Central Information Commission
Sandeep vs National Highways Infrastructure ... on 21 September, 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/NHICL/A/2022/626734
Sandeep ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
DGM-HR, National Highways &
Infrastructure Development
Corporation Limited, PTI
Building, 3rd Floor, 4-Parliament
Street, New Delhi-110001 .... ितवादीगण /Respondent
Date of Hearing : 20/09/2022
Date of Decision : 20/09/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/11/2021
CPIO replied on : 21/12/2021
First appeal filed on : 09/01/2022
First Appellate Authority order : 07/02/2022
2nd Appeal/Complaint dated : 12/05/2022
Information sought:
The Appellant filed an RTI application dated 01.11.2021 seeking the following information:1
1 "Whether DoPT or any of its offices has given exemption to NHIDCL (CPSE/PSU under MoRTH) for non filling up of sanctioned posts. If yes, please provide copy of such order/guidelines.
2 Whether DoPT or UPSC has any say in recruitment of below board level posts in NHIDCL. If yes, please provide information in whatever form available. 3 As per DoPT guidelines no retired person shall be appointed on re-employment basis or consultant basis if attempts are not made to make the selection on regular basis, hence please provide copy of orders, if any, issued to MORTH or NHIDCL for not making appointment to sanctioned posts but filling them temporarily by retired persons.
4 Provide information on whether any PSU can engage retired persons of age beyond 62 years even upto 67 years without obtaining any approval from any authority. If yes please provide copy of such circulars, if not please provide the details of any step taken towards it by DoPT or any of its connected offices. 5 Provide information on whether any employee engaged on deputation in PSU like NHIDCL can be engaged without absorption and the limit of deputation period if its allowed.
6 What steps have been taken by DoPT or its connected offices to monitor the recruitment against sanctioned posts in NHIDCL.
7 Whether NHIDCL can engage retired persons without going for regular selection first as per DoPT guidelines.
8 Whether a PSU like NHIDCL can engage persons from defence services on deputation. If yes, please provide copy of relevant orders. 9 What is the role of DoPT in recruitment matters of CPSE/PSUs like NHIDCL. 10 Please provide information as to whether CPSEs/PSUs can engage persons on outsourcing basis for doing its core functions.
11 Please provide information as to whether any of investigating agencies like CBI can investigate outsourced staff of NHIDCL for any allegations in any dispute/inquiry against Govt employees deployed on deputation in NHIDCL. If yes, whether such employees are to be considered temporary government employees on absorption basis.
12 Whether a person deployed on outsourcing basis in CPSE/PSU like NHIDCL can make an FIR in police station on behalf of NHIDCL/Government. 13 Department of Public Enterprises (DPE) has also laid some guidelines for recruitment in CPSEs but they are not mandatory to be followed as per NHIDCL.
DPE also categorize each CPSE/PSU based on compliance to its guidelines wherein NHIDCL has been performing very poorly as reflected in DPE report also. Please confirm if any kind of effect is recorded in ACR of Govt officers or any action taken against officers responsible for such incompetency/ wilful negligence to guidelines.
214 Please inform if CPSE/PSU can function with officers engaged on deputation basis or with retired persons only without actually making any appointment on sanctioned posts. If yes, please provide copy of relevant orders/exemption to guidelines."
The CPIO furnished a point wise reply to the appellant on 21.12.2021 stating as follows:-
Point No. 1 to 14:- "This information asked for under para (5) &(6) are not complete/available in the print out received.
The information asked for are mostly in the nature of seeking clarification/confirmation and the same are not available in HHIDCL."
Being dissatisfied, the appellant filed a First Appeal dated 09.01.2022. FAA's order dated 07.02.2022 upheld the reply of CPIO and further stated as under:-
".............However, for recruitment related issues, the applicant may see the detailed advertisement for various posts of NHIDCL on deputation and direct contract basis issued from time to time, as also displayed on the NHIDCL website- www.nhidcl.com under career/current vacancies/archives."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the following arguments -
"....2. The information sought was related to recruitment policies/decisions taken by NHIDCL in recent years as I came to know that such actions are against the guidelines/instructions of GoI. The orders/approvals/exemptions required for implementing such recruitment policies was sought because NHIDCL since its inception in 2014 has not recruited any employee so far and thus has kept the positions vacant. In parallel, it has engaged agencies for providing manpower of same skillset as framed in its own recruitment rules. Moreover, it has been engaging retired persons whose age are beyond 65 years and in some cases even upto 67. This way, NHIDCL has been keeping the sanctioned posts vacant which is not only contrary to judgements of Supreme Court but also against the Right to Public Employment of Indian Citizens.
3. However, in reply of the RTI, CPIO as well as FAA has simply termed the questions as clarifications and no information was provided despite my first 3 appeal stating the fact that copy of orders were sought which supports the actions/policies adopted by the NHIDCL towards its recruitment matters.
4. The reply to first appeal was issued on 07.02.2022 by FAA and it was sent through speed-post which was received by me on 14.02.2022. After which I thoroughly checked all published documents on the website of NHIDCL again if I could find such information but could not. Earlier in Feb 2021, an RTI was filed by me and response was not satisfactory and I preferred First appeal but no information/reply to first appeal was provided by NHIDCL till date, just like this time...."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: S Ramakrishnan, Deputy General Manager (HR) & CPIO present through audio-conference.
The Appellant while reiterating the contents of his instant Appeal as mentioned in the preceding paragraphs expressed his dissatisfaction with the CPIO's reply. In response to it, the Commission counselled the Appellant that the queries raised by him do not even qualify under the definition of 'information' per se in terms of Section 2(f) of RTI Act as he has sought clarifications/inferences to be drawn by the CPIO from his interrogatories.
The CPIO invited attention of the bench towards his latest written submission filed prior to hearing wherein it was mentioned that a point wise reply along with relevant inputs was already been provided to the Appellant.
Decision:
In furtherance of the hearing proceedings, the Commission finds no scope of action in the matter with respect to the information that has been sought for in the RTI Application as well as the reply of the CPIO provided thereon as the queries raised by the Appellant do not conform to Section 2(f) of the RTI Act. The Appellant has sought for clarifications and justifications to be provided by the CPIO based on speculative queries. Yet, the CPIO has provided factual inputs which adequately suffice the RTI queries.4
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.
In this regard, his 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 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) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer & Ors [SLP (CIVIL) NO.34868 OF 2009], Hon'ble Supreme Court 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 5 information as to why such opinions, advices, circulars, orders, etc. have been passed...."
"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 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) Notwithstanding the aforesaid, the CPIO is advised to exercise due diligence and if they come across similar nature of RTI Application, he should categorically inform the RTI applicants in future that his RTI queries do not conform to Section 2(f) of RTI Act.6
However, it will be in the best interest of Respondent Public Authority to explore the viability of maintaining their website pertaining to various policy matters pertaining to deputation / recruitment / appointment of personnel so that the information is available in the public domain in keeping with the letter and spirit of suo motu disclosures prescribed under Section 4 of the RTI Act. This will also relieve the public authority from the burden of RTI Applications which are filed for merely seeking clarifications and not any specific record. In pursuance of the aforesaid advisory, the CPIO, NHIDCL is directed to place a copy of this order before their competent authority for taking appropriate action.
Lastly, the Commission empathizes with the concern of the Appellant and advises him to pursue his grievance through appropriate administrative mechanism.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7