Allowed

S.Vijayalakshmi, v. State of Tamil Nadu

Madras HC8 Apr 2014WP/5741/2011

Case brief

AI extract

What is this about?

The High Court of Madras allowed a writ petition challenging the appointment of three individuals as State Information Commissioners. The Court quashed the Government Order for being arbitrary, capricious, and violative of Section 15(3) of the RTI Act, 2005, due to lack of transparency and sidelining of the Leader of the Opposition during selection.

What did the court decide?

G.O.Ms.No.32 dated 01.03.2011 appointing respondents 3 to 5 as State Information Commissioners is quashed.

S.Vijayalakshmi, Vs State of Tamil Nadu — Service and Employment | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 25..11..2011

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CORAM

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THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM

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W.P.No.5741 of 2011

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M.P.Nos.1 and 2 of 2011

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S.Vijayalakshmi ..Petitioner.

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Vs. 1. State of Tamil Nadu, Rep. by its Secretary to Government, P & AR Department, Secretariat, Beach Road, Chennai.

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Ms.Jayalalithya Jayaram, Leader of the Opposition in the T.N.State Legislature, 36, Poes Gardens, Chennai.

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P.A. Ramaiah, Information Commissioner, Tamil Nadu State Information Commission, Thyagaraya Road, Chennai – 17.

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C.Manoharan, Information Commissioner, Tamil Nadu State Information Commission, Thyagaraya Road, Chennai – 17.

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A.Arumuga Nainar, Information Commissioner, Tamil Nadu State Information Commission, Thyagaraya Road, Chennai – 17. ..Respondents.

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PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to call for the records on the file of the 1^st respondent, and quash G.O.Ms.No.32 appointing respondents 3 to 5 as Information Commissioners sans the recommendation of the 2^nd respondent, as being arbitrary, illegal and violative of Section 15(3) of the RTI Act, 2005.

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https://hcservices.ecourts.gov.in/hcservices/

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For Petitioner :: Mr.Manikandan Vathan Chettiar

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For Respondent – 1 :: Mr.T.N.Rajagopalan, A.G.P. For Respondent – 2 :: Mr.A.Navaneethakrishnan, Advocate General assisted by Mr.S.Venkatesh G.P.

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For Respondent – 3 :: Mr.S.Gunalan For Respondents 4 & 5 :: Mr.R.Thiagarajan, S.C. for Mr.M.Muthappan

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O R D E R

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The Hon’ble Chief Justice & T.S.Sivagnanam, J.

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This writ petition has been filed for a writ of certiorari to call for the records of the 1^st respondent relating to G.O.Ms.No.32, Personnel and Administrative Reforms (AR.3) Department dated 01.03.2011, whereby respondents 3 to 5 have been appointed as the Information Commissioners inspite of objection by the 2^nd respondent, and quash the same as being arbitrary, illegal and violative of Section 15(3) of the Right to Information Act, 2005.

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When the case was first listed for admission on 10^th March, 2011, this Court passed the following order :-

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“Heard the learned counsel for the petitioner and the learned Advocate General on behalf of the State. We have perused the file containing the proceedings relating to the appointment of respondents 3, 4 and 5 herein as the State Information Commissioners.

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Learned Advocate General submitted that the decision taken for appointment of respondents 3, 4 and 5 as the State Information Commissioners has been forwarded to the Election Commission of India through the State Election Commission for ascertaining whether the officers so appointed can assume office or will the Government have to await the decision of the Election Commission of India in this regard.

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We make it clear that irrespective of the decision that may be taken by the Election Commission of India, respondents 3, 4 and 5 herein will not assume (office) as the State Information Commissioners till the disposal of the writ petition, as per the undertaking given by the learned Advocate General today.

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List this case on 16^th March, 2011 under the same caption.

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https://hcservices.ecourts.gov.in/hcservices/ 5. Let notices be issued to respondents 2 to 5 herein

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returnable by then.

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Let the original file produced by the learned Advocate General in Court be returned to the learned Advocate General after taking xerox copies of the documents contained therein.”

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The grounds of challenge inter alia are that the appointment of respondents 3 to 5 as Information Commissioners is not in consonance with the procedure laid down under Section 15(3) of the Right to Information Act, 2005 (for short “Act”). The impugned G.O.Ms.No.32, Personnel and Administrative Reforms (AR.3) Department dated 01.03.2011 has been issued appointing respondents 3 to 5 as Information Commissioners, when the model code of conduct for election was in operation. In the selection of respondents 3 to 5 as Information Commissioners the Leader of the Opposition was deliberately sidelined and her mandatory recommendation was not obtained, which renders the appointment void ab initio. Thus, cronyism sans transparency in public service, that too especially in a body that is supposed to enforce transparency, is highly illegitimate and the respondents 3 to 5 ought to be restrained from functioning as the Information Commissioners.

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Learned counsel for the petitioner submitted that the Supreme Court in W.P. (Civil) No.348 of 2010 (Centre for PIL Vs. Union of India) has prescribed the manner in which the empanelment ought to be done, and that the mode of recommendation should be after consideration of all relevant details about the prospective appointees, including the antecedents of the candidates. Whereas in the case on hand the 2^nd respondent – Leader of the Opposition was not provided with the names of the probable candidates, even after her request to that effect, and she had been effectively sidelined in the selection process. The learned counsel for the petitioner also drawn our attention to some of the allegations levelled against the 3^rd and 5^th respondents in order to show that they are tainted persons unqualified to hold the post of Information Commissioners.

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In the counter affidavit filed on behalf of the 1^st respondent-State it is stated that a decision was taken on 21.02.2011 to fill up the three posts of State Information Commissioners. Accordingly, on 21.02.2011 itself a letter was addressed to the then Leader of Opposition informing her about the convening of the selection committee meeting on 01.03.2011 to select persons for the three posts of State Information Commissioners. On 28.02.2011, the Leader of the Opposition wrote a letter stating that since the Election Commission is on the verge of notifying the General Election in Tamil Nadu and that the case regarding the appointment of Central Vigilance Commissioner is pending before the Supreme Court, in which the Supreme Court may issue guidelines regarding the appointment to high and sensitive posts, the meeting may be adjourned after some time. But, ignoring the letter of the Leader of the Opposition the meeting was convened https://hcservices.ecourts.gov.in/hcservices/ on 01.03.2011 and on the very same day the impugned G.O.Ms.No.32, P

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& AR (Ar.3) Department was issued appointing respondents 3 to 5 as Information Commissioners. The 1^st respondent categorically stated that there must be proper consultative process before the recommendations are made and it should not be a mere empty formality. It is further stated in the counter affidavit that the then Chief Minister and the Minister of Finance, who was nominated as a Member of the Committee by the then Chief Minister, unilaterally decided to appoint respondents 3 to 5 as the State Information Commissioners and the impugned Government Order to that effect was issued on the very same day. It is further stated that till date they did not assume charge as State Information Commissioners.

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In the additional counter affidavit filed on behalf of the 1^st respondent – State it is categorically stated that in the “Note for Circulation” dated 21.02.2011 requesting the then Chief Minister the date and time for convening the Committee Meeting, in paragraph – 5, it was clearly mentioned that “33” persons have sent their applications for the post of State Information Commissioner. In the “Note for Circulation” approved by the then Chief Minister it was decided to convene the meeting on 01.03.2011 at 11 a.m. Hence, once the date is fixed after receipt of 33 applications, no further applications can be taken on file for consideration. But, in the minutes of the meeting held on 01.03.2011 the applications received were shown as “35” adding the applications of 4^th and 5^th respondents herein, who submitted their applications only on 28.02.2011, a day before the convening of the meeting, and they were also got selected along with the 3^rd respondent for the post of Information Commissioner. It is further stated that in the case of 3^rd respondent viz., P.A.Ramiah, I.A.S., he was permitted to retire from service voluntarily w.e.f. 01.03.2011 (afternoon) by waiving the statutory notice required under the rules. Hence, when he applied for the post of Information Commissioner he was still the government service holding an office of profit, which is a disqualification as per the provisions of the Act. Thus, it is clear that the recommendation was made contrary to the procedures contemplated under the Act.

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In his counter affidavit the 3^rd respondent claimed that he is fully qualified to hold the post of State Information Commissioner. He denied the allegation that the 2^nd respondent – the then Leader of the Opposition was sidelined in the selection process and stated that by letter dated 21.02.2011 the 2^nd respondent was duly informed about the meeting of the selection committee on 01.03.2011. The 2^nd respondent was chosen to seek only an adjournment of the meeting and neither she recommended any names nor opposed any appointments. It is further stated that at the time of appointment of State Information Commissioners the model code of conduct does not come into operation as the appointment preceded the announcement of election.

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The 4^th and 5^th respondents in their counter affidavits inter alia reiterated the submissions of the 3^rd respondent and in https://hcservices.ecourts.gov.in/hcservices/ addition contended that it was the majority decision to appoint

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them as the State Information Commissioners.

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We have heard the learned counsel for the parties and perused the original records of the proceeding produced by the learned Additional Government Pleader.

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The note for Circulation dated 21.02.2011 relates to the constitution of the Committee for making recommendations for appointment of the State Information Commissioners to the Tamil Nadu Information Commission. From the said note it reveals that 33 persons sent their applications for the post of State Information Commissioner. The note was placed before the Minister concerned for orders as to whether three vacant posts of State Information Commissioner need to be filled up now, and if so, convenient date and time for the convening of the meeting. The said note was placed by the Section Officer to the Under Secretary, then Deputy Secretary, then Secretary and Chief Secretary and then to the Law Minister. Finally, the notings were placed before the Chief Minister who fixed 01.03.2011 as the date for convening of the meeting.

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As follow up to the aforesaid note the Secretary to Government addressed a letter in Letter No.7824/Ni.Ci.3/2011-1 dated 21.02.2011 to the then Leader of the Opposition bringing her notice the three vacancies to the post of State Information Commissioner and the modalities for appointment of such Information Commissioners. The Leader of the Opposition was informed that the Chief Minister has consented to convene a meeting of the aforesaid Committee on 01.03.2011 at 11 a.m. in the Secretariat. Further, from the notings it reveal that on 22.02.2011 another note was circulated relating to the nomination of a Cabinet Minister to the Committee for making recommendations for appointment of three State Information Commissioners to the Tamil Nadu Information Commission. The said Cabinet Minister was informed about the meeting of the Committee fixed on 01.03.2011. Pursuant to the aforesaid note a letter was addressed to the Finance Minister on 24.02.2011 informing about his nomination to the Committee and inviting him to attend the meeting of the Committee to be convened on 01.03.2011.

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In response to the letter, the Leader of the Opposition vide her letter dated 28.02.2011 inter alia stated that some social organizations had requested her that a transparent procedure has to be followed in the appointment of the Chief Information Commissioner, since the functioning of the State Information Commission was in a very bad state and as a lot of time is being consumed in disposing of cases. Further, when there was appointment of four Information Commissioners in April 2008, the Government received 11 applications, and out of that, four candidates who submitted their applications are the last minute were appointed as Information Commissioners, and the remaining seven applications were rejected without any reason, and therefore, they had requested her help in curbing this arbitrary attitude of the Government. Strengthening the requesting of such social https://hcservices.ecourts.gov.in/hcservices/ organizations and aspirants under the right to information, even

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before the Meeting of the Committee could take place, the name of the Chief Information Commissioner to be appointed on behalf of the Government was being published in magazines. From this, it has to be inferred that the Government does not intend to follow a transparent procedure in appointment of the Chief Information Commissioner. In this scenario, in order to enabler her to participate in the aforesaid Meeting, she requested the Secretary to Government to furnish the details of the eligible individuals who had applied for appointment to the post of Chief Information Commissioner.

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The translated version of the letter addressed by the Leader of the Opposition is reproduced herein below.

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“J. JAYALALITHAA Dt.28.2.2011 General Secretary, A.I.A.D.M.K., Tamil Nadu Former Chief Minister, Tamil Nadu Legislative Assembly Opposition Leader.

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Dear Sir,

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Sub : Right to Information Act, 2005 – Tamil Nadu Information Commission – State Information Commissioners appointment – recommendation of – Advisory Meeting – reg.

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Ref : Your Letter No.7824 /Ni.See.3/2011-1 dt.21.2.2011

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In the letter cited under reference, it is informed that the Meeting of the Committee comprising of the Chief Minister, the Leader of Opposition and a Minister to be nominated by the Chief Minister for the purpose of appointment of the new State Information Commissioners under the Right to Information Act, 2005 is scheduled to take place on 1.3.2011 in the Secretariat at the Omanthurar Government Estate.

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At a time when the Central Election Commission is likely to publish the Notification for the Elections to the Tamil Nadu Legislative Assembly in the first week of March, especially when there have been some controversies in the appointment of the Central Vigilance Commissioner without seeking the opinion of the Opposition Leader of Parliament, when the Supreme Court is likely to give its decision on this issue and when there are expectations that in such decision, the Supreme Court will lay down guidelines in the matter of appointments to high posts, at this juncture, it would not be appropriate to convene the advisory meeting for appointment of the State Information Commissioners.

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https://hcservices.ecourts.gov.in/hcservices/ Therefore, keeping in view the above situation and the

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fact that the works relating to the Elections to the Tamil Nadu Legislative Assembly are in full swing, I request that the advisory meeting for appointment of the State Information Commissioners may be convened after the elections to the Tamil Nadu Legislative Assembly are over. Yours sincerely,

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J. Jayalalithaa

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To Thiru. K.N. Venkatramanan, I.A.S. Avl., Secretary,

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Personnel & Administrative Reforms Department, Secretariat,

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Chennai-600 009.”

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Thereafter, another Note was circulated on 28.2.2011 briefing as to the above and as to the convening of the Advisory Committee Meeting as directed by the Chief Minister on 1.3.2011 and the request sent to the Leader of Opposition to attend the said Meeting and as to the reply of the Leader of Opposition for not attending the meeting. Accordingly, orders were solicited from the Chief Minister, who had made the following endorsement on 28.2.2011 – “Since the particulars furnished in the letter of the Leader of Opposition would not be an obstacle for convening the meeting, the meeting may be convened as stated earlier”.

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At the next page of the aforesaid Note, the following endorsements are found :-

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“As per the directions of the Chief Minister, a draft letter is given hereinbelow”.

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[Released as Lr.No.7824/Ni.Ci.3/2011-3, Personnel & Administrative Reforms (Ni.Ci.3) Department, dated. 28.2.2011].

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“See the application received from Thiru. C. Manokaran dated 26.2.2011.

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This application may be included in the applications already received for appointment as Information Commissioners”.

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“The application received from Thiru. A. Arumuga Nainar dated 26.2.2011 may also be included in the applications already received for appointment as Information Commissioners”.

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Subsequently, the Secretary to Government addressed another letter to the Leader of Opposition on 28.2.2011 acknowledging receipt of her letter dated 21.2.2011. It was stated therein that in view of the vacancies in the Tamil Nadu Information Commission for several months, as informed by the earlier letter dated 21.2.2011 for convening the Advisory Committee Meeting, since the https://hcservices.ecourts.gov.in/hcservices/ reasons putforth by her would not be sufficient for not convening

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the said meeting, it has been decided by the Chief Minister that the said meeting of the Committee could take place on 1.3.2011, as decided earlier.

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On 1.3.2011, the Meeting of the aforesaid Committee took place to recommend three names for appointment as State Information Commissioners, and the Chief Minister, who was the Chairperson of the Committee and the Finance Minister, who was nominated by the Chief Minister participated therein. The Leader of Opposition did not choose to participate in the meeting. In the said meeting, the bio-data of the 35 persons who had applied for appointment as State Information Commissioners were considered and the Committee unanimously recommended appointment of the following persons as State Information Commissioners :

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Dr. P.A. Ramiah

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Thiru. C. Manoharan

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A. Arumuga Nainar

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The Chief Minister as well as the Finance Minister had signed the said minutes.

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Thereafter, yet another Note was circulated on 1.3.2011 informing the above developments, the convening of the meeting of the Committee, the request sent to the Leader of Opposition to attend the meeting, her refusal thereto, the subsequent meeting of the Committee and the decision taken appointing the aforesaid three individuals as State Information Commissioners, which was placed for orders on the above recommendation of the aforesaid Committee. It was duly signed by the Minister for Law, Courts and Prisons, the Chief Minister and finally by the Governor of Tamil Nadu on the same day, viz. 1.3.2011. A draft was later prepared and placed for approval and issued as G.O. (Ms.) No.32, Personnel & Administrative Reforms (.2-3) Dept., dated 1.3.2011). The file thereafter contains the Government Orders issued in this regard and the Government Gazette.

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From the notings found in the Government records, the admitted facts that emerge are, that the process for selection/appointment of the State Information Commissioners was initiated only on 21.2.2011 at the level of Section Officer and the file moved from the Section Officer level to the Chief Secretary and the Chief Minister on the same day, i.e. 21.2.2011. The Honourable the then Chief Minister, without any formal discussion and without the consent of the Leader of Opposition, fixed 1.3.2011 as the date for convening the Meeting of the Selection Committee. It was only after the date for the meeting was fixed, the Finance Minister was informed, on 24.2.2011, about his nomination to the Committee, and he was asked to attend the meeting. In response to the letter sent to the Leader of Opposition on 28.2.2011 informing her about the meeting and requesting her to attend the same, the Leader of Opposition objected to the convening of the meeting on various grounds, inter alia, that a transparent procedure has to be followed in the appointment of the State Information Commissioners https://hcservices.ecourts.gov.in/hcservices/ and pointed out complaints about the malfunctioning of the State

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Information Commission. The Leader of Opposition categorically stated that the Notification of Elections to the State Legislative Assembly was likely to be published in the first week of March, 2011 and also that some guidelines were likely to be issued by the Supreme Court in the judgment that would be delivered in the controversial appointment of the Central Vigilance Commissioner. She had further stated that it would be fit and proper to convene the meeting of the Selection Committee after the State Elections. The Hon’ble the then Chief Minister turned down the request of the Leader of Opposition and stuck to his decision to convene the meeting on 1.3.2011. It is apparent from the records that the meeting was convened on 1.3.2011 and in the absence of the Leader of Opposition, a decision was taken to appoint respondents 3 to 5 as State Information Commissioners. Despite the fact that Elections were notified to the State Legislative Assembly by the Election Commission of India on the same day, i.e., 1.3.2011, the consent of the Governor was hurriedly obtained on 1.3.2011 and the impugned Government Order was issued on the same day.

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It is shocking to note that on 21.2.2011 when the date for convening the meeting was fixed as 1.3.2011, there were only 33 candidates for consideration, but from the Minutes of the Meeting dated 1.3.2011, it transpires that two more candidates (respondents 4 and 5 herein) were added, whose applications were received on 28.2.2011 and the candidatures of these two candidates was not communicated to the Leader of Opposition. It is, therefore, clear that there is total lack of transparency in the matter of appointment of respondents 3 to 5 as the State Information Commissioners.

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The Supreme Court, in the case of Centre for PIL vs. Union of India reported in (2011) 4 S.C.C. 1, while deciding the case of appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner, laid down the following guidelines :-

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“88. No reason has been given as to why in the present case the zone of consideration stood restricted only to the civil service. We therefore direct that:

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(i) In our judgment we have held that there is no prescription of unanimity or consensus under Section 4(2) of the 2003 Act. However, the question still remains as to what should be done in cases of difference of opinion amongst the Members of the High Powered Committee. As in the present case, if one Member of the Committee dissents that Member should give reasons for the dissent and if the majority disagrees with the dissent, the majority shall give reasons for overruling the dissent. This will bring about fairness-in-action. Since we have held that legality of the choice or selection is open to judicial review we are of the view that if the above methodology is followed transparency would emerge which would also maintain the integrity of the decision- making process.

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https://hcservices.ecourts.gov.in/hcservices/

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(ii) In future the zone of consideration should be in terms of Section 3(3) of the 2003 Act. It shall not be restricted to civil servants.

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(iii) All the civil servants and other persons empanelled shall be outstanding civil servants or persons of impeccable integrity.

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(iv) The empanelment shall be carried out on the basis of rational criteria, which is to be reflected by recording of reasons and/or noting akin to reasons by the empanelling authority.

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(v) The empanelment shall be carried out by a person not below the rank of Secretary to the Government of India in the concerned Ministry.

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(vi) The empanelling authority, while forwarding the names of the empanelled officers/persons, shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the Selection Committee. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee.

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(vii) The Selection Committee may adopt a fair and transparent process of consideration of the empanelled officers.”

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In the background of all these facts and in the light of the above observations of the Supreme Court in the aforesaid decision, we have no hesitation in holding that the manner in which the date for convening the Meeting of the Selection Committee was fixed and the decision of the Committee recommending respondents 3 to 5 herein for appointment as State Information Commissioners is wholly arbitrary, capricious and against the methodology to be followed in the matter of such appointments.

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For the aforesaid reasons, this writ petition is allowed and the Notification dated 1.3.2011 appointing respondents 3 to 5 herein as the State Information Commissioners is quashed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.

Sd/

Assistant Registrar

/True Copy/

https://hcservices.ecourts.gov.in/hcservices/ sm/ab

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sm/ab

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Sub Assistant Registrar

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To The Secretary to Government, P & AR Department, Secretariat, Government of Tamil Nadu, Beach Road, Chennai.

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+One CC to Mr.S.Gunalan, Advocate Sr.No.72510
+One CC to the Government Pleader, Sr.No.72308
Pre-delivery Order in
W.P. No.5741 of 2011
EV(CO)
DRL : 12/12/2011

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https://hcservices.ecourts.gov.in/hcservices/

S.Vijayalakshmi, v. State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

S.Vijayalakshmi, v. State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

What the court decided

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