Central Information Commission
Anil Kuamr Sharma vs Safdarjung Hospital,New Delhi on 24 December, 2019
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.(s):- CIC/MH&FW/A/2018/134829-BJ+
CIC/SFHND/A/2018/134682-BJ
Mr. Anil Kumar Sharma
....अपीलकताग/Appellant
VERSUS
बनाम
1. CPIO
Under Secretary
Ministry of Health & Family Welfare
Nursing Section, D/o Health & Family Welfare
Nirman Bhawan, New Delhi - 110011
2. CPIO
Safdarjung Hospital & VMMC
RTI Cell, New Delhi - 110029
...प्रनतवािीगण /Respondent
Date of Hearing : 23.12.2019
Date of Decision : 24.12.2019
ORDER
RTI - 1 File No. CIC/MH&FW/A/2018/134829-BJ Date of RTI application 15.02.2018 CPIO's response Not on Record Date of the First Appeal 21.03.2018 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 01.06.2018 FACTS:
The Appellant vide his RTI application sought clarifications on 03 points relating to eligibility of person having color blindness for the post of Nursing Sisters in Government Hospitals, whether a color blind person was eligible for the post of Nursing Sisters along with the complete guidelines Page 1 of 7 regarding the same, whether the Nursing Sister 1st Grade was technical post or non technical post, etc. Dissatisfied due to non receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on the record of the Commission.
RTI - 2 File No. CIC/SFHND/A/2018/134682-BJ Date of RTI application 22.01.2018 CPIO's response Not on Record Date of the First Appeal 09.03.2018 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal by the Commission 31.05.2018 FACTS:
The Appellant vide his RTI application sought clarifications on 03 points relating to eligibility of person having color blindness for the post of Nursing Sisters in Government Hospitals, whether a color blind person was eligible for the post of Nursing Sisters along with the complete guidelines regarding the same, whether the Nursing Sister 1st Grade was technical post or non technical post, etc. Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of FAA, if any, is not on the record of the Commission. HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Anil Kumar Sharma in person;
Respondent: Mr. Manish Kr. Srivastava, Registrar (AIIMS, Jodhpur), in person, Mr. Chandan Kumar, US (Nursing), M/o H&FW, Mr. Kamal Bhatt, AAO, AIIMS, New Delhi, Dr. Kashika, CPIO, Dr. Mukesh Nagar, CPIO, Mr. Balram Meena, DPIO, and Mr. Nitesh, LDC and Dr. Omprakash, Eye Specialist, Lady Hardinge Medical College & Smt S. K. Hospital, New Delhi;
The Appellant reiterated the contents of the RTI applications and stated that in respect of point 01 of his RTI application, no clear cut reply was furnished either by the Ministry or the Hospitals to whom the RTI application was transferred. It was categorically argued that being a policy matter, the Ministry was entrusted with the responsibility of formulating a policy in this regard but no action had been taken, till date. In its reply, the Respondent from M/oH&FW stated that the application was transferred to various hospitals on 26.02.2018. It was further stated that for employment of color blind doctors, a policy had been formulated by the Government in respect of their employment, but with regard to the nursing staff, no such guidelines had been prepared, so far. The Appellant submitted that transferring the RTI to various hospitals served no purpose as the contents of the RTI applications had to be handled by the Ministry itself being a policy matter. While admitting the mistake on the part of the Ministry in its inability to address the Page 2 of 7 basic issues raised in the RTI applications, it was assured that this matter needs to be investigated further in consultation with DGHS so that proper guidelines could be formalized by M/oH&FW.
The Commission was in receipt of a written submission from the Respondent, M/oH&FW, addressed to the Appellant dated 16.12.2019 wherein it was informed that the application was transferred to the concerned Hospitals/Institutes u/s 6(3) of the RTI Act, 2005, for furnishing the requisite information directly to the Applicant. The First Appeal was also received in Nursing Section on 09.03.2018 which was also transferred to the concerned Hospitals and all 7 AIIMS. On perusal of the concerned file of their Section, it was found that some of the Hospitals/Institutes had responded to the Applicant in the matter copies of which was also enclosed. Furthermore, it was submitted that in the meantime, the Indian Nursing Council resolved, vide notification dated 28.02.2019 (copy enclosed), that the Color Blind candidate should be considered for admission to Nursing Courses subject to the condition that color corrective lens and spectacles were worn by such candidates.
The Commission was in receipt of a written submission from the Respondent, PIO (Hospital) AIIMS, Bhopal, dated 21.12.2019 wherein it was submitted that the Appellant had filed an RTI application dated 15.02.2018 (Received on 02.04.2018), seeking various information regarding eligibility criteria of Nursing sister 1st Grade (Grade Pay - 4800) & work related to color blindness. PIO Hospital of the Institute had already provided the reply to the Appellant within the stipulated time frame vide letter dated 28.04.2018. As the Appellant was not satisfied with the PIO reply, he filed an Appeal dated 09.03.2018 (Received on 26.03.2018, through MoHFW). It was pertinent to mention that the First Appeal was received earlier, when the RTI application was already in process. Hence, it was replied accordingly by the FAA vide letter dated 16.04.2018.
During the hearing, a copy of written submission addressed to the Appellant was handed over to the Commission by the Respondent, AIIMS, Jodhpur, dated Nil, wherein a point-wise response was provided to the Appellant wherein for point 01, it was informed that at AIIMS, Jodhpur, color blind Nursing Officers Grade 1 have been declared unfit by the Medical Board for job at AIIMS, Jodhpur. With regard to point 02, a list of examples of color related work for Nursing Officers were reiterated. As regards point 03, it was informed that Nursing Post is a technical post. Due to some mistake they could not send the reply earlier and they unconditionally apologized for the same.
The Respondent, AIIMS, New Delhi, submitted a set of earlier correspondence taken place with regard to the instant RTI application and submitted that the CPIO from Dr. R. P. Centre was the concerned authority in the matter. They appeared unprepared to answer the queries on the subject and casually responded that a suitable reply was provided by Dr. R. P. Centre vide letter dated 23.04.2018, a copy of which was enclosed for the Commission's reference expressing its reservations with regard to employment of Nursing Sisters citing professional handicaps.
The Respondent, VMMC & Safdarjung Hospital also handed over a copy of the written submission dated 18.12.2019 addressed to the CPIO-II, Safdarjung Hospital, wherein a point- wise response was provided in response to the RTI application dated 11.12.2019 which did not address the issues raised by the Appellant.
The Respondent, Lady Hardinge Medical College & Smt S. K. Hospital, New Delhi also submitted a copy of reply dated 14th March, 2018, wherein a suitable point-wise response was Page 3 of 7 provided to the Appellant as per available record without addressing the issue of employment of color blind Nursing Sisters. However, it was stated that for technical posts, normal color vision is a must. For non-technical posts, lower grade color is acceptable.
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 J P Aggarwal v. Union of India (WP (C) no. 7232/2009 had held that:
" 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."
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
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 a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
Page 4 of 7The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].Page 5 of 7
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
Furthermore, in this context a reference was also made to the OM no. No.1/6/2011-IR dated 15.04.2013 issued by the DoP&T pertaining to guidelines for the implementation of suo motu disclosures under Section 4 of the RTI Act, 2005.
With regard to the public interest involved in the matter, the Commission referred to the decision The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest':
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
It was noted by the Commission that a similar subject matter was heard and decided by it in Appeal No. CIC/YA/A/2014/001337 Dated 23.07.2015.
Page 6 of 7DECISION:
Keeping in view the facts of the case and the submissions made by both the parties as also in view of the sensitivity and criticality of the subject matter having larger repercussions in other professions also, the Commission advises the Secretary, M/oH&FW / DGHS to examine this matter and consider formulating guidelines relating to the eligibility of persons having color blindness for the post of Nursing Sisters in Government Hospitals, expeditiously. Being a sensitive and a critical matter, having wide ranging repercussions in other professions also, it is imperative that the Ministry of Health & Family Welfare / DGHS may take a view in this regard and publish its guidelines for the benefit of public at large.
The Respondents were also advised to endorse a copy of their written submissions sent to the Commission to the Appellant, as well.
The Appeals stand disposed accordingly.
(Bimal Julka) (नबमल जुल्का) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) (K.L. Das) (के .एल.िास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दिनांक / Date: 24.12.2019 Copy to:
1. The Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011
2. The Directorate General of Health Services (DGHS), Room No. 446-A, Nirman Bhawan, Maulana Azad Rd, New Delhi, Delhi 110011 Page 7 of 7