Madhya Pradesh High Court
Smt. Rupali Dubey vs The State Of Madhya Pradesh on 28 October, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
HIGH COURT OF MADHYA PRADESH, JABALPUR
Writ Petition No.25808 / 2018
Smt. Rupali Dubey
Versus
State of M.P. & Ors.
Date of Order 28.10.2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for
reporting
Name of counsel for For Petitioner : Shri Jagat Singh,
parties Advocate and Shri Shivam Hazari,
Advocate.
For Respondent No.1 : Shri Swapnil
Ganguly, Deputy Advocate General. For Respondent No.4 : Shri Quazi Fakruddin, Advocate.
For Respondent No.7 : Shri Shashank Shekhar, Senior Advocate with Shri Samresh Katare, Advocate.
For Respondent No.8 : Shri Praveen Dubey, Advocate.
None for remaining respondents,
although served.
Reserved on : 30.09.2021
Delivered on : 28.10.2021
(O R D E R)
(28.10.2021)
This petition has been filed under Article 226 of the Constitution of India questioning the legality, validity and propriety
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of the order dated 06.10.2018 (Annexure-P/8) notifying appointment of respondents No.4 to 8 on the post of the State Information Commissioner. The main thrust of challenge to the appointment of respondents No.4 to 8 is on the ground that it is illegal and void because there was no approval or consent taken from respondent No.3/leader of opposition. The challenge is also made on the ground that the process of appointment of respondents No.4 to 8 is de hors the directives issued by the Supreme Court in the case of Union of India v. Namit Sharma (2013) 10 SCC
359.
2. To appreciate the real controversy involved in this matter, the relevant facts need to be looked into. Suffice it to say that respondent No.1 published an advertisement on 24.12.2016 inviting applications for appointment to the posts of State Information Commissioner. In response thereto, the petitioner has also applied as, according to her, she was eligible and qualified to be appointed as State Information Commissioner. Albeit, on 22.05.2018 another advertisement was issued inviting applications specifying that the candidates, who have already applied, need not to apply again. As many as 187 candidates applied for the post of State Information Commissioner. The appointment was to be
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made as per the provisions of the Right to Information Act, 2005 (for brevity "Act, 2005"). As per the petitioner, subsection (3) of Section 15 of the Act, 2005 provides that the State Chief Information Commissioner and State Information Commissioner shall be appointed by the Governor on the recommendation of the Committee consists of (i) the Chief Minister, who shall be the Chairperson of the committee; (ii) the Leader of Opposition in the Legislative Assembly; and (iii) a Cabinet Minister to be nominated by the Chief Minister.
A committee was duly constituted. Looking to the number of candidates applied for appointment on the post of State Information Commissioner, it was advised by respondent No.3 to respondent No.1 to shortlist the names of the candidates on the basis of their credentials and on that basis, the Committee would recommend the names of candidates to be appointed as State Information Commissioner. But, that suggestion was not acceded to by respondent No.1 saying that it is the domain of the committee to shortlist the candidates and make recommendation, but respondent No.3 was not happy with the information given by respondent No.1 then finally it is returned to the Chief Minister by respondent No.3 that
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considering the fact that the Assembly elections were to be held within a period of two months and in such circumstances, it would not be appropriate to fix any meeting of selection committee and that meeting should be fixed only after elections. But in stead of accepting the said recommendation, vide notification dated 06.10.2018, the names of respondents No.4 to 8 were notified as have been appointed on the post of State Information Commissioner.
3. Although the selection has been challenged by the petitioner on multifarious grounds but during the course of arguments, the learned counsel for the petitioner has confined the challenge to the extent that it is in violation of the direction issued by the Supreme Court in the case of Namit Sharma (supra). As per the petitioner, in paragraph 10 of the said decision, the Supreme Court has observed as under:-
"10. For the reasons recorded in the judgment under review, this Court disposed of the writ petition of the respondent-writ petitioner with the following directions/declarations:
"108.1. The writ petition is partly allowed. 108.2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with the rider that, to give it a meaningful and purposive interpretation, it is necessary for the Court to 'read into' these provisions some aspects without which these provisions are bound to offend the doctrine of equality. Thus, we hold
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and declare that the expression 'knowledge and experience' appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, without any peradventure and veritably, we state that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof.
108.3. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, we would prefer to read these provisions as having effect 'post-appointment'. In other words, cessation/termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner or Information Commissioner at the Centre or State levels. 108.4. There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates.
108.5. We also direct that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today.
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108.6. We are of the considered view that it is an unquestionable proposition of law that the Commission is a 'judicial tribunal' performing functions of 'judicial' as well as 'quasi-judicial' nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration.
108.7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.
108.8. The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a 'judicial member', while the other an 'expert member'. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners.
The Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.
108.9. The appointment of the judicial members to any of these posts shall be made 'in consultation' with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
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108.10. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded. 108.11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.
108.12. The selection process should be commenced at least three months prior to the occurrence of vacancy.
108.13. This judgment shall have effect only prospectively.
108.14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India. In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is bound by the law of precedent, i.e., judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedent and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case. It is not only the higher court's judgments that are binding precedents for the Information Commission, but even those of the larger Benches of the Commission should be given due acceptance and enforcement by the
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smaller Benches of the Commission. The rule of precedence is equally applicable to intra- court appeals or references in the hierarchy of the Commission."
4. As per the petitioner, in paragraph 108.11, it is categorically provided that to make selection more transparent, there should be a panel constituted and that committee should recommend the name of candidates to be appointed and the said recommendation should be placed before the competent authority. According to the petitioner, there was no such committee, whereas request was made by respondent No.3, but in absence of such committee, recommendations made by a committee in which respondent No.3 was not present, clearly indicates that the direction issued by the Supreme Court has been violated. According to the petitioner, the Chairman of the committee and the members nominated by him were under legal obligation to specify in clear words about the eminence in public life, his knowledge and his experience in law, science & technology, social service, management, journalism, mass media or administration & governance before the name of every recommended candidate so as to make it transparent for public to know about the qualification of the recommended candidate, but no such facts were mentioned in the
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recommendation made for respondents No.4 to 8 and therefore their appointment as State Information Commissioner is illegal. In support of his contention, the learned counsel for the petitioner has placed reliance on the decisions of Supreme Court in case of Namit Sharma (supra) and in the case of Anjali Bhardwaj and others v.
Union of India and others (2019) 18 SCC 246.
5. Shri Ganguly, learned Deputy Advocate General submitted that recently the High Court of Chhattisgarh has dealt with the similar issue of challenging the appointment of Chief Information Commissioner and State Information Commissioner and finally the writ petition was dismissed by the High Court of Chhattisgarh. The High Court of Chhattisgarh has also considered the law laid down by the Supreme Court in the case of Anjali Bharadwaj (supra) and also of Namit Sharma (supra). He submitted that considering the judgment of the Division Bench of High Court of Chhattisgarh, this petition deserves to be dismissed as almost similar issue is involved in the present petition.
6. Shri Shashank Shekhar, learned senior counsel appearing for respondent No.7 has drawn attention of this Court towards the observations made in paragraph 39.4 of the decision in the case of Namit Sharma (supra) and then
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paragraph 37 saying that the object for mentioning the details in the recommendation made by the Committee was only a procedural part of the selection and if the same is not adhered to, the whole selection cannot be set aside and it is not proper to say that the selection procedure is vitiated. He has also urged that in absence of any specific pleading by the petitioner that out of respondents No.4 to 8, who does not possess the requisite qualification as is required as per paragraph 39.4. According to him, in absence of any such pleading that the selected candidate does not have the said qualification, the said procedural irregularity cannot be made basis for holding against the selected candidate and to hold the whole selection process illegal. He submitted that the Division Bench of Chhattisgarh High Court has also observed this particular object and dismissed the petition.
Shri Shekhar, learned senior counsel has also relied upon a decision in the case of D. Sarojakumari v. R. Helen Thilakom and others (2017) 9 SCC 478 in which the Supreme Court in paragraph 4 has observed as under:-
"4. The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for
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appointment, the said person is estopped from challenging the process of selection."
He submitted that the petitioner herself is not qualified person as required under Section 12(5) of Act, 2005 and therefore her name was not considered to be recommended. After participating in the selection process, knowing fully well that she is not qualified merely because respondent No.3 was raising some objection with regard to constitution of such committee, the selection process cannot be challenged by the petitioner. Likewise, he also placed reliance upon a decision in the case of Madras Institute of Development Studies and another v. K. Sivasubramaniyan and others (2016) 1 SCC 454 in which also it is observed by the Supreme Court that when candidate consciously takes part in selection process, not permissible to challenge the same after being declared disqualified and not selected therein.
7. Shri Ganguly, appearing for respondent No.1 has relied upon a decision passed by the Division Bench of Chhattisgarh High Court in W.P.(PIL) No.30/2018 (supra) in which selection of Chief Information Commissioner and State Information Commissioner was challenged.
8. I have heard the rival contentions and perused the material available on record. The main contention of the
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petitioner is with regard to violation of the guidelines issued by the Supreme Court in the case of Namit Sharma (supra) which has been quoted hereinabove. The Supreme Court in the case of Namit Sharma (supra) concluded its view in paragraph 39 reviewing its earlier order, modified the same by allowing the review petition with the following directions :-
"39. Under Order 40 of the Supreme Court Rules, 1966 this Court can review its judgment or order on the ground of error apparent on the face of record and on an application for review can reverse or modify its decision on the ground of mistake of law or fact. As the judgment under review suffers from mistake of law, we allow the Review Petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No. 210 of 2012 with the following declarations and directions:
39.1 We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution. 39.2 We declare that Sections 12(6) and 15(6) of the Act do not debar a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession from being considered for appointment as Chief Information Commissioner or Information Commissioner, but after such person is appointed as Chief Information Commissioner or Information Commissioner, he has to discontinue as Member of Parliament or Member of the Legislature of any State or Union Territory, or discontinue to hold any other office of profit or remain connected with any political party or carry on any business or pursue any profession during the period he functions as
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Chief Information Commissioner or Information Commissioner.
39.3 We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner. 39.4 We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Sections 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Sections 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.
39.5 We further direct that the Committees under Sections 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.
39.6 We also direct that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming up before the Information Commission, he will ensure that the matter is heard by an Information Commissioner who has wide knowledge and experience in the field of law."
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9. As per paragraph 39.5, it was a requirement for sending a recommendation and placing before the appointing authority and that recommendation of each candidate should contain his qualifications, but according to the petitioner and as per record submitted by him, it is clear that said requirement was not fulfilled and as such the appointment of respondents No.4 to 8 is illegal and liable to be set aside. Shri Singh, learned counsel for the petitioner has confined his statement to that extent if direction given in paragraph 39.5 in the case of Namit Sharma (supra) is not followed by the respondents while making appointment on the post of State Information Commissioner, the decision making process is violated and as such selection of respondents No.4 to 8 is liable to be cancelled.
10. The Division Bench of Chhattisgarh in W.P.(PIL) No.30/2018 was dealing with the ground of challenge that the selection has been made violating the mandatory provisions of subsection (3) and (5) of Section 15 of Act, 2005 and also in violation of direction issued by Their Lordships of the Supreme Court in the case of Namit Sharma (supra). In the said writ petition, it was contended by the petitioner that recommendation made in favour of candidates did not contain the reason and qualification per
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law. This is the same issue which has been raised by the petitioner here in this petition. The Division Bench of Chhattisgarh High Court considering various judgments of Supreme Court in paragraph 34 has observed as under:-
"34. The Right to Information is a very valuable right imparted to the citizens under the Constitution of India. Their Lordships of the Supreme Court in the matter of Namit Sharma v. Union of India [(2013) 1 SCC 745] reiterated the importance of the Right to Information and observed as under: -
"2. It is a settled proposition that the right to freedom of speech and expression enshrined under Article 19(1) (a) of the Constitution of India encompasses the right to impart and receive information. The right to information has been stated to be one of the important facets of proper governance. With the passage of time, this concept has not only developed in the field of law, but also has attained new dimensions in its application. This Court while highlighting the need for the society and its entitlement to know has observed that public interest is better served by effective application of the right to information. This freedom has been accepted in one form or the other in various parts of the world.""
Then in paragraph 37 against the case of Namit Sharma (supra) was taken note of in the following manner;-
"37. Thus, the important aspect of Section 15 of the Act of 2005 for appointment of Chief Information Commissioner or Information Commissioner is that he should be a person of eminence in public life. The meaning of the expression "persons of eminence in public life"
has been elaborated by the Supreme Court in Namit Sharma v. Union of India (supra) which
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was later reviewed in Union of India v. Namit Sharma (supra). In paragraph 101 of the decision rendered in Namit Sharma v. Union of India (supra) it was held as under: -
"101. "Persons of eminence in public life" is also an expression of wide implication and ramifications. It takes in its ambit all requisites of a good citizen with values and having a public image of contribution to the society. Such person should have understanding of concepts of public interest and public good. Most importantly, such person should have contributed to the society through social or allied works. The authorities cannot lose sight of the fact that ingredients of institutional integrity would be applicable by necessary implication to the Commissions and their members. This discussion safely leads us to conclude that the functions of the Chief Information Commissioner and Information Commissioners may be better performed by a legally qualified and trained mind possessing the requisite experience. The same should also be applied to the designation of the first appellate authority i.e. the senior officers to be designated at the Centre and State levels. However, in view of language of Section 5, it may not be necessary to apply this principle to the designation of Public Information Officer.""
The Division Bench further in paragraphs 38, 39 and 46 took note of the case of Anjali Bhardwaj (supra) and observed as under:-
"38. After the judgment of the Supreme Court in Namit Sharma v. Union of India (supra), recently, in the matter of Anjali Bhardwaj and others v. Union of India and others Their Lordships of the Supreme Court taking cognizance of the directions already issued in Union of India v. Namit Sharma (supra), issued
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further directions for appointment on the post of Chief Information Commissioner / Information Commissioners as contained in paragraph 67 of that report which are as under:-
"67. (i) Insofar as transparency in appointment of Information Commissioners is concerned, pursuant to the directions given by this Court, the Central Government is now placing all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. on the website. All States shall also follow this system.
(ii) Insofar as terms and conditions of appointment are concerned, no doubt, Section 13(5) of RTI Act states that the CIC and Information Commissioners shall be appointed on the same terms and conditions as applicable to the Chief Election Commissioner/Election Commissioner. At the same time, it would also be appropriate if the said terms and conditions on which such appointments are to be made are specifically stipulated in the advertisement and put on website as well.
(iii) Likewise, it would also be appropriate for the Search Committee to make the criteria for shortlisting the candidates, public, so that it is ensured that shortlisting is done on the basis of objective and rational criteria.
(iv) We also expect that Information Commissioners are appointed from other streams, as mentioned in the Act and the selection is not limited only to the Government employee/ex-government employee. In this behalf, the respondents shall also take into consideration and follow the below directions given by this Court in Union of India v. Namit Sharma, (2013) 10 SCC 359.
"32. ...
(iii) We direct that only persons of eminence in public life with wide knowledge and
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experience in the fields mentioned in Ss. 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner.
(iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Ss.
12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.
(v) We further direct that the Committees under Ss.12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made."
(v) We would also like to impress upon the respondents to fill up vacancies, in future, without any delay. For this purpose, it would be apposite that the process for filling up of a particular vacancy is initiated 1 to 2 months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy."
39. The Supreme Court while giving directions in Anjali Bhardwaj (supra) has now clarified the position and clearly held that all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. shall be placed on
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the website and all the State Governments shall follow this system. The terms and conditions on which such appointments are to be made should also be specifically stipulated in the advertisement and put on the website as well. As such, now, it is imperative for the State Government to make appointment of Chief Information Commissioner and Information Commissioners in consonance with the above- quoted directions issued by the Supreme Court in Anjali Bhardwaj (supra) on 15-2-2019 and therefore issuance of advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. all are to be placed in the public domain. Filling up of vacancy has to be initiated 1 to 2 months before the date on which the vacancy is likely to occur in order to avoid time lag between the occurrence of vacancy and filling up of the said vacancy."
"46. The submission raised by the petitioner in this writ petition as well as in another writ petition is that the post of Chief Information Commissioner was not advertised and within three days from the date of making application by respondent No.3, appointment on the said post was made. As noticed herein-above, in the Act of 2005, there is no specific provision prescribing issuance of advertisement and calling of vacancy etc. but now, in Anjali Bhardwaj (supra), Their Lordships have clearly issued binding directions for CIC & SCICs not only in respect of issuance of advertisement, but also for placement of necessary details regarding receipt and applications, particulars of the applicants, composition of Selection Committee etc. on the website with a direction to follow the system by the State Governments and the terms and conditions on which such appointments are to be made have to be specifically stipulated in the advertisement and also the criteria for shortlisting the candidates to ensure that shortlisting is done on the basis of objective and rational criteria. In that view of the matter, henceforth, the State Government /
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respondent No.1 is directed to follow the guidelines with regard to issuance of advertisement, placement of information of receipt and applications, particulars of the applicants, composition of Selection Committee, terms and conditions on which the appointments are to be made, criteria for shortlisting the candidates, in the public domain. In absence of specific provision for advertisement of the vacancy of CIC, as on the date of appointment of respondent No.3, legal position was unclear and the appointment of respondent No.3 cannot be set at naught on that ground. However, the State Government is now under legal obligation to follow the said guidelines issued by the Supreme Court in Anjali Bhardwaj (supra) without fail while making appointment on the post of CIC and Information Commissioners."
Then, the Division Bench of Chhattisgarh High Court taking note of the Supreme Court decision in case of B.S. Minhas v. Indian Statistical Institute and others (1983) 4 SCC 582 in paragraphs 58 and 60, has observed as under:-
"58. In this regard the observation made by the Supreme Court in the matter of B.S. Minhas v. Indian Statistical Institute and others, which relates to appoint of Director of the said Institute, is pertinent which may be noticed herein profitably:-
"The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant consideration before coming to a conclusion."
60. Undoubtedly, the Selection Committee constituted by the State Government under Section 15(3) of the Act of 2005 was statutory in character being a high powered committee and it consisted of Hon'ble the Chief Minister
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of the State being the Chairperson of the Committee and also the Leader of Opposition in the Legislative Assembly and a Cabinet Minister who was nominated by the Chief Minister. The said Committee considered the case of respondent No.3 for the post of Chief Information Commissioner and made recommendation to His Excellency the Governor which was accepted and ultimately, respondent No.3 was appointed on the said post. Consequently, the observation made by Their Lordships in B.S. Minhas (supra) would squarely apply to the facts of the present case and it cannot be concluded that the Selection Committee did not consider all aspects of the matter while making recommendation of the name of respondent No.3 to the State Government for the post of CIC. We cannot agree with the submission of learned counsel for the petitioner."
Thereafter, in paragraph 63, the selection on the post of Information Commissioner on the ground of violation of Section 15(5) of Act, 2005 has also been taken note of, which reads thus;
"63. Respondents No.5 & 6 have been appointed on the post of Information Commissioner on 26-8-2017. The writ petitioner in W.P. (PIL)No.46/2019 mainly questioned their appointment on the ground that no advertisement was called for filling up of the post of Information Commissioner(s) which is violative of Section 15(5) of the Act of 2005 and Article 14 of the Constitution of India, as such, there is no comparative assessment and the Selection Committee has not recorded any reasons and qualifications as per law. We have already made clear in paragraph 46 of this order noticing the binding directions issued by Their Lordships in Anjali Bhardwaj (supra) that henceforth, the State Government shall
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follow the directions contained in Anjali Bhardwaj (supra) and applications will not only be invited, but details of applicants and applications, composition of Selection Committee and terms and conditions on which the appointments are to be made, manner and criteria of shortlisting the candidates all will be made applicable in the public domain. In that view of the matter, we hereby decline to entertain the challenge towards the appointment of respondents No.5 & 6, as in future appointments to be made on the post of Information Commissioner, the directions contained in Anjali Bhardwaj (supra) will be followed religiously and scrupulously by the State Government henceforth."
Then, finally the Division Bench in paragraph 64 onward found that merely because there were certain procedural irregularities do not make the whole selection process void and dismissed the petition in the following manner:-
"64. In view of the aforesaid legal analysis, we are fully satisfied that the writ petitioners seeking writ of quo warranto have demonstrably failed to plead and establish that appointment of respondent No.3 on the post of Chief Information Commissioner and that of respondents No.4 to 6 on the post of Information Commissioner is in violation of the statutory provisions contained in the Act of 2005.
65. A Constitution Bench of the Supreme Court in the matter of Statesman (Private) Ltd. v. H.R. Deb and others38 has clearly held that "the High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law".
66. The principle of law laid down by Their Lordships of the Supreme Court in Statesman (supra) sounding a note of caution for this Court to be slow in issuing a writ in the nature
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of quo warranto in unclear case aptly and squarely applies to the factual score of the present case, as the petitioners have failed to establish clear infringement of law for the writ claimed in the nature of quo warranto and failed to demonstrate that respondents No.3 to 6 lack eligibility for the post of CIC and Information Commissioner, respectively, and thereby we decline to entertain the writ petitions. However, we wish to emphasize and direct that the State Government will henceforth follow the binding and mandatory directions issued by Their Lordships of the Supreme Court in Anjali Bhardwaj (supra) in paragraph 67 of that judgment and reproduced in paragraph 38 of this order, regarding issuance of advertisement and placing all the information into the official website and other directions contained, in its letter and spirit for appointment on the post of Chief Information Commissioner and Information Commissioners.
67. As a fallout and consequence of the aforesaid discussion, the writ petitions are dismissed with the above-stated directions. No order as to cost(s)."
11. Here in this case also, I am of the opinion that merely because respondent No.3 did not take part in the selection process while committee recommended the names of candidates to be appointed on the post of State Information Commissioner does not mean the whole process is vitiated. It is apt to reproduce the letter dated 19.09.2018 (Annexure-P/7) of respondent No.3, which reads thus;- Izkfr+] f'kojkt flag pkSgku eq[;ea=h
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e/; izns'k 'kklu Hkksiky fo"k; 24 flracj dks lwpuk vk;qDr p;u lfefr dh cSBd fujLr djus ckcr~ A eq>s 24 flracj dks lwpuk vk;qDr p;u lfefr dh cSBd gksus dk i= feyk gS bl cSBd eas lwpuk vk;qDr ds fy, fopkjkFkZ ukekas dks 'kkVZ fyLV dj esfjV ds vk/kkj ij lwph rS;kj djus ds laca/k eas iwoZ eas lkekU; iz'kklu foHkkx dks fy[kk Fkk A foHkkx yxkrkj rduhfd fcUnqvkas dks mBkdj bl ckr ij vfMx gS fd Ms< nks lkS ukekas dh lwph dks 'kkVZ fyLV dj esfjV Hkh p;u lfefr r; djsxh A eSa lkekU; iz'kklu foHkkx dh bl ckr ls lger ugha gwa A ;g lfefr vkidh v/;{krk eas xfBr gS bleas usrk izfri{k Hkh lnL; ds :i eas 'kkfey jgrs gSa A esjk ekuuk gS fd p;u lfefr ds lp{k ogh lwph vkuk pkfg, ftu ij lfefr fopkj dj p;u dj lds A lfefr ds le{k fopkjkukFkZ ukekas dks lwpuk vk;qDr fu;qDr djus ds Ik;kZIr vk/kkj gksus ds lkFk gh mudk osjhfQds'ku Hkh gksuk pkfg;s tSlk fd laoS/kkfud inksa ij fu;qfDr ds iwoZ dh izfdz;k gS A lqizhe dksVZ ds Hkh lwpuk vk;qDr ds p;u ds laca/k eas fn'kk funZs'k gSa tks eSaus lkekU; iz'kklu foHkkx dks Hksts gSa A bl eqnns ij xaHkhjrkiwoZd fopkj foe'kZ dj fu.kZ; ysus dh vko'drk gS A esjk ekuuk gS fd e/;izns'k ds fo/kkulHkk pquko ds ek= Ms<&nks ekg 'ks"k gSa A ,slh fLFkfr eas mfpr gksxk fd lwpuk vk;qDr ds inks ij p;u lfefr dh cSBd pquko laiUu gksus ds ckn gh j[kh tk, A mEehn gS fd vki easjs bl lq>ko ls lger gksaxs A ¼vt; flag½ From a perusal of the aforesaid letter, it is clear that sole intention of respondent No.3 was that selection on the post of State Information Commissioner should be kept in abeyance till the elections of Legislative Assembly were completed, whereas there was an urgency in the matter for appointing Information Commissioner pursuant to the direction of the Supreme Court to make appointment expeditiously on the post of Information Commissioner. The
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documents filed by the petitioner clearly indicate that respondent No.3 was avoiding to participate in the meeting of committee and was reluctant that selection on the post of State Information Commissioner should be made before elections. In my opinion, the provision of Act, 2005 does not make any requirement for constituting any screening committee to shortlist the candidates and to make the disclosure of qualification of recommended candidates but it was only a situation for the Supreme Court to direct the State Government for adopting mechanism to make the selection process more transparent, but if the State Government considering the urgency in selecting the Information Commissioner has not followed the said direction which is not part of statute, does not mean that whole selection process can be held illegal, especially under the circumstance when the petitioner has failed to show whether the candidates selected on the post of State Information Commissioner do not have requisite qualification.
Even during the course of arguments, the learned counsel for the petitioner failed to convince this Court about the fact whether the petitioner does possess the required qualification or not. When there was specific allegation made
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by the respondents about the said aspect, the petitioner was under obligation to rebut the said submission, but that has not been done.
It can very well be perceived that it was only a procedural flaw that too not violating the suggestion made by the Supreme Court and particularly when the Division Bench of Chhattisgarh High Court has considered this aspect in detail and dismissed the petition saying that if during the course of selection process in procedural irregularity is committed, the whole selection cannot be held invalid.
12. The Supreme Court in the case of Anjali Bharadwaj (supra) issued general directions for CIC and SCICs, even after considering the case of Namit Sharma (supra), in the following manner:-
"66.1 Insofar as transparency in appointment of Information Commissioners is concerned, pursuant to the directions given by this Court, the Central Government is now placing all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. on the website. All States shall also follow this system. 66.2 Insofar as terms and conditions of appointment are concerned, no doubt, Section 13(5) of RTI Act states that the CIC and Information Commissioners shall be appointed on the same terms and conditions as applicable to the Chief Election Commissioner/Election Commissioner. At the same time, it would also be appropriate if the
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said terms and conditions on which such appointments are to be made are specifically stipulated in the advertisement and put on website as well.
66.3 Likewise, it would also be appropriate for the Search Committee to make the criteria for shortlisting the candidates, public, so that it is ensured that shortlisting is done on the basis of objective and rational criteria. 66.4 We also expect that Information Commissioners are appointed from other streams, as mentioned in the Act and the selection is not limited only to the Government employee/ex-government employee. In this behalf, the respondents shall also take into consideration and follow the below directions given by this Court in Union of India vs. Namit Sharma (supra). "39. .....We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Sections 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner.
39.4 We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Sections 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners.
39.5 We further direct that the Committees under Ss. 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended,
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the facts to indicate his eminence in public life, his knowledge in the 6 (2013) 10 SCC 359 particular field and his experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made.""
It is clear from paragraph 66.4 that the Supreme has taken of the direction given in the case of Namit Sharma (supra) and further directed that direction given in paragraphs 39.3, 39.4 and 39.5 of the case of Namit Sharma (supra) be complied with. It is clear that those directions are directory in nature asking the State Government to follow the same, but as per the State appointment was to be made without any delay, therefore, all those directions could not be complied with, which were procedural in nature and this aspect has been considered by the Division Bench of Chhattisgarh High Court. Thus, if there is any procedural flaw in the selection process, the same cannot vitiate the whole selection process.
13. In view of the above discussion, in my opinion, there is no substance in the submissions made by the learned counsel for the petitioner and on that basis, the selection process of respondents No.4 to 8 on the post of State Information Commissioner does not call for any
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interference as there is no illegality in the notification appointing respondents No.4 to 8.
14. The petition is accordingly dismissed.
(Sanjay Dwivedi) Judge SUDESH Digitally signed by SUDESH KUMAR SHUKLA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya KUMAR Pradesh, 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c4bc sudesh 3916264aec736f7c5f5885257f5eeaeb7, pseudonym=70EE703D36E97ABB20BA3C79C9 21929E09400A16, SHUKLA serialNumber=7D462390C18350EF7C40811B1 2AB45D82AF1259878762BAC356DCFA877F02 654, cn=SUDESH KUMAR SHUKLA Date: 2021.10.29 17:56:10 +05'30'