Moneylife: Pune: Friday, 11 July 2014.
While
Information Commissioner Ravindra Jadhav entrenches himself as Pune division’s
IC, it is important to understand why appointments in Maharashtra are different
from any other state in India.
Information
Commissioner (IC) Ravindra Jadhav holds the Pune division post as of Monday.
The board with his name etched on it and Right to Information (RTI)
applicants, who come for hearings of
their second appeals, is a picture of normalcy. However, the undercurrent of
autocracy that lies in the way this seat was gifted to Jadhav speaks of a
danger to the sanctity of appointments of Information Commissioners, if one
goes by the rules implemented for Maharashtra.
So, what is
wrong if Ratnakar Gaikwad transfers Ravindra Jadhav from one commission to
another? Let us examine.
Unlike any
other state in India, wherein the State Information Commission and entire
strength of ICs is concentrated only at one particular city, that is the
capital of the relevant State, Maharashtra’s formula is completely different.
When the RTI
Act was implemented in 2005, Maharashtra Government decided upon setting up
Information Commissions at different regions as a gesture of citizen
convenience. Meaning, if you are a Nagpur resident and have filed a second
appeal, you do not have to travel the distance to Mumbai, but you have the
privilege of having an IC in Nagpur itself, which will conduct the hearing.
Maharashtra
has seven benches of Information Commissions located in Pune, Greater Mumbai,
Konkan, Amravati, Nashik, Aurangabad and Nagpur, and the State Chief
Information Commission, which is in Mumbai. Thus, appointments of ICs in
Maharashtra are not general in nature. They are region-specific and bench
specific. In case a transfer has to be made, the entire process of
recommendation by the High Powered Committee (HPC) and a signature by the
appointing authority, the Governor, is mandatory.
Therefore,
despite Section 14 stating "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’’, in Maharashtra the SCIC cannot trample or encroach on the
Governor’s authority to appoint an information commissioner.
To reiterate,
as per the norms, the Governor is the only authority to appoint Information
Commissioners after a High Powered Committee (HPC) comprising the Chief
Minister, the Leader of Opposition in the Legislative Assembly and Deputy Chief
Minister recommends a name for the post. This clearly means, that the Chief
State Information Commissioner (SCIC) of Maharashtra cannot be the authority to
transfer an IC from one region to another, as per his whims and fancies. In
fact, in a letter to the state government dated 28 November 2013, SCIC Gaiwad
had brought to its notice, that vacancies of Information Commissioners in
Amravati, Nagpur, Brihan Mumbai and Konkan need to be filled, which means he
has been abiding by the rules that are exclusive to Maharashtra. So, why did he
flout them in the case of Jadhav? And at whose behest?
In a trail
mail started by RTI activist Sarbhajit Sen who feels the issue is being blown
out of proportion, Lt Gen SCN Jatar (retd), a noted RTI activist has written,
“Nowhere could I spot even by remote inference that someone down the line can
change the place of posting once the appointing authority has specifically
mentioned it in the appointment letter. Else, the letter would have read
differently without giving the place of posting of the IC as is done in the
Services. Promotion or first appointment and postings are never mixed up in
good business rules.”
“In the
industry as well as in government, the authority that can appoint and those
that can issue postings are not always the same. By no stretch of imagination
can the provision 'the general superintendence, direction and management of the
affairs of the State Information Commission shall vest in the State Chief
Information Commissioner' mean that the
CIC is empowered to move around ICs at his whim and fancy. In fact, postings of
senior officers are always at a higher level than the immediate boss. Else,
there would have been a separate clause to that effect or a word saying that
'the officer is being posted initially at so and so place and further postings
would be at the discretion of the CIC in public interest',” he said.
RTI activist
Vijay Kumbhar, who has vociferously raised this issue says, “The SCIC Ratnakar
Gaikwad, while transferring three ICs last year had defied even the legal opinion of Advocate General (AG) that 'A
State Information Commissioner cannot be transferred unless he resigns from his
present posting'.’ Jadhav has not resigned – he has been simply transferred.”
In a letter
to the Governor last year, Kumbhar had stated, “This was revealed after an
official copy of AG's report in a similar case few years back was obtained.
AG's report about the transfer clearly states that even if the high power
committee (comprising Chief Minister, Deputy Chief Minister & Leader of
Opposition in Vidhansabha) decides to recommend to the Governor transfer on new
posting for an SIC, his resignation from his present posting is essential. Even
when this report is in the records of the General Administration Department and
State Information Commission, CIC Gaikwad ordered transfers of SIC, MH Shah
from Nasik to Pune, Bhaskar Patil from Amravati to Nagpur and PW Patil from
Nagpur to Nasik in June 2012 within a week after taking over as CIC.”
Since there
is no power vested in state CIC for such transfers in RTI Act 2005, Vijay
Kumbhar had written to the Governor to revoke these illegal transfers.
“The legal
opinion in this report has confirmed his contention that transfers of SIC's by
SCIC Gaikwad were illegal. As per the report in 2007-08, the SIC Nagpur Vilas
Patil had requested to the High Power Committee for his transfers to Nasik. The
Committee under the chairmanship of Chief Minister accepted his request and
sent recommendation of his transfer to the Governor. However the Governor's
office observed that there was no provision of SIC's transfers in RTI Act, 2005
and ordered for the opinion of law and judiciary department and the AG.”
In his report
submitted to the Government on 14 February 2008 the AG states, 'Minutes of the
high power committee clearly indicate a specific recommendation of commissioner
for a specific reason. Committee can change the decision provided he (Vilas
Patil) resigns from his present post. His appointment would be a fresh
appointment requiring his resignation from his post at Nagpur. Neither an
amendment nor a partial notification of the extant notification would serve the
purpose.”
Following
this complication Patil withdrew his request for transfer.
As per the
minutes of the HPC, each of these three SIC's had been recommended for a
specific region by the committee and the appointment letters signed by the Chief
Secretary also indicate their postings. It is clear that even the HPC cannot
transfer an SIC, then how can state CIC order and execute such transfers? The
State CIC has clearly defied all authorities and procedures.
Let us for a
minute say these legal technicalities are irrelevant. Then why not get them out
of the way through an official process? Until such time, no one can be above
law, and therefore, it will continue to be an issue.
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