(1) Heard Shri Vivek Shukla, learned Additional Chief Standing Counsel for the petitioner and Shri Shikhar Anand, who appears for the Respondent no.2 and also perused the counter affidavit filed by the Respondent no.1, Qamar Hassan Khan, Head Constable who had sought information from the petitioners which allegedly was not given to him and therefore, he filed Second Appeal under Section 19 of the Right to Information Act (hereinafter referred as Act, 2005).
(2) A preliminary objection has been raised on behalf of the Respondent no.2, by Shri Shikhar Anand, that this writ petition has been filed by the Board through its Member Secretary and the State Public Information Officer, U.P. Police Recruitment & Promotion Board, Lucknow, whereas the orders impugned have been passed by the State Information Commission against the Officers in their personal capacity imposing penalty upon them for willfully withholding information from the applicant.
(3) He has referred to an order passed by a Co-ordinate Bench of this Court in Writ C No.22935 of 2019 (Public Service Commission U.P. and Another Vs. Chief State Information Commissioner U.P. and Another) decided on 18.07.2019. In the aforesaid judgment which is in the nature of an order, a preliminary objection was taken regarding maintainability of the petition by the petitioners in their official capacity. This Court had allowed the withdrawal of the writ petition giving liberty to the aggrieved Officers to assail the order passed by the Information Commissioner by way of a fresh petition.
(4) This Court has perused the orders impugned, it is apparent from the same filed as Annexure Nos.1 to 5 to the writ petition that the Respondent no.2 entertained the Second Appeal filed by the Respondent no.1 and passed various orders at various stages of hearing insisting on giving information which was otherwise exempted under Section 8 (1) (e) of the Act and also proposing to impose cost of Rs.250/- per day for not providing the said information subject to a maximum of Rs.25,000/-. The last order was passed on 25.04.2016 filed as Annexure No.1 to the writ petition which is only a notice not final order as after proposing to impose such cost on the Public Information Officer, The Public Information Officer has been given liberty to give information as required by the Respondent no.1 within 15 days through Registered Post and then to report the same to the Respondent no.2. In case of failure to do so, the Respondent no.2 would issue recovery orders thereafter.
(5) It is apparent that the order dated 25.04.2016 expresses a prima facie case of the Respondent no.2 for imposing cost on failure of the petitioner no.2 to give information as required by the applicant. However, no recovery orders have been passed, therefore, it cannot be said that any particular individual Officer is aggrieved by proposed orders which are yet to be passed. The writ petition was filed by the petitioners challenging the order dated 30.12.2015, 03.02.2016, 09.02.2016, 16.03.2016 and 25.04.2016 passed by the Respondent no.2 which showed a prima facie inclination of the Respondent no.2 to proceed further in the matter which had already stood closed by its own order dated 19.10.2015. There was no application for recall preferred by the Respondent no.1 in terms of Rule 12 (1) of the U.P. Right to Information Act, 2015 notified on 03.12.2015.
(6) This writ petition on being entertained, this Court had passed an interim order staying the operation of the last order passed by the Respondent no.2 dated 25.04.2016 till the next date of listing. The time bound interim order has continued since then, therefore, no further proceedings have taken place before the Respondent no.2. No recovery order has been passed as a consequence.
(7) Shri Vivek Shukla while apprising this Court of all the facts of the case relevant for the decisions of this writ petition has submitted that the Respondent no.1 Shri Qamar Hassan Khan, Head Constable in U.P. Police had taken part in the Police Rankers Examinations held in 2011 for promotion to the post of Sub-Inspector, Civil Police. Since he had crossed the age of 40 years he could not be promoted to the post of Sub-Inspector in the first instance. A writ petition was preferred by him and after long litigation which culminated in the result of the Examination of 2011 being declared, the matter went up to the Hon'ble Supreme Court where certain age relaxation was given. On the basis of the interim orders passed by the Supreme Court, Shri Qamar Hassan Khan was also promoted to the post of Sub-Inspector.
(8) During the pendency of such litigation before the Supreme Court Shri Qamar Hassan Khan filed an application seeking information regarding the details of all 3358 candidates who had succeeded in the Rankers Examination of 2011 including their Roll Numbers and Marks obtained by them. Such application was filed by him under the Act of 2005 on 20.08.2014, the Public Information Officer replied on 09.09.2014 saying that the information sought by the applicant was covered under 8 (1) (d) of the Act, 2005 as it was withheld by the Board in a fiduciary capacity with respect to all candidates who had appeared in the Rankers Examination and there was no overriding public interest in disclosing such information to the applicant.
(9) Aggrieved by the refusal of the Public Information Officer to give all information, the Respondent no.1 preferred Special Appeal on 09.09.2014 before the Appellate Officer of the Board. The Appellate Officer considered the Appeal and passed an order on 03.11.2014 mentioning therein that the candidates for the Rankers Examination had not yet been finalized as in pursuance of the Writ Petition No.3918 of 2011, (Constable Vimal and Others Vs. State of U.P. and Others) and the High Court orders dated 03.08.2012, certain candidates had approached the Supreme Court in Civil Appeal No.6547 of 2014 Anil Kumar and Others Vs. State of U.P. and Others and action was being taken by the Board in pursuance of the order passed by the Supreme Court on 18.07.2014. The proceedings were still pending before the Supreme Court and they had not been finalized. Therefore, in the midst of such proceedings, information regarding the marks obtained by all candidates could be given to the applicant.
(10) The applicant thereafter filed a Second Appeal under Section 19 (3) of the Act before the Respondent no.2.
(11) In the meantime, the Supreme Court also passed an order in Civil Appeal Nos.25377-25378 of 2014 on 10.08.2015 to the effect that no Court shall entertain any grievance relating to the Ranker's selections of 2011. It had also observed that in pursuance of the order passed by the Supreme Court, no candidate who has already stood selected, or had been sent for training, shall be depromoted.
(12) The Second Appeal filed by the Respondent no.1 on 19.11.2014 was entertained and notice was issued on 04.08.2015 (after a lapse of more than eight months) fixing a date on 19.08.2015 for hearing and on 19.08.2015 it was informed to the Commission that the list of successful candidates had already been made available to the applicant and a copy of the select list was also filed before the Commission.
(13) The Commission in its order dated 19.10.2015 recorded its satisfaction with regard to such list submitted before it in the reply of the petitioners and gave a finding to the effect that the information sought for by the applicant had been given by the Department and therefore no cause survived and disposed off the Second Appeal and consigned the matter to the record.
(14) It appears that after the disposal of the matter, Respondent no.2 again preferred the same complaint dated 19.11.2014 before the State Information Commission and notice was issued afresh on 22.12.2015.
(15) It has been submitted by the learned counsel for the petitioners that under the Right to Information Act, 2005, there is no provision under which the Commission can reopen a case or review its earlier order, which had been rendered by it on 19.10.2015. Learned counsel for the State Information Commission has pointed out that under the Rules of 2015 a recall application can be entertained under Rule 12 (i) on ground of procedural defects.
The relevant extracts of Rule 12 of the Rules is being quoted hereinbelow:-
"12. (1) The Commission, on an application submitted by any party aggrieved by an order of the Commission, may recall its order on the ground of any of the following procedural defects:
(i) The order was passed by the Commission without hearing the applicant for no fault of his; or
(ii) The Commission heard and decided the matter on a date other than the one fixed for hearing of the same and the applicant could not attend the hearing for no fault of his.
(2) The applicant may submit recall application within thirty days from the date of knowledge of the order of the Commission.
(3) If the Commission is of the view that prima facie there is no merit in the application, it may reject the recall application.
(4) If the Commission is of the view that the matter requires hearing then before passing any order on such recall application, the Commission shall issue notice to all parties to the proceeding to give them an opportunity of being heard."
(16) It is apparent from a perusal of such Rule that firstly an application should be made by the applicant for recall. The application should contain the details of reasons for non-appearance of the applicant on the date fixed by the Commission. Such application should be made within 30 days from the date of knowledge of the order passed by the Commission and if the Commission is of the view that the matter requires hearing then before passing the order on such recall application, Commission shall issue notice to all parties to the proceedings to give them an opportunity being heard.
(17) This Court finds from a perusal of the counter affidavit filed by the Respondent no.1 that no notice was issued under Rule 12 (iv) by the Commission also no application for recall was ever moved. In its order dated 19.10.2015 passed by the Commission, it had referred to several dates being fixed on which the applicant had failed to appear before the Commission. It had also observed that perhaps the applicant being satisfied with the information provided by the Department, did not wish to pursue the matter further. Nevertheless, it compared the information that was given by the Department with the application filed for seeking information by the applicant, and came to the conclusion that all required information had been provided and no further information needed to be given. It thereafter closed the matter on 19.10.2015 and consigned the case to the record. This order being passed on the merits of the Second Appeal, it could not have been recalled except for the situation where an application for recall may have been moved by the Respondent No.1 under Rule 12 (1) of the Rule and notice on recall application was issued thereafter.
(18) All orders passed by the Commission after said closure of the matter by it on merits have been rendered without jurisdiction and are thus set aside.
(19) The writ petition stands allowed. No order as to costs.
Order Date :- 28.8.2019 PAL