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