Central Information Commission
Shri. Tayyab Khan vs Ministry Of Minority Affairs on 27 August, 2010
Central Information Commission
2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi - 110 066
Website: www.cic.gov.in
(Adjunct to Decision No.5688/IC(A)/2010 dated 30/7/2010)
Decision No.5815/IC(A)/2010
F. No.CIC/MA/A/2010/000314
Dated, the 27th August, 2010
Name of the Appellant: Shri. Tayyab Khan
Name of the Public Authority: 1. M/o Minority Affairs
2. Central Wakf Council (CWC)
Decision: i
1. In our decision No.5688/IC(A)/2010 dated 30/7/2010, the following
observations were made:
"Decision:
11. The Central Govt. has the mandate to frame and notify recruitment
rules for the staff of the Council, which is evident from section 13(3) of the
CWC Rules 1998, which reads as under:
"Except as otherwise provided by the Council, with the prior concurrence
of the Central Government, the scale of pay, leave, conduct rules, and
other terms and conditions of service for the various categories of posts
shall be the same as may for the time being in force be applicable to the
officers and servants, holding posts of corresponding scale of pay under
the Central Government."
12. In this backdrop, the appellant has asked for a copy of the relevant
recruitment rules under which the staff of the Council are being recruited
or promoted.
13. In response to the appellant's application for information, the CPIO
of respondent-I initially transferred the application to respondent-II and
subsequently informed the appellant that the information was not i "If you don't ask, you don't get." - Mahatma Gandhi 1 available. It is not understandable on what basis the Appellate Authority of the respondent ordered for providing the information which could not be complied with by the CPIO of his office. Clearly, the AA of the respondent-I was totally unaware of the facts in the matter and ordered for providing the information, which does not exist with them. It may also be construed to mean that the AA of the respondent-I, did not pay due attention to the facts in the matter and therefore did not deal with the issue before him.
14. Evidently, the respondent-I and II have exchanged correspondence on the issue of framing recruitment rules for the Council. But, they do not seem to have reached consensus on the issue of finalization and notification of recruitment rules. The averments made by the parties and the evidence on record shows that the respondent-II has indeed submitted preliminary draft, which, being unacceptable to the respondent-I, was returned for further modifications. But, it is not clear as to why both the parties, i.e. respondent-I and II, could not jointly meet and discuss the matter to resolve contentious issues so as to prepare and finalize the documents, as per the guidelines of the DoPT, which all the Govt. departments have adopted. This has given rise to suspicion and allegation by the appellant, who is directly affected in the matter about the alleged illegal practices adopted by the respondent-II, with the tacit support of the respondent-I, to indulge in unfair practices in respect of recruitment and promotion of staff.
15. We are therefore of the view that while the respondent-I and II are equally responsible for not framing and notifying an acceptable recruitment rules, the respondent-I, the Govt., being mainly responsible for implementing its own rules, cannot be absolved of its responsibilities, as mandated u/s 13 (3) of the CWC Rules that are to be framed by the Respondent-I, the Ministry of Minority Affairs. The preparation and adoption of the recruitment rules is an important document. And, this is a piece of information which the respondents should have to ensure fair and transparent procedure of recruitment and promotion of staff. The M/o Minority Affairs, the Govt., ought not say that it could not do, what it was to do, mainly because its subordinate office like CWC did not provide the working draft.
16. The Secretary to the Govt. of India, Ministry of Minority Affairs, is, therefore, directed u/s 25 (5) of the Act to ensure compliance of section 13(3) of the CWC rules by way of framing and notifying the recruitment rules for the staff of the Council within one month from the date of receipt of this decision. Since the adoption of recruitment rules is a vital document and critical information from the point of view of serving and prospective employees of the Council, there is no reason why this information should not be made available to general public. Failure to 2 produce the document in question, tantamount to utter disregard to accountability norms to which the Govt. is committed.
17. The CPIO of the respondent-I Sh. S.M. Akhter was surely aware of the facts in the matter. Yet, he chose to initially transfer the RTI application to the respondent-II and, later on, after the passage of order by the Appellate Authority of the respondent-1, he informed the appellant that the document in question was not available. The CPIO, Shri. S.M. Akhter has thus deliberately misled the appellant and is therefore liable to pay a penalty of Rs.25,000/- (Rupees Twenty five thousand only) u/s 20(1) of the Act for deemed refusal of information without any reasonable cause. He is directed to show-cause as to why penalty should not be imposed on him. He should submit his explanation at the earliest and also appear for hearing on August 25, 2010 at 10.30 a.m. failing which penalty would be imposed on him.
18. The Govt. cannot be absolved of its primary responsibilities of formulating rules and regulations for the effective functioning of its institutions under its control and supervision. As per the requirement of section 13(3) of the CWC rules, the respondent-I ought to have the recruitment rules in question, as asked for by the appellant. Since the recruitment rules have not been notified for different reasons by the Govt., Respondent-I, the same could not be made available to the appellant, who has surely suffered detriments in seeking information and pursuing the matter with the officials of the respondents for the last several months. The Secretary, M/o Minority Affairs, or his nominee, should explain as to why an amount of Rs.25,000/- (Rupees Twenty five Thousand only) u/s 19(8)(b) of the Act, should not be awarded to the appellant to compensate for all kinds of detriments and harassment suffered by him in seeking information and pursuing the matter at the levels of CPIOs of the respondents as well as the appeals before the Commission.
19. The Secretary, M/o Minority Affairs, or his nominee, should submit his explanation and also appear for a personal hearing on August 25, 2010 at 10.30 a.m. failing which the above amount of compensation would be awarded to the appellant. The appellant may also be present during the hearing."
2. In response to the show cause notice, as above, the parties appeared for hearing on July 27th and August 25th, 2010. The following were present on August 25, 2010:
Appellant: Shri. Tayyab Khan Respondents: 1. Sh. Mohd. Afzal, CPIO, M/o Minority Affairs
2. Sh. B.D. Barua, M/o Minority Affairs
3. Sh. S.M. Akhter, M/o Minority Affairs 3
3. The representatives of the respondent-1 admitted that the Ministry of Minority Affairs, Govt. of India, have the mandate to notify the Recruitment Rules, but it could not be done due to lack of cooperation and support of the Central Wakf Council, which did not provide an acceptable draft document. The information in question, i.e. Recruitment Rules, could never be finalized and notified. Therefore, information is not available or non-existent. Hence, it could not be furnished to the appellant.
4. The Central Wakf Council (CWC) has refuted the allegations made by the M/o Minority Affairs. The Council has asserted that necessary inputs for finalization and notification of the Recruitment Rules have already been provided to the respondent, M/o Minority Affairs. "Therefore, CWC is not at all responsible, if the said Rules have not been notified as yet." In support of these assertions, the Council has submitted relevant documents also.
5. It emerged from the foregoing that the Respondent, M/o Minority Affairs, being responsible for Gazette notification of the Recruitment Rules for CWC, is the custodian of information. But, information does not exist as it has not been notified for different reasons. The question is: why was the RTI application transferred to CWC, which was not the holder of information? And at a later stage, why did the first Appellate Authority of the Respondent, M/o Minority Affairs, ordered for providing the information, which was not available in the office of the CPIO? Has it not led to unnecessary harassment of an information seeker? In our view, the Respondent, M/o Minority Affairs, should have truthfully informed the appellant that the Recruitment Rules do not exist, but it did not do so. The appellant has had to pursue the matter at different levels for a copy of Recruitment Rules, which every employee and employer should have. I am, therefore, of the view that the appellant has unduly suffered and wasted resources in seeking information, for which he should be suitably compensated.
6. An amount of Rs.25,000/- (Rupees twenty five thousand only) is, therefore, awarded to the appellant, as compensation, u/s 19(8)(b) of the Act, for all kinds of losses such as time and resources, including mental harassment. The Secretary to the Govt. of India, M/o Minority Affairs, is directed to arrange to pay Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the appellant, Shri. Tayyab Khan, through a bank draft on or before 30th September, 2010, failing which penal interest @ 10% per annum would be applicable. A compliance report in this regard should also be submitted to the Commission at the earliest, failing which appropriate action would be initiated.
7. The then CPIO, Shri. S.M. Akhter has explained to the Commission that the information in question was not available with the respondent, M/o Minority Affairs. Therefore, he could not implement the decision of the 1st Appellate Authority, whereby he was ordered for providing the information. His explanation 4 is accepted and the penalty proceedings against Shri. S.M. Akhter is, therefore, dropped.
8. The appeal is thus disposed of.
Sd/-
(Prof. M.M. Ansari) Central Information Commissionerii Authenticated true copy:
(M.C. Sharma) Deputy Registrar Name & address of Parties:
1. Shri. Tayyab Khan, F-253, Sector-23, Rajnagar, Ghaziabad-201 002 (U.P.)
2. Shri. S.M. Akhter, CPIO & Director, Ministry of Minority Affairs, 11th floor, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 003.
3. Shri. Upendra Tripathy, Appellate Authority, Ministry of Minority Affairs, 11th floor, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 003.
4. Shri. Ghazi-Ul-Islam, PIO, Central Wakf Council, 14/173, Jamnagar House, Shahjahan Road, New Delhi - 110 011.
5. The Appellate Authority, Central Wakf Council, 14/173, Jamnagar House, Shahjahan Road, New Delhi - 110 011.
6. The Secretary, Ministry of Minority Affairs, 11th floor, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 003.
ii "All men by nature desire to know." - Aristotle 5