Central Information Commission
Seema vs Chief Commissioner Of Customs, ... on 3 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/CCUM1/A/2018/622418-BJ
Ms. Seema Deep
....अपीलकता/Appellant
VERSUS
बनाम
CPIO/ Dy. Commissioner of Customs
O/o the Pr. Commissioner of Customs (General)
RTI Cell, New Custom House, Ballard Estate
Mumbai - 400001
... ितवादीगण /Respondent
Date of Hearing : 03.12.2019
Date of Decision : 03.12.2019
Date of RTI application 18.02.2018
CPIO's response 21.03.2018
Date of the First Appeal 08.04.2018
(mentioned in 2nd
Appeal)
First Appellate Authority's response 08.05.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide her RTI application sought to obtain information a copy of roster maintained by Bombay Custom House containing the requisite details of the directly recruited officers for the Post of Preventive Officer and Examiner for the Recruitment Years 1978 to 1990, separately for every recruitment year and each post.
The CPIO vide his response dated 21.03.2018 stated that the information sought by the Appellant dates back to approx. 20 years from the date of application and thus was not readily available. He also brought the Appellant's attention towards Section 8(3) of the Right to Information Act, 2005. Dissatisfied with the CPIO's response, the Appellant approached the FAA. The FAA vide his order dated 08.05.2018 concurred with the CPIO's response.Page 1 of 4
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. H. M. Patel, Assistant Commissioner & CPIO and Mr. Indu Bhushan Kumar, Preventive Officer through VC;
The Appellant remained absent during the hearing. The Respondent informed the Commission that the CPIO / FAA had replied suitably in the matter. In the reply of the FAA, a reference was made to Section 8 (3) of the RTI Act, 2005 which was interpreted to construe that the information more than 20 years old could not be traced and provided. It was noted by the Commission that the Appellant was seeking information pertaining to 40 point roster for reservation for SC/ ST in respect of direct recruitment made on All India basis by open competition by UPSC / SSC. On a query from the Commission regarding provision 8 (3) of the RTI Act, 2005, the Respondent feigned ignorance and agree to reexamine the matter. It was further stated that the said records were not available with them being old records.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, 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) 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) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, Page 2 of 4 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."
In the context of directing the Respondent to issue an affidavit to the effect that the information sought was not held and available with them, 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."
The Appellant was not present to contest the submissions of the Respondent or to substantiate her claims further.
Page 3 of 4DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, the Commission directs the CPIO to reexamine the RTI application and furnish the information sought to the Appellant. If the information sough is not traceable/ destroyed, an affidavit to the Appellant regarding non-availability of records if so convinced shall be provided to the Appellant within a period of 15 days from the date of receipt of this order.
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.
(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: 03.12.2019 Copy to:
1. The Chairman, CBIC, Department of Revenue, M/o Finance, North Block, New Delhi - 110001 Page 4 of 4