A group of Right to Information (RTI) activists has served a legal notice on the Prime Minister's Office (PMO) over Wajahat Habibullah continuing as chief information commissioner (CIC) three months after he reportedly resigned.
The notice has also been sent to the department of personnel and training (DoPT).
Habibullah was reported to have resigned as CIC of the Central Information Commission Oct 20, 2009, but continues to hold the post and RTI activists allege this is contrary to the provision of the RTI Act 2005 and guidelines given by the DoPT.
"According to Section 13(4) of the RTI Act, the resignation of information commissioners, including the chief CIC, becomes effective the moment it is submitted to the president of India and it cannot be withdrawn or postponed under any circumstances," Girish Mittal, a Mumbai-based RTI activist who served the legal notice, told IANS over phone.
Mittal also said the department of legal affairs (DoLA) gave the same guidelines when DoPT sought an opinion in the case of information commissioner Omita Paul.
"Omita Paul was appointed as information commissioner on May 13, 2009, and she tendered her resignation June 26, 2009, addressing it to the president of India and before any acceptance of her resignation she joined her new assignment at the finance ministry," said Krishnaraj Rao, another RTI activist.
Mittal, who claims to have obtained a document through RTI from DoLA, says, "According to the guidelines given to DoLA by DoPT on the Omita Paul issue - an information commissioner or CIC is similar to the post of a judge of the Supreme Court and their resignation is irrevocable (cannot be withdrawn) and unilateral (meaning there is no need to wait for the acceptance of the resignation)."
After resigning, Habibullah was to take up a new assignment as the first CIC of Jammu and Kashmir where the RTI Act came into force in March last year.
Habibullah told IANS: "I am just waiting for the union government to relieve me so that I can join my new office as soon as possible."
The notice sent by the RTI activists says, "As per the legal position adopted by the union of India in the case of Omita Paul, resignation from office of chief CIC by Habibullah became effective the very moment he tendered his resignation of his own volition.
"His continuation in office from that day onwards is illegal as per the provisions of the Right to Information Act 2005 and specific articles of the constitution of India relied on by the government of India. The union of India cannot now wait for presidential acceptance of the resignation of chief CIC Wajahat Habibullah, nor can it postpone or refuse to accept it," says the notice.
The legal notice served in the first week of January demands the following:
* Give effect to resignation of Habibullah as chief CIC retrospectively from the exact date and time that it was tendered to the secretariat of the president of India.
* Recover the salary and other pecuniary benefits given to Habibullah in his capacity as chief CIC as it is public money.
* Declare as null and void all decisions taken and orders pronounced by him in his capacity as central information commissioner after his tendering resignation.
However, a DoPT official said Habibullah holds his office as CIC in conformity with the law.
"We agree that the resignation of a CIC is irrevocable and he is deemed to be relieved from his duty as soon as he resigns, but Habibullah, in his letter to the president, wrote that he should be relieved from office whenever the government thinks appropriate," a top DoPT official told IANS on condition of anonymity.
Meanwhile, Kashmir remains without a CIC and the government is still waiting for Habibullah to join office.
"It was great for us to have a person of great calibre like Habibullah as the first chief information commissioner (CIC) for the smooth and successful implementation of the act, but we are still waiting for him to join here," S.S. Kapur, chief secretary of Jammu and Kashmir, told IANS over phone.