Central Information Commission
Dr. Madhu Nagpal vs Union Public Service Commission on 17 August, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2010/000308 dated 7.12.'09
Right to Information Act 2005 - Section 19
Appellant: Dr. Madhu Nagpal
Respondent: Union Public Services Commission, UPSC
Appeal heard on 9.8.'10
Decision announced 17.8.'10
FACTS
By an application of 11-12-08 Shri Satya Bhushan Nagpal of Rohini, Delhi applied to the CPIO, UPSC seeking the following information:
1. Criterion of selection of candidates for the post of Principal.
(i). With complete break up of marks for Academic & Prof. Qualification, Teaching Experience and Interview.
(ii). As per the above criterion, detail of marks awarded to Roll No. 641, Advt. No. 8/18.
(iii). Cut off marks for the selection of General Candidates & marks awarded to selected candidates.
(iv). Names of the candidates in the waiting list with the details of their marks.
To this Shri Satya Bhushan Nagpal received a response from CPIO, Shri Ashok Mehta, Dy. Secretary, UPSC dated 7-1-09 informing him as follows:
Item -I (1 to 4): - Selection of candidates is based on overall performance of the candidates at the interviews. Break-up of marks, cut-off marks for selection, marks awarded to candidates, names of candidates in the waiting list and details of their marks cannot be shared as these information pertain to core areas of the Commission and the disclosure of same does not serve any public interest or activity under Section 8(1)(d) of the RTI Act, 2005. Further, under Section 8(1)(e) of the RTI Act, 2005 there shall be no obligation to give any citizen the information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
This was followed by a series of applications from Dr. Madhu Nagpal which all are undated, seeking the following information:
Request I 1
i) My Rank with the marks obtained by me and the total marks.
ii) The marks awarded to me in the interview.
iii) Marks awarded to me for Academic
Qualification and teaching Experience.
Request II
1). Cut off Rank/Rank of Last Candidate selected both in
General as well as reserved Category selected for Advt.8/18 and 52/2006
Request III.
i). Total Number of Posts advertised for both General and Reserved category.
ii). The number of posts on which the candidates have been posted/filed after the selection.
iii). The number of posts (Gen as well as Reserved) yet to be filled of that are still vacant and the candidates are yet to be posted.
Request IV
1. My rank in the Result sheet in the name of Dr. Madhu Nagpal Roll No. 2136 with the marks obtained by me. Please give my marks for Academic Qualifications, Teaching Experience and Interview separately.
To this, then CPIO Shri Ashok Mehta, DS, UPSC responded painstakingly with a separate response to each application, each dated 23-9- 20091:
I. Selection of candidates is based on overall performance of the candidates at the interviews. No separate marks for academic qualifications, teaching experience etc. are assigned to the candidates. Marks awarded to the candidates cannot be shared as it pertains to core areas of the functioning of the Commission and the information is held in fiduciary capacity. Hence the information cannot be disclosed under the Section 8(1) (e) of the RTI Act, 2005.
II. There is no advertisement issued by the Commission bearing Advertisement No. 08/18 for the post of Principal. However, the Commission had published Advertisement bearing No. 18/08 on
23. 09. 2006 for the above post. The following information is given pertaining to Advertisement No. 18/08 and Spl. 52/2006: -
Rank(s) assigned to the candidates are based on marks awarded by the Interview Board. Marks awarded to a candidate 1 These have not been arranged sequentially, and must be read together to answer the questions in appellant's series of applications 2 cannot be shared as information pertains to core areas of the functioning of the Commission and is held in fiduciary capacity. Hence the information cannot be disclosed under Section 8(1)
(e) of the RTI Act, 2005.
III. The following information is given pertaining to Advertisement No. 18/08: -
Selection of Candidates is based on overall performance of the candidates at the interviews. No separate marks for academic qualifications, teaching experience etc. are assigned to the candidates. Marks awarded to the candidates cannot be shared as it pertains to core areas of the functioning of the Commission and the information is held in fiduciary capacity. Hence the information cannot be disclosed under the Section 8(1)(e) of the RTI Act, 2005.
IV. Item No. 1: Total Number of post advertised for both General and reserved category in each recruitment of above posts are given below:-Advt. No. Spl. 52/2006
Total numbers of posts are 53 (29 Male & 24 Female). Out of 53 posts, 11 posts (04 Male & 07 Female) were reserved for Scheduled Castes candidates. 07 posts (05 Male & 02 Female) were reserved for Scheduled Tribes candidates. 01 post (Female) was reserved for OBC candidates and remaining 34 posts (20 Male & 14 Female) were unreserved. Out of 53 posts. 02 posts were also reserved for physically handicapped persons (Male/Female) of any community.Advt. No. 18/08
There is no advertisement issued by the Commission bearing Advertisement No. 08/18 for the post of Principal However, the Commission had published Advertisement bearing No. 18/08 on 23.09.2006 for the above post. Hence, the following information is given pertaining to Advertisement No. 18/08:-
Total numbers of posts were 27 (15 Male & 12 Female). Out of 27 posts, 03 posts (02 Male & 01 Female) were reserved for Scheduled Castes candidates. 02 posts (01 Male & 01 Female) were reserved for Scheduled Tribes Candidates. 07 posts (04 Male & 03 Female) were reserved for OBC candidates and remaining 15 posts (08 Male & 07 Female) were unreserved. Out of 53 posts, 01 post are reserved for physically handicapped persons (Male /Female) of any community. (Reservation for SC/ST/OBC is vertical whereas reservation of PH persons is horizontal.
Item No. 2:
The Commission only recommend the candidates to the Department concerned. Posting of recommended candidates is the sole responsibility of the Department concerned. Item No. 3:3 Advt. No. Spl 52/2006
The recommendation of all 51 candidates (2-ST Female posts became infructuous at interview level) has been sent the concerned department.Advt. No. 18/08
The recommendation of 26 candidates has been sent to the concerned department and recommendation of one candidate has been withheld.
Upon this Dr. Madhu Nagpal has made a single appeal before Shri Kamal Bhagat, JS (R-II) UPSC pleading that "I hereby submit that the information given by the commission does not satisfy me." She has then summarised the information sought as follows:
i). My Rank in the Result sheet.
ii). The marks obtained by me in the interview.
iii).The cut-off Rank.
iv). The list of selected candidates with their Ranks (General as well as Reserved category)
v). The Number of posts against which the candidates have not yet joined, the vacant ones, that are yet to be filled, as informed by the Directorate of Education, NCT of Delhi.
vi). The number of posts on which the selected candidates have joined as per the department.
Upon this Shri Kamal Bhagat, JS (R-II) vide order dated 18-11-09 has ordered as follows:
4. The CPIO has declined to share the information on point No. (1) to (3) claiming exemption from disclosure under Section 8(1) (e) of the RTI Act, 2005 on the ground that it pertains to core areas of the functioning of the Commission and the information is held in fiduciary capacity. Though agreeing with the CPIO that the information sought pertains to core areas of the Commission, I do not find the reason conducive that the information is held in fiduciary capacity.
The appellant is informed that the operative life period of the Reserve Panel is 18 months in normal case and 24 months in exceptional circumstances from the date of finalization of Result i.e. Interview Board Report. Since the Reserve Panels in these two cases have not outlived its validity, the information on point (1) to (3) cannot be disclosed.
5. The information asked for under point No. (4) in her instant appeal being a new piece of information cannot be entertained at appeal stage. With regard to point (5) and (6), the CPIO has already provided information to the appellant which is found to be satisfactory.
4This has brought Dr. Madhu Nagpal before us in second appeal with the following prayer:
1). For items 1,2,3,4 the CPIO claimed exemption and denied to give me the information under section 8(1)(e) whereas, I believe in fiduciary capacity, the information must be given by the holder of the information when there is a choice.
The 1ST Appellate Authority claimed exemption without quoting any section & informed about the operative life period and validity of the Reserve panel and refused to disclose the required information.
2) For items 5 & 6 I believe there is no fiduciary relationship between the UPSC and the Directorate. Of Education. If the information was not held with the UPSC, it should have been transferred to the Department. (Directorate. Of Education, Government of NCT of Delhi).
Because the UPSC had advertised 58 more posts of Principal in the Delhi Directorate of Education, appellant Dr. Madhu Nagpal applied for out of turn hearing as this would have a bearing on information sought by her, which was agreed to. The appeal was heard on 9-8-2010. The following are present.
Appellants Ms. Madhu Nagpal Shri S. B. Nagpal Respondents Shri Kamal Bhagat, Jt. Registrar (R-II), UPSC Shri P. P. Halder, DS (R.V) The appeal was examined in light of the abbreviated information sought in appellant Dr. Madhu Nagpal's first appeal of 29-10-2009.
Respondent CPIO Shri P.P. Haldar, DS (R-V) UPSC submitted that there was no cut of rank in the interview. He also submitted that it is only successful candidates who are ranked and therefore, Dr. Madhu Nagpal would have received no rank in the result sheet. On the question of marks obtained by her in the interview, however, Shri P.P. Haldar submitted that this information is never disclosed except when the vacancies may arise above and beyond the recruitment made when upon a reference made from a particular department such information is provided. JS, Shri Kamal Bhagat, however, submitted that as per the decision of this Commission in Ashok 5 Kumar Singh Vs. UPSC in file No. CIC/WB/A/2007/00617-SM the issue had been referred to the Chairman, UPSC for consideration whether such information should continue to be exempted from disclosure.
On the question at serial No. 4, as Appellate Authority has held, this being a new question, not raised in any of the earlier applications, it would normally call for a separate and fresh application. However, CPIO Shri P.P.Haldar agreed that he has no difficulty in providing this information, if asked. Appellant Dr. Madhu Nagpal, on the other hand, submitted a copy of an advertisement by the Staff Selection Commission in which not only the names and marks of the selected candidates are disclosed but also those in the waiting list. She, therefore, contested the plea that no marks were give to those who were not selected, since it was from this reserved list that candidates were recommended for new vacancies which recommendation would logically follow from the position of each of the wait-listed candidates on the merit list. Shri P.P. Haldar also conceded this point but with the qualification that such information is in the sealed cover and therefore, unknown to the CPIO, disclosable only to the Member of the UPSC for recommending names to the recruiting department.
DECISION NOTICE On question No.3, information on cut off rank information has now been provided in the hearing. Since the list of selected candidates with their ranks is readily available with the CPIO, even though this request had not featured in the original application and, therefore, the order of the Appellate Authority Shri Kamal Bhagat was correct, to avoid inconvenience, this information may now be provided to the appellant Dr. Madhu Nagpal on payment of a fresh application fee within 10 working days of the date of receipt of such fees.
On question Nos. 5 and 6 we note that the information had already been provided in so far as the UPSC is concerned in CPIO Shri Ashok Mehta's letter of 23-9-09 informing her "The Commission only recommend the candidates to the Department concerned. Posting of recommended 6 candidates is the sole responsibility of the Department concerned", together with the information that," The recommendation of 26 candidates have been sent to the concerned department and recommendation of one candidate has been withheld."
These two questions are, therefore, hereby transferred to PIO Shri Anjuman Masood, Asstt. Director, Directorate of Education, Room No. 211-B, Old Secretariat, Delhi-110054 to be answered in accordance with Section 6 (1) of the RTI Act. The fee for the same has already been paid in the original application addressed to UPSC.
The only issue that, therefore, remains outstanding is whether withholding the information sought by appellant Dr. Madhu Nagpal in question Nos. 1 and 2 of her first appeal is lawful under the RTI Act, 2005. In this context we have examined the ruling of this Commission in file No. CIC/WB/A/2007/00617-SM; Ashok Kumar Singh Vs. S.C. Mishra, Col. Offg. Brig. Admn. In this case the decision of this Commission is as follows:
5. The First Appellate Authority, instead of giving a direct clarification/ information on the status of his representation to the President of India and the Defence Secretary, has quoted the submissions made by the UPSC in a counter affidavit before the CAT. One would have expected the First Appellate Authority to be more forthright and state the position of the Government on his representation rather then give a circuitous reply like this, Primarily, the Appellant had wanted to know that if the order of the CAT, Principle Bench, dated 08.07.2004 had been implemented he would have been reinstated and would have been in service when the UPSC invited applications for regular recruitment. If he had been in service on that date, he could have got the benefit of relaxation of age and would not have been rejected due to overage.
6. The order of the First Appellate Authority is not clear on this. The case is, therefore, remanded to the First Appellate Authority to reconsider the case and to pass a precise and cogent order stating clearly the decision of the concerned authorities on the representation of the Appellant presented to the President of India. The First Appellate Authority must dispose off this case with a cogent order within 15 working days of the receipt of this.
The Appellant would have the right to again approach this 7 Commission if he is not satisfied with the revised orders of the First Appellate Authority.
In this context Brig. A. Banerjee Offg. Appellate Authority in an order of 10-11-08 with reference to the UPSC found as follows:
7. It is submitted that UPSC had also given reply in their counter affidavit in response to petition filed by Dr Ashok Kumar in CAT New Delhi wherein they have stated that the individual was overage and relaxation of five year was not admissible to him as he was not a Govt. Servant on the crucial date i.e. 19.8.2004. UPSC have also mentioned in the said affidavit that age relaxation is allowed only as per Recruitment Rules/ Policy/ Instructions of DOP&T and good track record/ experience are not criteria thereof. They have further stated in the affidavit that they have to deal with thousands of candidates in connection with different recruitment cases, it was clearly mentioned in the advertisements publication by UPSC that it will not generally correspond with candidates. The individual was already apprised of the contents of UPSC under RTI Act vide this Academy letter No. 095271/AKS/Adhoc/ Est (Civ-5) dated 05 May 2007 in response to his applications addressed to the President of India and Secretary, Min of Def.
The Central Information Commission has repeatedly held that if the examination held is a public examination, as it is in this case, information held in regard to that will not find exemption under any of the sub clauses of Section 8 (1) and will thus not be deemed exempt from disclosure. In this case respondents have argued that since Dr. Madhu Nagpal had not qualified in the interview she has not been ranked. Even if there is no such rank, as submitted by appellant Ms. Nagpal recommendations are made by order of merit and, therefore, there must be an order of preference for making recommendation from the wait-list. It is true that Dr. Madhu Nagpal has asked for her rank in the result sheet, the result sheet need not be read narrowly as the result sheet only of successful candidates but also the merit list of those on the wait list. This wait list together with the marks obtained by the candidates in the interview cannot, to our mind, be treated as personal information, the disclosure of which would amount to invasion of privacy, nor indeed can it be claimed that such information is not held in relation to any 8 public activity since a public examination as held by us above, is a public activity.
For the above reasons we do not find the information sought by appellant Dr. Madhu Nagpal under these two questions as information that would warrant exemption either u/s 8 (1) or 8 (2), that latter because it has not been clarified by respondents how the disclosure of such information would harm to any 'protected interest' or indeed what that protected interest might be. For this reason the appeal is allowed. In this regard information held by UPSC on questions 1 and 2 of the appeal made before Shri Kamal Bhagat, JS (R-II) UPSC by appellant Dr. Madhu Nagpal will now be provided to her within 10 working days of the date of receipt of this decision notice.
Reserved in the hearing, this decision is announced in open chamber on this seventeenth day of August 2010. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 17-8-2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 17-8-2010 9