Central Information Commission
Abhijit Sardar vs Kolkata Port Trust on 31 May, 2023
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/KPTRS/A/2022/655008
Abhijit Sardar ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
SPM Port, Personnel & Industrial
Relations Division, RTI Cell, Haldia
Dock Complex, Jawahar Tower,
PO-Haldia Township, East Midnapore,
West Bengal-721607. .... ितवादीगण /Respondent
Date of Hearing : 25/05/2023
Date of Decision : 25/05/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 21/07/2022
CPIO replied on : Not on record
First appeal filed on : 24/08/2022
First Appellate Authority order : Not on record
Second Appeal dated : 11/10/2022
Information sought:
The Appellant filed an RTI application dated 21.07.2022 seeking the following information:1
"My recruitment was under the Mechanical & Electrical Engineering Department (M&EE Department) of Kolkata Dock System (KDS) under Syama Prasad Mookerjee Port Kolkata (SMPK). I had temporarily been transferred to Haldia Dock Complex (HDC) under office order no. Mech/C/2845 dated:29.10.2018. In the subsequent period of time, the temporary transfer was extended twice (02.11.2019 to 02.11.2020 and 02.11.2020 to 02.05.2021) and so the second (i.e. last) extension ended on 02.05.2021. The relevant extension orders are attached as Annexe-A, for your reference. Regarding my temporary transfer from M&EE Dept. (KDS) to HDC, clarification is requested regarding the following points: -
1. Kolkata Port Trust Employee (Recruitment, Seniority and Promotion) Regulation 14 clause (2) states that the total period of appointment to a temporary post will not exceed the tenure of the post. Despite such regulation, why in my case it exceeds the tenure of the post that was six months mentioned in last extension order that had been ended on 02.05.2021.
2. In SMPK, what is the maximum tenure of a temporary transfer of a class-I officer from KDS to HDC and how many times can such a transfer be extended?
3. Further, I would like to know whether approval from competent authority was taken for continuation of my duties at HDC after expiration of last extension order no. P&IR/13/2/2020/1749 dated 16.11.2020.
4. It would be helpful if you could provide me with a copy of the approval made by the competent authority for the continuation of my duties at HDC after the expiration of my last extension.
5. If no approval of the competent authority was obtained for the continuation of my duty at HDC after expiration of the last extension, please confirm why I have not been released to my parent department (i.e. M & EE Dept of KDS ) till date."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 24.08.2022. FAA's order, if any, is not available on record.
2Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal on the following grounds -
"...My recruitment was under the Mechanical & Electrical Engineering Department (M&EE Department) of Kolkata Dock System (KDS) under Syama Prasad Mookerjee Port Kolkata (SMPK). I had temporarily been transferred to Haldia Dock Complex (HPQ for the period of one year during this period my establishment and seniority was maintained at my parent department (i.e. M&EE Department). Likewise in the subsequent period of time the temporary transfer was extended twice (02.11.2019 to 02.11.2020 and 02.11.2020 to 02.05.2021) and so the second (i.e. last) extension ended on 02.05.2021.
Since 02.05.2021 I had not given release order so as to I join my parent department, Kolkata Dock system (KDS) and Haldia Dock Complex (HDC) are two different cadre under Syama Prasad Mookerjee Port Kolkata (SMPK) which maintain there own roster for their employee.
...at present I am working at different cadre (i.e. HDC) without any office order/extension which may cause any serious complication in my job carrier. My appointment at HDC was for the limited period which is purely temporary in nature.
Under Regulation 14 of Kolkata Port Trust Employee (Recruitment, Seniority and Promotion) Regulation- 2013 it has mentioned that "In the case of a purely temporary post, a leave vacancy or a vacancy earmark for the direct recruitment requiring immediate filling up, chairman may appoint a person who is eligible to fill the vacant post for a period of six month at a time, and not exceeding one year on ad-hoc basis subject to the condition that: -
1. Ad-hoc appointments where unavoidable, should be made only strictly subject to fulfilling the qualification, experience provided in the recruitment rules.
2. Total period of appointment to a temporary post will not exceed the tenure of the post
3. In other cases, the temporary appointment should be replaced by; regular Appointment from the select list as soon as possible".
Despite above regulation, In my case temporary appointment at HDC has already exceeded more than years this may be violation of aforesaid regulation...."
3Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Represented by Vikas Karan, Personnel Officer present through video-conference.
The Appellant reiterated the contents of his instant Appeal as mentioned in the preceding paragraphs and further urged for relief that a copy of the approval order by the competent authority wherein his transfer /tenure for the averred posting has been extended at Haldia Dock Complex (HDC ) should be provided to him.
The Rep. of CPIO while placing reliance on his latest written submission submitted that a reply has already been provided to the Appellant on 28.12.2022 informing him that "Your RTI application is majorly of question in nature. However, your transfer to Haldia Dock Complex was not against any temporary post of Haldia Dock Complex, but was made purely on working arrangement basis as mentioned in the initial order of transfer issued by the Chief Mechanical Engineer, SMP-K. The competent authority has approved continuation of your posting at HDC on working arrangement basis."
At the behest of the Commission, the Rep. of CPIO submitted that they do have a copy of order passed by the competent authority , HDC regarding extension of temporary transfer posting of Appellant along with one more officer. He further agreed to provide a copy of the extract of said order concerning Appellant in response to RTI Application.
Decision:
The Commission observes from a perusal of records that the core issue raised in the instant matter is not as much as about seeking access to information per se as much as it is about redressal of Appellant's grievance regarding extension of his temporary transfer posting at HDC without any approval/ extension order; and seeking queries and clarifications from the CPIO in this regard. From the standpoint of RTI Act, the reply of the CPIO is in spirit of RTI Act, merits of which cannot be called into question.4
For better understating of the mandate of RTI Act, 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. His attention is also 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 was held as under:
"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) As far as jurisdiction of Commission is concerned, a reference may be had of a judgment of the Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 wherein it has been held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate fora. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied).
5The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) However, by taking an empathetic view in the matter and in furtherance of hearing proceedings, the CPIO is directed to provide an extract of copy of order passed by the Competent authority, HDC regarding extension of temporary transfer posting of the Appellant. The said information should be provided by the CPIO free of cost to the Appellant after redacting the names and identifying particulars of the other third party officers, which may figure from note sheet, correspondences, etc from the said order and cannot be divulged in view the exemption clause of Section 8(1)(j) and 8(1)(g) of the RTI Act. In doing so, the CPIO is at liberty to invoke Section 10 of the RTI Act for redacting the information related to the personal information of third parties, as the said provision states as under:
"...10. Severability.--
(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information...."6
The above said direction should be complied by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7