Who can transfer an Information Commissioner under RTI, asks Bombay HC

Vinita Deshmukh 14 July 2016

Public Interest

Against the backdrop of Maharashtra State Chief Information Commissioner, Ratnakar Gaikwad having ‘illegally’ issued transfer orders of information commissioners in 2012 and 2014 and the state government not questioning it, the Bombay High Court has now asked as to “just who is empowered to transfer an information commissioner?”

Hearing a public interest litigation (PIL) filed by Vijay Kumbhar on 8 July 2016, the High Court asked the state government to file a fresh affidavit, as its earlier affidavit submitted on 5 March 2015, “reiterates the stand taken by the Secretary, State Information Commission. Let the stand of the state government be made clear as to who is empowered to transfer the State Information Commissioner.”

The stand taken in the earlier affidavit supported Gaikwad’s delegation of powers to himself for issuing transfer orders to information commissioners, when, as per the Right to Information (RTI) Act, he has no powers to even sanction a casual leave.

In what could turn out to be an embarrassment to the state government, the Bombay High Court has also asked it “to make available the records pertaining to appointment of the various state information commissioner and advertisements also” before 22 July 2016. Thanks to high handedness by Gaikwad, there is little chance of state government having made these appointments, transparent enough to publicise the vacancies.

RTI activist Kumbhar, before seeking the legal intervention, had made an official complaint to the Governor of Maharashtra, stating that the SCIC’s jurisdiction is confined only to matters pertaining to RTI Act and not appointments. He stated in his plea to the Governor, “€the SCIC does not have to consult any other law enforcing or public authority to issue an order pertaining to the RTI Act, but when it comes to the appointment of Information Commissioners, Governor is the final authority. The SCIC has no authority to sanction even a casual leave of any IC; it is the Governor’s prerogative. Therefore, Gaikwad has no authority to merely send a 'CC' of his order to the Governor, which he has done in the case of Rajendra Jadhav, who he transferred to Pune.”

“The State Chief Information Commissioner (SCIC) Ratnakar Gaikwad, while transferring three SIC's in 2014 had defied the legal opinion of Advocate General of Maharashtra (AG), that 'A State Information Commissioner cannot be transferred unless he resigns from his present posting.' This was revealed after an official copy of correspondence mentioning AG's report in a similar case few years back was obtained,” Kumbhar pointed out.

AG's report about the transfer clearly states that even if the High Power Committee (HPC) comprising the Chief Minister, Deputy Chief Minister and Leader of Opposition in Vidhan Sabha) decide to recommend to the Governor, to transfer a SIC, his resignation from his present posting is mandatory. Rues Kumbhar, “Even when this report was there in the records of general administration department (GAD) and State Information Commission, 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 SCIC. Since there is no power vested in SCIC for such transfers in RTI Act 2005, I had then written to the Governor to revoke these controversial transfers.”

RTI activist Anil Galgali from Mumbai also pursued this issue and expressed the same views, by quoting the example of SIC Vilas Patil. He says, “€the RTI Act 2005, has no provision for transfer of State ICs (SIC). The power to appoint, or remove SICs are vested the Governor. During 2007, Vilas Patil, the then SIC at Nagpur sought transfer to Nashik. A High Power Committee headed by the state Chief Minister (CM), with the deputy CM and leader of opposition as its members, recommended to the Governor the transfer of the SIC. The Governor sought opinion from the Ministry of Law and AG. The AG pointed out that as per Section 15 of RTI Act, the Governor can appoint an SIC on recommendations from the High Power Committee.”

“After the AG's opinion, Vilas Patil first resigned as SIC at Nagpur, then the Committee recommended his name for appointment as SIC at Nashik. The Governor accepted the recommendation and issued order to appoint Vilas Patil as SIC at Nashik,” the activist pointed out.

You may also want to read€

Stepping beyond his powers, state CIC appoints Pratibha Patil’s secretary as Pune IC

Maharashtra SCIC illegally transferred three SICs?

Vijay Kumbhar blog:http://vijaykumbhar.blogspot.in/2013/07/vijay-kumbhar-Right-to-Information-state-information-commission-transfers-Advocate-General-High-Power-committee-Governor.html

(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)

Comments

User

Ishwer Naik

10 years ago

C H S is a Private Association of like minded persons and what the State does is just an interference sans the legal right. As simple as that.

vswami

1 decade ago

To ADD:
AS IS SAID:
"AG's report about the transfer clearly states that even if the High Power Committee (HPC) comprising the Chief Minister, Deputy Chief Minister and Leader of Opposition in Vidhan Sabha) decide to recommend to the Governor, to transfer a SIC, his resignation from his present posting is mandatory."

Should that be so, is there not an unintended lacuna, crying loud for suitable amends to have been plugged in, on a timely basis, clearly providing for the power to transfer, in genuinely justifiable cases ?

vswami

1 decade ago

IMPROMPTU
It must , by any standard, have been quite embarrassing, not only to the 'state government' but also everyone else who should be/ could be expected to be more concerned but left nonplussed !

Albeit having been given no positive clue, simply going by common sense thinking, it is to be believed that the empowered highest authority, who has been acting as the government's delegated officer, under whose official seal and signature 'the appointment' was originally made, need to have been empowered in all such related matters , including the incidental power to 'transfer'; unless there is some other not-so obvious hitch or impediment in his doing so ?!......

Over to law experts, if not simple social activists, who may be more knowledgeable and equipped to enlighten the common man !