CHANDIGARH-MONDAY: Punjab & Haryana
High Court, on Monday, has issued notice to the Haryana Govt.; on an
application seeking interim relief of staying the operation and
proceedings being undertaken in pursuance to the Advt. issued for appointment
of State Information Commissioners in Haryana. Sh. Pardeep Kumar Rapria, an
Advocate practicing in the High Court had challenged the advertisement, in the
case titled ‘Pardeep Kumar Rapria Vs. Chief Minister, Haryana-cum-Chairman,
Committee for Selection of State Information Commissioners and another’, calling
applications for appointment of Information Commissions, on the ground that there
was arbitrariness,
opaqueness and vagueness in the criteria
for the search and selection of the State Information Commissioners,
culminating into the violation of Article 14 and 16 of the Constitution. On 13th
December, 2018, Justice Ritu Bahari of the High Court while deleting the name
of Chief Minister from the list of parties had issued notice to the Haryana
Govt. and had posted the matter for hearing on 21st December, 2018,
and then on 11th January, 2019. However, on both dates the matter
could not be heard and the same was posted for hearing on 11-07-2019.
In the meanwhile, the
Haryana Govt. has filed reply to the effect that the Govt. has constituted a
Search Committee to recommend candidates for the consideration of Selection
Committee consisting of Chief Minister, Leader of Opposition and another cabinet
minister. After this reply Mr. Rapria in his application for interim relief has
submitted before the High Court that the reply filed by the Haryana Govt. is
self-explanatory of the fact thatt, at present, there is a complete opaqueness
and arbitrariness in the appointment of information commissioners, so much so,
that the advertisement issued for inviting application for such posts does not
disclose any objective criteria and selection process for selecting the most
qualified ‘person of eminence in public life with wide knowledge’ in the
fields specified in the RTI Act, as an Information Commissioner. The Petitioner pleaded in his
application that the reply reflect the arbitrary and absolute
discretion conferred on the Search Committee, so much so, that the job of the
Selection Committee is also performed by the ‘Search Committee’ and
there is no certainty in the principles while arriving at the procedure and
criterion adopted by the Search Committee; while making suitable recommendations.
The relevant portion of the notification attached with the reply reads:
“The search committee shall
devise its own principles while arriving at the procedure and criterion adopted
by it while making suitable recommendations……There would be no requirement to
adopt a fixed set of said principles, procedure and criterion to be adopted and
the Search Committee in its own wisdom may fix and/or vary the said principles,
procedure and criteria at any time…
“The Search Committee shall
recommend three times as many times as the vacancies notified to it to be
considered for being filled up……”
“The Government shall have the
competence to change or vary any/all the conditions constituting these
procedures at its discretion and at any time”
In such situation, one
wonders, as to how the factor of ‘eminence in public life with wide
knowledge and experience’ would be determined. The appointments on the public posts are made by the State as a trustee
of the citizens. The pay and perks to the Information Commissioners from the
State Exchequer amounts to conferment of State Largesse and State can’t give
largesse to any person according to the sweet will and whim of the political
entities and/or officers of the state.
It is worthwhile to
highlight that ‘the Search Committee shall recommend three times as many
times as the vacancies notified’ Meaning thereby, the maximum number of
candidates are eliminated by the Search Committee itself and the Selection
Committee constituted under the RTI Act had no occasion to consider the names
of majority of candidates. As in
the present case, the reply of the Respondents reflects that total 229
applications have been received and only 9 names will be recommended to the
Selection Committee, as three vacancies of the Information Commissioners have
notified. Thus, the names more than 96% of the total candidates have been
eliminated by the Search Committee itself, that’s also without any intelligible
objective criteria to find out the suitable candidates with qualifications of person of eminence in public life with
wide knowledge’ in the
fields specified in the Section 15(5) of the RTI Act. Whereas, the job of the
Search Committee is supposed to be only secretarial, not the task of
eliminating the majority of candidates without any intelligible criteria or
procedure. The Article 14 of the Constitution envisages that the selection
process should be fair, transparent and objective, while keeping in view the
institutional integrity of the Information Commission. The State action must
not be arbitrary and must also not be seen to be so.
The Petitioner contends
that the Hon’ble Supreme Court in a Writ Petition; while dealing with the issue of selection and
appointment of Information Commissioners; on 13-12-2018, had directed the Union
of India and other States to the effect that, “The respondents shall put on
the website the names of the Search Committee, the names of the candidates who
have been shortlisted as well as the criteria which is followed for selection.”
However, no such details have been made available by the Haryana Govt.
After hearing the arguments the High Court;
while issuing notice to the Haryana Govt., has posted the matter for hearing on
14-02-2019.
ORIGINAL APPLICATION FOR STAY
IN THE
HIGH COURT OF PUNJAB AND HARYANA
AT
CHANDIGARH
(CIVIL
WRIT JURISDICTION)
CM-873- 2019
In CWP No. 30994 of
2018
IN THE MATTER OF:-
Pardeep
Kumar Rapria...................PETITIONER
//VERSUS//
Chief Minister, Haryana-cum-Chairman, Committee for Selection of State Information Commissioners & another.......RESPONDENTS
Application
u/s 151 C.P.C. for granting the Interim Relief sought in the Prayer No.
(ii) of the C.W.P. No. 30994 of 2018, by
way of staying the operation and proceedings being undertaken in pursuance to
the Advt. No./Letter No. 5/21/2018 – 1AR, Dated: 11th June, 2018,
followed letter dated 14th August, 2018, in view of the Respondent’s
reply dated: 07-01-2019, which is self-explanatory of the arbitrariness,
opaqueness and vagueness in the criteria for the search and selection of the State
Information Commissioners, culminating into the violation of Article 14 and 16
of the Constitution.
RESPECTFULLY SHOWTH:
1.
That Petitioner had filed the CWP-30994-
2018 for issuing a writ
in the nature of certiorari quashing the
arbitrary,
non-speaking, and vague Advt. No./Letter No. 5/21/2018 – 1AR, Dated: 11th
June, 2018, followed letter dated 14th August, 2018 (ANNEXURE P-3), issued by the Respondents
in
violation of the Article 14 & 16 of the Constitution of India, and also
issued in contempt of the law declared by Hon’ble Supreme Court, in terms of
the Article 141 & 144 of the Constitution of India. Further, in the Prayer
No. 2 of the aforesaid writ petition; the Petitioner had sought the interim
relief by way of staying the operation and proceedings being undertaken in
pursuance to the Advt. No./Letter No. 5/21/2018 – 1AR, Dated: 11th
June, 2018, followed letter dated 14th August, 2018.
2.
That this Hon’ble Court on dated: 13-12-2018; while
issuing notice to the State of Haryana; had granted short adjournment for
dated: 21-12, for considering the prayer for interim relief sought in the Prayer
No. (ii) of the aforesaid CWP. However, somehow, the matter couldn’t be heard.
Then, keeping in view the urgency of the matter, the case for posted for
hearing on 11-01-2019. However, on this date, the matter was shown in the
incomplete list and the same was adjourned to 11-07-2019, whereas the reply had
already been filed by the Respondent.
3.
That the reply filed by the Respondent
nowhere states that the cessation/termination
of holding of office of profit, pursuing any profession or carrying out any
business is not a condition precedent for participating in the selection
process of the State Information Commissioners, which fortifies the belief of the Petitioner
that at the last juncture the candidature of the Petitioner may be rejected on
the ground that he has not suspended his law practice.
4.
That the reply filed by the Respondent is
self-explanatory of the arbitrariness, opaqueness and vagueness in the
criteria for the search and selection of
the State Information Commissioners, culminating into the violation of Article
14 and 16 of the Constitution. The Annexure R-1 & R-2 annexed
with the reply reflect the arbitrary and absolute discretion conferred on the
Search Committee, so much so, that the job of the Selection Committee is also
performed by the ‘Search Committee’ and there is no certainty in the
principles while arriving at the procedure and criterion adopted by the Search
Committee; while making suitable recommendations . The relevant portion of the
aforesaid Annexure reads:
“The search committee shall devise its own
principles while arriving at the procedure and criterion adopted by it while
making suitable recommendations……There would be no requirement to adopt a fixed
set of said principles, procedure and criterion to be adopted and the Search
Committee in its own wisdom may fix and/or vary the said principles, procedure
and criteria at any time…
“The Search Committee shall recommend three
times as many times as the vacancies notified to it to be considered for being
filled up……”
“The Government shall have the competence to
change or vary any/all the conditions constituting these procedures at its
discretion and at any time”
One wonders, as to how the
factor of ‘eminence in public life with wide knowledge and experience’ would be
determined. The
appointments on the public posts are made by the State as a trustee of the
citizens. The pay and perks to the Information Commissioners from the State
Exchequer amounts to conferment of State Largesse and State can’t give largesse
to any person according to the sweet will and whim of the political entities
and/or officers of the state. The State Govt. represents the interests of
citizens and whoever is in charge of the affairs of the Govt., is not more than
a trustee or a custodian of the public interests. The protection of public
interests to the maximum extent and in best possible manner is the primary
obligation of the State. This obligation imposes on them the duty to engage the
most competent persons to protect the Fundamental Rights and other rights of
the citizens.
5.
That it is worthwhile to highlight that ‘the
Search Committee shall recommend three times as many times as the vacancies
notified’ Meaning thereby, the maximum number of candidates are eliminated
by the Search Committee itself and the Selection Committee constituted under
the RTI Act had no occasion to consider the names of majority of candidates. As in the present case, the reply of the
Respondents reflects that total 229 applications have been received and only 9
names will be recommended to the Selection Committee, as three vacancies of the
Information Commissioners have notified. Thus, the names more than 96% of the
total candidates have been eliminated by the Search Committee itself, that’s
also without any intelligible objective criteria to find out the suitable
candidates with qualifications of person of eminence in public life with wide knowledge’ in the fields specified in the Section
15(5) of the RTI Act. Whereas, the job of the Search Committee is supposed to
be only secretarial, not the task of eliminating the majority of candidates
without any intelligible criteria or procedure. The job of eliminating and
selection of candidates has been assigned to the selection committee,
constituted under the RTI Act.
The Article 14 of the Constitution envisages
that the selection process should be fair, transparent and objective, while
keeping in view the institutional integrity of the Information Commission. The
State action must not be arbitrary and must also not be seen to be so.
6.
That it is relevant and important to
mention here that the Hon’ble Supreme Court in Writ Petition (Civil) No. 436/2018, while
dealing with the issue of selection and appointment of Information
Commissioners; vide interim order dated 13-12-2018 directed the Union of India
and other States to the effect that, “The respondents shall put on the
website the names of the Search Committee, the names of the candidates who have
been shortlisted as well as the criteria which is followed for selection.” However,
the Respondent, despite receiving the formal RTI Application from the
Petitioner, has failed to disclose the requisite details in connection with the
selection process.
7.
That if the sought for interim relief is
not granted the Respondent will complete the selection process; based on the
arbitrary, discriminate and opaque criteria, which will be ultimately culminate
into the violation of the Fundamental Rights of Petitioner as well as other
numerous candidates.
8.
That the balance of convenience is in the favour of
Petitioner.
PRAYER
Therefore,
in view of the aforesaid peculiar facts and circumstances read with the
contents of the current writ petition; this Hon’ble Court may kindly be pleased
to:
(i)
Grant the Interim Relief sought in the
Prayer No. (ii) of the C.W.P. No. 30994 of
2018, by way of staying the operation and proceedings being undertaken
in pursuance to the Advt.
No./Letter No. 5/21/2018 – 1AR, Dated: 11th June, 2018, followed
letter dated 14th August, 2018, in view of the Respondent’s
reply dated: 07-01-2019, which is self-explanatory of the arbitrariness,
opaqueness and vagueness in the criteria
for the search and selection of the State Information Commissioners,
culminating into the violation of Article 14 and 16 of the Constitution.
(ii)
Pass any other order or direction in the light
of the facts and circumstances of the present case.
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