Dr. Neeraj Srivastava vs State Of U.P. And 3 Others
2017 Latest Caselaw 7312 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 07
 

 
Case :- WRIT - C No. - 51308 of 2017
 

 
Petitioner :- Dr. Neeraj Srivastava
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Gunjan Sharma,Namit Kumar Sharma
 
Counsel for Respondent :- C.S.C.,Kunal Ravi Singh
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Manoj Kumar Sharma holding brief of Sri Namit Kumar Sharma, learned counsel for the petitioner, Sri Mohan Srivastava, learned standing counsel for respondent No.1 and Sri Rahul Jain holding brief of Sri Kunal Ravi Singh, learned counsel for respondent Nos.2, 3 & 4.

Facts:

2. Briefly stated facts of the present case are that to obtain certain informations the petitioner moved seven separate applications before different authorities/ Offices as under:-

Sl. No.

Date of Application

Name of Office

16.12.2014

Chief Minister/ Higher Education Minister/ Public Information Officer in the office of Chief Minister

24.12.2014

Chief Minister/ Higher Education Minister/ Public Information Officer in the office of Chief Minister

29.12.2014

Chief Minister/ Higher Education Minister/ Public Information Officer in the office of Chief Minister

24.01.2015

Chief Minister/ Higher Education Minister/ Public Information Officer in the office of Chief Minister

28.01.2015

Director/ Public Information Officer, Higher Education Directorate Allahabad

29.01.2015

Principal Secretary, Higher Education, U.P. State Government, Naveen Bhawan, Lucknow

02.02.2015

Principal Secretary, Higher Education, U.P. State Government, Naveen Bhawan, Lucknow

3. It is alleged by the petitioner that since the information as required by the aforesaid applications were not given by the concerned office/ officer and as such the petitioner filed single appeal on 02.06.2015 before the Chief Information Commission, Indira Bhawan, Lucknow, which was dismissed by the impugned order dated 11.10.2017 on the ground that under Section 19(1) or under Section 19(3) of the Right to Information Act, 2005 (hereinafter referred to as 'the Act'), separate appeals shall lie against each decisions or non-submission of information.

4. Aggrieved with this order, the petitioner has filed the present writ petition.

5. With the consent of the learned counsels for the parties, this writ petition is being finally heard without calling for a counter affidavit.

6. Learned counsels for the parties jointly state that following question is involved in this petition for determination which arises from the impugned order:

"Whether separate appeals under Section 19 of the Act shall lie from each application/ decision, or, single appeal may be filed against several orders or non-submission of information pursuant to several applications?"

Submissions:

7. Learned counsel for the petitioner submits that object of the Act is to provide information. Once the information has not been provided and a first appeal or second appeal as provided under Section 19(1) or Section 19(3) of the Act is preferred, it is wholly immaterial that such appeal is filed against several decisions or it arises from separate applications moved separately before different authorities. He submits that the Appellate Authority is bound to entertain the appeal and to give informations which have been required by the applicant/ petitioner under separate applications filed before different authorities/ offices.

8. Sri Mohan Srivastava, learned standing counsel and Sri Rahul Jain, learned counsel for respondent Nos.2 to 4 jointly submit that in terms of Section 19 of the Act read with Rule 8 of the Right to Information Rules, 2012, Rule 7 of the U.P. Right to Information Rules, 2015 and Rule 3 of the U.P. State Information Commission (Appeal Procedure) Rules, 2006, separate appeals shall lie against each decision or against non-submission of information pursuant to each application. 

9. On the query made by this Court as to whether there is any decision by this Court on the question involved in this petition, learned counsels for the parties jointly state that they could not lay their hands on any such decision.

Discussion and Findings:

10. I have carefully considered the submissions of learned counsels for the parties and perused the record before me.

11. As noted above, the petitioner has undisputedly filed seven separate applications before different authorities/ offices as noted above, to obtain different informations. However, he filed single appeal against non-submission of information by different authorities/ offices pursuant to the aforesaid seven applications. The appeal of the petitioner has been disposed of by the impugned order dated 11.10.2017 observing that single appeal shall not lie and, therefore, the petitioner may prefer separate appeals.

Relevant Provisions:-

12. Provisions relevant for the purposes of the controversy involved in this writ petition are Sections 7, 19 and 20 of the Right to Information Act, 2005, Rule 8 of the Right to Information Rules, 2012, Rule 7 of the U.P. Right to Information Rules, 2015 and Rule 3 of the U.P. State Information Commission (Procedure of Appeal) Rules, 2006, which are reproduced below:

" Sections 7, 19 and 20 of the Right to Information Act, 2005:-

7. Disposal of request.--(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:

Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.

(2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.

(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving--

(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded fbr the purpose of calculating the period of thirty days referred to in that subsection;

(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.

(4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection.

(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed:

Provided that the fee prescribed under sub-section ( 1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.

(6)Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in subsection (1).

(7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under section 11.

(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request,--

(i) the reasons for such rejection;

(ii) the period within which an appeal against such rejection may be preferred; and

(iii) the particulars of the appellate authority.

(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

19. Appeal.--(1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:

Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.

(3) A second appeal against the decision under sub-section (1) shall lie vvithin ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:

Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.

(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,--

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including--

(i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;

(v) by enhancing the provision of training on the right to information for its officials;

(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;

(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

(c) impose any of the penalties provided under this Act;

(d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.

20. Penalties.--(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or,obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:

Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.

(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.

Rule 8 of the Right to Information Rules, 2012:-

8. Appeal to the Commission.--Any person aggrieved by an order passed by the First Appellate Authority or by non-disposal of his appeal by the First Appellate Authority, may file an appeal to the Commission in the format given in the Appendix and shall be accompanied by the following documents, duly authenticated and verified by the appellant, namely-

(i) a copy of the application submitted to the Central Public Information Officer;

(ii) a copy of the reply received, if any, from the Central Public Information Officer;

(iii) a copy of the appeal made to the First Appellate Authority;

(iv) a copy of the Order received, if any, from the First Appellate Authority;

(v) copies of other documents relied upon by the appellant and referred to in his appeal; and

(vi) an index of the documents referred to in the appeal.

Rule 7 of the U.P. Right to Information Rules, 2015:-

7. (1) Any person who does not receive a decision from a State Public Information Officer within the prescribed time, or is aggrieved by a decision of a State Public Information Officer, as the case may be, may within the prescribed time, prefer an appeal to such officer who is designated as the First Appellate Authority. The appeal shall be submitted in the format given in Form 13. An appellant may file an appeal drafted on plain paper containing all details as required in Form 13. The First Appellate Authority shall dispose off the appeal in accordance with sub-sections (1) and (2) of section 19 of the Act and Rules.

(2) Any person aggrieved by an order passed by the First Appellate Authority or by non-disposal of his appeal within the prescribed period by the First Appellate Authority, may file a second appeal within the prescribed time to the Commission in Form 14. An appellant may file a second appeal drafted on plain paper containing all details as required in Form 14. Such appeal shall be accompanied by the following documents duly verified as true copies by the appellant:

(i) a copy of the request for information submitted to the State Public Information Officer under sub-section (1) of section 6 of the Act;

(ii) a copy of the reply received, if any, from the State Public Information Officer;

(iii) a copy of the appeal made to the First Appellate Authority under sub-section (1) of section 19 of the Act;

(iv) a copy of the order, if any, received from the First Appellate Authority;

(v) copies of other documents relied upon by the appellant and referred to in his appeal; and

(vi)a certificate of the appellant that no appeal on the same ground(s) against the same First Appellate Authority was filed by him earlier.

An appeal to the Commission should be typed, printed or written neatly and legibly, and should be filed in three copies.

(3) Every appeal filed with the Commission shall be examined by the Registrar. If the Registrar is of the view that the appeal is not in accordance with the provisions of these rules, he shall return the appeal to the appellant, pointing out the defect(s) therein for the removal of the defect(s), and enter the details thereof in a register maintained for the purpose in Form 11. If the Registrar is of the view that the appeal is in accordance with the provisions of these rules, he shall direct that the appeal be numbered and entered in a register maintained for the purpose in Form 15.

(4) After an appeal has been registered, the Registrar shall forward it to the Chief Information Commissioner or the Information Commissioner having jurisdiction over the matter.

(5) The Commission shall allot a case number to the appeal and fix the date for the first hearing of the appeal.

(6) The Commission shall issue notices to the appellant, the State Public Information Officer and the First Appellate Authority concerned at least 15 days before the date fixed for the hearing. A copy of the appeal shall also be sent to the State Public Information Officer and the First Appellate Authority directing them to submit their written statements in two copies by the date fixed.

(7) On the date of hearing of the appeal, a copy each of the written statements of the State Public Information Officer and the First Appellate Authority shall be furnished to the appellant for his submission, if any. After considering the contents of the appeal, the written statements of the State Public Information Officer and the First Appellate Authority, and the submission made by the parties at the hearing, the Commission, if it is satisfied that there are reasonable grounds for consideration of the appeal, may fix a date for further hearing in respect thereof, such hearing shall be conducted in accordance with the provisions of section 19 of the Act and these rules. If the Commission is of the view that no reasonable grounds exist to further consider the appeal, it shall dismiss the appeal.

(8) The Commission, while hearing an appeal may-

(i) receive oral evidence on oath or on affidavit from the appellant;

(ii) receive oral evidence on oath or on affidavit from the State Public Information Officer and / or the First Appellate Authority;

(iii) receive oral evidence on oath or on affidavit from third party or from any other person whose evidence is considered necessary;

(iv)peruse or inspect documents, public records or copies thereof.

Rule 3 of the U.P. State Information Commission (Appeal Procedure) Rules, 2006:-

3. Contents of appeal.- An appeal to the Commission shall contain the following information, namely :-

(a) name and address of the appellant,

(b) name and address of the Central Public Information Officer against the decision of whom the appeal is preferred,

(c) particulars of the order including number, if any, against which the appeal is preferred,

(d) brief facts leading to the appeal,

(e) if the appeal is preferred against deemed refusal, the particulars of the application, including number and date and name and address of the Central Public Information Officer to whom the application was made,

(f) prayer or relief sought,

(g) grounds for the prayer or relief,

(h) verification by the appellant, and

(i) any other information which the Commission may deem necessary for deciding the appeal."

13. Section 7 of the Act provides for disposal of request within thirty days either by providing the information or by rejecting the request. Failure to give decision on the request for information within the specified period has been deemed to be the refusal to the request. Where a request has been rejected under sub-Section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request, the reason for rejection; the period within which an appeal against such rejection may be preferred and the particulars of the appellate authority. Subsection (1) of Section 19 of the Act specifically provides that any person who does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such information prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority. Sub-section (3) of Section 19 provides for a second appeal against the decision under sub-section (1) within ninety days. Sub-section (6) of Section 19 provides that an appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the date of receipt or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing. Under Sub-section (8), power has been conferred upon the Central Information Commission and the State Information Commission to require the Public Authority to compensate the complainant for any loss or other detriment suffered. Thus, the whole scheme of Sections 7 and 19 of the Act clearly confer right of appeal to every person who does not receive a decision or is aggrieved by a decision of the Central Public Information or State Public Information officer. Thus, against decision on each request or against deemed refusal of each request, separate first appeal shall lie.

14. The view as being taken above also finds support from the Sub Section (8) of Section 19 which requires to compensate the complainant for any loss or other detriment suffered due to refusal of request by a decision or a deemed refusal under Sub-Section (1) or Sub-Section (2) respectively of Section 7 of the Act.

15. The fact that against each decision or against each deemed refusal, an appeal shall lie, is also evident from the penalty clause provided under Section 20 of the Act inasmuch as a penalty is leviable against refusal to receive an application for information or not furnishing information within the specified time under Sub-section (1) of Section 7 or malafide denial of request for information or knowingly submission of incorrect, incomplete or misleading information or destroyed information or causing obstruction in any manner in furnishing the information. Rule 8 of the Right to Information Rules, 2012 specifically provides for a second appeal against an order passed by the first appellate authority or non-disposal of the appeal. Rule 7 of the U.P. Right to Information Rules, 2015 provides for an appal by any person who does not receive a decision from a State Public Information Officer within the prescribed time, or is aggrieved by a decision of a State Public Information Officer, as the case may be. Rule 3 of the U.P. State Information Commission (Appeal Procedure) Rules, 2006 provides to furnish particulars of the application in the appeal preferred against a deemed refusal or the particulars of the order and the name and address of the Central Public Information Officer against the decision of whom the appeal is preferred.

16. It is settled law that right to appeal is a creature of statute. Therefore, the appeal may be filed only in the manner as provided by the Statute. In the case of Chief Information Commissioner and another vs. State of Manipur and another, (2011) 15 SCC 1, (Paras-48, 49 and 51), Hon'ble Supreme Court considered the provisions of Sections 18 and 19 of the Act and held as under:

"48. Apart from that the procedure under Section 19 of the Act, when compared to Section 18, has several safeguards for protecting the interest of the person who has been refused the information he has sought. Section 19(5), in this connection, may be referred to. Section 19(5) puts the onus to justify the denial of request on the information officer. Therefore, it is for the officer to justify the denial. There is no such safeguard in Section 18. Apart from that the procedure under Section 19 is a time bound one but no limit is prescribed under Section 18. So out of the two procedures, between Section 18 and Section 19, the one under Section 19 is more beneficial to a person who has been denied access to information.

49. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information.

51. This Court, therefore, directs the appellants to file appeals under Section 19 of the Act in respect of two requests by them for obtaining information vide applications dated 9.2.2007 and 19.5.2007 within a period of four weeks from today. If such an appeal is filed following the statutory procedure by the appellants, the same should be considered on merits by the appellate authority without insisting on the period of limitation."

17. The aforesaid judgment of Hon'ble Supreme Court in the case of Chief Information Commissioner and another (supra), makes it absolutely clear that where two requests were made for obtaining information, the Supreme Court directed to file appeals under Section 19 of the Act in respect of the two requests.

18. In the case of Namit Sharma vs. Union of India, (2013) 1 SCC 745, Hon'ble Supreme Court considered the nature of function of the authorities and Sections 18, 19 and 20 of the Act and held as under:

" (a) Nature of function

72. The Information Commission, as a body, performs functions of wide magnitude, through its members, including adjudicatory, supervisory as well as penal functions. Access to information is a statutory right. This right, as indicated above, is subject to certain constitutional and statutory limitations. The Act of 2005 itself spells out exempted information as well as the areas where the Act would be inoperative. The Central and State Information Commissioners have been vested with the power to decline furnishing of an information under certain circumstances and in the specified situations. For disclosure of Information, which involves the question of prejudice to a third party, the concerned authority is required to issue notice to the third party who can make a representation and such representation is to be dealt with in accordance with the provisions of the Act of 2005. This position of law in India is in clear contrast to the law prevailing in some other countries where information involving a third party cannot be disclosed without consent of that party. However, the authority can direct such disclosure, for reasons to be recorded, stating that the public interest outweighs the private interest. Thus, it involves an adjudicatory process where parties are required to be heard, appropriate directions are to be issued, the orders are required to be passed upon due application of mind and for valid reasons. The exercise of powers and passing of the orders by the authorities concerned under the provisions of the Act of 2005 cannot be arbitrary. It has to be in consonance with the principles of natural justice and the procedure evolved by such authority. Natural justice has three indispensable facets, i.e., grant of notice, grant of hearing and passing of reasoned orders. It cannot be disputed that the authorities under the Act of 2005 and the Tribunals are discharging quasi-judicial functions.

77. Under the scheme of the Act of 2005, in terms of Section 5, every public authority, both in the State and the Centre, is required to nominate Public Information Officers to effectuate and make the right to information a more effective right by furnishing the information asked for under this Act. The Information Officer can even refuse to provide such information, which order is appealable under Section 19(1) to the nominated senior officer, who is required to hear the parties and decide the matter in accordance with law. This is a first appeal. Against the order of this appellate authority, a second appeal lies with the Central Information Commission or the State Information Commission, as the case may be, in terms of Section 19(3) of the Act of 2005. The Legislature, in its wisdom, has provided for two appeals. Higher the adjudicatory forum, greater is the requirement of adherence to the rule of judiciousness, fairness and to act in accordance with the procedure prescribed and in absence of any such prescribed procedure, to act in consonance with the principles of natural justice. Higher also is the public expectation from such tribunal. The adjudicatory functions performed by these bodies are of a serious nature. An order passed by the Commission is final and binding and can only be questioned before the High Court or the Supreme Court in exercise of the Court's jurisdiction under Article 226 and/or Article 32 of the Constitution, respectively.

78. If one analyses the scheme of the Act of 2005 and the multi-farious functions that the Information Commission is expected to discharge in its functioning, following features become evident :

78.1. It has a lis pending before it which it decides. ''Lis', as per Black's Law Dictionary (8th Edition) means ''a piece of litigation; a controversy or a dispute'. One party asserting the right to a particular information, the other party denying the same or even contesting that it was invasion into his protected right gives rise to a lis which has to be adjudicated by the Commission in accordance with law and, thus, cannot be termed as ''administrative function' simpliciter. It, therefore, becomes evident that the appellate authority and the Commission deal with lis in the sense it is understood in the legal parlance.

78.2. It performs adjudicatory functions and is required to grant opportunity of hearing to the affected party and to record reasons for its orders. The orders of the Public Information Officer are appealable to first appellate authority and those of the First Appellate Authority are appealable to the Information Commission, which are then open to challenge before the Supreme Court or the High Court in exercise of its extraordinary power of judicial review.

78.3. It is an adjudicatory process not akin to administrative determination of disputes but similar in nature to the judicial process of determination. The concerned authority is expected to decide not only whether the case was covered under any of the exceptions or related to any of the organizations to which the Act of 2005 does not apply, but even to determine, by applying the legal and constitutional provisions, whether the exercise of the right to information amounted to invasion into the right to privacy. This being a very fine distinction of law, application of legal principles in such cases becomes very significant.

78.4. The concerned authority exercises penal powers and can impose penalty upon the defaulters as contemplated under Section 20 of the Act of 2005. It has to perform investigative and supervisory functions. It is expected to act in consonance with the principles of natural justice as well as those applicable to service law jurisprudence, before it can make a report and recommend disciplinary action against the defaulters, including the persons in service in terms of Section 20(2).

78.5. The functioning of the Commission is quite in line with the functioning of the civil courts and it has even expressly been vested with limited powers of the civil Court. Exercise of these powers and discharge of the functions discussed above not only gives a colour of judicial and/or quasi-judicial functioning to these authorities but also vests the Commission with the essential trappings of a civil Court.

84. In India, the Central or the State Information Commission, as the case may be, is vested with dual jurisdiction. It is the appellate authority against the orders passed by the first appellate authority, the Information Officer, in terms of Section 19(1) of the Act of 2005, while additionally it is also a supervisory and investigative authority in terms of Section 18 of the Act wherein it is empowered to hear complaints by any person against the inaction, delayed action or other grounds specified under Section 18(1) against any State and Central Public Information Officer. This inquiry is to be conducted in accordance with the prescribed procedure and by exercising the powers conferred on it under Section 18(3). It has to record its satisfaction that there exist reasonable grounds to enquire into the matter.

85. Section 20 is the penal provision. It empowers the Central or the State Information Commission to impose penalty as well as to recommend disciplinary action against such Public Information Officers who, in its opinion, have committed any acts or omissions specified in this section, without any reasonable cause. The above provisions demonstrate that the functioning of the Commission is not administrative simpliciter but is quasi-judicial in nature. It exercises powers and functions which are adjudicatory in character and legal in nature. Thus, the requirement of law, legal procedures, and the protections would apparently be essential. The finest exercise of quasi-judicial discretion by the Commission is to ensure and effectuate the right of information recognized under Article 19 of the Constitution vis-a-vis the protections enshrined under Article 21 of the Constitution.

86. The Information Commission has the power to deal with the appeals from the First Appellate Authority and, thus, it has to examine whether the order of the appellate authority and even the Public Information Officer is in consonance with the provisions of the Act of 2005 and limitations imposed by the Constitution. In this background, no Court can have any hesitation in holding that the Information Commission is akin to a Tribunal having the trappings of a civil Court and is performing quasi-judicial functions.

87. The various provisions of this Act are clear indicators to the unquestionable proposition of law that the Commission is a judicial tribunal and not a ministerial tribunal. It is an important cog in and is part of court attached system of administration of justice unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to machinery of administration.

108. For the elaborate discussion and reasons afore-recorded, we pass the following order and directions:

108.1 The writ petition is partly allowed.

108.2. The provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with the rider that, to give it a meaningful and purposive interpretation, it is necessary for the Court to ''read into' these provisions some aspects without which these provisions are bound to offend the doctrine of equality. Thus, we hold and declare that the expression ''knowledge and experience' appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, without any peradventure and veritably, we state that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof.

108.3. As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional, we would prefer to read these provisions as having effect ''post-appointment'. In other words, cessation/termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner or Information Commissioner at the Centre or State levels.

108.4. There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates.

108.5. We also direct that the Central Government and/or the competent authority shall frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law. Such rules should be framed with particular reference to Section 27 and 28 of the Act within a period of six months from today.

108.6. We are of the considered view that it is an unquestionable proposition of law that the Commission is a ''judicial tribunal' performing functions of ''judicial' as well as ''quasi-judicial' nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration.

108.7. It will be just, fair and proper that the first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) preferably should be the persons possessing a degree in law or having adequate knowledge and experience in the field of law.

108.8. The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ''judicial member', while the other an ''expert member'. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. We are of the considered view that the competent authority should prefer a person who is or has been a Judge of the High Court for appointment as Information Commissioners. Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India.

108.9. The appointment of the judicial members to any of these posts shall be made ''in consultation' with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.

108.10. The appointment of the Information Commissioners at both levels should be made from amongst the persons empanelled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as afore- recorded.

108.11. The panel so prepared by the DoPT or the concerned Ministry ought to be placed before the High-powered Committee in terms of Section 12(3), for final recommendation to the President of India. Needless to repeat that the High Powered Committee at the Centre and the State levels is expected to adopt a fair and transparent method of recommending the names for appointment to the competent authority.

108.12. The selection process should be commenced at least three months prior to the occurrence of vacancy.

108.13. This judgment shall have effect only prospectively.

108.14. Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India. In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedence and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case. It is not only the higher court's judgments that are binding precedents for the Information Commission, but even those of the larger Benches of the Commission should be given due acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is equally applicable to intra appeals or references in the hierarchy of the Commission. "

Conclusion:-

19. Right of appeal is a creature of statute. It is a valuable statutory right conferred upon aggrieved person to enter a superior forum for invoking its aid and interposition to correct errors of the inferior forum. Section 19(1) of the Act confers such a right of appeal to be exercised by a person who is aggrieved by reason of refusal or deemed refusal by the Central Public Information Officer or State Public Information Officer, as the case may be, to furnish the information to the aggrieved person who made the request for obtaining the information under Section 6 of the Act. A conjoint reading of Sections 7, 19 and 20 of the Act read with Rule 8 of the Right to Information Rules, 2012, Rule 7 of the U.P. Right to Information Rule, 2015 and Rule 3 of the U.P. State Information Commission (Appeal Procedure) Rules, 2006 leads to an irresistible conclusion that against each order or against each deemed refusal under Section 7 of the Act, separate first appeals shall lie under Section 19(1) of the Act before the competent authority. The question framed in para-6 above is answered accordingly.

20. In view of the aforesaid, the writ petition is dismissed.

21. Liberty is granted to the petitioner to file separate appeals before the competent authority within six weeks from today and in the event such appeals are filed within the stipulated period, the competent authority shall decide it on merit within next eight weeks without raising any objection as to the limitation.

Order Date :- 27.11.2017

NLY