Gujarat High Court
Jagte Raho vs The Chief Minister Of Gujarat & ... on 12 February, 2015
Author: Jayant Patel
Bench: Jayant Patel
C/WPPIL/143/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 143 of 2014
With
WRIT PETITION (PIL) NO. 278 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE S.H.VORA
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
================================================================
JAGTE RAHO....Applicant(s)
Versus
THE CHIEF MINISTER OF GUJARAT & 4....Opponent(s)
================================================================
Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY as the Petitioner
MR PK JANI, AAG with MR RUTVIJ OZA, AGP for the Respondent - State
Authorities
MR PA JADEJA, ADVOCATE for the Respondent No. 3 in Writ Petition
(PIL) No.143 of 2014
Mr. Shalin Mehta, learned counsel with Ms. Vidhi Bhatt for respondent
No.3 in Writ Petition (PIL) No.278 of 2014.
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
Page 1 of 18
C/WPPIL/143/2014 JUDGMENT
HONOURABLE MR.JUSTICE S.H.VORA
Date : 12/02/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As in both the petitions, common issue and questions are involved, they are considered simultaneously.
2. The short facts of the case appears to be that the petitioner, who is the office bearer and the President of Jagteraho, a branch of Senior Citizen's Service Trust, has approached to this Court challenging appointment of respondent No.3 in both the petitions as the Additional Information Commissioner under the Right to Information Act, 2005 (hereinafter referred to as "the Act").
3. The background of the case is that initially, the appointments on the post of the Information Commissioner were vacant and no appointments were being made and therefore, the petition was preferred before this Court, wherein this Court had issued direction to the State Government to make the appointment on the post of the Information Commissioner by particular time limit. As per the State authorities, on account of the said direction, the process was initiated. We have considered the original file of the State Government and it appears that the process began from 15th January, 2014 for appointment of the Information Commissioner in view of the direction given by this Court in Writ Petition (PIL) No.65 of 2012 read with the subsequent proceedings of MCA No.2712 of 2012 for enforcement of the order. It appears that when the process was on, the petitioner herein had taken out the other proceedings in the main writ petition, but ultimately, this Court found that the irresponsible Page 2 of 18 C/WPPIL/143/2014 JUDGMENT statements were made in the petition and the basis of the petition was the Press Note and this Court had dismissed the petition, but of course in the said petition, the aspects of challenge to the appointment was not examined. It appears that thereafter Writ Petition (PIL) No.143 of 2014 has been preferred before this Court challenging appointment of respondent No.3 Shri Bhagwandas Gandabhai Panchasara as the Additional Information Commissioner. This Court in the said petition, had called for the original record of the file of the State Government and on 17.9.2014, following order was passed in Writ Petition (PIL) No.143 of 2014.
"1. Since, there are no allegations of malafide against any of the parties who are proposed to be deleted, leave to delete respondents No.1, 2 and 4 is granted. Further, the petitioner is directed to join the State of Gujarat through Secretary, General Administration Department, as party respondent.
2. Consequently, the State of Gujarat and Mr.B.G.Panchasara shall only remain as party respondent. The petitioner shall amend the petition by giving address of Shri B.G.Panchasara at Gandhinagar, since as per learned A.G.P., he is functioning as Information Commissioner at Gandhinagar.
3. The Apex Court in case of Union of India v. Namit Sharma while upholding the validities of the Right to Information Act at para 39.5 has observed thus.
"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 Page 3 of 18 C/WPPIL/143/2014 JUDGMENT facts must be accessible to the citizens as part of their right to information under the Act after the appointment is made."
4. The original file shows that there is no recording of the ground of eminence in a particular public life, or a particular knowledge in a particular field or a particular experience in a particular field. Hence, matter deserves consideration.
5. RULE, returnable on 08.10.2014. Mr.Prakash Jani, learned Additional Advocate General appearing with Mr.P.P.Banaji, learned A.G.P. waives service of Rule for State of Gujarat through Secretary, General Administration Department. Office to issue the notice to Shri B.G.Panchasara. Additionally the learned A.G.P. shall communicate the order now to the respondent No.2- Mr.Panchasara."
4. It appears that thereafter, another writ petition being Writ Petition (PIL) No.278 of 2014 is preferred by the petitioner challenging appointment of respondent No.3 - Smr. Sridevi Shukla as the Additional Information Commissioner and as earlier the writ petition was already admitted, this Court on 23.12.2014, passed the following order.
"1. We have heard party-in-person Mr.Praful Khabdubhai Desai, Mr. Prakash Jani, learned Addl. Advocate General for State Authority and Mr. Shalin Mehta for respondent no.3.
2. As such, the issue involved in the present petition is more or less the same as considered by us in Writ Petition (PIL) No.143/14, which pertains to the appointment of another member Shri B.G. Panchasara as the Information Commissioner. The date of the meeting on which the committee took the decision is the same. The proceedings are also common. This Court. In the said Writ Petition (PIL) No.143/14, at paragraphs 3 and 4, had observed thus-
3. The Apex Court in case of Union of India v. Namit Sharma while upholding the validities of the Right to Information Act at para 39.5 Page 4 of 18 C/WPPIL/143/2014 JUDGMENT has observed thus.
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.
4. The original file shows that there is no recording of the ground of eminence in a particular public life, or a particular knowledge in a particular field or a particular experience in a particular field. Hence, matter deserves consideration.
3. Since the proceedings are common and the consideration was also simultaneous even for respondent no.3, we find that same view deserves to be taken for the purpose of admission. Hence, Rule returnable on 19.01.2015. Mr.Oza, learned AGP as well as Ms. Vidhi Bhatt appear for State Authority and respondent no.3 respectively and waive notice of Rule.
4. The parties may complete the pleadings before the aforesaid date if they are so desirous".
5. We may record that the appointment of the concerned respondent No.3 in both the petitions as Additional Information Commissioner were by common decision of the Committee and therefore, since the petition challenging appointment of Shri Panchasara one of the persons was admitted, this Court also found it proper to admit the Page 5 of 18 C/WPPIL/143/2014 JUDGMENT subsequent petition challenging appointment of Smt. Shukla as the Information Commissioner. Thereafter, the affidavits and the additional affidavits have been filed by the respective parties to the proceedings and today, we have heard Mr. Praful Desai, Party-in-Person appearing as the petitioner in both the petitions, Mr. Prakash Jani, learned Additional Advocate General appearing with Mr. Rutvij Oza, learned AGP for State authorities, Mr. Jadeja, learned counsel has appeared for respondent No.3 in Writ Petition (PIL) No.143 of 2014 and Mr. Shalin Mehta, learned counsel with Ms. Vidhi Bhatt has appeared for respondent No.3 in Writ Petition (PIL) No.278 of 2014.
6. Before we address the question to be considered and the facts of the present case, we find it appropriate to consider the requirement of the statute and also the decision of the Apex Court. As per provisions of Section 15 of the Act, the appointment of the State Chief Information Commissioner and the State Information Commissioner are to be made. Section 15 of the Act for ready reference reads as under:
"Section 15 in The Right To Information Act, 2005
15. Constitution of State Information Commission.
--
(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the____________.(name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.
(2) The State Information Commission shall consist of--
(a) the State Chief Information Commissioner; and
(b) such number of State Information Page 6 of 18 C/WPPIL/143/2014 JUDGMENT Commissioners, not exceeding ten, as may be deemed necessary.
(3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting 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.
Explanation.--For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of the Opposition.
(4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act.
(5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.
(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Page 7 of 18 C/WPPIL/143/2014 JUDGMENT Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
(7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish offices at other places in the State."
7. The constitutional validity of Sections 12(3) and 12(5) of the Act, which is for Central Chief Information Commissioner as well as Sections 15(3) and 15(5) of the Act, which are for State Chief Information Commissioner and the Additional Information Commissioner were challenged before the Apex Court. Initially, the Apex Court in its decision in case of Namit Sharma Vs. Union of India reported at (2013) 1 SCC 745, while upholding the constitutional validity, had read down the respective statute, but thereafter, the review petition was filed before the Apex Court against the said decision. Subsequently, the Apex Court in its decision in the review petition in case of Union of India Vs. Namit Sharma reported at (2013) 10 SCC 359 after reviewing its earlier decision in case of Namit Sharma, at para 39 to 39.6 has held as under:
"39. Under Order XL 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 Page 8 of 18 C/WPPIL/143/2014 JUDGMENT 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 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 Page 9 of 18 C/WPPIL/143/2014 JUDGMENT 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."
[Emphasis supplied]
8. The aforesaid shows that Sections 12(5) and 15(5) of the Act are held as not ultra vires to the Constitution, but while upholding the constitutional validity of Sections 12(5) and 15(5) of the Act, the Apex Court has read down the aforesaid provisions and has simultaneously issued direction from para 39.3 to 39.6. In the present matter, we find that direction Nos.39.3, 39.4 and 39.5 will have a role to play, but as the directions are already reproduced herein above, we need not repeat the same. But the perusal of the aforesaid direction at para 39.3 shows that persons of eminence in public life with the wide knowledge and experience in the fields mentioned under Sections 12(5) and 15(5) of the Act are only to be considered for appointment as Information Commissioner and Chief Information Commissioner. Direction No.39.4 provides that a person of eminence in public life with wide knowledge and experience in all the fields, which are so prescribed under Sections 12(5) and 15(5), namely, law, science and technology, social service, management, journalism, mass Page 10 of 18 C/WPPIL/143/2014 JUDGMENT media or administration and governance are to be considered by the Committee under Sections 12(3) and 15(3) of the Act for appointment of Chief Information Commissioner or the Information Commissioner. Further, as per direction No.39.5, it has been directed that the Committee 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 or Information Commissioner 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. It is further directed that the facts must be accessible to the citizens as part of the Right to Information Act after the appointment is made. To put it differently, when the Committee considers the matter, since the language is used "must mention" by the Apex Court, it is mandatory to record by formulation of the opinion for eminence in public life or his knowledge in a particular field amongst the field of law, or science and technology, or social service, or management, or journalism, or mass media or administration and governance while making the recommendations to the President or the Governor as the case may be. We may clarify that since coma is provided in statute any of one or more filed as referred to hereinbefore can be sufficient to form opinion by the Committee.
9. In our considered view, the direction at para 39.5 has to be read as mandatory and inbuilt requirement read down by the Apex Court under Sections 12(3) and 15(3) of the Act read with the provisions of Sections 12(5) and 15(5) of the Act for appointment of the Chief Information Commissioner and the Page 11 of 18 C/WPPIL/143/2014 JUDGMENT Information Commissioner. It is hardly required to be stated that when the constitutional validity of any statutory provision is under challenge and while upholding the constitutional validity, if the constitutional Court has read certain inbuilt mechanism by reading down a particular statute so as to save the constitutional validity, it should be read in absolute as mandatory and which expressly made as directory. In case of a mandatory requirement, it becomes an inbuilt mechanism for exercise of the power by the Committee and any breach therefrom or non-compliance to such direction would vitiate the decision making process, whereas in a case of direction, which if termed as directory, the question of satisfactory compliance may be examined by the Court before striking down the decision. In our considered view, the direction at para 39.5 cannot be considered as directory, but are required to be considered as mandatory and under these circumstances, we do not find that the contention raised by the learned Additional Advocate General and the leaned counsel appearing for the respective appointee for considering substantial compliance deserves to be accepted.
10. It is in this light of the aforesaid legal position, we need to now further examine the facts of the case.
11. The original file shows that the process began from 15.1.2014 for drawing the attention of the competent authority that the appointment of the Information Commissioner is required to be made in view of the direction issued by this Court in Writ Petition (PIL) No.65 of 2012. Such was accordingly approved and it was decided that on 4.2.2014, the meeting may be held as conveyed by C.M. Office. Thereafter, on 4.2.2014, the meeting was held of the Page 12 of 18 C/WPPIL/143/2014 JUDGMENT Committee comprising of (1) Chief Minister of the State (2) Leader of opposition party of the Gujarat State and (3) Minister of Finance, Health and Transportation. The proceedings of the Committee are also produced on page 103 in Writ Petition (PIL) No.278 of 2014. In the said proceedings, upto 3rd paragraph, there is reference to the requirement for appointment. In the next paragraph i.e. 4th paragraph, it has been recorded that the Committee was held under the Chairmanship of the Chief Minister, but in the last paragraph, which is relevant for the present petitions, the English translation can be produced as under:
"At the end of the deliberation by the Selection Committee, it is unanimously decided to recommend two persons on the vacancy of Information Commissioner as under:
(1) Smt. Sridevi Shukla - Retired Joint Secretary (2) Panchasara Bhagwandas Gandabhai - Navsari Note: Bio-data of both the above persons are enclosed."
12. The aforesaid consideration by the Committee, in our view, is no compliance to the direction of the Apex Court at para 39.5 for the simple reason that there is no formulation of opinion about any of the candidates for his eminence in public life or for his knowledge and experience in a particular field. Had it been a case where the Committee had mentioned the aforesaid aspects of formulation of opinion against the respective candidate whose bio-data were placed before the Committee, it may stand on different footing and different consideration, but nothing is mentioned for such purpose. Under these circumstances, we find that the mandatory procedure of the above referred directions issued by the Apex Court in case of Union of India Vs. Namit Sharma Page 13 of 18 C/WPPIL/143/2014 JUDGMENT (supra) while upholding the constitutional validity of Sections 12(5) and 15(5), which, as referred to herein above was mandatory, has not been followed. Once, as observed earlier, a mandatory procedure read down by the Apex Court by way of an inbuilt mechanism in exercise of the power under Sections 12(3) and 15(3) read with the provisions of Sections 12(5) and 15(5) of the Act has not been followed, it can be said that the decision is vitiated of the Committee for appointment of the persons concerned as the Information Commissioners.
13. Mr. Jani, learned Additional Advocate General as well as learned counsel appearing for the appointees did attempt to contend that when the bio-data of the respective candidate were produced before the Committee, this Court may examine the said material and if this Court finds that the appointees were having eminence in the public life or eminence by their knowledge and experience in the respective field covered by Section 12(5) of the Act, this Court may either hold that there is substantial compliance or may not interfere with the decision of the Committee when the material was already there before it and the same is also examined by this Court.
14. In our view, as observed by us herein above, when the direction is held to be mandatory, there is no question of tracing the substantial compliance. Further, if there is any formulation of opinion, which is a mandatory requirement, one might say that the Court may further examine as to whether formulation of such opinion is supported by the material or not and the Court may thereafter not go into the sufficiency of the material. But, in a case where there is complete absence about the formulation of the opinion, which is held to be Page 14 of 18 C/WPPIL/143/2014 JUDGMENT mandatory requirement as observed by us herein above, we cannot countenance the submission of the learned counsel to ourself examine the material and to form an opinion and thereafter, to take appropriate decision. In our view, such an exercise would be not only totally uncalled for, but it would also not be permissible if we are to examine the judicial review of a decision making process by the Committee.
15. Further, it may happen that the Committee may consider such material afterwards may be with or without the other candidate, and at that stage, if the opinion is already formed in respect of any of the candidates, the Court may examine the aspects of formulation of the opinion whether is on the ground germane to the exercise of the power or not, but in a case where there is complete absence of the formulation of the opinion, which is a mandatory requirement held by the Apex Court, we do not find that such an exercise can be undertaken as sought to be canvassed by the learned Additional Advocate General as well as learned counsel appearing for the respective appointee.
16. The attempt was made by the learned Additional Advocate General as well as Mr. Shalin Mehta to contend that the very petitioner had preferred the earlier writ petition, wherein, the prayer was also for challenging the appointment made of Smt. Shukla and the said petition was dismissed by the Court and therefore, this Court may not re-examine the question. It was also attempted to contend that such a petition would not fall in the PIL jurisdiction of this Court as per High Court of Gujarat (Practice and Procedure for Public Interest Litigation) Rules, 2010 and hence, this Court may not grant any relief to the petitioner, who is a very person Page 15 of 18 C/WPPIL/143/2014 JUDGMENT claiming to expose the public interest.
17. We may record that in the earlier decision of this Court in Writ Petition (PIL) No.103 of 2014, this Court at para 2.4 found that necessary parties to the subject were not impleaded as the party and it was further found by the Court that irresponsible statements without any basis have been made and therefore, the Court did not entertain the petition. It is undisputed position that the Court in the said order, did not examine the legality and validity of the appointment vis-a- vis the aspect as to whether a writ of quo warranto is called for or not. Further, in the PIL jurisdiction, the principles of res judicata and constructive res judicata may not be directly applicable, but even if, they are to be applied for the sake of consideration unless the point is examined and decided, it cannot be said that the second petition cannot and could not be entertained. Further, as per the aforesaid Rules of 2010, vide clause 5(xiii), it has been provided as under:
"Any other matter as the Court may deem fit and proper in the public interest."
18. When this Court at the time of admission after considering the file of the original record of the State Government, found that there was non-compliance to the direction of the Apex Court in case of Union of India Vs. Namit Sharma (supra), it was found proper by the Court to entertain the public interest litigation and accordingly, the matters were admitted. Under these circumstances, we do not find that the petition should be declined or no appropriate order should be passed even if the Court is satisfied on merit that there is breach and non-compliance to the direction of the Apex Court in its decision in case of Union of India Vs. Namit Page 16 of 18 C/WPPIL/143/2014 JUDGMENT Sharma (supra).
19. In view of the aforesaid observations and discussion, we find that the appointment made of the concerned respondent No.3 in the respective petitions by the Committee under Section 15(3) cannot be maintained and the same therefore, deserves to be set aside and hence, the same is set aside. Resultantly, the concerned respondent No.3 in the respective matter will be required to be prohibited from holding the office of the Information Commissioner. Hence, their appointment is set aside as the Information Commissioners. However, it is observed and clarified that the Committee under Section 15(3) of the Act as well as the State Government shall be at liberty to fill up the post, which may fall vacant on account of the order passed by this Court today in accordance with law. The petitions are allowed to the aforesaid extent. Rule made absolute to the aforesaid extent.
20. Considering the facts and circumstances, no order as to costs.
21. After the pronouncement of the order, Mr. Jani, learned Additional Advocate General prays that the operation of this order be stayed for some time. Further, Ms. Vidhi Bhatt prays for suspension of the order. Such prayer is objected by Mr. Praful Desai, Party-in-Person. It further appears that once the appointment is set aside, if the persons are permitted to function, it may create further complications. Hence, the said request is declined.
22. Mr. Jani, learned Additional Advocate states that the decision will be communicated to both the respondent No.3 concerned in the respective matter.
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(JAYANT PATEL, J.)
(S.H.VORA, J.)
shekhar
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