Central Information Commission
Navneet Kumar vs Department Of Personnel & Training on 5 November, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली- 110067
Munirka, New Delhi-110067
File no.: CIC/DOP&T/A/2020/110673
In the matter of:
Navneet Kumar
... Appellant
VS
CPIO/Under Secretary
Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training,
AT Division, Room No. 305, Lok Nayak Bhawan,
Khan Market, New Delhi - 110 003
...Respondent
RTI application filed on : 04/11/2019 CPIO replied on : 28/11/2019 First appeal filed on : 08/01/2020 First Appellate Authority order : Not on Record Second Appeal dated : 05/03/2020 Date of Hearing : 03/11/2020 Date of Decision : 03/11/2020
Note: Hearing of the case is being done early in compliance with the Orders issued by the High Court of Judicature at Allahabad, Lucknow in case No.Misc.Single No.-14383 of 2020.
The following were present:
Appellant: Present over VC Respondent: Shri Rishi Kumar, the CPIO, present over intra VC.
Information Sought:
The appellant has sought the following information:
1. Copies of the note sheet with effect from 08/05/2019 pertaining to his file for extension of his term as Member Judicial CAT in pursuance of compliance of the directions issued by Hon'ble High Court in Writ 1 Petition No. 6640 (SB) of 2017, Navneet Kumar Vs. Union of India & Others.
2. Copy of DoPT's OM No. P - 26012/7/2017-AT dated 23/08/2019 as referred to in letter No. 6/31/2010-EO (SM-II) dated 11/10/2019.
3. Furnish the material upon which the proposal is made for issuing the DOPT's OM No. P - 26012/7/2017-AT dated 23/08/2019 as referred to in letter no. 6/31/2010-EO (SM-II) dated 11/10/2019.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The Appellant submitted that the Respondents have malafidely not supplied the information/ documents to the applicant. The materials on record clearly show the lackadaisical approach of the respondents in implementing the RTI Act. Such actions of the respondents are in non compliance with the provisions and spirit of the RTI Act. This clearly shows that the respondents have taken the RTI Act very casually. Hence penalty may be imposed on the concerned CPIO for not providing the desired information to him.
The CPIO reiterated the contents of his detailed written submissions dated 27.10.2020 and submitted that an interim reply was given to the appellant on 31.08.2020.
Observations:
Before deciding the matter, the Commission finds it relevant to give the background of the case which is as under:
The appellant was appointed as Member Judicial in CAT for a period of five years from 28.06.2011 to 27.06.2016. His case for extension of his tenure for another term was sent to the Appointment Committee of Cabinet (ACC) for approval. But the same was returned without approval. He thereafter filed a WP No. 6640/2017 before the Hon'ble High Court of Allahabad with a prayer for extension of the period as a Member of the CAT. The Hon'ble High Court vide order dated 08.05.2019 disposed of the WP with the direction that " the respondent i.e. ACC to take a decision in reference to recommendations of the Selection Committee and pass appropriate order, after consideration of case as 2 per the rules. If the recommendations made by the Selection Committee, as approved by the Chief Justice of India is accepted, then consequential order would be passed forthwith. In case of adverse order, a copy of it would be sent to the petitioner".
In compliance with the direction of the Hon'ble High Court, a proposal was sent to EO Division on 23.08.2019 for issue of order conveying the decision of the ACC, vide OM No. P-26012/7/2017- AT dated 23.08.2019. The EO Division vide reference No. 6/31//2010-EO(SM-II) dated 11.10.2019 conveyed the approval of ACC for denial of extension of the term of appointment to Sh. Navneet Kumar for another term as Judicial Member in CAT. The said decision of ACC was further conveyed to Sh. Navneet Kumar vide letter No. P- 26012/7/2017-AT dated 24.10.2019 along with a copy thereof. In this connection, the appellant had filed a RTI application seeking certain information from the respondent organisation.
When the RTI application was processed, initially the appellant was requested by the CPIO to deposit the relevant photocopying charges for obtaining relevant documents and meanwhile comments were sought from the IR Division to examine whether the information which was related to processing of a proposal for appointment of a Member of CAT by the Appointments Committee of the Cabinet (ACC), the process of which is to be kept confidential can be disclosed or not. The IR Division, DOPT vide OM dated 01.01.2020 rather than giving specific advice, merely stated that the decision to disclose a document under RTI may be taken by the CPIO considering the exemptions provided under Section 8 and 9 of RTI Act, 2005."
The matter was reconsidered and vide the note dated 17.01.2019 it was considered that the matter of extension of tenure of Members has attained finality after getting the decision of the competent authority and, therefore, the information requested for by the applicant does not come under the exemptions under Section 8(1)(i) of RTI Act. It was left to the CPIO to take a final decision in the matter. It was during this time that the appellant again filed a petition ( WP No. 1704 (S/B) of 2020) in the Hon'ble Lucknow High Court against the denial of extension of his tenure as Member (J), CAT, which is also related to the subject matter of the above mentioned RTI application. It was therefore, decided to refer the matter to the Department of Legal Affairs 3 (DoLA) for seeking legal opinion whether the requested information can be provided to the applicant if the matter is sub-judice. In its advice, it was opined that there is no such kind of order of any court of law which forbids disclosure of information, even if the matter is sub-judice. However, Department/ CPIO is free to take administrative decision in the matter.
In view of the pandemic COVID-19 situation in the country, a nationwide lockdown was imposed. Thereafter, the matter was submitted by the CPIO along with views of DOLA vide note dated 22.06.2020 to the higher authorities of his organisation and a decision thereon is still pending. Recently, an interim reply was given to the applicant on 31.08.2020 informing him that since the requested information involves documents placed before the ACC and also there is a court case related to it, the matter of providing him the requested information is still pending.
Having said so, it is noted that the CPIO while taking due care regarding the sensitive nature of the information sought in the above mentioned RTI application had taken proper steps at the relevant time and had discussed the matter with the higher authorities to take a considerate view regarding the disclosure of the sought for information and the appellant was also kept informed about the same. However, this was done after providing the first reply to the appellant where photocopying charges were sought, thereby giving the impression to the appellant that the information would be provided. Considering the fact that the appellant is seeking documents relating to a decision taken by ACC, it was specifically enquired from the CPIO during the hearing as to whether the documents sought by the appellant were a part of the deliberations which were placed before the ACC. To this the CPIO initially submitted that these documents were not a part of the deliberations. However, while making further submissions he also submitted that as a routine procedure they had forwarded the entire file regarding the matter of extension of tenure of the appellant as a Member Judicial in CAT to the ER Division from where thefile was further forwarded to the ACC. Under such circumstances where the CPIO himself is not able to explain the factual position regarding the documents sought by the appellant and to answer whether they were placed before the ACC for taking a final view in the matter of the appellant's extension or not, the CPIO is directed to consult his higher authorities and take a final call regarding the same after examining all the records thoroughly. For clarity of 4 the matter, it is pertinent to mention here that if the documents sought by the appellant formed a part of the documents which were placed before the ACC for taking a final decision in the case of the appellant, then the information cannot be shared with the appellant due to the sub-judice matter as stated above.
As a guiding reference on the interplay between Section 8(1)(i) of the RTI Act and records of deliberations of the ACC, the CPIO's attention is drawn towards a stay order of the Hon'ble Delhi High Court in LPA No. 347/2010. The relevance of the said stay order has been emphasized by a coordinate bench of the Commission in the matter of Nutan Thakur vs. DoPT vide File No:
CIC/DOP&T/A/2017/160659/SD in the following words:
"As regards the stay of Hon'ble Delhi High Court vide LPA No. 347/2010 is concerned, Commission notes that the applicability of Section 8(1)(i) of RTI Act is not what is pending adjudication but the moot question is based on a decision of First Appellate Authority as extracted in para 53 of the judgment in W.P (C) No. 8396/2009 which states as under:
'.......This rule-making power (for conduct of the Government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of Parliament, as this rule-making power flows from the direct constitutional mandate and they are not product of any legislative authorization. In view of the fact that the separation of powers is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of Government's business (Transaction of business and allocation of business) cannot be fettered by any act or by any Judicial decision of any Court, Commission, Tribunal, etc. Since ACC is a product of the rules framed under Article 77(3) of the Constitution of India, its business (deliberations including the decision whether they are to be made public) are not the subject- matter of the decisions of any other authority other than the President of India himself.
Therefore, unless these rules, framed under Article 77(3) themselves provide for disclosure of information pertaining to the working of the cabinet and its 5 committees, no disclosure can be made pertaining to them, under the RTI Act............' In other words, the issue pending adjudication in LPA No. 347/2010 is whether records of ACC being Cabinet papers are yet distinct from the records of deliberations of Council of Ministers or not."
During the hearing, the appellant raised an objection and submitted that even if the information could not be shared with him, the CPIO was under a duty to state so categorically in his reply at the relevant time rather than demanding the requisite photocopying charges from him and the First Appellate Authority has also failed to pass any order in the matter. Both these instances show poor implementation of the provisions of the RTI Act by the respondent organisation. The Commission concurs with the submissions of the appellant to the extent that it is the CPIO who is the custodian of the information and after perusing the file and the information sought by the appellant, he had to decide as to whether the information was to be disclosed or not. Rather than forwarding the matter to all the Departments including the IR Division and D/o Legal Affairs and seeking their comments, the CPIO was to follow the provisions laid down by the RTI Act and by the principles laid down by the Commission in its various orders. However, the Commission cannot also lose sight of the fact that the CPIO had taken enough efforts to examine the case at length but was slightly confused on a query by the Commission regarding whether the documents/information sought for by the appellant had formed a part of the papers that were submitted before the ACC.
Decision:
In view of the foregoing discussion, the CPIO is directed to examine the matter and the point-wise documents/ information sought for by the appellant once again in the light of the discussions held during the hearing and as stated above and provide a final reply to the appellant within a period of 21 days from the date of receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vanaja N. Sarna(वनजा एन. सरना) Information Commissioner (सूचनाआयु ) 6 Authenticated true copy (अिभ मा णतस या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date 7