Central Information Commission
Anil Kumar Acharya vs Department Of Atomic Energy on 28 February, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DOATE/A/2019/637897-BJ
Mr. Anil Kumar Acharya
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Under Secretary
Department of Atomic Energy
Centralized Cadre Section
Anushakti Bhawan, CSM Marg
Mumbai - 400001
... ितवादीगण /Respondent
Date of Hearing : 27.02.2020
Date of Decision : 28.02.2020
Date of RTI application 05.01.2019
CPIO's response 01.02.2019
Date of the First Appeal 11.02.2019
First Appellate Authority's response 06.03.2019
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 12 points regarding the list of documents required by SSC for screening of the proposed candidate for promotion to SO/H Grade in 2013 from HWB; list of documents received by SSC from HWB for screening of the proposed candidate for promotion to SO/H grade in 2013, etc. The CPIO, D/o Atomic Energy (Centralized Cadre Section) vide its letter dated 01.02.2019, for points 09 and 10, denied disclosure of information u/s 8(1) (j) of the RTI Act, 2005 and for other points stated that the information would be provided by HWB, Mumbai. Dissatisfied with the response, the Appellant approached the FAA. The FAA, vide its order dated 06.03.2019, upheld the CPIO's response indicating that there was no public interest involved in this matter.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 5
Appellant: Mr. Anil Kumar Acharya through VC;
Respondent: Mr. Ashok B. Gerira, US (Cadre) & CPIO and Mr. S. S. Gondane, AO through VC;
The Appellant reiterated the contents of the RTI application and stated that the complete and satisfactory information was not received by him, till date. It was further submitted that he specifically desired to have the copies of minutes of selection committee meeting wherein his candidature was also considered which was denied under Section 8(1)(j) of the RTI Act, 2005. In its reply, the Respondent reiterated the response of the CPIO/FAA and further submitted that all available information except for point nos. 09 & 10 was uploaded on the RTI portal on 06.02.2019. The Appellant denied receipt of reply dated 06.02.2019. The Respondent however, agreed to send a copy of the uploaded reply to the Appellant forthwith. The Appellant while contesting the above averments of the Respondent for points 09 and 10 submitted that he desired to have the copies of Minutes of Meeting of SSC indicating comments of committee for rejection of his name in the selected candidates list. In its reply, the Respondent stated that since the minutes of meeting contained all other candidates' information, the same could not be furnished.
On being queried by the Commission whether the information regarding the minutes of the meeting could be furnished after following the procedure laid down under Section 10 of the RTI Act, 2005 redacting other candidates' details, the Respondent replied in the Affirmative and agreed to provide the same. On being further queried by the Commission whether any complaint/case had been filed with the CAT/Court, the Appellant replied in the negative.
The Commission was in receipt of a written submission from the Appellant dated 20.02.2020 wherein while reiterating the contents of the RTI application, reply of the CPIO/FAA, he alleged that wrong information was provided by the Respondent Public Authority (DAE and HWB).
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to Page 2 of 5 the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
With regard to seeking information in his own case by the Appellant, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. D.N. Kar in W.P. (C) 4056 of 2008 and CM Nos. 7869 and 10885 of 2008 dated 14.09.2010, wherein it was held as under:
"11. In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List". Moreover, the period during which the Respondent's name was included in the "Agreed List" has long come to an end. The period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.
12. As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided Page 3 of 5 critical inputs and recommended the inclusion of the Respondent's name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.
13. This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him."
It was also observed that as per Section 10 of the RTI Act, 2005 all such information relating to other candidates' details could be severed from minutes of meeting 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:
"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 Page 4 of 5 principle. The order of the Information Commissioner takes care of the apprehension of the petitioner."
Furthermore, the Commission observed that the Hon'ble High Court of Delhi in the matter of Kamal Bhasin v. Radha Krishna Mathur and Ors., W.P.(C) 7218/2016 dated 01.11.2017 had held as under:
"6. In the present case, the petitioner stands as a relator party as he is also one of the complainants. The petitioner is not seeking any personal information regarding respondent No. 3, but merely seeks to know the outcome of the complaint made by him and other such complaints. The PFC Officers Association had pointed out certain conduct which according to them was irregular and warranted disciplinary action; thus, they would be certainly entitled to know as to how their complaints have been treated and the results thereof.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directed the Respondent to furnish information on point nos. 09 and 10 of the RTI application as sought by the Appellant in his own case following the procedure laid down under Section 10 of the RTI Act, 2005 along with the copy of reply dated 06.02.2019, within a period of 15 days from the date of receipt of this order, as agreed.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 28.02.2020 Page 5 of 5