Central Information Commission
Seema vs Chief Commissioner, Central Excise, ... on 3 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCEM1/C/2018/629561/A-BJ
Ms. Seema Deep
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Dy. Commissioner
CCO, GST & CX, Mumbai Zone
O/o the Chief Commissioner of GST & CX
115, GST Bhawan, M. K. Road, Churchgate
Mumbai - 400020
... ितवादीगण /Respondent
Date of Hearing : 03.12.2019
Date of Decision : 03.12.2019
Date of filing of RTI application 19.05.2018
CPIO's response 29.06.2018/
02.08.2018
Date of filing the First appeal 01.07.2018
First Appellate Authority's response 27.07.2018
Date of diarised receipt of Second Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide her RTI application sought information pertaining to the last requisition letter sent to the SSC by the Chief Commissioner of Central Excise, Mumbai-I, Zone and the response received from SSC to the said requisition letter.
The CPIO vide his response dated 29.06.2018 informed the Appellant that no requisition letter to fill the post of Inspector of Central Excise were sent to Staff Selection Commission directly and vacancies to be filled through SSC CGL were intimated to DGHRD when sought by the DGHRD. Dissatisfied with the CPIO's response, the Appellant approached the FAA. The FAA vide his order dated 27.07.2018 directed the CPIO to provide the information sought to the Appellant within 7 working date or inform her if the information was not available. In compliance with the order of the FAA, the CPIO and Dy. Commissioner, CCO, GST and CX, Mumbai vide its letter dated 02.08.2018 provided a response to the Appellant.Page 1 of 4
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. P. K. Patnaik, Assistant Commissioner through VC;
The Appellant remained absent during the hearing. The Respondent reiterated the submissions of the CPIO / FAA as also their written submission. The Commission was in receipt of a written submission from the Respondent dated 29.11.2019 wherein it was stated that the cadre controlling zone of CCA Mumbai was spread over the jurisdiction of entire Central Excise formation under Mumbai and Pune Zone including Nasik and Aurangabad. On receipt of the dossiers of selected candidates from the SSC they were allocated to the different Zones/ Commissionerates as per the existing vacancies at that time. The dossiers of the candidates are forwarded to the respective Zones/ Commissionerates to which they were posted to maintain their personal record and no dossier/ personal file of the candidate was kept in the office of the CCA. As a result of Cadre Restructuring in the CBEC, reorganization of the Central Excise, Service Tax Zones and Commissionerates had taken place on many occasions since 1991. Other than the cadre restructuring major tax reforms had taken place from July, 2017 on implementation of the GST regime. Therefore their office was unable to trace the record of each and every candidate nominated by SSC for the year 1991. However, efforts were being made to trace the records by corresponding with the concerned authorities. It was also noted that the Appellant was informed that the information sought by her fell in "C 10" category files which were not maintained beyond 10 years.
The 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 Vs. Aditya Bandopadhyay), 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."Page 2 of 4
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 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."
In the context of directing the Respondent to issue an affidavit to the effect that the information sought was not held and available with them, the Commission referred to the decision of the Hon'ble High Court of Delhi dated 30/10/2013 [W.P.(C)3381/2011- Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr.] wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the Page 3 of 4 information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
The Appellant was not present to contest the submissions of the Respondent or to substantiate her claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, no further intervention of the Commission is warranted in the matter. However, the CPIO is directed to issue an affidavit to the Appellant confirming the reply of the CPIO on oath within a period of 15 days from the date of receipt of this order as agreed. The Respondent was however, advised to endorse a copy of their written submission sent to the Commission to the Appellant, as well.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 03.12.2019 Page 4 of 4