Appellant sought the copy of the Rule under which two conditions were imposed on the Defence Assistant which led to the withdrawal of his DA from his case - CIC: Provide copy of APAR; There is complete negligence and laxity in dealing with RTI application
O R D E R
The Appellant vide his RTI application sought information on 23 points regarding the copy of the Rule under which two conditions (as narrated in the RTI application) were imposed on the Defence Assistant which led to the withdrawal of his Def. Asst. from his case along with the copy of Rule as mentioned in the IO’s letter dated 23.02.2016; Rule under which he was asked by IO to engage his Def. Asst. from the employees of the ARC only vide letter of IO dated 23.02.2016 and DOS dated 08.03.2016; copies of his APAR for the years 2013-14 to 2016-17 and other issues related thereto.
The CPIO, vide its letter dated 19.06.2018, provided a point wise response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 13.07.2018 upheld the decision of the CPIO.
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Dev Raj Singh through TC;
Respondent: Shri Joydeep Dhar, Deputy Secretary & CPIO, Cabinet Secretariat (SR) through TC;
The Appellant reiterated the contents of the RTI application and stated that the information sought relating to allegation of corruption and human rights violation was wrongly and malafidely denied by the Respondent Public Authority on the pretext of the Organization being exempted under Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act, 2005. He specifically referred to point nos. 01 and 03 wherein he had sought for the copy of the Rules under which two conditions (as narrated in the RTI application) were imposed on the Defence Assistant which led to the withdrawal of the Def. Asst. from his case and the copies of leave register maintained for recording of the Approval Leave at Daily Servicing Section (DSS), which was not provided to him. He further submitted that the copies of his APAR were also not provided to him violating his basic fundamental rights. It was alleged that the CCS (CCA) Rules, 1965 were flouted by the Respondent Public Authority and thereby he was dismissed from the service in January, 2018. On being queried by the Commission whether the Appellant had filed any Court case in this regard, he replied in the affirmative and stated that the matter is pending with the CAT and the last date of hearing was on 31st March, 2020.The Appellant further relied on its written submission. The Commission was in receipt of a written submission from the Appellant dated 05.06.2020 wherein while making a point-wise submission to the queries raised in his RTI application, it was submitted that the information sought in all the Paragraphs 01 to 23 of his application were not concerning with the functional and operational affairs of the Organization but were purely related to corrupt practices followed by some of the officers of the Organization to inflict the harshest penalty on him without proper procedure thereby pushing him into the inhuman condition at the age of 55 years when he needed the employment most, depriving his basic human rights. Furthermore, he submitted that the concealment of such information shall only encourage the wrongdoers and erring corrupt persons. Hence the information sought should not be concealed in order to bring transparency and justice in the functioning and cleansing of the administrative system of the Organization. While referring to proviso to Sub Section (1) of Section 24 of the RTI Act, 2005, he submitted that the information sought was related to allegation of Corruption and Human Rights violation, therefore, it was prayed to the Commission to direct the PIO/FAA of the Cabinet Secretariat or the ARC to provide all the information requested in his application under the RTI Act, 2005 free of cost.
In its reply, the Respondent reiterated the replies of the CPIO/FAA and further relied on its written submissions. On being queried by the Commission as to why the copies of his leave register maintained for recording of the Approval Leave at Daily Servicing Section (DSS) was not provided to the Appellant, it was informed that since the matter was under consideration before the CAT/Court, the same would be decided by the Court only. On being further queried by the Commission regarding the supply of the Appellant’s own APAR, the Respondent submitted that earlier the APARs were only shown to the employees and acknowledgement received on the spot but now the system has changed and that a copy of APARs are provided to the employees. The Commission was also in receipt of a written submission from the Respondent dated 02.06.2020 wherein while reiterating the background of the case, it was submitted that point-wise information were sought by the Appellant, Ex JTO-I (a Group 'B' non-gazetted post) in Aviation Research Centre (herein after referred to as the 'ARC') under the DG(S), Cabinet Secretariat, on 23 different points, vide his application dated 17.05.2018 under the RTI Act 2005. Out of these 23 points, replies to points number 18 & 19 (related to his salary slip for the subsistence allowance paid to him during his period of suspension, and updated form-16 showing deduction of income tax) and 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. & 23 (related to his APARs for the years 2014-15 and 2015- 16, etc) had already been provided to him vide CPIO's reply dated 19.06.2018. A point-wise detailed clarification was also made by the CPIO in respect of the queries raised by the Appellant in his RTI application. As far as the information sought by the Appellant vide his RTI application/1st Appeal, these have been rightly denied to him by the CPIO as well as the first Appellate Authority, as the ARC by virtue of being listed at Sl. No 7 of the Second Schedule to the RTI Act 2005, is exempted from the purview of the said Act vide the statutory bar of Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the said Act, unless instances of corruption or human rights violation are involved. The preliminary enquiry conducted by ARC on the allegations levelled against some officers of the ARC by the Appellant / complainant and his wife, has not indicated the existence of any prima facie case of corruption against the said officers, as yet. Furthermore, ordering of suspension and departmental inquiries against delinquent officials, which are the tools available to the government to maintain discipline / integrity among its rank and file, can by no stretch of imagination be construed as violation of their human rights. Accordingly, as no prima facie case of corruption or human rights violation has been made out in the instant case, both the CPIO and First Appellate Authority have rightly denied the information sought by the Appellant. Hence, it was prayed to the Commission to uphold the decision of the CPIO/FAA in denying the information sought by the Appellant vide point nos. 1 to 17, 20 and 21 of the RTI application. A copy of the written submission was also forwarded to the Appellant through speed post, receipt of which was acknowledged by the Appellant who further contested on the grounds that it was vague and irrelevant.
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon’ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
“14 The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.”
With regard to providing a clear and cogent response to the Complainant, the Commission referred to the decision of the Hon’ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
“ 7“it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken”. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.”
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure.”
The Hon’ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 191 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. /2006 dated 24.08.2009 had upheld the view of the CIC and observed
“.....that a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow”.
Furthermore, the Hon’ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
“9..... That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only.
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
“3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.”
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject “Courteous behavior with the persons seeking information under the RTI Act, 2005” wherein it was stated as under:
“The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary.”
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
In the context of disclosure of entry in the employee’s own ACR, the Hon’ble Supreme Court of India in the decision of Dev Dutt vs Union of India & Ors on 12 May, 2008, Civil Appeal No. 7631 OF 2002, had held as under
“19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways:
(1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future
(2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.”
In judgment of the Ld. Single Judge of the Hon’ble High Court of Delhi in R.K. Jain v. Union of India, W.P. 6756 of 2010 dated 08.12.2011 which was affirmed by the Hon’ble Supreme Court of India, vide its aforementioned decision it was held as under:
“10. Therefore, except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the officer himself/herself.”
Furthermore, the Hon’ble High Court of Delhi in the matter of THDC India Ltd. vs. R.S. Raturi, W.P. (C) No. 903 dated 08.07.2014 wherein it had been held as under:
12. However, this Court is of the view that the respondent is entitled to the contents of his own ACR after redaction of the names of the reviewing, reporting and accepting officers. In fact, another coordinate Bench of this Court in THDC India Ltd. v. T. Chandra Biswas 199 (2013) DLT 284 has held as under:-
9. While the learned counsel for the respondent has contended before me that the respondent ought to have been supplied with the ACRs for the period 2004 to 2007, the respondent has not assailed that part of the order of the CIC. In my view, while the contention of the respondent has merit, which is that she cannot be denied information with regard to her own ACRs and that information cannot fall in the realm of any of the exclusionary provisions cited before me by the learned counsel for the petitioner i.e. Section 8(1)(d), (e) and (j), there is a procedural impediment, in as much as, there is no petition filed to assail that part of the order passed by the CIC.
9.1. In my view, the right to obtain her own ACRs inheres in the respondent which cannot be denied to the respondent under the provisions of Section 8 (1)(d), (e) and (j) of the RTI Act. The ACRs are meant to inform an employee as to the manner in which he has performed in the given period and the areas which require his attention, so that he may improve his performance qua his work.
9.2 That every entry in the ACR of an employee requires to be disclosed whether or not an executive instruction is issued in that behalf-is based on the premise that disclosure of the contents of ACR results in fairness in action and transparency in public administration. See Dev Dutt vs. Union of India 8 SCC 725 at page 732, paragraph 13; page 733, paragraph 17; and at page 737, paragraphs 36, 37 and 38.
9.3 Mr. Malhotra sought to argue that, in Dev Dutt's case, the emphasis was in providing information with regard to gradings and not the narrative. Thus a submission cannot be accepted for more than one reason.
9.4 First, providing to an employee gradings without the narrative is like giving a conclusion in judicial/quasi-judicial or even an administrative order without providing the reasons which led to the conclusion. If the purpose of providing ACRs is to enable the employee to assess his performance and to judge for himself whether the person writing his ACR has made an objective assessment of his work, the access to the narrative which led to the grading is a must. [See State of U.P. Vs. Yamuna Shankar Misra and Anr., MANU/SC/0914/1997 : (1997) 4 SCC 7]. The narrative would fashion the decision of the employee as to whether he ought to challenge the grading set out in the ACR.
9.5 Second, the fact that provision of ACRs is a necessary concomitant of a transparent, fair and efficient administration is now recognized by the DOPT in its OM dated 14.05.2009. The fact that the OM is prospective would not, in my view, impinge upon the underlying principle the OM seeks to establish. The only caveat one would have to enter, is that, while providing the contents of the ACR the names of the Reviewing, Reporting and the Accepting Officer will have to be redacted.
13. Consequently, this Court is of the view that ACR grading/ratings as also the marks given to the candidates based on the said ACR grading/ratings and their interview marks contained in the DPC proceedings can be disclosed only to the concerned employee and not to any other employee as that would constitute third party information.
Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon’ble Supreme Court of India, had observed as under:
“59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive.”
Keeping in view the facts of the case and the submissions made by both the parties and in light of the decisions of the Superior Courts, the Commission directs the FAA to re-examine the queries of the RTI application and furnish a clear, cogent, precise reply along with the copy of his own APAR to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email (Email: firstname.lastname@example.org).
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission).
(Chief Information Commissioner)
Citation: Mr. Dev Raj Singh v. Cabinet Secretariat in Second Appeal No.:- CIC/CABST/A/2018/162403-BJDate of Decision : 12.06.2020