Central Information Commission
S Y Savur vs Department Of Ex-Servicemen Welfare on 24 May, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No : CIC/DEXSW/A/2023/626080
Shri. S Y Savur .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
US (Pen/Legal) & CPIO, Dept. of Ex Servicemen
Welfare, Ministry of Defence, Room No. 225A,
B Wing, Sena Bhawan, New Delhi - 110011 ....प्रनर्वािीगण/Respondent
Date of Hearing : 16.05.2024
Date of Decision : 21.05.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 28.02.2023
CPIO replied on : 06.04.2023
First appeal filed on : 10.04.2023
First Appellate Authority's order : 25.05.2023
2nd Appeal/Complaint dated : 29.05.2023
Information sought:
The Appellant filed an RTI application dated 28.02.2023 seeking the following
information:
"(a) MoD Letter No. 1(1)/2019/D(Pen/Pol) Vol II dated 20.01.2023.
(b) Finance Division ID No. 10(01)/2019/Fin/Pen dated 16.01.2023,
(c) MoD ID No. 4(5)/2016-D(Pen/Legal) Vol IV dated 27.02.2023
Page 1 of 10
2. Please also provide photocopy of affidavit submitted by Secretary, ESW
subsequent to the order of the honourable Supreme Court dated 27.02.2023 in
MA No. 219 of 2023.
3. The matter is of Public interest as it impacts over 25 lakh Armed Forces
pensioners and Family pensioners."
The CPIO furnished a reply to the Appellant on 06.04.2023 stating as under:
"This has reference to your RTI Application bearing Registration Number
DEXSW/R/E/23/00215/1 dated 28.02.2023, received in this office on
08.03.2023.
1. As regards Paras 1(a) & (b) of the RTI application, your application is being
transferred to CPIO & US(Pension/Policy) as the information is more closely
related to D(Pension/Policy).
2. As regards Para 1 (c) of the RTI Application, the information sought by you
cannot be provided under section 8(1)(i) of the RTI Act, 2005 as the same
appears to have become a part of Cabinet papers now.
3. As regards Para 2 of the RTI Application, a copy of the affidavit submitted by
Secretary (ESW) subsequent to the order of the Hon'ble Supreme Court dated
27.02.2023 in MA No 219/2023 not to be provided at this stage being part of
the Cabinet Note."
Being dissatisfied, the appellant filed a First Appeal dated 10.04.2023. The FAA
vide its order dated 25.05.2023 upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with
the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Not present.
A written submission dated 06.05.2024 has been filed by the Appellant,
relevant extracts of which are reproduced below -
Page 2 of 10
"...9. Grounds for the prayer or relief
(a). Subsequent to the aforementioned PIB release.
(i) Revision of OROP-2 was completed vide MoD, DESW letter No. 1(1)/2019-
D(Pen/Pol)/Vol II dated 20.01.2023. The letter has not been produced/attached as it
is 248 pages in length.
(ii). Further PCDA (Pension) promulgated the sanction vide Circular No. 666 dated
20.01.2023 which is of 257 pages.
(iii). It is obvious that all three viz. PIB Release, MoD/DESW letter of 20.01.2023 and
PCDA (P) Circular No. 666 dated 20.01.2023, could only have been issued after the
Union Cabinet granted its approval.
(b). It is stated in RTI Act, 2005, Section 8 - Exemption from disclosure of information
(1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen, -
(i). cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other Officers; Provided that the decisions of Council of Ministers,
reasons thereof, and the material on the basis of which the decisions were taken shall
be made public after the decision has been taken, and the matter is complete, or
over; Provided further that those matters which come under the exemptions specified
in this section shall not be disclosed (emphasis supplied).
(c) OROP was first sanctioned and granted in 2014 and implemented in 2015. Deptt
of Ex-Servicemen Welfare provided information on assumptions for calculating OROP,
the Cabinet Secretariat forwarding the note for Cabinet Approval and copy of the
approval of the Prime Minister on 07.11.2015 in a reply (of 346 pages) in reply to
DEXSW/R/2018/50005 on 01.03.2018. Relevant Extracts are placed at Document 2
attached to ibid Second Appeal.
(f) Further, the following decisions and judgments are produced in support of this
Second Appeal on the subject of Disclosure of Cabinet Papers with reference to
refusal of the CPIO (Pen/Legal) in Paragraphs 3 & 4 of F No. 5(9)/2023-D(Pen/Legal)
dated 06.04.2023 downloaded from the RTI Online website on 10.04.2023 the
contention of the CPIO is not only not supported by decisions of the Hon'ble Central
Information Commission but would constitute Contempt of Court of the judgements
of the Hon'ble High Court of Delhi have been extracted/re-produced for ready
reference.
(i) Extract from Appeal No. CIC/WA/A/2008/00081: ―
"5. As per Section 8 of the Right to Information Act, 2005, a "Public Authority" is not
obliged to disclose Cabinet papers including records of deliberations of the Council of
Ministers, Secretaries and other Officers. Section 8 (1) sub-section (i) subjects this
general exemption in regard to Cabinet papers except for two provisos, which are as
under: -
Page 3 of 10
Provided that the decisions of Council of Ministers, the reasons thereof, and the
material on the basis of which the decisions were taken shall be made public after the
decision has been taken, and the matter is complete, or over. Provided further that
those matters which come under the exemptions specified in this section shall not be
disclosed.
6. From a plain reading of the above provisos, the following may be inferred: -
i). Cabinet papers, which include the records of deliberations of the Council of
Ministers, Secretaries and other officers shall be disclosed after the decision has been
taken and the matter is complete or over.
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8......Besides Sec 22 of the Act provides that the provisions of the RTI Act "shall have
effect notwithstanding anything inconsistent therewith contained in...any other law
for the time being in force" (italics supplied).
(ii) Extracts from No. CIC/SM/A/2013/001157SS of Shri B.R. Jogdankar v. Department
of Personnel & Training
CIC: provide the information as there is no 'stay order' insofar this case is concerned;
the public authority has not pleaded that the issue is still pending for consideration by
the Cabinet.
ORDER
The present appeal, filed by Shri B. R. Jogdankar against Department of Personnel & Training (DoPT), was taken up for hearing on 09.04.2014 when the Respondents were present through Shri M. Devaraj, Director and Shri S. Basu, Under Secretary. The Appellant was however not present.
2. The Appellant through an RTI application dated 07.03.2013 (filed with the CPIO, PMO) wanted to obtain certified copy of entire file dealing with the appointment of Shri Ranjit Sinha, IPS as Director, CBI.
3. The CPIO, PMO vide his letter dated 18.03.2013 transferred this application to the DoPT under section 6(3) of the RTI Act.
4. The CPIO, DoPT accordingly replied to this application vide his letter dated 02.04.2013 informing the Appellant that "ACC papers being part of Cabinet papers are exempted from disclosure under Section 8(1)(i) of the RTI Act, 2005."
5. Aggrieved by the CPIOs reply, the Appellant filed an appeal dated 23.04.2013 before the Appellate Authority which the Appellate Authority disposed of vide his order dated 01.07.2013 recording that ACC notes being part of Cabinet papers are exempted under section 8(1)(i) of the RTI Act. Further, disclosure of Cabinet papers under RTI Act is presently being contested by them in court.
6. The Appellant then filed the instant appeal before the Commission challenging the Respondents' decision.
Page 4 of 107. During the hearing, the Respondents inform the Commission that the matter related to disclosure of ACC papers is under consideration of Delhi High Court in UOI v P.D. Khandelwal. They inform that the CIC vide its decision in P D Khandelwal v. DoPT (CIC/WB/A/2008/00081) dated 23.10.2008 had allowed the disclosure of records related to ACC which they had challenged in Delhi High Court by way of writ petition. This writ petition was however dismissed by the single Bench of Delhi High Court vide order dated 30.11.2009. Therefore they moved an LPA in the matter seeking stay of the order dated 30.11.2009. The Division Bench of Delhi High Court accordingly vide an interim order dated 12.07.2010 stayed the operation of the order dated 30.11.2009 of its single Bench. They also bring to the Commission's notice another similar matter wherein 5 the Delhi High Court had followed the similar approach and stayed the operation of the impugned order allowing disclosure of records related to ACC.
8. Apparently there is no 'stay order' insofar this case is concerned. The Commission must also consider the rights of the appellant as a citizen to secure desired information unless disclosure of such information is exempted under the law. Section 8(1) (i) exempts disclosure of 'Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and Other Officers' but the first Proviso also clearly provides that the decisions of Council of Ministers, the regions thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over. The public authority before the Commission has not pleaded that the issue is still pending for consideration by the Cabinet. On the other hand it appears that the issue under consideration is no more pending rather it appears to be an issue, which is over. Under the circumstances, the public authority is obliged to disclose the information and the appellant is entitled to get the information. In this case is no other ground has been taken by the concerned public authority to deny the information.
9. The appeal is accordingly allowed and the public authority is directed to provide the requested information to the appellant" (italics supplied).
(iii) From judgment of the Hon'ble High Court in WP (C) 7304 of 2007 Union Of India Thr. Secretary, ... vs Central Information Commission on 30 November, 2009 & connected matters sub-clause Section 8(1)(i): -
20. The said sub-clause protects Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers. The first proviso however stipulates that the prohibition in respect of the decision of the Council of Ministers, the reasons thereof and the material on the basis of which decisions were taken shall be made public after the decision is taken and the matter is complete or over. Thus, a limited prohibition for a specified time is granted. Prohibition is not for an unlimited duration or infinite period but lasts till a decision is taken by the Council of Ministers and the matter is complete or over (emphasis supplied).Page 5 of 10
21......The legal position has been succulently expounded in the order dated 23.10.2008 passed by the CIC in Appeal No.CIC/WA/A/2008/00081: The Constitution of India, per se, did not include the term Cabinet, when it was drafted and later on adopted and enacted by the Constituent Assembly. The term Cabinet was, however, not unknown at the time when the Constitution was drafted. Lot of literature was available during that period about Cabinet, Cabinet System and Cabinet Government.
Sir Ivor Jennings in his Cabinet Government, stated that the Cabinet is the supreme directing authority. It has to decide policy matters. It is a policy formulating body. When the Cabinet has determined on policy, the appropriate Department executes it either by administrative action within the law, or by drafting a Bill to be submitted to Parliament so as to change the law. The Cabinet is a general controlling body. It neither desires, nor is able to deal with all the numerous details of the Government. It expects a Minister to take all decisions that are of political importance. Every Minister must, therefore, exercise his own discretion as to what matters arising in his department ought to receive Cabinet sanction. 3. In the Indian context, the Cabinet is an inner body within the Council of Ministers, which is responsible for formulating the policy of the Government. It is the Council of Ministers that is collectively responsible to the Lok Sabha. The Prime Minster heads the Council of Ministers and it is he, primus inter pares who determines which of the Ministers should be Members of the Cabinet.
4. It is a matter of common knowledge that the Council of Ministers consist of the Prime Minister, Cabinet Ministers, Ministers of State and the Civil Services. The 44th Amendment to the Constitution of India for the first time not only used the term Cabinet but also literally defined it. Clause 3 of Article 352, which was inserted by 44th Amendment, reads as under:- ―The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75 that such a Proclamation may be issued has been communicated to him in writing.
5. As per Section 8 of the Right to Information Act, 2005 a Public Authority is not obliged to disclose Cabinet papers including records of deliberations of the Council of Ministers, secretaries and other officers. Section 8(1) subjects this general exemption in regard to Cabinet papers to two provisos, which are as under:- Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over."
6. From a plain reading of the above provisos, the following may be inferred:-
i) Cabinet papers, which include the records of deliberations of the Council of Ministers, Secretaries and other officers shall be disclosed after the decision has been taken and the matter is complete or over.Page 6 of 10
ii) The matters which are otherwise exempted under Section 8 shall not be disclosed even after the decision has been taken and the matter is complete or over.
iii) Every decision of the Council of Ministers is a decision of the Cabinet as all Cabinet Ministers are also a part of the Council of Ministers. The Ministers of State are also a part of the Council of Ministers, but they are not Cabinet Ministers.
As we have observed above, the plea taken by the First Appellate Authority, the decision of the Council of Ministers are disclosable but Cabinet papers are not, is totally untenable. Every decision of the Council of Ministers is a decision of the Cabinet and, as such, all records concerning such decision or related thereto shall fall within the category of Cabinet papers and, as such, disclosable under Section 8(1) sub-section (i) after the decision is taken and the matter is complete, and over.
xxxx xxxx xxxx
26. The second proviso to Section 8 (1) (i) of the RTI Act explains and clarifies the first proviso. As held above, the first proviso removes the ban on disclosure of the material on the basis of which decisions were taken by the Council of Ministers, after the decision has been taken and the matter is complete or over. ....." (italics supplied).
(iv). From Delhi High Court judgment in WP (C) Nos. 14069 and 14084 of 2009 in Union Of India vs Pramod Kumar Jain on 19 November 2013: -
"3...........It is observed that Section 8 (1) (j) of the RTI Act clearly lays down that "Cabinet papers" including "records of deliberations of the Council of Ministers, Secretaries and other officers" are exempted from disclosure. There is no obligation on the part of the CPIO to give above mentioned information.
There is, however, a provision, under the section 8 (1) (i) which lays down that the "Decisions of Council of Ministers, the reasons thereof, and the material on the basis of 7 which the decision were taken "shall be made public" after "the decision has been taken, and the matter is complete, or over".
Obviously, "Cabinet Papers" have a wider meaning in the Act. It includes all the papers pertaining to deliberations of the various Committees of the Cabinet, apart from including the papers pertaining to "Records of deliberations of the Council of Ministers", "records of deliberations of the Secretaries" and "Records of deliberations of other officers". "Decisions of the council of Ministers" and "material on the basis of which the decisions were taken" are a just a sub-set of the larger set of documents encompassed under the larger term "Cabinet Papers".
Out of these types of documents only one set of documents is mandated to be made public after "the decision has been taken, and the matter is complete, or over." The use of the terms "Shall be made public" in the Act obviously makes it a duty for the Public Authorities to make public the "decisions of the Council of Ministers" and "material on the basis of which the decisions were taken." Naturally, there should be no occasion or need for any info-seeker to ask for this class of information, as these Page 7 of 10 are mandated, in any case, to be made public. But this stipulation (making them mandatorily public) is attracted, specifically, only in cases of "Decisions of Council of Ministers" and, definitely, not in respect of any other class of "Cabinet Papers."
xxxx xxxx xxxx
7. Mr. (Sanjiv Kumar) Dubey (advocate for Union of India) points out that in Clause (i), Cabinet papers include record of deliberations not only of the Council of Ministers but also of the Secretaries and other officers but the proviso does not apply to the deliberations of the Secretaries and other officers, meaning thereby that even after a decision has been implemented, the deliberations of the Secretaries and other officers cannot be disclosed. A careful perusal of the proviso would show that not only the decisions of the Council of Ministers and the reasons on which the said decisions are based but also the material on the basis of which the decisions are taken by the Council of Ministers are also required to be disclosed, once the decision has been implemented. Therefore, in case the deliberations of the Secretaries and/or other officers constitute the material which formed the basis for the decision of the Council of Ministers, the said deliberations of the Secretaries and/or other officers also cannot be withheld..
xxxx xxxx xxxx
9. For the reasons stated hereinabove, the writ petition is disposed of with a direction that the petitioner shall disclose the approval by ACC to the respondents in terms of the prayer made in the application submitted by them to the CPIO. The information to be made available to the respondents shall also include the reasons for the decision taken by the ACC. The material on the basis of which the said decision was taken, however, need not be disclosed, if it was not sought by the respondents. If, however, they seek such material, it cannot be withheld, after a decision taken by the Council of Ministers is implemented" (italics supplied).
10. Any other information relevant to the appeal:
(a) A copy of the Facilitation Memo No. Diary No. 625489/2023 is annexed to this Second Appeal.
(b) MoD/DESW had made available 346 pages similar information with regard to OROP-2014 in reply to online application No. DEXSW/R/2018/50005 on 01.03.2018. 8 Typed extracts of a few important pages were placed at Annexure G to Second Appeal in support of this appellant's statement.
(c) MoD/DESW may be directed to conduct training for its CPIOs and FAAs so that they properly understand RTI Act, 2005, decisions of the hon'ble CIC and Courts with respect to various Sections of the RTI Act, 2005 and are enabled to apply their minds instead of mechanical responses aimed at delaying or denying information to applicants/appellants.Page 8 of 10
Decision of hon'ble Information Commissioner (Ms Vanaja Sarna) regarding training of CPIOs of MoD is available in the public domain in article https://www.moneylife.in/article/cic-orders-basic-training-on-rti-for-public- informationofficers-of-defence-ministry/65725.html.
(d). Copies of this appeal (without annexures, which are copies of documents from the respondents' files), have been sent to the CPIO by email at us-pen- [email protected] and to the FAA at [email protected]
(e). It is expressly emphasised that this applicant/appellant did not seek any clarification nor ask any question(s) nor any opinion nor advice of/from CPIO unless it is part of the file noting of the information requested as per decision of the honourable Supreme Court in CBSE & Ors vs Aditya Bandopadhya and Others [Civil Appeal No. 6454 of 2011 [2011 (8) SCC 497].
(i) Para 4 and 6 of the Honourable High Court of Delhi at New Delhi in Writ Petition (Civil) No. 9355 of 2009 and CM No. 7144 of 2009 in Union of India vs R. S Khan on 07.10.2020.
(ii). Decision of Coordinate Bench of the honourable CIC in CIC/MPTRS/A/2017/109173 decided on 04.04.2018 in the matter of Nandlal B Pardeshi vs. CPIO and Sr. Asstt. Estate Manager (Unit 9-12), Mumbai Port Trust, etc.
(iii) Honourable Supreme Court in order by Justice S C Agrawal speaking for a Constitution Bench in S N Mukherjee v Union of India (103 (1990) 4 SCC 495) for public authorities to record reasons.
(iv). Para 35 et al in Civil Appeal No. 6454 of 2011 [2011 (8) SCC 497] in CBSE & Anr Vs Aditya Bandopadhyay & Others."
He further pleaded that information has been wrongly denied by the CPIO.
Decision:
Upon examining the facts and circumstances of the instant case, the Commission is of the opinion that blanket denial of information invoking Section 8(1)(i) of the RTI Act is not appropriate and the same appears to be legally flawed. Moreover, absence of the Respondent during the hearing to substantiate their arguments in favour of denial of information, the stand of Respondent is not acceptable. Under these circumstances, the Commission hereby directs the Respondent to re-examine the RTI application filed by the Appellant, in the light of the submissions made by the Appellant and to either explain the exemption invoked or to provide a point-wise updated information as permissible under the Act by obtaining the relevant information from the Page 9 of 10 actual custodian of information under Section 5 (4) of the RTI Act, if need be, within 4 weeks of receipt of this order.
First Appellate Authority to ensure compliance of the directions.
Nonetheless, the Commission admonished the conduct of the Respondent for their absence during the hearing despite prior intimation and sternly cautions him/her to be careful in future so as to avoid attracting penal action.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
Deputy Secretary and FAA, Dept. of Ex Servicemen Welfare, Room No. 135, B Wing, Sena Bhawan, New - Delhi 110011 Page 10 of 10 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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