Bombay High Court
Forum For Fairness In Education An ... vs Union Of India And 2 Ors on 13 October, 2022
Bench: Madhav J. Jamdar
1-PIL.84.2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 84 OF 2013
WITH
SHOW CAUSE NOTICE NO. 248 OF 2016
Forum for Fairness in Education } Petitioner
versus
Union of India and Ors. } Respondents
Mr. Vinay Kanodia with Mr. Devendra Tiwari
i/b. Law Chamber of Siddharth Murarka for
the petitioner.
Mr. Rui Rodrigues with Mr. D. P. Singh for
respondent no. 1 (UoI).
Ms. P. H. Kantharia, Government Pleader
with Ms. Jyoti Chavan, AGP for respondent
nos. 2 and 3 (State).
CORAM: DIPANKAR DATTA, C. J. &
MADHAV J. JAMDAR, J.
DATE: OCTOBER 13, 2022
P.C.:
1. A coordinate Bench of this Court, by its order dated
28/29th April & 2nd May 2016 (hereafter "the said order", for
brevity), disposed of Public Interest Litigation No. 84 of 2013
with several directions. However, the PIL petition was directed
to be listed on 8th July 2016 under the caption 'directions' for
reporting compliance of such directions. It was also directed
that the PIL petition will be listed for directions from time to
time till all the directions are effectively complied with.
J.V.Salunke,PS
1-PIL.84.2013
2. It has been brought to our notice that Public Interest
Litigation (L) No. 3601 of 2022 (Nitin Dalvi & anr. vs. State
of Maharashtra and Ors.) had been instituted before this
Court voicing a grievance that the directions contained in the
said order had not been complied with. In PIL Petition (L) No.
3601 of 2022, a reply affidavit on behalf of the State of
Maharashtra was filed by the Principal Secretary, Women and
Child Development Department, Mantralaya, Mumbai. The
same appears to be a part of the records of this PIL petition.
3. We find from the said order that its main thrust was to
secure appointment of the Chairperson and Members of the
State Commission under the Commissions for Protection of
Child Rights Act, 2005 (hereafter "the Child Rights Act", for
short) by the State Government and also that the
remuneration of the Chairperson and Members is suitably
enhanced to bring it at par with the remuneration payable
under the Central Rules to the Chairperson and Members of
the National Commission for Protection of Child Rights.
4. We have also noted that there were other incidental
directions requiring compliance with the provisions of section
26 of the Child Rights Act and section 4 of the Right to
Information Act, 2005 (hereafter "the RTI Act", for short).
5. It is evident from notification dated 29th April 2022 of
the Women and Child Development Department that a
Chairperson and 6 (six) other Members thereof have been
appointed. Our attention has been invited by Ms. Kantharia,
learned Government Pleader for the State to an order dated
16th June 2022 passed by a coordinate Bench of this Court on
PIL Petition (L) No. 3601 of 2022. Such order records that in
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1-PIL.84.2013
compliance with earlier orders passed on the said PIL petition,
the Chairperson and other Members of the State Commission
have duly been appointed and they have taken charge of their
respective offices. Since the Commission is now functional, we
are of the considered opinion that the primary concern
expressed in this PIL petition has been duly addressed.
6. However, we cannot ignore the factual position that
despite directions contained in the said order, the State
Commission came to be appointed belatedly. In this context,
one may bear in mind the direction contained in clause (ii) of
paragraph 22 of the said order reading as follows: -
"(ii) The State Government shall commence the process
of constitution of the State Commission on expiry of a
period of one month from the date on which an
authenticated copy of this judgment and order is
produced in the appropriate Department of State
Government. The State Government shall publish a
notice inviting applications in four daily newspapers
namely Times of India, Loksatta, Lokmat and Sakal in all
its local additions published in the different parts of the
State. The entire process of the constitution of the said
State Commission shall be completed by the State
Government within a period of six months from the date
of publication of the notice."
7. Although the Chairperson and the Members of the State
Commission have been appointed, we direct the State
Government to follow the direction contained in clause (ii)
above in letter and spirit once the terms/tenures of the
present Chairperson and Members come to an end. In future,
the process shall be initiated much in advance to ensure that
there is no vacancy in the office of the Chairperson and all the
Members of the State Commission.
J.V.Salunke,PS
1-PIL.84.2013
8. Insofar as increase in remuneration of the Chairperson
and Members are concerned, Ms. Kantharia has drawn our
attention to paragraph 3 of the reply affidavit filed in PIL
Petition (L) No. 3601 of 2022. It is stated therein that by
issuing Government Resolution dated 1st August 2016, the
State Government has increased the remuneration of the
Chairperson and the Members of the State Commission.
Although it has not been specifically stated in such reply
affidavit that the increase is at par with the remuneration that
is payable to the Chairperson and Members of the National
Commission, Ms. Kantharia has invited our attention to the
order dated 8th August 2016 passed on this PIL petition. In
paragraph 2 of such order, the coordinate Bench has recorded
that though belatedly, the State Government had complied
with the direction contained in the said order regarding
enhancement in the remuneration payable to the Chairperson
and Members of the State Commission.
9. Regarding appointment of Special Public Prosecutors,
being the mandate of section 26 of the Child Rights Act, the
said reply affidavit pleads that by notification dated 2 nd August
2016 issued by the Law and Judiciary Department,
Government of Maharashtra, Special Public Prosecutors were
appointed in terms of such statutory provision. Our attention
has further been drawn to a notification dated 29th June 2022
issued by the Home Department, Government of Maharashtra.
In terms of such notification, the Assistant Directors, Public
Prosecutors and Additional Public Prosecutors working at the
Sessions Court in the various districts in the State of
Maharashtra have been appointed as Special Public
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1-PIL.84.2013
Prosecutors for Children's Courts specified under section 25 of
the Child Rights Act.
10. We are satisfied that the direction for appointment of
Special Public Prosecutors also stands duly complied with.
11. What remains is the direction to comply with the
provisions contained in section 4 of the RTI Act. Although it
has been contended by Mr. Kanodia, learned advocate for the
petitioner, that the provisions of section 4 of the RTI Act have
not been complied with, we are not impressed. The
documents annexed to the chart/submissions filed by him
would make it clear that the provisions of section 4 of the RTI
Act have been substantially complied with by disseminating
information on the website of the State Commission. In this
regard, we may refer to paragraph 5 of the reply affidavit filed
by the State in PIL Petition (L) No. 3601 of 2022, which reads
thus: -
"5. In Compliance of directions at Sr. No. III, directions
are issued to the State Commission to substantially
comply with the requirements of Sec. 4(1) of the Right
to information Act, within a period of two months.
Accordingly necessary changes were made in the
Commission website and relevant information as per the
provisions of Sec. 4(1) of the Right to Information Act is
available on the Commissions website. Moreover, in
order to entrust the work of development and
maintenance of the Commissions website through
Government agency, Vide letter dated 10/08/2020 the
Chief Officer, National Informatics Centre, Mantralaya,
Mumbai was requested to appoint a Nodal Officer for
said work."
12. Even otherwise, the marginal heading of section 4 is
"obligation of public authorities". The terms of the said
provision, read in between the lines, would make it clear that
J.V.Salunke,PS
1-PIL.84.2013
it would be desirable that each public authority disseminates
as much information as possible on its website so as to ensure
that minimum applications are filed under section 6 of the RTI
Act for obtaining information. We have also looked at section
20 of the RTI Act which provides for penalties to be imposed
on Public Information Officers for their failure to accept an
application for information or to provide information as prayed
for or to destroy evidence relating to information, etc. There is
no provision engrafted in section 20 that for any failure on the
part of a public authority to disseminate information in the
manner and on the points as required by section 4, the same
would expose such public authority to imposition of penalty
under section 20 of the RTI Act. We, therefore, have to read
section 4 of the RTI Act as a directory provision. And, that is
exactly why, the said order required substantial compliance of
section 4. While considering compliance of the directions
contained in the said order, we cannot substitute substantial
compliance by total compliance.
13. Nonetheless, we are satisfied having regard to the
materials on record that the provisions of section 4 of the RTI
Act have been substantially complied with.
14. Before parting, we record the contention of Mr. Kanodia
that in making appointments of the Chairperson and the
Members of the State Commission, the State has not followed
the statutory provisions.
15. The said order required the State Government to make
the State Commission functional by appointing a Chairperson
and other Members. As has been noted above, the said
direction has been complied with. Whether or not the
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1-PIL.84.2013
Chairperson or Members have been appointed in accordance
with law or whether they fulfill the eligibility criteria as
required by the provisions of the Child Rights Act are issues
which are beyond the scope of compliance as directed to be
effected in terms of the said order. We, therefore, refuse to
examine this aspect. It shall, however, be open to the
petitioner to explore its remedy in accordance with law if, in
making appointments of the Chairperson or any of the
Members of the State Commission, statutory provisions have
been violated. Liberty in this behalf is preserved.
16. With the aforesaid observations, the proceedings stand
closed and the show cause notice stands discharged/disposed
of.
SALUNKE
JV
Digitally signed
by SALUNKE J V (MADHAV J. JAMDAR, J.) (CHIEF JUSTICE)
Date: 2022.10.13
19:40:05 +0530
J.V.Salunke,PS
