IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 65 of 2012 With CIVIL APPLICATION No. 5649 of 2012 In WRIT PETITION (PIL) No. 65 of 2012 With CIVIL APPLICATION No. 4790 of 2012 In WRIT PETITION (PIL) No. 65 of 2012 With CIVIL APPLICATION No. 6534 of 2012 In WRIT PETITION (PIL) No. 65 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= JAGTERAHO - BRANCH OF SENIOR CITIZEN'S SERVICE TRUST - PETITIONER Versus CHIEF SECRETARY GOVT. OF GUJARAT & 1 - RESPONDENT ========================================================= Appearance :
PARTY-IN-PERSON for PETITIONER : 1, MR PK JANI, GOVERNMENT PLEADER for RESPONDENT : 1 MR KAMAL TRIVEDI, AG WITH MR SHIVANG M SHAH for RESPONDENT : 2 ========================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 14/08/2012 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Public Interest Litigation, the writ-petitioner has prayed for the following reliefs:-
“a. Appoint within a period of two months seven Additional Information Commissioners; so as to have total staff of 10 Information Commissioners, including Chief Information Commissioner, in terms of sec. 15(2) of the Act.
b. Ensure that, in future necessary processing work is done in time so as to appoint new incumbent(s) on cession of the service period of the existing Commissioner(s).
c. To advertise for the post(s) of Information Commissioner(s), as and when necessary and appoint panel of Selection Committee for recommendation of candidates for appointment and select the candidates therefrom as per the provisions of the Act. And the whole process issuing advertisement to appointment of Information Commissioner should be completed in two month’s time [Ref Para 4.12].
The Chief Information Commissioner [Gujarat] to –
d. Reintroduce earlier formats of information [which prevailed as on 31st December, 2011] providing up to date information about receipt and disposal of cases month and year wise.
e. That the programme of one day camps of mass disposal of cases launched state wide being ultra vires of law is illegal and hence cases if any disposed off in such camps be re- examined as per the provisions of RTI Act, 2005.
f. Take strict actions in terms of Section 20 of the Act regarding “penalty” [Ref. Para 4.13[IV][A] and [B].
g. Personally reimburse the expenses incurred for illegally launching state wide camps for disposal of long pending cases.
h. Introduce hearing procedure through video conference.”
2. The case made out by the writ-petitioner may be summarized thus:-
2.1 The preamble of the Right To Information Act, 2005 [“the Act”] is enacted to promote transparency and accountability in the working of every public authority.
2.2 To file any complaint, it is essential to have full information and for that matter, the usage of the Act is required to be made vibrant. However, either on account of non-filling up of the vacancies of Chief Information Commissioner and/or Additional Commissioners, the proceeding under the Act has slowed down or almost stalled, with the result that the citizens continue to suffer on account of on-going corruption and consequently, corrupt people become fearless.
2.3 Therefore, it is necessary to have not only adequate posts of Information Commissioners but also to see that the posts do not remain vacant.
2.4 However, with the recent appointment of new Chief Information Commissioner, he has introduced such changes that whatsoever information was made available through the website to the public at large has been withdrawn. Earlier, on the website of the Commission, the information about the receipt, disposal and pending cases of appeals and complaints was available but the said formats earlier used have been withdrawn. Introduction of the new formats hardly gives any information which was earlier available.
2.5 The Commission has stopped giving up to date position of the pending number of cases. The Central Information Commission on its website displays details about the pending cases so as to make the appellant know about the status of his appeal. Gujarat Information Commission’s website does not give the information and also does not acknowledge or give token number of the appeals.
2.6 Recently, the Commission has issued Circular/letters to the Government Departments informing them that it proposes to arrange number of camps on different dates at difference places, when at a time, 200 appellants or the complainants would be called, to dispose of the appeals or the complaints.
2.7 The camps organized for mass disposal of RTI appeals and complaints not only make mockery of the RTI Act but are also in violation of the provisions of the Act and the Rules framed thereunder. There is no provision which permits such mass disposal of cases. The Chief Information Commissioner has no such power to introduce the procedure beyond the one laid down for disposal of appeals and complaints under the Act including what is stated in Section 18[3] of the Act.
2.8 The Chief Information Commissioner is required to function as a Court and not like an IAS bureaucrat running the State Departments for the innovative programme introduced by the fertile mind of the Chief Information Commissioner [“CIC”].
2.9 The Government of Gujarat is bent upon to see that it employs every trick to see that the information which can be sought under the Act is hardly made available to the citizens in reasonable time. With the introduction of the Act, States like U.P., Maharashtra and Punjab initially appointed 11, 6 and 9 Information Commissioners respectively whereas the Government of Gujarat appointed only 1 Chief Information Commissioner. Similarly, only in 2009, when one late Amit Jethwa, an RTI activist who was murdered opposite the gate of the Gujarat High Court filed a PIL, the government appointed two Additional Information Commissioners. In the year 2011, the post of Chief Information Commissioner remained vacant for five months and also that of Additional Information Commissioner for two months, with the result, the Commission was working with one sole Information Commissioner for months together and only after filing of a writ-petition by the present petitioner, the government filled up those two vacancies.
2.10 The Right to Information activists from across the State are frustrated because of highly unsatisfactory performance of the Commission on account of meager disposal of cases, obviously because of inadequate number of posts and unfilled vacancies for months together, despite huge arrears of work. As a result, the appeals remain undisposed of for more than five years.
2.11 As on December 2011, over 8000 cases were pending and in subsequent three months, the Commission must have received additional cases. No data except disposal of 127 cases in January 2012 and 107 cases in February 2012 is available on the website of the Commission. This makes it clear that position of arrears of cases must have far increased. The petitioner has sought up to date position vide RTI application dated March 5, 2012 but the information is awaited.
3. This application is opposed by the State-respondents by filing affidavit and the defence of the State-respondents may be summed up thus:-
3.1 In the past, the petitioner filed another Public Interest Litigation being No. 118 of 2011 and the same was disposed of by directing the State Government to take into consideration the number of pending appeals and other complaints after the period of four months from that date and to take a decision as to whether there was any necessity of appointing Additional Information Commissioner having regard to the number of pending appeals and other complaints after the expiry of four months from that date.
3.2 The State Government is of the opinion that no Additional Information Commissioners are required to be appointed as presently three Commissioners are working in full swing.
3.3 Over and above, the establishment and creation of the post in question is long-drawn procedure and for appointing persons at such important position, a detailed scrutiny is required to be undertaken. Necessary budgetary allocations are also required to be planned and made and considering the number of matters pending, the State Government is of the considered view that at present three officers are sufficient to deal with the pending cases.
3.4 The writ-petitioner has no locus standi to question the decision of the State Government which is administrative in nature and therefore, the application is liable to be dismissed.
3.5 This Court, vide its order dated May 3, 2012 directed the respondents to file an affidavit disclosing therein whether the information published in the newspaper “Gujarat Samachar” that the respondent no.2 was disposing of the matters by way of Lok Adalats, was correct or not and if it was correct, to disclose the provision of the Act under which such recourse was taken.
3.6 Pursuant to such direction, the respondent no.2 affirmed the affidavit stating therein that under the programme of special drive, no hearing of Second Appeals was made but on the basis of the reports received in certain number of cases, the Commission took decisions in the pending appeals and complaints. According to the said affidavit, the programme was arranged to arrive at voluntary settlement of appeals or complaints through the medium of dialogues between the applicants and the concerned officers. Further, the idea is to have dialogues between the parties concerned so as to have voluntary settlement of the appeals or complaints. It is further contended that if the parties did not agree to arrive at a settlement, no matter was disposed of on the basis of such special drive.
3.7 The petitioner, by filing further application, prayed for a direction upon the State-respondent to take strict action in terms of Section 20 of the Act regarding penalty.
4. Mr. Praful Desai, the President of the petitioner, appearing in person has strenuously contended before us that having regard to number of pending cases and appeals, this Court should immediately pass a direction for making appointment of at least 10 Information Officers, the maximum number created by the Statute. According to Mr. Desai, otherwise, it would take huge amount of time for disposal of the cases.
5. Mr. P.K. Jani, learned Government Pleader, appearing with Mr.
Rashesh Rindani, learned AGP on behalf of the State-respondent and Mr. Kamal B. Trivedi, learned Advocate General appearing with Mr. Shivang M. Shah, appearing on behalf of the respondent no.2- Commission have, on the other hand, opposed the aforesaid contention of Mr. Desai and submitted that the pendency of the matters arose in view of the vacant position of the officers for few months. According to them, since all the three officers have now been appointed, the pending matters would be disposed of within a short period of time. According to the learned Advocate General, out of 1047 applications received during the period between March 2012 and May 2012, 539 applications were disposed of already at the stage of admission by exparte order; in 158 cases, the applications concerned were not found fit for admission for want of necessary papers and the details and documents had been asked for. Number of applications admitted for detailed hearing by the Commission was only 296 and thus, all the complaints and appeals will be heard out within two to three months from the date of the admission. According to the learned counsel for the respondents, there is no necessity of appointing any or creation of further post of Information Officers.
5.1 Mr. Jani, learned Government Pleader further submits that this Court, sitting in jurisdiction under Article 226 of the Constitution of India cannot pass any direction for creation of post which is within the exclusive domain of the Executives and thus, the prayer made in this application cannot be entertained by this Court.
5.2 In support of his contention, Mr. Jani relied upon the decision of the Supreme Court in the case of Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another, reported in [2008] 1 SCC 683 and another decision in the case of Official Liquidator v. Dayanand and Others, reported in [2008] 10 SCC 1.
6. Therefore, the questions that arise for determination in this application is whether having regard to number of pending cases, this Court can pass any direction for creation of new posts and whether the matter under the Act can be disposed of by way of special drive camp.
7. After hearing the petitioner-in-person and the learned counsel for the respondents and after going through the affidavit filed by the respondents, we find that by way of special drive, no matter is disposed of if the applicant is not agreeable for disposal of his matter in that fashion. Only those matters where the applicants or appellants agreed for settlement of dispute or were satisfied by the information supplied, were disposed of; otherwise, if the applicants or the appellants did not want disposal of their matters by way of special drive, their matters were referred back to the concerned officer.
8. Therefore, we do not find that by special drive complained of in the application, the State-respondent has committed any act in violation of the Act or the Rules framed thereunder.
9. The next question is whether this Court can pass any direction in a writ-application for creation of further posts within the scope of RTI Act.
10. According to Section 15[2] of the Act, the State Information Commission shall consist of the State Chief Information Commissioner and such number of State Information Commissioners, not exceeding ten, as may be deemed necessary.
11. Therefore, the maximum number of State Information Commissioner fixed by the Act is eleven including the Chief Information Commissioner but no minimum number is specified and it is for the respondent authority to decide that number in accordance with the number of pending cases.
12. We do not find any substance in the contention of Mr. Jani, the learned Government Pleader, appearing on behalf of the State respondent that a citizen, who is conferred certain benefit by the the legislature by virtue of creation of a legislation, has no right to complain before a judicial forum that the Executives are not taking appropriate action for implementation of the said statutory provision. The legislature itself has specified that for enforcement of right under the Right to Information Act, 2005, the posts of Additional Information Commissioner including the Chief Information Commissioner can be appointed depending upon the deemed necessity.
13. Therefore, if it appears that the Executives have not taken any step to appoint sufficient number of Additional Information Commissioners for the purpose of giving effect to the intention of the legislature, or if it appears that insufficient number of Additional Information Commissioner has been appointed, by which it is impossible to give effect to the desire of the legislature, a beneficiary under the statute can definitely complain before a writ-court complaining inaction on the part of the Executives.
14. The decision in the case of a Divisional Manager, Aravali Golf Club & Anr. V Chand [supra] relied upon by Mr. Jani, dealt with creation and sanction of a post in the Golf Club run by Haryana Tourism Corporation. In such facts, the Supreme Court held that the Court cannot direct creation of post, as creation and sanction of post is a prerogative of the Executive or legislative authorities.
15. In the case before us, the legislative authority has already enacted a provision in the statute authorizing creation and sanction the posts not exceeding 11. Such being the position, if in a given circumstance, it appears that total number of three posts of Information Commissioner including Chief Information Commissioner is not sufficient to dispose of the number of pending cases within a near future and for not appointing further Commissioners, the purpose of the Act is frustrated, this Court, in exercise of power under Article 226 of the Constitution of India can definitely pass appropriate order.
16. Similarly, in the case of Official Liquidator v.
Dayanand and Ors., reported in [2008] 10 SCC 1, a three-judge- bench of the Supreme Court held that a writ court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts should be created or filled up by a particular mode of recruitment. According to the said decision, the power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by mala fides. Therefore, in a situation, if it appears that the legislative intention behind the enactment of the statutory provision contained in the Right to Information Act, 2005 cannot be given effect to by insufficient number
of Information Commissioners, a beneficiary under the statute has right to move a writ court for appropriate remedy.
17. We, therefore, propose to consider whether having regard to the number of pending cases and the rate of disposal, the existing three Information Commissioners including Chief Information Commissioner, are sufficient to give effect to the purpose of the Act.
18. It appears from the materials on record that in the months of March, April and May, 2012, total number of matters disposed of by three officials is 456, 703 and 625 respectively. We are further told that during the course of the hearing in the month of June, 2012, 820 matters have been disposed. Thus, the mean rate of disposal in the last four months with the existing officials is 456+ 703+625 +820= 2604/4= 651. It further appears from the affidavit dated March 23, 2012 filed by the Deputy Secretary, General Administration Department, Sachivalaya that on March 1, 2012, total number of 10060 appeals and complaints were pending whereas the said number, at the end of November, 2011 was 8729. Therefore, in the course of three months, namely, December, 2011, January, 2012 and February, 2012, the number has been increased by 1331. It appears from the Chart supplied to us that number of appeals and complaints received during the year 2011 was as follows:
Thus, total number of complaints and appeals received comes to 4458. If we divide the number by 12, average monthly filing comes to 371.5. For the disposal of 10060 matters at the rate of 651 a month it will take 10060÷651= about 16 months and in the next 16 months, 371x16=5936 new cases will be accumulated and it will take further 9 months to dispose of those 5936 cases. Similarly, in the next 9 months further 371 x 9 = 3339 cases will be filed and it will take further 5 months to dispose of those cases. Thus, the position would be normal after about 3 years.
19. Having regard to the time limit fixed by the legislature for disposal of request as provided in Section 7 of the Act which is thirty days from the date of receipt of the request, in our opinion, the appeal against refusal or wrong information cannot be kept pending for more than that period of time. If an applicant seeking information gets the desired information by preferring an appeal after the period of even three months, in most of the cases, the purpose of information will become frustrated.
20. We, therefore, find that in the facts of the present case, at least two Additional Information Commissioners should be appointed temporarily in order to give effect to the the purpose of the Act.
21. So far as the other question raised in this application as to making provision of penalty compulsory is concerned, we find that under Section 20 of the Act, power has been conferred upon the State Information Commission at the time of deciding any complaint or appeal, to impose a penalty of two hundred and fifty rupees each day till the application is received or information is furnished, subject to the condition that the total amount of such penalty shall not exceed twenty-five thousand rupees, if the State Information Commission is of the opinion that the State Public Information Officer has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section [1] of Section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed the information which was the subject of the request or obstructed in any manner in furnishing the information.
22. Therefore, the legislature has vested the power with the State Information Commissioner to decide whether a case comes within the purview of Section 20 justifying grant of penalty. What is a reasonable cause is to be decided by the concerned Information Commissioner. In such a situation, this Court cannot pass any direction for imposing the penalty mandatory by ignoring the plea of reasonable cause that may be taken.
23. We, therefore, find that the aforesaid prayer on the question of penalty is not tenable in the eye of law.
24. On consideration of the entire materials on record, we, thus, dispose of the writ application by directing the State respondent to immediately appoint two Additional Information Commissioners and to continue with such additional posts so long as the pendency of the appeals is not reduced to such a state that those can be disposed of within two months of its filing, if not earlier.
25. The writ-application is thus disposed of with the above direction to be complied with within two months from today.
26. In view of the above order passed in the main writ-application, the respective Civil Applications do not survive and are disposed of accordingly.
[BHASKAR BHATTACHARYA, C.J.]
[J.B.PARDIWALA, J.]
pirzada/-