Central Information Commission
Chaman Lal vs Comptroller & Auditor General on 30 June, 2020
के य सचू ना आयोग
Central Information Commission
बाबा गंगनाथ माग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
वतीय अपील सं या / Second Appeal No.(S):- CIC/CAGIN/A/2018/161606-BJ+
CIC/CAGIN/A/2018/156835-BJ
Mr. Chaman Lal
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO & Dy. Director (Legal)
Office of the Comptroller & Auditor General of India
9, Deen Dayal Upadhyaya Marg
New Delhi - 110124
2. CPIO
Indian Audit & Accounts Department
Office of the Accountant General (A&E)-II
Allahabad - 211001, Uttar Pradesh
... तवाद गण /Respondent
Date of Hearing : 30.06.2020
Date of Decision : 30.06.2020
ORDER
RTI - 1 File No. CIC/CAGIN/A/2018/161606-BJ Date of RTI application 20.05.2018 CPIO's response 22.06.2018 Date of the First Appeal 18.07.2018 First Appellate Authority's response 04.09.2018 Date of diarised receipt of Appeal by the Commission 10.10.2018 Page 1 of 6 FACTS:
The Appellant vide his RTI application sought information on 03 points in respect of the representation submitted to the Government regarding third financial upgradation admissible under the DOPT OM No. 35034 / 3/2008-Estt (D) dated 19.03.2009, the certified copy of the letter received from the Accountant General - II, U. P., Allahabad with reference to letter dated 27.11.2017; copy of the letter sent to the A.G. as reminder (if sent) regarding submission of the comments with reference to the letter dated 27.11.2017 etc. The CPIO, vide its letter dated 22.06.2018 provided a point-wise response to the Appellant.
Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 04.09.2018, provided additional clarifications on point no. 03 of RTI application.
RTI - 2 File No. CIC/CAGIN/A/2018/156835-BJ Date of RTI application 19.05.2018 CPIO's response 22.06.2018 Date of the First Appeal 15.07.2018 First Appellate Authority's response 24.08.2018 Date of diarised receipt of Appeal by the Commission 14.09.2018 FACTS:
The Appellant vide his RTI application sought information on 03 points in respect of the representation submitted to the Government regarding third financial upgradation admissible under the DOPT OM No. 35034 / 3/2008-Estt (D) dated 19.03.2009, certified copy of information/details sent by Accountant General - II, U. P., Allahabad Office with reference to letter dated 27.11.2017 of Office of the Comptroller & Auditor General of India, etc. The CPIO, vide its letter dated 22.06.2018, provided a point-wise response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 24.08.2018 while upholding the CPIO's response, provided additional point-wise clarifications to the Appellant.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Chaman Lal through VC;
Respondent: Ms. A. Fani Rao, Dy.Dir. (Legal) & CPIO, New Delhi and Mr. Uphar Sharma, Sr. AO (RTI) & APIO, New Delhi in person; and Mr. Raj Kamal, CPIO through TC;
The Appellant reiterated the contents of the RTI applications and stated that complete and satisfactory information had not been received by him, till date. While reiterating the background of the case, he submitted that on 19.05.2009, Modified ACPS-2009 was issued by the Govt. in which three financial upgradations had been granted to all the employees of the Govt. w.e.f.Page 2 of 6
01.09.2008, after completion of 10, 20 and 30 years of service. In addition to, the Govt. had also made Rule 5 in this MACPS-2009 that in view of merger of the three scales, promotions earned in the past from the post (which carried present scale of Rs. 5500-9000) to the post (which carried present scale of Rs. 6500- 10500) shall be ignored for the purpose of granting financial upgradations. Furthermore, he submitted that despite the above Rule-5 and completion of 30 years of the service, third financial upgradation was not granted to him w.e.f.01.09.2008 by ignoring promotion earned in 1986 from the post of DA (5500-9000) to the post of DAO-II (scale 6500-
10500) and he was retired on 31.07.2011 without giving benefit of the same. He further submitted that being an affected person of the CAG's decision of not giving the third financial upgradation, had sought the information under the RTI Act, 2005, but the CPIO had denied the same. The FAA had also concealed and denied the facts of Notification of revised pay structure of three tier and its clarification and confirmation by the Govt. and the CAG etc. and had given deliberately wrong and misleading information. In its reply, the Respondent, New Delhi, reiterated the replies of the CPIO/FAA and stated that a point-wise available information had already been shared with the Appellant wherein it was informed that the representations of Shri Chaman Lal and Shri Bansi Dhar Mishra had already been considered by the Headquarters (C&AG) and also replied the same to them vide their office letter dated 17.11.2017, receipt of which was denied by the Appellant. It was further informed that the Ministry of Finance, in compliance to Hon'ble CAT, Allahabad Bench in OA No. 330/000666 of 2015 filed by Shri Vikash Saxena, DAO-II, vide letter dated 25.04.2016 has clarified that DA cadre is a 4 tier structure based on the recommendations of the 6th CPC. It was argued that the Appellant's matter was similar to the one decided by Ministry of Finance in the case of Mr. Vikash Saxena. On a query from the Commission whether the Appellant had filed any Court Case in the matter, he replied in the negative. On a further query regarding any complaint made with the CAG / Secretary, Ministry of Finance, the Appellant replied in the affirmative and stated that no response had been received by him, till date.
The Respondent, Allahabad, also reiterated the replies of the CPIO/FAA and stated that a suitable response had already been provided to the Appellant, as per the provisions of the RTI Act, 2005. In addition, it was informed that the Applicant was not entitled for any relief for any MACPs because according to 6th pay commission DA cadre has a 4 tier salary structure and he had already received the benefit of Grade pay 4600, 4800 and 5400, which is already communicated to him vide FAA order 24.08.2018 and vide their office letter dated 20.02.2019 also. He further relied on its written submissions.
The Commission was in receipt of a written submission from the Respondent dated 23.06.2020 (File No. CIC/CAGIN/A/2018/156835-BJ) wherein while reiterating the replies of the CPIO/FAA, it was submitted that in response to letter dated 27.11.2018 as raised at point no. (1) of the RTI application, a reply dated 31.07.2018 and again a revised reply dated 13.08.2018 was sent to the HQ Office. The HQ Office of the C&AG of India vide its letter dated 20.11.2017 had already provided requisite information to the Applicant in response to his letter dated 17.08.2017. Furthermore, it was submitted that based on the directions of the Hqrs Office of the C&AG of India, the Appellant had been replied suitably vide their office letter dated 20.02.2019 separately. With regard to point no. 02 of the application, it was submitted that the Complainant was not entitled for any relief for any MACPs because according to 6th pay commission DA cadre has a 4 tier salary structure and he has already received the benefit of Grade pay 4600, 4800 and 5400, which is already communicated to him vide FAA order 24.08.2018 and vide their office letter dated 20.02.2019 also. Keeping in view the facts mentioned above, no cause of action is subsisting in the instant matter and hence, the Appeal filed is liable to be dismissed.
Page 3 of 6The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had 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 information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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 Page 4 of 6 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."
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent Page 5 of 6 was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. The Respondent, New Delhi, is however instructed to forward a copy of the reply dated 17.11.2017 to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email, as agreed.
The Respondent, Allahabad is also instructed to forward a copy of the written submission sent to the Commission to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email.
The Appeals stand disposed accordingly.
(The order will be posted on the website of the Commission) (Bimal Julka) ( बमल जु का) (Chief Information Commissioner) (मु य सूचना आयु त) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के.एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 30.06.2020 Page 6 of 6