Big question mark on new appointments of state information commissioners in Maharashtra

Move to challenge administrative tribunal’s order in the High Court has put a big question mark on new appointments of state information commissioners in Maharashtra.In an interesting development Government of Maharashtra who had opposed the petition on appointments of State information commissioners in the High court stating that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal (MAT) for the relief as prayed for in the writ petition, has now filed a writ petition ( 11623/2015) in high court stating MAT has no jurisdiction to try such cases.

The Bombay High Court

Advocate John S Kharat from Ahmednagar had filed a writ petition ( No 4477 /2011) in Aurangabad bench of Mumbai high court challenging arbitrary appointments of then State information commissioners (SIC) P. W. Patil, M. H Shaha and D. B Deshpande. Then Assistant Government Pleader (AGP) argued that the petitioner had remedy of filing original application before the Maharashtra Administrative Tribunal for the relief as prayed for in the writ petition. Having confronted with this, learned counsel for the petitioner withdrew the writ petition with liberty to the petitioner to file original application before the MAT.

Accordingly Kharat filed original application ( 469/2011) in Aurangabad bench of MAT.It was transferred to MAT Mumbai ( 823/2011). MAT on 16 April 2015 delivered its judgement and passed severe strictures on procedure of SIC appointments. MAT had observed   that while scouting for the said posts, the High Powered Committee that recommends candidate for posts of SIC to the Governor, has to make sure that the area of resources is sufficiently large so as to attract and ensure the appointment of the best talent for these important posts. However wider source from the fields of law, science and technology etc. was apparently not taken into account with the kind of seriousness by the committee

Maharashtra Administrative Tribunal

Citing the recommendations of the Supreme Court in the Namit Sharma (review) case, the Tribunal had also observed that there was no material to show as to what the state of affairs was with regard to the 68 candidates other than the 4 selected for posts of SIC’s. MAT had criticized Government   for not framing any rules for appointment of SIC’s, and  had also observed that there was no advertisement as such. There was no exact date on which the process commenced and there was no exact preform of application.

MAT had given following direction to Government of Maharashtra

 • There is an urgent need to make rules consistent with the provisions of Right To Information Act, 2005 especially Section 15 thereof for selections to the posts of Chief Information Commissioner and Information Commissioners. It will be desirable to have the rules in place much before the next selection is taken up for consideration by the High Powered Committee under the Information act. The directions of the Hon’ble Supreme Court in Namit Sharma’s case (reviews judgment) be carefully perused and implemented.

• It will be within the discretion of the Committee to fix the eligibility criteria for the said posts. But there again, the provisions of the Information Act may be strictly followed and it be ensured that the legislative mandate to have eminent persons from all the various disciplines like Law, Science and Technology etc should be given full scope to complete. The criteria should be duly publicised well in advance before the selection process begins. Sufficiency and mode of publicity of the said criteria will be within the discretion of the Committee

• The selection process must be transparent and definitive without any scope for apprehension of partiality, favouritism and such other vices. There must be a definitive time frame from the commencement of the said process till its conclusion without submission of the recommendations to His Excellency, the Governor. The details of the course of action in this behalf are left to the discretion of the committee but the following measures can be commended for consideration and effectuation: i)An officer of senior rank must be appointed to perform the duties akin to what in relation to several such committees is called Member Secretary…; The Committee may make sure that a proper schedule is appointed for the selection process…the duration of time between the date of commencement of distribution and the last date of its receipt by the Officer may not be more than four to six weeks…

• The Chief Secretary, Government of Maharashtra is requested to bring this judgment of the notice of the Hon’ble Chairman and Hon’ble members of the Committee for information and action. The Chief Secretary of the Government of Maharashtra may report compliance herewith within eight weeks from today (16 April 2015).

However instead of complying with the directions of the MAT, Government of Maharashtra has preferred writ in the High Court challenging those.Meanwhile all the SIC's whose appointments were challenged are either retired ,resigned or removed from the services long back. Hence any order in this regard will not have any effect on then appointments. But complying with Supreme court or MAT  order in further appointments may make some positive effect . 

Now whether MAT has such jurisdiction or not will be decided in the high court.But meanwhile there is big question mark on appointments of new information commissioners in Maharashtra.Regardless of pending the said writ, Government of Maharashtra may fill the vacant SIC posts with prior consent of the High Court , but will they do that? 

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Why Governments are reluctant to follow Supreme Court Orders ?

In Namit Sharma judgement, Supreme Court of India had directed all governments that the selection process of information commissions should be commenced at least three months prior to the occurrence of vacancy. As far as Maharashtra is concerned, it does not seem to obey supreme courts order. In Maharashtra, there are total eight posts of information commissioners including chief information commissioner, of which four are vacant and fifth post is going to be vacant on 17 July, i.e. after 17 July, there will be five posts vacant. Forget about starting process of filling post before vacancy, government of Maharashtra has not bothered to fill even vacant posts.

That is how the government of Maharashtra honors Supreme Court orders. The history is matters under which it was possible to put hurdles before the RTI applicants and appellants Government of Maharashtra had acted promptly But stealthily. ( remember amendments to The Maharashtra RTI rules)  .But when it comes to fill the vacancies or do something for the benefit of RTI or in the public interest it doesn't even bother to disobey supreme court.

Recently government of Maharashtra stealthily tried to frame appeal procedure rules for state information commission. When I learnt about this, I wrote about it on this blog. After that, lot of RTI activists and journalists called me about authenticity of these draft rules and asked why government is trying to do this in such a hurry? Moreover, why they have not made it public before they pass it ?. The answer of this also lies in Namit Sharma judgement that was delivered by division bench of supreme me court of India on 13 September 2013  and subsequently challenged by some renowned RTI activists. In addition, we have experienced in the past that why government doesn't make such things public? The answer is simple, because if they make it public then there will be burden to make those people friendly.

In this judgement, SC had directed 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 (i.e. from 13 September 2013 ).That may be the reason that government of Maharashtra  tried to frame those infamous appeal procedure rules in hurry and stealthily.

The next two orders i.e. (1) 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’. and (2) 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, Were stayed by the supreme court in review petition . However, there was no stay for any other orders even then most of the governments have not followed that.

Supreme Court had also directed that 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 before recorded. Only DoPT has has published advertisement for appointment of information commissions. No other government seems to be following this order.

More difficult days ahead for Right To Information

Last week Supreme Court stayed some part of order given in namit Sharma case. Though SC declined to give stay on entire judgement, it stayed some part of it. However, this stay has increased more confusion.

 Last year Supreme Court in its order given in namit sharma case said, "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. 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."

 And it had also said that "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”.

After the judgement in namit Sharma case, union government had filed review petition. Mrs.Aruna Roy and Shailesh Gandhi had intervened in this case and requested for the stay on judgement. SC gave stay on above two points but it also directed that wherever Chief Information Commissioner is of the opinion that intricate questions of law will have to be decided in a matter coming before the Information Commissioners, he will ensure that the matter is heard by information commissioner who has knowledge and experience in the field of Law.

This order has created huge confusion. Now question is, how will Chief Information Commissioner (CIC) decide that there is an intricate question of law in a matter that is before the Information Commissioners (IC) ? How will he find it out ?, What rights he has got under RTI ?, As  both the  IC and CIC are equal in status , there is no provision in RTI to  communicate anything about nature of appeal to CIC.And how to find out or who and how will decide intricate questions of Law?. Some times very small points become very big question of law and some times even a big intricate question of law  may not come to light due to lack of knowledge. As well as for those IC's having nature of shifting the responsibility on others shoulders, this is excellent opportunity to transfer the appeals to another bench on the so-called ground of involving intricate question of law.

 Next point is how the member having knowledge and experience in the field of Law will work ?. Will he work with another member as per the cases or, will he hear all the cases transferred by all the information commissioners? Another fear is if unintentionally or deliberately IC's  start to transfer the appeals pretending it involves  intricate question of law, imagine  what will be the scenario? .Or it may happen that appellant dissatisfied with the decision of IC may approach the CIC on the grounds that appeal involves intricate question of law. What will CIC do? Because he does not have any right to here or decide anything on appeal decided by IC and Supreme Court says CIC will ensure that a Bench of which hears such matter at least one member has knowledge and experience in the field of Law.