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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, U.C. Dhyani, JJ.
Chandra Shekhar Kargeti – Petitioner
Versus
State of Uttarakhand and Others – Respondents
Writ Petition (PIL) No. 165 of 2016
Decided On : 10-01-2018
Right to Information Act - Appointment of State Chief Information Commissioner - Section 15(5), Article 51A(j) of the Constitution - Summary of Acts and Sections: Right to Information Act, 2005 (Act no. 22 of 2005), Section 15, Section 19(3), Section 27(1), Section 27(2) - The judgment discusses the appointment of the State Chief Information Commissioner in violation of the constitutional mandate and the Right to Information Act, 2005. It highlights the legal provisions under the Act, the qualifications required for the appointment, and the principles of judicial review in such appointments.
Fact of the Case:
The petitioner, a practicing Advocate and RTI activist, challenged the appointment of the State Chief Information Commissioner in violation of the constitutional mandate and the Right to Information Act, 2005. The petitioner alleged that the appointment was made in a clandestine manner to favor retired bureaucrats, contrary to the qualifications prescribed under the Act.
Finding of the Court:
The Court found that the appointment of the State Chief Information Commissioner did not violate any statutory rules or constitutional provisions. It held that the appointment was not contrary to the statutory provisions and that the appointee possessed the prescribed qualifications. The Court also emphasized the importance of fairness in such appointments.
Issues: The main issue was whether the appointment of the State Chief Information Commissioner violated the constitutional mandate and the Right to Information Act, 2005. The Court also considered the qualifications required for the appointment and the fairness in the selection process.
Ratio Decidendi: The Court's decision was based on the lack of violation of statutory rules or constitutional provisions in the appointment. It emphasized the discretion of the appointing authority in making such appointments and the importance of fairness in the selection process.
Final Decision: The writ petition (PIL) was dismissed, and the appointment of the State Chief Information Commissioner was upheld as not violative of any statutory or constitutional provisions.
U.C. Dhyani, J.
1. By means of present writ petition (PIL), the petitioner seeks following reliefs, among others:
(i) Issue a writ, order or direction in the nature of declaration or any appropriate writ and to declare the appointment in violative to the constitutional mandate and against the public at large and as well as against the objects of the Right to Information Act, 2005.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 08.11.2016 (Annexure 6 to the petition) along with its effect and operation.
2. The petitioner, as stated, is a practicing Advocate enrolled with the Bar Council of Uttarakhand, an RTI activist and a public spirited person with more than 40 odd applications and appeals filed and pending under the Right to Information Act, 2005, under his name and is actively involved in unveiling several anomalies in the Social Welfare and Education Department in the State of Uttarakhand for public good and welfare.
3. Petitioner drew the attention of this Court towards the fact that despite the pendency of a writ petition with regard to the appointment of Chief Information Commissioner and State Information Commissioners in the State of Uttarakhand, having assured the Court that they will seek instructions in the matter, have, in a clandestine manner appointed Sri Shatrughan Singh as the State Chief Information Commissioner, in order to frustrate the very purpose of filing the earlier petition.
4. It is submitted that earlier a Writ Petition (PIL) no. 158 of 2016 was filed by the petitioner highlighting the fact that the State of Uttarakhand is trying to defy the mandate of the Union Legislature and the spirit of the RTI Act by permitting a single member to preside and act on behalf of the entire State Information Commission while hearing second appeals under the Right to Information Act, 2005, and appointing Chief Information Commissioner in a most clandestine manner to favour certain officers who have retired or are due to retire in near future.
5. The question, therefore, posed in present Writ Petition (PIL) is – whether the State Government can defy the mandate of the Union Legislature and the spirit of the RTI Act by appointing Chief Information Commissioner in a most clandestine manner to favour certain officers, who have retired, or are due to retire in near future?
6. Learned counsel for the petitioner submitted that the Union of India enacted the Right to Information Act, 2005 (Act no. 22 of 2005) and the same came into force with effect from 15.06.2005. The Act is a complete code in itself with the inbuilt procedure to harmonize various conflicting interests while protecting the rights of the citizens to access to information as also the efficient operation of the Government, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. However, the right of the citizens to access to public information remains supreme which is the main guiding force of the Right to Information Act, 2005.
7. The State of Uttarakhand came into existence on 09.11.2000 after bifurcation of the State of Uttar Pradesh. After it came into existence, it became one of the first States to implement the Right to Information Act, 2005, within its territory. The State of Uttarakhand also formulated its own rules known as the Uttarakhand Right to Information Rules, 2013, in exercise of its powers under Section 27(1) and 27(2) of the Central Act. After the implementation of the Right to Information Act, 2005 (here-in-after referred to as ‘the Act’) the State of Uttarakhand constituted the Uttarakhand State Information Commission with its principal seat at Dehradun, in exercise of its powers under Section 15 of the Act. A post of State Chief Information Commissioner was created with such number of State Information Commissioners (not exceeding ten) as the State Government may deem fit.
8. As per Section 19(3) of the Act, any second appeal preferre
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