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2023 DIGILAW 354 (KER)

S. Somanathan Pillai v. State of Kerala

2023-04-11

N.NAGARESH

body2023
JUDGMENT : N. NAGARESH, J. 1. The petitioners, who were appointed as State Information Commissioners of the Kerala State Information Commission, are aggrieved by the denial of the medical reimbursement benefits on par with such benefits as available to the Chief Secretary of the State. 2. The grievance of the petitioners is that while Section 16(5) of the Right to Information Act, 2005 (‘the RTI Act’ for short) provides that the salaries and allowances payable to and other terms and conditions of service of the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government, the petitioners have been denied the benefit of the All India Services (Medical Facilities) Scheme, 2020, applicable to the Chief Secretaries on the ground that a Chief Secretary becomes eligible for the All India Services (Medical Facilities) Scheme, 2020, only by reason of him being a member of the All India Service. The argument of the respondents is that since the Commissioners under the RTI Act are not members of the All India Services, the All India Services (Medical Facilities) Scheme, 2020 will not ipso facto apply to the petitioners. 3. Counsel for the petitioners pointed out that the statutory provisions are clear. Under Section 16(5) of the RTI Act, it is mandated 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 appointments. Section 16 also mandates 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 thereunder as if the Right to Information (Amendment) Act, 2019, had not come into force. 4. Earlier, when the petitioners were denied the benefit of Ext.P5 Scheme, the petitioners approached this Court filing W.P. (C) No. 25550/2021. This Court considered the issue and disposed of the writ petition setting aside the impugned Ext.P8 order therein and directing the respondents to take a fresh decision in accordance with law. The respondents, purportedly in implementation of Ext.P11 judgment, has passed Ext.P12 order. This Court considered the issue and disposed of the writ petition setting aside the impugned Ext.P8 order therein and directing the respondents to take a fresh decision in accordance with law. The respondents, purportedly in implementation of Ext.P11 judgment, has passed Ext.P12 order. In Ext.P12 order, the Government has observed that it is clear that the Chief Secretary becomes eligible to avail the All India Services (Medical Facilities) Scheme, 2020, only by virtue of being a member of All India Services as defined under the relevant Rules and Scheme and not because of being the Chief Secretary, Government of Kerala. 5. If a non-All India Service Officer happens to be posted as a Chief Secretary, then such an officer will not be eligible to avail of the benefits of the All India Services (Medical Facilities) Scheme, 2020. On these premises, the request of the petitioners to extend them the benefit of the All India Services (Medical Facilities) Scheme, 2020 stands rejected. 6. The counsel for the petitioners argued that the rejection of the claim of the petitioners to be included in the All India Services (Medical Facilities) Scheme, 2020 is illegal and unconstitutional. While denying the petitioners equal treatment with that of the Chief Secretary of the State, the respondents have violated Section 16(5) of the Right to Information Act, 2005. They have also flouted the fundamental rights guaranteed to the petitioners under Articles 14, 21 and 300 A. 7. The counsel for the petitioners urged that Ext.P13 Note Files reveal that the benefit claimed by the petitioners have been denied on two grounds. Both the grounds are unsustainable, contended the counsel for the petitioners. The counsel for the petitioners relied on Ext.P14 Circular No. 20011/4/92-AIS-2 dated 28.03.2000 of the Ministry of Personnel, P.G and Pensions of the Government of India and argued that only a person who is a member of All India Service can be appointed as Chief Secretary in any State. Therefore, the respondents cannot be heard to contend that the Chief Secretary becomes eligible for the All India Services (Medical Facilities) Scheme, 2020 solely because he becomes a member of the All India Service. 8. The 1st respondent entered appearance and resisted the writ petition. Therefore, the respondents cannot be heard to contend that the Chief Secretary becomes eligible for the All India Services (Medical Facilities) Scheme, 2020 solely because he becomes a member of the All India Service. 8. The 1st respondent entered appearance and resisted the writ petition. The 1st respondent stated that it is evident that a Chief Secretary becomes eligible to avail the benefits of the All India Services (Medical Facilities) Scheme, 2020 only by virtue of him being member of the All India Services. If a non-IAS officer is appointed as Chief Secretary, then such Chief Secretary will not be entitled to the benefit of All India Services (Medical Facilities) Scheme, 2020. The All India Services (Medical Facilities) Scheme, 2020 is meant only for the members of the All India Services. The petitioners, who are Information Commissioners, do not belong to All India Services cadre. Therefore, the petitioners cannot aspire to get the benefit of a medical scheme applicable only to the members of All India Services. 9. Respondents further argued that none of the writ petitioners satisfied the requirement of Rule 2(e) of the Scheme, 2020 and the Scheme is extended only to the members of the All India Services. The service conditions of the All India Service officers are different from that of the State Information Commissioners. The State Information Commissioners do not satisfy the requirement of Rule 2(e) of the All India Services (Medical Facilities) Scheme, 2020. It is also urged on behalf of the respondents that the medical benefits would fall within the definition of “the salaries, allowances and other conditions of service” as described in Proviso 2 to Rule 16 (5) of the RTI Act. 10. It is also argued that this Court has left the matter to be decided by the Government as per Ext.P11 judgment. As long as a decision taken pursuant to Ext.P11 judgment is not contrary to any statutory rules, this Court should desist from interfering with Ext.P12. 11. I have heard the learned counsel for the petitioners and the learned Government Pleader appearing on behalf of the respondents. 12. The question arising is whether the petitioners, being State Information Commissioners, are entitled to the benefit of the All India Services (Medical Facilities) Scheme, 2020, which is available to the Chief Secretary of the Kerala Government. 11. I have heard the learned counsel for the petitioners and the learned Government Pleader appearing on behalf of the respondents. 12. The question arising is whether the petitioners, being State Information Commissioners, are entitled to the benefit of the All India Services (Medical Facilities) Scheme, 2020, which is available to the Chief Secretary of the Kerala Government. Section 16(5) of the RTI Act, 2005 reads as follows: “(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 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.” 13. On 01.08.2019, the RTI Act was amended by the Right to Information (Amendment) Act, 2019. Section 16(5) of the principal Act was amended by Section 3 of the Amendment Act as follows: “3. On 01.08.2019, the RTI Act was amended by the Right to Information (Amendment) Act, 2019. Section 16(5) of the principal Act was amended by Section 3 of the Amendment Act as follows: “3. In section 16 of the principal Act: (a) in sub-section (1), for the words “for a term of five years from the date on which he enters upon his office” the words “for such term as may be prescribed by the Central Government” shall be substituted. (b) in sub-section (2) for the words “for a term of five years from the date on which he enters upon his office” the words “for such term as may be prescribed by the Central Government shall be substituted; for sub-section (5), the following sub-section shall be substituted, namely: “(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 thereunder as if the Right to Information (Amendment) Act, 2019 had not come into force.” From Section 16(5), it is clear that the salaries and allowances payable to and other terms and conditions of service of the State Information Commissioners shall be the same as that of the Chief Secretary to the State Government. 14. It is therefore evident that the requirement that State Information Commissioners should be paid salaries and allowances applicable to the Chief Secretary to the State Government is a statutory mandate. In fact, the proviso under Section 16(5) also makes it clear 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. 15. In fact, the proviso under Section 16(5) also makes it clear 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. 15. Even though the provision was amended as per the Right to Information (Amendment) Act, 2019, the amendment specifically provided 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 the principal Act and the Rules made thereunder as if Right to Information (Amendment) Act, 2019 had not come into force. Going by Section 16(5) and the proviso thereunder, it is amply clear that a State Information Commissioner is entitled to draw salaries and allowances payable to and the terms and conditions of service of the Chief Secretary to the State Government. 16. The defence of the respondents is that a Chief Secretary to the State Government becomes entitled to the benefit under the All India Services (Medical Facilities) Scheme, 2020 only if the Chief Secretary is a member of the All India Services. If the Chief Secretary appointed is not a member of All India Services, such Chief Secretary will be entitled to medical benefits which are available to ordinary Government servants who are not members of All India Services. 17. Government Pleader brought to the notice of this Court the definition of a member of All India Services as provided in Rule 2(e) of Ext.P5 of All India Services (Medical Facilities) Scheme, 2020. Rule 2(e) defines a member of the Scheme as a serving member of the All India Services, whether belonging to the Kerala cadre or otherwise, working in the Government of Kerala or in a public sector undertaking, autonomous body, statutory undertaking, etc. under the Government of Kerala or any kind of leave with salary being drawn from any of the institutions and retired members of the All India Services of the Kerala Cadre. As the petitioners did not fall within the definition of ‘member’ as provided in Rule 2(e), the petitioners cannot aspire to get the benefit of Ext.P5 Scheme, asserts the Government Pleader. 18. As the petitioners did not fall within the definition of ‘member’ as provided in Rule 2(e), the petitioners cannot aspire to get the benefit of Ext.P5 Scheme, asserts the Government Pleader. 18. It is abundantly clear that payment of salary and other allowances to the State Information Commissioners on par with that of the Chief Secretary to the State Government, is a statutory mandate under sub-section (5) of Section 16 of the RTI Act. Therefore, even if the petitioners, being Information Commissioners, would not fall within the ambit of Rule 2(e) of Ext.P5 All India Services (Medical Facilities) Scheme, 2020, the petitioners will still be entitled to the benefit on par with Ext.P5 Scheme, in view of the statutory mandate. 19. While considering the issue agitated by the petitioners, it is necessary to examine and understand the relevance and importance of Section 16 in the RTI Act. The Minister for State in the Ministry of Personnel, Public Grievances and Pensions, and of Parliamentary affairs, while moving the motion for consideration of the RTI Bill said: “We wanted this to be known emphatically, that the citizen of India was not only free to ask for information from the Government, but also had a right to get it. The scope of this Bill extends to all authorities and bodies under the Constitution or any other law and inter-alia includes all authorities under the Central Government, State Governments and local bodies. The non- Governmental organizations substantially funded, directly or indirectly, by the public funds also fall within the ambit of this Bill. A duty has been cast, in C1.4 of the Bill, on every public authority to suo motu provide to the public with the information as prescribed therein, so that the public has to take minimum recourse to the use of this legislation for obtaining information. The procedure of securing information as provided in C1.6 of this Bill prescribes a procedure which intentionally has been kept very simple. A citizen has to merely make a request to the concerned Public Information Officer or Assistant Public Information Officer specifying the information sought by him. The fee payable shall be reasonable. We have provided that information shall be provided free of cost to citizens living below the poverty line.” 20. The Prime Minister intervened in the Lok Sabha debate on the Right to Information Bill and stated: “Mr. The fee payable shall be reasonable. We have provided that information shall be provided free of cost to citizens living below the poverty line.” 20. The Prime Minister intervened in the Lok Sabha debate on the Right to Information Bill and stated: “Mr. Speaker, Sir, efficient and effective institutions are the key to rapid economic and social development, institutions which can translate promises into policies and actionable programmes with the least possible cost and with the maximum possible efficiency; institutions which can deliver on the promises made and convert, as the honourable Finance Minister pointed out a few days ago while presenting the Budget “outlays into outcomes.” For institutions to be efficient and effective, they must function in a transparent, responsive and accountable manner. This is dependent not only on processes internal to the institutions but also on the ability of citizens and external agents to enforce their rights, vis-a-vis these very institutions. The Right to Information Bill, Sir, will bring into force another right which will empower the citizen in this regard and ensure that our institutions and their functionaries discharge their duties in the desired manner. It will bring into effect a critical right for enforcing other rights and fill a vital gap in a citizen's framework of rights.” 21. The law is applicable to all authorities and bodies under the constitution or any other law and all authorities under the Central Government and State Government. The RTI Act therefore is a powerful weapon in the hands of ordinary citizen. The adjudicatory roll is assigned to the Chief Information Commissioners and Information Commissioners, under Sections 18 to 20 of the Act. The RTI Act is given overriding effect under Section 22 and jurisdiction of Courts is barred under Section 23. The Chief Information Commissioners and Information Commissioners are thus placed in a very high pedestal and high powered position by the Statute itself. The legislature therefore deemed it necessary to make a statutory mandate, in Section 16(5) (b), that the salaries and allowances payable to and other terms and conditions of service of the State Information Commissioner shall be the same as that of the Chief Secretary. In the circumstances, the requirement under Section 16(5)(b) cannot be permitted to be watered down under any pretext. 22. In the circumstances, the requirement under Section 16(5)(b) cannot be permitted to be watered down under any pretext. 22. I also find considerable force in the argument of the counsel for the petitioners that only a member of All India Services can be appointed as a Chief Secretary to the State Government and hence all Chief Secretaries are entitled to the benefit of the Scheme, 2020 and consequently the petitioners are also entitled to the benefit. Ext.P14 Circular dated 20.03.2000 issued by the Government of India, Department of Personnel and Training provides the principles regarding the promotion of members of the Indian Administrate Service. Clause VI of the principles of guidelines provide that the zone of consideration for promotion of members of the Indian Administrative service would consist of all the members of the service who have completed 30 years of service. Therefore, it is evident that only members of All India Services can be appointed as Chief Secretary to the Government. 23. For all the above reasons, I find that Ext.P12 order passed by the 1st respondent cannot stand the scrutiny of law. Ext.P12 is therefore set aside. There will be a consequential direction to the respondents to extend to the petitioners medical benefits on par with the benefits available under the All India Services (Medical Facilities) Scheme, 2020 from 01.04.2020, the date on which the Scheme was introduced and was made applicable to the Chief Secretary to the State Government. Consequential benefits, if any, to the petitioners shall be paid within a period of two months. 24. The writ petition is disposed of as above.