Central Information Commission
Biplab Das vs Department Of Atomic Energy on 6 July, 2020
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.:- CIC/DOATE/A/2018/164117-BJ
Mr. Biplab Das
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO,
Chief Administrative Officer,
Department of Atomic Energy,
BARC Facilities, Kalpakkam -603102
...प्रनतवािीगण /Respondent
Date of Hearing : 06.07.2020
Date of Decision : 06.07.2020
Date of RTI application 06.08.2018
CPIO's response 31.08.2018
Date of the First Appeal 05.09.2018
First Appellate Authority's response 04.10.2018
Date of diarised receipt of Appeal by the Commission 24.10.2018
ORDER
FACTS The Appellant vide his RTI application sought information regarding the certified copies of his APARs for last nineteen years (1999-2000 to 2017-18) with the detailed evaluation, remarks, comments, noting of all the hierarchical stages those APARs had gone through. The CPIO, vide letter dated 31.08.2018, denied disclosure of information under Section 8(1)(j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 04.10.2018, upheld the CPIO's response.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 11
Appellant: Mr. Biplab Das through TC;
Respondent: Smt. Sheela Mohan, Chief Administrative Officer and CPIO through TC;
The Appellant reiterated the contents of the RTI application and stated that the information sought regarding the certified copies of his own APARs for last nineteen years (1999-2000 to 2017-18) with the detailed evaluation, remarks, comments, noting, was not provided to him. He further stated that there were several Supreme Court/High Courts/CIC rulings/decisions in this regard and therefore, the information sought should be provided to him. The Appellant further relied on his written submission. The Commission was in receipt of an email from the Appellant dated 1st July, 2020, wherein it was submitted that he had written to the Chief Administrative Officer to provide his APAR grading for the last six years. This had no relation with his RTI case. However, the Chief Administrative Officer (also CPIO) had linked the request with his RTI query and refused to give him the APAR Gradings for last six years. The CAO cum CPIO have denied to give him the final grading /final assessment sheet of APAR under the same section 8(1)(j) of RTI Act 2005, by stating that "... is not governed under the guidelines prescribed for communications for APAR Gradings..". A copy of the application and the reply by the Chief Administrative Officer was attached for kind reference.
In its reply, the Respondent reiterated the replies of the CPIO/FAA and stated that the information sought by the Appellant did not serve the larger public interest and therefore, the same was denied under Section 8(1)(j) of the RTI Act, 2005. Moreover, being a Scientific Organization there were several strategic works also going on simultaneously. In addition, it was informed that a Writ Petition 2268/2018 and also subsequent W.M.P. No. 2765/2018, filed by the Public Authority before the Hon'ble Madras High Court challenging the decisions of the CIC (in the cases CIC/RM/A/2014/902663-YA and CIC/SS/A/2014/000005-YA) to furnish copies of entire contents of APAR to Shri D. C. Pandey, an employee of their Unit is under trial and pending for Orders. The Respondent further relied on its written submissions. The Commission was in receipt of a written submission from the Respondent dated 25th June, 2020, wherein at the outset it was submitted that in the wake of prevalent lock down in force, due to the spread of COVID-19, in Chengalpattu District of Tamil Nadu under which their office is located, they requested to consider their written submissions for arriving at a decision. The Respondent further reiterated the contents of the RTI application, reply/order of the CPIO/FAA. In addition, it was informed that Mr. Biplab Das joined the Department in 1994 as a Technician/C [Level-4 in present Pay Matrix pattern], which is a lower rung Group C Post. Since then from time to time the official had been promoted to next suitable higher grades, on completion of required Minimum Eligible Period for consideration of promotion under Merit Promotion Scheme, a unique promotion scheme of Department of Atomic Energy because of which he could reach in 2019 the current position of Scientific Officer/F [Level 12 in Pay Matrix], a group A post equivalent to Deputy Secretary Rank. Therefore, the allegation made in the 2nd Appeal that the Appellant is a Scheduled Caste Officer that's why he was denied copies of APAR is false. Besides, it was submitted that a Writ Petition 2268/2018 and also subsequent W.M.P. No. 2765/2018, filed by the Public Authority before the Hon'ble Madras High Court challenging the decisions of the CIC (in the cases CIC/RM/A/2014/902663-YA and CIC/SS/A/2014/000005- YA) to furnish copies of entire contents of APAR to Shri D. C. Pandey, an employee of their Unit is under trial and pending for Orders.Page 2 of 11
Attention of the Respondent was drawn towards the decisions of the Superior Courts regarding the disclosure of an entry (whether it is poor, fair, average, good or very good) to the concerned public servant after redaction of the names of the reviewing, reporting and accepting officers., otherwise there is violation of the principle of fairness, which is the soul of natural justice.
In the context of disclosure of entry in the employee's own ACR, the Hon'ble Supreme Court of India in the decision of Dev Dutt vs Union of India & Ors on 12 May, 2008, Civil Appeal No. 7631 OF 2002, had held as under
"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.
20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."
The Commission also referred to the OM No. 21011/1/2005-Estt (A) (Pt-II) dated 14th May, 2009 of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) wherein the attention of the Ministries/Departments were drawn towards "the existing provisions in regard to preparation and maintenance of Annual Confidential Reports which inter-alia provide that only adverse remarks should be communicated to the officer reported upon for representation, if any. The Supreme Court has held in their judgement dated 12.5.2008 in the case of Dev Dutt vs Union of India (Civil Appeal No.7631 of 2002) that the object of writing the confidential report and making entries is to give an opportunity to the public servant to improve the performance. The 2nd Administrative Reforms Commission in their 10th Report has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of the PAR of the All India Services.
2. Keeping in view the above position, the matter regarding communication of entries in the ACRs in the case of Civil Services under the Government of India has been further reviewed and it was directed to covey the following decisions of the Government:-
(i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR).Page 3 of 11
(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment.
(iii) The Section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon.
(iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of discourse, the APAR will be treated as final.
(v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1st April 2009.
(vi) The competent authority for considering adverse remarks under the existing instructions may consider the representation, if necessary, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.
(vii) The competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the competent authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section."
In judgment of the Ld. Single Judge of the Hon'ble High Court of Delhi in R.K. Jain v. Union of India, W.P. 6756 of 2010 dated 08.12.2011 which was affirmed by the Hon'ble Supreme Court of India vide its aforementioned decision it was held as under:
"10. Therefore, except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the officer himself/herself."
Furthermore, the Hon'ble High Court of Delhi in the matter of THDC India Ltd. vs. R.S. Raturi, W.P. (C) No. 903 dated 08.07.2014 wherein it had been held as under:
12. However, this Court is of the view that the respondent is entitled to the contents of his own ACR after redaction of the names of the reviewing, reporting and accepting Page 4 of 11 officers. In fact, another coordinate Bench of this Court in THDC India Ltd. v. T. Chandra Biswas 199 (2013) DLT 284 has held as under:-
9. While the learned counsel for the respondent has contended before me that the respondent ought to have been supplied with the ACRs for the period 2004 to 2007, the respondent has not assailed that part of the order of the CIC. In my view, while the contention of the respondent has merit, which is that she cannot be denied information with regard to her own ACRs and that information cannot fall in the realm of any of the exclusionary provisions cited before me by the learned counsel for the petitioner i.e. Section 8(1)(d), (e) and (j), there is a procedural impediment, in as much as, there is no petition filed to assail that part of the order passed by the CIC.
9.1. In my view, the right to obtain her own ACRs inheres in the respondent which cannot be denied to the respondent under the provisions of Section 8 (1)(d), (e) and (j) of the RTI Act. The ACRs are meant to inform an employee as to the manner in which he has performed in the given period and the areas which require his attention, so that he may improve his performance qua his work.
9.2 That every entry in the ACR of an employee requires to be disclosed whether or not an executive instruction is issued in that behalf-is based on the premise that disclosure of the contents of ACR results in fairness in action and transparency in public administration. See Dev Dutt vs. Union of India 8 SCC 725 at page 732, paragraph 13;
page 733, paragraph 17; and at page 737, paragraphs 36, 37 and 38.
9.3 Mr. Malhotra sought to argue that, in Dev Dutt's case, the emphasis was in providing information with regard to gradings and not the narrative. Thus a submission cannot be accepted for more than one reason.
9.4 First, providing to an employee gradings without the narrative is like giving a conclusion in judicial/quasi-judicial or even an administrative order without providing the reasons which led to the conclusion. If the purpose of providing ACRs is to enable the employee to assess his performance and to judge for himself whether the person writing his ACR has made an objective assessment of his work, the access to the narrative which led to the grading is a must. [See State of U.P. Vs. Yamuna Shankar Misra and Anr., MANU/SC/0914/1997 : (1997) 4 SCC 7]. The narrative would fashion the decision of the employee as to whether he ought to challenge the grading set out in the ACR.
9.5 Second, the fact that provision of ACRs is a necessary concomitant of a transparent, fair and efficient administration is now recognized by the DOPT in its OM dated 14.05.2009. The fact that the OM is prospective would not, in my view, impinge upon the underlying principle the OM seeks to establish. The only caveat one would have to enter, is that, while providing the contents of the ACR the names of the Reviewing, Reporting and the Accepting Officer will have to be redacted.
13. Consequently, this Court is of the view that ACR grading/ratings as also the marks given to the candidates based on the said ACR grading/ratings and their interview marks contained in the DPC proceedings can be disclosed only to the concerned employee and not to any other employee as that would constitute third party information.
Page 5 of 119.9 On the other aspect with which the petitioner is aggrieved, I am not persuaded by the argument of the petitioner that the information with regard to the DPC proceedings would fall within the exception provided under Section 8(1)(d) of the RTI Act. In my view, information with regard to DPC proceedings cannot come within the ambit and scope of any of three exclusions i.e. commercial confidence, trade secret and intellectual property rights. Though, I am conscious of the fact that the information referred to in Section 8(1)(d) of the RTI Act is not confined to the three types of information referred to above - no amount of liberality adopted in that behalf would bring ACRs within its ambit. Section 8(1)(d) would, in my view, include such information which takes colour from the expression commercial confidence, trade secrets and intellectual property."
A reference can also be made to a recent decision of the Hon'ble High Court of Delhi in the matter of Mukesh Kumar vs. Chief Information Commission, CIC, W.P. (C) 10691/ 2016 dated 19.09.2017 wherein while allowing redaction of the names of interview panel members, a direction was given to disclose the break-up of interview marks awarded by them. A reference was also made in this matter to the earlier decision in the matter of THDC India Ltd. vs. R.S. Raturi, W.P. (C) No. 903 dated 08.07.2014. The relevant extracts of the decision are as under:
"10. In view of the above, the controversy essentially remained with regard to the viva voce marks awarded by the Interview Committee to other candidates. In this context, the CIC relying on the decision of this Court in THDC India Limited v. R.K. Raturi: W.P.(C) 903/2013, held that third party information could not be disclosed.
11. This Court is of the view that the decision in the case of THDC India Ltd. (supra) is not applicable to the information sought by the petitioner. In that case the question was regarding ACR gradings /ratings considered in DPC proceedings. It is in that context that this Court had held that ACR gradings and the marks awarded in DPC proceeding could only be disclosed to the concerned employee and not to any other employee as that would constitute third party information. This Court had further held that such information could be disclosed only if the CIC found that a larger public interest was involved and further after following the procedure prescribed under Section 11(1) and 19(4) of the Act.
15. Insofar as handwritten marks awarded by interview panel is concerned, those obviously from a part of the working papers of the interview panel and cannot be disclosed; disclosure of such handwritten record would also inevitably disclose the identity of the members of the interview panel, which as stated above cannot be disclosed to the petitioner."
It was also observed that as per Section 10 of the RTI Act, 2005 all such details relating to the names of the reviewing, reporting and accepting officers/ scientific/ strategic information, etc., could be severed from APARs to provide the remaining information. In this context, a reference was made to the decision of the Hon'ble High Court of Delhi in its decision dated 7/10/2013 [W.P. (C) 4079/2013 Union Public Service Commission vs. G S Sandhu] wherein while observing that denial of notings altogether was not justified directed to block the name, designation or any other indication which disclose or tend to disclose the identity of author, it was held as under:
Page 6 of 11"11. In my view, the apprehension of the petitioner that if the identity of the author of the file notings is revealed by his name, designation or in any other manner, there is a possibility of such an employee being targeted, harassed and even intimidated by the persons against whom an adverse noting is recorded by him on the file of UPSC, is fully justified. Though, ultimately it is for the members of the UPSC who are to accept or reject such notings, this can hardly be disputed that the notings do play a vital role in the advice which UPSC ultimately renders to the concerned department. Therefore, the person against whom an adverse advice is given may hold the employee of UPSC recording a note adverse to him on the file, responsible for an adverse advice given by UPSC against him and may, therefore, harass and sometime even harm such an employee/officer of UPSC, directly or indirectly. To this extent, the officers of UPSC need to be protected. However, the purpose can be fully achieved by blocking the name, designation or any other indication which would disclose or tend to disclose the identity of the author of the noting. Denying the notings altogether would not be justified when the intended objective can be fully achieved by adopting such safeguards."
Furthermore, the Hon'ble High Court of Delhi in the decision of KVS v. CIC and Anr. W.P.(C) 6892/2009 dated 15.09.2009 while upholding the decision of the Commission had held as under:
"The only objection raised by the petitioner against the supply of statement of witnesses was under Section 8(1)(g) of the Right to Information Act, 2005. The said provision stipulates that information disclosure of which would endanger life and physical safety of any person or identity, the source of information or assistance given in confidence for law enforcement and security purposes need not be supplied. The Information Commissioner keeping in mind Section 8(1)(g) of the Right to Information Act, 2005 has directed that the name of the witnesses need not be disclosed to the respondent No.2.
In fact the order passed by the Information Commissioner seeks to rely upon section 10, which permits withholding of certain portions of information by applying severability principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
In the context of providing the copy of note sheets, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. R.S. Khan WP (C) No. 9355 of 2009 and CM No. 7144 of 2009 dated 07.10.2010 wherein it was held as under:
"This Court concurs with the view expressed by the CIC that in the context of a government servant performing official functions and making notes on a file about the performance or conduct of another officer, such noting cannot be said to be given to the government pursuant to a 'fiduciary relationship' with the government within the meaning of Section 8(1)(e) of RTI Act. The Union of India cannot rely upon Section 8(1)(e) of RTI Act, to deny information to the Petitioner in the present case. This Court finds no merits in any of the apprehensions expressed by the CPIO in the order rejecting the Respondent's application with reference to either Section 8(1)(g) of RTI Act. The disclosure of information sought by the Petitioner can hardly endanger the life or physical safety of any person. There must be some basis to invoke these provisions. It cannot be a mere apprehension. As regards Section 8(1)(j) of RTI Act, there is no Page 7 of 11 question that nothings made in the files by government servants in discharge of their official functions is definitely a public activity and concerns the larger public interest. In the present case, Section 8(1)(j) of RTI Act was wrongly invoked by the CPIO and by the Appellate Authority to deny information to the Respondent."
Furthermore, in a recent decision the Hon'ble High Court of Delhi in its order dated 12.02.2018 in W.P.(C) 7845/2013 (Paras Nath Singh Vs. Union of India) had held as under:
10. The contention that notings made by a junior officer for use by his superiors is third party information, which requires compliance of Section 11 of the Act, is unmerited. Any noting made in the official records of the Government/Public Authority is information belonging to the concerned Government/Public Authority. The question whether the information relates to a third party is to be determined by the nature of the information and not its source. The Government is not a natural person and all information contained in the official records of the Government / public authority is generated by individuals (whether employed with the Government or not) or other entities. Thus, the reasoning, that the notings or information generated by an employee during the course of his employment is his information and thus has to be treated as relating to a third party, is flawed.
11. Section 8 of the Act provides for exemption from disclosure of certain information and none of the provisions of Section 8 provide for blanket exemption that entitles the respondent to withhold all notings on a file.
The Commission observed that the provisions of the RTI Act, 2005 and various judgments on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non- disclosure."
Page 8 of 11The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005.
While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
Page 9 of 11DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the judgments of the Superior Courts cited above as also the OM No. 21011/1/2005- Estt (A) (Pt-II) dated 14th May, 2009 of the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the Commission directed the CPIO to re-examine the RTI application of the Appellant considering the decisions of the Superior Courts and furnish the information as sought by the Appellant in his own case following the procedure laid down under Section 10 of the RTI Act, 2005, within a period of 30 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 Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed with the above direction.
(The Order will be posted on the website of the Commission).
Bimal Julka (नबमल जुल्का) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) K.L. Das (के .एल.िास) Dy. Registrar (उप-पंजीयक) 011-26186535/ [email protected] दिनांक / Date: 06.07.2020 Page 10 of 11 Copy to:-
1. Facility Director, BARCF (K) and Appellate Authority, Department of Atomic Energy, BARC Facilities, Kalpakkam -603102 Page 11 of 11