Central Information Commission
Anil Singh Bhandari vs Department Of Personnel & Training on 13 October, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOP&T/C/2020/679639
Anil Singh Bhandari ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Department of Personnel and
Training, RTI Cell, North
Block, Central Secretariat,
New Delhi-110001. .... ितवादीगण /Respondent
Date of Hearing : 22/09/2021
Date of Decision : 08/10/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 03/01/2020
CPIO replied on : 30/01/2020
First appeal filed on : 22/05/2020
First Appellate Authority's order : 24/06/2020
2nd Appeal/Complaint dated : 27/07/2020
1
Information sought:
The Complainant filed an online RTI application dated 03.01.2020 seeking the following information:
1. Current status of LDCE (SO examination) 2015 and LDCE 2016 to 2018.
2. Copies of note-sheet of all file(s) pertaining to LDCE 2015,
3. Copies of note-sheet of all file(s) pertaining to LDCE 2016 to 2018.
4. Copies of note-sheet of all file(s) wherein the decision of keeping the LDCE 2016 to 2018 in abeyance, has taken place.
5. Copies of all communication with UPSC to and fro in the matter of LDCE 2015 and LDCE 2016 to 2018.
6. Details of relevant court cases citing O.A./W.P./C.M. number in various Courts of Law pertaining to SO examination for the year 2015 and onwards. Copies of all Court Orders (interim and/or final) in the above matter.
7. Copy of Court order(s) whereby stay is granted on conduct of SO examination by DOPT/ UPSC for the year 2016 and onwards.
8. Number of vacancies (year-wise) in the grade of Section Officer in CSS as on date since 2015.
9. Number of year-wise vacancies of SO LDCE quota from the year 2015 till January, 2020.
10. Copies of note-sheets of following files:-(i) F.No.6/1/2019-CS-I(S) (ii) F.No.6/4/2016-CS-I(S) and (iii) F.No.6/14/2015-CS-l(S).
The CPIO replied to the complainant on 30.01.2020 stating as under:
"The information requested in the above RTI application is contained in multiple files. It is, therefore, requested to pay a visit to CS.I Division on any working day between 10 am to 4 pm with prior appointment with the CPIO at contact No. 2464-2705, in order to inspect the concerned files and obtain copies as required by appellant, after remitting the requisite payment."
Being dissatisfied with non-receipt of any intimation after he had requested for the date of inspection to be intimated to him, the complainant filed a First Appeal dated 22.05.2020. FAA's order dated 24.06.2020 directed the CPIO as under:-
"....The CPIO is directed to coordinate with the applicant within next 20 days, for inspection of the documents pertaining to Point Nos. 1 to 7, as documents are large in number."2
Feeling aggrieved and dissatisfied that the copy of documents desired by the Complainant was denied to him after charging him the additional fees, he approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Present through audio conference.
Respondent: George D Toppo, Under Secretary & CPIO present through audio conference.
The Complainant reiterated the grounds of the Complaint in detail, the sum and substance of which was that the copy of documents desired by him upon inspecting the relevant documents were denied to him after paying the additional fees of Rs. 84 as requested for by the CPIO. He alleged that infact those documents were taken back from him on the pretext that the Director- CS-I & FAA has to decide upon parting with the same. He further stated that eventually he was informed by the CPIO that only 4 pages of documents can be provided to him as the documents desired by him are related to some ongoing Court case and could not be provided at that stage. That, the CPIO denied the copy of the remaining documents without mentioning the fate of the additional fees paid by him. In this context, the Complainant stated that it took the CPIO almost 6 months to firstly provide the access to the information and yet the complete information was denied to him in an unreasonable manner as the documents which were already shown to him, and was asked to pay for their copies were arbitrarily denied to him in the end.
The CPIO narrated a brief background stating the nature of the LDCE (SO Examination) conducted by the DoPT to emphasize on the amplitude of any decision or development that takes place by way of litigation or otherwise in this regard. He further relied upon the contents of the written submissions dated 21.09.2021 sent prior to the hearing, relevant extracts of which are reproduced hereunder:
"(i) The Grievance being agitated by the Appellant and in respect of which the Appellant sought information in the above RTI Application related to the declaration of the result of the Limited Departmental Competitive Exam 2015 conducted by UPSC for promotion of ASO of Central Secretariat Service to Section Officer Grade and conduct of the said LDCE exam for the years 2016 to 2019. (ii) In 3 this connection it maybe stated that the result of the above said LDCE 2015 exam as well as conduct of subsequent LDCE exams was held up due to pending litigation and the matter was sub-judice since 2015 till 2020 and was litigated upto the Hon'ble Supreme Court and attained finality only after dismissal of the claims of the petitioners by the Hon'ble Supreme Court in 2020.
(ii) However, in the meantime the Hon'ble Supreme Court had on 15.04.2019 issued order for maintaining Status Quo in promotions in some other litigation related to issues of reservation in promotion. Hence the result of the LDCE 2015 could not be declared.
(iii) Subsequently, the Delhi High Court in a contempt case directed in November 2020 to declare the result of the LDCE 2015 pursuant to which the result of LDCE 2015 was finally declared in April 2021 and further action has now been initiated for conduct of the LDCE 2016 2017. The issues of conduct of LDCE 2018 are still under examination due to ongoing litigation.
(iv) The office notings sought by the applicant contained reference to the details of several ongoing cases. The said reference is an important integral part of the noting leading to the decision of the Competent Authority in this Department not to hold the SO LDC Examination 2016 and onwards and were exempt in terms of the finding of the Hon'ble CIC in the case of Shri Naresh Kumar vs. DoPT (CIC/DoP&T/C/2020/101845 dated 03.08.2021).
6. In light of the above, the point-wise submission to the applicant's CIC Appeal dated 27.07.2020 is as follows:
(i) The applicant has alleged that the CPIO refused to provide the requisite information w.r.t. his RTI application dated 03.01.2020. However, as a matter of fact the CPIO never refused to provide the desired information but only expressed his inability to provide the same for bonafide reasons as stated above to protect the legal interests of Union of India in the ongoing litigation, . As regards point no.
1 to 7 of his RTI application, it is stated that there were related cases which were sub-judice and the public disclosure of the information would have adversely affected the Government's stand in the ongoing litigation which was not felt to be in public interest. Hence, the information in 4 pages were duly furnished to the applicant vide CPIO's reply dated 27.07.2020 after due application of mind.
(ii) The applicant w.r.to his RTI application dated 03.01.2020 has alleged that the only exception available to the CPIO for refusing information was 'non- availability of record' but the CPIO did not take this ground and denied the information on the ground of 'confidentiality'. In this regard, it is stated that the CPIO vide his reply dated 30.01.2020 to the applicant's RTI dated 03.01.2020 has 4 not refused the furnishing of said information on the ground of non-availability of record but requested the applicant to visit the office of the CPIO for identifying the requisite documents.
xxx
7. Thus, it may be seen from above submissions that the issue on which applicant sought information was the subject of extremely complicated and protracted litigation agitated from 2015 onwards which attained finality only in 2021 well after the filing of the RTI Application and its reply. The litigation went upto the Highest Court and disclosure of such complex matters in public domain, while they were still under active consideration of the Hon'ble Courts would further compromise and complicate the legal strategy of the Government as well and it was only in public interest that the CPIO withheld the information related to ongoing litigation.
8. Further, it is submitted that the grievance of the Appellant related to seeking information w.r.t SO LDCE 2015 onwards has been already addressed as can be seen from the facts placed in para 5. The results of SO LDCE 2015 has already been declared. UPSC has already been requested to hold the SO LDCE 2016-17 after settlement of the protracted litigation related to eligibility of DR Assistant Section Officers in SO LDCE Exam.
9. In light of the above facts, it is respectfully submitted that there is no mala-fide intention on the part of this CPIO. The information that could be disclosed on points 1 to 7 of the RTI application dated 03.01.2020 were provided to the appellant. The remaining information on point 1 was withheld by the CPIO concerned only in the public interest to protect the rights of the Union of India as a defendant / litigant in Court cases for the reasons and precedents as stated above. It is respectfully prayed that Hon'ble CIC may also consider the grave issues raised in above paras that could arise from disclosure of such information pending adjudication of sub-judice matters before arriving at a conclusion in this matter."
The Complainant contested the submissions of the CPIO to state that his primary grouse is that without any express bar on the disclosure of the information by any Court of Law, the CPIO cannot deny the information on the grounds of ongoing litigation as a mere afterthought.
5Decision The Commission after having heard the submissions and arguments of both the parties in detail observes at the outset that while there is no material on record to suggest malafides in the denial of the part information but the fact that the Complainant was misled and inconvenienced by the CPIO by asking him to inspect the complete records and pay the additional fees for 42 pages but in return providing only 4 pages amounts to a gross violation of the provisions of the RTI Act. It was incumbent upon the CPIO to have informed the Complainant about the intention to deny the information to him at the relevant time itself along with the reasons instead of making the Complainant inspect and later pay the additional fees and chase down the Respondent office to get a definitive response. To this extent, the Commission records severe admonition for George D Toppo, Under Secretary & CPIO and cautions him to exercise due diligence and to ensure paying due regard to the time and resources of the RTI Applicants in future.
As regards the reasoning tendered by the CPIO in his written submissions and during the hearing for denying the information to the Complainant, the Commission is inclined to accept the same in keeping with the various case laws referred to by the CPIO which are reproduced hereunder for clarity:
"(iii) As stated above it is also humbly submitted for kind consideration by the Hon'ble CIC that the above stand taken by the CPIO is squarely covered by a similar rationale relied upon by this esteemed Commission in Naresh Kumar case which is as follows:
'However, having perused and heard the detailed written submissions of the CPIO sent prior to the hearing stating that the information sought for contains the legal opinion received by the department and disclosing the same during the pendency of the litigation was not desired, the Commission is of the considered opinion that Section 8(1)(e) of the RTI Act has been aptly invoked in the facts of the case.
Upon a conjoint reading of the above said observations, it is clear beyond reasonable doubt that no malafides can be ascribed to the CPIO for having denied the information to the Complainant.'
(a) In the matter of C. Seetharamaiah vs. Commissionerate of Customs & Central Excise (File No.CIC/AT/A/2008/01238) dated 7.6.2010 which in the context of Section 8(1)(h) of RTI Act reproduced hereunder:6
'37 and what was more any disclosure of this information to the appellant at this stage would undoubtedly cause injury to the CBI's presentation of the case on behalf of the prosecution before the Trial Court. Forcing CBI to provide to the appellant evidence, records and documents it otherwise would not provide to him or provide to him only through the directive of the Trial Court, would have the effect of interfering with the CBI's right to marshall evidence and to present it in the manner or in the sequence, which in its judgment, would be necessary to prove the guilt of the accused. This is CBI's right as the complainant before the Trial Court, which would be seriously compromised if the accused were allowed to force it to give out information and documents through the RTI Act.
38. The central point of this line of argument is that no attempt to harm the integrity of the prosecution proceeding before the Court as already laid down in several laws of the land, should be allowed to succeed by casting on the public authority or the prosecuting agency obligations which criminal and evidence laws do not assign to them.
No public interest is served by such actions. On the contrary, public interest is positively harmed when interested parties are given the privilege of interrogating a prosecuting agency about its actions vis-a-vis that party through an RTI proceeding when the prosecution before a Trial Court is already extant.'
(b) In the matter of Rama Krishna Nelli. Vs CPIO, DoPT (F. No. CIC/DOP&T/C/2018/155355 + CIC/DOP&T/C/2018/155357) dated 24.07.2020 wherein Commission has observed as follows:
'Further, Commission finds it relevant to emphasize on the nature of the conflicting interest in this case if disclosure were to be allowed of the documents based on which Respondent office is to defend their case, and by any measure case of the Respondent office is hampered by such disclosure, invariably the litigation will continue in the form of further appeals and reviews sought by the department. It is common knowledge that when government bodies are brought into litigation or vice versa when government bodies initiate litigation, it is at the cost of the public exchequer, fact remains that if the Respondent office is compelled to disclose the material based on which it seeks to pursue its defence, the case will invariably lead to a state of limbo or result in a scenario where the Respondent office may initiate further litigation.'....."
Having observed as above, the denial of the part documents by the CPIO even as an afterthought does not warrant penal or disciplinary action in the absence of any material on record to suggest that the denial or withholding of the information was deliberate or with a malafide intention. In this regard, attention of the Complainant is drawn towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:7
" 61. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed...."
Similarly, an observation of the Hon'ble Delhi High Court in the matter of Bhagat Singh vs. CIC & Ors. WP(C) 3114/2007 is also relevant to point out here which reads as under:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Nonetheless, the CPIO is directed to refund the additional fees of Rs. 84 sought for the copy of documents to the Complainant through appropriate mode of payment within 15 days from the date of receipt of this order under due intimation to the Commission.
The Complaint is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) 8 Authenticated true copy (अिभ मािणतस"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 9