Central Information Commission
Mr.Shashi Prabha Sharma vs Government Of Nct Of Delhi on 9 October, 2013
Central Information Commission
Room No.306, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New
Delhi110066
Tele:01126180512 & 01126717355 Fax : 01126106145 websitecic.gov.in
Complaint : No. CIC/AD/C/2013/000620/DS
Appellant /Complainant : Smt. Shashi P. Sharma,
Janakpuri, Delhi
Represented by Sh. S.C. Sharma
Public Authority : Directorate of Education
(GNCT),Delhi
(Col. J.S. Yadav, Dir(Legal), Col.
R.Mandal, Mgr., Sh.
S.C. Singhal Bursar, Sh. D.P.
Chandola, OS , Ms.Jyoti
Singh, Advocate)
Date of Hearing : 09 October 2013
Date of Decision : 09 October 2013
Facts:
1. Further to Commission's order no. CIC/AD/A/2012/001910 of 27 September 2012 in which directions are given to the appellant to submit written submission to the Commission with copy to the respondent, in support of his contention that the Army Public School, Dhaula Kuan, New Delhi is public authority as per definition given in section 2 (h) of the RTI Act which defines public authority to enable the Commission to arrive at a decision as to whether in fact the Army Public School is public authority. Matter was heard today. Respondent was also directed to submit their counter before the Commission. Both parties as above appeared in person and made submissions. Appellant made the following points:
That the school was functioning on the defence land leased by the Ministry of Defence, Government of India. That the school has received huge aid in the past from the Army and that the total grant available as on 31 March 2003 was Rs 5098345/-.
That the school had also received large amounts during the period 1999 - 2003 for the construction/procurement Complaint : No. CIC/AD/C/2013/000620/DS of various items namely renovation of the auditorium, school buses, boundary wall etc. That the Army public school, Shankar Vihar was given 14 acres of defence land for the construction of the school projects/building in the year 2005. That the recruitment of the staff and faculty is as per the norms of the DOE and Army Welfare Education Society and that the management of the school is under GOC, Delhi area and is managed by serving army officers. Also that the balance sheet of the school reveals that it has been regularly getting non- refundable grants from the Army.
2. The appellant had also relied on decisions of a full bench of the Commission dated 2 June 2009 whereby the Jawahar Lal Memorial Fund was declared public authority after the matter was remanded back by the Delhi High Court and also on the judgment of the Delhi High Court in WP no. 6129/2007 dated 14 May 2010 vide which KRIBHCO Cooperative was declared public authority as per section 2 (h) of the RTI Act, 2005.
3. A copy of letter as submitted by appellant, issued by the Mukhyalaya Delhi Area, HQ Delhi Area (AWES cell) Pin no 900106 C/O 56 APO dated 26 February 2013 under the signature of Col Sanjay Rajain, Col Trg (schools) shows the composition of school Managing Committees of Army public schools and indicates that the Chairman, Director AWES, Delhi Area and school Manager are servicing Army officers of the rank of Brigadier, Col and LtColonel whereas the Director schools, HQ AWES is a retired Colonel. Two members are nominated by the Director, Directorate of Education, GNCTD. The Principal, a Senior PGT and the parent who is member of the Parent Teachers Association of the school are also members of the managing committee.
4. The representative of AWES on the other hand, rebutted the arguments of the appellant by relying on the decision of the High Court of Punjab and Haryana at Chandigarh in CWP no.
6834 of 1996 dated 20 February 2009 in which it is held that the Army Welfare Education Society (AWES) and the Army public school, Ferozpur is not 'State' within the meaning of Article 12 of the Constitution of India.
Complaint : No. CIC/AD/C/2013/000620/DS
5. Further, reliance is placed by respondents on judgment of the High Court of Punjab and Haryana in the matter of Hem Chand vs Union of India etc in CWP no. 8308 of 2001 in which it is held that the Army Welfare Education Society (AWES) is not an instrumentality of the State under Article 12 of the Constitution of India.
6. Respondent have also grounded their arguments on the judgment of the Delhi High Court in the case of Asha Vij vs the COAS and Ors and Punjab and Haryana High Court judgment in the case of Sudha Soin vs UOI and Ors in which it is also held that the AWES which manages the Delhi Area Public School, NOIDA is not 'State' or authority as envisaged under Article 12 of the Constitution of India.
7. To buttress their point further, Respondent have also argued that on the basis of the aforementioned judgments, the nature and character of the Regimental Fund out of which the funding of the Army schools is effected is not a public fund.
8. Respondents in their submission have quoted from previous decisions of this Commission namely, in the matter of Smt Amba Joshi vs Army Welfare Education Society, Delhi in appeal no. CIC/ WB/A/2008/000634 dated 6 October 2009 wherein it is decided that the Army school, Almora and AWES is not public authority. Similar decisions have been arrived at vide Commissions orders no. CIC/SM/A/2009/000203 of 15 October 2009, CIC/LS/A/2010/001249 of 27 September 2010 and CIC/LS/A/2009/001049, CIC/LS/A/2009/001170, CIC/LS/A/2009/001276 and CIC/LS/A/2009/001277 of 14 January 2011.
9. The PIO, office of the Deputy Director of Education have given written submission to the Commission in which they have stated that the Department of Education do not pay any amount for land and building/premises for the school, the land being situated in Delhi Cantonment area. Also that the Managing Committee of the school recruit the staff and faculty of the School and that the Director's nominee is present at the time of promotion/recruitment of the Principal only. Further, that the managing committee of the school has the control over the day to day running of the school and that the Army Public School, Dhaula Kuan, New Delhi, follow the Scheme of Complaint : No. CIC/AD/C/2013/000620/DS Management prescribed by Directorate of Education as do other schools according to rule 59 of DSER 1973. They have also submitted before the Commission, the Income and Expenditure Account for the Army public school for the financial years 2009 - 2010, 2011 - 2012 and 2012 - 2013 as well as Balance Sheets, details of bills payable, fixed assets chart, depreciation chart, balance sheet, liabilities.
Decision notice
10. Commission has heard both parties and directs that copies of the various orders relied upon by the Respondents (AWES) and Directorate of Education, GNCTD while making submissions before the Commission be provided to the appellant within one week of receipt of the order. Commission has also gone over the various judgments quoted by both parties to support their case. It is observed that most of the orders relied on by the respondents are prior to the enactment of the RTI Act, 2005 and relate to the issue as to whether the AWES and the Army public schools are State under Article 12 of the Constitution. However, the issue before the Commission is whether Army public school, Dhaula Kuan is a 'public authority' under section 2 (h) of the RTI Act, 2005 and this issue has not been examined or settled through any of the afore quoted judgments as the Act had not been legislated at that time. The decisions of the Central Information Commission quoted hereinabove and relied upon by the respondents are of the period 2009 and 2010 and have not examined this issue in detail e.g. the issue of the use of the land on which the Army public school is situated has not been touched upon. This resource placed at the disposal of the Army public school by the Indian Army undoubtedly has huge value at current rates and is also critical to the functioning of the school. In fact it would not be incorrect to say that the Army public school would not have come into existence or been able to function at all without this valuable resource. Fom the submissions above, it is not known what are the terms and conditions for making available such land. How was the construction of the initial building financed as at that time, the school did not have any students from whom the fees was generated. It would not be illogical to argue that this kind of access to land in Complaint : No. CIC/AD/C/2013/000620/DS Cantonment area for running the school and initial grants for building the school building, would not have been accessible to other private schools. These are some of the issues that will have to be examined in order to arrive at a decision on the issue before us namely whether Army public school, Dhaula Kuan is covered by section 2 (h) of the Act which gives the definition of public authority for the purpose of the RTI Act.
11. Here, Commission would like to quote from the order of the High Court of Delhi in the matter of Sanskriti School Vs Central information Commission in WP (C) no. 1212/2007 pronounced on 7 January 2010 in which the Court has dwelt on the term "public authority" with reference to "State" under Article 12 of the Constitution. The issue was whether the purposes of the Act are wider, and meant to ensure transparent functioning of government and public bodies. After examining the issue in detail, the court had concluded that, "76. India is in the midst of challenges. On the one hand is a continuing task to ensure social justice and equity to all the people, and on the other, the imperative of economic growth and development, as well as the spread of its benefits to all. Educating, clothing and providing shelter, employment and basic health care to all the people are non-derogable priorities. The model chosen by the government after ensuring spread of welfare and its benefits, include functioning through nongovernment agencies, who are tasked and assisted for this purpose. The crucial role of access to information here cannot be understated. It is in this context that section 2 (h) recognizes that nonstate actors may have responsibilities of disclosing information which would be useful, and is necessary for the people they serve, as it furthers the process of empowerment, assures transparency, and makes democracy responsive and meaningful."
12. Commission is also swayed by Supreme Court of India judgment in the matter of The Institute of Chartered Accountants of India Vs Shaunak H Satya & Ors in civil appeal no. 7571 of 2011 dated 2 September 2011 which reads, "The word 'State' used in Section 9 of the RTI Act refers to the Central or State Government, Parliament or Complaint : No. CIC/AD/C/2013/000620/DS Legislature of a State, or any local or other authorities as described under Article 12 of the Constitution. The reason for using the word 'State 'and not 'public authority' in section 9 of RTI Act is apparently because the definition of 'public authority' in the Act is wider than the definition of 'State' in Article 12 and includes even nongovernment organizations financed directly or indirectly by funds provided by the appropriate government.
13. Therefore, in the light of the above judgments, Commission continues to tread the path as outlined in the decision of this Commission's order no CIC/LS/A/2011/001079 dated 5 July 2012 in the matter of AN Prasad vs Army public school, Dhaula Kuan, New Delhi in which it is decided that the..... "the factual matrix in the present case is similar to the decision of the Commission in the matter of Amrit Mehta vs India International Centre which has been stayed by the Delhi High Court vide order dated 15 May 2012 in WP (C) 2889/2012 and CM no. 6226/2012 ( IIC vs Amrit Mehta & Anr.) And therefore it would be expedient to wait the final verdict of the High Court before taking a decision in the matter."
14. Therefore now, Commission reserves judgment in this matter subject to the outcome of the aforementioned case after which it will be open to the appellant to agitate this matter as to whether the Army public school, Dhaula Kuan is a public authority, before the Commission subsequently which can then be heard by a larger bench of the Commission.
15. It is placed on record that in the interest of transparency and without prejudice to their case, the Army Public School, Dhaula Kuan has provided information to the appellant in respect of her annual confidential reports for the past five years.
(Smt. Deepak Sandhu) Chief Information Commissioner Authenticated true copy:
(T. K. Mohapatra) Dy. Secretary & Dy. Registrar Complaint : No. CIC/AD/C/2013/000620/DS Tel. No. 01126105027 Copy to:
1. Smt. Shashi Prabha Sharma C4, B327A, Janakpuri New Delhi110058 2, The CPIO Dy. Director of Education Directorate of Education Govt. of NCT of Delhi District - South - WestA C4, Vasant Vihar, New Delhi110070
3. Principal Army Public School Ridge Road, Dhaula Kuan New Delhi110010 Complaint : No. CIC/AD/C/2013/000620/DS