Central Information Commission
Shishir Chand vs Directorate Of General Of Health ... on 31 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DTGHS/A/2018/116711-BJ
Mr. Shishir Chand
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Assistant Director General (ME)
Directorate General of Health Services
Medical Examination Cell, Nirman Bhawan
New Delhi - 110011
... ितवादीगण /Respondent
Date of Hearing : 30.05.2019
Date of Decision : 31.05.2019
Date of RTI application 05.01.2018
CPIO's response 19.01.2018/
05.02.2018
Date of the First Appeal 15.02.2018
First Appellate Authority's response 27.02.2018
Date of diarised receipt of Appeal by the Commission 16.03.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the true copy of the merit list of successful candidates who cleared the AIPMT Exam in compliance with the decision of the Commission in CIC/CBSED/A/2017/155068/MP.
The CPIO and Asst. Director General (ME) Medical Examination Cell, M/o Health and Family Welfare, vide its letter dated 10/19.01.2018 while transferring the RTI application to the CBSE u/s 6 (3) of the RTI application stated that in respect of DGHS, the information sought was more than 27 years old and was not readily available with their section. However, the record room had been written to explore related documents. As soon as the response from the concerned department was received it would be made available to the Appellant. Subsequently, the CPIO and Dy. Secretary (NEET, CBSE, vide its letter dated 05.02.2018, informed the Appellant that a copy of the weeding out rules had already been provided to the Appellant vide letter dated 28.11.2017 as per the order of the Commission in CIC/CBSED/A/2017/155068/MP dated 27.11.2017. Dissatisfied by the response, the Appellant approached the FAA. The FAA, DGHS, Page 1 of 7 M/o Health and Family Welfare, vide its order dated 27.02.2018 stated that according to DoP&T record retention policy, records of more than 10 years in normal category "C" stood weeded out.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Shishir Chand;
Respondent: Dr. B. Srinivas, CPIO & ADG (ME);
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. It was further stated that initially the CPIO had responded stating that the merit list could not be traced and record room of Directorate had been advised to explore the related documents. Subsequently, it was informed that the same would be made available as and when the response from the record room was received. Furthermore, the Respondent passed the onus of furnishing the document to CBSE which made no sense as CBSE in compliance to order of the Commission in Appeal CIC/CBSED/A/2017/155068/MP dated 27.11.2017 had failed to furnish the merit list of successful candidates of CBSE, AIPMT, 1989 Exam. Subsequently, the Appellant had filed the instant RTI application wherein the Appellate Authority took a stand that the merit list of successful candidates had been weeded out as it qualifies for a "Category C" document and had a reference value for a limited period not exceeding 10 years. The Commission was in receipt of a written submission from the Appellant dated 20.05.2019, wherein it was inter alia prayed to issue a copy of the merit list of successful candidates who were issued allotment letters by Respondent on the basis of clearing CBSE, AIPMT, 1989 Exam and on completion of counseling held in August-September 1989 and to impose a heavy cost for denying and stonewalling crucial information and documents related to CBSE, AIPMT, 1989 Exam. In its reply, the Respondent submitted that the concerned CPIO had informed the applicant that Directorate General of Health Services is responsible only for allotment of Under Graduate Medical / Dental Seats to the qualified candidates in AIPMT Exam as per their Merit / Rank, declared by the examination conducting authority and list of successful candidates who had been declared in AIPMT Exam in 1989 should be available with the examination conducting authority i.e. Central Board of Secondary Education. In this connection, CPIO, DGHS had also informed the applicant that information sought by the applicant in his RTI application was more than 27 years old and not available with their Section / DGHS. However, Directorate had approached the record section of the Directorate to find out the above said information. Subsequently, the Appellant had filed first Appeal to which the First Appellate Authority (i.e. Deputy Director General (M)) informed the applicant on the basis of reply received from the Record Section of their Directorate that as per the Record Retention Policy of Department of Personal & Training (DoPT) followed by the Directorate General of Health Services, Record more than 10 years in the General / Normal Category "C" was weeded out and not available with the Directorate and copy of the relevant portion of the Record Retention Policy was provided to the applicant for his perusal / information. It was further articulated that since the record sought was more than 27 year old which was not available with the DGHS due to the record retention policy followed by the DGHS, a suitable reply was provided to the Appellant. Moreover, it was submitted that the CPIO was supposed to provide information available as per record and same had already been provided in due course. On being queried by the Commission, whether the Appellant had received a copy of the Record Retention Schedule as per the direction of the Commission in Appeal No. CIC/CBSED/A/2017/155068/MP dated 27.11.2017, he replied in the affirmative. The Commission was also in receipt of a written Page 2 of 7 submission from the Respondent (DGHS) dated 22.05.2019 wherein, while re-iterating the reply of the CPIO/ FAA, it was stated that since the record sought was more than 27 years old which was not available with the DGHS due to the record retention policy followed by the DGHS. In this regard, as per RTI Act, 2005, the CPIO is supposed to provide information available with him and same has already been provided in due course.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
Page 3 of 77. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission also referred to the decision of the Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 wherein it was held as under:
"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter- productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
Furthermore, the Hon'ble Supreme Court in the matter of ICAI vs. Shaunak H. Satya (2011) 8 SCC 781 dated 02.09.2011 had held as under:
"26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources"
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:Page 4 of 7
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."Page 5 of 7
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"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. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 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 forum. 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 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."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had 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.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as Page 6 of 7 expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of compliance of earlier decision of the Commission in Appeal No. CIC/CBSED/A/2017/155068/MP dated 27.11.2017, no further intervention of the Commission is required in the matter. It was noted that essentially the Appellant was contesting the substantive issue of the eligibility credentials of the doctor who qualified CBSE All India Pre- Medical Pre- Entrance Examination 1989-90 which was outside the purview of the definition of "information" contained in the RTI Act, 2005. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 31.05.2019
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