Central Information Commission
Kailash Chandra Gupta vs Controller General Of Defence Accounts ... on 30 December, 2023
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
File No : CIC/CGDAC/A/2022/140208
Kailash Chandra Gupta .....अपीलकर्ाग/Appellant
VERSUS
बनाम
CPIO,
O/O THE CPIO & ACCOUNTS
OFFICER, CONTROLLER GENERAL
OF DEFENCE ACCOUNTS ULAN
BATAR ROAD,
PALAM, DELHI CANTT - 110010. ....प्रनर्वािीगण /Respondent
Date of Hearing : 20-12-2023
Date of Decision : 22-12-2023
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 10-05-2022
CPIO replied on : Not on record
First appeal filed on : 27-06-2022
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : 14-08-2022
Information sought:
The Appellant filed an RTI application dated 10.05.2022 seeking information regarding promotion related grievance of Late Sh. K. C. Kakkar from Sr Accounts Officer Grade to Senior Accounts Officer grade, including inter alia:1
"Kindly refer to your office No AN/II/2163/Grievance dated 01.12.2021 on the above subject addressed to the PCDA (Pension), Allahabad, with copy to this Association, in reply to this Association letter No DPWA//4/KC kakkar (2018) dated 08.08.2021, communicating in Para 3 that "the request for grant of promotion to Sr. AO grade has been examined in the light of Govt. of India, Min. of fin., Dept. of Expdr., OM No F.6(82)-IC /91 dated 22.09.1992 and guidelines contained in DoPT OM No. 22011/5/88-Est(D) dated 10.04.1989 and it has been observed that the above named officer is not eligible for promotion to the Sr. AO grade.".
This Association in Letter NO DPWA/4(KC Kakkar)/VI dated 25.02.2022 requested the CGDA to re-consider the promotion of KC Kakkar to Sr AO grade as Shri K C Kakkar fulfilled all the conditions laid down in MoF OM dated 22.09.92 and was fully eligible for promotion. It was further requested therein that If his case for promotion to Sr. AO grade was not submitted to DPC which was/is mandatory as per guide lines contained in DoPT OM dated 10.04.1989, sanction of Govt. of India may be obtained as a special case being omission on the part of Hqrs office 'not to put up details of service in Proforma-l before the DPC convened for adjudication of fitness for promotion to Sr. AO grade.
2 As more than 2 months have passed and no action has been taken by the AN-II of the Hqrs office or reply received on representation dated 25.2.2022, following information/ documents in the matter of promotion of Accounts officers in the DAD organization and K C Kakkar under the provisions of Min. of Fin Dept of Expdr. OM No F.6(82)-IC/91 dated 22.09.1992 as detailed in Para 3 below may be provided under RTI Act, 2005 for further action in the matter.
3.1 Provide a copy of Seniority list (Roster) of Accounts officers serving in DAD as on 01.01.1986 or 01.01.1987 with reference to which proposal for promotion to Sr. AO grade was submitted to the Departmental Promotion Committee (DPC) for their consideration.
3.2 Number of sanctioned post of Accounts officers in DAD as on 01.04.1987.
3.3 80 percent of sanctioned post of Accounts officers as on 01.04.1987whic was to be up graded to Sr. Accounts officers grade on or after 01.04.1987.
3.4 Intimate date of seniority list (roster) of accounts officers which was Referred / applied for preparation completion of Proforma-submitted to DPC.
23.5 Whether the DPC for consideration of promotion of AOs to Sr. AO grade Was convened at Headquarters office (CGDA office) or at the Headquarters of PCDAs/ CDAs office.
3.6 In the first batch of AOs promoted to Sr. AOs grade, up to what Serial No of the Roster was considered and recommended 'Fit' by the DPC.
3.7 In the second batch of AOs promoted to Sr. AOs grade, up to what Serial No of the Roster was considered/recommended 'Fit' by the DPC.
3.8 intimate the date of DPC meeting for consideration of Promotion of AOs to Sr. AOs grade in first batch and second batch.
3.9 What was the roster No of Shri K C kakkar, Accounts officer in the seniority List with reference to which Proforma-I was submitted to DPC.
3.10 In which batch of AOs, the name of Shri KC Kakkar (date of birth being 19.07.1932, Date of Promotion to AO grade being 03.10.1979 and date of confirmation in AOs grade being 01.04.1982) was included for consideration of his promotion to Sr. AOs grade by the DPC and the date of DPC meet 3.11 As a criminal case against Shri KC Kakkar was in proces in the year 1992 of the Session Court, was his name included in the select list (inProforma-l) to DPC for consideration of his promotion?.
3.12 Was ACR dossier of Shri KC kakkar was made available to DPC?
3.13 What was the grading in the ACRs of KC kakkar for last five years (year 1985 to 1990)?
3.14 Was there any adverse entry in the ACR dossier, if so the year(s) of ACR is to be stated?
3.15 Was the ACR dossier of Shri K C kakkar was available in 1992 and 1993 for consideration of his promotion under Mof OM dated 22.09.1992.
3.16 If DCR dossier of KC kakkar is not available today, the date on which it was Destroyed?
3.17 If ACR Dossier was destroyed, name of officer who approved the proposal of destruction and his designation.
33.18 Time period prescribed in Office Manual Part-II Volume-ll for destruction of ACR dossier of an employee after his death or retirement from service.
3.19 Was the proceeding (s) of DPC adjudicating the promotion of KC kakkar to Sr.AO grade put in 'sealed cover' as per Para 17.6.1 of DoPT guidelines dated 10.04.1989.
3.20 It has been stated in CGDA letter No AN/II/2163/ grievance Dated 01.12.2021 that Shri KC kakkar have been considered as not eligible for the promotion from AOs grade to Sr AOs grade without obtaining the recommendation of the DPC. Kindly quote the Govt. orders making the provision under which the CGDA office (cadre Controlling Authority or Appointing Authority) or PCDA (Head of Office) may consider an employee not eligible for promotion to higher grade without any recommendation of DPC."
Having not received any response from the CPIO, the appellant filed a First Appeal dated 27.06.2022. The FAA order is not on record.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Shri Pradeep Kumar, CPIO along with Shri Amit Prakash, A.A.O. present in person.
The Appellant reiterated the contents of his written submission filed prior to hearing by inter alia stating as under -
"...2.1 The Respondent has considered that KC Kakkar was not eligible for promotion to the Sr. AO grade under the provisions of Min. of Fin., Dept. of Expdr. OM dated 22.09.1992(Annexure-I) and DoP&T OM dated 10.04.89 (Annexure-IV).
My submission before your honor is that Min. of Fin OM dated 22.09.1992 prescribed the following guidelines-
(i) The first condition was that Accounts officer must have rendered 3 years of regular service as Accounts officer. Mr. KC Kakkar was holding the post of 4 Accounts officer since 01.04.1982 vide his All India Seniority Roster No P/286 (as on 01.01.1985).Thus he has rendered 5 years of regular service on 01.04.1987 (Date of consideration) and fulfilled the above condition.
(ii) The second condition was that promotion will be made after following the due process ie DPC constituted will adjudicate fitness. For this purpose the service details of KC Kakkar and CR dossier for adjudication of Fit/ Un-Fit was not placed before the DPC constituted on 16.12.1992 and 17.12.1992. This is an omission on part of Cadre Controlling Authority (Respondent). In this respect KC Kakkar was posted by the Chief CDA (Pension) in the panel of Accounts officers to adjudicate attributability or aggravation of disease or injury sustained or on death of the Armed Forces Personnel below officer Rank for grant of disability pension /Special family pension. In addition reassessment of disability of Commissioned officers for continuance of the disability pension was his job. His Job was as for justice provided to the Armed Forces Officers and personnel below officer rank. He was an outstanding/ very good officer.
(iii) The third condition was that the promotion will be made by adopting the principle of seniority cum fitness. Seniority of KC Kakkar was at SL. NO P/286 in the All India Roster of Seniority of Accounts officers as on 01.04.1987 and Accounts Officers at Sl. NO P/358 and above were considered by DPC. Thus he fulfilled all conditions of eligibility prescribed in Min. of Fin. OM dated 22.09.1992.
4.2 As regards provisions contained in DoP&T OM dated 10.04.1989 (Annexure-V) which prescribes Departmental Promotion Committee DPC) and related matters, the adjudication of Fitness for promotion of a Govt. servant by the DPC was mandatory vide Para 1 thereof. For this purpose, service details and CR dossier of KC Kakkar was not put up before the DPC held on 16.12.1992 and 17.12.1992 for consideration of his promotion.
Para 11.1 (iii) prescribes that in case a Govt. servant in respect of whom prosecution for a criminal charge is pending details of KC Kakkar (who was in consideration Zone for promotion) should have been specifically brought to the notice of the DPC so that the recommendations of DPC could be placed in 'Sealed Cover' as prescribed in Para 11.2 . This was not done by the CGDA who was the cadre controlling Authority and constituted DPC for consideration of promotion to Sr. AO grade. The procedure prescribed in Para 17.6.1 could not be completed as Sealed cover envelope containing fitness of KC Kakkar was not available.
4.3 From the above facts the failure of the employer of KC Kakkar (Chief CDA (Pension) and the Cadre Controlling Authority (CGDA) held up his promotion to Sr. AO grade from 01.04.1987. The decision of CGDA as communicated 5 under Para 3 of their No AN/II/2151/Grievance/Vol. III dated 27.05.2020 is not correct as KC Kakkar has fulfilled all conditions contained in Min. of Fin. OM dated 22.09.1992 and the provisions of DoP&T of their OM dated 1004.1989 was not complied with by the CGDA it self.
As the CGDA failed in his duty as cadre controlling Authority to submit papers before the DPC, a request was made to obtain sanction of the Govt. for promotion of KC Kakkar as Sr. Accounts officer from 01.04.1987. That office may be directed to obtain sanction of the GOvt. for promotion of KC Kakkar.
Per contra, the Respondent invited attention of the Commission towards his written submission dated 13.12.2023, relevant extracts of which are reproduced below -
(i) An application dated 10.05.2022 under RTI Act, 2005 in respect of Shri K.C. Gupta, General Secretary, DPWA was received at this office.
(ii) The said RTI application was examined and accordingly, reply was furnished vide this office letter No. AN/II/2153/RTI/2022 dated 10.06.2022. However, details /particulars regarding sending of the said letter through post is not traceable at this belated stage. Further, reply furnished by the CPIO had also been uploaded on RTI portal (Registration No. CGDFA/R/P/22/00536) on 10.06.2022.
(iii) With regard to reply of Appeal under RTI Act, 2005 filed by the appellant, it is seen that the appeal was sent on email ID of the first Appellate Authority viz. Shri Rajeev Ranjan Kumar, IDAS, Dy. CGDA on 27.06.2022. In this context, it is submitted that 1st Appeal authority viz. Shri Rajeev Ranjan Kumar, IDAS, Sr. Dy. CGDA was transferred to other office on 06.07.2022. It seems that the same Appeal could not be uploaded from his official email ID. Therefore, the reply to Appeal could not be furnished. However, now a copy of the reply furnished by the CPIO vide letter No. AN/II/2153/RTI/2022 dated 10.06.2022 is being forwarded to the Appellant......"
Contents of reply dated 10.06.2022 are reproduced below for the sake of clarity -
S.no. Point no. Reply/Information Provided
1. Point No 3.1 & 3.4 Seniority list (Roster) of AO as on
Point No 3.2 & 3.3 01.01.1991 was submitted before DPC for
main consideration. Copy of the same is
available in 20 pages.
6
RR as on 01.04.1987 is not available in this
section, however a copy of the RR dated
28.01.1992 is available in 4 pages.
2. Point No 3.5 CGDA office.
Point No 3.6 & 3.7 DPC considered upto Roster No 1147 of
seniority Roster dated 01.01.1991 and
recommended FIT upto Roster no 1037.
3. Point No 3.8 16.12.92 and 17.12.92
Information Provided at Para No-3.1 may
Point No 3.9, be referred. It is further informed that late
3.10,3.11,3.12,3.15,3.19 KC KAKKAR retried on 31.07.1990, hence his name was not included in the senority list prepared as on 01.01.1991.
4. Point No 3.13, 3.14, The desired information falls under the 3.17 category personal information OM No 11/2/2013-IR(Pt) Dated 14.08.2013, hence Point No 3.16 the same cannot be provided.
The desired information is not readily available in this section.
Point No 3.18 Extract of relevant page of OM Part II is available in one page.
Point No 3.20 Copy of DoP&T OM Dated 1992 & 10.04.1989 are available in 18 pages.
2. The applicant is therefore requested to pay Rs.86/ @ Rs.2/- per page by means of IPO/MO/DD/Cash as per DoP&T letter no 1/32/2013-IR dated 28.11.2013 to enable this office to provide the copies of information.
3. First Appellate Authority is Sh. Rajeev Ranjan Kumar, Sr. Dy.CGDA (Pers) in term of Sec 19 (1) RTI of Act, 2005."
Upon being queried by the Commission, the Respondent submitted that their organization have a facility of conducting Adalats for resolving the issues as raised by the Appellant.
Decision:
The Commission observes from a perusal of records that the core issue raised in the instant matter is not about seeking access to any specific information per se ,it is about redressal of Appellant's grievance regarding no promotional 7 benefits of Sr. A.O. post to Late Sh. K. C. Kakkar and seeking clarifications from the CPIO in this regard.
From the standpoint of RTI Act, the response of the Respondent provided during the course of hearing is in spirit of RTI Act, merits of which cannot be called into question.
For better understating of the mandate of 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.
His attention is also 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 was held 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) As far as jurisdiction of Commission is concerned, a reference may be had of a judgment of 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 wherein it has been held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate fora. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is 8 to be drawn in the said proceedings and as aforesaid the 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 30.11.2017wherein 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."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013observed as under:
"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) In view of the above, no further relief can be granted in the matter. However, the Commission empathizes with the concern of the Appellant and advises him to pursue the matter through proper channel.
Nonetheless, the CPIO is directed to share a copy of his latest written submission free of charge with the Appellant immediately upon receipt of this order under intimation to the Commission.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (R K Rao) Dy. Registrar 011-26181927 Date 22-12-2023 9 Sh. Kailash Chandra Gupta Defence Pensioners Welfare Association 658/95/51, Amitabh Bachchan Road Sarvodaya Nagar, Prayagraj - 211006, Uttar Pradesh.10