Central Information Commission
Purna Chandra Jena vs Directorate General Of Quality ... on 15 April, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DGOQA/A/2018/106478/SD
Purna Chandra Jena ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Dte. Gen of Quality Assurance,
G Block,
Nirman Bhawan,
PO New Delhi - 110011 ... ितवादीगण /Respondent
RTI application filed on : 16/10/2017
CPIO replied on : 15/11/2017
First appeal filed on : 28/11/2017
First Appellate Authority order : 10/01/2018
Second Appeal dated : 30/01/2018
Date of Hearing : 24/01/2019
Date of Decision : 11/04/2019
Information sought:
The Appellant sought certain clarifications regarding authorization to certain officers to write his Annual Confidential Report (ACR) ; govt. order vide which seniority of Army Officers permanently seconded to DGQA are fixed and noting sheet processed at various levels against all his representations put up between Jun 2007 to Jul 2017 etc. Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:-1
Appellant: Present in person.
Respondent: Kamlesh Saini, AD & CPIO, Brig. V.K. Tiwari, Brig. QA(O) and Atul Kumar, Dy. Dir., O/o Dte. Gen of Quality Assurance, New Delhi present in person.
Commission remarked at the outset that largely scope of intervention is pertinent only on para 4 of the RTI Application as information sought vide para 1 & 2 therein is not as per Section 2(f) of RTI Act while, information sought at paras 3 and 5 has been appropriately replied to by the CPIO.
Appellant objected to the observation of the Commission to state that he is not satisfied with the reply provided on para 3 and 5 of the RTI Application as he has not received the specific govt. order vide which seniority of Army Officers permanently seconded to DGQA is fixed and that on para 5, the specific noting sheet has not been provided. He further submitted that the denial of information on para 4 of the RTI Application under Section 8(1)(j) of RTI Act is erroneous.
Commission asked the CPIO to explain the denial of information, to which the CPIO submitted that the information sought vide para 4 of the RTI Application is voluminous as it spans across a time period of 10 years and that the same is confidential as per Hon'ble Supreme Court judgment in the matter of Dev Dutt Vs. Union of India (Civil Appeal No. 7631 OF 2002) since it entails disclosure of ACR aspects of the Appellant.
Appellant argued that there are only 4 representations that he has filed between year 2007 and 2017, and therefore the information sought is definitely not voluminous. He further stated that the reliance placed on the Apex Court judgment by the CPIO to deny the information is not applicable in his case as he is not a 'military officer' as per the connotation of Army Act since he has been permanently seconded to DGQA, by virtue of this, he is amenable to prevalent DoPT rules in the matters of promotion and ACR and it is for disciplinary action alone that he is amenable to Army Act. In this regard he further relied on an order of the Armed Forces Tribunal, Regional Bench, Kolkata in O.A. No. 96 of 2012 passed in his case wherein the following was held:
"...The terms and conditions of service officers in the DGQA is not the creation of the Army Act and Army Rules made thereunder. On the contrary they are governed by DOPT/MoD circulars and OMs. So far as service officer(s) who are permanently seconded to this organization, are concerned, they are governed by 2 File No : CIC/DGOQA/A/2018/106478/SD the OMs and administrative instructions of MoD on service matters and by the Army Act exclusively for the disciplinary matters.
It is undisputed that this Tribunal is empowered to adjudicate the service matters in respect of persons subject to Army Act but in the instant case, the subject matter of dispute relates entirely to civil administration.
We have carefully gone through the decision of the Principal Bench in Maj. Gen. S.B. Akali's case (supra). In that case the applicant was also an army officer, who was permanently seconded to DRDO. His grievance was with regard to non- selection to the rank of Lt. Gen in the general pool in the said organization. The Principal Bench in para 12 & 13 of the said judgments has held as under:
'12....It is under the DRDO rules of the Office Memorandum dated 23rd November 1989. As such, this Tribunal cannot sit over the selection by DRDO to decide the issue whether petitioner has been correctly superseded or not, since the service conditions of the seconded officers under the DRDO is regulated by Office Memorandum dated 23rd November 1979 and it is not under the Army Act and Rules...' In that decision, the Principal Bench has also referred to another decision in the case of Brig. PJS Rangar & Brig. Anand Solanki (TA 221 of 2010) where also the incumbents were permanently seconded to Director General of Quality Assurance (like the applicant before us) and it was held that the Tribunal has no jurisdiction.
Accordingly, the OA stands dismissed for lack of jurisdiction..."
CPIO submitted that certain dual conditions are applicable on the permanently seconded uniformed officers in DGQA but that does not differentiate them from a 'military officer'. That, it is only for some limited purposes that DoPT rules apply to permanently seconded officers but overall they remain amenable to Army Act only.
At this instance, Appellant cited an Affidavit filed by the Deputy Director General (Officers) of DGQA in W.P.No. 9659 (W) of 2014 wherein the following has been sworn:3
"II) That the terms and Conditions of Service in respect of service officers posted to DGQA on tenure and grant of permanent secondment are governed by Government letter no. 67952/Q/DGI(Adm-4)/10412/D(Prod) dated 28 Oct 1978...."
III(e)...thus, it goes on to show that DGQA is an independent organisation and does not form part of the Army....Since DGQA is dependent on Army for intake of service officers, a cut-off age of 44 years at the time of permanent secondment was introduced vide Office Memorandum No. 6(1)2007/D(QA) dated 16.11.2007.
VII) That the DGQA organisation is under the control of the Department of Defence Production under Ministry of Defence and it not governed by the Army Act 1950 and rules framed there-under VIII) That the DGQA organization is governed by OMs and Rules made by the Department of Defence Production/MoD and not by the Army Act and Army Rules....
IX) That there are several dis-similarities between Officers serving in regular Army and PSSOs of DGQA which clearly establish that DGQA organization has an independent identity, different from the Army. Out of the many differences, a few are mentioned below:
(i) Annual Performance Appraisal Review (APAR) system, as per DOP&T rules, for evaluation of officers in followed in DGQA, while in the Army there is Annual Confidential Report for the same purpose.
(v) The PSSOs of DGQA have their own and separate cadre with their own seniority list of DGQA whereas in the Army the officers are promoted to the next rank as per their year of seniority i.e the batch year. Once permanently seconded and fixation of their seniority in the DGQA PSSOs Gradation List, the officers past seniority in the Army has no relevance of the batch year thereafter in DGQA. Officers thereafter are considered for promotion to the next rank in the order of their seniority in the Gradation List.
(vi) The selection of PSSOs of DGQA for promotions is done by Quality Assurance Selection Board (QASB), whereas in the Army, the promotions of officers are by their own Selection Boards..."4
File No : CIC/DGOQA/A/2018/106478/SD Having heard the submissions of both parties, Commission reserved the decision.
Decision Commission upon careful consideration of the facts on record observes that the moot question to decide in the matter is whether disclosure of Appellant's ACR amounts to disclosure of ACR of 'military officer' as precluded by Hon'ble Supreme Court judgment in the matter of Dev Dutt Vs. Union of India (Civil Appeal No. 7631 OF 2002). The judgment held as under:
"38. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.
XXX
41. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants)."
Now, the Hon'ble Supreme Court in the matter of Union of India vs. Major Bahadur Singh (2006 (1) SCC 368) premised its judgment on the following observations:
5"Objectivity in the system of Selection is ensured by the MS Branch, by the following:
'Concealment of the identity of the officers being considered to the members of the Board. The MDS placed before the members does not contain the officer's particulars, date of birth, names of the reporting officers or the numbers of the fmn/unit the officer has served, there by denying any identification of the officer under consideration. (Applicable for Nos. 2, 3 & 4 Selection Board).' Instruction for Rendition of Confidential Reports of officer for 1989 has also been detailed and the following procedure of Assessment is relevant:-
'The Personal Qualities and variables of Demonstrated Performance have been selected after a considerable research on Confidential Reports over a period of years to cover the inherent attributes considered essential for the job content of an Army Officer. Each quality has been defined. Marks are required to be entered by the IO and the RO in the columns against each quality. Two marks each have been allotted for three gradation (viz. Above Average 8 or 7, High Average 6 or 5, Low Average 3 or 2) to differentiate within the same.' In the case of Majors, Lieutenant Colonels and Colonels, three sets of Demonstrated Performance variables have been provided in the CR forms. These variables correspond to "Regimental and Command Assignments".
The difference in approach from Captains and below and Major, Lieutenant Colonel and Colonel also spaced out from paragraphs 108 and 109. Paragraph 109 is of considerable importance so far as the present case concerned. The same reads as follows:
'109. Low and Below Average Assessment: When an officer is assessed 3 marks or less in any Personal Quality or the aspect of Demonstrated Performance, then it is a matter of concern since, by an large, officers are required to demonstrate at least High Average performance. In order to establish the cause and for the purpose of natural justice, the assessment needs adequate and explicit elaboration. Further, such assessment should invariably be supported by verbal and written guidelines for improvement, details of which also need to be mentioned in the pen-picture.' 6 File No : CIC/DGOQA/A/2018/106478/SD A reading of para 109 shows that three marks or less is considered to be adverse and in such cases verbal and written guidelines for improvement are to be given and the details are to be mentioned in the pen picture. The brief contents (pen picture) and objectivity of the report is provided in paragraph 113.
A reference is also necessary to the instructions issued on 3rd February, 1989. Paragraph 103 is of considerable importance and reads as follows:
'103. Assessment contained in a CR will not to be communicated to the officer except in the following contingencies:-
(a) When figurative assessment any where in the CR is Low or Below Average (i.e. 3 marks). In such cases extract of figurative assessment (i.e. 3 or less) will be communicated to the officer.
(b) When the brief comments (pen picture) contains adverse or advisory remarks. In such cases completes pen picture (excluding the box grading) together with comments on Guidance for Improvements will be communicated to the officer. Further, the box grading will also need communication to the officer when assessment is low or Below Average (3 or less).' According to the modalities provided for recording and communication of adverse entries clearly indicate as to in which cases the communication of adverse or advisory remarks are to be made. Word "Advisory" is not necessarily adverse.
Great emphasis was laid on the instructions dated 21.8.1989 titled "Reflection and Communication of adverse and advisory remarks in the Confidential Reports". The same reads as follows:
'The actual pen picture comprises the brief comments given at Paragraphs 13(e)/19(a) of the ACR forms for Majors to Colonels or Paragraphs 13/15 of the ACR Form for Captains and below.
Therefore adverse/advisory remarks, if any, should be endorsed in these paragraphs/sub paragraphs only. The information to be given under the Column "Verbal or Written Guidance for Improvement" (i.e. Para 18(b)/19(b) or Para 15/16) is only to support the adverse/advisory remarks reflected in the pen 7 picture. If there are no adverse/advisory remarks reflected in the pen picture, there is no requirement of including details of verbal or written guidance for improvement given to the ratees during the reporting period. It is reiterated that "Performance Counselling is a continuous process and, therefore, the ratee must be given appropriate "Guidance for improvement" as and when noticed.' A reading of the instructions clearly indicate that there are different stages:
first is the counselling, second is the guidance and third is the consequences of the officer failing to show desired improvement. Only when an officer fails to show the desired improvement the adverse/advisory remarks are included in his Confidential Report so that cognizance is taken for his weakness while planning his future placements."
Further, the exclusion of 'military officers' from the applicability of the principle of disclosure of ACRs as enunciated in the Dev Dutt case (supra) has been brought in perspective by a coordinate bench of this Commission in the matter of Manoj Kumar Singh vs. Indian Army vide File No.CIC/SM/A/2009/00112/LS and File No.CIC/SM/A/2009/00116/LS decided on 21.10.2009 in the following words:
"10. It is to be noted that Annual Confidential Reports were not disclosable even in respect of civilian officers and staff until recently under the instructions of the Department of Personnel and Training. However, in compliance with the order of the Hon'ble Supreme Court in Dev Dutt case and several decisions of this Commission, the DoPT has recently revised its instructions, directing disclosure of ACRs to the officers/staff concerned. It is noteworthy that this change in the DoPT's stance has come about only pursuant to the order of the Hon'ble Supreme Court of India. It may be pertinent to mention here that the Supreme Court has expressly barred disclosure of ACRs in respect of the Military. The Army Instructions, 1989, also bar disclosure of ACRs except in special circumstances as mentioned hereinabove. Besides, the reasoning given by Col. Ajay for non-
disclosure in the Military appears to be based on robust common sense and sound logic. In a disciplined organization like the Military, disclosure of ACRs, indeed, may adversely affect organizational cohesion and impact on the objectivity of the assessment made by the superior officers. The same logic will hold good in regard 8 File No : CIC/DGOQA/A/2018/106478/SD to the disclosure of DPC proceedings as these contain substantive elements of ACRs."
Adverting to the aforesaid ratios, it gathered that the ruling on non-disclosure of ACRs is guided by particular Army Instructions and even these instructions allow communication of CR entry under certain contingencies. In addition to this, when we look at the view propounded by the coordinate bench of the Commission in the Manoj Kumar case (supra), it is apparent that all of these relate specifically to the ACRs of officers in the regular army who are amenable to Army Act for service matters. Here, the ACR referred is for the period when Appellant was in DGQA service, and taking into consideration the differences spelt out in the service of officers in DGQA with that of the officers in regular army, Commission is inclined to accept the contention of the Appellant that his ACR is not covered by the Dev Dutt case. Moreover, the decision of Armed Forces Tribunal (supra) also suggests that service conditions of the Appellant in DGQA are not governed by Army Act and thus not amenable to the jurisdiction of the tribunal. It will also not be out of place to state that the Dev Dutt case while placing reliance on Bahadur Singh case (supra) has not explicitly included within its scope of application 'military officers' permanently seconded to other offices under the Ministry of Defence. Moreover, Bahadur Singh case is also specific to the ACRs written under Army Act and Regulations. Now having regard to the law of precedents, the Apex Court in the Bahadur Singh case has held as under:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes....."9
''......And, in Herrington v. British Railways Board (1972 (2) WLR 537), Lord Morris said:
'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.' Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. (Emphasis Supplied) The following words of Lord Denning in the matter of applying precedents have become locus classicus:
'Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.' (Emphasis Supplied) *** *** *** 'Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it'."
Thus, we find that the instant case cannot be squarely brought under the umbrage of the Dev Dutt case as there are circumstantial differences by virtue of the lack of amenability of the Appellant's ACR under reference to the jurisdiction of Army Act. Similarly, the ratio laid down by the coordinate bench is more appropriate for the 'military officer' serving in regular army.
In view of the foregoing reflection on the detailed aspects of Appellant's service conditions during the period mentioned in the RTI Application and its amenability to DoPT rules alone, Commission rejects the contention of the CPIO & FAA for the denial of information on Para 4 of the RTI Application.
Commission directs the CPIO to provide a revised reply to the Appellant incorporating relevant and available information on para 4 of the RTI 10 File No : CIC/DGOQA/A/2018/106478/SD Application; on para 3, the specific government order, if any, shall be provided; and on para 5, the specific and available noting sheet with respect to the averred representation should be provided. The said information should be provided free of cost to the Appellant within 30 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission.
The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
Authenticated true copy
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Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
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Date: 2019.04.15 17:12:36 IST
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