Central Information Commission
Lt. Gen. Ss Dahiya vs Defence Research & Development ... on 27 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/C/2007/00852 dated 17-12-2007
Right to Information Act 2005 - Section 19
Appellant: Lt. Gen. SS Dahiya
Respondent: Defence Research & Development Organisation (DRDO)
FACTS
By an application of 25-10-07 addressed to Shri S.S. Bundela, CPIO, DRDO S.S. Dahiya, then Maj. General, of Sri Aurobindo Marg, New Delhi applied for the following information:
"1. When was the last board for promotion of DRDO officers to Lt Gen held? Who was appointed, his service, date of promotion, date of retirement be provided. Did he retire prematurely, if so how many months ahead of due date?
2. How many dental posts for seconded officers are authorized to DRDO? Give rank wise break up along with letter under which sanctioned/ authorized.
3. Is a Lt Gen vacancy of dental officer authorized to DRDO?
When was it sanctioned? Is it against the sanctioned strength of the Dental services? If not, how was it created? Give copy of the same.
4. is the SA to RM competent to create additional vacancies of Maj. Gen/ Lt Gen for dental officers of DRDO in excess of those authorized by Govt against the overall sanctioned strength of dental officers for the services? If so give authority.
5. A copy of the Govt sanction under which medical/ RVC posts were originally allocate/ authorized to DRDO be given.
6. Were these from the over all strength of the AMC/ RVC as sanctioned for the three services? If so, then under which provisions were the promotions in excess of the posts as authorized to DRDO, made? A copy of the relevant orders be given.
7. Under the law Para-2 of the OM of 23rd Nov 1979, has to be read in conjunction with para-4 (c) of the said OM. Therefore, please give the authority under which a dental officer was promoted to Lt Gen against a general cadre vacancy?1
8. Was this act not contrary to the stand taken in Court in the case of another AMC officer Col SS Riar vs. UOI (DRDO)? If not, then give reasons.
9. Copy of the minutes of the selection board proceedings which approved the dental officer to Lt. Gen provided.
Inspection of the file on which these minutes are recorded be given?
10. What is the status of vacancy of Lt Gen, since retirement of this dental officer?
11. Which dental project was he handling that required a Lt Gen rank officer to head it? Details thereof be provided.
12. What is the status of the dental project after the officer took premature retirement? Has any other Lt. Gen (Dental) been appointed to head it? If not, why not? Has the project been foreclosed? If not, how is it now being run? Who are neither the dental service officers nor handling this project, their rank and names be provided.
13. What is the authorization of Lt Gen/ equivalent, Maj. Gen/ equivalent vacancies for seconded officers of DRDO, i.e. those for the General cadre and those for the AMC/ RVC officers?
14. Have any of these been kept vacant? If so for what period (dates) and why?
15. Give details as to how the vacancies of Lt Gen/ equivalent and Maj. Gen/ equivalent of the seconded cadre, have been filled since 30th May 2005.
16. What is the criterion adopted for promotions of seconded officers of DRDO from Maj. Gen. to Lt. Gen.? Has it been circulated/ published? If so when, give a copy of the policy and the letter under which hit was circulated.
17. How many permanently seconded officers were eligible for consideration for promotion to Lt Gen since may 2005, under this policy adopted by DRDO at Para- 16 above? Give names and dates from which they became eligible?
18. Has their board for consideration for promotion as required under Article-16 of the constitution been held? If not, then what are the reasons for not holding their promotion board since the occurrence of the vacancy of Lt Gen/ equivalent in May 2005, and the time since they became eligible for consideration?
219. Has this vacancy been transferred outside the DRDO? If so, the authority under which the same has been done, details thereof i.e. the name, rank and date since which an officer has been appointed against this DRDO post of Lt Gen, be provided.
20. Consideration for promotion is a fundamental right guaranteed under Article 16 of the Constitution. Therefore, under what provisions of the law, is the Sa to RM competent to deny consideration to those who are eligible and qualified?
21. How to DRDO propose to maintain parity between the regular cadre officers in the DRDO and their parent service considering that as a result of keeping the post vacant by not holding the board when due, the permanently seconded officers are lagging behind their batches by as much as 3-4 years, whereas medical officers who were illegally promoted against regular cadre posts, are 5-6 years ahead of their batches?
22. What was the justification in promoting the dental/ medical officers 5-6 years ahead of their batches?
23. The minutes of the board proceedings under which these illegal promotions of Medical/ dental officers was made be also provided.
24. Did the Army Hqrs object to such illegal tenanting of regular cadre posts b y ineligible medical/ dental officers? If so details/ copies of the correspondence exchanged between AHQrs and DRDO be provided.
25. Can an officer of the rank of Maj. Gen/ equivalent from outside the Department (DRDO) be posted into DRDO against DRDO Lt. Gen's vacancy when others senior to him of the DRDO cadre who are eligible are waiting for consideration? If so give the authority for the same.
26. Does this not amount to super session of the permanently seconded officers since this is their vacancy?
27. Can a vacancy at such a senior level be kept vacant for so many years when, as stated in one of the court cases by DRDO themselves to the effect that-such senior level posts can not be kept as higher level directional inputs are required being a Research Organisation? Does this stand not apply to this case? If not why not?
328. How many Air Force officers of Air Marshal/ AVM rank are deputed to DRDO? Against what posts are they held i.e. project vacancies or against seconded cadre posts? Give details names, rank, date of posting in/out with copy of posting orders.
29. How have the vacancies of one Lt. Gen/ equivalent and 5 Maj. Gen/ equivalent as authorized to the permanently seconded cadre of service officers of DRDO, for the period from 2003 to Sept 2003 been ut9lized? How many non seconded officers are/ have been deputed to DRDO against the DRDO vacancies of Lt Gen/ Maj. Gen since Dec 2006 to date? Give details.
30. To provide for adequate promotion prospects of service officers in DRDO, para-3 of the OM of 23rd Nov 79, stipulates that the strength of service officers in DRDO shall be 1/3 of the total number of scientists 'C' and above. What is the present ratio? Details of rank wise holding of service officers vis-à-vis Scientist 'G' and above be given? If it is not 1/3, then the reasons there of be given.
31. During the hearing of the case of Maj. Gen PP Dass vs. UOI (DRDO) on 28th September, 2007 the DRDO had stated that the vacancy of Lt Gen has been allotted to the Indian Air Force, and this position is presently being occupied by Air Vice Marshal (viz. Maj. Gen Eqvt.). However DRDO/ CCR&D (LS&HR) had on 1st October, 2007 stated that the DRDO have written to air Hqrs offering them the vacancy of Lt Gen a copy of this officer letter be given.
32. The two statements at para-31 above are contradictory.
What is the factual position in this regard? Please state.
33. Have Air HQrs accepted this offer? If so details of the same be given.
34. What is the status of filling up of the same from the time it was offered till date? In that, details (names, date of assuming appointments) of the Air Mshl rank officers, if any, who have been posted to DRDO against this vacancy? Till when will this vacancy remain with Air HQ? Copies of the relevant papers/ documents/ notings be provided.
35. has the approval of the Govt/Acc been obtained before transfer of a DRDO vacancy to the Air Force while 4 denying the same to the seconded cadre officers who are eligible? Copies of the relevant approvals be provided.
36. I state that the information sought does not fall within the exemptions contained in section-8 of the RTI Act 2005 and to the best of my knowledge it pertains to your office.
37. A fee of RS. 10/- has been deposited vide Syndicate bank demand draft no. 249795 dated 25th October, 2007 in the office of the Central Public Information Officer, DRDO."
To this he received a response in the form of copy of a letter addressed to the Central Information Commission by Maj. Gen. Umang Kapur with reference to the provisions of Section 24 of the RTI Act in cases related to human rights violation. This application was in consequence of an earlier application moved by one Maj. Gen. P.P. Dass dated 10-10-07 asking similar information regarding promotion of officers deputed from the Army in the DRDO.
This was followed by another letter of 15-11-07 again addressed by Maj. Gen. Umang Kapur to the Jt. Registrar, CIC seeking the CIC's approval for disclosing the information sought on grounds of allegations of human rights violation. In this case the following three cases were cited:
a) "C-TEC/02/2091/P/07 dt. 19th Oct 07-Sh. S. P. Saxena (Retd)
b) C-TEC/02/2091/P/07 dt. 25th Oct 07- Maj. Gen P. P. Dass (Retd)
c) C-TEC/02/2091/P/07 dt. 26th Oct 07- Maj. Gen S. S. Dahiya"
On not receiving the information sought Maj. Gen. S.S. Dahiya moved a complaint before this Commission on 14-12-07 alleging misuse of the exemption granted to the DRDO on the following grounds:
"The undersigned had requested for information under the RTI Act, which DRDO indicated that being exempt, the only way to seek any information from DRDO would be in cases of corruption or violation of human rights. Taking shelter under para-1 of section 24 of RTI Act, they have sent the RTI Application to your office vide their letter No. C- TEC/02/2091/P/07 dt. 15th Nov 2007, Para 1 (c) of which relates to my case.5
On perusal of the RTI Application (Annex-II), it will be seen that there are no issues of security concern, and, therefore, there should have been no cause to have denied this basic information to me. It is now more than 45 days and there has been no response to the application.
You will agree that such conduct defeats the very purpose of the RTI Act and considering the fact that even the Ministry of Defence are not exempt, it will only be appropriate that DRDO be brought out of this exemption and where necessary, section- 8 could always be used, for issues which have security implications.
May I, therefore, kindly request that DRDO be directed to kindly furnish the information sought?"
The case was earlier scheduled for hearing on 1-7-08. However, on 25-6-08 we received a request for adjournment from Maj. Gen. Dahiya who was down with a severe attack of viral fever together with throat infection. This hearing of the complaint was, therefore, adjourned and heard on 27-3-2009. At 10.30 a.m. on 27-3-09 we received a request from Shri S.S. Bundela, CPIO, DRDO as follows:
"Hearing in respect of case pertaining to Lt. Gen S. S. Dahiya has been scheduled at 1200 Noon on 27th March 2009. the main file relating to Recall of Permanently Seconded Officers of DEDO has been sent to legal cell of Ministry of Defence for their opinion and is presently not available with us. Further, the concerned official with DOP is not keeping well and therefore, he is not in a position to attend and defend the case."
He therefore requested an adjournment. Because this request was received at the last minute it was not possible to clear it with appellant who appeared as scheduled. Although, telephonic intimation was received that representatives of DRDO were on their way, they appeared at 1.15 p.m. after the hearing was over.
Appellant Lt Gen. SS Dahiya Respondents (after the hearing):
Shri S.S. Bundela, SC `E' & PIO- DRDO Hq.
Shri Prince Sonker, Project Assistance The argument of Gen. Dahiya, now Lt. Gen., concentrated on whether an organisation like DRDO should be granted the status of Intelligence & Security Organisation u/s 24 (1) since this was only a Research Organisation 6 and any results of its resolution affecting either security or intelligence are well covered under the exemption granted by Section 8 (1) (a). Besides, the General submitted copies of reports in different magazines including The Hindu providing details of India's Nuclear Submarine, the multi-mode radar in the Light Combat Aircraft, Underwater Surveillance, Mechanism Espionage Satellite, BVR Air to Air Missiles and Anti-Submarine War Missiles the technology of all of which has been developed by DRDO, and all relating to national security.
Under the circumstances he argued that it is wrong to seek to deny information to serving officers of their terms of service. He has gone on to argue that this amounts to denial of information in violation of human rights as it is a part of Article 14, 16 and 21 of the Constitution of India and also covered by the Human Rights Act of 1993 which guarantee equality and dignity. He submitted a written Aide Memoire containing his submissions on this subject.
DECISION NOTICE The plea taken by Gen. Dahiya has wider implications than that allowed to the Commission in hearing an appeal or a complaint. In such cases we are bound by what is prescribed in the present law. Under the present law the DRDO is clearly listed at serial No. 20 of the Second Schedule inserted therein vide GSR No. 347 of 8-10-2005. For this reason we have repeatedly refused disclosure regarding personnel management in such organisations on grounds that allegations of faulty personnel management cannot be construed as allegation of human rights violation. In good conscience we would be trivialising the lofty objective of human rights were we to so equate it to a mater of routine administration, which is what resource management is.
On the other hand, one cannot deny the weight in the argument submitted by Lt. Gen. Dahiya that matters of personnel management need not be woven into a concept of either security or intelligence, information 7 regarding which, already exempted from disclosure under the RTI Act, is instead readily placed in the public domain by this very authority through the press. We, therefore, recommend u/s 25 (5) that the Cabinet Secretariat review the absolute exemption granted u/s 25 (5) to an organisation such as the DRDO, specifically keeping in view that no such exemption is even granted to the Military authorities, the hard core of national security, so as to ensure that vital elements of management of the administration, notwithstanding the overriding demands of National Security & Intelligence, continue to conform to the spirit of the RTI Act. The view of Ministry of Law and Justice would also be of value in this matter. With these observations this appeal is disposed of.
Reserved in the hearing this decision is announced in open chamber at 4.30 pm on this the twenty-seventh day of March, 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 27-3-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 27-3-2009 8