Central Information Commission
Chandan K Aryan vs All India Institute Of Medical Sciences on 30 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/AIIMS/A/2018/138434-BJ+
CIC/AIIMS/A/2018/138410-BJ +
CIC/AIIMS/A/2018/138457-BJ+
CIC/AIIMS/A/2018/622547-BJ+
CIC/AIIMS/A/2018/622548-BJ +
CIC/AIIMS/A/2018/622549-BJ+
CIC/AIIMS/A/2018/622379-BJ +
CIC/AIIMS/A/2018/622380-BJ+
CIC/AIIMS/A/2018/622381-BJ
Mr. Vibhuti Vaibhav
Mr. Chandan K. Aryan
Mr. Shubham Gupta
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
PIO (Examinations & Results)
All India Institute of Medical Sciences (AIIMS)
Saket Nagar, Bhopal - 462024
... ितवादीगण /Respondent
Date of Hearing : 27.12.2019
Date of Decision : 30.12.2019
ORDER
RTI - 1 File No. CIC/AIIMS/A/2018/138434-BJ Date of RTI application 21.03.2018 CPIO's response 07.04.2018 Date of the First Appeal 16.04.2018 First Appellate Authority's response 19.04.2018/ 08.05.2018 Date of diarised receipt of Appeal by the Commission 18.06.2018 Page 1 of 14 FACTS:
The Appellant vide his RTI application sought information on 05 points pertaining to the students who had appeared for the 3rd Professional Medicine Practical Supplementary Examination, marks awarded in each spotters of Medicine Practical (Total 10 Spotters) to individual students who had appeared for the examination; total marks obtained in spotters to individual students who appeared for the examination and related thereto.
The CPIO, vide its letter dated 07.04.2018 stated that the information sought was not available with the Examination Section, AIIMS Bhopal. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information was also not available with the Medicine Department, AIIMS Bhopal in the format asked for as per the written communication by the HoD, Medicine.
RTI 2 File No. CIC/AIIMS/A/2018/138410-BJ
Date of RTI application 21.03.2018
CPIO's response 07.04.2018
Date of the First Appeal 16.04.2018
First Appellate Authority's response 19.04.2018/
08.05.2018
Date of diarised receipt of Appeal by the Commission 18.06.2018
FACTS:
The Appellant vide his RTI application sought information on 07 points regarding copy of checked answer sheet of spotters of Medicine Practical 3rd Professional Supplementary Examination of MBBS batch 2013 held on 12.03.2018 of Reg. No. APBL 10010113096; copy of OSCE marking answer sheet (2OSCEs) of above mentioned reg no.; marks awarded in each spotter of Medicine practical and other issues thereto.
The CPIO, vide its letter dated 07.04.2018 stated that the documents/information sought was not available with the Examination Section, AIIMS Bhopal. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information was also not available with the Medicine Department, AIIMS Bhopal as per written communication by the HoD, Medicine.
RTI - 3 File No. CIC/AIIMS/A/2018/138457-BJ
Date of RTI application 21.03.2018
CPIO's response 07.04.2018
Date of the First Appeal 16.04.2018
First Appellate Authority's response 19.04.2018/
08.05.2018
Date of diarised receipt of Appeal by the Commission 18.06.2018
Page 2 of 14
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the criteria and basis of marking in long cases of Medicine practical 3rd Professional Supplementary Examination of MBBS batch 2013 held on 12.03.2018 and measures taken by examination department to prevent individual subjective bias in practical examinations.
The CPIO, vide its letter dated 07.04.2018 provided a response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information sought by the Appellant in the format asked by him was not available with the Exam Section, AIIMS Bhopal. The said information was also not available with the Medicine Department, AIIMS Bhopal as per written communication by the HoD, Medicine.
RTI 4 File No. CIC/AIIMS/A/2018/622547-BJ Date of RTI application 21.03.2018 CPIO's response 07.04.2018 Date of the First Appeal 16.04.2018 First Appellate Authority's response 19.04.2018/ 08.05.2018 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on 07 points regarding the copy of checked answer sheet of spotters of Medicine Practical 3rd Professional Supplementary Examination of MBBS batch 2013 held on 12.03.2018 of Reg. No. APBL 10010113025; copy of OSCE marking answer sheet (2OSCEs) of the abovementioned reg no.; marks awarded in each spotter of Medicine practical and other issues related thereto.
The CPIO, vide its letter dated 07.04.2018 stated that the documents/information sought was not available with the Examination Section, AIIMS Bhopal. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information was also not available with the Medicine Department, AIIMS Bhopal as per written communication by the HoD, Medicine.
RTI 5 File No. CIC/AIIMS/A/2018/622548-BJ
Date of RTI application 21.03.2018
CPIO's response 07.04.2018
Date of the First Appeal 16.04.2018
First Appellate Authority's response 19.04.2018/
08.05.2018
Date of diarised receipt of Appeal by the Commission Nil
Page 3 of 14
FACTS:
The Appellant vide his RTI application sought information on 05 points pertaining to the students who had appeared for the 3rd Professional Medicine Practical Supplementary Examination, marks awarded in each spotters of Medicine Practical (Total 10 Spotters) to individual students who had appeared for the examination; total marks obtained in spotters to individual students who appeared for the examination and other issues thereto.
The CPIO, vide its letter dated 07.04.2018 stated that the information sought was not available with the Examination Section, AIIMS Bhopal. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information was also not available with the Medicine Department, AIIMS Bhopal in the format asked for as per the written communication by the HoD, Medicine.
RTI 6 File No. CIC/AIIMS/A/2018/622549-BJ
Date of RTI application 21.03.2018
CPIO's response 07.04.2018
Date of the First Appeal 16.04.2018
First Appellate Authority's response 19.04.2018/
08.05.2018
Date of diarised receipt of Appeal by the Commission Nil
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the criteria and basis of marking in long cases of Medicine practical 3rd Professional Supplementary Examination of MBBS batch 2013 held on 12.03.2018 and measures taken by examination department to prevent individual subjective bias in practical examinations.
The CPIO, vide its letter dated 07.04.2018 provided a response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information sought by the Appellant in the format asked by him was not available with the Exam Section, AIIMS Bhopal. The said information was also not available with the Medicine Department, AIIMS Bhopal as per written communication by the HoD, Medicine.
RTI 7 File No. CIC/AIIMS/A/2018/622379-BJ RTI 8 File No. CIC/AIIMS/A/2018/622380-BJ Date of RTI application 21.03.2018 CPIO's response 07.04.2018 Date of the First Appeal 16.04.2018 First Appellate Authority's response 19.04.2018/ 08.05.2018 Date of diarised receipt of Appeal by the Commission Nil Page 4 of 14 FACTS:
The Appellant vide his RTI application sought information on 05 points pertaining to the students who had appeared for the 3rd Professional Medicine Practical Supplementary Examination, marks awarded in each spotters of Medicine Practical (Total 10 Spotters) to individual students who had appeared for the examination; total marks obtained in spotters to individual students who appeared for the examination and other issues thereto.
The CPIO, vide its letter dated 07.04.2018 stated that the information sought was not available with the Examination Section, AIIMS Bhopal. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information was also not available with the Medicine Department, AIIMS Bhopal in the format asked for as per the written communication by the HoD, Medicine.
RTI - 9 File No. CIC/AIIMS/A/2018/622381-BJ
Date of RTI application 21.03.2018
CPIO's response 07.04.2018
Date of the First Appeal 16.04.2018
First Appellate Authority's response 19.04.2018/
08.05.2018
Date of diarised receipt of Appeal by the Commission Nil
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the criteria and basis of marking in long cases of Medicine practical 3rd Professional Supplementary Examination of MBBS batch 2013 held on 12.03.2018 and measures taken by examination department to prevent individual subjective bias in practical examinations.
The CPIO, vide its letter dated 07.04.2018 provided a response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 08.05.2018 stated that the information sought by the Appellant in the format asked by him was not available with the Exam Section, AIIMS Bhopal. The said information was also not available with the Medicine Department, AIIMS Bhopal as per written communication by the HoD, Medicine.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vibhuti Vaibhav, through VC;
Respondent: Dr. Karuna, Associate Professor and Assistant Controller of Examination through VC;
The Appellants Mr. Chandan K. Aryan and Mr. Shubham Gupta were not present during the hearing. The Appellant (Mr. Vibhuti Vaibhav) reiterated the contents of the RTI application and stated that the information sought had been wrongly and malafidely denied by the Respondent Public Authority allegedly harming the interest of the students. It was explained that in the practical examination conducted, marks were awarded in each spotters of medicine practical as Page 5 of 14 also in each OSCES to individual students in MBBS 3rd professional medicine practical supplementary examination. However, only the consolidated marks of the written / practical examination were furnished to the students without giving the break up of each component evaluated by the examiner. Even the criterion adopted by the examination cell had not been disclosed to enable the students to ascertain the basis of evaluation. In its reply, the Respondent reiterated the submissions of the CPIO / FAA as also its written submission dated 24.12.2019 which was common in all the 09 Appeals listed for hearing before the Commission. Furthermore, it was explained that this was the first examination in medicine and therefore there was lack of clarity regarding the method of evaluation and it was decided to grant consolidated marks only. Contesting the averments of the Respondent, the Appellant stated that this was the Second Batch in medicine and therefore the contention of the Respondent being unfamiliar with the conduct of this examination was unfounded and baseless. On a query from the Commission regarding the guidelines if any, notified by the Examination Cell for conduct of such examination and the record retention policy pursued by the Respondent Public Authority for preservation of examination records, no clear response was furnished by the Respondent. However, it was assured that she would locate the exiting guidelines and provide the same to the Appellants. It was further argued by the Appellant that he had filed the RTI application within 01 week of the conduct of the examination and at the First Appeal stage also, personal hearing was sought which was not complied with by the Respondent. It was therefore apprehended that the whole process of conduct of examination was with a malafide intent and there was no objectivity / transparency observed in the entire process. The Commission was in receipt of a written submission from the Respondent dated 24.12.2019 wherein while explaining the chronological sequence of the replies provided to the Appellant it was stated that AIIMS Bhopal started functioning from August 2012 with the commencement of Academic Session 2012-13 for MBBS 1st year. While commencing the academic session of 1st year, only 1078 posts were sanctioned through outsourcing vide MOHFW letter dated 25.08.2012. The institution started its functioning through few officers taken on deputation alongwith staff engaged through empanelled outsource agency. The focus of all the officials including the Administrative officer who was also the erstwhile CPIO of the administration was concentrated on setting up of the institute. The PIO (Examination and Results) AIIMS Bhopal also stated that since he will be on leave he would not be able to attend the hearing.
The Commission at the outset observed that the issue of access of his own answer sheet by a candidate had been long settled. The Hon'ble Supreme Court in the matter of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP (C) No. 7526/2009 decision dated 9th August, 2011 observed that every examinee will have the right to access his evaluated answer-books, by either inspecting them or taking certified copies thereof unless the same was exempted under Section 8 (1) (e) of the RTI Act, 2005. The relevant observations made in the judgment are as under:
"11. The definition of 'information' in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term 'record' is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the 'opinion' of the examiner. Therefore the evaluated answer-book is also an 'information' under the RTI Act."Page 6 of 14
It was furthermore stated in Para 14 of the above mentioned judgment "The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are 'information' held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub section (1) of section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act."
It was furthermore stated in Para 18 of the above mentioned judgment "In these cases, the High Court has rightly denied the prayer for reevaluation of answer- books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore the question whether reevaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them and entitles them to have access to the answer-books as 'information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof."
The aforesaid decision of the Hon'ble Supreme Court of India CBSE and Anr. V. Aditya Bandopadhyay was further relied in the decision pronounced on 16.08.2016 by the Hon'ble Supreme Court of India in Kumar Shanu and Anr. V. CBSE in I.A. No. 01/2016 in Contempt Petition No. 9837/2016 Civil Appeal NO.6454/2011.
The Commission also referred to several other decisions pertaining to disclosure of a candidate's own answer script. The Hon'ble High Court of Delhi in the matter of Treesha Irish vs. CPIO and Ors., WP (C) No. 6352 of 2006 dated 30.08.2010 while deciding that a candidate was entitled to his own answer sheet had held as under:
21...................... The valued answer paper, if at all, can be personal information relating to the candidate who has written the same. When the candidate applies for copy of the same, it cannot be denied to the candidate on the ground that it is personal information, insofar as, if that information would compromise anybody, it is the Page 7 of 14 candidate himself/herself. The conduct of the examination for selection to the post of Last Grade officials is certainly a public activity and therefore the valuation of answer papers of that examination has relationship to a public activity of the department in the matter of selection to a higher post. A candidate writing an examination has a right to have his answer paper valued correctly and he has a right to know whether the same has been done properly and correctly. Both the public authority and the examiner have a public duty to get the valuation done correctly and properly, which is a public activity and duty. Therefore the supply of the copy of the answer paper, which is for enabling the candidate to ascertain whether the valuation of the answer paper has been done correctly and properly, has relationship to a public activity or interest.
23. There is no provision anywhere in the Act to the effect that information can be refused to be disclosed if no public interest is involved. Of course in a case of personal information, if it has no relationship with any public activity or interest, the information officer has discretion to refuse to disclose the same, if the larger public interest does not justify disclosure of such information. But on the ground of lack of public interest involved alone, the public information officer cannot refuse to disclose the information, without a finding first that the information is personal information having no relationship to any public activity or interest. I am at a loss to understand how disclosure of the valued answer paper would compromise the fairness and impartiality of the selection process. If at all, it would only enhance the fairness and impartiality of the selection process by holding out to the candidates that anybody can ascertain the fairness and impartiality by examining the valued answer papers. In fact, an ideal situation would be to furnish a copy of the answer paper along with the mark lists of the candidates so that they can satisfy themselves that the answer papers have been valued properly and they secured the marks they deserved for the answers written by them. Therefore the reason given in Ext P3, by the 1st respondent, is patently unsustainable."
Moreover, the Hon'ble High Court of Delhi in the matter of SBI vs. Mohd. Sahjahan LPA 714/2010 dated 09.05.2017 had held as under:
11. In the case in hand, the examiner has returned the answer books to the SBI after completion of the examination. In the light of the principles laid down in Central Board of Secondary Education v Aditya Bandopadhyay the examining body (the SBI in this case) does not hold the evaluated answer sheets (in the written exam) or the assessment sheet of the interview in a fiduciary relationship, qua the examiner/member of the interview board.
Moreover, the Commission also observed that in a recent decision in CIC/UODEL/A/2017/140992-BJ+ CIC/UODEL/A/2017/603074-BJ dated 18.06.2018 it had held that the student was entitled to inspection of his/ her answer sheet. The said decision was also challenged before the Hon'ble High Court of Delhi in the matter of the University of Delhi vs. Shri Mohit Kumar Gupta and Anr in W.P.(C) 9993/2018 dated 24.09.2018, wherein the Court while fixing the next date of hearing in the matter on 30.01.2019 held as under:
"It is clarified that this Court has not stayed the impugned order dated 18.06.2018 and inspection of the evaluated answer sheet shall be provided to the respondent no. 1 as directed. The question whether a student had any right to seek inspection of his/ her answer sheet will be considered on the next date."Page 8 of 14
Furthermore, in a recent decision in the matter of Mradul Mishra vs. Chairman, U.P. Public Service Commission and Ors., Civil Appeal No. 6723 of 2018 (Arising Out of SLP No. 33006 of 2017) dated 16.07.2018, the Hon'ble Supreme Court of India had while deciding the issue as to whether the Appellant is entitled to see the answer sheets of the examination in which he participated, held as under:
"14. In our opinion, permitting a candidate to inspect the answer sheet does not involve any public interest nor does it affect the efficient operation of the Government. There are issues of confidentiality and disclosure of sensitive information that may arise, but those have already been taken care of in the case of Aditya Bandopadhyay where it has categorically been held that the identity of the examiner cannot be disclosed for reasons of confidentiality.
15. That being the position, we have no doubt that the Appellant is entitled to inspect the answer sheets. Accordingly, we direct the Respondent - U.P. Public Service Commission to fix the date, time and place where the Appellant can come and inspect the answer sheet within four weeks."
The Commission also felt that issue under consideration involved Larger Public Interest affecting the fate of all the students who wish to obtain information regarding their answer sheet/ marks obtained by them which would understandably have a bearing on their future career prospects which in turn would ostensibly affect their right to life and livelihood. Hence allowing inspection of their own answer sheet to the students ought to be allowed as per the provisions of the RTI Act, 2005.
The Commission therefore referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 which while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."Page 9 of 14
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:
"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."
Similarly, the Hon'ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:
"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge."
Furthermore, the Constitution Bench of the Hon'ble Supreme Court of India in the landmark judgment of Olga Tellis and Ors. vs. Bombay Municipal Corporation 1985 SCR Supl. (2) 51 dated 10.07.1985 while recognising right to livelihood as being facet of the right to life enshrined under Article 21 held as under:
"Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have tobe in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life Page 10 of 14 livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life."
With regard to providing a clear and cogent response to the Appellant, 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) 19122/2006 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 however felt that there was an urgent need to develop a robust system of record keeping in the Respondent Public Authority and to review its efficaciousness periodically. In this context, a reference was made to the decision of the Hon'ble High Court of Bombay in the Page 11 of 14 matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
The Hon'ble High Court of Gujarat in the matter of Chandravadan Dhruv vs. State of Gujarat and Ors, Special Civil Application No. 2398 of 2013 dated 21.12.2013 held as under:
"24. Since the issue raised by the petitioner is of a vital public importance, we, on our own, made a little research on the subject and found that the Department of Personnel and Training of the Government of India has constituted a Task Force for the effective implementation of Section 4 of the RTI Act. As a part of this Task Force, IT for Change is facilitating a sub group on 'Guidelines for Digital Publication under RTI supporting Proactive Disclosure of Information'. As a part of the work of this sub-group a one day consultation was held on the said subject i.e. 'Formulating guidelines for digital publication under RTI supporting proactive disclosure of information' in Bengaluru. 25.3 How to ensure proper record keeping?
• The required level of proactive disclosure is not possible without appropriate record keeping, and this aspect needs focused attention. There are detailed rules for record keeping and they should be strictly followed and the scheme for it should be published. Record keeping practices may have to be reviewed from the point of view of comprehensive proactive disclosure requirements, especially through digital means. • Section 4.1.a is very clear about the need for proper record keeping, inducing in digital and networked form. Funds should be earmarked for digitizing records. Complete details of all records that are maintained and available digitally, and about those which are not, with due justification thereof, should be published. Annual reports on compliance with section 4.1.a should be sought by the Information Commissions.Page 12 of 14
• The costs involved in digitizing resources and maintaining networked computer based record-keeping and information systems is often cited as a major deterrent. It was felt that it is no longer a major issue. India is at par or better in terms of IT issues than many developed countries that maintain high standards of digital publishing of public information. The real cost is in terms human resources, including skills, and these are easily available at all levels in India today.
• An example was given about how a government office in Bangalore was able to scan all its documents at a very low cost. Another example that was discussed was of 'Bhoomi' project in Karnataka, whereby, it was contended that, if open public access to such complex spatial data as the land records of the entire state can be ensured, how can giving access to all textual documents of an office or department be any more difficult."
In the context of directing the Respondent to furnish an affidavit reflecting the factual position in the matter, the Commission referred to the decision of the Hon'ble High Court of Delhi dated 30/10/2013 [W.P.(C)3381/2011- Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr.] wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it was evident that the information sought by the Appellants had not been replied appropriately and therefore the Commission directs the Respondent to re-examine each of the queries raised by the Appellants and furnish a point-wise reply keeping in view the guidelines issued by the Respondent Public Authority as also its record retention policy within a period of 15 days from Page 13 of 14 the date of receipt of this order failing which penal action under Section 20 (1) of the RTI Act, 2005, could be initiated. If no such guidelines were available, an affidavit to that effect should also be furnished within the same stipulated time period.
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 Appeals disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 30.12.2019
Copy to:
1. Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. The Director, All India Institute of Medical Sciences, Saket Nagar, Bhopal - 462020, Madhya Pradesh (with the instruction to streamline the record retention mechanism and digitization of records within the Public Authority and review its efficaciousness periodically.) Page 14 of 14