Central Information Commission
Rakesh Kumar Jha vs Medical Council Of India on 30 January, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/MEDCI/A/2018/144636-BJ
Mr. Rakesh Kumar Jha
....अपीलकता/Appellant
VERSUS
बनाम
CPIO and Jt. Secretary,
Medical Council of India,
Pocket - 14, Sector - 8,
Dwarka Phase - 1, New Delhi - 110077
... ितवादीगण /Respondent
Date of Hearing : 29.01.2020
Date of Decision : 30.01.2020
Date of RTI application 07.05.2018
CPIO's response 01.06.2018
Date of the First Appeal 12.06.2018
First Appellate Authority's response 06.07.2018
Date of diarised receipt of Appeal by the Commission 17.07.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the true copy of biometric attendance for the month of November, 2017 of Dr Amit Kumar Nimavat, PG student (Paediatric) batch 2016-17 at NIMS University, Jaipur, Rajasthan.
The CPIO, vide its letter dated 01.06.2018, enclosed the biometric attendance of the faculty of the institute mentioned in the RTI application. Dissatisfied by the CPIO's response, the Appellant approached the FAA. The FAA, vide its order dated 06.07.2018, stated that the information as available in the records has been furnished and that the attendance record of the students was not maintained.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Varun Pal Singh Bhadouria Appellant's representative, through VC; Respondent: Mr. Shikhar Ranjan, Law Officer and Mr. Bijender Singh, SO & PIO;Page 1 of 5
The Appellant's representative reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by the Respondent on the pretext that they were not required to maintain the data related to attendance of students. The Appellant's representative submitted that the MCI was required to possess the data relating to attendance of faculty members and as per the norms of MCI, a PG student was also a faculty member who was required to adhere to the norms of MCI regarding teaching assignments and they were designated as residents in the medical institutions. Thus, while alleging widespread irregularities in the working of the Medical College, he desired information regarding certified copies of the attendance of the person mentioned in the RTI application for the month of November, 2017 in order to expose the malaise in the functioning of the Medical College and to force the concerned authorities to take corrective action. He had repeatedly contested the replies of the Public Authority as specific information was not being furnished. He cited circulars issued by MCI dated 06.06.2017 / 14.07.2017, notification dated 27.01.2017, notification dated 25.04.2019 etc. to corroborate his contention. It was alleged that the MCI replied to the RTI queries in a routine fashion without comprehending the gravity of the issues.
In its reply, the Respondent reiterated the reply of the CPIO / FAA and clarified that technically the PG students were not considered as faculty members while pursuing the degree hence the contention of the Appellant's representative was not valid. During the hearing, the Respondent also confirmed that as per the records received from the concerned college the name of Dr Amit Kumar Nimawat was included in the list of MD Paediatrics for the year 2017-18 and that they would obtain the attendance records of the aforementioned student from the concerned college and provide the same to the Appellant, if so directed by the Commission. It was apprehended by the Appellant that the college authorities could manipulate the records in this respect.
The Commission was in receipt of a written submission from the Appellant's representative dated 28.01.2020 wherein it was inter alia stated that the MCI vide communication dated 13.03.2015 informed all the medical institutions of the country of the mandatory implementation of the Radia Frequency identification (RFID) system for faculty identification, tracking and monitoring solution for the year 2009. The MCI vide communication dated 06.07.2017 and 14.07.2017 addressed to all the medical colleges of the country directed for implementation of Biometric Finger Print machine for capturing faculty attendance under Digital Mission Mode Project (DMMP) of Medical Council of India. The Medical Council of India vide communication dated 13.09.2019 had directed that from the date of publication in the Gazette on 29.04.2019 the responsibility of maintaining the OFAMOS shall be that of the individual Medical Institution of the country which till date was that of the Medical Council of India. The contention of the FAA of MCI that it did not maintain the record of the students was not correct for the reason that as per the norms of MCI a PG student was also a faculty member who was required to adhere to the norms of MCI regarding teaching assignments and they were designated as residents in the medical institutions. In fact MCI itself was required to maintain and monitor the Biometric Attendance and therefore the attendance sheet of Dr Amit Kumar Nimawat should have been in the possession and record of MCI and the information sought by the Appellant was required to be provided under the provisions of the RTI Act, 2005. It was also stated that the Second Appeal was preferred before the Commission for a direction to the MCI to provide the required information to the Appellant and also to impose heavy penalty on the PIO and the FAA for not providing the correct information and thereby concealing the vital information sought by the Appellant.
The Commission was also in receipt of a written submission from the Respondent dated 23.01.2020 wherein the action taken on the RTI application/ First Appeal was re-iterated.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
Page 2 of 5"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
The Commission drew its reference to the objective of promulgation of the RTI Act, 2005 which was enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:
Page 3 of 5"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."
Much before the legislative enactment of the RTI Act, 2005, our Judiciary, in a progressive interpretation of the Constitutional provisions, had paved the way towards delineating the Right to Information. In 1975, in State of UP vs. Raj Narain (1975 AIR 865, 1975 SCR (3) 333), Justice Mathew had ruled:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries."
The Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 observed as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy"
The High Court of Delhi in General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 regarding the disclosure of information for public interest, held:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance."
Page 4 of 5The High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the revelations made by the Appellant alleging malpractices and manipulations of attendance records as also the decisions cited above, the Commission instructs the Respondent to obtain the information sought by the Appellant from the concerned College and provide the certified copy of the same within a period of 15 days from the date of receipt of this order, as agreed.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 30.01.2020
Copy to:-
1. Principal and Controller, National Institute of Medical Sciences and Research (NIMS) University, Jaipur- Shobha Nagar, Jaipur Delhi Highway, Jaipur 303121 Page 5 of 5