Central Information Commission
Mr.Tilak Raj Tanwar vs Government Of Nct Of Delhi on 11 January, 2012
In the Central Information Commission
at
New Delhi
File No: CIC/AD/A/2011/001699
Date of hearing : Oct. 31, 2011
Date of Decision : Jan. 11, 2012
Parties:
Appellant
Mr. Tilak Raj Tanwar
CB - 363, Naraina Ring Road,
New Delhi
The Appellant was present in person
Respondent
The PIO, Deputy Director of Education South West A, C4, Vasant Vihar Behind Tagore International School Delhi Ms. Indrani Rani Singh , DDE (S.W.A) represented the Respondent Third Party The Principal, Mount St. Mary's School 75, Parade Road, Delhi Cantonment New Delhi - 110 010 Shri T.L. Pious represented the third party Information Commissioner(s) : Mrs. Annapurna Dixit _______________________________________________________________ In the Central Information Commission at New Delhi ORDER File No: CIC/AD/A/2011/001699 Pursuant to the interim decision dated 13.09.2011
1. The Applicant had filed an RTI Application dated 23.04.2011 with the PIO, DDE, South West A seeking the following information about his ward Master Rajneesh Tanwar:
i) Copy of all test papers of the final term of his ward
ii) Name of the teachers who checked the final terms papers of his ward
iii) Date of marking of all papers by the teachers.
The PIO's response dated 13.05.2011 enclosed the reply dated 12.05.2011 sent by the Education Officer, Zone 20 denying the disclosure of information on the ground that it is not covered under Rule 180 of DSEAR 1973. Aggrieved at the denial of information, the Applicant filed a First Appeal dated 26.05.11 with the Appellate Authority (Copy not enclosed). The Appellate Authority decided the Appeal by the order dated 13. 6.2011 upholding the decision of the PIO.
2. The Applicant filed a second RTI Application on the same date viz. 23.04.2011 with the PIO, DDE South West A seeking the following information:
i) The total amount of donation received by the school in cash, cheque and goods form from the parents of students of this school in the years 200607, 200708, 200809 and 200910.
ii) The copy of the receipts clearly providing the name of parents and donors, name of wards whose parents paid the donation and the amount paid individually and the copy of all donation receipts in the years 200607, 200708, 200809 and 200910.
iii) Copy of audited balance sheet of 200910.
The PIO replied to this application by letter dated 13.05.2011 enclosing a similar reply dated 12.05.2011 received from the Education Officer, Zone 20 as mentioned above, stating that information cannot be provided since it is not covered under Rule 180 of DSEAR 1973.
Dissatisfied with the reply of the PIO, the Applicant filed a First Appeal dated 26.05.2011 (Copy not enclosed). The Appellate Authority replied on 13.06.2011 directing the PIO to provide information against point (iii)
3. Subsequently, the Applicant filed even a third RTI Application dated 03.05.2011 with the PIO, DDE, South West A seeking the following information:
i) Copy of latest lease/rent agreement of land used by the school
ii) Copy of latest lease/rent agreement with the Syndicate Bank Branch in the school
iii) Copies of rent receipt in the year 20102011 from the above referred Syndicate Bank
iv) Copy of legal permission obtained from the requisite authorities in maintaining the zoo in the school
v) Complete details of all the breeds and varieties of birds and animals caged in the zoo.
The PIO replied on 13.05.2011 enclosing the usual reply dated 11.05.2011 received from the Education Officer, Zone20, as mentioned above, stating that information cannot be provided since it is not covered under Rule 180 of DSEAR 1973.
Aggrieved with the denial, the Applicant filed a First Appeal dated 26.05.2011 with the Appellate Authority (Copy not enclosed), which was decided by the Appellate Authority's on 13.06.2011 directing the PIO to provide information against point (i).
Being aggrieved with the replies, the Applicant filed a Second Appeal dated 04.07.2011 before the Central Information Commission reiterating his request for information except the ones already supplied on the directions of the Appellate Authority.
4. During the hearing, the Respondent contended their inability to transfer the RTI application to the Mount St. Mary's School since the same is a private recognized school. The Commission noted that information available with the Respondent had already been made available to the Appellant, and the majority of the remaining information sought by the Appellant is in the custody of the Mount St. Mary's School. Hence the Commission directed the PIO, Directorate of Education, the Principal of the school and the Appellant to send their submissions to the Commission explaining their position with regard to the status of the said school in terms of the Section 2(h) of the RTI Act and a second hearing was scheduled for 31.10.11 at 10.30 a.m. Thus the decision was reserved pending the written submissions of the parties.
5. Subsequently, the Commission received communications dated 12.10.2011 and 31.10.2011 from the Government of NCT, Directorate of Education, District South WestA as also submissions of the Third Party dated 04.10.2011 alongwith submissions dated 12.10.2011 of the Appellant. The Appellant in his submissions dated 12.10.2011 reiterated the status of the School with reference to the Section 2(h) of the RTI Act 2005 stating that the school enjoyed income tax concessions, was provided with land at subsidized rates and was under the control of the Director of Education. Substantiating his arguments about the status of the School being a Public Authority, the Applicant cited the Sections 2 (f) and 2 (j) of the RTI Act 2005 defining the words "information" and "right to information" respectively and the Rule 59 (1) (b) v) of the DSE Rules wherein the Directorate of Education has the prerogative of nominating two members of the managing committee one of whom should be an officer of the Directorate of Education. The Applicant provided clarification that his children were studying in the School and stated that as a citizen and as a concerned parent, he has a right to know about the educational, safety, and health related aspects and that he requires the information to curb the alleged corruption with respect to the admission etc. procedures being adopted by the School.
6. The Directorate of Education by its letter dated 12.10.2011 sent a status report of the case stating that as per the information received from the Zonal office on 12.05.2011, the information sought by the Appellant could no be provided since the same did not fall within the Rule 180 of DSEAR 1973 and since the information belonged to a Private recognized School, the application could not be transferred. The said piece of information was forwarded to the Appellant on 13.05.2011 since the PIO himself received the said information on 12.05.2011. The Respondent submitted that response with respect to question no. 3 was supplied on 24.05.2011 alongwith audited Balance Sheet for the year 200910. The Respondent further stated that pursuant to the CIC order comments from the Mount St. Mary's School were sought and obtained on 03.10.2011 whereby the School authorities have emphasized that they are a self financed, self controlled and self managed organization and receive no aid from the Government. Hence the School denied the information while concluding that they do not fall within the purview of the RTI Act 2005. The Directorate of Education further stated that as a mandate all unaided Recognized Public Schools submit some information under Rule 180(1) of the DSEA&R 1973 in the form of budget estimates of receipts and payments of ensuing year, final accounts duly audited by CA, enrolment of students as on 30 th April, pattern of concession/scholarship etc, staff statement, schedule of fees/fines/funds etc., statement showing dates of disbursement of salaries etc. which being in the custody of the PIO can be provided at anytime. The Respondents in their later submissions dated 01.11.2011 enumerated some of the exemptions enjoyed by the School under provisions of Subrule IV and V of the Rule 59 with respect to the Scheme of Management of recognized schools. While discussing the various Rules, in their submissions, it has been emphasized that the role of the nominee of the Directorate of Education in the Managing Committee and Selection Committee/DPC shall be that of an advisor who would be required to put forth views of the Government and advise as per the correct legal position which will be recorded in the minutes. It has also been confirmed by the Directorate that the land for the School had been allotted by Delhi Cantonment Board but not by DDA or L&DO. The instant case at hand was distinguished from the case of DPS Rohini by the Respondent stating that while DPS, Rohini was an Unaided Recognized Public School, Mount St. Mary School is an Unaided Recognised Minority Public School.
7. The Third Party (The School authorities) refused to part with any information stating that the school does not fall within the purview of the RTI Act 2005 reiterating their contentions as made earlier to the Directorate, as mentioned above. In their submissions dated 01.11.2011 while reiterating that the land upon which the School is built has been provided by the Defense Ministry on Lease basis since 1964, the School authorities cited the Article 30(1) of the Constitution of India upholding the rights of minorities to establish and administer educational institutions of their choice. The Principal of the School also laid emphasis on the judgments in respect TMA Pai Foundation and Frank Anthony Public School Employees Association wherein the Apex Court discussed and stressed the need for autonomy in Unaided Private Minority Schools in the light of the Article 30 (1) of the Constitution of India. The School which is also the Third Party in this case further submitted that frivolous and vexatious information were being sought by the information seekers, which may lead to disastrous consequences. The School authorities further submitted that on account of the leasehold land obtained from the Army, the School is bound by the terms of the lease and the School cannot exercise any powers to use the land as per its own requirements. Furthermore, the page 3, paragraph 9, Schedule 8 also specifies that minimum 70% of the admissions have to be given to the children of Defense personnel. Thus the only arguments placed forth by the Third Party against the providing of the information is that such transparency will lead to violation of Article 30 of the Constitution of India and that the school is "existing purely out of an agreement with the defense department with the terms clearly spelt out". Decision
8. The central issue which is to be decided in this case is whether the Mount St. Mary's School can be declared as a "public authority" or not under Section 2(h) of the RTI Act.
9. On perusal of the submissions on record and after hearing the concerned parties in the instant case it is noted that the third party(School) has insisted that the DPS Rohini case and the instant case are different since while the DPS Rohini is an unaided, recognized private school, the Mount St. Mary's school is an unaided, recognized Minority school while, however, not providing any further clarification as to why because of this distinction, information sought by the Appellant is exempt from disclosure. It may be noted at this stage that the Delhi Public School, Rohini in its decision in case no. CIC/SG/C/2010/001036AD dated 23 August, was recognized by the Commission as a Public Authority . It may also be noted that the only point of distinction between DPS Rohini and Mount St. Mary's School is that the latter describes itself to be rendering service to children of minorities. As per their (school authorities) own admission, the information cannot be provided since they are not covered by the RTI Act, the school being an unaided minority school wherein the majority of the seats amounting to at least 70% are reserved for the children of defense personnel residing anywhere in Delhi (not necessarily belonging to children of minority communities) and to children of civilians residing within the Cantonment limits. However, since no averment clarifying their position that information is exempt from disclosure based on the fact that the school is an unaided Minority school has been made by the Third Party(school) despite grant of sufficient opportunity, no cause for distinction between the DPS, Rohini and the Mount St. Mary's School could be established by the Commission, in this regard.
8. Perusal of the Lease deed dated 20.09.1962 between Military Estates Officer, Delhi Circle, Delhi Cantt and Principal , St. Mary's Academy (the Principal, St. Mary's Academy subsequently on 23.1.1964 passed on the leasehold rights acquired by him on behalf of the Principal, Mt. St. Mary's School, to the latter) reveals that five acres of land were leased out to the school, upto fifty years on an yearly rent of Rs. 2500/ only with a specific mandate of 70% reservation of seats for defense personnel's children residing anywhere in Delhi and for children of civilians residing within the Cantonment limits. The Lease deed also reveals that except for construction of the school building, the Third Party(school) herein was debarred from making any addition or alteration on the premises including cutting down of trees growing on the premises without the previous consent in writing of the Military Estate officer or even undertaking any excavation on the land or removal of any minerals or sand or clay from the land thus establishing an administrative control by the Ministry of Defense on the usage of land. It is worthwhile remembering at this stage that apart from the reliance on Article 30(1) of the Constitution of India and the aforementioned lease with the Defense Ministry, the School has not submitted any other substantial grounds as to why they cannot be considered as a Public Authority. 9 It is the Commission's case that allotment (grant) of 5 acres of prime land in Delhi Cantonment area by the Ministry of Defense at concessional rate to the school on an yearly rent of only Rs.2500/ for 50 years tantamounts to 'substantial funding' by the appropriate Government (ref: Section 2(h)(d)(i) of the RTI Act which defines a Public Authority), especially if one were to calculate the cost of the property at the prevailing market rate, which runs into crores of Rupees. This averment on the part of the Commission is also based on the decision of the Hon'ble Delhi High Court who while declaring the Indian Olympic Association and Sanskriti school as Public Authorities has discussed the purport and scope of the term 'substantial funding' and has ruled that :
"........what amounts to "substantial" financing cannot be straightjacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not "majority" financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of nongovernment organization means that it is independent of any manner of government control in its establishment, or management. "That the organization does not perform - or predominantly perform - "public" duties too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals..."
The High Court further decided that :
"grants by the Government bestowed retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort ..........
10. While deciding the fate of the Sanskriti School which had similar facts and circumstances like the school in the instant case, in the aforementioned judgment itself, the Delhi High Court had also observed in paragraphs 73 and 74 that:
........As discussed earlier, grants by the Government retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort. ............... A truly public school would have been under an obligation to return the amount with some interest....." ......The conditionality of having to admit children of employees of the Central Government can hardly be characterized as a legitimate public end; it certainly would not muster any permissible classification test under Article 14 of the Constitution.
11. The Hon'ble Punjab & Haryana High Court too while deciding the case Jullundur Gymkhana vs State Information Commission and Others, in its decision dated 9.5.11 has observed that :
"What is not disputed here is that the word "substantial" has not been defined under RTI Act and has no limited or fixed meaning . For the purpose of legislation , it has to be construed in its ordinary and natural sense relatable to the aims, fundamental purpose and objects sought to be achieved to provide transparency to contain corruption and to promote accountability under the RTI Act".
The Hon'ble Judge further observed:
........the funds which the Government deals with are public funds They belong to the people. In that eventuality, wherever public funds are provided, the word "substantially financed" cannot possibly be interpreted in narrow and limited terms of mathematical calculation and percentages(%). Wherever the public funds are provided, the word "substantial" has to be construed in contradistinction to the word "trivial" and where the funding is not trivial to be ignored as pittance , then to me, the same would amount to substantial funding coming from the public funds. Therefore, whatever benefit flows to the petitionerinstitution in the form of share capital contribution or subsidy, land or any other direct or indirect funding from different fiscal provisions for fee, duty tax, as depicted hereinabove would amount to substantial finance by the funds provided directly or indirectly by the appropriate Government for the purpose of RTI Act, in this behalf. "
12. The Commission while relying upon the various decisions given hereinabove is convinced that the Mount St. Mary's School may be considered as being "substantially financed" by the appropriate Government, in view of the 5 acres of prime land granted to it at subsidized rates and the income tax concessions being enjoyed by the school and that therefore it can be declared as a Public Authority.
13. The Third Party on its part has not shed any light on the aspect of substantial financing although an opportunity was provided to the School authorities to place their point of view on this aspect before the commission.
14. While probing further on the aspect of 'control' of the appropriate authority on the school, in order to further establish that the Mount St. Mary's school is a Public Authority (ref: Section 2(h)(d)(i) 0f the RTI Act, ) it is noted that the Delhi School Education Act 1973 already clearly spells out the extent of administrative control that the Government has over recognized unaided minority schools . This control is manifest in the Government's power to prescribe minimum qualifications for recruitment; the power to prescribe Code of Conduct; the power to enter into contract of service with every employee of such school including a) the terms and conditions of service of the employee; b) the leave of absence, age of retirement, pension and gratuity, and medical and other benefits to which the employee shall be entitled; c) the penalties which may be imposed on the employee for the violation of any Code of Conduct or the breach of any term of the contract entered into by him; d) the manner in which disciplinary proceedings in relation to the employee shall be conducted and the procedure which shall be followed before any employee is dismissed, removed from service or reduced in rank; e) arbitration of any dispute arising out of any breach of contract between the employee and the managing committee with regard to (i) the scales of pay and other allowances, (ii) leave of absence, age of retirement, pension, gratuity, provident fund, medical and other benefits, (iii) any disciplinary action leading to the dismissal or removal from service or reduction in rank of the employee.
15. Chapter VII of the DSE Act 1973 also indicates that the Government has reasonable control over the recognized schools. The relevant extract of the Act is as follows:
Taking over the management of schools (1) Whenever the Administrator is satisfied that the managing committee or manager of any school, whether recognised or not, has neglected to perform any of the duties imposed on it by or under this Act or any rule made thereunder and that it is expedient in the interests of school education to take over the management of such school, he may, after giving the managing committee or the manager of such school, a reasonable opportunity of showing cause against the proposed action, take over the management of such school for a limited period not exceeding three years :.
16. Also as per The Delhi School Education Rules 1973 , the Director of Education is responsible for Inspection and supervision of recognized schools whether aided or not, with the objective of improving standards of teaching in the school.
17. While establishing the fact that there is reasonable extent of administrative control of the appropriate Government over the Mount St. Mary's school, the Commission also relies upon the judgment in an earlier case of Electronics and Computer Software Export Promotion Council Vs. Central Information Commission and Ors. (WP. 11434/2006, decided on 19.7.2006), by the Hon'ble Delhi High Court, who while addressing this issue in context of 'administrative control', in the paragraph 7 of the judgment, has held as follows:
"....7. The Central Information Commission has held that petitioner is a public authority on account of administrative control of Department of Information Technology on the petitioner on the basis of various factors stipulated in its order which are not negated on account of autonomous character of the petitioner in framing its rules governing the service conditions of its employees and the employees of the petitioner being not the Government servants. On the plea that its employees are not government servants, the control of Department of Information Technology cannot be negated. Therefore the probable inference is that the petitioner is under the administrative control of Department of Information Technology....."
It is important to note once again at this stage that the Third Party (School) has nowhere either addressed or rebutted this issue.
18. The basic purpose of the RTI Act is to promote transparency and openness in the functioning of the Public Authorities. The crucial role of access to information for ensuring spread of benefits of development to all citizens should be recognized as also the fact that nonstate actors too have responsibilities of disclosing information which would be useful and necessary for the people they serve, as it makes democracy responsive and more meaningful.
19. In view of all the above factors, this Commission holds that the Mount St. Mary's School being substantially funded and under control of the appropriate Government , fulfils the essential elements of being a 'Public Authority' and therefore is covered under the regime of the RTI Act.
20. The Commission therefore directs the Principal of Mount St. Mary's School to designate an official in the School as the PIO at the earliest as per provisions of Section 5 of the RTI Act 2005 and also to comply with Section 4 of the RTI Act by end of March, 2012. The information sought by the Complainant may be provided to him by 25 February, 2012. He may also be allowed to inspect records and be provided with copies of documents required by him, 50 pages free of cost, the rest at the rate of Rs.2/ per page as photocopying charges.
.
21. The case is disposed on the above terms.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Deputy Registrar Cc:
1. Mr. Tilak Raj Tanwar CB - 363, Naraina Ring Road, New Delhi
2. PIO, Deputy Director of Education South West A, C4, Vasant Vihar Behind Tagore International School Delhi
3. The Principal, Mount St. Mary's School 75, Parade Road, Delhi Cantonment New Delhi - 110 010
4. Officer in Charge, NIC The decision announced in the open court on 11 January, 2012.
Note: In case, the Commission's above directives have not been complied with by the Respondents, the Appellant may file a formal complaint with the Commission under Section 18(1) of the RTI Act, giving (1) copy of RTI application, (2) copy of PIO's reply, (3) copy of the decision of the first Appellate Authority, (4) copy of the Commission's decision, and (5) any other documents which he/she considers to be necessary for deciding the complaint. In the prayer, the Appellant may indicate, what information has not been provided.