CIC expressed its displeasure and directed the DGHS to examine the matter and furnish a suitable reply to the Appellant within a period of 30 days depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email
9 May, 2020O R D E R
FACTS
The Appellant vide his RTI application sought information on 03 points on whether the Government of India for the purpose of selection of a candidate as Sanitary Inspector had made it mandatory for a candidate to have a Diploma in studies related to Sanitary Inspector; whether the Ministry of Health had granted recognition to the training provided by All India Institute of Local Self Governance, Mumbai and issues related thereto.
The Section Officer, (I-C) M/o Health and Family Welfare, Directorate General of Health Services (RTI Cell) vide its letter dated 19.06.2018 returned the RTI application to the Appellant on the ground that the information sought did not pertain to their Directorate. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sanjay Kumar through TC: Respondent: Ms. Neeru Lal, SO, M/o H&FW, New Delhi (RTI Cell), Mr. Neeraj Sachdeva, US, DoHFW and Ms. Sunita Bhatia, DGHS Mr. Neeraj Sachdeva, US, DoHFW and Mr. Z. A. Khan, M/o H&FW through TC/ WhatsApp;
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received and that he possessed documents to substantiate that M/o H&FW dealt with this subject matter. The representative of M/o H&FW / DGHS consistently maintained that this matter was handled by Ministry of Urban Affairs and Housing and that the application had been transferred to that Ministry. Dissatisfied by the reply of the Respondent, the Appellant suggested that the matter rested with M/o H&FW only and that greater clarity should emerge from them. It was informed that Mr. S. K. Jha, Jt. Secretary, DGHS dealt with the subject.
The Commission was in receipt of a written submission from the Respondent No.2 i.e. CPIO (Section Officer, RTI Cell) through e mail dated 22.04.2020, wherein it was stated that Shri Sanjay Kumar, the applicant vide his RTI application dated 01/06/2018 had sought information from Ministry of Health and Family Welfare enclosing an Advisory dated the year 1955 issued by ISM (L) Section of the then Ministry of Health whereas Directorate General of Health Services was established much later in the year 1971.
The RTI Section of the Ministry of Health and Family Welfare vide letter no. A.60011/934489/2018-RTI Cell, dated 11/06/2018 forwarded RTI application to the CPIO, Ministry of Housing and Urban Affairs, Dte. of Estates, Nirman Bhawan for providing information to the applicant. The RTI Section of the Ministry of Health and Family Welfare vide letter no. A.60011/934489/2018-RTI Cell, dated 11/06/2018 had wrongly sent a copy to Nodal Section (RTI Cell) of DGHS. Hence, the RTI Application was returned to the RTI Applicant, as the same was not related to DGHS and also the RTI Application was already sent by the Ministry of Health and Family Welfare to the concerned Department (Ministry of Housing and Urban Affairs). No further action was required on the part of Section Officer, DGHS (RTI Cell).1st appeal dated 01/07/2018 was not received DGHS (RTI Cell).
As per the available information with undersigned, the qualification required for a post is specifically mentioned in the concerned Recruitment Rules framed by the concerned Ministry / Department / Organisation / State / UT Government / Local Bodies etc. Further, as per the information available with the undersigned, Directorate General of Health Services does not recognise course of Sanitary Inspector, as it is not related to Directorate General of Health Services. The above facts/ issues may kindly be placed before the Information Commissioner.
The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:
“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”
In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”
Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”
7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”
The Commission felt that 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.”
The Commission observed that it is the duty of the CPIO to provide clear, cogent and pointed reply to the information seeker. In this context, a reference can be made to the judgment 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.”
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.
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, the Commission also referred to the OM No. 1/32/2007-IR dated 14.11.2007 wherein while prescribing for creation of a nodal authority for dealing with RTI applications, it was stated as under:
“It is, therefore, requested that all public authorities with more than one PIO should create a central point within the organization where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should be made responsible to ensure that all the RTI applications/ appeals received at the central point are sent to the concerned Public Information Officers/ Appellate Authorities, on the same day. For instance, the RTI applications/ appeals may be received in the Receipt and Issue Section/ Central Registry Section of the Ministry/ Department/ Organization/ Agency and distributed to the concerned PIOs/ Appellate Authorities. The R&I/CR Section may maintain a separate register for the purpose. The Officer-in-charge/ Branch Officer of the Section may ensure that the applications/ appeals received are distributed the same day.”
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.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs Mr. S. K. Jha, Jt. Secretary, DGHS to examine the matter and furnish a suitable reply 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. The Appeal stands disposed accordingly.
Bimal Julka
Chief Information Commissioner
Citation: Mr. Sanjay Kumar v. Department of Health & Family Welfare; Ministry of Health & FW, Directorate General of Health Services and Ministry of Housing & Urban Affairs, Directorate of Estates in Second Appeal No.:- CIC/MH&FW/A/2018/152829-BJ, Date of Decision : 28.04.2020