Central Information Commission
Mrsanjiv Chaturvedi vs Ministry Of Health & Family Welfare on 25 February, 2016
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
F.No. CIC/YA/A/2015/002085
Date of Hearing : 19.01.2016
Date of Decision : 25.02.2016
Complainant/Appellant : Shri Sanjiv Chaturvedi
New Delhi
Respondent : CPIO,
All India Institute of Medical Sciences, Ministry of Health & Family Welfare.
Through:
Shri Arun Kumar Singh, CPIO, Vig, AIIMS Shri K.K.Giridhari, CPIO, Rectt. Cell Smt. Sunita Dhaundiyal CPIO, MoH &FW Shri Lalit Oraon, CPIO, Admn., AIIMS Shri N.K.Sharma, S.O., MoH&FW Information Commissioner : Shri Yashovardhan Azad Relevant facts emerging from complaint/appeal:
RTI application filed on : 22.06.2015
CPIO replied on : 30.06.2015 / 01.07.2015/ 16.07.2015/
22.07.2015/ 24.07.2015
First Appeal filed on : 17.07.2015 / 22.07.2015/ 31.07.2015
First Appellate Authority (FAA) order on : 13.08.2015
Complaint/ Second Appeal received on : 01.10.2015
Appeals bearing No. CIC/YA/A/2015/000236 and CIC/YA/A/2015/2085 emanating from RTI applications dated 13.10.2014 and 22.06.2015 respectively were scheduled for hearing on 19.01.2016. With consent of both the parties, firstly they were heard on Appeal No. CIC/YA/A/2015/2085. Due to paucity of time, appeal No. CIC/YA/A/2015/000236 could not be taken up and hearing for the same is now scheduled for 07.03.2016 at 12.35 PM.
Information Sought:
Vide RTI application dated 22.06.2015, the appellant sought information relating to his APAR and multifaceted information under 13 paras.
Relevant facts emerging from hearing:
All the parties are present and heard. At the outset, the appellant submits that information on points No. (iii) to (vi) has been received. The appellant expressed dissatisfaction on the information furnished on remaining points, which are extracted hereunder and being dealt with pointwise:
" Query No. 1 : The Annual Performance Appraisal Report (APAR) of Sh.
Sanjiv Chaturvedi, IFS, Deputy Secretary, AIIMS for the period 16.07.2014 to 16.12.2014 along with self appraisal and entries made by Shri K.C.Samaria, IAS, the then DD(A), AIIMS was forwarded to Shri M.C.Mishra, Director AIIMS ON/around 31.03.2015 for making entries as Reviewing Authority and further transmission. The said copy is still withheld in the Director office. Kindly provide a certified copy of the same APAR for the period from 16.07.2014 to 16.12.2014 along with self appraisal entries and entries made by Shri K.C.Samaria and action taken by Shri M.C.Mishra on the same.
Query No.2: Kindly provide certified copy of the file noting related to the communication dated 28.05.2015 and 29.05.2015 on the issue of appellant's Annual Performance Appraisal Report for the year 2014-2015."
The appellant submits that he is an officer of Indian Forest Service and governed by All India Services (PAR) Rules, 2007. It is contended by the appellant that his APAR for the relevant period was initiated by Shri K.C. Samaria, IAS and forwarded to Shri M.C.Mishra, Director, AIIMS being the Reviewing Authority. It is the grievance of the appellant that said APAR has not been finalised by the Reviewing Authority allegedly acting against the aforesaid statutory provisions. The appellant states that due to non finalization of the performance appraisal report he is being put in a disadvantageous position vis a vis his peers. In this factual backdrop, the appellant states to have sought the certified copy of the related file notings. Per contra, the CPIO reiterates his reply and states that as such up to date factual information was furnished. Upon query, the CPIO informs the Commission that he has no knowledge about the movement of aforesaid APAR file.
The Commission observes that APAR is disclosable per se upon finalisation of assessment, however, in the present case, the APAR is under consideration of the Reviewing Authority. The Commission observes that as such in its inconclusive form, revelation of the aforesaid APAR would hardly serve any purpose. The Commission finds the reply of the CPIO to be adequate as regards Query no. 1. The Commission is quite alive to hardship faced by the appellant in terms of detriment of career prospects in terms of the rules framed by the DoPT that the APAR has to be written by reviewing and accepting authority within a given time frame. The concerned Ministry that is the Ministry of Health and Family Welfare in this case, and the cadre controlling Ministry that is the Ministry of Forest are supposed to ensure this. The Appellant is at liberty to take appropriate legal recourse.
As regard query No.2, the Commission finds the reply of CPIO bad in law. Appellant has an equitable right to know about action taken as well as status of representations made by him and the same may be communicated to him.
Query No.7 : Kindly provide me certified copy of the file noting/documents/ correspondences related to the action taken by the Institute, including the payment of subsistence allowance, regarding resident doctor Mr. Mehar Tej after intimation of FIR No.231 dated 27.022015 registered on the charges of rape and other criminal offence.
The Appellant submits that the person concerned is employed with AIIMS on contractual basis and arrayed as accused in the aforesaid incident. It is alleged by the appellant that the accused continues to draw subsistence allowance despite facing a criminal trial and the disclosure of information as such is in wider public interest. Per contra, the CPIO submits that since the information sought concerned a third party, hence process contemplated u/s 11 of the RTI Act was resorted to wherein the person concerned expressed his denial and as such, information sought was denied invoking clause (j) of Section 8(1). Upon query, the CPIO informs that trial in the aforesaid case is underway. The CPIO submits that the subsistence allowance was released to the person involved, in compliance to a directive of Delhi High Court.
The Commission observes that the genus of the information sought is not personal inasmuch as the accused in the aforesaid incident is undisputedly a beneficiary of public money. However, the disclosure of the details thereof at this stage may adversely affect the presumption of innocence of the accused. Since the trial is yet to conclude, information only to the extent of admissibility of subsistence allowance to the accused be disclosed.
The CPIO is directed to furnish information relating to grant of subsistence allowance to the personal in question only.
Query No.8: Kindly provide me certified copy of the file noting/documents/correspondences related to case of fake property certificates used for purchase of cleaning items/disinfectants in Trauma Centre of the Institute into which one Store Officer was placed under suspension.
The CPIO informs the Commission that the disciplinary proceedings against delinquent officials as well as a CBI investigation on the same issue are underway and contends that any revelation thereof at this stage would impede both. The Commission concurs with the CPIO and finds the reply of the CPIO to be in order.
Query No.10: Kindly provide me the number and details of the cases referred to CBI for investigation by the institute against institute employees from 17.08.2014 till date.
Query No.11: Kindly provide me the number and details of the cases, referred to CVC for Investigation/further action/first stage advice by the institute against institute employees from 17.08.2014 till date (excluding cases of a faculty member of Department of Bio Statistics and Department of Cardiac Anaesthesia).
The Appellant contends that larger public interest warrants the disclosure of information sought. Per contra the CPIO reiterating earlier reply submits that information asked for is classified and could not be disclosed in view of clause (h) of Section 8(1) inasmuch as the same would impede the process of investigation. The Appellant contests the statement made by CPIO and contends that post 17.08.2014 no fresh cases were referred to either CBI or CVC for investigation and imputes malafide to the denial of information by CPIO.
The Commission observes that furnishing details of the cases referred to CBI or CVC may create impediments in the course of investigation thereof. However, in considered opinion of the Commission, there is no harm in disclosure of numerical data as precisely reflecting the number of cases which were referred to CBI and CVC.
The CPIO is directed to furnish the statistics conveying number of cases only, referred to CBI and CVC post 17.08.2014 within 2 weeks.
Query No.12: Between 2005 to 2015 Sh. Vineet Chaudhary, Sh. Shailesh Yadav, Sh. Vishvas Mehta, Sh. Debashish Panda, Sh. Randeep Guleria, Sh. Sharad Chauhan, Sh. Sanjiv Chaturvedi and Sh. Manoj Jhalani acted as CVO of the institute. Kindly provide certified copies of the prior approval in each of these cases and copy of the documents related to the objection raised by Ministry of Health & Family Welfare, CVC, any Member of Parliament on the same.
The appellant submits that the information sought is not exempted under any law under vogue. He further submits that the information asked for is to ensure if a standard procedure was being followed for the appointment as Chief Vigilance Officer, AIIMS. The appellant alleges that the appointment as well as removal from the aforesaid position is being done in an opaque manner thereby thwarting the rule of law. Per contra, the CPIO, Vigilance states that information sought pertains to Recruitment Cell, AIIMS and MoHFW, Govt. of India and may be available with either of them.
In Dinesh Trivedi, M.P. and Ors. Vs. Union of India (UOI) and Ors; MANU/SC/1138/1997, the Hon'ble Apex Court while asserting the importance of transparency in functioning of state observed as:
"18. The case of S.P. Gupta v. Union of India, decided by a seven-Judge Constitution Bench of this Court, is generally considered as having broken new ground and having added a fresh, liberal dimension to the need for increased disclosure in matters relating to public affairs. In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of government, disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest. The Court held that the disclosure of documents- relating to the affairs of State involves two competing dimensions of public interest, namely, the right of the citizen to obtain disclosure of information, which competes with the right of the State to protect the information relating to its crucial affairs. It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved in each individual case. It is important to note that it was conceded that there are certain classes of documents which are necessarily required to be protected, e.g. Cabinet Minutes, documents concerning the national safety, documents which affect diplomatic relations or relate to some State secrets of the highest importance, and the like in respect of which the Court would ordinarily uphold Government's claim of privilege. However, even these documents have to be tested against the basic guiding principle which is that wherever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from disclosure. (Paras 73 and 74 at pp. 284-286).
19. What then is the test? To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the Government and the basis thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision-makers in Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest."
The Commission observes that the ratio propounded by the Hon'ble Supreme Court squarely applies herein. The Commission observes that the disclosure of information sought would go a long way in furtherance of cause of transparency in a premier medical institution of the county.
Decision:-
After hearing both parties and on perusal of record, the Commission in light of the preceding paragraphs, directs the CPIO to furnish free of cost the following:
a) Attested copy of the file notings as sought under point no. 2;
b) Information relating to grant of subsistence allowance only to the person referred under query no. 7;
c) Statistics conveying number of cases only, referred to CBI and CVC post 17.08.2014;
d) Certified copies of documents as sought under query no. 12.
The present order shall be complied within 3 weeks of receipt.
A copy of this order shall be marked to Secretary Health, Govt. of India for taking necessary corrective action to ensure that officers like the appellant in the instant case, do not suffer on account of delays in writing of their APARs by senior officers.
The appeal is disposed in the above terms.
(Yashovardhan Azad) Information Commissioner 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.
(V.D.Naniwadekar) Designated officer to IC (YA) Copy to:-
Central Public Information Officer u/RTI Administrative Officer - RTI Cell, All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110029.
Central Public Information Officer u/RTI Senior Administrative Officer - Recruitment, All India Institute of Medical Sciences, Recruitment Cell, Ansari Nagar, New Delhi-110029.
Central Public Information Officer u/RTI Administrative Officer - Establishment-I, All India Institute of Medical Sciences, Establishment-I Section, Ansari Nagar, New Delhi-110029.
Central Public Information Officer u/RTI Administrative Officer-Parliament Questions, All India Institute of Medical Sciences, (Parliament Questions Cell), Ansari Nagar, New Delhi-110029.