Central Information Commission
Shri S.S. Bhamra vs President'S Sectt. on 19 March, 2007
ORDER
Wajahat Habibullah, C.I.C. Facts:
1. Shri S.S. Bhamra, Asstt. In the President's Sectt. has with two applications dated 14.3.06 and 8.8.06 sought the following information from Shri Nitin Wakankar, CPIO President's Secretariat.
A. In appeal under File No. CIC/WB/SA/2006/00889 (application of 14.3.06)
1. Copy of RRs for the post of Assistant mentioning the name of the Appellate Authority along with Government of India's instructions for relaxing the stipulated conditions prescribed for promotion to the post of Assistant in the President's Secretariat.
2. Copy of recruitment rules, which provides a LDC can be promoted directly to the post of Assistant.
3. List of the ministerial staff who were promoted by relaxing the prescribed conditions meant for promotion as envisaged in the Recruitment Rules during the last three years. Copy of the orders passed by the competent authority while granting relaxation in service conditions in respect of the above staff and
4. Speaking order, why relaxation conditions were missing in his case and whether his case was ever put up to the President for relaxation in service conditions for promotion to the post of Assistant when vacancy existed in the year 2004.
B. In appeal under File No. 06)06)
1. Copy of orders passed by the competent authority granting relaxation in service conditions in the case of S/Shri/Smt. S.K.Madan, S.K.Garg, Krishna Saluja and S.M. Sami, UDCs, while promoting them to the post of Assistant and Shri Milap Chand Jagotra, LDC directly promoted to the post of Assistant.
2. Copy of speaking order stating the reasons for not considering his name for relaxation for promotion to the post of Assistant and as to whether his case was ever put up to the President for relaxation in service conditions for promotion to the post of Assistant.
3. Reasons for not holding DPC in the year 2004 when there was a vacancy occurred after resignation of Shri Peter Nathaniel from the post of Assistant on 30.4.04 as was done in the case of Shri Milap Chand Jagotra who had been promoted from LDC to Assistant and also when 5 UDCs who fell short of required qualifying service of 5 years were promoted to the post of Assistant, why these very conditions were missing in his case.
2. In his response of March 27, 2006 to the application dated 14.3.06 the information provided was as follows:
1. Copy of the RRs for the post of Assistant is enclosed. The Govt. of India's instructions may be obtained from the concerned nodal Ministry. The President is the competent authority under the RRs to grant relaxation in the President's Secretariat.
2. Promotion in every cadre are made on the basis of RRs. However, separate instructions issued by the Department of Personnel & Training exist for promotions of persons under cloud.
3. In the past three years relaxation has been granted by the President being the competent authority under Rule 16 of the RRs in cases of Shri S.K. Madan, Shri S.K. Garg, Smt. Krishna Saluja, Shri S.M. Sami and Shri Charanjit Singh for promotion from UDC to Assistant on being satisfied with the requirement to grant such relaxation for administrative exigencies.
3. In a response of Sept. 4, 2006 Shri Nitin Wakankar CPIO President Sectt. replied to the application of 8.8.06 as follows:
b) In appeal under file No. CIC/WB/A/2006/00830
1. When DPC was held in 2003, except Shri Bharat Bhushan all other five UDCs fell short of required qualifying service of 5 years. Since the regularization was without any break in service, it was considered fair and just to seek relaxation in the condition of required qualifying service to avoid any hiatus in administration. (Copy of the order issued in this regard was enclosed)
2. No DPC was held in the year 2004 and as a consequence, no record was created to this effect.
3. Same as per (2) above.
4. In both cases Shri S.S. Bhamra appellant moved his first appeal with Smt. Rasika Chaube, Appellate Authority in the case of file 830 on 12.9.06 and in the case of file 889 on 20.4.06. Appellate Authority passed her order in case of File No. 889 on 22.5.06 in which she concluded that the PIO had acted objectively and independently, and in case in File No. 830 on 31.10'06 as follows:
As regards copy of the order passed by the Competent Authority while granting relaxation in service conditions, the appellant is hereby informed that the DoPT instructions exclude file notings from coming under the purview of information which can be accessed by the individuals. However, the PIO has already obtained reply from the nodal agency with reference to this issue and communicated the same to you which should meet the requirement. As regards the other issue of not holding of the DPC, it is stated that since no DPC was held in the year 2004, consequently no record on this account was created. Hence, there is no information as defined under Section 2(f) of the Right to Information Act which can be furnished on this account by the PIO.
5. Aggrieved by these orders, Appellant Shri Bhamra has moved second appeal before us which because of their close relationship have been clubbed together for a hearing. The appeals were heard on 19.3.07. Following are present:
1. Shri S.S.Bhambra, appellant
2. Shri Manjeet Singh, assisting appellant
3. Smt. Rasika Chaube, Appellate Authority, President's Secretariat
4. Shri Nitin Wakankar, CPIO, President's Secretariat
6. By two letters of January 23rd and 24th of 2007 Shri Nitin Wakankar CPIO President Sectt. has offered his response to our appeal notice with detailed comments on each request for information sought by appellant as follows:
Case in File No. CIC/WB/A/2006/00889
1. Copy of the RRs was provided to the appellant. There is no mention of Appellate Authority in the RRs, therefore, no provided. As far Government of India's instructions the appellant was advised to obtain the same from the concerned nodal Ministry.
2. No such Rules exist, therefore, information cannot be provided.
3. List already provided. If by copy of orders passed by competent authority, the appellant means file notings, as per DoPT's website, file notings, do not come under the definition of 'information' under the Act.
4. Since no DPC was held for 2004, no record was created and hence, no speaking orders are available.
Case in File No. CIC/WB/A/2006/00830 Information in this regard, which has earlier been supplied to the applicant, is as below:
When DPC was held in 2003, except Shri Bharat Bhushan all other five UDCs fell short of required qualifying service of 5 years. Since the regularization was without any break in service, relaxation in the condition of required qualifying service was considered to avoid any hiatus in administration. If the appellant seeks file notings these are not considered as part of the definition of 'information' under the Act as is evident in the website of DoPT in the section relating to Right to Information.
2. No DPC was held in the year 2004 and as a consequence, no record was created to this effect. Therefore, there was no case for putting up any case to the President.
3. As per Section 2(f) of RTI Act 2005 "information means any material in any form including records, documents, memos, e-mails, opinions, advice, 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 Since no DPC was held in 2004,no record was created to this effect which could be supplied.
7. In the meantime Shri Bhamra has also submitted his rejoinder to these comments through a letter dated 12.2.07. Since no copy of the rejoinder had been received by respondents, a copy was provided to them during the hearing.
8. During the hearing, therefore, the information sought, the reply given both at the level of CPIO and Appellate Authority and the stand taken by Appellant Shri Bhamra were examined in detail.
9. From the stand taken by the appellant we find that most of these are complaints about action allegedly not taken by the public authority, when in the view of appellant Shri S.S. Bhamra there was sufficient ground for taking such action. It was explained to appellant Shri Bhamra that the role of this Commission comes in only to ensure that any information held by a public authority is provided to an applicant. Information cannot be created or developed under the Right to Information Act for providing to an applicant. If aggrieved by the information held by the public authority, or decisions taken by it, it is open to applicant to seek redress from the established authority for redress of public grievances or from the CVC, but not from this Commission. Nevertheless any information acquired through the application of the Right to Information Act 2005, can be used to facilitate such redress.
DECISION NOTICE
10. In light of our observations above, we find that the information sought by appellant as defined Under Section 2(f) & 2(j) of the RTI Act has largely been provided. However, we find that CPIO has taken the stand that file noting is not to be provided because of a definition of information on the DoPT website. We have earlier held in several cases and finally in Pyare Lal v. Ministry of Railways appeal No. CIC/OK/A/06/154 dated 29.1.07 that file noting fall squarely within the definition of information under the RTI Act and should be provided, when requested, if not excluded from disclosure Under Section 8(1) or Section 24. In this case no such plea has been taken by respondents. We have earlier advised DoPT to remove this misleading information from their site. We expect them to do so immediately if the result of this inclusion on their site has been to mislead even so august an office as that of the President of India. At any rate the file noting not being excluded from disclosure may now be provided within fifteen working days from the date of issue of this Decision Notice to appellant Shri S.S. Bhamra.
11. The appeal is disposed of accordingly. Announced in the hearing. A copy of this Notice may also be endorsed to CPIO, Ministry of Personnel, Public Grievances and Pension for action as directed above.
12. Notice of this decision be given free of cost to the parties.