Central Information Commission
Mushtaque Ahmed Merekar vs Mumbai Port Trust on 12 April, 2021
CIC/MPTRS/A/2019/110067
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथ माग,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या/ Second Appeal No. CIC/MPTRS/A/2019/110067
In the matter of:
Mushtaque Ahmed Merekar ... अपीलकता/Appellant
VERSUS
बनाम
CPIO, ... ितवादीगण /Respondent
/Dy. Secretary,
Mumbai Port Trust, General
Administration Department, Mumbai.
Relevant dates emerging from the appeal:
RTI Application filed on : 05.12.2018
CPIO replied on : 16.01.2019
First Appeal filed on : 25.01.2019
First Appellate Authority order : 12.02.2019
Second Appeal Received on : 06.03.2019
Date of Hearing : 30.03.2021
The following were present:
Appellant: Shri Mushtaque Ahmed Merekar participated in the hearing on being
contacted on his telephone.
Respondent: Shri S.R. Aphale, CPIO & Dy. Secretary, HR Section, Mumbai Port
Trust participated in the hearing through video conferencing from NIC Bandra (E).
Page 1 of 11
CIC/MPTRS/A/2019/110067
ORDER
Information sought:
The Appellant filed an RTI Application dated 05.12.2018 seeking information through four points regarding certified copies of recommendation of the officials of the Selection Committee and the approval by the Competent Authority with name and designation in connection with promotion to the post of Executive Engineer, Senior Executive Engineer, Superintending Engineer and the Dy. Chief Engineer in the Civil Engineering Department of Mumbai Port Trust for the period between 1989 to 2006. He specifically sought as under:
1) "Please provide certified copies of recommendation of the officials of the Selection Committee and the approval by the Competent Authority with name and designation in connection with promotion to the post of Executive Engineer, Senior Executive Engineer, Superintending Engineer and the Dy. Chief Engineer in the Civil Engineering Department of Mumbai Port Trust in the period from the year 1989 to 2006 of the officers, B.R.Kadam, N.M.Purohit, U.M.Suryavanshi , M.V. Patwardhan, AJ.Lokhande and G.M. Yerendekar on penal of selection alongwith Mr. M. A. Merekar - Ex. Dy. Chief Engineer as per record.
2) Please also provide information pertaining to their Annual Confidential Report (Self Assessment), review by Reviewing Officer and approval by the Approving Officer, number of marks granted under each head and total marks, grading (Poor, Good, Excellent etc.) margin notes / remarks /comments of the officials and the approving authority including margin notes / remarks /comments of the officials and the approving authority with name and designation pursuant to the order passed by the Hon'ble Justice in respect of an exclusive Petition filed by Mr. M.A.Merekar in the Hon'ble Court of Bombay as per record.
3) Copy of representation / appeal submitted by Mr. M.A.Merekar in the year 1997 to 2006 against the adverse remarks and the comments by the reviewing and approving officer and the final approving authority with names and designation
4) Please provide copy of necessary documents in support as per record."Page 2 of 11
CIC/MPTRS/A/2019/110067 The CPIO vide letter dated 16.01.2019, informed to Appellant as under:
"The information sought by your RTI application dated 05.12.2018 and your letter dated 09.01.2019 forwarding the additional amount of Rs. 76/- (Rupees Seventy Six only). Please find enclosed herewith the desired documents/information (in 38 pages)".
Being dissatisfied, the Appellant filed a First Appeal dated 25.01.2019. The First Appellate Authority vide order dated 12.02.2019, provided a detailed, reasoned, speaking order enumerating the facts and circumstances of the instant case.
Grounds for Second Appeal:
The Appellant filed a Second Appeal u/s 19 of the Act on the ground of unsatisfactory reply furnished by the Respondent. He requested the Commission to direct the CPIO to provide complete information sought for.
Submissions made by Appellant and Respondent during Hearing:
The Appellant stated that he is not satisfied with the reply provided by the Respondent. Upon queried by the Commission, he reiterated the contents of his written submission dated 23.03.2021, which are reproduced verbatim as under:
"A. The Appellant had submitted a representation dated 17.04.2000 through the Chief Engineer for expunging the adverse remarks of the year ending March 1998 and March 1999. Later it was learnt that the Chief Engineer had forwarded the comments on the representation in and around May 2000 to the Manager (SOM) wherein the Chief Engineer had considered the representation favourably. The Appellant therefore requested for the copy of comments of the Chief Engineer on the representation above.
B. As stated under para (I) (2), the grading of each officer by name was not stated in the DPC report held on 10.05.1995. In this context the Appellant would like to request perusal to pertinent paras 3.4 & 3.5 of the DPC report reproduced for ready reference as under:
3.4 Only four officers names S/Shri B.R.Kada, N.M.Purohit, U.M.Suryavanshi and M.A.Merekar (the Appellant) fulfil the qualifying service and are eligible.Page 3 of 11
CIC/MPTRS/A/2019/110067 3.5 The Committee perused the Confidential Reports on these three officers and grades them as 'Very Good'.
It is pertinent to notice here that at para 3.4 four officers are shown by name fulfilling qualifying service and eligibility but in the next para 3.5 it is stated that DPC grades three officers as 'V. Good' but the name of the three officers not stated while all the four officers are fulfilling the qualifying service and eligibility. Hence it is not known which are the three officers by name who were graded as 'V. Good'. Therefore, the Appellant requested information in regard to (i) the name of the three officers whom DPC graded as 'V.Good' and (ii) and the grade of the fourth officer by name.
...
i. It was informed by CPIO, GAD that ACRs of Shri Merekar were weeded out. The Appellant therefore understands that only the ACRs would have been weeded out and not comments on the representation dated 17.04.2000 by the officers at various level. Nevertheless, the Appellant believes that the copy of representation and CE's comments must be available not only in the office of the CE but also in the office of the Secretary and Manager (SOM) MbPT. Apart from this, the documents stated above were an accompaniment to the order passed by the Chairman as communicated by CE vide letter CE.Confdl/1859 dated 18.06.2003. Further to this, the Appellant is sure that the same must be available in the office of Legal, CE, Secretary and Manager (SOM) department as Exhibit in reply to a Writ Petition No. 114 of 2003 filed by the Appellant in the Hon'ble High Court, Bombay. Thus the First Appellate Authority should be in a position to provide the information sought by the Appellant.
ii. Prior to this, the Appellant had requested for providing the abovementioned information by an application dated 07.02.2009 under RTI Act 2005. However, the First Appellate Authority had refused to provide by citing clause (j) of Section 8(1) of RTI Act 2005.
iii. ...
iv. The information sought relates to the Appellant alone. Therefore, the question of unwarranted invasion of the privacy of the individual is ruled out. Hence the information sought cannot be considered as an 'exemption from disclosure of information' under this section. v. While on the subject it is pertinent to place before that on one hand the Appellant was informed that the ACRs have been weeded out or not available in the office of CPIO. However, despite this fact, on the other Page 4 of 11 CIC/MPTRS/A/2019/110067 hand, the Appellant was advised to visit the office of CPIO for inspection of documents as may be seen from the CPIO's reply to the Hon'ble Information Commissioner at para 5 of the letter dated 19.03.2021 copied to the Appellant. It may further be added here that the information sought was in respect of comment of the officers at various level on just 5 to 6 representations submitted by the Appellant between the year 2000 and 2005 and not for the period of 17 years as misinformed and exaggerated by the CPIO.
vi. The Appellant would like to rely upon the abovementioned document in a defamation suit to be filed in the Hon'ble High Court of Bombay more particularly against the then Dy. Chairman, MbPT, Shri Rajiv Sinha and to claim damages thereof. Thus, the information sought is very vital for the Appellant. Therefore, the First Appellate Authority should provide the same without any further delay.
2. Information relating to DPC held on 10.05.1995 i. The First Appellate Authority has refused to provide the information at p.6 of the Order 92 dated 12.02.2019 by citing (j) Section of 8(1) of RTI Act 2005 and informed that except grading of the Appellant, the grading of other officers could not have been disclosed for being personal information.
ii. At the outset therefore the First Appellate Authority could have at least provided the information regarding grading exclusively of the Appellant considered in DPC. Secondly, the information regarding grading considered by DPC of the officers is not at all a personal information of other officers. These are simply the grading considered by an authority of the port. Thirdly, it is stated at para 3.4 that all officers by name fulfil the qualifying service and are eligible. Thus all the four officers must be fulfilling the bench mark grading. However, at para 3.5 it is stated that the Committee perused the Confidential Reports on three officers and grades them as 'Very Good' while all the four officers fulfil the qualifying service and were eligible. Therefore the Appellant requested information in regard to (i) the names of three officers whom DPC graded as 'V. Good' and
(ii) the grade of the fourth officer by name considered by DPC. However, the First Appellate Authority refused to provide the same by citing as referred to above.
iii. The Appellant would therefore like to place before that the CPIO has provided 16 DPC reports from 1989 to 2000 under RTI Act 2005 as stated at para 7 of the letter dated 19.03.2021 copied to the Appellant in response to the RTI application mentioned above in which grading considered for Page 5 of 11 CIC/MPTRS/A/2019/110067 each and every individual officer by name including the name of the Appellant is stated excepting that for the DPC held on 10.05.1995. 4 DPC reports are attached for ready reference. The Appellant therefore fails to understand as to why should there be an exception in regard to the DPC held on 10.05.1995. The Appellant therefore has the right to information regarding grading of the officers by name considered in the DPC held on 10.05.1995. It may be added here that the information should equally be available with the parent department.
iv. Earlier to this, the Appellant had requested for information regarding grading of the Appellant from 1988 onward which was provided by an Order 9 dated 04.05.2009. It is pertinent to point out here that MbPT had then not refused to provide information under section cited above. As such there is inconsistency in adjudicating the application and therefore the reservation brought out now not to provide the information sought under subject RTI application in terms of (j) of Section 8(1) of RTI Act 2005 may not be sustainable.
v. As apparent from CPIO's reply to the Hon'ble Information Commissioner at para 11 of the letter dated 19.03.2021 copied to the Appellant, the CPIO has not understood the information sought for. It was simply relating to
(i) the names of three officers whom DPC graded as 'V. Good' and (ii) the grade of the fourth officer by name considered by DPC. vi. The Appellant would like to humbly submit here that from the information received under Order 9 of 04.05.2009, the Appellant's grading of the previous 5 years of the DPC held on 10.05.1995 is evaluated as 'Outstanding'. Therefore, the Appellant would like to seek remedy from the authorities as appropriate. Hence the First Appellate Authority must provide the information sought by the Appellant.
In addition to the above, the Appellant requested the Commission to direct the Respondent to provide the relevant information as sought in the instant RTI Application.
The Respondent submitted that relevant information as per availability of records has been provided to the Appellant. He further submitted that he will abide by the orders of the Commission, if any in the matter.
Page 6 of 11CIC/MPTRS/A/2019/110067 A written submission has been received by the Commission from Shri S.R. Aphale, CPIO & Dy. Secretary, HR Section, Mumbai Port Trust vide letter dated 19.03.2021, wherein he has stated as under:
"...
...
4. The CPIO, HR Section, by letter dated 10.12.2018 inter alia informed the Appellant that the information sought by him at Para 2 of Point Nos. 2 to 4 of the RTI application is likely to be held by another authorities and therefore his RTI application is forwarded/transferred under Section 6(3) of the RTI Act, 2005 to the CPIOs of General Administration Department (Point Nos. 2 & 4) and Civil Engineering Department (Point Nos. 3 & 4) to furnish the information directly to the Appellant.
5. Subsequently by letter dated 20.12.2018, the CPIO, HR Section, inter alia informed the Appellant that the desired information is voluminous in nature and diverse since there are many files / documents exist in this office. Further, the information sought is spreaded over for the period of about 17 years or so. It would, therefore, disproportionately divert the resources of this public authority. Hence, the Appellant was requested to come for inspection of documents available with HR Section, GAD.
6. The Appellant did not turn up for the inspection of records but by letter date 27.12.2018 addressed to CPIO, HR Section and copy endorsed to CPIO, CE Department for information, has stated that:
"I do appreciate your concern and request for following information:
(1) Recommendation of DPC including margin notes / comments and approval by the Competent Authority in connection with promotion of Shri M.A.Merekar to the post of Executive Engineer in 1989/90 & 1991; Senior Executive Engineer in 1995;
Superintending Engineer in 1997 and Dy. Chief Engineer in 2000 & 2002 together with list of officers in 'Zone of Consideration' approved by CE's Deptt. thereat.
(2) Margin notes / remarks / comments / marks / grading by the Reporting, Reviewing and Approving officers on the ACR of Shri M.A.Merekar for the year ending 1998 to 2002 and copy of Adverse Remarks for the year ending March 2002; if issued. If not issued, please confirm.
Page 7 of 11CIC/MPTRS/A/2019/110067 (3) Comments / margin notes / remarks by the Reporting, Reviewing officer and the approving authority on the representation dated 17.4.2000, 15.1.2001 and 28.1.2001 submitted by Shri M.A.Merekar in respect of Adverse Remarks for the year ending 1998 to 2001 and margin notes / remarks / comments of the concerned officials and the approving authority on the representation dated 17.4.2000, 15.1.2001 and 28.1.2001 for the year ending 1998 to 2001 submitted by Shri M.A.Merekar pursuant to the order passed by the Hon'ble Justice on 15.2.2003 in respect of Petition 114/2003 filed by Shri M.A.Merekar in the Hon'ble Court of Bombay.
I believe the information now requested is simple and concise and request you to kindly send the documents by post to my residential address, at the earliest."
7. Thus information sought at Point No. (1) of the letter dated 27.12.2018 from the Appellant was relating/pertaining to CPIO, HR Section and remaining 2 points were pertaining/relating to CPIO, CE Department. Accordingly, by letter dated 16.1.2019, the CPIO, HR Section, inter alia provided all the copies of following documents to the Appellant:
Sl. No. DPC Reports
1 DPC Report dated 20.9.1989 for the post of Asstt. Exe. Engineer
2 DPC Report dated 30.9.1994 for the post of Sr. Exe. Engineer
3 DPC Report dated 17.10.1994 for the post of Sr. Exe. Engineer
4 DPC Report dated 10.5.1995 for the post of Dy. Chief Engineer
5 DPC Report dated 29.7.1997 for the post of Suptdg. Engineer
6 DPC Report dated 29.7.1997 for the post of Dy. Chief Engineer on
ad-hoc basis
7 DPC Report dated 5.12.1998 for the post of Dy. Chief Engineer
8 DPC Report dated 11.4.2000 for the post of Dy. Chief Engineer
9 DPC Report dated 16.6.2000 for the post of Addl. Chief Engineer
10 DPC Report dated 9.11.2000 for the post of Dy. Chief Engineer
11 DPC Report dated 16.2.2002 for the post of Dy. Chief Engineer
12 DPC Report dated 11.2.2002 for the post of Addl. Chief Engineer
13 DPC Report dated 24.10.2005 for the post of Addl. Chief Engineer
14 DPC Report dated 26.9.2006 for the post of Dy. Chief Engineer
15 DPC Report dated 3.10.2006 for the post of Suptdg. Engineer
16 DPC Report dated 19.4.2000 for the post of Suptdg. Engineer
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CIC/MPTRS/A/2019/110067
8. Subsequently Shri M.A.Merekar has preferred an appeal dated 19.1.2019 against reply of the CPIO of GAD, HR Section.
9. As regards Shri Merekar's appeal dated 19.1.2019 on HR Section's reply dated 16.1.2019 under the RTI Act, it was informed by letter dated 21.1.2019 to the Sr. Dy. Secretary & First Appellate Authority that the requisite information was provided to Shri Merekar by letter dated 16.1.2019 and it was further clarified that the Appellant has sought gradings of each of the four other officers stated at para 3.4 of the DPC Report dated 10.5.1995 for the post of Superintending Engineer. However, the same are not available in the office record.
10. Now, Shri Merekar in his second appeal dated 27.2.2019 addressed to the Central Information Commission has again requested to provide the information sought in his appeal dated 19.1.2019 which is not held/available with the CPIO, HR Section, GAD, Mumbai Port Trust.
11. In this regard, it is reiterated that the grading of each of the four officers mentioned in DPC report dated 10.5.1995 for the post of Superintending Engineer are not available in the office record. Further, it may be noted that HR Section, GAD, is not the custodian of ACRs of officers of Mumbai Port Trust and CPIO, General Administration department, who is custodian of ACRs, vide his letter dated 4.1.2019 has informed Shri Merekar that out of seven officers in the zone of consideration for promotion, ACRs of five officers including that of the Appellant are not available/weeded out and ACRs of other two officers which are available, cannot be provided under Clause (j) of sub-section (1) of Section 8 of the RTI Act, for being personal information and disclosure of which has no relationship to any public activity or interest and would cause unwarranted invasion of privacy of the individual.
12. Since all the information available in HR Section is provided and as such stands furnished to Shri Merekar, it is humbly requested that the Second Appeal of Shri M.A. Merekar, the Appellant, may kindly be disposed off."
A rejoinder to written submission has been received by the Commission from the Appellant, wherein he has specifically requested to direct the Respondent to search for the information and provide the same in accordance with point no. 5(i) and 5(ii) of the Second Appeal dated 27.02.2019.
Page 9 of 11CIC/MPTRS/A/2019/110067 Decision:
Upon perusal of the facts on record as well as on the basis of the proceedings during the hearing, the Commission observes that both the Appellant and Respondent have put forth their respective arguments at length both during the hearing as well as in written submissions. The Commission further observes that though the Respondent has provided available and relevant information, the Appellant is seeking for the copies of certain promotion related documents after passage of a considerable amount of time. Despite the fact that the Respondent has averred that relevant documents have been weeded out, the Appellant is contesting each and every statement of the Respondent.
However, in order to allay the apprehensions of the Appellant, the Commission directs the CPIO to file an affidavit stating the factum that they have provided information to the Appellant as available in their record and that they do not have any further information with regard to the subject-matter of the instant RTI Application. A copy of the said affidavit shall be sent to the Commission with its copy duly endorsed to the Appellant.
The aforesaid directions shall be complied with, within 21 days from the date of issue of this order.
With the above observations, the instant Second Appeal is disposed of. Copy of the decision be provided free of cost to the parties.
The Appeal, hereby, stands disposed of.
Amita Pandove (अिमता पांडव) Information Commissioner (सूचना आयु ) दनांक / Date: 12.04.2021 Page 10 of 11 CIC/MPTRS/A/2019/110067 Authenticated true copy (अिभ मािणत स यािपत ित) B. S. Kasana (बी. एस. कसाना) Dy. Registrar (उप-पंजीयक) 011-26105027 Addresses of the parties:
1. The First Appellate Authority (FAA) / Sr. Dy. Secretary, Mumbai Port Trust, General Administration Department, Port House, 2Nd Floor, S.V Marg, Ballard Estate, Mumbai -01
2. The Central Public Information Officer, /Dy. Secretary, Mumbai Port Trust, General Administration Department, Port House, 2Nd Floor, S.V Marg Ballard Estate, Mumbai -400001
3. Shri Mushtaque Ahmed Merekar Page 11 of 11