Central Information Commission
Mathura Prasad Yadav vs Department Of Posts on 5 November, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
CIC/POSTS/A/2018/105570
Mathura Prasad Yadav v. PIO, Department of Posts,
Order Sheet: RTI filed on 28.10.2017, CPIO replied on 03.11.2017, FAO - Nil, Second appeal filed
on 05.01.2018, Hearing on 15.05.2018;
Proceedings on 15.05.2018: Appellant present, Public Authority represented by CPIO. Mr
SubodhPratap Singh.Directions for compliance and Show-cause issued.
Proceedings on 03.07.2018: Appellant present, Public Authority present;
Date of Decision - 05.11.2018: Penalty dropped and disposed of.
ORDER
FACTS:
1. The appellant sought information on 28.10.17 under 3 points (i) Details of Handicapped employees in the Allahabad Division, (ii) the details of disabled certificates of disabled employees. (iii) Details regarding the Salary + D.A. + Other allowances of a disabled employee. The CPIO replied on 03.11.17 stating that RTI application has been transferred to the concerned office. It was informed to the appellant that the information sought by him is not available in consolidated form and thus cannot be provided.The appellant unsatisfied filed first appeal. The FAA order held that the reply given by the CPIO was correct and sufficient. The appellant still aggrieved filed second appeal.
2. The Commission's order dated 16.05.2018:
2. The appellant complained that the information sought by the appellant was 'third party's information and that it was his personal information, hence, could not be disclosed under Section 8(1)(j).
3. The appellant explained during hearing that he was seeking the certified copies of the disabled certificates submitted by the employees to check whether genuine disabled persons were given the posts which were reserved for disabled persons after due verification, and he was entitled to know that. If certificate was not genuine, it would amount to fraud on public and also deprivation of a genuinely disabled person. The public authority has a duty to prevent it. There is no automatic verification of the certificates submitted, and unless someone complains, there is no mechanism to verify, hence the applicant is trying to verify through RTI.
4. The certificate of disability is given by the Government. The respective Medical Boards constituted at a State or district levels are the certifying CIC/POSTS/A/2018/105570 Page 1 authorities to issue such disability certificate after proper examination. The Medical Board consists of a chief medical officer/ sub divisional medical officer in the District and another expert in the specified field, such as an ophthalmic surgeon in case of visual handicaps either ENT surgeon or an audiologist in case of speech & hearing handicaps, an orthopaedic surgeon or a specialist in physical medicine and rehabilitation in case of locomotor handicaps and a psychiatrist or a clinical psychologist or a teacher in special education in case of mental handicaps.
The respective disability certificate for mental retardation or other disabilities (visual, speech and hearing, and locomotor disability is given as Form X and Y in related resource.The certificate is issued to persons with disabilities as defined in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. This PWD Act 1995 provides for both the preventive and promotional aspects of rehabilitation like education, employment and vocational training, reservation, research and manpower development, creation of barrier- free environment, rehabilitation of persons with disability, unemployment allowance for the disabled, special insurance scheme for the disabled employees and establishment of homes for persons with severe disability etc. As per the law, every child with disability shall have the rights to free education till the age of 18 years in integrated schools or special schools.Appropriate transportation, removal of architectural barriers and restructuring of modifications in the examination system shall be ensured for the benefit of children with disabilities.Children with disabilities shall have the right to free books, scholarships, uniform and other learning material.Special Schools for children with disabilities shall be equipped with vocational training facilities.Non-formal education shall be promoted for children with disabilities.Teachers' Training Institutions shall be established to develop requisite manpower.Parents may move to an appropriate forum for the redressal of grievances regarding the placement of their children with disabilities.3% of vacancies in government employment shall be reserved for people with disabilities, 1% each for the persons suffering from blindness or Low Vision, Hearing Impairment, Locomotor Disabilities & Cerebral Palsy. Suitable Scheme shall be formulated for the training and welfare of persons with disabilities, relaxation of upper age limit, Regulating the employment, Health and Safety measures and creation of a non- handicapping, environment in places where persons with disabilities are employed, Government Educational Institutes and other Educational Institutes receiving grant from Government shall reserve at least 3% seats for people with disabilities. No employee can be sacked or demoted if they become disabled during service, although they can be moved to another post with the same pay and condition. No promotion can be denied because of impairment.
4. The law prescribed certain affirmative action like: Aids and Appliances shall be made available to the people with disabilities. Allotment of land shall be made at concessional rates to the people with disabilities forhouse, business, special recreational centres, special schools, research schools, factories by entrepreneurs with disability.
5. A new section 80V has been introduced in Income Tax Act to ensure that the parent in whose hands income of a permanently disabled minor has been clubbed under Section 64, is allowed to claim a deduction upto Rs.20000/-. All these concessions/welfare measures are dependent upon the disability certificate to be issued by the authority.
6. A certificate issued by authority, which is an essential pre-requisite to claim benefits/concessions prescribed under social welfare legislations cannot become a private or personal document of the holder. It has to be a public document under Section 74 of Evidence Act, which says:
74. Public documents.--The following documents are public documents:--
CIC/POSTS/A/2018/105570 Page 2 (1) Documents forming the acts, or records of the acts--
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; of any part of India or of the Commonwealth, or of a foreign country;"
(2) Public records kept in any State of private documents.
7. The certificate issued by public authority to a candidate, who became public servant or beneficiary of public scheme based on the certificate of disability, which is submitted to and held by that public authority that appointed him or gave benefit from the public exchequer to him, could be neither the 'private' nor 'personal' nor 'third party' information/document, but a public document as per Section 74 clause (iii). This document is accessible under Section 76 of Evidence Act, which says:
76. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.--Every 3public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies." Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
8. Hence it cannot be denied under either Section 8(1)(j) or Section 11(1) of RTI Act. The CPIO has a duty to consultthe third party, if he considered it as 'third party' information. Even after third party objected to disclosure, the CPIO has a duty to apply his mind, use discretion, try to recognize public interest if any and decide on disclosure as per Section 11. There is nothing on record to show that he consulted or used discretion.
9. Assumingdisability certificate is a personal document, the CPIO should have examined whether its disclosure would cause an unwarranted invasion of his privacy, does this disability information relates to public activity because it is concerned with public benefits being offered by the Government at the cost of the public exchequer, etc., as per Section 8(1)(j). Affirmative action, welfare measures and other benefits for disabled are important social welfare activitiesthatpromote public interest. To ensure benefits reach the genuinepersons, verification of the document of disability certificate is essential and its verification is equally necessary. This transparency will serve as a method to prevent corruption. Either competitor or any citizen has a right to see and verify the genuineness of disability certificate.
10. Disease of a citizen is his/her personal information which need not be disclosed unless some public interest is involved. Disability is not the disease. It CIC/POSTS/A/2018/105570 Page 3 could be result of a disease or an accident. It is a state of physical reality that is to be certified and known to others to facilitate their normal life and career. A disease related information could be denied as personal information but disability related certification could not be. Even the disease related information is expected to be disclosed in public interest, as per several decisions of the courts. For instance Surupsing Hriya Nayak v State of Maharashtra [https://indiankanoon.org/doc/570038/]
11. This also will not become a document given in fiduciary capacity. In view of this public interest, the copy of document reflecting the disability and its extent, issued by appropriate authority to the citizen cannot be denied to the other on the excuse that it is personal information, because it is not personal document. It is unreasonable and illegal to contend that disability certificate could be denied under RTI Act on this ground, and hence, the Commission rejects this contention and directs the CPIO to provide certified copy of disability certificates to the information seeker within 15 days.
12. The Commission directs Mr. SubodhPratap Singh, CPIO, to show-cause why maximum penalty should be imposed upon him for illegally denying the information sought. The CPIO is directed to submit his explanation, before 03.07.2018 and the matter is posted for final disposal on the aforesaid date.
Decision :
3. Mr. Subodh Pratap Singh, IPOs/CPIO in his written submission dated 29.06.2018 explained as under:
"It is to kindly inform that in compliance of the order dated 16.05.2018 of the Hon'ble CIC the desired information pertaining to point no. 3 & 4 under original RTI application of Shri Mathura Prasad Yadav, has been provided to him vide this office letter even dated 24.05.2018 well within the time limit provided by the Hon'ble CIC.
The CPIO is a law abiding authority and has highest regard for majority of Hon'ble Commission. The undersigned has always complied with the orders passed by the Hon'ble Commission in letter & spirit as & when he was called upon.
In view of the above, it is submitted that in compliance of the order of the Hon'ble CIC, the information is already provided to applicant and no further correspondence related to this matter was made by the applicant in this office. Therefore, it is requested that Hon'ble Commission may please drop further proceedings against undersigned. I will be highly obliged."
CIC/POSTS/A/2018/105570 Page 4
4. The Commission upon perusal of records finds that the order of the Commission was complied and the explanation of the CPIO is satisfactory. Hence, penalty proceedings are dropped. Disposed of.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
CIC/POSTS/A/2018/105570 Page 5