The Gauhati High Court has held that by virtue of Section 16(5) of the Right to Information Act, 2005, a deeming fiction is created to the advantage of the State Information Commissioner, who would be paid a similar salary and post-retirement benefits as that of the Chief Secretary.

The appeal before the High Court was preferred against the judgment wherein it was held that the respondent, who retired as State Information Commissioner, would be entitled to the benefits and allowances under Section 16 (5) of the Right to Information Act, 2005 (2005 Act) w.e.f. January 1, 2020. The impugned judgment further declared that he would be entitled to other additional benefits such as additional pension, additional DCRG, along with Telephone and Security Assistant.

The Division Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury held, “It appears from the records that the respondent had earlier approached this court by way of WP(C) 4497/2021, which was disposed off with a direction to the State respondents to pass a reasoned order in case of the respondent herein, in view of the legal fiction created under Section 16(5) of the 2005 Act and not to insist for extending such benefits only to a person who has served as Chief Secretary or in the rank equivalent to Chief Secretary. By virtue of Section 16(5) of the 2005 Act, a deeming fiction is created to the advantage of the State Information Commissioner, who would be paid similar salary and postretiral benefits as that of Chief Secretary.”

Additional Senior Government Advocate D.K. Sarmah represented the Appellant, while Senior Advocate B.D. Das represented the Respondent.

Factual Background

The respondent was appointed as State Information Commissioner, who served from July 31, 2015, till December 31, 2019. Before his engagement, he was a member of the Indian Audit Service and had demitted his office as an OSD in the office of the Principal Accountant General, A&E, Assam. The State of Assam challenged the order granting benefit to the Respondent primarily on the ground that the judgment did not take into account the fact that the respondent did not have the qualifying 10 years of service to be entitled to additional pension, additional DCRG along with Telephone and Security Assistant, which are paid to the Chief Secretary of a State.

Reasoning

Considering that the respondent was appointed on July 31, 2015, the Bench held that the un-amended Section 16(5) would be applicable in his case. “A bare reading of Section 16(5) of the 2005 Act would indicate that the salaries and allowances of the State Information Commissioner shall be the same as that of the Chief Secretary to the State Government”, it explained.

On a perusal of the records, the Bench noticed that the respondent is a member of the Union Civil Service, who superannuated as an OSD from the office of the Principal Accountant General, A&E, Assam. Since he is a member of the Union Civil Service, he would be otherwise governed by the Central Civil Services Pension Rules, 1972. Under Rule 49 of the 1972 Rules, there is a clear provision that in the case of a Government servant retiring in accordance with the provisions of these rules, he would be entitled to pension as provided under the said Rule, the Bench mentioned.

“ In view of the provisions contained in Section 16(5) of the 2005 Act, referred to above, as also the fact that the respondent has been receiving pension after demitting his office as a member of Indian Audit Service, there would be no justifiable reasons to deny the additional post-retiral benefits, which is payable to a person of the rank of Chief Secretary, only on the ground that the respondent did not have 10 years of qualifying service”, the order read.

Noting that the impugned judgment espoused the correct law on the issue, the Bench dismissed the Petition.

Cause Title: State of Assam v. Pinuel Basumatary (Case No.: WA/357/2024)

Appearance

Appellant: Additional Senior Government Advocate D.K. Sarmah

Respondent: Senior Advocate B.D. Das, Advocate H.K. Sarma

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Gauhati High CourtJustice Ashutosh KumarJustice Arun Dev Choudhury

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.