Central Information Commission
S. Ashokan vs Bharat Heavy Electricals Limited ... on 29 March, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/BHELD/A/2020/138031
S. Ashokan ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electricals Ltd.,
RTI Cell, BHEL, ISG Prof CNR
Rao Circle, Opp. Indian
Institute of Science, Malleswaram,
Bengalore-560012, Karnataka. .... ितवादीगण /Respondent
Date of Hearing : 02/02/2022
Date of Decision : 25/03/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 10/08/2020
CPIO replied on : 10/09/2020
First appeal filed on : 14/09/2020
First Appellate Authority order : 14/10/2020
2nd Appeal/Complaint dated : 28/10/2020
Information sought:
1The Appellant filed an RTI application dated 10.08.2020 seeking the following information;
1) The details of pre-suitability marks of S.Vijayalakshmi and the promoted candidates for the year 2015, 2016, 2017& 2018 by filling the charts attached as per Annexure I & ll prepared based on promotion guidelines for AGM.
2) Synopsis made by the ISG unit for DPC as per promotion policy for S.Vjayalakshmi and promoted officers for the years 2015,2016, 2017&2018.
The CPIO replied to the appellant on 10.09.2020 as under;
Reply to Query 1: The information sought under this query being in the nature of personal information is exempted from disclosure under Section 8 (1) (e) & 8 (1) (j) of RTl Act,2005 and hence unable to provide the said information.
Reply to Query 2: The information sought under this query being in the nature of personal information is exempted from disclosure under Section 8 (1) (e) & 8 (1) (j) of RTI Act, 2005 and hence unable to provide the said information.
Being dissatisfied, the appellant filed a First Appeal dated 14.09.2020. FAA's order dated 14.10.2020, upheld the reply of CPIO.
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 audio-conference.
Respondent C Banumati, CPIO along with H V Muralidhara Murthy, Advocate & Rep. of CPIO present through audio-conference.
The Appellant raised the following arguments in his instant Appeal -
".....The CPIO and FAA have quoted clauses under section 8(1) (e) and 8(1) (j) of RTI Act 2005 for denying the two information's ( 1. pre-suitability marks and
2. synopsis prepared for the DPC to assign their ratings) requested and also cited the order of honorable high court Delhi. But I dispute their contention due to the following reasons.
2With regards to quoting High Court of Delhi in THDC India Vs. RK Raturi:
The judgment of High Court of Delhi in THDC India Vs. RK Raturi cannot be completely applicable since BHEL is not following traditional ACR system but e'MAP a transparent evaluation system. However one part of the judgment is very much applicable. In my case the company denied information quoting it is third party information and cannot be shared. But the court observed that "Court is not inclined to violate the right to privacy of the said three public officers which is a Fundamental Right embedded in our Constitution." However, information regarding the break- up of marks obtained by the last selected candidate as per (I) Seniority (ii) Qualification and (iii) Online Examination ought to be provided to the Appellant" The court has directed the company to share the confidential details of CR and DPC marks obtained by the last selected candidate. This clearly indicates that in my case the request was made to furnish the information without mentioning the names cannot be denied. Also note that requested information on pre-suitability and synopsis are not confidential information . Hence I am entitled to get the pre- suitability and synopsis for AGM post in the years 2013. 2014, 2015, 2016, 2017 and 2018 without mentioning the names, and the information cannot be denied quoting section 8(1) (e) and 6(1) (j).
Also this judgment clearly indicates that providing marks without mentioning the names do not violate the right to privacy which is a Fundamental Right embedded in our Constitution". Hence requesting pre-suitability marks and synopsis will not amounts to unwarranted invasion of the privacy of the individual under section 8(1) (1) of RTI Act 2005 and hence the information cannot be denied quoting this section.
B) Denying under section 8(1) (e) of RT1 Act 2005 is not tenable: The reasons are:
1) In the years 2013, 2014, 2015, 2016, 2017 and 2018, Vijayalakshmi was the only lady candidate eligible for promotion to AGM level is known to all employees in ISG. Please note that pre-suitability score and synopsis of others was requested without mentioning their names. Vijayalakshmi will not object for sharing her information by the company by mentioning her name since she is the affected lady officer in this case and she wanted to know the reason for dropping her so many times. In case of other officers also, as their names are not mentioned, the officers cannot understand whose scores are divulged.
Hence fiduciary relationship is not affected by sharing the details without the names. Hence denying the information quoting clause under section 8(1) (e) of RTI Act 2005 cannot be accepted.
Xxxxxxxxxxxx 3 Please note that every individual is aware of his / her marks up to Pre- suitability stage. This transparency is due to the e'MAP system followed in BHEL. Also the synopsis is not a confidential document since it is a collection of details on individuals by HR department. Hence furnishing these transparent pre-suitability marks and synopsis will not affect any fiduciary relationship since it is not confidential information like DPC marks or old CR rating marks which even the concerned individual will not know unlike in e MAP system. Hence it will not attract section 8(1) (e) of RTI Act 2005 to deny information. C) Denying under section 8(1) (j) of RTI Act 2005 is not tenable: reasons are:
1) The disclosure of the information cannot invade the privacy of any individual since nobody can know whose marks or synopsis are divulged since it is furnished without names. Hence no personal information is invaded. Also the information requested is not. DPC marks or CR marks which are confidential. Hence denying the informations by quoting the clause 8(1) (j) of RTI Act 2005 is not correct. Please note that the last Para of 8(1) (j) of RT1 Act 2005 states that "Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person". These ordinary non --confidential in formations cannot be denied to Parliament or a State Legislature and hence the CPIO I FAA are bound to provide the information requested under my RTI query.
2) Also as per judgment of High Court of Delhi in THDC India Vs. RK Raturi clearly indicates that providing marks without mentioning the names do not violate the right to privacy which is a Fundamental Right embedded in our Constitution". Hence requesting pre-suitability marks without names will not amounts to unwarranted invasion of the privacy 4 of the individual under section 8(1) (1) of RTI Act 2005 and hence the information cannot be denied quoting this section.
D) Public interest also involved. Reasons are:
1) BHEL taking pride in developing ladies by increasing their strength in the organization in forums like SCOPE ( Standing Committee on Public Enterprises) meeting held in 2017 on women in leadership in public sector undertakings.
2) On women's day in 2021 BHEL presented an excellent song on development of women in BHEL. The same is available on net vide :
VIDEO-2021-03 08-20-00-42-mp4
3) Public also were very happy on BHEL to note the encouragement and celebrating women in the organization. Hence public wanted to know the details why Vijayalakshmi was denied promotion 5 times at BHEL 1 ISG. Hence the information is of public importance to verify the words and deeds of BHEL in general and ISG Unit in particular.4
4) ISG is a unit of BHEL and they cannot violate the guidelines or values practiced by BHEL Corporation as a whole in the interest of women and public.
The information requested without names will not affect the fiduciary relationship or it amounts to unwarranted invasion of the privacy of the individual and the information is not confidential information like CR or DPC marks. Also the information requested is under larger public interest which is also explained above under heading "D". Hence the information requested cannot be denied either considering me as a retired employee or as a public by quoting 8(1) (e) & 8(1) (j) of RTI Act 2005 as reasons.
Per contra, the CPIO invited attention of the bench towards his latest writtten submission dated Nil, relevant portion of which is as under-
3. " Smt. S.Vijayalakshmi, SDGM, BHEL/ISG, whose name is referred in the RTI application has retired from the services of BHEL/ISG on 24.01.2019. The Appellant, Shri. S Ashokan had sought for the details pertaining to a different person (information pertaining to Third Party). Since, the queries raised by the Appellant were purely personal and. confidential in nature and pertains to third party, this Respondent vide its reply dated 10Ih September 2020 (Copy produced herewith and marked as Document No.3) had denied production of the informations sought by the Appellant as detailed supra, by invoking the Section 8(1) (e) and 8 (1) (j) of RTI Act 2005.
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5. The Appellant without going through reasons for not providing information as detailed in the orders of CPIO and Appellate Authority, moved before this Hon'ble Authority with Second Appeal.........
6. In the said Second Appeal, though the Appellant mentioned that he has edited and simplified the information required from the Respondent under RTI Act, the essence of the information sought remains the same and pertains to information. related to Third Party.
7. It is very clear that the reasons for not providing information to Appellant is 'that the information sought by the appellant is of purely personal and confidential in nature pertaining to third party and thus the Appellant is not entitled to receive the said information and the Respondent is of the opinion that providing such information shall result in intruding into the privacy of individual i.e., Third Party.
58. Without prejudice to the above, the Appellant's query and the CPIO/Appellate Authority's denial of providing such information, the Respondent hereby submits its legal submissions in support of its rejection of information to this Appellant:
9. The Respondent humbly brings to the Notice of this Hon'ble Commission that the Respondent had referred the following Judgment passed by the Hon'ble High Court of Delhi, while seeking exemption from providing information sought by the appellant (THDC India Ltd. Vs. R K Raturi, WP (C ) 90312013), wherein it was held that "Consequently, this Court is of the view that ACR grading/ ratings as also the marks given to the candidates based on. the said ACR grading/ ratings and their interview marks contained in the DPC proceedings can be disclosed only to the concerned employee and not to any other employee as that would constitute third party information. This Court is also of the opinion that third party information can only be disclosed if a finding of a larger public interest being involved is given, by GIC and further if third party procedure as prescribed under Sections 11(1) and 19 (4) of the RTI Act is followed.''
10.In the instant case, the information sought by the Appellant pertains to the pre-suitability marks which includes e-map scores (performance ratings) and DPC synopsis pertaining to the promotion of a Third Party and in the present case, it is categorically stated that no larger public interest is involved. He is further submitted that providing of the Third Party information, as sought by the Appellant, herein, would be detrimental to the interest of the Third Party and no purpose is served to the larger public and further, if the information as sought is provided, it not only intrudes the privacy of the Third Party but also may be misused."
To a query from the Commission regarding the locus standi of the Appellant in the averred promotion case, the Advocate of the CPIO clarified that he was not amongst the officers who were considered for promotion.
Decision:
The Commission upon a perusal of records and after considering submissions of both the parties at length is of the considered view that denial of pre-suitability marks of the averred third party and also the promotion parameters followed by DPC for other promoted officers including that third party by the CPIO and FAA under Section 8(1)(j) of RTI Act is appropriate. In this regard, attention of the Appellant is drawn towards a judgment of the Hon'ble Supreme Court in the 6 matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner &Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India &Anr., (2013) 14 SCC 794. The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
In furtherance to aforesaid observations, the contentions of the Appellant that disclosure of information of a third party more particularly his/her marks for promotion is rendered inconsequential.
In view of the above, no further intervention of the Commission is warranted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy 7 (अिभ मािणत स"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8