Central Information Commission
Vikas Varadraj vs Department Of Expenditure on 17 November, 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/DOEXP/A/2022/604006
VIKAS VARADRAJ ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Department of Expenditure,
E.III.A Branch, RTI Cell,
North Block, New Delhi- 110001 .... ितवाद गण /Respondent
Date of Hearing : 16/11/2022
Date of Decision : 16/11/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 12/10/2021
CPIO replied on : 08/11/2021
First appeal filed on : 10/11/2021
First Appellate Authority order : 03/12/2021
2nd Appeal/Complaint dated : 19/01/2022
Information sought:
The Appellant filed an RTI application dated 12.10.2021 seeking the following information:
"Fixation of Pay on regular Promotion from Level-7 (i.e. pre-revised GP:4600/-) to Level-8 (GP:4800/-) considering the following data/details:
(i) Pre-revised basic pay as on 31.12.2015 : Rs. 21,380 including Grade Pay of Rs. 4600/-.1
(ii) No increment on 01.07.2016 due to imposition of a minor penalty of Withholding of one increment without cumulative effect for a period of one year from 02.05.2016.
(iii) Promoted to next higher grade from Level-7 (GP: 4600) to Level-8 (GP:
4800) on 02.07.2017.
(iv) One increment that was not granted on 01.07.2016 due to currency of a minor penalty was subsequently granted on 01.07.2017.
The three Scenarios are as under:
OPTION I: In case Sh. Vikas Varadraj elect to continue on Pay Band and Grade Pay of his substantive / officiating post until the date of his next increment / the date of his subsequent increment and re-exercise the option to come over to the revised pay structure {i.e. 6CPC to 7CPC) from a date subsequent to 01.01.2016 as per Rule 5 of CC5 (RP) Rules, 2016 and exercise his option for pay fixation under FR22(1)(3)(I) from Date of Promotion under Rule 10 of CCS (RP) Rules, 2016 in terms of Department of Expenditure OM dated 28.11.2019, Fixation of his pay in the higher pay level i.e. Level-8 from the date of his promotion to that post / pay level on the basis of FR 22 (I) (a) (1) straightaway without any further review on accrual of increment in the pay scale of the lower post.
OPTION II: In case Sh. Vikas Varadraj re-exercise the option to come over to the revised pay structure (i.e. 6CPC to 7CPC) from a date subsequent to 01.01.2016 as per Rule 5 of CCS (RP) Rules, 2016 and exercise his option for pay fixation under FR22(1)(a)(I) from Date of Next Increment under Rule 10 of CCS (RP) Rules, 2016 in terms of Department of Expenditure OM 28.11.2019. Fixation of his pay from the date of accrual of next increment in the pay scale of the lower post/ Pay Level-7.
OPTION III: In case Sh. Vikas Varadraj elect to come over to revised pay structure from 01.01.2016 and exercise his option for pay fixation under FR22(1)(a)(1) from Date of Next increment under Rule 10 of CCS (RP) Rules, 2016 in terms of Department of Expenditure OM dated 28.11.2019. Considering the three scenarios, it is requested to kindly provide the information in tabulated form Q.1: What will be the Basic Pay after fixation of pay on promotion/ Date of Increment on 01.07.2017?
2Q.2: When will be the Date of Next Increment (DNI) after 01.07.2017, if option is exercised his option for pay fixation under FR22(1)(a)(1) from Date of Next Increment under Rule 10 of central Civil Services (Revised Pay) Rules, 2016. Q.3: Is there any difference of Pay on promotion from Level-7(GP:4600) to Level-8, if he opts to come over to the revised pay structure (i.e. 7CPC) from a date subsequent to 01.01.2016 as per Rule 5 of CCS (RP) Rules, 2016. Q.4: Which option is most beneficial for Sh. Vikas Varadraj?"
The CPIO replied to the appellant on 08.11.2021 as under:-
"...............the public authority can only provide information which already exists with the public authority or is held under his control. Specific queries/clarification or interpretation of information is outside the purview of the Right to Information Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 10.11.2021. FAA's order dated 03.12.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Ashok Kumar, US & CPIO present in person.
The CPIO reiterated the reply provided to the RTI Application.
The Commission remarked that the Appellant has sent his written submissions on 11.11.2022 urging that he seeks answer to the following:
"Are CPIO and/or their Deemed PIOs in DOE (Officers in the ranks of Under Secretary/Deputy Secretary) competent enough or rather capable enough to provide information (opinion/ advice) pertaining to Pay Fixation as was sought through my Application under RTI Act? If yes, what circumstances compelled them to regret the information sought for?3
It may be pertinent to mention here that under Section 2 (f) of the RTI Act, opinions/advices also comes under the ambit of RTI and DOE being the nodal Department to dealing the subject matter is the only authentic source to address my concern.
Since, I being a Central Government employee, the information sought for was in the form of opinions/ advices in respect of my own Pay Fixation on promotion and not any kind of hypothetical situations. However, the RTI Reply and FAA Order seems, they are reluctant to divulge, despite the fact that during the First Appeal, I had prepared a Pay Fixation on Promotion Option Chart based on the best of knowledge I acquired by going through extant rules/ internet and just asked DOE to give their opinion in 'YES' or 'NO' in order to ease their work, but all in vein."
Decision:
The Commission based on a perusal of the facts on record observes that the information sought for in the RTI Application or the questions raised in the written submissions of 11.11.2022 do not conform to Section 2(f) of the RTI Act as the Appellant by his own admission has sought for clarifications, which involves answering to hypothetical situation/queries. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
4"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any 5 electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied The Appellant is advised to familiarise himself with the scope and ambit of the RTI Act for judicious exercise of his right to information and for redressal of grievances, he may approach the appropriate forum.
The appeal is disposed of accordingly.
सरोज पुनहािन)
Saroj Punhani (सरोज हािन
सूचना आयु&)
Information Commissioner (सू
Authenticated true copy
(अिभ मा(णत स)या*पत ित)
(C.A. Joseph)
Dy. Registrar
011-26179548/ [email protected]
सी. ए. जोसेफ, उप-पंजीयक
दनांक /
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