Legal basis for constituting a selection committee for shortlisting applicant for CIC; Records evidencing that the Cabinet Secretary exercised his mind to find that Ms. Amita Pandove possessed all the qualifications - CIC: Appropriate response provided
26 Apr, 2024
Legal basis for constituting a selection committee for shortlisting applicant for Central Information Commission; Records evidencing that the Cabinet Secretary exercised his mind to find that Ms. Amita Pandove (who was finally appointed) possessed all the qualifications for the post as prescribed in the RTI Act was sought - CIC: Appropriate response as per the provisions of the RTI Act has been provided
Information sought and background of the case:
The Appellant filed an RTI application dated 25.12.2021seeking information on the following points:-
1. Kindly confirm to me whether, or not, Shri Rajiv Gauba IAS, was the Union Cabinet Secretary on and after 03.Feb.2020. If so, the certified copy of his appointment to the post. If not the particulars of all person(s) who were Cabinet Secretary on or after 03.02.2020
2. Kindly provide me a certified copy of all records pertaining to the Cabinet Secretary being appointed to Chair the selection committee for shortlisting candidates for posts of Central Information Commissioners and which met on 03.02.2020 and 13.02.2020 or thereabouts.
3. Please provide me a copy of the legal basis whereby such a selection committee is/was constituted for shortlisting applicants/ candidates, because no such procedure is specified in the Right to Information Act 2005 or the Rules thereunder.
4. Please provide me all records whereby the Cabinet Secretary or his office ever questioned or examined the basis in law for setting up such a committee and exercising powers vested inter-alia in the Leader of Opposition of the Lok Sabha.
5. Kindly provide me a copy of authorisation or delegation from the Leader of Opposition to shortlist candidates.
6. Kindly provide me the specific records evidencing that the Cabinet Secretary exercised his mind to find that Ms. Amita Pandove (who was finally appointed) possessed all the qualifications for the post as prescribed in the Right to Information Act, 2005.
7. Please provide me the specific records whereby the Cabinet Secretary exercised his mind to find that Ms. Amita Pandove (who was finally appointed) was then a person of eminence, and if so which of the specified field(s) Ms. Amita Pandove was then eminent in.
8. Please provide me a copy of the criteria used by the Cabinet Secretary, or relied upon by him, to find that Ms.Amita Pandove was a person of eminence for the post.”
The CPIO vide letter dated 14.01.2022replied as under:-
“Reply: The order No. 36/01/2019-EO[SM-1) dated 21.08.2019 regarding appointment of Shri Rajiv Gauba as Cabinet Secretary is available on the website of Department of Personnel& Training at the below mentioned link:
https://documents.doptcirculars.nic.in/D2/DO2eod/OrdCSRGaubaas523.pdf
Point no. 2 to 8 of your application have already been forwarded to DOP&T for providing information”
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 07.02.2022. The First Appeal was forwarded to concerned First Appeal Authority.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was also received from CPIO vide letter dated 19.05.2023 reiterating the above facts and adding that the First Appeal was decided vide order dated 30.05.2022 wherein it was held as under:
5. In the light of the above, I find that CPIO, ACC Cell, Cabinet Secretariat has aptly transferred the point Nos. 2 to 8 of the RTI application to the CPIO, Department of Personnel & Training in terms of Section 6(3) of the RTI Ad. 2005. It is also noted; that the CPIO Cabinet Secretariat has already provided the requisite information in respect of point No. 1 of the RTI Application. Further, information in respect of points No 2 to 8 has been provided by concerned CPIO in DOPT and as such, the First Appeal (if any) in respect of point Nos. 2 to 8 of the RTI Application lies with the First Appellate Authority, DOPT. Further, in light of abovementioned observations, it is not felt necessary to provide opportunity for personal hearing to the Appellant. This appeal is accordingly disposed of.
Another written submission dated 27.12.2023 has been received from the PIO wherein reliance was placed on the aforementioned written submission dated 19.05.2023.
Facts emerging in Course of Hearing:
Appellant: Present
Respondent: Shri S Lianlalmuan, Section Officer (ACC), Cabinet Secretariat; 2. Shri Bikesh Kumar Barnawal, SO (IR-II), DoP&T
The Appellant reiterated his written submission dated 01.01.2024, the relevant extracts of which are as under. He added that the information disclosed in the File uploaded on the DoP&T website regarding appointments of IC also does not answer his RTI queries.
“1) At the outset, the Second Appeal already filed on 28.05.2022 in this matter is reiterated, and entirely incorporated herein by reference.
2) The First Appeal for this matter was filed on 07.02.2022. After no decision was received in the duration prescribed by the RTI Act, the statutory Second Appeal was filed on 28.05.2022 to this Commission via APPSCOM software.
3) On intimation of the Second Appeal via the APPSCOM software, the FAA/Cabsec thereafter mischievously fabricated a First Appeal decision on 30.05.2022, ie. 82 days after receipt of the first appeal without recording reasons in writing for delay beyond 30 days or for denying personal hearing to the Appellant as requested.
4) On 30.12.2023 a copy of CPIO/Cabsec’s written submission dt. 27.12.2023 was received by Speedpost, annexing the said FAA decision of 30.05.2023. A parawise rejoinder and counter statement to it is attached as ANNEXURE-P/1 and is entirely incorporated herein by reference
5) Due to the strange and excessive pendency in the Central Information Commission, this Second Appeal is being taken up 2 years after the request was filed. In the meantime not a single page of information as requested has been provided by the Cabinet Secretariat public authority under their fabricated pretexts that ...Department of Personnel and Training is the nodal Department in the matter of the RTI Act 2005, including the appointment of Information Commissioners in the Central Information Commission. .. Further all the records / information regarding shortlisting / appointment of Central Information Commissioners are maintained and available with DoPT being the nodal Department in the matter Both these claims are false as detailed in the parawise rejoinder, and there is no material basis for them. RTI requests and first appeals made to a) Cabinet Sectt, b) President Sectt. and c) The DoPT have all resulted in their CPIOs being unable to produce even a single underlying document for these claims.
6) That this Appellant forcefully submits that the business of a) Right to Information and b) Central Information Commission has never been allocated to the Department of Personnel and Training, either solely or as the nodal Department. Furthermore, the business of (i) Allocation of Business and (ii) Rules of Business is exclusively with the Cabinet Secretariat, so it is for the CPIO / FAA / Cabsec to produce their records of designation / allocation of DoPT as nodal Departrment for Right to Information. In the absence of such material basis, I say the CPIO and FAA has deliberately attempted to mislead this Commission.
7) That the written submissions of the CPIO as also the public authority’s deliberate obstruction to providing information, necessarily requires the following important and intricate questions of procedural law to be adjudicated by the Central Information Commission.
Q1. Is s/s 19(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. of the RTI Act 2005 mandatory or directory in nature qua the First Appellate Authority?
Q2. Does Rule 8 of the RTI Rules 2012 preclude the First Appellate Authority from delivering a decision after 45 days of receipt of the Appeal or on receipt of the Second Appeal filed against non-decision?
Q3. Does Rule 8 of the RTI Rules 2012 permit a second Second Appeal to be filed once a delayed First Appellate decision is received after filing of a Second Appeal?
Q4. Does Rule 14 of the RTI Rules 2012 require Commission to promptly serve notice, by name, of the Second Appeal being filed to the public authority?
Q5. Does s/s 19(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. of the RTI Act 2005 mandate the First Appellate Authority to hold evidentiary proceedings between the parties to decide disputed denials of information, or is the FAA to blindly uphold whatever the CPIO submits without affording natural justice to Appellants?
PRAYERS
That for this matter to be properly adjudicated, it is required for this Commission to strictly follow the prescribed Procedure for Deciding Appeals so as to administratively decide the justifications by the CPIO and FAA of the Cabinet Secretariat, encapsulated by their claim that the DoPT is the nodal department for RTI Act 2005 and selection of Information Commissioners in Central Information Commission etc., so that the public authority(s) holding and controlling access to the information requested is identified. Thereafter all the requested information may be called for and provided to me under the seal and certification of this Commission.”
Shri S Lianlalmuan stated that points 2 to 8 of the RTI application were transferred to the DoP&T as the subject matter of the information sought therein pertained to them. Regarding point 1, the available information was provided.
Shri Bikash Kumar Barnawal stated that complete file notings pertaining to appointment of information commissioners are suo motu uploaded on the website of DoP&T in the interest of transparency.
Decision:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission is of the view that an appropriate response as per the provisions of the RTI Act, 2005 has been provided by the Respondent as only such information that is held and available in the records of a public authority can be provided. Hence, no further intervention of the Commission is required in the instant matter.
With the above observation, the instant Second Appeal stands disposed off accordingly.
The appeal is disposed of accordingly.
Heeralal Samariya
Chief Information Commissioner
Citation: Shri Sarbajit Roy v. Cabinet Secretariat, CIC/CABST/A/2022/629529; Date of Decision : 18.03.2024