Dear friends
Recently there were two major events took place in the RTI arena. First Chief Information Commissioner has been appointed in Uttar Pradesh and another Ms Omota Paul resigned as Information Commissioner to join as Advisor to Finance Minister. There has been discussions on the board on these issues and Mr Sandeep Jalan even suggested to challenge the appointment of Chief Information Commissioner in UP on the ground of corruption. He suggested to move to the high court for removal of corrupt Information Commissioners. Later I had a talk with Arvind and he also was very concerned about these appointments. He even suggested that we should challenge the appointment of Ms Paul. I tried to understand these cases and had made an attempt to analyse whether these appointments can be challenged or not? I came up with following opinion, that I share with you for your comments: 1. I agree with Mr Jalan's suggestion that we can move to the High Court challenging these appointments, and the judgments of Bombay High Court and Allahabad High Court helps us in moving to the High Court even we are not affected parties. These appointments can also be challenged by way of filing a Public Interest Litigation (PIL). However, I am not sure what we can ask the Court to grant us as relief. 2. The appointment of Ms. Omita Paul as Information Commissioner and again as advisor to Finance Ministry is not only bad in law, but also a bad precedence. A Information Commissioner in the Central Information Commission has been given the rank of a Supreme Court Judge and such a person enjoys the protocol of the Supreme Court Judge. Once appointed to a post equivalent to a Supreme Court Judge, how can she accept a post lower in rank? Secondly, when a person is appointed to a post, which requires him to be unbiased, he should not accept any other appointment which may give a reason to other to be bias. Actually similar arrangement exists in case of appointment of CAG. Once a person is appointed as CAG, he is debarred to take any other assignment after his retirement. This is to prevent bias of the office. But no such arrangement is in place for any other appointments including that of Chief Election Commissioners and other Election Commissioners. I am writing here about Election Commissioners because, Information Commissioners have been given same protocol as that of Election Commissioners. There was a debate once that the Chief Election Commissioner and other Information Commissioners should be debarred to join any political party/ office of profit for at least ten years after his retirement or resignation from such post. But the law governing their service conditions has not yet been amended to give effect this arrangement. As a result, almost every Election Commissioner joins a political party after his retirement. If the appointment of Ms Paul as advisor to Finance Minister goes unchallenged, it will set a wrong precedence to make the office of Information Commissioners as parking lots and also to give the existing lot of Information Commissioners an enticement to be absorbed on some other more influential and powerful post after their retirement. This, of course, is a bad precedence. I am also of the opinion that Ms Paul's appointment as Advisor to Finance Minister should be challenged, but what should be the prayers; I am still not very sure of. We can only ask for a mechanism (in line of service conditions of CAG) to ensure unbiased nature of Information Commissioners. She resigned from the post of Information Commissioner on her own, so we can not challenge it. Had she been removed from the office by a proclamation of President, then her removal could have also been an issue of litigation. 3. On the issue of appointment of Chief Information Commissioner in UP, I also agree that such an appointment can and should be challenged. There is no problem in filing a writ in High Court also. But the judgments that have been quoted in the mails referred by you are not correct ones. The first judgment (Ashwini Kumar versus State of Bihar AIR 1996 SC 2833), referred in your mail is not a correct one. In this case, both the Judges of the bench disagreed on the issue and referred the case to a larger bench. The judgment of larger bench was passed later and was reported as Ashwini Kumar versus State of Bihar AIR 1997 SC 1628). I can send soft copies of these judgments as attachments, if any member desires. On the question of basing our argument questioning appointment of UP Chief Information Commissioner on this judgment (of larger bench), I am not sure whether the court will accept our argument or not. Why I say so is because the issues discussed in this Supreme Court Judgment are somewhat different to the issues that we are raising. I first give a brief of the case decided by Supreme Court and then I will continue with my argument. In Ashwini Kumar case, some Official in Health Department made several appointment (in capacity as Chairman of a Committee constituted by Govt. of Bihar to implement TB eradication scheme) over a period of time on class III and class IV posts for implementing the scheme. He was supposed to appoint approximately 2500 persons, but he appointed more than 6000 persons on these posts without any written orders. Most of these appointees were not given appointment letters and were shuffled for payment of salaries in turns. Later due to political pressure, attempts were made to regularise these appointments and many of these appointees were regularised. At the same time, several petitions were filed in Patna High Court by other appointees for regular payment of their salaries. Deciding on all such petitions, Patna High Court appointed a high powered committee to see into the affairs of the appointments and make recommendations. (During the investigation by the committee, interestingly, all government records were destroyed in a fire, and the Committee had to make recommendations based on the depositions and submissions of the witnesses.). The Committee found these appointments illegal and based on its report, all appointments were cancelled by Government of Bihar. Such cancellation was also upheld by Patna High Court. Then this SLP was filed in Supreme Court. The division bench which heard the matter first was divided on the issue that whether notice for appointment was necessary of not. There was an office memorandum to govern these appointments and prior to appointment news paper notice was also a requirement. Justice Hansaria was of opinion that non publication of newspaper notice or no notice to employment exchange did not cause any infirmity in regularisation of the appointees. But on the other hand, Justice Ramaswami was of the opinion that the due procedure, as prescribed in the circular, is required to be followed by the government while making these appointments/ regularisation. However, such a procedure to be followed, must confirm to Article 14 and 16 (1) of the Constitution. Full bench consisting of Justice Ahmedi (CJI), Justice Majumdar and Justice Sujata Manohar later decided the matter and answered following issues: i. Whether the appointments of Class III and Class IV employees on the Tuberculosis Eradication Scheme as a part of 20-Point Programme were legal and valid. ii. Whether the confirmation of these employees was legally justified. iii. Whether principles of natural justice were violated while terminating service of all these 6000 employees appointed by Dr. Mallick. iv. What relief, if any, can be granted to the appellants. On first issue, the bench held that the initial appointments itself, were illegal, as all prescribed procedures were violated and flaunted, while making appointments. The Court, also found that the confirmation of these employees were also illegal. On the third issue, as the high powered committee appointed by Patna High Court gave opportunities to all stake holders and parties to present their cases before the Committee, Supreme Court held that the no natural justice was violated. Thus the Court directed the Government of Bihar to make fresh appointments for these posts. The Court also directed the government to follow all prescribed procedure while making appointments, including publishing notices in News papers and informing Employment Exchanges regarding such appointment. However, all previous appointees were also required to be given an additional weightage if they apply for the appointments again. In my opinion, giving news paper notice for every appointment was not warranted by this judgment. Supreme Court only emphasised that due procedure as established by the rules or governing laws must be followed. Such rules and laws should also confirm to Article 14 and 16 (4) of the Constitution of India. If Newspaper notice is necessary condition as prescribed, then it must be followed religiously. If we accept this argument to give news paper notice for every appointment, it will stretch the judgment too far. In such a situation, news paper notices will be compulsory for all appointments, even for the appointment of Prime Minister or a Judge. Court will not stretch this judgment this far. In the other case, Jai Narain Ram versus State of UP (AIR 1996 SC 703), the Supreme Court did held that the right to seek appointment to a post is a constitutional right of equality as guaranteed under article 14 read with articles 16 (1) to (4) of the Constitution of India. In this case, name of Jai Narain, a person from SC community was not recommended for appointment and in his place, a candidate from general category was appointed, although Jai Narain was selected for the post. Thus the court ordered the appointment of Jai Narain. In my opinion, this case is not the one to base our arguments upon. This case would have been useful, if the Committee to appoint Information Commission has recommended any persons' name, but the appointment was not done later. But this is not the situation so far in the case of appointment of Chief Information Commissioner in UP. In case of appointment of Information Commissioner or Chief Information Commissioner, the procedure as prescribed in RTI Act must be followed. On such a procedure, giving newspaper notice is not prescribed. However, we may challenge the appointment on the ground that the all members of the Committee recommending the name of the Commissioner were not present in the meeting for recommending the name of the person for such post. The reading of the provision (section 12 (3) and 15 (3) of the RTI Act read with the explanation under these provisions) makes it clear that presence of all three members of the Committee is compulsory. The decision may be taken by a majority of the members present, but if any one member is not present, the recommendation of the commissioner's name is invalid. Please give your valuable comments on these issues. Warmly *Divya Jyoti Jaipuriar* Please think about the environment and do not print this e-mail unless you really need to. Divya Jyoti Jaipuriar, Advocate Public Cause Research Foundation Tel/ Fax: +91 120 277 1017 Cell: +91 9868002365, +91 9971519209 Email: [email protected], [email protected] www.pcrf.in www.parivartan.com www.righttoinformation.org Visit me at www.jaipuriar.com National RTI Helpline No. +91 9718100180 Notice: The information contained in this e-mail message and/or attachment(s) to it may contain confidential or privileged information. If you are not the intended recipient, any dissemination, use, review, distribution, printing or copying of the information contained in this e-mail message and/or attachment(s) to it are strictly prohibited. If you have received this communication in error, please notify me by reply e-mail or telephone and immediately & permanently delete the message and any attachment(s). Before opening any mail and attachment(s) please check them for viruses and defect. [Non-text portions of this message have been removed] ------------------------------------ Yahoo! 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