Karnataka High Court
S Umapathi vs The State Of Karnataka on 10 March, 2014
Bench: Chief Justice, B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF MARCH 2014
: PRESENT :
HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE
AND
HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT PETITION No. 40784 / 2012 (GM-RES-PIL)
BETWEEN
S.UMAPATHI
S/O LATE SUBRAMANYAM, AGED 42 YEARS,
R/A NO-1, THIRUMALA NIVASA,
KIRLOSKAR LAYOUT, HESARAGHATTA MAIN ROAD,
BANGALORE-73.
... PETITIONER
( BY SRI NATARAJ R, ADVOCATE, FOR
SRI PRAKASH M H, ADVOCATE. )
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY CHIEF SECRETARY,
VIDHANA SOUDHA, BANGALORE-1.
2. THE UNDER SECRETARY TO GOVERNMENT
DEPARTMENT OF PERSONNEL AND
ADMINSTRATIVE REFORMS,
JANASPANDANA CELL-RTI
VIDHANA SOUDHA, BANGALORE-1.
3. A K M NAYAK
STATE INFORMATION COMMISSIONER.
4. D THANGARAJU
STATE INFORMATION COMMISSIONER.
5. M R PUJAR
STATE INFORMATION COMMISSIONER.
2
6. T RAMA NAIK
STATE INFORMATION COMMISSIONER.
7. DR. SHEKHAR D SAJJANAR
STATE INFORMATION COMMISSIONER.
R-3 TO R-7 ARE HAVING OFFICIAL ADDRESSES
AT THE STATE INFORMATION COMMISSION OF
KARNATAKA, 3RD FLOOR, M S BUILDINGS,
DR.AMBEDKAR VEEDHI, BANGALORE-1.
... RESPONDENTS
( BY SMT.NILOUFER AKBAR, A.G.A. FOR R-1 & R-2.
SRI VIVEK HOLLA, ADVOCATE FOR
HOLLA & HOLLA FOR R-3 TO R-5.
SRI ASHOK HARANAHALLI, SENIOR COUNSEL, FOR
HARANAHALLI & PATIL, ADVOCATES, FOR R-6 & R-7. )
WRIT PETITION FILED PRAYING TO QUASH THE
IMPUGNED GAZETTE NOTIFICATION DATED 12.1.2011
ISSUED BY R-2, VIDE ANNEXURES-M & N RESPECTIVELY,
AND DIRECT R-1 & R-2 TO FORMULATE THE GUIDELINES
AND PROCEDURE WHILE MAKING SELECTION OF
INFORMATION COMMISSIONERS.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, NAGARATHNA, J, MADE THE
FOLLOWING:
ORDER
Notifications dated 12.1.2011 (Annexures-M & N), issued in the name of the Governor of Karnataka by the 3 State Government in exercise of the power under sub- section (3) of Section 15 of the Right to Information Act, 2005 (for short 'the Act'), appointing Respondent Nos.3 to 7 as State Information Commissioners, are assailed in this Writ Petition, which is sought to be filed in public interest. A direction is also sought against Respondent Nos.1 and 2 to formulate guidelines and procedure with regard to selection of Information Commissioners.
2. Delineating the provisions of the Act, the petitioner has contended that the appointment of Respondent Nos. 3 to 7 is not in accordance with Section 15 of the Act. The petitioner has also highlighted in the Writ Petition about the importance of the Office of the Information Commissioners under the Act and the role that they play in the matter of governance. The main thrust of the Writ Petition is with regard to the candidature of Respondent Nos.3 to 7 to hold the Office of the State Chief Information Commissioner as far as Respondent No.3 is concerned and the Office of the State Information Commissioner as far as 4 Respondent Nos.4 to 7 are concerned. Therefore, in substance, challenge is made to their appointments.
3. We have heard learned counsel for the petitioner, learned senior counsel for Respondent Nos.3 to 5 and Respondent Nos.6 & 7, and learned A.G.A. for Respondent Nos.1 and 2.
4. During the course of submissions, learned counsel for the petitioner drew our attention to Section 15 of the Act as well as the latest order of the Hon'ble Supreme Court dated 3.9.2013 in the Review Petition filed in a Writ Petition, which is reported in (2013)10 SCC 359, and contended that, despite the order of the Hon'ble Supreme Court in a Review Petition, which has virtually withdrawn the earlier order passed by the Hon'ble Supreme Court, yet, in the facts of the present case, the directions given in the order in the Review Petition are squarely applicable to the present case. It was contended that there was no advertisement of the posts, but applications were received and the Selection Committee has not recommended the names of Respondent 5 Nos.3 to 7 in accordance with law. It was contended that, even in the absence of Rules, the set procedure had to be followed by the Committee. Specifically pointing out with regard to the respondents as such, it was contended that the name of Respondent No.3 was not in the list at Annexure-D, in fact, he had not applied; that as far as Respondent No.4 is concerned, there are complaints pending against him before the Lokayuktha; that Respondent No.5 also had not applied, but there was a recommendation in his favour, which is found in the file; that Respondent No.6 had political connection with the then ruling party as also Respondent No.7, who is stated to be pursuing a profit oriented profession, had contested elections and has political affiliations. Therefore, it was contended that the appointments of Respondent Nos.3 to 7 are not in accordance with the Act.
5. Per contra, learned senior counsel and learned A.G.A., appearing for the respondents, supported the impugned notifications by drawing our attention to certain 6 paragraphs of the order in review made by the Hon'ble Supreme Court and also the provisions of the Act.
6. In order to appreciate the rival contentions of the parties, it would be necessary to extract the relevant provisions of the Act. Section 15 speaks about the constitution of the State Information Commission. It reads as under:
"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
Commissioners, not exceeding ten, as may be deemed necessary.7
(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 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 8 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 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."
9
7. The appointment of State Chief Information Commissioner as well as State Information Commissioners is made by the Governor of the State on the recommendation of the Committee consisting of (i) the Chief Minister, who shall be the Chair Person of the Committee,
(ii) the Leader of the Opposition in the Legislative Assembly, and (iii) a Cabinet Minister to be nominated by the Chief Minister. Thus, the appointment is not based after calling for names and advertising the posts as such. It is based on the recommendation of a Committee, which can be referred to as a "High Level Committee". Further, the Committee has to consider the names of the persons, who are 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 (sub-section 5 of Section 15 of the Act). This is the material or the basis of consideration of the candidates by the Committee.
8. Sub-section (6) of Section 15 further states that, the State Chief Information Commissioner or a State 10 Information Commissioner shall not be a Member of Parliament or Member of the 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 carry on any business or pursue any profession. Therefore, it is on the basis of sub-sections (5) and (6) of Section 15 of the Act that the Committee constituted under sub-section (3) of Section 15 would have to make its recommendation to the Governor of the State.
9. While considering the above provisions, the Hon'ble Supreme Court, in the operative portion of the judgment, has opined as under:
"32. ... ... ...
(i) We declare that Sections 12(5) and 15(5) of the Act are not ultra vires the Constitution.
(ii) 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 11 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.
(iii) 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.
(iv) 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, 12 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.
(v) 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.
xxx xxx xxx "
10. Although the order on review made by the Hon'ble Supreme Court is subsequent to the impugned notifications, we do not think that would make any 13 difference to the matter as such. What is of importance in the instance case is to note that the impugned notifications have been issued based on the recommendations made by the Committee. It is not a case where the Committee has not considered the names of Respondent Nos.3 to 7. On the other hand, the argument of learned counsel for the petitioner is that the names of several other persons including certain retired judges in Annexure-D were not considered. It is not for this court to sit in judgment over the manner in which the recommendation was made by the Committee constituted under sub-section (3) of Section 15 of the Act, in the absence of there being any glaring arbitrariness or illegality being pointed out. The Committee, in its wisdom, has considered the names of various persons and has recommended the names of only Respondent Nos.3 to 7 for being appointed as the State Chief Information Commissioner and the State Information Commissioners. In a petition under Articles 226 and 227 of the Constitution, this court cannot sit as an Expert Committee over the Committee constituted under sub-14
section (3) of Section 15 of the Act and substitute its judgment in place of the recommendations made by the Committee constituted under the Act.
11. We, therefore, find no illegality in the impugned notifications. Hence, the Writ Petition is dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ckc/-