Central Information Commission
Shri P.K. Jain vs Dep’T Of Personnel & Training (Dopt) on 3 February, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/01359 dated 23-10-2007
Right to Information Act 2005 - Section 19
Appellant: Shri P.K. Jain
Respondent: Dep't of Personnel & Training (DoPT)
FACTS
By an application of 16-7-07 Shri P.K. Jain, Addl. Chief Engineer, Directorate of Works E-II, Army sought the following information from Shri S.K. Ahluwalia and US (ACC), CPIO, DOPT:
"I, therefore, request you to furnish the following documents/ information under the Right to Information Act, 2005.
a) Copies of DPC proceeding and notings of DPC proceedings from the stage of DPC held on 28th March 2007, approval by ACC and up to the stage of issue of panel bringing out the cause of omission of certain names including mine from the approved panel in respect of promotion of Additional Chief Engineers to the grade of Chief Engineer in MES of the Ministry of Defence against the vacancies for the year 2007-08 for which approved panel for promotion has been issued by E-in-C's Branch vide letter No. B/41021/DPC/CE/2007-08/Ei (DPC-1) dated 27 June 2007.
b) Why the main panel is only for 07 (Seven) officers where as the vacancies existed was 10 (Ten) at the time of holding DPC on 28 March 2007.
c) Out of the 07 officers included in the main panel, only 3 officers are retiring during the year 2007-08 then why the extended panel is for 05 officers."
To this he received a response on 24-7-07 from Shri Ravinder Kumar, Under Secretary as follows:-
"The documents/ information requested for by you form part of Cabinet papers including records of deliberations of Secretaries and other officers, which hare exempted under Section 8 (1) (i) of RTI Act. Your request for provision of documents, therefore, cannot be acceded to."
Not satisfied Shri P.K. Jain moved his first appeal before Shri Alok Kumar, Appellate Authority and Director (ACC) on the following grounds:
1(a) "This section is applicable in cases involving deliberations by COUNCIL OF MINISTERS. Here ACC does not constitute council of ministers. It is only a committee involving 2 to 3 ministers.
(b) In this case though approved panel for promotion of Additional Chief Engineers to Chief Engineers has already been published by E-in-C's Branch/ MES letter No. B/41021/DPC/CE/2007-08/E1 (DPC-1) dated 27 June 07 and DPC is complete and over."
Shri Alok Kumar examined this question in detail and after studying the issue painstakingly has come up with the following:
"It is observed that Section 8 (1) (j) of the RTI Act clearly lays down that "Cabinet papers" including "records of deliberations of the Council of Ministers, Secretaries and other officers" are exempted from disclosure. There is no obligation on the part of the CPIO go give above mentioned information.
There is, however, a provision, under the section 8 (1) (i) which lays down that the "Decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decision were taken "shall be made public" after "the decision has been taken, and the matter is complete, or over".
Obviously, "Cabinet Papers" have a wider meaning in the Act. It includes all the papers pertaining to deliberations of the various Committees of the Cabinet, apart from including the papers pertaining to "Records of deliberations of the Council of Ministers", "records of deliberations of the Secretaries" and "Records of deliberations of other officers". "Decisions of the council of Ministers" and "material on the basis of which the decisions were taken" are a just a sub-set of the larger set of documents encompassed under the larger term "Cabinet Papers".
Out of these type of documents only one set of documents is mandated to be made public after "the decision has been taken, and the matter is complete, or over." The use of the terms "Shall be made public" in the Act obviously makes it a duty for the Public Authorities to make public the "decisions of the Council of Ministers" and "material on the basis of which the decisions were taken." Naturally, there should be no occasion or need for any info-seeker to ask for this class of information, as these are mandated, in any case, to be made public. But this stipulation (making them mandatorily public) is attracted, specifically, only in cases of "Decisions of Council of Ministers"
and, definitely, not in respect of any other class of "Cabinet Papers."2
The papers (pertaining to Shri P. K. Jain's request) being held by the DOPT's CPIO Shri Ravindra Kumar, Under Secretary are, essentially, the papers pertaining to the deliberations of the "Appointments Committee of the Cabinet" pertaining to promotion to the post of Chief Engineer in MES, and hence, they fall under the definition of "Cabinet Papers". They cannot be treated as "materials" for decision of "council of Ministers" (As envisaged and understood under proviso to Section 8 (1) (i) of the RTI Act 2005). As already brought out earlier, as far as "Cabinet papers" are concerned, it is a separate class of papers, distinct from "material on the basis of which decision of Council of Ministers are "taken" and cannot be made public even after the decisions have been taken and the matter is complete or over. This is because of the simple reason that the enabling proviso under section 8talks only about the "decisions of the Council of Ministers". Hence, the proviso, under section 8 (1) (i), cannot travel beyond the legislative intent as reflected in the main Section 8 (1) (i) and the proviso cannot be read to enable disclosure of all class of the Cabinet Papers."
He has gone on to distinguish between the Council of Ministers and Cabinet an issue which has been decided by us on 23.10.'08 in a separate appeal. He has also gone on to press applicability of Section 8 (1) (j) claiming that disclosure of information sought "would not serve any larger public interest". On these grounds the appeal was dismissed bringing appellant in his second appeal before us with the following plea:
"It is, therefore, prayed that the order of the Appellate Authority under RTI Act, Shri Alok Kumar, Director (Appointments Committee of Cabinet) be set aside and the information sought for the applicant be disclosed namely:
a) File notings brining out the reasons for not empanelling certain names including mine in the approved panel as per the approval given by appointment Committee of Cabinet (ACC)/DOPT vide F. No. 12/22/2007-EO (SM II) dated 22 June 2007 in contravention of the recommendations by the DPC held at UPSC New Delhi on 29 March 2007, in respect of promotion of Additional Chief Engineers to the grade of the Chief Engineers in MES of the Ministry of Defence against the vacancies for the year 2007-2008.
b) Copy of govt Rules and / or DoPT guidelines in support of the action of deleting my name from the approved panel for promotion in contravention of the recommendations by the DPC.3
c) Date since when such Govt Rules/ DoPT guidelines brought out in Para 6 (b) above have become effective, if such rules/ guidelines really exists."
The appeal was heard on 3-2-2009. The following are present.
Respondents Shri Prabhat, Dir (ACC).
Shri Kabindra Joshi, US (SM-II).
Although informed of the date of hearing through our letter of 19-1-09 appellant Shri P.K. Jain has opted not to be present. We find however that appellant Shri P.K. Jain has retired from service on 30-6-2008.
DECISION NOTICE The issue of whether the Council of Ministers and Cabinet are the same in terms of reference to Section 8 (1) (i) of the RTI Act has been discussed by this Commission in some detail in Appeal No CIC/WB/A/2008/00081 dated 23-10-2008 P.D Khandelwal vs. DoPT. Our decision in that case was as follows:
"As we have observed above, the plea taken by the First Appellate Authority that the decision of the Council of Ministers are disclosable but Cabinet papers are not, is totally untenable. Every decision of the Council of Ministers is a decision of the Cabinet and, as such, all records concerning such decision or related thereto shall fall within the category of "Cabinet papers" and, as such, disclosable under Section 8(1) sub-section (i) after the decision is taken and the matter is complete, and over."
We see no reason to differ with that decision in the present case. Besides, however, while Shri Alok Kumar had been at pains to discuss how decisions of the Council of Minister alone are disclosable. he has gone on to argue that disclosure would not serve any larger public interest. Shri Alok Kumar has completely misunderstood the provisions of Section 8 (1) (j). Public interest in this case cannot be used to deny information. It is, instead, an enabling provision warranting the disclosure of information even where it would otherwise fall in the category of exempted information. Moreover, in this case the applicability of Section 8 (1) (j) to an application seeking information on himself by any citizen of India can hardly be construed as 4 "invasion" of privacy. The effort to invoke this exemption clause, therefore, is nothing less than facetious.
For the above reasons the Commission accordingly directs that the requested information be made available to the appellant Shri Jain within a period of ten working says from the date of issue of this order. This appeal is then allowed.
However, since the officer concerned has now retired, it may be determined from him by CPIO whether he is still in need of the information sought before the same is supplied to him.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 3-2-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 3-2-2009 5