Central Information Commission
Mehjabin Kousar vs Directorate Of Education on 11 July, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka,
New Delhi-110067
CIC/DIRED/A/2017/110640
CIC/DIRED/A/2017/129342
CIC/DIRED/A/2017/110636
Date of Hearing : 02.07.2018
Date of Decision : 02.07.2018
Appellant/Complainant : Mehjabin Kousar
Respondent : Public Information Officer/Assistant
Director of Education -
(East),Directorate of Education
(Govt. of NCT of Delhi ), RTI Section
Public Information Officer / Deputy
Director of Education -(Zone-1) ,
Directorate of Education (Govt. of
NCT Of Delhi ) Zone I
Through: Ms. Neha Shankar, Mr.
Rajesh Joshi and Mr. M K Sharma
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 03-12-2016
CPIO replied on : 07-12-2016
First Appeal filed on : 13-01-2017
First Appellate Order on : -
2nd Appeal/complaint received on : 16-02-2017
Information soughtand background of the case:
CIC/DIRED/A/2017/110640 Vide RTI application dated 03-12-2016, appellant sought information against four points, regarding the suspension of senior librarian in Laxmi Public School, X-20, Karkardooma Institutional Area, Delhi-110092. CPIO/ADE, District East vide letter dated 07.12.2016 forwarded RTI application to the APIO/DDE Zone 1, D-Block, Anand Vihar, Delhi 92. Having not received any information from PIO, the appellant filed first appeal and the same remained unheard. Feeling aggrieved as neither PIO Page 1 of 8 nor FAA furnished the information, the appellant approached the Commission.
CIC/DIRED/A/2017/110636 Vide RTI Application dated 22.11.2016, appellant sought information regarding the Initial appointment letter of appellant as librarian in Laxmi Public School, Details of Pay and allowances paid to appellant and copy of complete service book of appellant, Librarian in Laxmi Public School.
CPIO/ADE, District East vide letter dated 03.12.2016 forwarded RTI application to the APIO/DDE Zone 1, D-Block, Anand Vihar, Delhi 92. Having not received any information from PIO, the appellant filed first appeal and same remained unheard. Feeling aggrieved as neither PIO nor FAA furnished the information, the appellant approached the Commission.
CIC/DIRED/A/2017/129342 Vide RTI application dated 10.02.2017, the appellant sought information regarding application dated 19.01.2017 addressed to the Director of Education in connection with her suspension and requested to pay the subsistence Allowance. In this respect appellant sought information as under:-
1. Please furnish the copy of the action taken or proposed to be taken on my application dated 19.01.2017.
2. Please furnish copy of the reply, if any, received from Laxmi Public School, Delhi on my application dated 19.01.2017.
3. If no action has been taken on my application dated 19.01.2017, please inform the reasons thereof.
PIO/Deputy Director of Education vide letter dated 16.03.2017 stated that information sought cannot be provided as per Section 8(1)(h) of RTI Act, 2005 for query no. 1 & 2 and for query no. 3 CPIO replied that matter is under process.
Dissatisfied with the reply of CPIO, the appellant filed first appeal on 24-03- 2017. FA/RDE(E) vide letter dated 17.04.17 informed that information sought by the appellant has already been provided. Feeling aggrieved as denial of information, the appellant approached the Commission.
Facts emerging in the Course of Hearing:
Both parties are present. Appellant states she has been completely denied any information by the School about her suspension, service records, denial Page 2 of 8 of subsistence allowance etc. She reiterates that her queries in all of the above appeals relate to her suspension, stoppage of her subsistence and other allowances and Respondent states that since the School is a private unaided school, the service book is not held in custody of the Respondent. Fees structure, balance sheet, list of EWS students, staff statement etc are available, but staff related details are not held in their custody. Only on a complaint filed by appellant, they could take action against the school. Respondents have filed some submissions during the course of hearing which indicate the completely indifferent, apathetic and insensitive approach of the Respondents towards the grievance of the appellant.
Decision:
Upon hearing contentions of the parties and from perusal of records, the Commission finds that the School in question viz. Laxmi Public School, X- 20, Karkardooma Institutional Area, Delhi has acted completely arbitrarily and contrary to the settled legal position. It is a travesty of justice to deny an employee her own service records.
The Respondent- Directorate of Education has responded stating their usual helplessness.
As discussed in another similar case decided by this Bench titled Pratibha Sharma vs. O/o the Dy. Director of Education, [CIC/DIRED/A/2017/149374 & CIC/DIRED/A/2017/149371 dated 21.05.2018], the Commission has referred to the decision of a co-ordinate Bench of this Commission in the case of Rajwanti Agarawal vs. Dte. Of Education [CIC/AD/A/2013/000122-SA] had vide order dated 20.05.2014 held as follows:
"5. The Commission in a number of cases involving the respondent authority came across cases whereby they have shown their inability to procure information if the school involved was private unaided school. The respondent authority had submitted in those cases that the information was not provided to them under Rule 180 of the Delhi School Education Rules, 1973 and that they had no other source to collect the information or that it was not under their possession. The Commission finds it necessary to explain certain significant provisions of the Delhi School Education Act & Rules, 1973 so that the respondents understand that they were given enough regulatory power to secure the information from schools..."
Dealing with the typical plea of helplessness as put forth repeatedly by the Respondent-Dte. Of Education, the Commission has discussed the powers vested upon the Directorate of Education by the DSEAR Act, 1973. Some of the relevant provisions of the Delhi School Education Act, 1973 are as follows:
Page 3 of 8I) Section 4 of the DSEAR Act deals with Recognition of School :
"Under this section no school is provided recognition unless it submits application as to its adequate fund which includes the payment of salary and allowances to to its employees, its scheme of management etc and if the management committee fails to comply with the provisions of this section the school 's recognition can even be withdrawn."
Thus, it is noted that the Dte. Of Education is empowered to secure information from the recognized private unaided schools as to salaries, allowances, scheme of management and upon non furnishing of the requisite information about the funds, payment of salaries and allowances to its employees, the Dte. Of Education is empowered to withdraw recognition of school in question. II) Section 8 deals with the Terms and conditions of services of employees of recognized private schools in the following manner:
"(1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognized private schools. . . .
(2) Subject to any rule that may be made in this behalf, no employee of a recognized private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.
...........................................................................
Thus it is clear that even with regard to the terms and conditions of service of employees of recognized private school, the administrator/ director should have information about their recruitment, dismissal etc. The provisions of the Delhi Education School Education Rules, 1973 further provide the following scope of exercising the monitoring and supervisory role over the Schools:
III) Rule 44 DSEAR Act Notices of intention to open a new school:
"(1) With a view to enabling the Administrator to arrange for the planned development of school education in Delhi, every individual, association of individuals, society or trust, desiring to establish a new school, not being a minority school, shall, before establishing such new school, give an intimation in writing to the Administrator of his or their intention to establish such school.
(2) The intimation, referred to in sub--
rule (1), shall contain the following particulars, namely:--
(relevant Sub sections) Page 4 of 8
(e) the particulars including measurements of the building or other structure in which the school is proposed to be run;
...
........................;
(i) the proposed scales of pay for the head of the school and other teaching and non-teaching staff until the school is recognized under the Act,
(j)
(k) ...............
Thus it is evident that the Act is designed in such a manner so that the school authorities are under mandate to submit details like particulars relating to the school, including specifications of the building, management committee, recruitment procedure, proposed pay scale etc. before the Administrator while submitting plan for establishing a new school IV) Rule 49 Form and Manner of application for recognition:
"Every private school seeking recognition shall make an application, if Form I, to the appropriate authority, and every such application shall either be delivered to the appropriate authority through any individual or sent to that authority by registered post acknowledgment due."
Form I of the above rule contain detail as to the school properties, salary paid to the employees of the school etc. Furthermore, the Rule 112 deals with confidential reports in relation to heads of the schools and other employees of recognised, aided and unaided schools to be maintained by the Administrator.
(8) The confidential report in relation to the head of the school shall be kept in the safe custody of the chairman of the managing committee and the confidential reports in relation to the other employees of the school shall be kept in the safe custody of the head of the school."
The Rule 184 of the DSEAR Act mandates that the Managing Committee must offer facilities for inspection of the school and its account books, registers etc. The Rule 190 of the DSEAR Act deals with the Inspection and supervision of schools thus:
(1) The Director shall be responsible for the supervision and inspection of all recognised schools, whether aided or not.Page 5 of 8
Thus perusal of these provisions of the DSEAR Act clearly establishes that the Act has been designed with necessary mechanism such that the Department can exercise ample control and monitoring on the Schools by virtue of the types of documents required to be furnished by the schools to the public authority, which must contain the necessary information, which can be accessed by the citizen under RTI Act, 2005. A combined reading of Delhi School Education Act & Rules 1973 reveals that the Department of Education through its Director is empowered with definite inherent powers to ensure that the Directorate possesses significant amount of information about the schools in the form of the returns submitted to it. Hence, in the light of such legal and factual position, the Commission cannot accept the contentions of the Respondent- Dte. Of Education that the record pertaining to appointment, salary, ACR is not available with them, since they are bound by law to maintain and access the said records. And when a Citizen seeks a copy of any of the above documents which are available or can be accessed by the respondent authority, it is incumbent upon the Respondent-Dte. Of Education to share such information with the Citizens as per the RTI Act.
Proceeding further, the Commission observes that the School has not only erred in being unreasonable and dictatorial in its approach but the School management is also guilty of acting in contravention of dictum of the Hon'ble Supreme Court of India, as held in the case of Dev Dutt vs. Union of India, (2008) 8 SCC 725 decided on 12.05.2008 upholding the principles of natural justice thus:
".....19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
................................................................................................................... .....Page 6 of 8
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation .........................................................................................
40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible...."
In the light of the aforementioned celebrated decision of the Apex Court, it is concluded that denial of the information by the Respondent is wholly incorrect, illegal, arbitrary and even un-Constitutional since it infringes on the Fundamental Right of the appellant.
The Commission notes that despite being vested with requisite powers, the Directorate of Education, has failed in its administration and monitoring mechanism leading to such high handedness being demonstrated by the School. No action appears to have been initiated against the School for violating the law and conducting its operations in the most arbitrary fashion. Instead of attempting to address the grievance of the appellant, the Respondent has instead been denying any possibility of dissemination of information, much less any endeavour of accessing the information from the School in question. Such a mechanical and insensitive approach of the Public Authority viz. Dte. Of Education is clearly a deterrent in achieving the purpose of good governance and proper administration of education system in the State. Such an approach will eventually lead to the public authority denuding its own powers, and reduce itself from a governing and monitoring body to a rubber stamp office. The Respondent -Dte. Of Education should treat cases like this seriously and proactively and take necessary actions to ensure that the rule of law is not infringed by the high handedness of Schools.
Page 7 of 8In view of the above discussion, the Commission directs the Respondent to initiate necessary steps and ensure that the ACRs and Service Books as sought by the appellant, alongwith all of her queries as raised vide the three RTI applications dealt in the aforementioned cases, are made available to her within three weeks of receipt of this order.
The Respondent - PIO, Dte of Education is directed to submit the Compliance Report before 10.08.2018. It is made clear that non compliance of these directions shall attract penal action.
(Yashovardhan Azad) Information Commissioner 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.
(R.P. Grover) Designated Officer Page 8 of 8