The right to seek review of an order is a substantive right of the petitioner and is not defeated by the repeal of the rules conferring such right.

Janak Raj Kotwal, J.

1. Heard learned counsel for the parties.

2. Legislature of the State of Jammu and Kashmir has enacted the Jammu and Kashmir Right to Information Act, 2009 (hereinafter the Act) with the object of setting out the regime of Right to Information to the people of the State to secure access to information under the control of public authorities. Section 24 of the Act delegates power to the State Government to make rules for carrying out the provisions of the Act in general and regarding some matters in particular. In exercise of its delegated power under section 24 of the Act, the State Government initially framed rules called the Jammu and Kashmir Right to Information Rules, 2009. These Rules, however, were repealed and the State Government came out with the Jammu and Kashmir Right to Information Rules, 2010 (for short the Rules of 2010). The Rules of 2010 have also been repealed and the State Government has now framed the Jammu and Kashmir Right to Information Rules, 2012 (for short the Rules of 2012), which came into force with effect from 30.08.2012. Rule 13 of the Rules of 2012 repeals the Rules of 2010. Rule 13 reads:

"13. Repeal and saving.-(1) The Jammu and Kashmir Right to Information Rules, 2010 are hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or any order made or any direction issued thereunder before such repeal shall be deemed to have been done, taken, made or issued, as the case may be, under the corresponding provisions of these rules."

3. Section 17 of the Act inter alia empowers the State Information Commission constituted under the Act to impose penalty on a Public Information Officer (PIO) designated under the Act for delay in providing information under the Act to an information seeker. Sub Rules (4) and (5) of the Rule 36 of the Rules of 2010 empowered the State Information Commission to review an order passed by it imposing penalty on a PIO. Sub Rules (4) and (5) read:

"(4) Notwithstanding anything contained in this rule, the affected Public Information Officer may file a review before the Commission for revision/waiver of the penalty on the basis of facts that could not be brought to the notice of the Commission at the time of hearing of the appeal.

(5) If the Commission, following a review of the penalty order, cancels the order and directs restoration/refund of the penalty amount which might have been deducted from the salary of the officer or the pension of a pensioner, the controller of accounts or any such other officers of the public authority shall restore/refund the deducted amount to the credit of the officer or the pensioner, as the case may be."

4. No provision similar to Rule 36 of the Rules of 2010 has been provided in the Rules of 2012. To say precisely, power of review available to the State Information Commission under Rules (4) and (5) of the Rules of 2010 ceases to exist with effect from 30.08.2012 with the repeal of the said Rules by Rule 13 of the Rules of 2012 and so does the right to seek the review.

5. The petitioner at the relevant time was posted as the Executive Engineer, PHE (Mech.) Procurement, Division, Jammu and had been designated as PIO under the Act. On a complaint filed by an information seeker, namely, Dineshwar Singh Jamwal, the State Information Commission, herein respondent, vide its order dated 30.07.2012 imposed penalty of Rs. 25,000/ on the petitioner and by the same order granted him liberty to file a review application for review of the order under Sub Rule (4) of Rule 36 of the Rules of 2010. The petitioner filed the review application on 28.08.2012. As the review application was not decided, the petitioner filed this writ petition seeking mandamus directing respondent to dispose of his review application. In its reply to the writ petition, the respondent has taken the stand that it lacks jurisdiction to decide the review application due to coming into force the Rules of 2012 and repeal of the Rules of 2