Can the Chief Information Commissioner transfer an Information Commissioners to another place?
A bench of Mrs. Swapna S. Joshi, J. and V.M. Kanade, J. of the Bombay High Court has examined the Section 15(4) of the Right to Information Act, 2005 and given a ruling about the powers of the State Chief Information Commissioner. A brief of the order of the High Court in the case of PIL filed by Mr. Vijay Kirshna Kumbhar is given below.
Mr. Ravindra Jadhav was appointed as State Information Commissioner pursuant to the Notification issued under Section 15(3) of the said RTI Act, 2005 and was posted at Amravati. He was transferred by the State Chief Information Commissioner by an order dated 02/07/2014. Shri Ravindra Jadhav did not challenge the said order of transfer. However, Mr. Vijay Kirshna Kumbhar, who is a public activist and RTI Activist, filed a PIL questioning the authority of the State Chief Information Commissioner in issuing the order of transfer. Holding that the Petitioner is a responsible public activist, the High Court permitted him to file this Petition as PIL.
The question before the High Court was:-
Whether the State Chief Information Commissioner has a power to transfer the State Information Commissioners from one place to another by exercising power vested in him under Section 15(4) of the Right to Information Act, 2005 ?
The High Court held that:
1. Upon a conjoint reading of subsections (1), (2), (3) and (4) of Section 15 of the RTI Act, it is apparent that the power to appoint the State Chief Information Commissioner and all the State Information Commissioners is vested in specially constituted Committee, which then makes recommendations which are forwarded to the Governor who accepts the recommendations and the State Government then issues the Notification. The aforesaid subsections of Section 15 therefore, do not empower the Committee which is constituted to designate the place at which these Commissioners are to be appointed. The function of the specially constituted Committee is over as soon as it selects the State Chief Information Commissioner and State Information Commissioners.
2. For the purpose of internal management of the said Commission, power is vested in the State Chief Information Commissioner to decide the general administration, management and superintendence of the Commission. It is, therefore, not possible to accept the submission made by the learned Counsel for the Petitioner that since the Notification which is issued mentions the place at which each State Commissioner is to be appointed, the State Chief Information Commissioner does not have an authority to transfer the State Information Commissioners from one place to another.
3. The HC placed reliance on subsection (4) of Section 16 and observed that the State Chief Information Commissioner or the State Information Commissioner, if he wants to resign, has to give by writing under his hand, letter addressed to the Governor. Therefore, the State Chief Information Commissioner does not have an authority to transfer the State Information Commissioner and only the Governor could do so. Reliance was also placed on Section 17 of the Act which speaks about removal of State Chief Information Commissioner or State Information Commissioner.
4. The High Court ruled that both these provisions will not apply to the facts of the present case since subsection (4) of Section 16 speaks about the manner in which the resignation is to be given by the State Chief Information Commissioner or State Information Commissioner and Section 17 speaks about the procedure which is to be followed for removal of the Chief Information Commissioner or State Information Commissioner. Both these provisions will have no application to the facts of the present case.
5. The Court observed that the RTI Act was passed in order to ensure that there is transparency in the functioning of the Governments and their instrumentalities and in a democratic country citizens are required to be informed about the manner in which the Governments and their authorities function, so that there is no scope for arbitrary action and also to contain corruption and lastly to hold Governments and their instrumentalities accountable to the governed. State Information Commission is therefore expected to act without fear or favour and in an independent manner without being influenced by the Executive and State Authorities. The scheme of the Act therefore reveals that the function of the specially constituted Committee is to make recommendations for appointments to the Governor and after approval is sought for such recommendations from the Governor, a Notification is issued. The functioning and management of the Commission is not expected to be tinkered or interfered with by the Committee which appointed it. The State Chief Information Commissioner is expected to act in an independent manner and therefore power is vested in him to have general superintendence over the functioning of the Sate Information Commission.
6. The Court held that the State Chief Information Commissioner has power under section 15(4) of the said Act to transfer the State Information Commissioner from one region to another for the purpose of ensuring that the Commission functions in a smooth manner. If there is any curb on his authority, the very aim and object of having the Sate Information Commission would be rendered nugatory and would be defeated.
Citation: Bombay High Court in Mr. Vijay Kirshna Kumbhar v. The State of Maharashtra and others in PIL/248/2014
Cases discussed : Lokesh Chandra & Anr; and Division bench order in Delhi Development Authority case