Central Information Commission
Prodyut Kumar Banerjee vs Ministry Of Defence on 27 January, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File Nos. : CIC/DODEF/A/2022/664014; CIC/INAVY/A/2022/668133;
CIC/INAVY/A/2023/600905; CIC/INAVY/A/2023/609479;
CIC/INAVY/A/2023/609917; CIC/DODEF/A/2023/618948;
CIC/INAVY/A/2023/621184 and CIC/INAVY/A/2023/624637 (Eight cases)
PRODYUT KUMAR BANERJEE .....अपीलकर्ाग /Appellant
VERSUS
बनाम
1. PIO,
Integrated Hqrs., Ministry of
Defence Navy, New Delhi -110011
2. PIO,
IHQ MoD, Navy, C Wing, Sena
Bhawan, New Delhi - 110011 ....प्रनर्वािीगण /Respondents
Date of Hearing : 23-01-2024
Date of Decision : 27-01-2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
The above-mentioned second appeals are clubbed together as the Appellant
is common and subject-matter is similar in nature and hence are being
disposed of through a common order.
Relevant facts emerging from appeal (s):
RTI application filed on : 02-06-2022, 01-07-2022, 14-07-2022, 18-
06-2022, 16-06-2022, 15-07-2022, 25-09-
2022
CPIO replied on : 24-06-2022, 30-08-2022, 06-09-2022, 20-
1
07-2022, 18-08-2022, 05-09-2022, 27-04-
2023
First appeal filed on : 06-07-2022, 25-09-2022, 26-09-2022, 26-
08-2022, 27-08-2022, 23-09-2022, 24-09-
2022, 14-04-2023
First Appellate Authority's order : 23-08-2022, 21-11-2022, 09-11-2022, 10-
11-2022, 30-12-2022
2nd Appeal/Complaint dated : 29-11-2022, 20-12-2022, 05-01-2023, 19-
02-2023, 21-02-2023, 13-04-2023, 17-04-
2023, 20-05-2023
Information sought:
CIC/DODEF/A/2022/664014 The Appellant filed an RTI application dated 02.06.2022 seeking the following information:
"1. Based on the CPIO (Navy) reply vide DL/0812/9492 dated 21 March 2022 to my RTI Application DMAND/R/E/22/00355 dated 27 Feb 2022, I had submitted my First Appeal DMAND/A/E/22/00227 dated 23 April 2022 requesting for amplified information directly related to the original issue raised. The FAA in Para 2 of his reply vide DL/0812/9492/1st Appeal dated 23 May 2022 informed me that IN THE LIGHT OF FOREGOING CIC ORDER, ADDITIONAL INFORMATION CANNOT BE PROVIDED AT APPEAL STAGE. Consequently, a fresh RTI Application is raised.
2. What is the policy of the Indian Navy in the ACR System of officers related to the setting aside of the Entire Pen Picture (and consequently the entire Report in an ACR including Numerical Gradings by the Reporting Officers related to that specific Pen Picture) by the Reviewing Officer (RO) and subsequent Reporting Officers up the ACR chain? Do you have a stated/documented policy, please share the details including the documents?
3. What is the Navy policy/Guidelines/MoD Orders regarding specifically setting aside of the Numerical Gradings that are related and integral to the Pen Picture written by the RO in a case where the ENTIRE PEN PICTURE by the same RO has been set aside by the Order of a Court/Tribunal, similar to what is seen in my case - vide Para 19 of AFT, PB Order dated 14.09.2017 in respect of OA 392/2014? Do you have a stated/documented policy, please share the details including the documents?2
4. Were the Numerical Gradings by the RD in my Sea Command ACR of 2007-08 set aside once the ENTIRE PEN PICTURE by the RO was set aside by the above AFT Order? On what date was the Numerical Gradings by the RO officially struck off from my above ACR by the Navy, and what notification was made in my Service Records? Please provide a copy of such endorsement made by the Navy with date. If the Numerical Gradings directly related to this ENTIRE PEN PICTURE by RO that was set aside by Hon'ble AFT, were not struck off, why was it not done? What was the basis, rationality? Do you have a stated/ documented policy, please share the details including the documents?
5. What is the Navy policy/Guidelines/MoD Orders regarding conduct of a Review Promotion Board wherein the entire PEN PICTURE by the RO has been set aside by the Order of a Court as is the case above, and what Numerical Gradings of RO are then considered to arrive at the Finalised ACR Marks for that Report, when the RO Pen Picture has been completely removed officially from an ACR? Do you have a stated/ documented policy, please share the details including the documents?"
The CPIO furnished a pointwise reply to the Appellant on 24.06.2022 stating as under:
"1. No information has been sought by you.
2. There is no such policy in the ACR system of officers of Indian Navy.
3. There is no policy/ guidelines to this effect.
4. Direction of the Hon'ble AFT (PB), New Delhi for setting aside the entire pen picture of RO has been fully complied with.
5. There is no policy guidelines regarding conduct of a Review Promotion Board, wherein the entire pen picture by the Reviewing Officer has been set aside."
Being dissatisfied, the appellant filed a First Appeal dated 06.07.2022. The FAA vide its order dated 23.08.2022, upheld the reply of the CPIO, held as under:
"Your appeal ibid has been examined, wherein it has been observed that all relevant information has already been provided to you on 24th June 2022. Hence, the earlier information provided in this regard is maintained."3
CIC/INAVY/A/2022/668133 The Appellant filed an RTI application dated 01.07.2022 seeking the following information:
"1. The Armed Forces Tribunal, Principal Bench in its Order of 14.09.2017 in OA 392/2014 had stated in Para 19-IN VIEW OF ABOVE, WE SET ASIDE THE ENTIRE PEN PICTURE ENDORSED BY THE REVIEWING OFFICER IN THE ANNUAL CONFIDENTIAL REPORT FOR THE PERIOD 10.12.2007 TO 28.11.2008 BEING AN ADVERSE REPORT AND DIRECT THAT THE APPLICANT BE RECONSIDERED FOR PROMOTION TO THE RANK OF REAR ADMIRAL WITH HIS CHANGED PROFILE WITHIN A PERIOD OF THREE MONTHS. CPIO (Navy) confirmed vide DL/0812/9492 dated 21 Mar 22 that the entire Pen Picture by the RO was expunged on approval of competent authority on 20 Oct 17 by pasting over a blank sheet in my above ACR with suitable endorsement quoting AFT order.
2. Please provide following information regarding the fresh Promotion Board (PB) in compliance with above AFT Order:-
A. When was the PB held, who were the Members, and who approved this PB Results with date? Was my PROFILE CHANGED as ordered by AFT vide Para 19 of above Order done and incorporated in my ACR Dossier/NGs for subsequent ACRs, for year 2007-08 and onwards. Subsequently, were these put up to the PB and considered by PB? Provide copies of all changes made to my Profile.
B. In the absence of EXPUNGED ROS PEN PICTURE, did the PB observe and endorse the nullification of Numerical Gradings (NGS) of RO in my ACR that were then made non-existent due AFT Order?
C. With SRD/CNS having written in his portion of my ACR GOING BY THE C-IN-CS (RO) JUDGEMENTS, THE OFFICER DESERVES 7.5/7.6, which clearly shows his endorsement was based on and as a direct consequence of Pen Picture written by RO, in the absence of RO Report that was already a nullity due to AFT Order, did the PB endorse nullification of SRO/CNS Remarks and his NGs?
D. When were these PB proceedings sent to MoD for approval? Were the above findings part of the file sent to MoD, who approved in MOD and when?
E. What was my Merit Position before and after the exercise of reconsideration of promotion to Rear Admiral in PB 01 of 2012, 2013 and 2014 in compliance of AFT Order?
4F. Was all the above information along with the pasted portion of Report by RO in my above ACR, along with my CHANGED PROFILE from 2007-08 presented to Supreme Court in end January 2018 when the Bench asked Navy Counsel for my entire Dossier to be produced in my Civil Appeal No. 1843 of 2018? When was my Dossier presented to SC Bench and by whom?
3. Please provide copies of the entire file notings of above PB proceedings including its recommendation to MoD with dates. Also, provide the file notings including and up to informing the applicant (Self) of the fresh PB results held on AFT Orders.
4. Please provide copies of entire file notings including internal notes of NHQ in preparation and presenting my ACR Dossier for examination by SC Bench in end Jan 2018."
The CPIO furnished a point-wise reply to the Appellant on 30.08.2022 stating as under:
"1. No information has been sought by you.
2 (a). PB was held on 27 Oct 17 and PB results was approved by the MoD on 29 Dec 17. Further, seeking clarification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005. Also, the information sought contains details of other officers considered by PB. Hence, the information is exempted under section 8 (1) (j) of the RTI Act, 2005.
2 {(b) & (c)}. Seeking clarification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005.
2 (d). Seeking clarification and justification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005. However, it is intimated that the proposal was sent to MoD on 01 Nov 17. Approval of MoD was communicated on 29 Dec 17. Further, information regarding who approved in MoD is exempted from disclosure under section 8 (1) (j) of the RTI Act, 2005.
2 (e), (3) & (4). The information sought contains details of other officers considered by PB. Hence, the information is exempted under section 8 (1) (j) of the RTI Act, 2005.
2 (f). Seeking clarification and justification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005. Further, the information is exempted under section 8 (1) (j) of the RTI Act, 2005."5
Being dissatisfied, the appellant filed a First Appeal dated 25.09.2022. The FAA vide its order dated 21.11.2022, held as under:
"It is intimated that reply of the CPIO (N) was examined by me and I find that relevant information has been provided to you. The information which has not been provided is rightly denied under Section 8 (1) (j) of the RTI Act, 2005 as it is found that disclosure of sought information has no public interest. On the contrary it would lead to unwarranted invasions of the privacy of personnel discharging their duties at relevant time in the public domain. In this regard, the Hon'ble CIC order CIC/INAVY/A/2021/644302 dated 10 Nov 22 (Encl 1) is relevant. Hence, I maintain the reply forwarded to you by CPIO (N) vide letter DL/0812/9492/VI dated 30 Aug 22."
CIC/INAVY/A/2023/600905 The Appellant filed an RTI application dated 14.07.2022 seeking the following information:
"1. To a query on stated policy/sharing documents related to conduct of Review Promotion Board for promotion to Rear Admirals, the CPIO (Navy) vide DL/0812/9492/Il dated 24.06.2022 replied that THERE IS NO POLICY GUIDELINES REGARDING CONDUCT OF A REVIEW PROMOTION BOARD, WHEREIN THE ENTIRE PEN PICTURE BY THE REVIEWING OFFICER HAS BEEN SET ASIDE. Please reply to the following: -
A. Is it true that the Review Promotion Board in my case, conducted in compliance with Para 19 of AFT Order dated 14.09.2017 in OA 392/2014 to reconsider for promotion, was conducted in an arbitrary manner, especially in the absence of any Guidelines on the subject as stated by the CPIO (Navy) in his above reply?
B. Once the ENTIRE PEN PICTURE by the Reviewing Officer in my Sea Command ACR of 2007-2008 was blanked off on approval of Competent Authority on 20 Oct 2017 in compliance with above AFT Order, what Numerical Gradings of RO were then considered in Review Promotion Board in end 2017 to arrive at the Finalised ACR Marks for that Report, when the Entire Pen Picture of RO was completely removed officially from that ACR?6
C. What Numerical Gradings of PQ and PP by the SRO/NSRO/CNS were considered in above ACR by the Review Promotion Board to arrive at the Finalised ACR Marks for that Report?"
The CPIO furnished a point-wise reply to the Appellant on 06.09.2022 stating as under:
"1 (A): Seeking reason and explanation does not fall under the definition of 'Information' in accordance with Section 2 (f) of the RTI Act, 2005.
1 (B) & (C): Numerical gradings of RO/ SRO/NSRO/ CNS cannot be disclosed as it is part of ACR which is exempted from disclosure in terms of observation of the Hon'ble Supreme Court in the case of Dev Dutt. Also, the information is exempted under section 8 (1) (j) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 26.09.2022. The FAA vide its order dated 21.11.2022, held as under:
"It is intimated that reply of the CPIO (N) was examined by me and I find that relevant information has been provided to you. The information which has not been provided are rightly denied under Section 8 (1) (j) of the RTI Act, 2005 as it is found that disclosure of sought information has no public interest. On contrary it would lead to unwarranted invasions of the privacy of personal discharging their duties at relevant time in the public domain. In this regard, the Hon'ble CIC order CIC/INAVY/A/2021/644302 dated 10 Nov 22 (Encl 1) is relevant. Hence, I maintain the reply forwarded to you by CPIO (N) vide letter DL/0812/9492/IX dated 06 Sep 22."
CIC/INAVY/A/2023/609479 The Appellant filed an RTI application dated 18.06.2022 seeking the following information:
"1. Very severe Adverse Remarks inserted by the Reviewing Officer (RO) in my 2008 Sea Command ACR Pen Picture that remained uncommunicated to me in contravention of Navy Rules, were finally set aside completely being an ADVERSE REPORT by Para 19 of AFT, PB Order in my OA 392/2014. As follow up of AFT Order, the Competent Authority of Navy approved setting aside of the 7 ENTIRE PEN PICTURE in my ACR by the Reviewing Officer on 20 Oct 2017 and accordingly, the Pen Picture by the RO was expunged by pasting over a blank sheet quoting AFT Order, as quoted in reply from CPIO (Navy) vide DL/0812/9492 dated 21 March 2022. From the above, it is unambiguously clear that the huge illegality committed by the RO whilst writing my above ACR not only remained hidden that eventually destroyed my career, the same was ostensibly covered up by few senior officers of the Navy from Feb 2009 till the Truth came out vide above AFT Order dated 14.09.2017.
2. Please provide following information pertaining to the internal justice system of Navy under RACAB whilst handling my two ROGs (first Non-Stat & then Statutory) vide my Letters 242/PKB/P&C dated 22 Aug 2012 and 18 Oct 2013 respectively submitted against non-promotion to rank of Rear Admiral:
A. The composition of RACAB in both cases including name of President and its members who disposed off my above two ROGS. Was it the same RACAB or two different RACABs?
B. Did any of the RACABS handling the two ROGs point out the huge illegality of uncommunicated Adverse Remarks in my 2008 Sea Command ACR resident in my Dossier in their findings to the Personnel Branch, as also in their Report to the then CNS? What were their observations? Please provide copies of the same C. Provide the copies of the specific findings by RACAB on File to the Personnel Branch whilst disposing off my two ROGS.
D. Did the RACAB mention to Personnel Branch and CNS that injustice has been done to the officer and that it should be corrected? Was my fresh Merit position in my Batch on corrected ACR marks worked out thereafter?
E. Were these severe Adverse Remarks that remained uncommunicated, brought to the knowledge of the Promotion Board 01/2012 and PB 01/2013. If yes, what were the PB observations? Share copy of observations by the PBs. If No, why were these huge illegalities of one of the candidate officers not shared with members of the Promotion Board? How was the PB held in fair manner with such illegalities in Records ostensibly hidden from the PB Members? Share the Navy Rules on the subject, if any. And who were the members of these two PBs? Who were the ACOP (HRD) and COP at the time these two PBs in 2012 and 2013 were held?8
F. Please provide Names and tenure duration of officers holding appointments of PDOP, ACOP (HRD) and COP from Jan 2009 till May 2022."
The CPIO furnished a point-wise reply to the Appellant on 20.07.2022 stating as under:
"1. No information has been sought by you.
2-(a) & (f). The information sought by you is exempted under section 8 (1) (j) of the RTI Act, 2005.
2 -(b) & (d). Seeking clarification/ justification does not fall under the definition of 'information' as per Section 2 (f) of the RTI Act, 2005.
2- (c). The information sought by you is exempted under section 8 (1) (e) & 8 (1) (j) of the RTI Act, 2005.
2 - (e). Seeking clarification/ justification does not fall under the definition of 'information' as per Section 2 (f) of the RTI Act, 2005. Further, the information sought by you is exempted under section 8 (1) (j) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 26.08.2022. The FAA vide its order dated 09.11.2022, held as under:
"I have examined your RTI application and response of CPIO (N) dated 20 Jul 22. Your appeal to FAA dated 20 Jul 22 was also disposed off. As you have rightly clarified that you have exhausted your first appeal option with the First Appellate Authority. Therefore, this appeal is beyond the scope of the RTI Act, 2005. The present appeal is liable to be disposed as not admissible under the RTI Act, 2005.
Notwithstanding the foregoing, it is intimated that reply of the CPIO (N) was examined by me and I find that relevant information has been provided to you. The information which has not been provided are rightly denied under Section 8 (1) (j) of the RTI Act, 2005 as it is found that disclosure of sought information has no public interest. On contrary it would lead to unwarranted invasions of the privacy of personal discharging their duties at relevant time in a public domain. Hence, I maintain the reply forwarded to you by CPIO (N) vide letter DL/0812/9492/III dated 20 Jul 22."9
CIC/INAVY/A/2023/609917 The Appellant filed an RTI application dated 16.06.2022 seeking the following information:
"1. What is the Policy/Guidelines in the Indian Navy in the ACR System of officers to deal with moderation of Reports and Numerical Gradings of ACRs of Captains and above rank officers by the CNS in his capacity as the SRO or NSRO depending on the chain of reporting? Do you have a stated/documented policy, please share the details including all the policy documents and amendments since 2004?
2. Has the Navy published PARB (Performance Appraisal Review Board) Guiding Principles, Revised on 01 May 2007, for information of naval officers?
3. Does the CNS follow PARB Guidelines for moderation of Numerical Gradings of officers of the rank of Commodores and above?
4. In the ACRs of Commodores and above where the CNS is the SRO, does the CNS give Numerical Grading markings in the SRO Column provided in the ACR and subsequently at a later stage moderate the same?
5. Is it true that CNS is privy to all Reports of all 10s and ROS including the Pen Pictures and Numerical Gradings in respect of all officers of the rank of Commodores and above, therefore his moderated Numerical Gradings reflect the same?
6. In how many cases pertaining to ACRs of officers of the rank of Captains and above in the last 19 years has a Court of Law ordered the Navy to expunge Adverse Remarks not communicated by the Navy to the officer concerned? Please furnish Ranks and Names of such officers along with the Orders of the Court.
7. Since Adverse Remarks of 10/RO/SRO have an adverse bearing on the Moderated Numerical Grading given by the CNS, has the Navy ever factored in this anomaly while considering the affected officers for promotion based on relative merit which again is based on Moderated Numerical Grading given by the CNS? Do you have a stated/ documented policy on this subject, please share the details including all the policy documents and amendments in last 19 years till date?10
8. Has the Navy ever intimated to any of the IO/RO/SRO/CNS as to how their uncommunicated Adverse Remarks have ruined the careers of officers? Please cite instances with details of such cases.
9. Has the Navy published any document for information of the officers as to what constitutes Adverse Remarks based on inputs/clarifications given in Court Orders?
10. Is Naval Headquarters following the civilian process for dealing with Adverse Remarks in Reports of IO, RO, SRO and/or NSRO? If yes, please share the details including the documents. If no, please share the details including all the documents and amendments since 2003 for dealing with the Adverse Remarks written by IO, RO, SRO and/or NSRO in the ACR of officers."
The CPIO furnished a point-wise reply to the Appellant on 20.07.2022 stating as under:
"1. Copy of corrigendum No. 1 of Navy Instruction 01/2000 is placed at Encl 1.
2. In compliance of Navy Instruction 01/2000, PARB guiding Principles at dated 01 May 07 has been laid down for internal use and has not been published.
3. CNS reviews the reports of all Naval officers of the rank of Capt and above in terms of Navy Instruction 01/2000.
4, 5, 7 & 8. The information sought by you does not fall within the purview of under section 2 (f) of the RTI Act, 2005.
6. The information sought by you is exempted under section 8 (1) (e) & 8 (1) (j) of the RTI Act, 2005.
9 & 10. Para 410 of Navy Order 05/05 and Para 411 of Navy Order (Spl) 02/15 deal with 'Adverse Traits', placed at Encl 2."
Being dissatisfied, the appellant filed a First Appeal dated 27.08.2022. The FAA vide its order dated 10.11.2022, held as under:
"I have examined your RTI application and am replying to you by CPIO (N) dated 20 Jul 22. Your appeal to FAA dated 20 Jul 22 was also disposed off. As you have rightly clarified that you have exhausted your 11 first appeal option with the First Appellate Authority. Therefore, this appeal is beyond the scope of the RTI Act, 2005. The present appeal is liable to be disposed as not admissible under the RTI Act, 2005.
Notwithstanding the foregoing, it is intimated that reply of the CPIO (N) was examined by me and I find that relevant information has been provided to you. The information which has not been provided are denied under Section 8 (1) (j) of the RTI Act, 2005 as it is found that disclosure of sought information has no public interest. On contrary it would lead to unwarranted invasions of the privacy of personal discharging their duties at relevant time in a public domain. Hence, I maintain the reply forwarded to you by CPIO (N) vide letter DL/0812/9492/IV dated 20 Jul
22."
CIC/DODEF/A/2023/618948 The Appellant filed an RTI application dated 01.07.2022 seeking the following information:
"1. is the Ministry of Defence aware that the Navy uses PARB (PERFORMANCE APPRAISAL REVIEW BOARD) GUIDING PRINCIPLES Document (REVISED ON 01. MAY 2007) issued by the Directorate of Personnel, IHQ MOD (Navy) for moderation of ACRs of officers of the Indian Navy?
2. Did the Ministry of Defence approve the PARB (PERFORMANCE APPRAISAL REVIEW BOARD) GUIDING PRINCIPLES Document (REVISED ON 01 MAY 2007) issued by the Directorate of Personnel, IHQ MOD (Navy)? If yes, when was the approval accorded by MoD, please share details of File, Letter Numbers with Date?
3. If the above PARB document has not been approved by the Ministry of Defence, then how is Personnel Branch using the document for moderation of Annual Confidential Reports/other CRs in respect of officers of the Indian Navy?"
The CPIO furnished a point-wise reply to the Appellant on 18.08.2022 stating as under:
"1 & 2. In compliance of NI 01/2000 issued by MoD, which stipulates that "CNS will lay down detailed guidelines to be followed for this purpose", PARB guidelines has been issued after approval of CNS. Hence, the 12 guidelines issued by IHQ MoD (N) has the mandate of MoD in terms of NI 01/2000.
3. Seeking clarification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 23.09.2022. The FAA vide its order dated 30.12.2022, upheld the reply of the CPIO.
CIC/INAVY/A/2023/621184 The Appellant filed an RTI application dated 15.07.2022 seeking the following information:
"1. Amongst the two parts written by each of the Reporting Officers in the ACR Form IN 475-A for Captains and Commodores, what is the weightage assigned to the Numerical Gradings (NGS) under Performance and Qualities (PQ) and Promotion Potential (PP), and that to the Pen Picture endorsed by the IO, RO, SRO and NSRO? These are filled up in separate Sections of ACR form by each of the Reporting Officers. Please indicate the weightage assigned separately.
2. Is the Order of Merit (OOM) of an officer in his Batch worked out on the basis of the NGs of PQ and PP written by the IO and RO in Sections II, IV and V of above ACR Form AND ALONG WITH, on the basis of the NGs of PQ and PP written by the SRO in Section VI and NSRO in Section VII of the ACR Form- AND NOT ON THE BASIS OF PEN PICTURE BY THE ABOVE REPORTING OFFICERS IN THE CHAIN (as Pen Picture in plain English language simply cannot be quantified for any meaningful comparison of Merit position amongst officers in a Batch)?
3. From the above, is it correct to conclude that only the NGs endorsed by the Reporting Officers in an ACR is used to arrive at Average ACR Marks for a period that alone decides the merit position of an officer in his Batch?
4. Can any quantitative value be assigned separately to a Pen Picture in isolation, written by a Reporting Officer in an ACR, in the Appraisal System for officers in the Indian Navy?
5. Is it therefore correct to conclude that it is the NGs that decide OOM of an officer in his Batch and not the Pen Picture in any ACR?13
6. What is the weightage of marks endorsed by each Reporting Officer (indicate for IO, RO, SRO and NSRO separately) that is considered to arrive at the final PQ and PP marks in an ACR, which is lastly used to arrive at the Final ACR Marks for that ACR?
7. What are the Rules/ Guidelines for giving weightage to NGs of IO, RO, SRO for determining Final Numerical Grading of officers in ACR System of Navy? Please provide the copies of all such Orders.
8. If no Rules have been made, then does it mean that NGs of IO, RO, and SRO (SRO other than CNS) have no value?
9. Is it a fact that the Final ACR Marks in a particular ACR are the PQ and PP Marks written by the NSRO/CNS in Section VII of ACR Form IN 475-A for Captains and Commodores of Indian Navy? Does that also mean that there is no Weightage assigned to the earlier Reporting Officers in the ACR chain below the CNS (who is the SRO or the NSRO for a Captain or Commodore depending on the Chain of Reporting)?
10. How does CNS as the NSRO evaluate Numerical Gradings in ACR of officers? Is it feedback based or arbitrary? Please elaborate."
The CPIO furnished a pointwise reply to the Appellant on 05.09.2022 stating as under:
"1. There is no rule/ guidelines to assign separate weightage for PP/PQ in respect of IO, RO, and SRO. Hence, no information can be provided being non-existent.
2 to 5, 8 & 10. Seeking reason and explanation does not fall under the definition of 'Information' as per section 2 (f) of the RTI Act, 2005.
6 & 7. There is no rule/ guidelines to assign separate weightage of marks endorsed by each Reporting Officer (IO, RO, and SRO and NSRO) that is considered to arrive at the final PQ and PP marks in an ACR in the Navy.
9. Numerical gradings given by the CNS become the final grading in respect of Captains and Commodores. Further, seeking clarification and justification do not fall under the definition of 'Information' as per Section 2 (f) of the RTI Act, 2005."14
Being dissatisfied, the appellant filed a First Appeal dated 24.09.2022. The FAA vide its order dated 30.12.2022, held as under:
"The information which has not been provided is rightly denied under Section 2 (f) of the RTI Act, 2005. Hence, I maintain the reply forwarded to you by CPIO (N) vide letter DL/0812/9492/VIII dated 05 Sep 22."
CIC/INAVY/A/2023/624637 The Appellant filed an RTI application dated 25.09.2022 seeking the following information:
"RTI TO MINISTRY OF DEFENCE RELATED TO MODERATION OF ACRS PREAMBLE
1. This RTI, ADDRESSED TO MINISTRY OF DEFENCE, is requested to be replied specifically by MoD without transferring it to Department of Military Affairs and onward to CPIO (Navy) for the following reasons: -
A) In the pyramidical structure of promotion of officer cadre in the Indian Navy, the Numerical Gradings (NGS) in ACRs is the overriding factor. The moderation of ACRS is carried out by the Personnel Branch/CNS in compliance of NI 01/2000 issued by the MoD, which stipulates that "CNS will lay down detailed guidelines to be followed for this purpose".
B) The CPIO (Navy) has informed that "In compliance of NI 01/2000 issued by MOD, which stipulates the "CNS will lay down detailed guidelines to be followed for this purpose", PARB Guidelines has been issued after approval of CNS. Hence, the guidelines issued by IHQ MOD (N) has the mandate of MoD in terms of NI 01/2000." The CPIO (Navy) has been evasive in his replies and completely misleading the applicant by not providing the information sought thus far.
C) The PARB Guidelines are used for moderation of Numerical Gradings in ACRS of officers. This moderation of NGs is directly linked to the promotion prospects to the higher ranks of the officer cadre within every Batch of officers, and in every Branch of the Indian Navy, which in turn, has direct correlation to overall morale, efficiency, and productivity of the Indian Navy. This information ON MODERATION has direct relevance to correcting the huge illegalities resident in the Navy's Closed Appraisal System where an officer is totally in the dark about what is written on him by his superiors up the reporting Chain, in all his ACRS, THROUGHOUT HIS ENTIRE CAREER.
15HENCE, THIS RTI TO THE MINISTRY OF DEFENCE.
Q1. Is the Ministry of Defence aware that the Navy uses PARB (PERFORMANCE APPRAISAL REVIEW BOARD) GUIDING PRINCIPLES Document (REVISED ON 01 MAY 2007) issued by the Directorate of Personnel, IHQ MOD (Navy) for moderation of ACRS of officers of the Indian Navy? To which all ranks of officer cadre, is this document applicable?
Q2. Did the Ministry of Defence approve the PARB (PERFORMANCE APPRAISAL REVIEW BOARD) GUIDING PRINCIPLES Document (REVISED ON 01 MAY 2007) issued by the Directorate of Personnel, IHQ MOD (Navy)? If YES, when was the approval accorded by MoD, please share details of File, Letter Number and Date? Which Navy official with designation has signed the above PARB Document, and on what date (as must have been recorded in the above PARB Document) for its promulgation for use by the Navy, when the above PARB Document was put up for approval of MoD?
Q3. If the above PARB document has not been approved by the Ministry of Defence, then how is Personnel Branch using the document for moderation of Annual Confidential Reports/ other CRs in respect of officers of the Indian Navy?
Q4. While Para (2) of NI 01/2000 states "A similar review of the reports of all naval officers of the rank of Capt and above will be undertaken and gradings suitably moderated by the Chief of the Naval Staff as Senior Reviewing Officer/ Next Senior reviewing Officer."; would the MoD please inform:-
A. Whether any other similar Guideline Document for Review (or Moderation) of the ACR reports of all naval officers of the rank of Capt and above by the CNS as SRO/NSRO was prepared by IHQ MOD (Navy) and approval taken from MoD? If YES, please share the File No., Letter No. and date along with copies of the approval.
B. If the answer to Q4 A is NO, is the MoD aware that the PARB (PERFORMANCE APPRAISAL REVIEW BOARD) GUIDING PRINCIPLES Document (REVISED ON 01 MAY 2007) prepared by IHQ MOD (Navy) in compliance with Para (1) of NI 01/2000 is ostensibly meant for moderation of ACRs of officers of the rank of only Lieutenant Commanders and Commanders; but may be, the same Guideline Document is also being used by Indian Navy for moderation of ACRs of Captains and Commodores by the CNS as SRO/NSRO?"16
The CPIO furnished a reply to the Appellant on 27.04.2023 stating as under:
"It is intimated that the information sought has already been provided vide IHQ MoD/CPIO (N) letter dated 16.01.2023 (Para 19(c) above). A copy of the same is enclosed.
Letter dated 16.01.2023 (Para 19(c) "It is intimated that the information sought has already been provided vide IHQ MoD/CPIO (N) letter dated 18.08.2022 and 20th July 2022.
Letter dated 18.08.2022.
1 & 2. In compliance of NI 01/2000 issued by MoD, which stipulates that "CNS will lay down detailed guidelines to be followed for this purpose", PARB guidelines has been issued after approval of CNS. Hence, the guidelines issued by IHQ MOD (N) has the mandate of MoD in terms of NI 01/2000.
3. Seeking clarification does not fall under the definition of 'Information' as Section 2 (f) of the RTI Act, 2005."
Letter dated 20.07.2022.
"1. Copy of corrigendum No. 1 of Navy Instruction 01/2000 is placed at Encl 1.
2. In compliance of Navy Instruction 01/2000, PARB guiding Principles at dated 01 May 07 has been laid down for internal use and has not been published.
3. CNS reviews the reports of all Naval officers of the rank of Capt and above in terms of Navy Instruction 01/2000.
4, 5, 7 & 8. The information sought by you does not fall within the purview of under section 2 (f) of the RTI Act, 2005.
6. The information sought by you is exempted under section 8 (1) (e) & 8 (1) (j) of the RTI Act, 2005.
9 & 10. Para 410 of Navy Order 05/05 and Para 411 of Navy Order (Spl) 02/15 deal with 'Adverse Traits', placed at Encl 2.
17Being dissatisfied, the appellant filed a First Appeal dated 14.04.2023. The FAA order is not on record.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeals.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present through Video-Conference.
Respondent: Cdr. Anil Kumar, CPIO; Shri Lt. Cdr. Vikrant Singh, DJA and Shri S K Srivastava, Dy. Director, all present in person.
The written submissions of the Appellant and the Respondent are taken on record.
The Appellant, during the hearing, reiterated the contents of his RTI applications and instant appeals and submitted that complete and correct information has not been provided to him by the Respondents. The Appellant further contented that he has sought specific information in his above- mentioned RTI applications but the same was not provided to him by the Respondent. He further argued that the information which is purely related to him was also denied by the Respondent.
The Appellant further raised his grievance related to non-promotion to the next rank of Rear Admiral. He submitted that he was retired on 31.03.2018 in the rank of Commodore and had put up his first grievance on 22.08.2012. The Appellant has also approached Armed Forces Tribunal and Hon'ble Supreme Court against his non-promotion.
The Appellant further reiterated the contents of his second appeal, which is reproduced hereinbelow:
"Just by removing the Pen-Picture will have no effect on the Overall Order of Merit (OOM) of an officer in his batch because, it is the NGs which finally decide the OOM for further promotion and future growth of an officer in the Indian Navy. Thus, in this manner, the Respondents have totally failed to comply with the directions of the Hon ble AFT PB which had accorded a clear directive to the Respondents to carry out the three step review of the Appellant's case for promotion to the rank of Rear Admiral. 8) Para 0410 (d) of Navy Order(Special) 05/2005 clearly states that the Reviewing Officer(RO) needs to communicate the Adverse Remarks (if any) to the Appellant in writing through the Initiating 18 Officer (10). Similarly, by the same Navy Order regulation, the SRO/CNS also needed to communicate the Adverse Remarks in writing through the 10 if the RO (in this case) had not done so The Navy Order evidently makes the RO and SRO/CNS directly accountable of addressing any ILLEGALITY in the ACRs. Unfortunately, this was never done and both. the RO and the SRO/ CNS failed in their Statutory Duty 9) The Appellant was therefore denied justice wherein very severe Adverse Remarks were written, albeit surreptitiously by the Reviewing Officer (RO) for the Appellant's Sea Command report of 2007 OS, which were further abetted by the SRO/ CNS despite his Statutory Duty to correct the same, and those Adverse Remarks remain uncommunicated to date."
The Respondent while defending their case inter-alia submitted that complete point-wise reply/information, as per the documents available on record and as per the provisions of the RTI Act has already been provided to the Appellant on his above mentioned RTI applications.
The Respondent submitted that the Appellant being aggrieved filed OA 392/2014 before AFT(PB), New Delhi against his non-promotion. Subsequently, the applicant filed a review application MA 1219/2017 against the judgment passed by Hon'ble Tribunal which was also dismissed vide order dated 12.10.2017. The Appellant being Aggrieved by the judgment passed by Hon'ble AFT, he had filed filed CA 1843/18 before the Hon'ble Supreme Court inter-alia, seeking to set aside the Tribunal's order and Hon'ble Supreme Court disposed of the petition in favour of the public authority.
The Respondent further submitted that the aforesaid chronology specifically Indicates that the grievances of the Appellant in relation to the non-promotion have been adjudicated by both Hon'ble AFT as well as Hon'ble Supreme Court and the issue in no more res-integra and the issue has attained finality.
The Respondent further submitted the Appellant has been filing RTI applications time and again in relation to his non-promotion and the same has no relevance with public importance. He further submitted that the Appellant has filed aprox. 16 RTI applications wherein he has sought multiple questions (approx. 100) in past 10 years. Further, the Appellant is trying to run a parallel litigation for his non-selection to the rank of 'Rear Admiral'.
The Respondent further argued that the nature of questions sought by the Appellant in his above mentioned RTI applications are interrogative in nature and repeated RTI applications have involved diversion of great manpower resources which ideally should be used for safeguarding the interest of the nation.
19Decision:
The Commission observes from a perusal of records that the main premise of the instant appeal was non-receipt of desired information. The Commission observes that the CPIO has clarified the factual position in the matter wherein complete reply/information, as per the documents available on record has been provided to the Appellant on his above-mentioned RTI applications.
It is an admitted fact that the CPIO is only a communicator of information based on the records held in the office and hence, he cannot be expected to do research work to deduce anything from the material therein and then supply it to him. The CPIO can only provide information which is held by them in their records within the public authority.
The Commission further observes that some queries as sought by the Appellant in his above-mentioned RTI applications are more in the nature of seeking explanation, opinion, advice from the CPIO viz. "Were the Numerical Gradings by the RD in my Sea Command ACR of 2007-08 set aside once the ENTIRE PEN PICTURE by the RO was set aside by the above AFT Order?; Did the RACAB mention to Personnel Branch and CNS that injustice has been done to the officer and that it should be corrected?", etc. But the CPIO is not supposed to create information; or to interpret information; or to furnish clarification to the Appellant under the ambit of the RTI Act. As per Section 2(f) of the RTI Act, the reasons/opinions/advices can only be provided to the Applicants if it is available on record of the public authority.
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;.."20
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...." (Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary, (School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.21
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
(Emphasis Supplied It further appears that the Appellant is harbouring a grievance related to his non-promotion and is not seeking access to information as envisaged under the RTI Act and has also challenging the correctness of the information provided. Despite this, the CPIO has provided a response to the Appellant; in the spirit of RTI Act.
The Appellant is advised about the powers of the Commission under the RTI Act by relying on certain precedents of the superior Courts as under:
The Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 has held as under:
"6. ....proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied) The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was 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."22
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under: 0 "20. ...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...." (Emphasis Supplied) Further, from the perusal of the records, the Commission observes that the Appellant had specifically asked his own information on point No. 2(e) of the RTI application dated 01.07.2022 in file No. CIC/INAVY/A/2022/668133 i.e. "What was my Merit Position before and after the exercise of reconsideration of promotion to Rear Admiral in PB 01 of 2012, 2013 and 2014 in compliance of AFT Order" but the CPIO had wrongly denied the same under Section 8(1)(j) of the RTI Act.
In view of this, the Respondent is directed re-visit point No. 2(e) of the RTI application dated 01.07.2022 in file No. CIC/INAVY/A/2022/668133 and give revised updated reply to the Appellant, within a period of two weeks from the date of receipt of this order.
The Appellant is further advised to approach appropriate administrative forum to redress his grievance.
No further relief can be granted in the matter.
The above-mentioned 8 (eight) second appeals are disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (R K Rao) Dy. Registrar 011- 26181827 Date 27-01-2024 23 24