Paragraph numbers below are the court’s original numbering, recovered from the source text.
32. The aforesaid report reveals that some appointments have been made. At the same time, appointment process in respect of 4 Information Commissioners in CIC has been initiated. In this backdrop, three aspects on which the arguments were raised by the learned Counsel for the petitioner and which need to be addressed are the following: (a) Timely filling up of the vacancies to ensure that the work of the Information Commissioners does not suffer. (b) Transparency in the mode of appointments. (c) Terms and conditions on which these appointments are to be made should be clearly stated.
33. Learned counsel for the petitioners made it clear that the petitioners were not challenging the appointments already made. However, they want transparency and full disclosure of information depicting : (a) definite criteria for such appointments, (b) and such criteria should be made public in advance.
34. The petitioners are right in their submissions that there have been undue delays in filling up of these vacancies. We expect that the vacancies shall be filled up, in future, well in time. Certain directions in this behalf, which are necessitated, are given at the end of this judgment.
35. Insofar as transparency of procedure is concerned, from the status report it becomes clear that the procedure is now adequately transparent. The Department of Personnel and Training has put on website information in respect of names of the applicants for these posts, names of the members of Search Committee, agenda for the Search Committee, Minutes of the Search Committee etc. It would be pertinent to point out at this stage that after the Search Committee sends its recommendations the Selection Committee has to make the final selection. The composition of the Selection Committee is provided in Section 12(3) of the Act which consists of: (i) The Prime Minister, who shall be the Chairperson of the Committee; (ii) The Leader of Opposition in the Lok Sabha; (iii) The Union Cabinet Minister to be nominated by the Prime Minister. The Statutory Committee, thus, consists of very high ranking persons.
36. Having regard to the aforesaid, it cannot be said that there is no transparency in the appointment process, when all essential information in respect of each candidate is made available to the public at large. Information in respect of Members of Search Committee, agenda of their meetings and even the Minutes of the Search Committee have also been put on website. The appointments made, finally, are also in public domain.
37. In this manner though one cannot find fault in the process of appointment, yet there is one aspect which needs to be highlighted.
38. Section 12(5) of the RTI Act lays down the eligibility conditions for the Chief Information Commissioner as well as Information Commissioners. It reads as under: “12. Constitution of Central Information Commission.— xxx xxx xxx (5) The Chief Information Commissioner and Information Commissioners shall be persons 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.”
39. As can be seen, any 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 is qualified to become Chief Information Commissioner or Information Commissioner. The Legislature in its wisdom widened the area of consideration by not limiting it to the serving or retired government employees alone. Persons of eminence in public life are made eligible. Field of knowledge and experience is also very much broadened as it can be either in law or science and technology or social service or management or journalism or mass media or administration and governance. The Parliament, thus, intended that persons of eminence in public life should be taken as Chief Information Commissioner as well ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] Information Commissioners. Many persons who fit in the aforesaid criteria have been applying for these posts. However, a strange phenomenon which we observe is that all those persons who have been selected belong to only one category, namely, public service, i.e., they are the government employees. It is difficult to fathom that persons belonging to one category only are always be found to be more competent and more suitable than persons belonging to other categories. In fact, even the Search Committee which short-lists the persons consist of bureaucrats only. For these reasons, official bias in favour of its own class is writ large in the selection process.
40. It is by no means suggested that the persons who have ultimately been selected are not deserving for the post of Information Commissioners. It is, however, emphasised that there can be equally suitable persons from other walks of life as well who may be the aspirants for such posts. This Court, therefore, impresses upon the Search Committee, in future, to pick up suitable candidates from other categories as well. After all, the very purpose of providing wide range of suitability was to have members in CIC by giving representation to other classes as well. This would ensure wider representative character in the composition of CIC.
41. Learned counsel for the petitioners also made a grievance that there was no specific condition of service stipulated in the advertisement while inviting applications for the post of Information Commissioners. The Learned Additional Solicitor General, however, submitted that insofar as salary and allowances as well as terms and conditions of appointment are concerned that is statutorily provided in sub-section (5) of Section 13. This sub-section reads as under: “13. Term of office and conditions of service.— xxx xxx xxx (5) The salaries and allowances payable to and other terms and conditions of service of— (a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner; (b) an Information Commissioner shall be the same as that of an Election Commissioner: Provided that if the Chief Information Commissioner or an Information Commissioner, at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity: Provided further that if the Chief Information Commissioner or an Information Commissioner if, at the time of his appointment is, in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or an Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits: Provided also that the salaries, allowances and other conditions of service of the Chief Information Commissioner and the Information Commissioners shall not be varied to their disadvantage after their appointment.”
42. In view of the aforesaid provision, it is clear that any candidate who aspires to become Chief Information Commissioner knows as to what would be the salary and allowances and what would be other terms and conditions of service. At the same time, it is always advisable to make express stipulation of terms and conditions of service in the public notice/Notification and also on website. STATE OF WEST BENGAL
43. In respect of the WB SIC, the petitioners’ grievance is that it is currently functioning with just two Information Commissioners. Since 2015, for a period of nearly twelve months, i.e. from November 2015 to July 2016 and from April 2017 to July 2017, the SIC was non-functional and did not hear any appeals or complaints as there was only one Information Commissioner during this time. It is also stated that more than 8000 appeals and complaints were pending as on 31st October 2017 and it is taking an inordinately long time for appeals and complaints to be disposed of by the SIC.
44. In the reply affidavit filed on behalf of the State, it is mentioned that earlier SIC was functioning with one SCIC and one Information Commissioner. On 18th July 2018, the State Government ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] decided to appoint another Information Commissioner. Advertisement in this behalf was published on 3rd August 2018. Thereafter, on 6th August 2018 a Committee was constituted for making recommendations for appointment to the post of Information Commissioner. This Committee held this meeting on 16th November 2018 wherein all 33 applications received by the due date were considered and it was resolved to appoint one Shri Raj Kanojia, IPS (Retd.), and he has since been appointed vide Notification dated 22nd November 2018. He has assumed charge on 19th December 2018.
45. Insofar as pendency of appeals and complaints is concerned, it is mentioned that as on 1st January 2018, 8627 cases were pending before the WB SIC. Further, appeals and complaints received from January 2018 to November 2018 were 1932. Number of appeals and complaints disposed of from January to November 2018 is 2879. Thus, at the end of November 2018, the number of pending appeals and complaints has gone down to 7680.
46. The aforesaid figures given by the State may show that the pendency is brought down. However, it is still very high and the rate of attrition is quiet slow. What is more important is that many cases could be decided after a long period. In fact, the petitioners have alleged that some cases took more than 10 years before they could be heard and dispose of. Therefore, the strength of one SCIC and two Information Commissioners is quiet inadequate and it has the tendering to frustrate the very purpose of seeking the information by the applicants. It can also be legitimately inferred that when the applicants are not able to get information for a long period because of non-disposal of their appeals or complaints, they are deterred or discouraged to seek information or to pursue their RTI applications.
47. The purpose of Right to Information cannot be allowed to be frustrated by having thoroughly inadequate strength of Information Commissioners in the SIC. The Act, after all, enables the Government to have SIC with one SCIC and up to 10 Information Commissioners. It, therefore, becomes the statutory and constitutional obligation of the State Government to have adequate number of Information Commissioners for quick and speedy disposal of appeals and complaints. We are, therefore, of the opinion that the State Government should immediately consider creating more posts of Information Commissioners. We suggest that at least three more such posts should be created. Decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months thereafter. STATE OF ANDHRA PRADESH
48. In respect of the State of Andhra Pradesh, the petitioners have stated in the writ petition that after the bifurcation of the State in the year 2014 and creation of a separate State of Telangana, for several months the SIC of Andhra Pradesh continued to function as the Information Commission for both the States. However, the Commission became defunct in May 2017 after the retirement of serving Information Commissioners. In August 2017, the High Court of Judicature at Hyderabad directed that Information Commissions be set up in Telangana and Andhra Pradesh. The Andhra Pradesh Government issued an order for constituting the SIC for Andhra Pradesh in August 2017, but till date not a single Commissioner has been appointed to the Commission. The SIC of the State of Andhra Pradesh is yet to become functional. For over 10 months, people seeking information from public authorities under the jurisdiction of the AP SIC have had no recourse to the independent appellate mechanism prescribed under the RTI Act and their right to information is violated.
49. In response, affidavit of the Additional Secretary to Government GA(AR) Department, AP Secretariat, is filed wherein it is mentioned that the Selection Committee met twice, i.e. on 13th December 2017 and 12th January 2018. It selected three candidates for appointment to the post of Information Commissioners and file for approval was sent to the Governor of Andhra Pradesh on 6th August 2018, return whereof is awaited. This affidavit is dated 24th August 2018. We are informed that these three Information Commissioners have since been appointed.
50. The affidavit further states that another notification was issued calling upon applications for filling up of the post of SCIC and remaining Information Commissioners. It is, however, not mentioned as to when this notification inviting applications for SCIC and Information Commissioners was issued. It is also not understood as to why steps were not taken for filling up of the post of SCIC as the Chief, who is the head of the Commission, performs crucial role insofar as functions of the SIC is concerned. As per Section 15(4) of the Act, the general superintendence, direction and management of the affairs of the SIC vests in the SCIC. We, therefore, get an impression that a very ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] lackadaisical approach is adopted in filling up of this post and the AP SIC is virtually non functional since May 2017. May be, with three Information Commissioners who have recently been appointed, AP SIC shall get activated, but to limited extent. However, that hardly serves the purpose and does not make the SIC fully functional.
51. We, therefore, impress upon the State of Andhra Pradesh to fill up the post of SCIC and also the remaining posts of Information Commissioners at the earliest and in any case within three months from the date of this judgment. STATE OF TELANGANA
52. In the affidavit filed by the State of Telangana, it is accepted that as on 23rd January 2019, 10102 appeals and complaints were pending before the Telangana SIC. Bifurcation thereof has also been given. The affidavit also discloses that between 23rd October 2017 to 23rd January 2019, 64.50% of the appeals/ complaints received were disposed of.
53. It is further stated that Telangana SIC was constituted on 13th September 2017. A Chief Information Commissioner and State Information Commissioner have been appointed vide G.O.Ms. No. 228 and G.O.Ms. No. 227, both dated 15th September 2017. The appointment of the Chief Information Commissioner and State Information Commissioner have been made in transparent manner by constituting a Committee vide G.O.Ms. No. 219, GA (GPM&AR) Dept. dated 13th September 2017 with the Chief Minister of Telangana as Chairperson, the Leader of the Opposition and the Deputy Chief Minister as Members for appointment of the Chief Information Commissioner and State Information Commissioner in Telangana SIC.
54. We find that the composition of Telangana SIC with only SCIC and one Information Commissioner is too inadequate having regard to the pendency and also the number of cases which are filed on monthly/ yearly basis. In the earlier affidavit filed by the State of Telangana on 6th September 2018, it was stated that as on 13th September 2017, when the Commission was constituted, there were a total of 6825 pending cases. This figure rose to 9341 on 30th June 2018 and as on 23rd January 2019, the pendency has increased to 10,102. In such a scenario, if sufficient number of Information Commissioners are not appointed, the pendency will keep increasing and piling up. Therefore, we feel that for proper functioning of the Telangana SIC, there should be at least four more Information Commissioners appointed, for the time being. This suggestion may be considered and decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months from the date of this judgment. STATE OF MAHARASHTRA
55. As per the petitioners, the MAH SIC is functioning without a SCIC since April 2017 and one of the Information Commissioner is given additional charge as SCIC. Further, the Commission is functioning with only 7 Information Commissioners. It is also mentioned that at the end of February 2018, more than 40,000 appeals and complaints were pending before the Commission.
56. In reply, the State Government has mentioned that there are 8 sanctioned posts, i.e. 1 SCIC and 7 Information Commissioners. Out of these, three are lying vacant and these fell vacant on 1st June 2018, 4th November 2018 and 10th November 2018 respectively. It is mentioned that emergence of vacancies and appointment by selection is a continuous process. The Selection Committee had held its last meeting on 30th November 2018 wherein one candidate had already been recommended for appointment.
57. Pertinently, the respondent State has not denied pendency of 40,000 appeals and complaints as on February 2018. It has also not given any figures about the disposal of cases by the SIC. Though it is mentioned that the sanctioned strength is only 8 (and not 11 as contended by the petitioners), as of today, 2 Information Commissioner posts are to be filled. No doubt, these posts became vacant only in November 2018. We expect that steps be taken in advance so that such posts are filled up immediately after they became vacant and they do not remain unfilled for long period. In this behalf, general directions are given at the end. Further, going by the pendency, which is huge, it would be appropriate if at this juncture the SIC has a total strength of 1 SCIC and 10 Information Commissioners. This suggestion may be considered and decision in this behalf shall be taken by the State Government within one month and the newly created posts shall be filled up within six months from the date of this judgment. STATE OF GUJARAT
58. In respect of this State, the petition avers that the SCIC retired in January 2018 and the position is currently vacant. In the reply affidavit it is mentioned that the post of SCIC has been filled up and one Shri D.P. Thaker has been appointed. It is also mentioned that there are ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] two more vacant posts of Information Commissioners and to fill up these two vacancies advertisement was issued on 19th May 2018 and the applications have been received. It is further stated that these posts will be filled up as early as possible. The affidavit was filed on 21st January 2019. We expect that these two posts are also filled within one month as it is mentioned that the applications received were submitted to the Selection Committee as far back as on 11th June 2018. STATE OF KERALA
59. In respect of Kerala SIC, the petitioners state that it is functioning with a single Commissioner, i.e., CSIC. It is notwithstanding the fact that as on 21st October, 2017 nearly 14,000 appeals and complaints were pending with the Commissioner.
60. In reply affidavit, filed on behalf of State of Kerala, it is, however, stated that Kerala SIC consists of a CSIC and and 5 Information Commissioners. However, at present, there is only one CSIC. Therefore, 5 vacancies of Information Commissioners remain unfilled. In this behalf, it is mentioned, that for filling up of these vacancies Notification dated 11th October, 2017 was issued inviting applications. In response, 192 applications were received, Selection Committee considered these applications and ultimately 4 Information Commissioners were appointed to assume charge on 11th May, 2018. However, in the meantime, few writ petitions came to be filed in the Kerala High Court because of which recruitment to the remaining one post of Information Commissioner has not been processed. It is, however, admitted that 10582 appeals and 4155 complaints were pending before the Commission as on 31st July, 2018. In view thereof we expect the State Government to ensure timely appointment to the Commission in future. STATE OF KARNATAKA
61. Karnataka SIC is functioning with 05 Commissioners, namely, 01 CSIC and 4 Information Commissioners. As on 31st October, 2017 33,000 appeals and complaints were pending.
62. In the counter affidavit, it is mentioned that Notification for filling up of the posts of CSIC and 2 Information Commissioners was issued on 7th August, 2018 against which 419 applications have been received. It is further stated that the meeting of the Selection Committee constituted under Section 15 of the RTI Act is awaited. This affidavit was filed on 8th December, 2018. Last date for receiving the application was 22nd September, 2018. It appears that after receipt of the applications, for three months nothing happened. In these circumstances, we impress upon the Selection Committee to undertake the selection process so that the posts are filled within two months from today.
63. Further more, having regard to the alarming pendencies of the complaints and appeals before the Karnataka Information Commission, it would be appropriate to consider increasing the strength of Information Commissioner. In our view, Commission needs to function with full strength, namely, 1 CSIC and 10 Information Commissioners and we recommend accordingly. This recommendation be considered and decision thereon be taken within one month. Thereafter, process should be initiated and completed within six months from the date of this judgment. STATE OF ODISHA
64. The Odisha SIC had been functioning with 3 Commissioners, including the Chief as on the date of filing of the petition, whereas more than 10000 appeals and complaints were pending as on October 31, 2017. In the counter affidavit, it is stated that the Odisha Commission was constituted vide Notification dated 29th October, 2005 with one CSIC and one Information Commissioner. Subsequently, two more posts of Information Commissioners were created on 5th April, 2010 and 9th July, 2012 respectively. At present, the strength of Odisha SIC is 1 CSIC and 3 Information Commissioner. One post of Information Commissioner is lying vacant since 27th May, 2015. It is further stated that advertisement for filling up of these posts is issued and the last date for receipt of the application was 31st January, 2019. Selection Committee is also constituted to fill up the posts. We expect the said posts to be filled up within two months.
65. Insofar as pendency of cases is concerned, the respondent accepted that as on the date of filing of the affidavit, i.e., 18th January, 2019, 1998 complaint cases and 9764 appeals were pending before the Commission. The respondents have also filed the chart containing receipt and disposal of the complaint cases as well as appeals. In the year 2018, only 522 complaints were disposed of. Likewise 2500 appeals were disposed of. It shows that there is a necessity for more Information Commissioners and to begin with, at least, three more posts of Information Commissioners should be created. We are, therefore, of the opinion that the State Government should immediately consider creating more posts of Information Commissioners. Decision in this behalf shall be ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] taken by the State Government within one month and the newly created posts shall be filled up within four months from the date of this judgment. STATE OF NAGALAND
66. The petitioners have averred in the petition that Nagaland SIC has been functioning without SCIC since September, 2017. No counter affidavit is filed on behalf of State of Nagaland. Since the grievance in the petition is only about non-appointment of CSIC, we direct the State Government to take immediate steps for filling up of the said posts, so that posts are filled up within six months from today. GENERAL DIRECTIONS FOR CIC & SCICs
67. (i) Insofar as transparency in appointment of Information Commissioners is concerned, pursuant to the directions given by this Court, the Central Government is now placing all necessary information including issuance of the advertisement, receipt and applications, particulars of the applicants, composition of Selection Committee etc. on the website. All States shall also follow this system. (ii) Insofar as terms and conditions of appointment are concerned, no doubt, Section 13(5) of RTI Act states that the CIC and Information Commissioners shall be appointed on the same terms and conditions as applicable to the Chief Election Commissioner/Election Commissioner. At the same time, it would also be appropriate if the said terms and conditions on which such appointments are to be made are specifically stipulated in the advertisement and put on website as well. (iii) Likewise, it would also be appropriate for the Search Committee to make the criteria for shortlisting the candidates, public, so that it is ensured that shortlisting is done on the basis of objective and rational criteria. (iv) We also expect that Information Commissioners are appointed from other streams, as mentioned in the Act and the selection is not limited only to the Government employee/ex-government employee. In this behalf, the respondents shall also take into consideration and follow the below directions given by this Court in Union of India vs. Namit Sharma6 “32. (iii) We direct that only persons of eminence in public life with wide knowledge and experience in the fields mentioned in Ss. 12(5) and 15(5) of the Act be considered for appointment as Information Commissioner and Chief Information Commissioner. (iv) We further direct that persons of eminence in public life with wide knowledge and experience in all the fields mentioned in Ss. 12(5) and 15(5) of the Act, namely, law, science and technology, social service, management, journalism, mass media or administration and governance, be considered by the Committees under Ss. 12(3) and 15(3) of the Act for appointment as Chief Information Commissioner or Information Commissioners. (v) We further direct that the Committees under Ss. 12(3) and 15(3) of the Act while making recommendations to the President or to the Governor, as the case may be, for appointment of Chief Information Commissioner and Information Commissioners must mention against the name of each candidate recommended, the facts to indicate his eminence in public life, his knowledge in the particular field and his 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.” (v) We would also like to impress upon the respondents to fill up vacancies, in future, without any delay. For this purpose, it would be apposite that the process for filling up of a particular vacancy is initiated 1 to 2 months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy. ANJALI BHARDWAJ AND ORS v. UNION OF INDIA AND ORS [A. K. SIKRI, J.] 6 (2013) 10 SCC 359
68. We would like to place on record that aforesaid directions are given keeping in view the salient purpose which RTI Act is supposed to serve. This Act is enacted not only to sub-serve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution. It also has vital connection with the development. All these aspects are highlighted above.
69. The writ petition stands disposed of in the aforesaid terms. However, the liberty is given to the petitioners to approach the Court again, either by way of filing interlocutory application in this petition or preferring another writ petition, if the occasion so demands. Kalpana K. Tripathy Petition disposed of.