Central Information Commission
S Y Savur vs Department Of Expenditure on 6 January, 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/DOEXP/A/2020/109986
S Y Savur ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Department of Expenditure.
E.III.A Branch, RTI Cell, Room
No. 45, North Block, New Delhi - 110001. .... ितवादीगण /Respondent
Date of Hearing : 03/01/2022
Date of Decision : 03/01/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 19/12/2019
CPIO replied on : 09/01/2020
First appeal filed on : 17/01/2020
First Appellate Authority order : 06/02/2020
2nd Appeal/Complaint dated : 26/02/2020
Information sought:
The Appellant filed an online RTI application dated 19.12.2019 seeking file noting(s) for the following:1
(i) What, if any, document, manuscript or file or electronic data and for a photocopy of that which the JS (Implementation Cell, DoE, MoF) relied on to make the assertion at sub-paragraph (b) above insofar as complete pay parity between SAG & above vis-à-vis Maj Gen & above?
(ii) Did the Implementation Cell or the JS (IC) consider the effect of NFFU to SAG & HAG on the Civilian side would distort the complete Pay Parity with Maj Gen & above who are not granted NFFU on the Defence side and therefore invalidate the impugned assertion, and if so file notings thereof?
(iii) Since NFFU is granted to batches of officers, i.e. universally, what is the document that is available to JS (IC) to state that Personal Pay to Maj Gen & above is universal and hence disqualified but not NFFU and file notings thereof?
The CPIO furnished a reply to the appellant on 09.01.2020 annexed the copy of relevant note portion for information.
Being dissatisfied, the appellant filed a First Appeal dated 17.01.2020. FAA's order dated 06.02.2020 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 video conference.
Respondent: Pravesh Kumar, US & CPIO present through intra-video conference.
The Appellant stated that the CPIO is only reiterating their reply to an earlier RTI Application filed by him without providing the actual information sought for in the instant RTI Application in the form of a Cabinet note or a GOI document approving the pay parity. The Appellant was heard at length regarding the concerns raised by him with respect to the pay parity issue as narrated in his written submissions dated 24.12.2021, relevant contents of which is reproduced hereunder:2
"9. This Second Appeal had to be filed as both the CPIO & US (E.III.A) and FAA & DS (E.III.A) did not furnish specific information
(a) Copy of the document(s) such as Cabinet approval or a GoI document(s) approving ibid 'historical parity' is not available, or
(b) File notings of deliberations, advices, opinions, documents, records on the Ministry's internal file No. 30-1/11(i)/2016/IV (Vol II) of any document for information on whether NFFU on the Civilian side and NO NFFU on the Defence side was considered by JS (IC) when observations on Personal Pay to Maj Gen and above would adversely/positively affect "historical parity" were made.
10. Further, Special Pay over and above the salary has been paid to Army Cdrs and Vice Chiefs and equivalents and Personal Pay to Generals, notwithstanding the so called historical parity vide Para 19, Chapter 50, Vol III of the Report of Third Central Pay Commission (Appendices I & II to this written submission).
11. The information relevant to request No. DOEXP/R/2019/51427 would have been complete if reply
(a) Furnished the information requested for, Or
(b) Stated that no such information formalising historical pay parity between Maj Gen & above on the Defence side and SAG & above on the civilian side exists as well as information that NFFU was taken into consideration or not taken into consideration was furnished, then
12. Therefore, the honourable CIC may wish to direct FAA or CPIO to provide the information requested for vide DOEXP/R/2019/51427 dated 17.12.2019 or issue a categorical reply that DoE, MoF
(a) Furnishes copy of a document or replies that no Govt document on "Complete parity which has to be maintained in future also"
(b) Furnishes a document of showing grant of NFFU to SAG & above on the civilian side and no NFFU to Maj Gen & above on Defence side was considered when making statement of "historical pay parity" or does not have any information as defined in Section 2 (f) including file noting(s) that IC, DoE, MoF considered that NFFU could not impact the traditional pay parity of SAG & above on the Civilian side vis-à-vis the pay of Maj Gen and above."
3The CPIO submitted that the information available in material form was provided to the Appellant. Now, the Appellant is seeking to know what facts were taken into consideration etc. during the decision-making process, which he is unable to decipher as a CPIO and is not in a position to clarify upon.
Decision:
The Commission has perused the facts on record and upon hearing the Appellant, it is clear beyond reasonable doubt that the Appellant is insistent upon the CPIO to provide clarifications, justification or affirmations based on the material information provided to him which is not permissible under the RTI Act. In the process, the Appellant has gone to the extent of stipulating as to what should be contents of the CPIO's reply. Under the mandate of the RTI Act, the CPIO cannot be mortified for not providing clarifications or drawing inferences to justify policy matters. From the standpoint of the RTI Act, the Commission finds no scope of intervention in the matter.
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.
It will be relevant here to cite certain judgments of Hon'ble Supreme Court and High Courts on the scope and ambit of Section 2(f) of RTI Act. The relevant extracts of the said judgments are reproduced hereunder:
Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 of 2011] 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. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part 4 of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant. 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) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer & Ors [SLP (CIVIL) NO.34868 OF 2009], Hon'ble Supreme Court 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...."
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law.5
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...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Further, with respect to the role of the Commission under the RTI Act, the attention of the Appellant is drawn towards 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
"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 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 30.11.2017 wherein 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."(Emphasis Supplied) While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed 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) And, the Hon'ble Delhi High Court in the matter of Income Tax Officer vs. Gurpreet Kaur (W.P.[C] 2113/2019) dated 21.10.2019 has placed reliance on the aforesaid observation of the Apex Court in Namit Sharma's case to emphasize as under:
"8. In light of the judgment of the Supreme Court, the powers of the Commission are confined to the powers as stated in the RTI Act...."
Adverting to the foregoing discussion, the Commission finds the instant appeal as bereft of merit. The Appellant is advised to pursue his grievance before the appropriate forum through proper channel.
7The appeal is disposed of accordingly.
Saroj Punhani (सरोजपु सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8