Central Information Commission
Mr.Ranjit Singh vs Ministry Of Railways on 8 April, 2010
Central Information Commission
CIC/AD/A/2010/000494
Dated 8th April, 2010
Name of the Applicant : MR. RANJIT SINGH
Name of the Public Authority : MINISTRY OF RAILWAYS,NEW DELHI
Background
1. The Applicant filed his RTI request on 05.11.09 with the PIO, Railway Board, New Delhi seeking copy of relevant file notings on which approval of competent authority was obtained for promoting Mr.R.K. Meena and Mr. B. Majumder(RBSS officers) to grade I in relaxation of the condition of 8 years service as section officer and copy of the gazette notification publishing amendment to RBSS rules 1969 as contained in Board's letter dated 06.12.85 to allow relaxation. The PIO replied on 23.12.09 enclosing information received from the Directorate. Being aggrieved with the reply, the Applicant filed his First Appeal on 23.12.09 commenting on the information provided by the PIO, Railway Board. On not receiving any reply from the Appellate Authority the Applicant filed a Second Appeal before the Commission on 23.03.2010 seeking information against 3 points.
2. The Bench of Mrs. Annapurna Dixit, Information Commissioner scheduled the hearing for 8th April, 2010.
3. Mr. Shiv Dan Singh, JS(Gaz.) cum PIO, Mr. Sidhartha Singh, USEII and Mr. Shekhar Kashyap represented the Public Authority.
4. The Appellant was heard through audio conferencing.
Decision
5. The Commission received a rejoinder dated 07.04.10 from Mr. Shiv Dan Singh, JS(G) cum PIO in which the PIO submitted that the Appellant had been informed by the PIO in response to the RTI application that information related to point (i) is exempted since they were file notings and that with regard to point (ii) information would be provided as soon as it is located. He added that on receipt of the first appeal further efforts were made by the Appellate Authority to locate the information and a file No. ERBI/85/37/3 was traced. However, the position available on the file was not such that its authenticity could be established. He also added that 2 sets of representations were received from 2groups of officers on the same issue ie. publication or otherwise of the said Notification in the Gazette of India. While one group questioned the applicability of the Notification on the grounds of its alleged nonpublication in the Gazette , the others questioned the claims of the first group and went ahead to make a request to initiate criminal action for allegedly committing atrocities against SC/ST communities against those officials who were responsible for not endorsing the copy of the said Notification for publication in the Gazette in case it was found that the same was not actually endorsed. The matter thus became highly disputed besides being sub judice as it was raised in an OA no. 591/2009 before CAT, Delhi. The PIO, Mr. Dan Singh further explained that the Notification dated 6.12.85 had assumed considerable sensitivity since it contained special provisions of affirmative action for the Welfare of SC/STs which, besides being the policy decision of GOI had already been inserted in the recruitment rules of various services vide DOPT's Gazette Notification no.61dated 29.12.84, In RBSS also the Notification was all along implemented giving benefits in promotion to the officers/officials belonging to SC/STs without any discrimination whatsoever. Also the Notification has been duly mentioned in the list of amendments carried out in the RBSS rules , 1969 in all subsequent Gazette Notifications including the last one dated 30.12.04. The PIO further contended that notings side of the relevant file were made as to whether the amendment (to be carried out vide Notification dated 6.12.85) shall be given retrospective operation or shall be carried out prospectively and that after due consideration it was agreed after legal consultation that the same shall apply prospectively and accordingly matters of promotion were decided thereafter. The PIO argued that the same amendment was omitted in another statutory amendment published in the Gazette on 30.12.04. The PIO argued that it is clear that the said amendment effected vide Notification 6.12.85 was therefore correctly treated as an amendment to the Rules as otherwise there was no need to effect an amendment dated 30.12.04 to omit the same.
6. In the context of the background of the matter as given above, the Appellate Authority was informed that the Gazette Notification of the Notification 6.12.85 could not be located in the file. According to the PIO the Appellate Authority had decided on 4.3 10 that the Applicant should be informed that no such Notification dated 6.12.85 was published in the Gazette of India.
7. The PIO during the hearing contended that the decision of the Appellate Authority was not in accordance with the factual position as it is not known from the records available whether the Notification was published or not . However when informed about the factual position, the Appellate Authority had passed his direction on 04.03.10 that the Appellant be informed that no such notification dated 06.12.85, as being sought by him, was published in the Gazette of India. Again on the directions of the Secretary , Railway Board to provide the factual position, the Appellate Authority had passed a new set of directions on 5.4.10 reiterating his earlier directions dated 4.3.10 and directing the PIO to provide the file notings and to inform the Appellant that no such Natification dated 6.12.1985 was published in the Gazette of India. In this connection the Respondent PIO pleaded that he is not in a position to take a stand based on available records as there is no authentic information in respect of publication or non publication of the Notification in the Gazette of India as the same is not available on record. The nonfurnishing of information may therefore not be considered as malafide denial by the Commission but due to non availability of authentic records. The PIO also stated that the Appellate Authority Mr.P.K. Sharma had alleged that the JS(G)/PIO having benefited from the said notification dated 06.12.85 had refused to comply with his order.
8. Needless to say that the provisions of the RT Act do not allow the PIO to take a position/stand in situations where such a stand cannot be substantiated with information in material form. The PIO had placed the factual position regarding the non availability of information regarding publication or not of the Notification in the Gazette of India and hence the PIO cannot be directed by the Appellate Authority, in the absence of such authentic records that the Notification has not been published in the Gazette of India as the same would violate the provisions as given under Section 2(f) of the RTI Act. The PIO may therefore provide an affidavit to the Commission with a copy to the Appellant stating that no authentic information as required by the Appellant is available in the records.
9. With regard to point (i) of the RTI application the Respondent PIO maintained that the file is not traceable. The Commission directs the PIO to enquire into the matter of the missing file and to provide an enquiry report to the Commission with a copy to the Appellant giving complete details of the enquiry . Disciplinary action may be initiated against the officer who is responsible for the missing file and the Commission and the Appellant to be kept informed about the action taken. The Commission finds no reason to interfere with the decision dated 5.4.20 of the Appellate Authority to disclose the file notings in the event the file is found, in the case of point (i). The information may be provided after using Section 10(1) of the RTI Act to sever the names of the officers who had made the notings.
10. The appeal is accordingly disposed of.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G. Subramanian) Deputy Registrar Cc:
1. Mr. Ranjit Singh H. No. 1/1617 Lajpat Nagar Part - I New Delhi - 110 024.
2. The PIO Ministry of Railways CPIOII, Railway Board Rail Bhawan Raisna Road New Delhi.
3. The Appellate Authority Ministry of Railways O/o the Advisor (Staff) Railway Board Rail Bhawan Raisna Road New Delhi.
4. Officer in charge, NIC
5. Press E Group, CIC