Karnataka High Court
Sri. Mohammed Wazir Ahmed (Ips) vs State Of Karnataka on 3 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 1521
Author: Alok Aradhe
Bench: Alok Aradhe
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.41484 OF 2018 (S-RES)
BETWEEN:
SRI. MOHAMMED WAZIR AHMED (IPS)
ADDL. DIRECTOR GENERAL OF POLICE
AGED ABOUT 63 YEARS
R/AT NO.2/1-1, SPENCER ROAD
FRAZER TOWN, BANGALORE-560005.
... PETITIONER
(BY MR.L.MAHESH, ADV., FOR
MR.NAVEED AHMED, ADV.,)
AND:
1. STATE OF KARNATAKA
DEPT. OF PERSONNEL & ADMINISTRATIVE REFORMS
KARNATAKA GOVERNMENT SECRETARIAT
3RD BLOCK, PODIUM BLOCK, V.V.TOWER
BANGALORE-560001
REP. BY ITS CHIEF SECRETARY.
2. SRI. S.M. SOMASHEKAR, IFS (RTD.)
S/O SRI. MANTYAIAH
AGED ABOUT 60 YEARS
R/AT. No.1316/F, 80 FEET ROAD
9TH CROSS, J.P. NAGAR, II PHASE
BANGALORE-560078.
3. SRI. K.P. MANJUNATH
S/O SRI. K. PARAMESHWARAPPA
AGED ABOUT 54 YEARS
R/AT. C.K. NAGAR
2
SHIKARIPUR POST & TALUK
SHIVAMOGGA DIST.
... RESPONDENTS
(BY MR. UDAYA HOLLA, SENIOR COUNSEL FOR
MR. RAJASHEKAR K, ADV., FOR R2 & R3
MR. VIKRAM HUILGOL, HCGP FOR R1)
----
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
NOTIFICATION DATED 7.8.2018 ISSUED BY THE RESPONDENT
VIDE ANNEXURE-A. DIRECT THE RESPONDENT TO CONSIDER
THE PROCEEDINGS OF THE COMMITTEE VIDE ANNEXURE-E DTD
23.3.2018 FOR RECOMMENDING THE SAME BEFORE THE
GOVERNOR OF KARNATAKA & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Mr. L. Mahesh, for Mr. Naveed Ahmed, Learned counsel for the petitioner.
Mr. Vikram Huilgol, High Court Government Pleader for respondent No.1.
Mr.Udaya Holla, learned Senior counsel for Mr.Rajashekar K., learned counsel for respondent Nos.2 and 3.
In this petition under Article 226 of the Constitution of India, the petitioner seeks a writ of 3 certiorari for quashment of impugned notification dated 07.08.2018 as well as a writ of mandamus directing the respondent to consider the proceedings of the selection committee dated 23.03.2018 for recommending the same before the Governor of Karnataka. In order to appreciate the petitioner's grievance, relevant facts need mention, which are stated hereinafter:
2. The petitioner is a retired Additional Director General of Police. The respondent issued a notification dated 05.02.2018 for appointment of State Information Commissioners in Karnataka Information Commission.
Vide an order dated 22.12.2015, a committee was constituted comprising Chief Minister, Leader of Opposition and Law Minister. The meeting of the aforesaid Committee was scheduled on 08.03.2018 and 23.03.2018, which was not attended by Leader of Opposition. In the meeting held on 23.03.2018, which was attended only by the Chief Minister and Law Minister, it was decided to recommend the name of the 4 petitioner for the post of Information Commissioner. In the aforesaid meeting, it was decided to take approval of the Leader of Opposition by circulating the proceeding. However, the leader of opposition did not accord his consent to the appointment of the petitioner. Thereupon the impugned notification dated 05.02.2018 was withdrawn and another notification dated 07.08.2018 was issued by which applications were invited for the posts of Information Commissioners and the Chief Information Commissioners. In the aforesaid factual background, the petitioner has approached this court.
3. Learned counsel for the petitioner submitted that no reasons were assigned by the State Government for unilateral withdrawal of notification dated 05.02.2018. It is further submitted that the impugned action of the respondents in withdrawing the notification dated 05.02.2018 is per se arbitrary. It is also pointed out that the name of the petitioner was recommended 5 by the Committee and a bench of this court by an interim order dated 26.03.2019 has kept one post of State Information Commissioner vacant. It is also submitted that recording of reasons is principle of natural justice and every order must be supported by reasons in writing as it ensures transparency and fairness in decision making process. In support of aforesaid submissions, reliance has been placed on decision of Supreme Court in 'SECRETARY AND CURATOR, VICTORIA MEMORIAL HALL V. HOWRAH GANATANTRIK NAGRIK SAMITY', 2010 (3) SCC 732 'DOCTOR T.P SEN KUMAR IPS VS. UNION OF INDIA AND OTHERS', CIVIL APPEAL NO.5227/2017 DATED 24.04.2017 and division bench decision of Madras High Court in 'V.MADHAV VS.
GOVERNMENT OF TAMIL NADU', DATED 25.11.2011.
4. On the other hand, learned Senior counsel for respondent Nos.2 and 3 submitted that the meeting 6 of the selection committee held on 23.03.2018 was attended only by Chief Minster and Minister for Law and the Leader of Opposition was absent. Thereupon a recommendation was made in favour of the petitioner for his appointment as State Information Commissioner and decision was taken to obtain the approval of Leader Of Opposition by circulation. However, the leader of Opposition did not accord his approval. It is further submitted that since, there was no unanimity with regard to recommendation in favour of the petitioner; therefore, the subsequent notification was issued on 07.08.2018. In this connection, attention of this court has been invited to communication dated 02.04.2018 sent by Additional Chief Secretary to Government, Department of Personnel and Administrative Reforms to Principal Secretary to the Chief Minister. It is also urged that no right has accrued in favour of the petitioner. In support of his submissions, reliance has been placed on Division Bench decision of Kerala High Court in 'C.V.MOHAN KUMAR VS. UNIVERSITY OF KERALA 7 AND OTHERS', (2008) 1 KLJ 309. learned counsel for the respondent No.1 has adopted the submissions of the learned Senior counsel for respondent Nos.2 and 3.
5. I have considered the submissions made by learned counsel on both the sides and have perused the record. It is pertinent to note that neither the Act nor the Rules provide for quorum. In the absence of prescription as to the quorum being prescribed either under the relevant Act or the Rules, the Committee can function only if all of its members are available and sitting. I concur with the view taken by the Division Bench of the Kerala High Court of C.V.MOHAN KUMAR supra in this regard.
6. In the instant case, the relevant extract of the proceeding of the Committee constituted under Section 15(3) of the Right to Information Act, 2005 reads as under:
"The committee noted the
absence of Sri.Jagadish Shettar,
8
Leader of Opposition, Karnataka
Legislative Assembly in the meeting.
It was decided that his approval to the proceedings may be obtained by circulating the proceedings."
7. Admittedly, the leader of Opposition did not agree with the recommendation made by remaining two members of the Committee and did not sign the proceeding of the committee , which is evident from the communication dated 02.04.2018 i.e., the letter sent by Additional Chief Secretary to Government, Department of Personnel and Administrative Reforms to Principal Secretary to the Chief Minister. Thus, the quorum of the Committee was not complete and therefore, a decision was taken to issue a fresh notification. The aforesaid action of the respondent by no stretch of imagination can be termed as arbitrary or irrational.
8. For yet another reason no relief can be granted to the petitioner. The order of mandamus is, in form, a command issuing from the High Court and 9 directed to any person, Corporation or inferior tribunal, requiring him or it to do some particular thing specified in it which pertains to his or its office and is in the nature of public duty. [See: Halsbury Laws of England 4th Edition Volume 11 Page 802]. A writ of mandamus is available to secure performance of judicial, statutory and executive duties of a public nature which includes compelling for bearance as well as compelling action. A writ of mandamus is issued where legal public duty is clear, unqualified and specific and at the instance of a person who establishes that he has a legal right to enforce performance of a public duty. Such right or duty may not be constitutional and may founded on statute or common law but relief by way of mandamus will be available only when legal right or petitioner and legal duty of respondent is of public nature.
9. The petitioner admittedly has no legally enforceable right to be appointed for the post of State 10 Information Commissioner. Only a recommendation was made in his favour, by a Committee whose quorum was incomplete. Therefore, no relief as prayed for by the petitioner can be granted.
In the result I do not find any merit in this petition. The same fails and is hereby dismissed.
Sd/-
JUDGE SS