The appointment of Kerala's State Chief Information Commissioner was challenged for alleged bias, lack of transparency and disqualification while serving as Chief Secretary. The Court rejected these challenges and dismissed the petition, finding no arbitrariness, illegality or other legal infirmity warranting interference.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942 W.P.(C) NO. 5520 OF 2021
PETITIONER:
M.L. RAVEENDRANATH, AGED 64 YEARS, S/O. MADHAVAN PILLAI, POOMKOTTUVILA, CHADAYAMANGALAM P.O., CHADAYAMANGALAM VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT-691534. BY ADVS. SRI.K.SHAJ SRI.RENJIT GEORGE SRI.JOSSY S. KATTUR SRI.C.IJLAL SMT.UMMUL FIDA SRI.JOSEPH MARY DAS SRI.BHARAT VIJAY P. SRI.MAJID MUHAMMED K. SRI.ANANDU R. SRI.ARUL K.S SMT.NEERAJA GOWRI A.S SMT.GAYATHRI SATHYAN SRI.ARUN CHAND
RESPONDENTS:
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16 ARUNIMA V.K., SUDARSANAM, P.O.MOKERI, PATHIPPALAM, KANNUR-670692.
BY ADV SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL
R1 BY SENIOR GOVERNMENT PLEADER SRI. SUMAN CHAKRAVARTHY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Dated this the 18th day of March, 2021
JUDGMENT
S. MANIKUMAR, C.J.
Instant public interest writ petition is filed by the petitioner aggrieved by the manner in which Dr. Vishwas Mehta, IAS, respondent No.3, is selected and appointed as the Chief Information Commissioner of Kerala. Grievance of the writ petitioner is that the 2nd respondent, Committee for Appointment of Information Commissioners in Kerala, is not empowered to adopt a procedure of their choice for selection and to make appointment to statutory posts. Therefore, appointment of the Chief Information Commissioner of Kerala has to be done in a fair and reasonable manner.
(i) To issue a writ of certiorari or any other appropriate writ, order or direction setting aside the approval accorded to the recommendation of the third respondent as the State Chief Information Commissioner by the second respondent.
(ii) To call for the records leading to the submission of recommendation to the Hon'ble Governor of Kerala and quash the selection and appointment of the third respondent as the State Chief Information Commissioner.
(iii) To issue a writ of mandamus or any other appropriate writ, order or direction to the second respondent to submit
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recommendation to the Hon'ble Governor of Kerala as per Right to Information Act, 2005 abiding by the guidelines laid down in Namit Sharma's case.
A) The 2nd respondent is not empowered to adopt a procedure of their choice for selection to appoint to statutory posts. The statutory mandates and guidelines laid down by the Hon'ble Apex Court are to be scrupulously followed in the selection process to ensure fairness. If any additional process is resorted to for appointment, the applicants have a right to know the
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process followed. The process of selection adopted by the 2nd respondent has not been transparent. Non participation of the party respondent in the meeting vitiates the process.
B) The 3rd respondent occupying the office of 1st respondent issued Exhibit P1 inviting applications for appointment, and on completion of the selection process, the 3rd respondent was appointed. The fact that the process of selection was initiated by the 3rd respondent for him to be appointed at the culmination of the process smacks of unfair procedure of appointment. The process of selection for the post had been conducted with the active participation of the 3rd respondent himself occupying the post of the 1st respondent. The apparent conflict of interest was lost sight of while the recommendation was finalized by the 2nd respondent.
C) The 3rd respondent ought to have abstained from the office of the 1st respondent during the course of selection process and abstained from issuing the notification if he has been desirous of applying for the post. Since the process was carried out while he was in the office, the process is deemed as vitiated by undue influence, in the light of the maxim ' Nemo debet esse judex propria causa'.
D) The Hon'ble Apex Court in A.K. Kraipak and Ors v. Union of India (UOI) and Ors. [(1969) 2 SCC 262]. while setting aside the selection of a person, who was a member of the selection committee, even though he did not participate in the process of selection, held as under:
"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.
The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case ( Nemo debet esse
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judex propria causa ) and (2) no decision shall be given against a party without affording him a reasonable hearing ( audi alteram partem ).”
E) It has been observed by the Hon'ble Apex Court that the principles of natural justice cannot be restricted to judicial enquiries but administrative actions are also required to be done in compliance with the two components of natural justice. The maxim nemo debet esse judex propria causa requires no one to be a Judge of himself. The principle is the cornerstone of fairness as it removes conflict of interest in the decision making.
F) The action of the 2nd respondent in not requiring preparation of a panel for the selection process is arbitrary and illegal. The recommendation for appointment as State Chief Information Commissioner has to be made after effective deliberations in view of the panel prepared. The Hon'ble Apex Court has clarified the practice to be adopted for appointment to the Information Commissions in Union India and another v Nimit Sharma [2013 KHC 4708] as follows:
"The appointment of the Information Officers at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore-recorded.
The panel so prepared by the DoPT or the concerned ministry ought to be placed before the High-Powered Committee in terms of Section 12(3) for final recommendation to the President of India. Needless to repeat that the High Powered Committee and the Centre and State levels are expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.”
While considering the case, the Hon'ble Apex Court has also reiterated the previous dictum:
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"Empanelling the names proposed should be at least three times the number of vacancies existing in the Commission and the names so empanelled.”
G) Democracy contemplates that selections to a post or office should be free and fair, so that the appointee is competent to discharge the duties. Free and fair selection is the very foundation of transparency and reasonableness. The selection process should not only be fairly and properly held, but should also seem to be held to inspire confidence in the minds of the members of the public.
H) The 2nd respondent committee has a right to give its independent, unbiased and considered opinion in respect of each candidate appearing before it. The sanctity of the process of selection in any case needs to be maintained and that it would be a travesty of the selection process if the transparency in the selection process were not exhibited/seen from the record maintained by the committee.
I) In the present case, there is no transparency in the manner where a person with a tarnished record in the Right to Information realm has been selected to an institution established to ensure dissemination of information and access to information. The institutional integrity of the State Information Commission has been compromised by appointing the 4th respondent to the post of State Chief Information Commissioner. In Centre for PIL and another v Union of India and another (Writ Petition (Civil) No.348/2010), wherein the appointment of Central Vigilance Commissioner was under challenge, the Hon'ble Apex Court held as under:
“When institutional integrity is in question, the touchstone should be 'public interest' which has got to be taken into consideration by the HPC and in such cases, the HPC may not insist on proof. .............
….......Thus, we are concerned with the institution and its integrity including institutional competence and functioning and not the
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desirability of the candidate alone who is going to be the Central Vigilance Commissioner, though personal integrity is an important quality. It is the independence and impartiality of the institutions like CVC which has to be maintained and preserved in larger interest of the rule of law.”
J) The 2nd respondent was under an obligation to require empanelment of the candidates in a transparent manner in complete compliance with the guidelines laid down in Namit Sharma's case (supra). Any deviation from the procedure contemplated therein results in unfairness and arbitrariness. The act of respondent No.2 has violated the right to equality of petitioner guaranteed under Article 14 of the Constitution.
K) The 2nd respondent is mandated to notify the public, especially the applicants, about the process which was resorted to for selection. The failure on the part of the 2nd respondent to make the public aware of the process leads to arbitrariness. There are no reasonable methods adopted by the 2nd respondent. The list was compiled in a haphazard manner.
M) It has been observed by the Hon'ble Apex Court that the principles of natural justice cannot be restricted to judicial enquiries, but administrative actions are also required to be done, in compliance with the two components of natural justice. The maxim nemo debet esse judex propria causa requires no one to be a judge of himself. The principle is the cornerstone of fairness as it removes conflict of interest in the decision making. The apparent bias in selection of the 3rd respondent in the case vitiates the process and the appointment is liable to be set aside.
filed on behalf of the 1st respondent/State of Kerala, wherein it is stated that the process of selection of Dr. Vishwas Mehta as the Chief Information Commissioner, was absolutely transparent. Relevant portion of the counter affidavit reads thus:
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“2. Since the term of Sri. Vinson M. Paul as the State Chief Information Commissioner was to expire on 22.11.2020, Government issued Notification No: Cdn5/37/2020/GAD dated 12.11.2020 (marked as Ext.P1 in the writ petition) inviting applications to fill up the vacancy of State Chief Information Commissioner. The notification was published in Government Website and daily newspapers.
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(i) The Chief Minister who shall be the Chairman of the Committee,
(ii) The Leader of Opposition in the Legislative Assembly,
(iii) A Cabinet Minister to be nominated by the Chief Minister.
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along with the copy of their applications, including defective applications, and the video conference link were made available to the members of the Committee, in advance, the receipt of which have been acknowledged by their Private Secretaries. Details of the e-mail thus sent to the Leader of the Opposition, dated 03.02.2021, is produced herewith as Annexure-A. Similarly, the Note evidencing the forwarding of the details of the applicants alongwith the copies of their applications to the Chairman and Members of the Committee, is produced herewith as Annexure-B. True copy relevant page of the despatch register signed by the Private Secretary of the Leader of the Opposition, evidencing receipt of the above, is produced herewith as Annexure-C.
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Commissioner, which was notified as GO(MS) No.52/2021/GAD dated 13.02 2021. Copy of the said G.O., published in the Kerala Gazette Extraordinary dated 26.02.2021, is produced as Annexure-E. This was communicated to Dr. Vishwas Mehta by the Principal Secretary, General Administration Department, by his letter dated 26.02.2021 (Annexure-F). Accordingly, Dr. Vishwas Mehta assumed office of the State Chief Information Commissioner on 1st March, 2021 having been sworn in, by the Hon'ble Governor, as such. Letter dated 02.03.2021, evidencing the above, sent by Dr. Vishwas Mehta to the Principal Secretary, General Administration Department, is produced as Annexure-G.
"We declare that Sections 12(6) and 15(6) of the Act do not debar a Member of Parliament or Member of the Legislature
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of any State or Union Territory, as the case may be, or a person holding any other office of profit or connected with any political party or carrying on any business or pursuing any profession from being considered for appointment as Chief Information Commissioner or Information Commissioner, but a such person is appointed as Chief Information Commissioner Information Commissioner, he has to discontinue as the Member of Parliament, or Member of the Legislature of any State or Union Territory or discontinue to hold any other office of profit or remain connected any political party or carry on any business or pursue any profession during the period he functions as Chief Information Commissioner or Information Commissioner", is worth mentioning.
"As the judgment under review suffers from mistake of law, we allow the review petitions, recall the directions and declarations in the judgment under review and dispose of Writ Petition (C) No 210/2012 with the following declarations and directions” Thus, the declarations and directions which includes the directions contained in
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Paragraphs 108.10 and 108.11 of the judgment in Namit Sharma Vs. Union of India stand recalled, and no such directions requiring 'empanelment' has been issued by the Honourable Court in the judgment in the Review Petition (Union of India Vs. Namit Sharma). Similarly, the contention raised by the petitioner that the “second respondent has not required that the applicants for the post be shortlisted", is also without merit, in as much, the question of short listing of the applicants arises only in cases where there are a very large number of applications. In the instant case there are only 14 applications including the 2 which were defective and as such the Committee can very well consider all those applications.
the statement filed by learned Government Pleader, Mr. K. K. Ravindranath, learned Additional Advocate General, made submissions that absolute transparency was maintained in the selection to the post of Chief Information Commissioner. Inviting attention of this Court to the decision in Union of India v. Namit Sharma reported in (2013) 10 SCC 359, Mr. K. K. Ravindranath, learned Additional Advocate General, submitted that directions issued earlier by the Hon'ble Apex Court in
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Namit Sharma v. Union of India reported in (2013) 1 SCC 745 was reviewed. Unfortunately, the latter judgment of the Hon'ble Apex Court was not placed before this Court, at the time of entertaining the writ petition. He further submitted that there is no illegality or impropriety in the process of selection and appointment to the post of Chief Information Officer. Therefore, learned Additional Advocate General prayed for dismissal of the writ petition.
“GOVERNMENT OF KERALA GENERAL ADMINISTRATION (CO-ORDINATION) DEPARTMENT
No.Cdn5/37/2020/GAD Thiruvananthapuram, Dated:12.11.2020.
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NOTIFICATION
Sub:- Appointment of Chief Information Commissioner in the Kerala State Information Commission - inviting Applications -reg.
Ref:- (1) The Right to Information (Amendment) Act, 2019 (Central Act 24 of 2019)
(2) Office Memorandum No.F.No.1/5/2019-IR dated 7th November, 2019 of the Government of India, Ministry of Personnel and Public Grievances and Pensions.
In exercise of the powers conferred under section 15 of the Right to Information Act, 2005 (Central Act 22 of 2005) (the Act) the Government of Kerala has, constituted the Kerala State Information Commission to exercise the powers conferred on and to perform the functions assigned to it under the Act with headquarters at Thiruvananthapuram. The said Act has been amended by the Information Commission (Amendment) Act, 2019 (Central Act 24 of 2019). The Commission shall have a State Chief Information Commissioner and five State Information Commissioners. The powers and functions of the State Chief Information Commissioner and State Information Commissioners are as provided under the Act.
(2) It is proposed to appoint the Chief Information Commissioner in the Kerala State Information Commission to succeed the present incumbent on completion of tenure likely on 21.11.2020. The Act provides that the State Chief Information Commissioner shall be a person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass-media or administration and governance.
(3) The Chief Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession. It is clarified that cessation/termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner.
(4) As per the Act, the State Chief Information Commissioner shall hold office for a term of three years from the date on which he enters upon his office or till he attains the age of 65 years, whichever is earlier, and shall not be eligible for reappointment as such State Chief
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Information Commissioner. The salary, allowances and other terms and conditions of service of the Chief Information Commissioner shall be as per Right to Information (Term of office, Salaries, Allowances and other Terms and Conditions of Service to Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019.
(5) Persons fulfilling the criteria and interested in appointment to the post of Chief Information Commissioner may send their particulars in the enclosed proforma by post to the Principal Secretary, General Administration (Co-ordination) Department, Government Secretariat, Thiruvananthapuram - 695001 or through e-mail to [email protected] by 5:00 pm on 28th December, 2020. Persons who are serving under the State/Central Government or any other Organisation, should send their particulars through proper channel. Applications using other addresses and e-mail addresses will not be considered. Applications either direct or through proper channel received after the prescribed date and time shall be rejected.
(By Order of the Governor)
Sd/-
DR.VISHWAS MEHTA Chief Secretary to Government”
Administration Department of the Government of Kerala as on 21/02/2021 (Exhibit P2), reads as under:
“Divisions
The General Administration Department is functioning under the control of the Secretary. The following are the divisions of General Administration Department assigned with specific subjects.
Office Section
Deals with receipt and distribution of all communications to the Secretariat from other departments, Government offices and the public, sending of communications from the Secretariat to other departments, Government offices and the public.
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Visitor's Facilitation Centres
Deals with issuing entry pass to the visitors of Secretariat
Petitions
Chief Minister's Public Grievances Redressal Cell deals with the submission of grievances by the aggrieved citizens to the Chief Minister of Kerala from anywhere and anytime (24x7). Chief Minister's Computer Centre deals with processing the petitions addressed to the Chief Minister.
Office of Chief Secretary
Strictly Confidential: Deals with the appointment of High Court Judges, Cabinet papers, monitoring of Cabinet decisions and follow up actions on time cases, Kerala State Departmental Security Instructions, Maintenance of Annual Confidential Reports of All India Service Officers. Convening of screening committee and Preparation of panel of All India Service Officers (IAS, IPS, IFS) for Promotion to various grades, Departmental Promotion Committee Meetings for selection to the post of Deputy Secretary and above in the Secretariat including Law and Finance Departments, Cipher Bureau, Recommendations for "Padma Awards”. Maintenance of Property Returns of Officers in the Secretariat of and above the rank of Joint Secretaries.
Secret Section: Deals with awards under Jeevan Raksha Pathak General papers on strike. Departmental Promotion Committee for the preparation of Select list, Conducting UPSC and SSC Examinations Rules of Business of Government of Kerala.
Special A: Deals with Establishment matters, disciplinary action and medical reimbursement of IAS Officers, Lok Sabha Questions, Rajya Sabha Questions etc.
Special C: Establishment matters of IFS, IPS officers, Central Deputation of IAS, IPS and IFS officers etc.
Chief Secretary's Petition Cell: Deals with managing petitions relating to Government of Kerala forwarded from the offices of the President and the Prime Minister.
Employment
Deals with the papers on special recruitment of SCs/STs and review of progress. Advice on matters related to special recruitment.
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Compassionate Employment Cell
Deals with allotment of vacancies in general categories post from general pool for appointment under Compassionate Employment Scheme for Government Servants who die-in-harness.
Freedom Fighters
Deals with the papers under SSS Pension Scheme, Kerala Freedom Fighters Pension Scheme and award of Tamrapathras to freedom fighters.
Protocol
Deals with visits of High Dignitaries, State Guests, Foreign VIPS, Protocol, Hospitality Rules, Warrant of Precedence, Republic Day, Independence Day Celebrations, Swearing-in ceremonies Ministers, Allocation of portfolios, Death of High Dignitaries. It also deals with Reservation of rooms in Government Guest Houses in Kerala, KTDC Chennai (for official visits only and Kerala Houses at New Delhi. Mumbai and Kanyakumari. Establish matters of Kerala Raj Bhavan, office of the Resident Commissioner, New Delhi and Affairs of Consulates of foreign countries situated in Kerala.
Co-ordination
Deals with the preparation of Government Diary Calendar, List of Holidays, Declaration of Local Holidays and MP's conference, Annual conference of District Collectors and Head Departments. Papers related with Kerala State Information Commission and VJ T Hall.
Secretariat Central Library
Deals with the purchase of books, dailies and magazines for the Secretariat Central Library and distribution among the staff members.
Services
Deals with the establishment matters of Secretariat Employees including the Officers of All India Services.
Accounts
Deals with the matters connected with the salary and other personal claims of the staff including personal staff of Ministers and Leader of Opposition, Cash and contingent expenditure on Secretariat. Other bills pertaining to the Office expenses of Secretariat are also dealt by the Accounts Sections.
Housekeeping
Housekeeping Department provides various services like allotment of rooms, furniture, telephones and such other basic necessities for the
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functioning of the Office of the Ministers, Secretaries and Sections in the Secretariat.
Public Relations Department
Deals with providing the public and the media with timely and up-todate information government policies, programmes, schemes, initiatives and achievements through print, electronic and social media, undertaking publicity campaigns, trade fairs and also for gathering the response, suggestions and demands of the public and bringing them to the government's attention.”
issued by the 3rd respondent, and the same reads as under:
“GOVERNMENT OF KERALA Abstract
IAS – APPOINTMENT OF THE CHIEF SECRETARY GOVERNMENT - ORDERS ISSUED.
GENERAL ADMINISTRATION (AIS A) DEPARTMENT
G.O.(Rt)No.667/2021/GAD Dated, Thiruvananthapuram, 11/02/2021
ORDER
Dr. V P Joy IAS (KL:1987), Officer on Special Duty, Government of Kerala, is appointed as Chief Secretary to Government of Kerala vice Dr. Vishwas Mehta IAS (KL:1986), Chief Secretary to Government, retiring from service on superannuation on 28.02.2021.
(By order of the Governor)
DR. VISHWAS MEHTA CHIEF SECRETARY
To
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the State Public Information Officer, General Administration
Department, Government of Kerala, Thiruvananthapuram (Exhibit P4), is
extracted below:
“APPENDIX FORM (See Rule 3)
(Application for Information under Right to Information Act 2005)
To
The State Public Information Officer, The General Administration Department, Government of Kerala, Thiruvananthapuram-1.
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| dated 12.11.2020 for the appointment to the post of Chief Information Commissioner for the State of Kerala and other related documents along with the note files and correspondence. |
|---|
| 3) The purpose of information sought: The Applicant has got reliable information that the process of selecting Chief Information |
| Commissioner is not in a prescribed manner under Right to Information Act. The applicant has a doubt regarding the selection process is not in a prescribed manner. To remove the said doubt information as sought below is necessary. Information sought also involves larger public interest. |
| 4) References : Notification No.Cdn5/37/GAD dated 12.11.2020 issued to the post of State Chief Information Commissioner published in the official website of the Government of Kerala (http://www.kerala.gov.in). |
i. Please provide the certified copy of documents which show all the legal options/legal advice in connection with Notification No:Cdn5/37/GAD dated 12.11.2020 issued to the post of State Chief Information Commissioner.
ii. Has Dr. Viswas Mehta been appointed as SCIC of Kerala? If yes, Please provide the certified copy of the appointment order along with all documents.
iii. Please provide the certified copy of the documents which shows the number of total applications received.
iv. Has the Department concerned shortlisted any candidates? If yes, please provide certified copy of the shortlisted candidates including their names and addresses along with a copy of applications and all documents attached with applications.
v. Please provide the certified copy of the documents which show the criteria followed by the concerned Department and Selection Committee for the selection of SCIC for the above referred notification.
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vi. Please provide the certified copy of the list which has been forwarded by the concerned Department to the selection committee in pursuance of above referred notification.
vii. Has the eminence and eligibility of each applicant been undergone a comparative study on merits or undergone investigation? If yes, what are the findings recorded in the file?
viii. Please provide the certified copy of the documents which show the Order which show the formation of the Selection Committee for the Selection of SCIC as per above referred notification.
ix. Please provide the certified copy of the documents which show the copy of all minutes, all proceedings, decisions and recommendations of the Selection Committee for the Selection of SCIC as per above referred notification along with dissenting note of opposition leader.
x. Please provide the certified copy of the documents which show recommended candidate name along with all documents forwarded to the Governor of Kerala by the Selection Committee in the above referred notification.
xi. If the Appointment Order of SCIC has been issued by the Governor, please provide the certified copy of the appointment order along with all documents.
xii. Is there any complaint received by this Public Authority regarding the selection of Dr. Vishwas Mehta as SCIC?
xiii. If yes, Please provide the certified copy of the documents which show the action taken by this Public Authority on the above referred complaints.
xiv. Please provide the certified copy of the documents which show notices if any for attending the Selection Committee meeting for the selection of SCIC for the above referred notification.
xv. Please provide the file noting on movement of this RTI application dated 12.2.2021.
SIGNATURE OF THE APPLICANT
Thiruvananthapuram 12.2.2021”
applicants along with copies of their applications to the Chairman and Members of 2nd respondent Committee (Annexure-B) is extracted below:
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03.02.2021
“CDN5/37/2020/GAD
Note
Sub:- General Administration Department-Appointment of chief Information Commissioner - conduct of meeting-reg
Ref:- GO(Rt) 166/2021/GAD dated 12.01.2021
It has been decided to convene a meeting under the Chairmanship of the Hon'ble Chief Minister for the selection to the vacancy of Chief Information Commissioner on 4.02.2021 (Thursday) evening 4.00 through video conferencing. In the said meeting, the Hon'ble Law Minister and Hon'ble Leader of Opposition who are members of the committee constituted as per reference above are requested to participate and the matter shall be brought to the notice of the Hon'ble Law Minister and Hon'ble Leader of Opposition. The list of applicants, their address and copies of the application received to the vacancy of Chief Information Commissioner are included herewith.
Video Conference Link:-
meet.google.com/swa-vvzw-wyd
(K.R. Jyothilal)
Secretary to Department of Law, Culture, SCST and Parliamentary affairs
Private Secretary to Hon'ble Leader of Opposition
Copy to: Private Secretary to Hon'ble Chief Minister PA to Addl. Chief Secretary (GAD)”
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the statement of respondent No.1/State of Kerala (Annexure D), is extracted hereunder
| MINUT | ES OF THE MEETING OF THE COMMITTEE CONSTITUTED uls 15(3) of the Right to Information Act, 2005 |
|
|---|---|---|
| Date | : | 04.02.2021 |
| Time | : | 04.00 pm |
| Venue | : | Online Video Conference |
| Agenda | : | To make recommendations to Hon'ble Governor for appointment of Information Commissioner |
MINUTES
The Committee was apprised of the provisions of the Right to Information Act, 2005 pertaining to the appointment of the State Chief Information Commissioner as appearing in Chapter IV under section 15 to 17 of the Act. The Committee noted the following:-
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*Section 16(2) states that State Chief Information Commissioner shall hold the office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier, and shall not be eligible for reappointment as such State Chief Information Commissioner”
*As per notification No.43 dated, 01.08.2019 Government of India amended Section 16(b) in sub section (2) for the words “for a term of five years from the date on which he enters upon his office", the words for such term as may be prescribed by the Central Government shall be substituted, As per notification No.635 dated, 24.10.2019 Government of India notified that “The term of office of the State Chief Information Commissioner or State Information Commissioners as the case may be, shall hold the office for a period of three years from the date on which he enters upon his office”
• The Government have initiated the process of appointment of the State Chief Information Commissioner by inviting applications for the post vide Notification No.Cdn5/37/2020/GAD, dated, 12.11.2020
Dr. Vishwas Mehta IAS
Dr. Vishwas Mehta IAS is serving as Chief Secretary to Govt. of Kerala from 31.05.2020. He is due to retire from the present post on 28.02.2021. He
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has vast experience in monitoring, review and implementation of all major policies and various schemes of the State and Central Government. He has Ph.D in Cultural Tourism and Management and he possesses a degree in MSc (Hons) Geology and MBA Marketing Management. He has 34 years of work experience in various posts of State and Central Govt. (The profile is given in the Annexure)
Dr. Vishwas Mehta IAS satisfies the eligibility criteria laid down in the RTI Act 2005 as interpreted by the Hon'ble Supreme Court and High Court for appointment as State Chief Information Commissioner.
The name of Dr. Vishwas Mehta IAS may, therefore, be recommended to the Hon'ble Governor for appointment as State Chief Information Commissioner.
I don't agree with the selection of Dr. Viswas Mehta. My dissent may be noted.
Ramesh Chennithala A.K.Balan Pinarayi Vijayan Leader of Opposition Minister for Law, Culture, Chief Minister SC/ST/and Parliamentary affairs
published in the Kerala Gazette, Extraordinary dated 26.02.2021 is reproduced hereunder:
“GOVERNMENT OF KERALA
General Administration (Co-ordination) Departmental
NOTIFICATION
Dated, Thiruvananthapuram, 13th February, 2021 1st Kumbham, 1196
S.R.O. No.258/2021
In exercise of the powers conferred by sub-section (3) of section 5 of the Right to Information Act, 2005 (Central Act 22 of 2005), the Governor of Kerala is pleased to
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appoint Dr. Vishwas Mehta, Flat A5U, Millennium Apartments, Jagathy, Thiruvananthapuram as the State Chief Information Commissioner of the Kerala State Information Commission, with effect from 1st March, 2021, constituted as per Notification No.80649/Cdn.5/05/GAD, dated 19th December, 2005, published as S.R.O. No.1091/2005 in the Kerala Gazette Extraordinary No.2731 dated, 19th December, 2005.
By order of the Governor
K.R.JYOTHILAL Principal Secretary to Government
Explanatory Note
(This does not form part of the notification, but is intended to indicate its general purport)
As per sub-section (3) of section 15 of the Right to Information Act, 2005, the State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee constituted under the said sub-section. As per notification No. 80649/Cdn.5/05/GAD, dated 19th December, 2005 published as SRO No. 1091/2005 in the Kerala Gazette Extraordinary No. 2731 dated 19th December, 2005, the Kerala State Information Commission was constituted with a State Chief Information Commissioner and four State Information Commissioners.
As per G. O. (Ms.) No. 85/2012/GAD, dated 25th April, 2012, one more post of State Information Commissioner was created in the Kerala State Information Commission. Shri Vinson M. Paul, who was appointed as the State Chief Information Commissioner as per notification issued under G.O. (Ms.) 60/2016/GAD, dated, 28th April, 2016 and published as SRO No. 339/2016 in the Kerala Gazette Extraordinary No. 874, dated 28th April, 2016, has relinquished charge after completing his term of
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office. The Committee constituted as per G.O.(Rt.) No. 166/2021/GAD, dated, 12th January, 2021 under the subsection (3) of section 15 of the Central Act 22 of 2005 have recommended to appoint Dr. Vishwas Mehta, as the State Chief Information Commissioner in the existing vacancy. Accordingly the Governor of Kerala have ordered to appoint Dr. Vishwas Mehta, as the State Chief Information Commissioner of the Kerala State Information Commission, with effect from 1st March, 2021.
The notification is intended to achieve the above
object.”
Administration Department (Annexure - F), reads as under:
“General Administration, Transport and Revenue (Devaswoms) Department Government of Kerala, Secretariat Thiruvananthapuram-695 001 Date. 26.02.2021
D.O.Lr.No.Cdn.5/37/2020/GAD
Dear Sir,
I am happy to inform you that you have been appointed as State Chief Information Commissioner, with effect from 01.03.2021, in the State information Commission for a period of three years from the date you enter office, or attain the age of 65 years whichever is earlier, as per notification S.R.O. No.258/2021, dated 26.02.2021.
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and Conditions of Service of Chief Information Commissioner, Information Commissioners in the Central Information Commission, State Chief Information Commissioner and State Information Commissioners in the State Information Commission) Rules, 2019. You are requested to confirm that the offer of appointment as Chief Information Commissioner is acceptable to you.
Yours sincerely, Sd/( K.R.JYOTHILAL)
Principal Secretary, General Administration Department (Annexure-G), reads as under:
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Dated, 2nd March, 2021
Ref: D. O. Lr.No.Cdn.5/37/2020/GAD and SRO No.258/2021 dated 26/2/2021
Dear Jyothilal,
With reference to your D.O letter number cited above, I am glad to inform you that I have joined as State Chief Information Commissioner on 1/3/2021 (Forenoon) after my retirement as Chief Secretary to the Government of Kerala on 28/2/2021.
The swearing in and oath of the office was administered to me by the Hon'ble Governor of Kerala on 1st March, 2021 at 10 am at Rajbhavan.
This is to inform you that I am glad to accept the offer of appointment of State Chief Information Commissioner.
With best wishes,
Yours sincerely
To
Shri K.R. Jyothilal IAS Principal Secretary Government of Kerala.”
by the 3rd respondent reads as under:
“CHIEF SECRETARY Government of Kerala
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CONFIDENTIAL No.563/CS/2020/CSO 4th August, 2020
NOTE
It has been observed that, copies of several sensitive physical/electronic files are being leaked to the media from various departments. It is also suspected that, the few employees are in collusion to provide photocopy of the files to few vested interests outside.
In several Instances, the remarks of the officials and the file noting are being selectively showcased by the media in a twisted manner with a deliberate attempt to allege malpractices and malign the Government.
Under the circumstance, it is directed that Secretaries must review the situation and take such steps to ensure that official records are not leaked to the outsiders.
Senior officers concerned and employees who are custodians of the files as per Secretariat Manual/office orders issued from time to time are made responsible, whenever such leakage occurs. Notes/Directions issued by CM's office and Ministers should not be put on whatsapp/social media strictly.
It is reiterated that; severe disciplinary action, investigation and criminal proceedings would be initiated in all such cases, where the official concerned is found negligent or involved directly/ indirectly in leaking information to outsiders.
These contents be kept confidential.
Sd/Dr. Vishwas Mehta”
out the practical regime of right to information for citizens to secure
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access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
“ 15. Constitution of State Information Commission
(1) Every State Government shall, by notification in the Official Gazette, constitute a body to be known as the........ (name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.
(2) The State Information Commission shall consist of-
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not exceeding ten, as may be deemed necessary.
(3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on the recommendation of a committee consisting of—
(i) the Chief Minister, who shall be the Chairperson of the committee;
(ii) the Leader of Opposition in the Legislative Assembly; and
(iii) a Cabinet Minister to be nominated by the Chief Minister Term of office and conditions of service.
Explanation — For the purposes of removal of doubts, it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognised as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of Opposition.
(4) The general superintendence, direction and management of the affairs of the State Information Commission shall vest in the State Chief Information Commissioner who shall be assisted by the State Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the State Information Commission autonomously without being subjected to directions by any other authority under this Act.
(5) The State Chief Information Commissioner and the State Information Commissioners shall be persons of eminence in public life with wide
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knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance.
(6) The State Chief Information Commissioner or a State Information Commissioner shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
(7) The headquarters of the State Information Commission shall be at such place in the State as the State Government may, by notification in the Official Gazette, specify and the State Information Commission may, with the previous approval of the State Government, establish offices at other places in the State.”
“ 16. Term of office and conditions of service
(1) The State Chief Information Commissioner shall hold office for such term as may be prescribed by the Central Government and shall not be eligible for reappointment.
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PROVIDED that no State Chief Information Commissioner shall hold office as such after he has attained the age of sixty-five years.
(2) Every State Information Commissioner shall hold office for such term as may be prescribed by the Central Government or till he attains the age of sixty-five years, whichever is earlier, and shall not be eligible for reappointment as such State Information Commissioner:
PROVIDED that every State Information Commissioner, on vacating his office under this subsection, be eligible for appointment as the Chief Information Commissioner in the manner specified in sub-section (3) of Section 15:
PROVIDED FURTHER that where the State Information Commissioner is appointed as the State Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the State Information Commissioner and the State Chief Information Commissioner.
(3) The State Chief Information Commissioner or a State Information Commissioner, may, at any time, by writing under his hand addressed to the Governor, resign from his office;
PROVIDED that the State Chief information Commissioner or a State Information Commissioner may be removed in the manner specified under section 17.
(5) The salaries and allowances payable to and other terms and conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall be such as may be prescribed by the Central Government:
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PROVIDED that the salaries, allowances and other conditions of service of the State Chief Information Commissioner and the State Information Commissioners shall not be varied to their disadvantage after their appointment.
PROVIDED FURTHER that the State Chief Information Commissioner and the State Information Commissioners appointed before the commence of the Right to Information (Amendment) Act, 2019 shall continue go be governed by the provisions of this Act and the rules made thereunder as if the Right to Information (Amendment) Act, 2019 had not come into force.
(6) The State Government shall provide the State Chief Information Commissioner and the State Information Commissioners with such officers and employees as may be necessary for the efficient performance of their functions under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.”
“ 17. Removal of State Chief Information Commissioner or State Information Commissioner
(1) Subject to the provisions of sub-section (3), the State Chief Information Commissioner or any
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State Information Commissioner shall be removed from his office only by order of the Governor on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference made to it by the Governor, has on inquiry, reported that the State Chief Information Commissioner or a State Information Commissioner, as the case may be, ought on such ground be removed.
(2) The Governor may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the State Chief Information Commissioner or a State Information Commissioner in respect of whom a reference has been made to the Supreme Court under sub-section (1) until the Governor has passed orders on receipt of the report of the report of the Supreme Court on such reference.
(3) Notwithstanding anything contained in sub-section (1), the Governor may by order remove from office the State Chief Information Commissioner or a State Information Commissioner if a State Chief Information Commissioner or a State Information Commissioner, as the case may be,—
(a) is adjudged an insolvent; or
(b) has been convicted of an offence which, in the opinion of the Governor, involves moral turpitude; or
(c) engages during his term of office in any paid employment outside the duties of his office; or
(d) is, in the opinion of the Governor, unfit to
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continue in office by reason of infirmity of mind or body; or
(e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the State Chief Information Commissioner or a State Information Commissioner.
(4) If the State Chief Information Commissioner or a State Information Commissioner in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of the State or participates in any way in the profit thereof or in any benefit or emoluments arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehaviour.”
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the Government and the process involved in the selection is vitiated by the maxim “nemo debet esse judex propria causa”.
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State Chief Information Commissioner. Furthermore, it is also understood that the Governor has approved the recommendation of the 3rd respondent for appointment to the post.
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3rd respondent, while serving as the Chief Secretary under the 2nd respondent has submitted the application. He ought to have resigned or voluntarily retired from the post under the 2nd respondent before submitting his application. At the time of his selection and appointment, the 3rd respondent is seen to be holding an office of profit. Moreover, the delay occasioned in his assuming charge as the Chief Information Commissioner adversely affects the functioning of the commission. The Committee has not considered the public interest, while making appointment of a person, who cannot take charge as the State Chief Information Commissioner immediately.
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not raised objections to the appointment of the 3rd respondent to the post of Chief Information Commissioner of Kerala. The Leader of Opposition, who is a member of the 2nd respondent Committee, and is cast with the responsibility of scrutinizing each and every application and the eligibility of the applicants, to hold the post, ought to have seen the original file of the proceedings and constructively participated in the selection process. Instead, he has abstained from attending the meeting. Hence, the meeting of the 2nd respondent committee was held, without the necessary quorum. He ought to have sought the 2nd respondent to reconvene the meeting and reconsider the matter afresh. Thus, the decision to appoint the 3rd respondent was taken, without the concurrence or knowledge of the Leader of the Opposition, who is a member of the 2nd respondent committee.
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Therefore, the petitioner seeks for a direction to the 2nd respondent, to comply with the direction of the Hon'ble Apex Court in Namit Sharma's case reported in (2013) 10 SCC 359 and follow a fair, transparent and equitable process of selection, for recommendation to the Governor, to make appointments to the post of State Chief Information Commissioner.
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notification is only the beginning of the process and nowhere under the Act, 2005, an officer of the Government, who has initiated action of inviting application to a post, is precluded from participating in the selection process. That is to say, even though Dr. Vishwas Mehta, IAS, has initiated action, it is an administrative duty conferred upon him which he is liable to discharge under law, without any default and it is only a function to be carried out by Dr. Vishwas Mehta as the Chief Secretary of the State, dutifully and observing the procedure prescribed for that purpose.
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circulated in physical form, the Leader of Opposition expressed his dissent in the matter of selection. Even though a procedure is not prescribed, as to how the matter is to be dealt with, when any dissent is made by any of the members, it can only legally be presumed that one will have to go by the majority to attain finality to the issue. This is the normal procedure practiced in such selection.
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It has various facets like Term of Office, Salaries, Allowances and other terms and conditions of service of the Chief Information Commissioner and Information Commissioner in the Central Information Commission and in the State Information Commission, contained under Chapters III and IV.
“The State Chief Information Commissioner or State Information Commissioners, as the case may be, who on the date of his appointment to the Commission, was in the service of the Central or a State Government, shall be deemed to have retired from such service with effect from the date of his appointment as State Chief Information Commissioner and State Information Commissioner in the State Information Commission.”
any officer who is qualified, is entitled as of right to apply to the post
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while holding office and if only such officer is selected to the post concerned, the post occupied will be seized automatically, by the deeming fiction contained under Rule 13 of the Rules, 2019. This we say because, learned counsel for the petitioner had addressed an argument that respondent No.3 has not resigned from the post of Chief Secretary to the Government, while submitting his application, and therefore, the selection process is bad. Since the said rule position was in force, we are of the considered opinion that Dr. Vishwas Mehta, holding the post of Chief Secretary to the Government, at the time of submitting the application, can never be said to be bad or arbitrary or illegal.
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prescribed under the Act and rules and the notification is that the State Chief Information Commissioner shall be a person of eminence in public life with wide knowledge and experience in Law, Science and Technology, Social Service, Management, Journalism, Mass-Media or Administration and Governance.
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Information Commissioner shall not hold any office of profit. Which thus means while holding the office in question the incumbent shall not hold any office of profit and in the instant case petitioner has no case that Dr. Vishwas Mehta was holding any post, at the time of retirement.
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proceedings. Moreover, the Selection Committee consists of very eminent members like the Hon'ble the Chief Minister, Leader of Opposition and a Cabinet Minister, nominated by the Hon'ble the Chief Minister. The selection process is absolutely in the domain of the Selection Committee and they are duty bound to evaluate the best suited and qualified persons to hold the post, definitely in terms of the provisions of Act, 2005 and the Rules, 2019. We cannot sit over the wisdom of the Selection Committee, in the matter of selection process, and the aspects evaluated by the Selection Committee, by exercising the powers conferred under Article 226 of the Constitution of India.
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Mehta, has been a judge of his own cause, and the contentions advanced, on the basis of the said legal principle, is totally misconceived, and based on incorrect understanding of the correct legal Perspective conceptualised by the maxim. It is also well settled in law that if any mala fide allegation is made, it is for the petitioner to establish the same, by adducing sufficient and cogent evidence, in order to enable the Court, to act upon the same.
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him, while applying to the post of Chief Information Commissioner, seizes automatically.
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only observed that the Committees conducting the selection process under Sections 12(3) and 15(3) of the Right to Information Act, 2005, while making recommendations to the Hon'ble President or to the Governor, as the case may be, for appointment of Chief Information Commissioner or Information Commissioners, must mention against the name of each candidates recommended, the facts to indicate his eminence in public life, his knowledge and experience in the particular field and these facts must be accessible to the citizens as part of their right to information under the Act, after the appointment is made.
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In the result, the writ petition fails and accordingly, dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE
Sd/- SHAJI P. CHALY JUDGE
jes & krj
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APPENDIX
PETITIONER'S EXHIBITS :-
RESPONDENTS' EXHIBITS :-
ANNEXURE-D:- COPY OF THE MINUTES OF THE MEETING OF THE COMMITTEE.
//TRUE COPY//
P.A. TO C.J.
3 issues framed by the court
Did issuing the notification inviting applications disqualify the Chief Secretary from applying or render his selection biased?
Could a serving government officer apply for State Chief Information Commissioner without first resigning?
Could the selection committee recommend an appointment by majority despite the Leader of Opposition's dissent?
Colour shows how this judgement treated each authority
Union of India and Another v. Namit SharmaDistinguished¶490
Union of India and Another v. Namit Sharma reported in (2013) 10 SCC 359 · Who else cites this
5 provisions across 3 enactments
M.L. RAVEENDRANATH
STATE OF KERALA
COMMITTEE FOR APPOINTMENT OF INFORMATION COMMISSIONERS IN KERALA
DR. VISHWAS MEHTA
ADV. D. B. BINU
ADV. GOPALAKRISHNAN
S.MANIKUMAR
SHAJI P.CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
