Central Information Commission
Vikas vs Border Security Force on 3 December, 2020
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/BDRSF/A/2018/636533
Shri Vikas ... अपीलकता/Appellant
VERSUS/बनाम
PIO,Border Security Force ... ितवादीगण /Respondent
Block No. 10, CGO Complex, Lodhi Road,
Pragati Vihar, New Delhi - 110003
Date of Hearing : 22.04.2020, 01.12.2020
Date of Decision-Interim : 28.04.2020
Date of Decision- Final : 03.12.2020
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 18.08.2018
PIO replied on : No reply
First Appeal filed on : No date
First Appellate Order on : No order
2ndAppeal/complaint received on : 06.12.2018
ORDER
The captioned appeal emanates from RTI application dated 18.08.2018 whereby the Appellant has sought the following information:
1. Physical inspection of complete records pertaining to the application of applicant vikas Ex Insp BSF and process thereafter for grant of No objection certificate for applying for the employment in Punjab police services from 06/10/2013 to 08/02/2014.
2. Physical inspection of complete records of copies of notesheets with applicable rules as quoted for granting permission to Ex inspector Manish katiyar of 41 Bn BSF and also of Insp Prem Kumar Singh of 120 Bn who were granted permission for employment in Punjab police department on 05/11/2013 and 20.03.2016.
3. Complete physical inspection of files processed for opinions on 21.05.2014 and thereafter opinion given by personnel/finance/PAD BSF by UO Note dated 10.09.2014.Page 1 of 7
4. Copies of all opinion given by PAD BSF on receiving notice of motion dated 20.04.2015 in CWP filed by applicant in honourable high court and any other opinion w.r.t any case of Ex Inspector vikas of BSF, air wing, SAP, New Delhi.
5. Complete inspection of files processed after order dated 20.09.2016 of honourble Punjab and Haryana High court for compliance of directions.
Complete notesheet processed for opinion from PAD and thereafter opinion/reply given by PAD.
6. Inspection of details of inquiry report submitted by first presiding officer in staff court of Inquiry dated 14.01.2015 in year 2015 and also details of report submitted by second presiding office against additional staff court of Inquiry in 2017.
7. Physical inspection of details of orders of competent authority after report of additional staff court of Inquiry with complete observation on record for cancellation of additional Inquiry dated 28.02.2017.
2. Upon non receipt of any reply from the PIO, he filed a First Appeal, which also proved futile and he did not receive any information/reply. Hence, second Appeal was filed by the appellant citing the following grounds:
1) circular dated 04.02.2006 issued by DG, BSF w.r.t information under Right to Information Act 2005
2) poor& miserable condition of the junior ranked personnel which may be due to deep rooted corruption and enjoyment of protection of these corrupt andcriminals by their senior supervisory officers.
3) Cases of one of the Constable namely TejBahadur and few other cases are alsoavailable in public domain.
4) Despite fulfilling all criteria as per existing provisions of law, CPIO as well as firstappellant authority (FAA) has illegally not responded to protect corrupt andcriminals operated in the organisation.
5) With the approval of request for information under RTI Act 2005, sufficientevidences against few corrupt and criminal staff and officers of BSF, Air WING,SAP, New Delhi can very easily be gathered and suitable criminal suit can veryeasily be filed against criminals by unmasking them in front of court of law.
6) Even as per BSF Act and Rule, RULE 38 clarify the quantum of punishment to such criminals.
3. The Respondent public authority is enlisted in Second Schedule of the RTI Act and as such, exempt from provisions of this Act. The only exception carved out to the rule is wherein information sought relates to allegations of corruption/human rights violations and approval to disclosure is accorded by this Commission. Hence, the foremost contentious point which arises in the instant case is of the maintainability of the present appeal. Section 24(1) of the RTI Act, 2005 lays that:
24. Act not to apply to certain organizations.-
(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations Page 2 of 7 established by the Central Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.
Proceedings during hearing:
4. Due to nation-wide lockdown being observed, to prevent the spread of the pandemic, COVID-19, hearings are being conducted through audio conference.
5. The appellant participated in the hearing on being contacted on his telephone number: 8968159599. He has submitted a detailed written submission which indicates inter alia his contentions about subject matter of the appeal not excluded by Act under section 24(1) and he has pointed out his endeavour to:
----bring to notice the poor and miserable condition of junior ranked personnel due lack of any grievance redressal mechanism in BSF (violation of basic rights like principle of natural justice etc.).
----lift the corporate veil by unmasking gang of corrupt and criminals working in unison to justify their criminal and corrupt activities.
6. The appellant has raised question as to whether Section 24(1) r/w second schedule of RTI Act 2005 provides a blanket cover to BSF to deny all information wherever any application under RTI Act 2005 filed.
Decision: Interim
7. In order to adjudicate the issues raised by the appellant, it is imperative that both parties are heard, at length. Since it is not possible in the current scenario, it is deemed fit that the instant appeal be re-scheduled and another date of hearing be fixed.
Appeal may be re-scheduled for hearing in the normal course.
Facts emerging in Course of Hearing on 01.12.2020:
8. A written submission has been received from the Respondent vide letters dated 19.11.2020 and 11/13.08.2020 wherein explaining the background of the matter it was inter alia stated that the Appellant appointed as a SI (DE) in BSF on 04.02.2002 served in various units/ HQs as well as deputation with SPG and was promoted to the rank of Inspector on 09.04.2007. On selection as Inspector in Special Protection Unit of Punjab Police, offer of appointment in favour of the Appellant was issued on 18.11.2013 by DIG, Admn, Punjab with a direction to report within 30 days from the date of issue of appointment. As Page 3 of 7 per the condition stipulated in para 8 of the offer of appointment, appointment in the unit is a fresh appointment in Punjab Police after resignation of previous Government service under the Central Government/ MHA. The Appellant tendered his resignation and his case for resignation was processed and accepted by the competent authority under Rule 19 (1) of the BSF Rules r/w Rule 26 (1) of the CCS (Pension) Rules, 1972 without financial/ pensionary benefits vide Air Wing Order No 1866-77 dated 14.02.2014 and he was struck off the strength of the BSF Air Wing w.e.f., 14.02.2014 (A/N). Later on the Appellant filed a CWP No 7124/ 2015 in the Hon'ble High Court of Punjab and Haryana for grant of pro-rata pension for having rendered the qualifying service of over ten years and having taken release through proper channel upon due permission to take up the new appointment from the State Government. The instant case was decided vide order dated 20.09.2016, vide which the writ petition was allowed and they were directed to reconsider the grievance of the petitioner to grant pro rata pension for service rendered by him from 04.02.2004 to 14.02.2014 within 6 months. Accordingly a LPA No 525/ 2017 was filed by the UOI against the Court order dated 20.09.2016 which is still subjudice before the Hon'ble High Court of Punjab and Haryana. The Respondent referred to various decisions pronounced by the Commission in matters filed by the Appellant in CIC/KY/C/2015/900105/SB dated 04.07.2016; CIC/VS/C/2015/900014/SB dated 28.07.2016 and CIC/BDRSF/A/2017/603370 and CIC/BDRSF/A/2017/603394 dated 26.03.2018. Besides this, a reference was made to the various RTI applications/ First Appeals filed by the Appellant before the Air Wing, BSF. Thus, in view of the matter being sub-judice before the Hon'ble High Court of Punjab and Haryana and the previous decisions of the Commission, it was prayed to dismiss the instant Second Appeal.
9. The Commission is also in receipt of written submissions from the Appellant dated Nil wherein he inter alia prayed to direct the Respondent to provide him the information and impose a penalty u/s 20 (1) of the RTI Act for illegally withholding the application for more than one year.
10. In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, audio hearings were scheduled after giving prior notice to both the parties.
11. The Appellant participated in the hearing on being contacted on his telephone. At the outset he stated that the issues raised by him in the instant RTI application do not directly or substantially relate to the matter sub-judice before the Hon'ble High Court of Punjab and Haryana or the earlier decisions pronounced by the Commission and only points 2 and 3 of the instant RTI application were partially similar to the points raised in earlier RTI applications which were considered and decided by the Commission in its earlier decision. However, during the hearing he admitted that the larger issue pertaining to his grievance for allowing pro rata pensionary benefits was sub-judice before the Hon'ble High Court of Punjab and Haryana. In support of his contention that the issues raised by him in the RTI application pertained to violation of his Page 4 of 7 human rights, the Appellant referred to Section 2(d) of the Protection of Human Rights Act, 1993 and stated that any violation of fundamental rights enshrined under Article 14 to 22 of the Constitution of India is a clear violation of human rights of an individual. He argued that arbitrary and unfair treatment was meted out to him as more than 50 individuals had applied for seeking NOC for outside employment at the time when he had filed a similar application. However, the other applicants were issued the NOC within 15 days whereas his NOC was issued after almost 4 months. While stating that he has lost opportunities of future career progression, the Appellant stated that denial of pro rata pensionary benefits by the Respondent public authority was unjustified as the resignation tendered by him was more in the nature of technical resignation as one person cannot hold two posts simultaneously hence for administrative purpose, he had to resign from previous post to join new service.
12. The Respondent is represented by Shri Sameer Dhasmana, Dy Commandent through audio conference. He referred to their written submission dated 19.11.2020 and 11/13.08.2020 and stated that information cannot be disclosed since their organisation was exempted u/s 24 r/w the second schedule of the RTI Act 2005 and that the Appellant has not demonstrated any violation of human rights. In support of their contention, the Respondent referred to the decisions pronounced by the Commission in matters filed by the Appellant in CIC/KY/C/2015/900105/SB dated 04.07.2016; CIC/VS/C/2015/900014/SB dated 28.07.2016 and CIC/BDRSF/A/2017/603370 and CIC/BDRSF/A/2017/603394 dated 26.03.2018. On being queried by the Commission regarding the allegation of delay in issuance of NOC to the Appellant, Shri Dhasmana offered no comments and stated that they would restrict their plea to denial of information as per Section 24 (1) r/w the second schedule of the Act.
Decision:
13. Keeping in view the facts of the case and the submissions made by both the parties and in the light of the explanation provided by the Respondent during the hearing, no further intervention of the Commission is warranted in the matter. The Commission notes that BSF is an organization exempted from the purview of Section 24 (1) r/w the Second Schedule of the RTI Act, 2005 and that in such circumstances, information can only be disclosed if the information seeker establishes violation of human rights or corruption in the public authority. The Appellant has essentially raised issues pertaining to his personal service matter which per se does not qualify as violation of human rights as per the provisions of the RTI Act, 2005. In this context, the Commission refers to the decision of the Hon'ble High Court of Delhi in the matter of CPIO CBI vs. CIC and Anr. W.P.(C) 11092/2017 & CM Nos.45346/2017, 45348/2017 & 2610/2018 dated 02.02.2018, the relevant extracts of which are as under:Page 5 of 7
"8. The contention advanced on behalf of respondent no.2 is unmerited. The information sought for by respondent no.2 pertains to a service matter and the same cannot by any stretch be termed as "violation of human rights".
9. The expression "Human Rights" denotes certain inalienable rights which every individual has by virtue of being a member of the Human Family. In December, 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights. In December, 1965 the UN General Assembly adopted two covenants for observance of Human Rights: (i) The International Covenant on Civil and Political Rights; and (ii) Covenants on Economic, Social and Cultural Rights. India is a party to the said covenants.
10. India has also enacted The Protection of Human Rights Act, 1993 to provide for better protection of human rights and matters connected therewith or incidental thereto. The expression „Human Rights‟ is defined under Section 2(1)(d) of the said Act to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India".
11. The expression "Human Rights Violation" as used in proviso to Section 24(1) of the Act cannot be read to extend all matters where a person alleges violation of fundamental rights. Plainly, the said expression cannot be extended to include controversies relating to service matters. The grievances that the petitioner has in respect of the disciplinary proceedings in question do not fall under the ambit of human rights violations.
12. In Director General and Anr vs Harender: WP(C) 5959 of 2013 decided on 16.09.2013, a co-ordinate bench of this Court had held that "No violation of human rights is involved in service matters, such as promotion, disciplinary actions, pay increments, retiral benefits, pension, gratuity, etc."
13. In view of the above, the impugned order directing the petitioner to disclose the information sought for by respondent no.2 cannot be sustained."
14. Moreover, the Commission takes into cognizance the fact that similar issues were heard and adjudicated by it in its earlier decisions. In CIC/KY/C/2015/900105/SB dated 04.07.2016, the Appellant had sought information regarding issuance of NOC for applying for another employment under Government or Public Sector Undertaking. In IC/VS/C/2015/900014/SB dated 28.07.2016, the Appellant was seeking information about the rules of resignation followed by BSF and action taken on his applications mentioned in the RTI application while in CIC/BDRSF/A/2017/603370 and CIC/BDRSF/A/2017/603394 dated 26.03.2018, the Appellant sought copies of all directions/ opinions provided by Accounts office of Pay and Accounts Division, New Delhi to the Air Wing, BSF or Personnel Director, BSF from 2014 to 2017 pertaining to the case of the Appellant. Although the queries raised in the RTI applications under consideration in the aforementioned decisions may not be identical to the Page 6 of 7 queries raised in the instant matter, the questions revolve around Appellant's grievance regarding delay in issuance of his NOC and non-payment of pro-rata pension. In all these matters, the Commission categorically denied any direction in favour of the Appellant as per Section 24 (1) r/w the Second Schedule of the Act with the observation that the Appellant was unable to satisfy the precondition of existence of corruption or human rights violations. Thus, the Commission would desist from deviating from the earlier decisions more so for the reason that the matter pertaining to Appellant's grievance is pending adjudication before the Hon'ble High Court of Punjab and Haryana in LPA No 525/ 2017.
15. With the abovementioned observation, the instant Second Appeal stands disposed off, accordingly.
Y. K. Sinha ( वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) Ram Parkash Grover (राम काश ोवर) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 7 of 7