Central Information Commission
Mr.M. G. Devasahayam vs Ministry Of Defence on 18 January, 2013
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No. CIC/LS/A/2012/002765
(M. G. Devasahayam vs. Ministry of Defence)
Dated 18.1.2013
This matter was first heard on 1.1.2013. The proceedings of
the day are reproduced below:-
"File No. CIC/LS/A/2012/002765
Appellant : M. G. Devasahayam
Respondent : Ministry of Defence
Date of hearing : 1.1.2013
Date of decision : 1.1.2013
FACTS
Heard today dated 1.1.2013. Appellant not present but is represented by Adv. Vishwajeet Singh. MoD is represented by Shri K. L. Nandwani, Dy. Secretary (MS) and Shri Ravi Sunder, Under Secretary (MS). The parties are heard.
2. It is noticed that vide RTI application dated 27.4.2012, the appellant had sought the following information:-
"in Writ Petition (Civil) No. 116 of 2012 in the Supreme Court in the matter of selection and appointment of Lt. Gen. Bikram Singh as the next Chief of the Army Staff, Attorney General of India placed the original file of the Cabinet Appointment Committee concerning the appointment before the Court which went through the same and returned it to the Attorney General before passing the Order. Copy of the Supreme Court order is annexed for ready reference.
I am a petitioner in this Writ Petition and would request you to provide me the competent authority's duly attested clean copy of the entire file with all relevant records / documents / reports including noting portion evidencing the process of selection and appointment along with the clearance obtained from Intelligence and other agencies."
3. The CPIO had responded to it vide letter dated 1.6.2012 wherein he had denied the requested information to the appellant. Para 02 of his letter is extracted below:-
"2. The information / documents sought by you pertains to the selection of the next COAS and contains the proceedings of the Selection. The selection proceedings cannot be shared in terms of the Supreme Court's judgment dated 12th May 2008 in Civil Appeal No. 7631/2002 (Dev Dutt vs. UOI & others) and consequent decision of CIC dated 21st Oct 2009."
4. Aggrieved with the decision of CPIO, the appellant had filed the first appeal on 21.7.2012. This was decided by the First Appellate Authority vide order dated 3.10.2012 wherein he upheld the decision of the CPIO. Para 04 of his order is extracted below:-
"4. Apart from the substantial portions of ACRs of the officers considered, the file contained details of military formations, their capabilities etc. Hence, the information therein is also exempt under section 8 (1) (a) of the RTI Act."
5. Shri Nandwani produces the relevant file of MoD before the Commission which is perused.
6. However, the appellant had filed the present appeal before the Commission before the First Appellate Authority had pronounced its decision. During the hearing, Adv. Singh submits that he has not received a copy of the First Appellate Authority's order. A copy thereof is provided to him. After perusing the same, he submits that he would like to seek instructions from the appellant and requests for short adjournment.
7. In view of the above, the matter is adjourned to 18th January, 2013 at 1200 hrs. The appellant will file his written representation on the said date of hearing. The appellant will send a copy of this written representation to Shri K. L. Nandwani, Dy. Secretary, 04 days before the hearing."
2. As scheduled, the matter is called for hearing today dated 18.1.2013. Appellant not present but is represented by Adv. Vishwajeet Singh. MoD is represented by Shri Ravi Sunder, Under Secretary (MS).
3. Adv. Singh files a written representation dated 17.1.2012 before this Commission which is taken on record. The main points buttressed by him in his representation are as follows:-
(i) that the appellant had filed first appeal on 21.7.2012 and the First Appellate Authority was required to dispose of this appeal in the prescribed period of 30 days but the First Appellate Authority decided the appeal vide order dated 3.10.2012 i.e. after about 70 days of the filing.
(ii) that FAA has erroneously relied on the Supreme Court judgment in Dev Dutt case in the matter in hand inasmuch as he is not seeking any information which is considered to be confidential by MoD.
(iii) that the relevant file was produced before the Hon'ble Supreme Court of India at the time of hearing and it, thus, became a part of the judicial record and, therefore, section 74 of Evidence Act comes into play;
(iv) that the selection process of the Chief of Army Staff is complete and over and, therefore, the appellant is entitled to have the material based on which this decision was taken, including all concerned documents.
(v) that the order passed by FAA is arbitrary and abstract inasmuch as the FAA has not elaborated asto how section 8 (1) is attracted in the matter in hand.
4. I have perused the material on record. I have also heard the parties. As noted in the precedings of 1.1.2013, I have also perused the original records relating to the appointment of COAS.
5. Suffice to say that the MoD file contains detailed career profiles of a number of Lt. Generals who were considered for the post of COAS. The notings contain not only the ACR profiles of the officers under consideration but also various postings, including field postings, held by them in their long service careers. It may also be pertinent to mention that the MoD file also contains correspondence of the Intelligence Agency in the matter in hand. All these notings have been made by none other than the Defence Secretary himself.
6. The Chief of Army Staff occupies a very high and distinct position in our defence set-up in as much as he is endowed with the responsibility of guarding our land borders. The MoD file contains information about the profile of officers which is 'personal information' and is barred from disclosure u/s 8 (1) (j) of the RTI Act. Besides, the sensitive postings held by various officers over their long service careers have a bearing on the national security and, in my opinion, it would not be expedient to place it in public domain. Furthermore, the correspondence of the Intelligence Agency has also certain sensitivity.
7. I may also mention that the Right to Information is a cherished right but it is not an absolute right. While, on the one hand, sections 3, 4, 6 & 7 provide for disclosure of information, on the other hand, sections 8, 9, 10 & 11 provide for non-disclosure of information in stipulated circumstances. I may also add that the RTI Act is a complete Code in itself and a request for information has to be considered within the frame work of this law and recourse to any other law, (for example, section 74 of the Indian Evidence Act), in my opinion, would not be correct. Further, even personal information is disclosable in the 'larger public interest' but such larger public interest has to be established by the information seeker. Suffice to say that no material has been produced before the Commission to establish such larger public interest.
8. On a thoughtful consideration of the matter, I am of the opinion that disclosure of requested information will not be in the larger public interest, apart from being prejudicial to the national security u/s 8 (1) (a) of the RTI Act. In view of this, I find no merit in the appeal and the same is dismissed.
9. However, before parting with this matter, I would like to observe that the appellant had filed the first appeal before FAA on 21.7.2012. The FAA was required to decide this appeal in 30 days time but he took over 70 days, well beyond the limit prescribed under section 19 (1) of the RTI Act. Hence, notice may be issued to Shri Subhash Chandra, Jt. Secretary (G/Air) (FAA) to submit his written explanation asto why he did not decide the appeal in the prescribed period. The notice is returnable in 04 weeks time.
Sd/-
(M.L. Sharma) Central 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.
(K L Das) Dy. Registrar Address of parties
1. The CPIO M/o Defence, South Block, New Delhi - 110011
2. Shri M. G. Devasahayam 103, Ceebros Bayview, 4th Seaward Road, Valmiki Nagar, Thiruvanmiyur, Chennai - 600041