Central Information Commission
Samir Sardana vs Department Of Personnel & Training on 27 October, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOP&T/A/2021/632086 +
CIC/DOP&T/A/2021/634185
Samir Sardana ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Department of Personnel &
Training, RTI Cell, North
Block, New Delhi-110001. .... ितवादीगण /Respondent
Date of Hearing : 28/06/2022
Date of Decision : 20/10/2022
INFORMATION COMMISSIONER : Saroj Punhani
Note: The above referred Appeal(s) have been clubbed for decision as these are
based on the same RTI Application.
Relevant facts emerging from appeal:
RTI application filed on : 25/02/2021
CPIO(s) replied on : 17/06/2021 & 25/06/2021
First appeal filed on : 30/06/2021 & 01/07/2021
First Appellate Authority's order : 15/07/2021 & 21/07/2021
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an RTI application dated 25.02.2021 with the CPIO, Ministry of Home Affairs seeking the following information:1
"4.1. Information is sought w.r.t the following persons • PUNYA SALLA SRIVASTAVA 4.2. The Following information is sought w.r.t the above stated persons: Type A ·Dates of Any Training done (by the above stated persons in Para 4.1., with respect to RTI Act and related matters in the last 5 years
-Nature and Dates of any quasi-judicial functions conducted by the abovesaid person, under any law in India, in the last 3 years
- Number, Dates and CIC Reference no. of all 2nd appeals filed against the FAA orders passed by the above stated person in Para 4.1., in the last 5 years Type B • Date of Appointment/Deputation into the IAS • Category of Appointment into the Service of the IAS (Regular/OBC/SC/ST etc.) • Date of Age Related Retirement from the IAS • Copy of Appointment Letter into the IAS • Photo as per Application Form on Form of Recruitment • Photo as per Application Form on Form of USPC examination • Name of person at the time of joining the IAS • Photo as per Application Form on Service Book (Old, New and Updated Service Books) Type C • Educational Qualifications at the time of joining the IAS • Educational Qualifications acquired after joining the IAS • Training (Name, Nature, Institution, Nation, Location and Dates) received from the date of joining the IAS • Positions, Ranks, Transfers, Deputation, Stations and Departments served from the date of entry into the IAS • Copies of Mark sheets of the 10th,12th standard and the Graduate and Post Graduate level • Language of education (in terms of teaching and written examinations) of the 10th,12th standard and the Graduate and Post Graduate level • PIO to indicate if the above stated persons were at any time the subject of any criminal proceedings initiated by any law enforcement agency, in the last 7 years (year by year) • PIO to indicate if the above stated persons were at any time the subject of ENQUIRY OR INVESTIGATION initiated by any law enforcement agency, in the last 7 years (year by year) 2 • PIO to indicate if the above stated persons were at any time actioned under The Discipline & Appeal Rules in the last 7 years (year by year) • PIO to indicate if the above stated persons were at any time placed under suspension, in the last 7 years (year by year) • PIO to indicate if the above stated persons were at any time placed under suspension, as they were engaged in activities prejudicial to the interest of the security of the state, in the last 7 years (year by year) Type D ·Certified Copies of the CR/ACR for last 5 years ·Certified Copies of the censures, penalties and strictures from date of appointment into the service of the IAS ·Certified Copies of the 1st Page of the Service Book ·Details of all Complaints made against the above stated persons w.r.t number, date of complaint and name of complainant and date of disposal (Section 10 can be applied to name of complainant - if required) for the last 5 years ·Number and Dates of Increments of the above stated persons from the date of inception of service ·Names of the Persons who appraised and sanctioned the Increments of the above stated persons in the IAS ·Number and Dates of Promotions of the above stated persons from the date of inception of service with the GOI in the IAS ·Names of the Persons who appraised and sanctioned the Promotions of the above stated persons in the IAS 4.3.RTI Applicant would like to inspect the Service Book (Old, New and Updated) and Personnel Files of the person named in Para 4.1 above, as also , photograph any document or record therein."
The CPIO, EO(PR), DoPT replied to the Appellant on 17.06.2021 stating as under:
"Please refer to your RTI application dated 12.04.2021 which has been received on its transfer from the M/o Home Affairs vide letter no. 15015/22/2021- LC dated 18.05.2021 and a copy of this has further been marked to the undersigned by the RTI cell of this Department vide R.No.- DOP&T/R/P/21/01202 dated 28.05.2021
2. It may be noted that under the RTI Act, only such information can be supplied which already exists and is held by the Public Authority or held under the control of the Public Authority. The Public Information Officer is not supposed to create information; or to interpret information; or to give non existing opinion/ advice on problems raised by the applicants.
33. The undersigned CP10 is concerned with information sought in point no.1 of Type D of your RTI applicant. It may be mentioned in this regard that while examining the provisions of clause (j) of section 8(1) of the RTI Act (in SLP (C) No. 27734 of 2012 (@ CC 14781/2012)), the Supreme Court has observed vide order dated 03 10 2012:
"13. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the services rules which fall under the expression 'personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public Interest justifies the disclosure of such information, appropriate order could be passed but the petitioner cannot claim those details as a matter of right."
"15: The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act,."
4. In view of the above, no information with regards to your RTI application can be provided."
Being dissatisfied, the appellant filed a First Appeal dated 30.06.2021. FAA's order dated 15.07.2021 upheld the reply of CPIO.
CIC/DOP&T/A/2021/634185 The CPIO furnished a reply to the appellant on 25.06.2021 stating as follows:-
"Please refer to your RTI application dated 12.04.2021 received on transfer from the Ministry of Home Affairs, vide their letter No. 15015/22/2021-LC dated 18.05.2021 [Registration No. DOP&T/RIP/21/01204 dated 28.05.2021] under the provisions of RTI Act, 2005. In this regard, it is informed that thisthis CPIO deals with Service allocation, Cadre allocation and medical examination of the candidates recommended by UPSC on the basis of Civil Services Examination. Thus, information sought only under 'TYPE B' (except point no. 08) of your RTI application pertains to this CPIO.
2. In this regard, in respect of point nos. 01, 02 and 03 under 'Type B' of your application, it is informed that the bio-data of the concerned officer is available on the website of this Department at following link:4
http://supremo.nic.in/knowyourofficerlAs.aspx.
3. In respect of point no. 04 under 'Type B' of your application, a copy of the appointment letter issued to the candidates allocated to lAS on the basis of Civil Services Examination 1992 (including Ms. Punya Salila Srivastava) is enclosed.
4. In respect of point no. 07 under 'Type B' of your application, it is informed that the name of concerned person at the time of joining the lAS is Punya Salila Srivastava.
5. Further, in respect of point nos. 05 and 06 under 'Type B' of your application, it is mentioned that the information sought by you falls under "personal information", the disclosure of which has no relationship to any public activity or bonafide public interest and the disclosure of such information would cause unwarranted invasion of privacy of the individual. Therefore, the same cannot be provided under the provisions of Section 8(1)(j) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 01.07.2021. FAA's order dated 21.07.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: B L Meena, ASO and Vipin Kumar, ASO, Reps. of CPIO, EO(PR) along with Anshuman Mishra, US & CPIO (AIS-I), DoPT present through intra-video conference.
The Appellant stated that the CPIOs have not responded to all the points of his RTI Application and harped extensively on the aspect that Part A, B, C, D of his RTI Application has been either responded to partially or not replied to at all and on this count, he seeks penalty to be imposed on the CPIOs. He further insisted that he does not agree with the CPIO 's view that the information sought for by him is personal information of a third party and also argued that even if the CPIO were to invoke Section 8(1)(j), he could have sought for the consent of the third party. In furtherance of these arguments, the Appellant was heard at length arguing on the same lines as that of his written submissions stating as under in File No. CIC/DOP&T/A/2021/632086:
" THE PIO HAS NOT MADE A REPLY TO THE FOLLOWING QUERIES 5 •Dates of Any Training done (by the abovestated persons in Para 4.1., with respect to RTI Act and related matters in the last 5 years
-Nature and Dates of any quasi-judicial functions conducted by the abovesaid person, under any law in India, in the last 3 years
- Number, Dates and CIC Reference no.of all 2nd appeals filed against the FAA orders passed by the above stated person in Para 4.1., in the last 5 years •Certified Copies of the 1st Page of the Service Book •Details of all Complaints made against the above stated persons w.r.t number, date of complaint and name of complainant and date of disposal (Section 10 can be applied to name of complainant - if required) for the last 5 years •Number and Dates of Increments of the above stated persons from the date of inception of service •Names of the Persons who appraised and sanctioned the Increments of the above stated persons in the IAS •Number and Dates of Promotions of the above stated persons from the date of inception of service with the GOI in the IAS •Names of the Persons who appraised and sanctioned the Promotions of the above stated persons in the IAS •PIO to indicate if the above stated persons were at any time the subject of any criminal proceedings initiated by any law enforcement agency, in the last 7 years (year by year) •PIO to indicate if the above stated persons were at any time the subject of ENQUIRY OR INVESTIGATION initiated by any law enforcement agency, in the last 7 years (year by year) •PIO to indicate if the above stated persons were at any time actioned under The Discipline & Appeal Rules in the last 7 years (year by year) •PIO to indicate if the above stated persons were at any time placed under suspension, in the last 7 years (year by year) •PIO to indicate if the above stated persons were at any time placed under suspension, as they were engaged in activities prejudicial to the interest of the security of the state, in the last 7 years (year by year) THE PIO HAS MADE AN ILLEGAL AND MALAFIDE REJECTION U/S 8(1)(J) OF THE RTI ACT, WHEN THE SUPREMO WEBSITE HAS THE ENTIRE CHRONOLOGY OF THIS WOMAN ON ITS PORTAL (ANNEXURE 1) xxx 4.1. In the Appeal, the Appellant had sought Penalty and Administrative action, on the PIO u/s 20(1) and (2) of the RTI Act,2005 o THERE HAS TO BE A PENALTY ON THE PIO FOR MAKING A NON- REPLY AFTER 130 DAYS 6 o THERE HAS TO BE A PENALTY ON THE PIO FOR MAKING A ILLEGAL REJECTION U/S 8(1)(J) OF THE RTI ACT 4.2. The Appellant impleads with the CIC, to impose a penalty of Rs. 25,000/-
against the CPIO u/s 20 (1) of the RTI Act and recommend to the Public Authority, to take suitable action against the PIO, under the provisions of THE service and conduct rules of KRC staff"
Similarly, the sum and substance of the Appellant's arguments with respect to the information sought for in File No. CIC/DOP&T/A/2021/634185 can be gathered from the below mentioned grounds of appeal:
"4.1.The Grounds for Relief against the PIO, are summarized , as under: Ground of PIO - No.1 The PIO has MADE AN ILLEGAL REJECTION OF ALMOST THE ENTIRE APPLICATION U/S 8(1)(J) OF THE RTI ACT - W/O STATING WHICH INFORMATION HAS BEEN SO REJECTED AND THE BASIS AND REASONING OF THE SAME Ground of PIO - No.2 The PIO has MADE AN ILLEGAL REJECTION OF THE ENTIRE APPLICATION U/S 8(1)(J) AS THE INFORMATION SOUGHT IS NOT PERSONAL AND HAS NO INVASION OF PRIVACY, AS THE SAID DATA IS DISCLOSED ON GOI PORTALS FOR IAS OFFICERS, RPF STAFF AND RAILWAY STAFF MADE AN ILLEGAL REJECTION U/S 8(1) (J)OF THE RTI ACT - AND SO, WHY CAN THIS INFORMATION NOT BE SHARED FOR THIS IAS OFFICER Ground of PIO - No.3 SEVERAL POLICE FORCES HAVE DISCLOSED THE DATE OF BIRTH, TRANSFERS, POSTINGS, AWARDS, INCREMENTS, EDUCATIONAL QUALIFICATIONS, AND DATE OF JOINING OF IPS OFFICERS, ON THEIR PORTALS, AND SO THE DATA IS NOT PERSONAL AND THERE IS NO INVASION OF PRIVACY.
THEREFORE, HOW CAN THE INFORMATION SOUGHT FOR THE IAS OFFICER BE DEEMED TO BE PERSONAL INFORMATION Ground of PIO - No.4 The Information Sought by the applicant is required to SUE THE IAS STAFF AND THE INDIAN STATE FOR THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE APPLICANT IN CHAPTER 3 OF THE INDIAN CONSTITUTION AND THE ICCPR AND ICESCR Conventions of the UN (to which this nation is a signatory and a ratifying entity), AND FOR THEIR SERVICE RECORD AND PAST PATTERNS OF ILLEGAL AND UNETHICAL CONDUCT, WHICH HAVE TO BE REVIEWED"
7B L Meena, ASO & Rep. of CPIO(ER) reiterated the reply provided to the Appellant on 17.06.2021 while Anshuman Mishra, US & CPIO (AIS-I), DoPT reiterated the reply provided to the Appellant on 25.06.2021.
Further, responding to the Appellant's persistent argument that the CPIOs did not reply to most of the points of the RTI Application as well as in response to conjecture expressed with respect to the service book of the averred employee, the Respondent CPIOs affirmed that the service book is maintained by the cadre controlling authority which in this case ought to be the MHA.
The Appellant interjected to state that nobody in MHA has the time to read RTI Applications carefully. Lastly, the Appellant desired to insist on the larger public interest pertinent in the disclosure of the information as explained in his First Appeal & Second Appeal.
Decision:
The Commission at the outset observes that the information sought for in the instant RTI Application is squarely exempt from disclosure under Section 8(1)(j) of the RTI Act as it relates to the service record of a third party. It is pertinent to note that in some places the Appellant has also sought for clarifications and confirmation of facts related to the said third party. For the sake of clarity, the said exemption of Section 8(1)(j) of the RTI Act is reproduced as under:
"Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:.."
In this regard, the attention of the Appellant is further drawn towards a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the 8 same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794. The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
Further, the Commission is unable to comprehend the aspect of larger public interest being argued in the matter by the Appellant and in not inclined to intervene with the reply of the CPIO. In this regard, the Commission places reliance on a catena of judgments of the superior Courts on the import of "public interest" as under:
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & Anr. [CIVIL APPEAL NO.9052 OF 2012] observed as under:
"23. 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 recommendation and protection; something in which the public as a whole has a stake [Black's Law Dictionary (Eighth Edition)]. Emphasis Supplied 9 "24. The satisfaction has to be arrived at by the authorities objectively and the consequences of such disclosure have to be weighed with regard to circumstances of a given case. The decision has to be based on objective satisfaction recorded for ensuring that larger public interest outweighs unwarranted invasion of privacy or other factors stated in the provision. Certain matters, particularly in relation to appointment, are required to be dealt with great confidentiality."
".... Similarly, there may be cases where the disclosure has no relationship to any public activity or interest or it may even cause unwarranted invasion of privacy of the individual. All these protections have to be given their due implementation as they spring from statutory exemptions. It is not a decision simpliciter between private interest and public interest. It is a matter where a constitutional protection is available to a person with regard to the right to privacy. Thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India." Emphasis Supplied Similarly, in another judgment of the Hon'ble Supreme Court in the matter of S. P. Gupta v President of India, [AIR 1982 SC 149], with reference to 'public interest' it has been maintained that:
"Redressing public injury, enforcing public duty, protecting social, collective, 'diffused' rights and interests vindicate public interest... [in the enforcement of which] the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." Emphasis Supplied And, in the matter of State of Gujarat vs. Mirzapur Moti Kureshi Kasab Jamat & others [Appeal (Civil) 4937-4940 of 1998], the Hon'ble Supreme Court has held that:
"the interest of general public (public interest) is of a wide importance covering public order, public health, public security, morals, economic welfare of the community, and the objects mentioned in Part IV of the Constitution [i.e. Directive Principles of State Policy]". Emphasis Supplied Notably, the argument of the Appellant that the CPIO should have sought for the consent of the third party stands bereft of merit as Section 11 of the RTI Act provides for seeking consent of the third party when the CPIO 'intends' to disclose 10 the information related to the third party and here, it is clear beyond reasonable doubt that the CPIO intended to deny the information.
Adverting to the foregoing observations, the Commission is also not inclined to proceed adversely against the CPIO for not having responded to each of the "Parts" of the RTI Application or call into question the merits of the transfer of the RTI Application under Section 6(3) of the RTI Act from MHA to DoPT or the role of MHA, per se.
The mere omission of the CPIOs to reply to each 'Part' & point of the RTI Application in the instant case does not suggest any malafides based on the strength of the material on record, more particularly in view of the explanation tendered by the CPIOs during the hearing regarding not being the record holder for the remaining points. Here, the attention of the Appellant is drawn towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
" 61. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed...."
Similarly, an observation of the Hon'ble Delhi High Court in the matter of Bhagat Singh vs. CIC & Ors. WP(C) 3114/2007 is also relevant to point out here which reads as under:
"17. This Court takes a serious note of the two-year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to 11 demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Nonetheless, in keeping with spirit of the RTI Act, the Respondent CPIOs are advised to provide more cogent and point-wise reply to the RTI Applications in future indicating unavailability of information, wherever applicable, so as to avoid causing similar aspersions to be cast on their conduct in the future.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 12