. 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.
26. 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 it is for the reason
that the Chief Secretary the day when entered into
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service was in the pensionable service but the writ
petitioner when entered into service it was not
pensionable particularly since there was already a
rule under un-amended Section 16(5) governing the
issue of pension and as such it is not available for the
writ petitioner to claim parity with the Chief Secretary
so far as claim of pensionary benefit is concerned.
27. Further the issue has been raised that why the
State Government is not formulating the rule. There
is no dispute about the fact that when the statutory
requirement is to formulate the rule by the
appropriate government it is incumbent upon the
appropriate government to make out the rule but here
in the given facts of the case a question will be that
even if the rule will be framed whether the writ
petitioner will be benefitted by formulating such rule.
28. 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
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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.
29. Therefore, this Court is of the view that if there
was already existence of the rule for fixing the
pension of the post of the State Information
Commissioner prior to 24.10.2019 when the writ
petitioner was appointed and demitted his office then
there is no question of seeking a direction for
formulating a new rule on the principle of 'occupied
field‟.
30. Law is well settled that if the rule is already
available there cannot be any direction to frame a
rule on the principle of 'occupied field' as has been
held by Hon'ble Apex Court in the case of Chandra
Prakash Tiwari & Ors v. Shakuntala Shukla &
Ors [(2002) 6 SCC 127] wherein at paragraph 14 it
has been held as under:
"14. It is in this context as well the decision of this Court
in A.B. Krishna v. State of Karnataka [(1998) 3 SCC 495 :
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1998 SCC (L&S) 906] wherein this Court upon reference
to Maxwell's Interpretation of Statutes (11th Edn., p. 168)
as also oft-cited decision pertaining to the maxim
in Seward v. Vera Cruz [(1884) 10 AC 59 : (1881-85) All
ER Rep 216 : 52 LT 474 (HL)] stated as below : (SCC pp.
499-500, paras 9-13)
"9. It is no doubt true that the rule-making authority under
Article 309 of the Constitution and Section 39 of the Act is
the same, namely, the Government (to be precise, the
Governor, under Article 309 and the Government under
Section 39), but the two jurisdictions are different. As has
been seen above, power under Article 309 cannot be
exercised by the Governor, if the legislature has
already made a law and the field is occupied. In
that situation, rules can be made under the law so
made by the legislature and not under Article 309. It
has also to be noticed that rules made in exercise of
the rule-making power given under an Act constitute
delegated or subordinate legislation, but the rules
under Article 309 cannot be treated to fall in that
category and, therefore, on the principle of
'occupied field', the rules under Article 309 cannot
supersede the rules made by the legislature.
10. So far as the question of implied supersession of the
rules made under Section 39 of the Act by the General
Recruitment Rules, as amended in 1977, is concerned, it
may be pointed out that the basic principle, as set out
in Maxwell's Interpretation of Statutes (11th Edn., p. 168)
is that:
„A general later law does not abrogate an earlier special
one by mere implication. Generalia specialibus non
derogant, or, in other words, "where there are general
words in a later Act capable of reasonable and sensible
application without extending them to subjects specially
dealt with by earlier legislation, you are not to hold that
earlier and special legislation indirectly repealed, altered,
or derogated from merely by force of such general words,
without any indication of a particular intention to do so".
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In such cases it is presumed to have only general cases in
view, and not particular cases which have been already
otherwise provided by the special Act.‟
11. This principle was reiterated in Vera Cruz
case (Seward v. Vera Cruz [(1884) 10 AC 59 : (1881-85) All
ER Rep 216 : 52 LT 474 (HL)] as under:
„[W]here there are general words in a later Act capable of
reasonable and sensible application without extending
them to subjects specially dealt with by earlier legislation
... that earlier and special legislation is not to be held
indirectly repealed, altered or derogated from merely by
force of such general words, without any indication of a
particular intention to do so.‟
12. Vera Cruz case [(1884) 10 AC 59 : (1881-85) All ER
Rep 216 : 52 LT 474 (HL)] was followed in Eileen Louise
Nicolle v. John Winter Nicolle [(1922) 1 AC 284] as under:
„It is no doubt a sound principle of all jurisprudence that a
prior particular law is not easily to be held to be abrogated
by a posterior law, expressed in general terms and by the
apparent generality of its language applicable to and
covering a number of cases of which the particular law is
but one.‟
13. To the above effect, is also the decision of this Court
in Maharaja Pratap Singh Bahadur v. Thakur Manmohan
Dey [AIR 1966 SC 1931 : 1966 BLJR 997] in which it was
indicated that an earlier special law cannot be held to
have been abrogated by mere implication. That being so,
the argument regarding implied supersession has to be
rejected for both the reasons set out above."
31. Herein it is admitted fact that the field was
already occupied prior to 24.10.2019 and it is only
after 24.10.2019 a new rule has been inserted in
statute book for governing the salary and other terms
and conditions of service of State Chief Information
Commissioner or the State Information
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Commissioner. As such when the rule was already
available governing the field to decide the claim of
pension there is no question to issue command upon
the State to formulate new rule in supersession to the
rule already existing at that time and if such direction
will be issued by the High Court in exercise of power
conferred under Article 226 of the Constitution of
India, the same will be nothing but exceeding its
jurisdiction on the principle of „occupied field‟.
32. Further question will be that the writ petitioner
at the time when appointed was well knowing about
the fact that he is not in the service said to be
pensionable so as to govern the pensionary benefit
rather he, after demitting the office after completing
tenure of five years for the first time, has made such
claim, which 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
- 25 -
even the day when the concerned incumbent had
demitted the office.
33. So far as the argument advanced on behalf of
writ petitioner that the finding recorded by learned
Single Judge that there cannot be any direction for
formulating rule since it is very restricted power
conferred under Article 226 of the constitution of
India, we find no error in the said finding reason
being that rule was already there when petitioner was
demitting the office and as such on the principle of
'occupied filed‟ there was no need to pass any
direction from the High Court in exercise of power
conferred under Article 226 of the Constitution of
India to have a substituted rule for the purpose of
giving benefit to the writ petitioner so far as claim of
pension is concerned.
34. The argument has also been advanced that other
States have also formulated the rule and as such here
also i.e., in the State of Jharkhand the rule ought to
have been framed.
35. The law is well settled that if a State has
formulated a rule there cannot be a command by the
High Court based upon the said action of the another
State to come out with the same rule since it is the
absolute prerogative of the State Government to come
- 26 -
out with particular rule and if the State is not coming
forward then it is upon the State to take such
decision and there cannot be a direction upon the
State under Article 226 of the Constitution since
making rule/framing police is absolute domain of the
State Government, as has been held by Hon'ble Apex
Court in the case of Asok Pande v. Supreme Court
of India through its Registrar & Ors [(2018) 5
SCC 341], wherein at paragraph 11 it has been held
as under:
"11. In view of this binding elucidation of the authority of
the Chief Justice of India, the relief which the petitioner
seeks is manifestly misconceived. For one thing, it is a
well-settled principle that no mandamus can issue
to direct a body or authority which is vested with a
rule-making power to make rules or to make them in
a particular manner. The Supreme Court has been
authorised under Article 145 to frame rules of procedure.
A mandamus of the nature sought cannot be issued.
Similarly, the petitioner is not entitled to seek a direction
that Benches of this Court should be constituted in a
particular manner or, as he seeks, that there should be
separate divisions of this Court. The former lies exclusively
in the domain of the prerogative powers of the Chief
Justice."
36. The law is well settled so far as interference by
the Court sitting under Article 226 of the Constitution
of India in the affairs of the State in the policy
decision is concerned.
- 27 -
37. It is settled position of law that the policy
decision of the State Government is least to be
interfered by the High Court in exercise of its power
under Article 226 of the Constitution of India unless
it is arbitrary and suffers from malice or any other
vice.
38. In the judgment rendered by Hon'ble Apex Court
in K.Nagaraj and Others v. State of Andhra
Pradesh and Another [(1985) 1 SCC 523] wherein
the issue was regarding reduction of the age of
retirement from 58 to 55 years, the Hon'ble Apex
Court has been pleased to hold that the same was
taken by virtue of policy decision in order to provide
employment opportunity to the younger sections of
the society and the need to open up promotional
opportunities to employees at the lower levels early in
their career and since it is based upon reasonable
consideration, it was declined to be interfered with.
39. In the case of State of Jharkhand and Others
v. Ashok Kumar Dangi and Others [(2011) 13 SCC
383], the Hon'ble Apex Court has been pleased to
hold at paragraph 17 which reads as under:-
"17.The High Court has found that the Government of
Jharkhand, till date, had not framed any policy regarding
the number of posts to be filled by physical trained
candidates. How many posts of primary school teachers
- 28 -
be filled up by physical trained candidates, in our
opinion, is essentially a question of policy for the State to
decide. In framing of the policy, various inputs are
required and it is neither desirable nor advisable for a
court of law to direct or summarise the Government to
adopt a particular policy which it deems fit or proper. It is
well settled that the State Government must have
liberty and freedom in framing policy. Further, it
also cannot be denied that the courts are ill-
equipped to deal with competing claims and
conflicting interests. Often, the courts do not have the
satisfactory and effective means to decide which
alternative, out of the many competing ones, is the best in
the circumstances of the case."
40. Thus, it has been laid down that the State
Government must have liberty and freedom in
framing policy.
41. Further the Hon'ble Apex in the case of
Census Commissioner and Others v. R.
Krishnamurthy [(2015) 2 SCC 796], has been
pleased to hold at paragraph 25 as under :-
"25.Interference with the policy decision and issue of a
mandamus to frame a policy in a particular manner are
absolutely different. The Act has conferred power on the
Central Government to issue notification regarding the
manner in which the census has to be carried out and the
Central Government has issued notifications, and the
competent authority has issued directions. It is not within
the domain of the court to legislate. The courts do interpret
the law and in such interpretation certain creative process
is involved. The courts have the jurisdiction to declare the
law as unconstitutional. That too, where it is called for.
The court may also fill up the gaps in certain spheres
- 29 -
applying the doctrine of constitutional silence or abeyance.
But, the courts are not to plunge into policy-making by
adding something to the policy by way of issuing a writ of
mandamus. There the judicial restraint is called for
remembering what we have stated in the beginning. The
courts are required to understand the policy decisions
framed by the executive. If a policy decision or a
notification is arbitrary, it may invite the frown of Article
14 of the Constitution. But when the notification was not
under assail and the same is in consonance with the Act,
it is really unfathomable how the High Court could issue
directions as to the manner in which a census would be
carried out by adding certain aspects. It is, in fact,
issuance of a direction for framing a policy in a specific
manner."
42. 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.
43. All the issues are answered accordingly.
44. 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,
- 30 -
which according to our considered view cannot be
said to suffer from any error.
45. Accordingly, the instant appeal fails and is
dismissed.
46. Pending Interlocutory Application, if any, stands
dismissed.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Jharkhand High Court, Ranchi
Alankar/ A.F.R.
