Central Information Commission
Sanjay Kumar vs Kendriya Vidyalaya Sangathan on 5 March, 2019
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सूचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगानाथ माग
Baba Gangnath Marg,
मुिनरका, नई द ली -110067
Munirka, New Delhi-110067
Decision no.: CIC/KVSAN/A/2017/605767/00183
File no.: CIC/KVSAN/A/2017/605767
In the matter of:
Sanjay Kumar
... Appellant
VS
Central Public Information Officer
Assistant Commissioner
Kendriya Vidyalaya Sangathan
Regional Office Agra, KV No. 2 Agra Cantt. Campus,
Grand Parade Road, Agra Cantt, Agra - 282 001, U.P.
&
Public Information Officer
Principal Kendriya Vidyalaya No. 1,
Air Force Station Hindan, Ghaziabad - 201 004
... Respondents
RTI application filed on : 07/06/2017 CPIO replied on : 08/08/2017 First appeal filed on : 16/08/2017 First Appellate Authority order : 21/09/2017 Second Appeal dated : 02/10/2017 Date of Hearing : 28/02/2019 Date of Decision : 28/02/2019 The following were present: Appellant: Present
Respondent: Ms. Shobha Sharma, Principal & CPIO (Ghaziabad)and Mr. Sudarshan, Administrative Officer & CPIO(Agra) 1 Information Sought:
The appellant has sought the following information about his son "Rohan Kumar" who admitted in session 2013-2014 in class 1st and presently studying in Session 2017-2018 in class- 5th:
1. Provide copy of "Admission Form" of Rohan Kumar along with all supporting documents from Class- 1st to Class - 5th.
2. Provide copy of All Examination Results of Rohan Kumar from Class - 1st to Class - 5th.
3. Provide copy of All Report cards of Rohan Kumar from Class 1st to Class 5th.
4. And various other information.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondents during Hearing:
The appellant submitted that as a father he has a right to obtain the information in the light of the earlier decision of the CIC. Therefore, he desires that the information sought regarding his son be supplied to him. The respondent department maintained the stand taken in their reply and the order of the FAA that this is personal information belonging to third party and therefore cannot be disclosed under Sec 8(1)(j) of the RTI Act. On a query by the Commission the respondent agreed to supply the copy of the objection letter given by the mother of the child to the appellant.
The appellant relied on a decision of the earlier bench of the Commission in case no. CIC/RM/A/2014/000014-SA dated 03.12.2015 The relevant paras relied upon by him are extracted below:
"2. The appellant, father of a student is seeking copies of the answer sheets of his son for the subjects Maths and Science of 12th Class examination appeared in 2013 and the related matters.............................
5...............................................The CPIO and the CBSE should have the common sense and general knowledge that a 12th class student is generally a minor boy and his father is natural guardian.2
File no.: CIC/KVSAN/A/2017/605767 The Hindu Minority and Guardianship Act 1956 Section 4 defines minor:
(a) "minor" means a person who has not completed the age of eighteen years; ..............................................
Section 6 says that father is the natural guardian of a hindu minor. Section 6: The natural guardians of a Hindu, minor, in respect of the minor's person as well as in respect of the minor's property.............................................Section 8 explains the powers of natural guardian : 8(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant. Thus the natural guardian has a legal duty and authority to secure the rights and benefits of the minor boy. In that capacity he has every right to seek right to information of his son be implemented....................................................................................................th e reason cited to deny the 'father' is unreasonable and illegal and also in violation of rights of the minor boy. The CBSE has no authority to impose such restriction on the rights of minor and his guardian. Hence the Commission holds that the appellant who is the father of the candidate is entitled for the copies of the answer sheets of his son, which shall be supplied to him....................................................................................................The recognition and guaranteeing of right to information is aimed at making the public authority 'accountable'. But by imposing this condition the CBSE is not only restricting that right to information, but also insulating itself from being accountable........................ Right to information has been interpreted to be inherent part of right to freedom of speech and expression by the judicial orders. In Bennett Coleman v. Union of India, AIR 1973 SC 60 the right to information was held to be included within the right to freedom of speech and expression guaranteed by Art. 19(1)(a). The United Nations Declaration of Human Rights, 1948, Article 19 says:
. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
7. The Commission, thus, holds that the undertakings prescribed by the CBSE have the effect of seriously obstructing the access to information beyond what was permitted by the Right to Information Act, 2005. By 3 prescribing such rules and imposing conditions such as above, the CBSE tried to legislate something which is not prescribed or authorized by the Parliament through the Right to Information Act, 2005. The Public Authority can only deny the information under Sections 8 and 9 of the RTI Act.
10. The Commission further directs the CBSE to pay a compensation of Rs 25,000/- to the appellant within 15 days from the date of receipt of this order for harassing him and compelling him to sign illegal undertaking to give up rights."
The appellant also relied on the decision of the Commission in case no. CIC/SA/A/2016/000698/MP dated 26.05.2017. The relevant paras relied upon by him are extracted below:
"5. On hearing the respondent and perusing the available records, the Commission observes that the appellant being the father to his minor son, Master Navdeep Shukla, is also his natural guardian and has the right to seek information pertaining to his child on the child's behalf, from the respondent authority, which, cannot be denied to him as personal information of third party u/s 8(1)(j) of the RTI Act, 2005. Section 8(1) of The Hindu Minority and Guardianship Act, 1956 empowers a natural guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor or for his estate. The decision of this Commission in the case of Vijay Kumar Mishra vs. Central Board of Secondary Education, Patna (Appeal No CIC/RM/A/2014/000014-SA), is quoted below:
"...the natural guardian has a legal duty and authority to secure the rights and benefits of the minor boy. In that capacity he has every right to seek that right to information of his son be implemented and any injustice occurring to his son... which might affect his career forever."
6. ................................... The Commission, therefore, directs the CPIO to give a complete reply/information to the appellant with respect to his RTI application, in accordance with the provision of the RTI Act, 2005, within 15 days of the receipt of the order of the Commission."
The respondent CPIO submitted the copies of both the letters dated 24.06.2017 of Smt Priti Poddar, the mother of the child. In the said letters, Smt Priti Poddar stated that a case is pending, on behalf of Rohan Kumar (as 4 File no.: CIC/KVSAN/A/2017/605767 petitioner/aggrieved) in Karkardooma Court, Delhi under D.V Act case no. V- 71/2014 regarding violence, inflicting cruelty and desertion of Priti Poddar (Petitioner/aggrieved in case V-71/2014 and Rohan Kumar (aggrieved mother, Priti Poddar filed on his behalf). She further stated in the said letter that the Respondent Sanjay Kumar is paying no maintenance till now, several cases pending on him since 2014. He (Sanjay Kumar) deserted Master Rohan Kamar and her on 10th August 2013. She further stated in that letter that she attended all Parent Teachers meetings which are recorded in the school records. She requested to prohibit Shri Sanjay Kumar from meeting Rohan Kumar and disclosing any information relating to him.
Observations:
There is no straight jacket yardstick available to determine whether information related to a son can be disclosed to the father or not. Further, though the appellant has relied upon and quoted the previous orders of the Commission, as referred above, such cases have to be seen on case to case basis as the facts and circumstances of each case may not be identical. In this case the Commission notes that the mother of the child has specifically informed the school to deny any information sought about the son.
It is an admitted position that the father is the natural guardian of his minor son, yet the question regarding the disclosure of information of the minor child cannot be decided solely on the basis of the legal rights of the parties but on the sole criterion of the interest and welfare of the minor.
The physical custody of the child is with the mother. While they are living together, parents use their parental authority together, whereas if the parents don't live together anymore and only one of them has custody of the children, the other parent still keeps parental authority. The parent who does not have custody only loses the right to custody. The parent who has custody decides where the children will live. The parent who does not have custody still has all the other rights and responsibilities of parental authority (e.g., education, providing food, decisions about health care).5
On a close scrutiny of the RTI application, the Commission observes that the appellant through this RTI application is trying to redress his grievance relating to the custody of his child. The RTI Act is not the proper law to redress such grievances. Moreover it is an admitted fact that there is already a maintenance case and domestic violence case pending with the appropriate court and a refusal by the mother to the school to part with any information about her son.
The respondent school cannot be faulted in citing Sec 8(1)(j) exemption , when there is on record a specific request from the mother of the child to not disclose any information to the appellant. Moreover, the letter dated 01.07.2017 from the Principal, Kendriya Vidyalaya no. 1 reflects the helpful attitude of the respondent in which they mentioned as follows:
" Kindly refer to above cited subject it is for your kind notice that the undersigned is not in position to supply the required information as desired by you. Because the mother of student has intimated to this officer for not share any information of her child to Mr. Sanjay Kumar. She has also intimated that case is pending (V-71/2014) in Karkardooma Court Delhi about maintenance charges of her son Master Rohan Kumar studying in this KV of class V-C. Hence you are requested to kindly come in my office for detail discussion in this regard. As in the past you have never attend the PTM meeting in this Vidyalaya as representative of father/Guardian."
It is further pertinent to mention here that Sec 8(1)(j) of the RTI Act r/w Sec 11 provides as follows:
"(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
11. Third party information.--6
File no.: CIC/KVSAN/A/2017/605767 (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision."
The information sought relates to the appellant's son. As per the Act, the CPIO if he/she intends to disclose the information should issue notice to the third party u/s 11 of the RTI Act. However, in the present case, the third party i.e Master Rahul Kumar is a minor. Hence, the legal principle applies that minor's consent is no consent. Sec 11 notice was not required in the present case as 7 the mother of the third party is the custodian of her son, and had specifically requested the school authorities not to disclose any information related to her son to the appellant also stating that a court case is pending against the appellant.
The Commission considered the submissions of both the parties as well as the letter of the mother of the third party and came to the conclusion that the sought for information is personal information of the third party. Despite the fact that the father has the parental authority to receive information related to his son,in the interest of the welfare of the child and in view of the fact that the background of the case shows that there is a maintenance and domestic violence case pending before the competent court the information has been rightly denied by the respondent.
The earlier decisions of the Commission which were relied upon by the appellant were not based on the same facts, except that the father sought information related to his child. In case no. CIC/RM/A/2014/000014/SA dated 03.12.2015 the father was not in a disputed relationship with the mother and the school authorities were claiming 8(1)(j) exemption without any reasonable cause. In case no. CIC/SA/A/2016/000698/MPdated 26.05.2017 the appellant had sought a certified copy of the inquiry report in respect of a complaint made by him against the teachers of Kendriya Vidyalaya, Bhopal, in case of his son where, certain lapses were committed in conducting his son's supplementary exam but, the CPIO denied the requested information/document u/s 8(1)(e) & 8(1)(j) of the RTI Act, 2005 .Here, the appellant approached the Commission requesting for providing the said report as the FAA did not respond to his appeal dated 23.11.2015.
In both the above cases the facts were not similar to the present case and are therefore distinguished.
Decision:
In view of the above observations and discussions , the Commission is not inclined to direct disclosure of information relating to the appellant's son as the same is exempt u/s 8(1)(j) of the RTI Act.8
File no.: CIC/KVSAN/A/2017/605767 The CPIO is directed to provide the copies of the objection letter given by the mother of the child to the appellant as agreed during hearing, within 3 days of the receipt of this order.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 9