Central Information Commission
V Nataraja Sekhar vs Ministry Of Women & Child Development on 31 August, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
CIC/MOWCD/A/2017/147045
V Nataraja Sekharv. PIO, M/o Women and Child Development
Order Sheet: RTI filed on 28.10.2016, CPIO replied on 25.11.2016, FAO on 19.06.2016, Second
appeal filed on 07.07.2017, Hearing on 28.03.2018;
Proceedings on 28.03.2018: Appellant present, Public Authority represented by Mr. Balbir
Singh, Dy. Technical Advisor;Directions and show cause notice issued.
Proceedings on 04.07.2018: Appellant present from NIC Rangareddy, Public Authority
represented by Mr. Balbir Singh, Dy. Techincal Advisor from NIC Chennai;
Date of Decision - 27.08.2018: Penalty dropped and disposed of.
ORDER
FACTS:
1. The appellant sought information on the following points:
1. Action taken on the Hon'ble CAT, Hyderabad Order on O.A. No. 1249 of 2012 and my representations mentioned under reference?
2. Present status of the file. Where exactly the file is pending?
3. Justice delayed is justice denied. Reason for the delay for taking action on CAT, Hyderabad order?
4. Hon'ble Prime Minister always states that his government is very transparent and his officials are taking action on each file within one week time.
Otherwise they are providing the information to the concerned person for maintaining transparency. Reason for not taking any action on this matter till date (i.e. after completion of 36 weeks) and what is the reason for maintaining secrecy?
5. I am in a feeling that department was not taken any action on my representations. Action taken on my representations. Inform me the reason that why department is not given any response for my representations?
6. Reason for the contempt of Hon'ble CAT, Hyderabad order?
7. Movement of the file (time taken at each table) Note files by the officers. If highest time taken at any particular place, give me the reason for the delay at that particular table or officer?
8. Reason for violation of article 14 and 16 of Indian Constitution in my particular case. (Equality before law : Equality of opportunity in matter of Public employment)
9. Exact and correct reason for not giving me the post of Demonstration Officer Grade-II?
10. Exact date of receipt of Hon'ble CAT, Hyderabad order and my repress entations on implementation of Hon'ble CAT, Hyderabad order by Hon'ble CIC/MOWCD/A/2017/147045 Page 1 Secretary, Hon'ble Joint Secretary and Hon'ble Joint Technical Adviser and their file notes.
2. The CPIO on 25.11.2016 furnished the following information:
a) The Ministry vide their letter 08.06.2016, had decided to go for an appeal in the Hon'ble High Court of Hyderabad, against the Hon'ble CAT, Hyderabad, Order dated 20.01.2016.
b) Information not available in this office.
c) The Ministry vide their letter 08.06.2016, had decided to go for an appeal in the Hon'ble High Court of Hyderabad, against the Hon'ble CAT, Hyderabad, Order dated 20.01.2016.
d) Information not available in this office.
e) This information is not available in this office.
f) Information not available in this office.
g) This information with regard to this question is not available in this office.
h) This question does not arise under the RTI Act, 2005.
i) Question not covered under the RTI Act, 2005.
j) The Hon'ble CAT, Hyderabad, order dated 20.01.2016 was received in this office on 29.01.2016 and subsequently forwarded to out Ministry on 29.01.2016 and further information on receipt and consideration of the representations by the Hon'ble Secretary, Joint Secretary and Joint Technical Adviser, New Delhi is not available in this office.
3. The appellant in his first appeal explained elaborately as under:
"Sir, it is very clear that the department received the Hon'ble CAT order on 29.01.2016. In my RTI application I have requested the information on action taken by the department on the Hon'ble CAT, Hyderabad order and my representations submitted to the authorities. It is very clear that department appealed against the Hon'ble CAT order in Hon'ble High Court only on 14.11.2016. When I submitted my RTI application this matter is pending in the department. Kindly give me information for my questions 1, 2, 3 as the status of file till 28.10.2016. Kindly give me information about the reason for nine months delay for taking any action on the particular matter. (i.e. from 29.01.2016 to 14.11.2016).
Sir, for my questions 4, 5, 7 your good offices replied that the matter is sub- judice. Sir, as per RTI act the public information officer cannot deny information on matter which are sub-judice unless there is specific order forbidding the disclosure. If department have any such order for forbidding the information in this particular matter kindly provide me the same order or kindly provide me the same order or kindly provide me the requested information with certified copies.
Sir, for my question number 8 your good offices reply that there is no violation of Article - 14 and Article 16 of the Constitution of India as the applicant in this case is already an employee of the Central Government and therefore the question of equality of opportunity in the matter of public employment does not arise. Sir, I am working as laboratory Assistant in this department. One or the other reason department obstructing me to get the post of Demonstration Officer, Grade - II, after selection by the expert committee and clear-cut judgment by the Hon'ble CIC/MOWCD/A/2017/147045 Page 2 CAT, Hyderabad. It is clear violation of article 14 and 16 of Indian Constitution. Kindly provide me the reason for the violation.
Sir, for my question number 9 your good offices given reply that "reason for not giving appointment as DO-II is due to non-eligibility of applicant". Sir, it is very clear that this reason is not correct because as per government of India Go F.18- 1975/r-2 dated 26.05.1977, Government of India decided to recognize a diploma in engineering in appropriate discipline plus total 10 years of technical experience in the appropriate fields is recognized as equivalent to Degree in engineering. Sir, as per the above mentioned GO, I am eligible for the post and Hon'ble CAT, Hyderabad also given the direction. Kindly provide me the correct reason. Kindly provide me the reason in which way department suffers if the department gives post to me.
Sir, for my question number 10 your good offices given reply that the Hon'ble CAT, Hyderabad order received by DTA's office on 29.01.2016. Sir, I have submitted representations to Hon'ble Secretary, Hon'ble Joint Secretary and Hon'ble Joint Technical Adviser through proper channel on 20.05.2016 and 01.07.2016. I am in a strong feeling that my representations submitted to Hon'ble Secretary, Hon'ble Joint Secretary and Hon'ble Joint Technical Adviser not reached them. I am raised this question because I want to now the opinion of Hon'ble Secretary and Hon'ble Joint Technical Adviser and their file notes on this particular matter. Hence I am requesting your authority that kindly provides me the information and certified copies as requested by me in my RTI application.
Sir, I am not received satisfied and correct information from your authority. Sir, all the information requested by me is in your records. I am in a strong feeling that one or the other reason department is not transparent in this matter and department wants to maintain secrecy in this matter. Sir, it is clear violation of RTI act. Sir, I am not able to get the information after four and half months' time. Sir, still I have hope that my department is very transparent and provide all the information requested by me with certified copies. I am in a strong feeling that I will get justice in my department. I am once again requesting your highest authority (Appellate Authority) to kindly provide me the required information on the above 10 aspects with certified copies of the same. I am grate full if you could provide me the information at the earliest possible.
Sir, I am here with requesting your authority to supply all the required information with certified copies, in the interest of the transparency and accountability to the citizens and public servants. Your good offices are aware of that I am not only a citizen, but also a government servant in this country and expecting that my rights be permitted by other fellow citizens and highest government officers in this regard."
4. The FAA on 19.04.2017 upheld the decision of the CPIO. Being dissatisfied, the appellant approached this Commission.
5. The Commission's order dated 16.05.2018:
5. The appellant in his written submissions explained to the Commission as under:
"...I have submitted a RTI application to CPIO on 28.10.2016. I have received a reply from CPIO vide his letter dated 25.11.2016. He has given CIC/MOWCD/A/2017/147045 Page 3 some typed information and he stated that he is not having most of the information and the information sorted in the application is with the Ministry.
Honourable Sir, CPIO not taken mandatory step by way of requisition of information from the other officials who might have the information as per Section 5(4) of RTI act to provide the same to me or The CPIO not transferred the same application to the officer who is having the information as per the Act. CPIO just dragged the time.
Honourable Sir, CPIO is in charge for southern region. First Appellate Authority is competent authority for the entire department. It is very clear that they are having all the information.
Honourable Sir, I am not satisfied with the reply given by the CPIO. I have appealed the same before the First appellate authority on 05.12.2016. First Appellate authority directed CPIO vide his letter dated 12.01.2017 to furnish the suitable reply for my RTI application.
Honourable Sir, Again CPIO given the same reply which was given in earlier occasion vide his letter dated 16.01.2017.
Honourable Sir, mean while CPIO filed an appeal in Honourable High Court, Hyderabad against the Judgment of Honourable CAT, Hyderabad on 25.11.2016.
Honourable Sir, again I have appealed to First appellate authority that I have not received information from CPIO on 23.01.2017. This time First Appellate authority given reply to me vide letter dated 22.02.2017. In the reply First Appellate authority stated that the matter is subjudice hence they are not providing the information.
Honourable Sir, as far as my knowledge the requested information is not exempted from disclosure under any section of the RTI act. Again I have appealed to First appellate authority on 20.03.2017, Quoting the above and requested the authority that; is there any specific order for forbidding the disclosure of the requested information from any court. First Appellate authority not respondent for my question. They again given the same reply vide their letter dated 19.04.2017. they have not quoted any section under which they denied the information.
Honourable Sir, Further I have appealed one more time to First appellate authority on 12.05.2017. They have given the same reply vide their letter dated 19.06.2017. After receiving the reply, I approached you authority for justice.
Honourable Sir, every information requested by me is in the records. CPIO and First appellate authority are not ready to disclose the information.
Honourable Sir, this proves that CPIO and First Appellate Authority has refused to give me the information requested by me malafidely. This is complete violation of the provisions and spirit of RTI act. I am in a strong belief that respondents taken RTI act very casually.
Honourable Sir, our office authorities were treating that using RTI act is a crime. For the reason requesting information from the authorities through RTI they punished me. As a punishment the authorities transferred me to Itanagar on 31.07.2017 As per my appointment order and transfer policy CIC/MOWCD/A/2017/147045 Page 4 of our department, I am transferable only in southern region. In my 18 years of service no person in my cadre is transferred to other region.
Honourable Sir, this is not the first instance, I have asked information through RTI in the year 2012. That time also I got transfer as gift. I have appealed the same before competent authority. That time they kept my transfer order in abeyance.
Honourable Sir, I have represented this vindictive action and violation of RTI act to the higher authorities on 18.09.2017. Sir, the authority is not justified in transferring me. I have not received any reply for my complaint.
Honourable Sir, I have not received the information requested as per RTI application. I was clearly harassed by authorities by way of transfer which is against rules. The action of the authorities created a lot of mental, physical and financial troubled to me and my family. The authorities clearly misused their powers, they clearly violated RTI act. They clearly disrespected RTI act.
6. Shri Balbir Singh, the CPIO and Dy. Technical Adviser (SR) in response to the appellant's written submission, explained on 28.03.2018 as under:
"Para 1 & 2 - No comments.
Para 3 - The true and factual points have been laid out in the reply submitted to the appellant vide letter dated 25.11.2016. This office being only a regional subordinate office has provided all the required information. Ministry being the sole cadre controlling authority for appointment of group 'B' posts, the file in reality, rests with them. His contention is totally false.
Para 4 - As per Section 5(4) of the RTI act, this office being only a subordinate office has provide all the information that is available with this office. However, as regards information pertaining to Ministry, New Delhi is concerned, this office have no access to the file of the applicant etc. Hence information on those details cannot be provided.
Para 5 - All information pertaining to his office has already been provided.
Para 6 & 7 - No comments.
Para 8 - The appeal has been filed in the Hon'ble High Court of Hyderabad, against the Hon'ble CAT, Hyderabad Order dated 20.01.2016, on instructions to this office from the Ministry vide its letter 08.06.2016.
Para 9, 10, 11 & 12 - This office being the subordinate regional office is not in receipt of the appeal filed by the appellant. Hence no comments regarding the same, however all information available in this office has been provided.
Para 13 - The contention of the appellant that there is complete violation of the provisions and spirit of the RTI act, is totally false as the CPIO as well as the Appellate Authority have provided information that is available in this office, as per the provision of the RTI Act.
Para 14 - The appellant's contention that he had been transferred out of the Region on the grounds of requesting for information through RTI is totally false and has been done following all transfer policy, procedure and CIC/MOWCD/A/2017/147045 Page 5 rule in force. The transfer of the appellant has been made solely on public interest and not as a punishment for his seeking information under the RTI Act. As such transfer is a internal administrative matter.
Para 15, 16 & 17 - No comments. Disobedience on the part of the appellant in not accepting the transfer and blaming the appellate authority as misusing their powers, is an act totally unbecoming of a Government servant and consequently the authority is not to be blamed for the mental, physical and financial trouble of the appellant.
7. The appellant submitted that he is employed as Labour Officer and with no concern to his designation, he was systematically harassed by the respondent authority by providing wrong/incomplete information. He further submitted that when he sought reasons as to why he was not considered for the post of DO-II and after taking this issue to his higher ups, he was transferred to Itanagar instead of transferring him to Southern Division as per the practice. The officer stated that they have provided complete information as available and rejected the contentions raised by the appellant in his first and second appeal.
8. The Commission upon perusal of records and hearing the submissions of both the parties finds that there has been absolute injustice caused to the appellant. The Commission directs the respondent authority to provide revised, complete and point-wise information, within 10 days and considering Shri Balbir Singh, Dy. Technical Advisor (SR) as deemed CPIO directs to show-cause why maximum penalty should not be imposed against him for providing incorrect information and misleading statements. All the responses should reach on or before 19.06.2018 and the matter is posted for 04.07.2018 for compliance and penalty proceedings.
Decision :
6. Shri Balbir Singh, Deputy Technical Adviser (SR) in his written explanation dated 13.06.2018, which explains as under:
"With reference to the CIC Decision received in this office on 21st May 2018, it is reiterated against the show cause notice issued by the CIC, New Delhi, as to why "maximum penalty should not be imposed against the CPIO for providing incorrect information and misleading statements", I am submitting my reply to the same, as below:-
1. As the CPIO and the DTA, FNB, SR, Chennai I have replied to the RTI application dated 28.10.2016, received from Shi V. Nataraja Sekhar, Lab Assistant, vide this office letter No.10(49)/RTI/2016-2017/FN dated 25.11.2016, with endorsement marked to the Under Secretary (NA), New Delhi.
2. The appellant was fully aware that out of the 10 questions raised vide his RTI application, 9 questions were pertaining to the Ministry, which is he already explained in his RTI appeal, which means he is using the systematically RTI act as weapon to harass his senior officers, for appeal in high court against Hon'ble CAT Hyderabad decision, regarding his appointment in the Department.
3. Shri V. Nataraja Sekhar has filed his first appeal to the First Appellate Authority i.e. Shri Rajesh Kumar, Joint Secretary, New Delhi on 05.12.2016. Based on his appeal, the First Appellate Authority has passed order on 12.01.2017 to the undersigned i.e. the CPIO to furnish information. Based on CIC/MOWCD/A/2017/147045 Page 6 the First Appellate Authority's Order, the undersigned has provided information to the Appellant vide this office letter of even number dated 16.01.2017. I would like to bring to your kind notice that Shri V. Nataraja Sekhar is lying to the CIC, New Delhi and hiding facts of the case, claiming his first appeal as 20.03.2017 instead of 05.12.2016. As per the RTI Act an appeal can be filed with the CIC, within a period of 90 days has expired on 05.03.2017. Hence his appeal with the CIC, New Delhi, should be considered dismissed and request to take punitive action against appellant for misleading and providing wrong information to the CIC office for his personal gain.
4. Further the appellant requested the same information to Dr Rajesh Kumar, IAS, Joint Secretary, Ministry of Women and Child Development Government of India and the same has been provided point wise, vide Ministry's letter No.ND-IE-25/10/2016-NUTRITION ADMN (e-23817) dated 22.02.2017 and Shri Manoj Kumar Singh, Director, Ministry of Women & Child Development, New Delhi, also provided point wise information to applicant vide office letter No.ND-IE-25/10/2016-NUTRITION ADMN (e-23817) dated 19th April 2017 and subsequent letter dated 19th June 2017.
5. As regards the contention of CIC, New Delhi, Order decision dated 16.05.2018 about misleading statements being provided for the RTI queries, the undersigned would like to inform you that the para wise reply submitted for written argument is based on the available documents in this office. Hence the phrase "misleading statements" is totally false and incorrect.
6. As regards the contention of the CIC, New Delhi, New Delhi, Order decision dated 16.05.2018 about incorrect information being provided for the RTI queries, the undersigned would like to inform you that only Question no 1 was available to this office, rest information belonged to Ministry of Women and Child Development, New Delhi, which appellant has clearly mentioned in his written argument, that questions not transferred under section 5(4) under para 4, which is a clear proof that no incorrect information was provided.
7. The appellant has accepted the reply to Query No.1.
8. Regarding query No. 3, 5, 6, 7 & 9, it was stated that they do not come under the purview of the RTI Act, based on the Ministry of Personnel and Training O.M.No.1/7/2009-IR dated 01.06.2009, which clearly states that "the public information authorities cannot expect to communicate to the citizen the reason whya certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information and cannot properly be classified as information."
9. As regards query No. 4 & 8, it is also stated that it does not come under the purview of the RTI Act as the Ministry of Personnel and Training O.M.No.1/18/2011-IR dated 16.09.2011, clearly states that "the public information officer is not supposed to create information; or to interpret information; or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions" Also it is stated that "where the information is not required to be maintained under any law or the rules and regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant."
10. Query No. 2 & 10, the file rests with the Ministry, New Delhi and this office has submitted written requested to Ministry for providing the information accordingly, vide this office letter of even number dated 22.05.2018.
11. RTI Act, Section 8(1)(b): The appellant has filed an Original Application in the Hon'ble CAT, Hyderabad, which was ordered in favour of the appellant. The Department challenged the same in the Hon'ble High Court of Hyderabad and got the above judgment stayed and till under consideration of the Court.
CIC/MOWCD/A/2017/147045 Page 7 In view of the above, as per the RTI Act, Section 8(1)(b) "all the asked Questions are directly or indirectly linked with the appeal filed with the Hon'ble Court.
Hence the disclosure of information under the said act will attract contempt of Court and hence the matter is considered as sub-judice.
12. The appellant was transferred based on Ministry's Office Order NA-15/1/2017- NUTRITION ADMN (e-26879) dated 31.07.2017 to Itanagar, which was issued with the approval of the Secretary, Ministry of WCD, New Delhi, is purely an administrative and non-vindictive and the undersigned has not been involved at any stage.
In the light of the above paras, it is to put forward the following few lines for kind consideration and orders:
• On the basis of Point No.3 the RTI application is liable to be treated cancelled, because the appealing period of 90 days has already crossed without justification.
• Based on Point No.4, the Joint Secretary and Director of Ministry of Women & Child Development, New Delhi, already have given point wise reply to the appellant. Hence the RTI application may be disposed off. • As the queries mentioned at Point No. 8, 9 & 11, do not come under the purview of the RTI Act, it is kindly requested to the CIC, New Delhi, that the said queries may be cancelled.
• On the basis of point No. 11, the entire RTI application is liable to be cancelled and hence it is kindly requested to the CIC, New Delhi, to cancel the same.
• The CIC, New Delhi Order is kindly requested to expunge the passed order dated 16.05.2018 duly considering point No. 5 & 6.
On consideration of the above given facts, it is to state that the undersigned has full respect and regard for the CIC as well as the RTI Act and the importance of the timely disposal of RTI queries. However any shortfall would be attributed to the less awareness of the undersigned with the RTI act and its procedures. Hence considering the above facts, it is humbly requested that the order of the CIC, New Delhi, dated 16.05.2018 may be expunged and the penalty may be waived off. Levying a penalty on the CPIO would consequently instigate the other junior officers to undertake the same principle (RTI act) and use it as a weapon against the superiors and senior officers for trivial administrative issues.
Hence keeping in view the smooth functioning of the Ministry on a whole, it is requested to dilute the passed order and withdraw any penalty proposed to be imposed on the CPIO, otherwise it might have a very bad effect on the administration and Ministry at large."
7. Further on 18.06.2018, Shri Balbir Singh, Deputy Technical Adviser (SR) wrote to appellant as under:
"In pursuance of the decision of the Central Information Commission, New Delhi, cited under reference on CIC/MOWCD/A/2017/147045 filed by you, wherein the Commission has directed the respondent to provide revised, complete and point- wise information, it is to state that your case is hereby re-examined afresh and the final reply is furnished below for your information, CIC/MOWCD/A/2017/147045 Page 8 I. Query No. 1 & 3 - The reply has already been furnished by this office vide Letter No. 10(49)/RTI/2018-18/FN dated 23.05.2018. II. The self-explanatory reply received from Ministry for Query No. 2, 7 & 10, vide F. No. IE-25/10/2016-NA (e-23817) dated 06.06.2018 (received in this office by mail on 18.06.2018).
III. Query No. 4 & 8 - as per the observation of the Hon'ble Supreme Court on Right to Information Act, 2005, in Civil Appeal No. 6454 of 2011, arising out of SLP (C) No. 7526/2009 in the case of Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay & Ors., read with the Ministry of Personnel and Training O.M. No. 1/18/2011-IR dated 16.09.2011, it clearly states that "the public information officer is not supposed to create information; or to interpret information; or to solve the problems raised by the applicants; or to furnish replies to hypothetical questions." Also it is stated that "where the information is not required to be maintained under any law or the rules and regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant." Hence question does not come under the purview of RTI Act, 2005. IV. Query No. 5, 6 & 9 - As per the Decision dated 03.04.2008 of the High Court of Bombay at Goa in Writ Petition No. 419 of 2007 in the case of Dr Celsa Pinto Vs. Goa State Information Commission regarding information under the Right to Information Act, 2005 read with the Ministry of Personnel and Training O.M. No. 1/7/2009-IR dated 01.06.2009, it clearly states that "the public information authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in sense of a justification because the citizen makes a requisition about information and cannot properly be classified as information." Hence question does not come under the purview of RTI Act, 2005."
8. The Commission upon perusal of all the records and hearing the submissions of both the parties finds that sufficient information is provided and there is no reason for further intervention. Further, the Commission advises the appellant not to drag this issue since complete information has been received and making statements that he is not in receipt of any information is not acceptable. The Commission admonishes the appellant for misleading and making such misrepresentation. The explanation of the officer is satisfactory, hence penalty proceedings are dropped. Disposed of.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
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