Central Information Commission
V K Khanna vs Department Of Personnel & Training on 24 May, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/DOP&T/A/2020/683718
V K Khanna ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Secretariat of Appointments
Committee of Cabinet,
Department of Personnel &
Training, Office of the
Establishment officer, RTI
Cell, North Block, New
Delhi-110001 ..... ितवादीगण /Respondent
Date of Hearing : 19/01/2022
Date of Decision : 16/05/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 21/03/2020
CPIO replied on : 05/06/2020
First appeal filed on : 08/06/2020
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : Nil
Information sought:
The Appellant filed an RTI application dated 21.03.2020 seeking the following information:1
"..........a copy of the Gazette Notification F No. 4/5/2016-BO.I dated 18/02/2020, marked as Annexure 'A'. With reference to Annexure 'A', kindly provide the information:
1) Inspection of the Complete File of Appointment Committee of Cabinet (ACC) in which the extension of Dr Fareed Ahmad, Executive Director of Punjab & Sind Bank was dealt with.
2) Whether ACC was aware that Dr Fareed Ahmad is guilty of Sexual Harassment, as defined in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
3) Whether the ACC was informed that a police complaint is pending against Dr Fareed Ahmad for committing acts of sexual harassment at workplace.
4) Whether Dr Fareed Ahmad has sought any permission from Ministry of Finance/ Govt of India to file any petition before any High Court/ Supreme Court since his taking over the charge as Executive Director of Punjab & Sind Bank to date of providing information? If yes, kindly provide the relevant records.
5) The Reward Scheme, if any, for bank officials guilty of Sexual Harassment of Women at Workplace.
The CPIO furnished point wise reply to the appellant on 05.06.2020 stating as follows:-
Point No. 1:- In so far as EO ACC Section, DOPT is concerned, the noting of files submitted for approval of the Appointments Committee of the Cabinet form part of "Cabinet papers including of deliberations of the Council of Ministers, Secretaries and other officers", which are exempted from disclosure under Section 8(1)(i) of the RTI Act. In this regard, it is stated that in the LPA No. 347/2010 i.e. Uol v/s P.D. Khandelwal filed in the High Court of Delhi, the Hon'ble High Court, vide order dated 12.07.2010, has stayed the order passed by the Single Bench in WP No. 8396/2009 dated 30.11.2009 in which the High Court had upheld the CIC decision that ACC file notings could also be disclosed. In other words, the decision of the CIC in Shri P.D. Khandelwal's case which was upheld by the single Judge of the Delhi High Court has been stayed by the Division Bench. The stay is still in force. Moreover, the High Court has also stayed the operation of the orders of the CIC in case of Shri H.C. Sharatchandra, Shri Rakesh Mehrotra, Shri P.K. Jain and Shri R.K. Tyagi in LPA Nos. 435/201,4, 568/2014 & 569/2014 & 570/2014 respectively. Further, the CIC has also held in several cases while disposing off the appeals against non-disclosure of ACC Notings that as the 2 matter relates to disclosure of ACC Note and is sub-judice in the High Court of Delhi, it would be judicious to await the final outcome of the pending matter in the High Court of Delhi."
Point Nos. 2, 3, 4 & 5:- In so far as EO(ACC) section is concerned , the information sought by the applicant is not available.
Being dissatisfied, the appellant filed a First Appeal dated 08.06.2020. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio conference.
Respondent: Amit Srivastava, US & CPIO present through audio conference.
The Appellant stated that the information sought for related to public interest as Dr. Fareed Ahmad has been given extension as an Executive Director of a nationalised bank even as he was found guilty of sexual harassment and police complaint is pending against him. He further stated that the RTI Application has been transferred back and forth by Secretariat of Appointment Committee of the Cabinet to DoPT; DoPT to DFS; DFS to Punjab & Sind Bank and DFS again referred the RTI Application back to DOPT for point no.2 while DoPT has cited Section 8(1)(i) of the RTI Act even as the appointment has been already made. He furthermore harped on the argument that he is not seeking for this information for his personal interest but to augment the larger public interest while only seeking for such details which should be available in the public domain. The Appellant insisted that the Commission should look at the larger public interest in the disclosure of the information and urged that new dimensions to the case should not be added.
The CPIO submitted that the Commission has upheld the plea of the stay order of the Hon'ble Delhi High Court in the PD Khandelwal case in a number of earlier decided cases and therefore he has nothing further to add per se in this regard. He emphasised further that the said submission is related to the inspection requested for at point no.1 of the RTI Application and for points 2-5, the Appellant has been informed categorically that the information sought is not available.3
The Appellant argued that DFS referred back point no.2 to DoPT so the information ought to be available with DoPT and further insisted that on points 2- 4 he has merely asked the CPIO to confirm certain facts which can be easily responded to and urged in this regard that the Commission may consider seeking the presence of DFS as well as Punjab & Sind Bank to ascertain the actual custodian of information. He also contended that if DoPT finds it inconvenient to provide him with the inspection of the records, the CPIO can just provide the copy of the records.
The matter was reserved.
Decision:
Having heard the Appellant at length and considering the facts on record, the Commission at the outset observes that the information sought for in the RTI Application is squarely exempt under Section 8(1)(j) of the RTI Act. In this regard, the Commission relies on a judgment of the Hon'ble Supreme Court in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794. The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and 4 conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..." Emphasis Supplied.
Now, even if by farthest stretch of imagination, the Commission accorded a sense of larger public interest in the matter considering the gravity of the allegations levelled by the Appellant, the fact remains that vide the stay order dated 12.07.2010 of the Hon'ble Delhi High Court in LPA No. 347/2010 the issue of amenability of the deliberations of the ACC to the provisions of the RTI Act is sub judice. However at the same time, the claim of Section 8(1)(i) of the RTI Act is inappropriate when the decision of the averred extension was complete.
The Commission has adequately adjudicated on the subject of disclosure of ACC records in the matter of Nutan Thakur vs. DoPT in a number of Appeal(s) heard on 19.03.2019 and 26.03.2019, specific reference may be had of File No: CIC/DOP&T/A/2017/160659/SD, wherein the following was held:
"As regards the stay of Hon'ble Delhi High Court vide LPA No. 347/2010 is concerned, Commission notes that the applicability of Section 8(1)(i) of RTI Act is not what is pending adjudication but the moot question is based on a decision of First Appellate Authority as extracted in para 53 of the judgment in W.P (C) No. 8396/2009 which states as under:
'.......This rule-making power (for conduct of the Government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of Parliament, as this rule-making power flows from the direct constitutional mandate and they are not product of any legislative authorization. In view of the fact that the ―separaLon of powers‖ is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of Government's business (Transaction of business and allocation of business) cannot be fettered by any act or by any Judicial decision of any Court, Commission, Tribunal, etc. Since ACC is a product of the rules framed under Article 77(3) of the Constitution of India, its business (deliberations including the decision whether they are to be made public) are not the subject-matter of the decisions of any other authority other than the President of India himself.
Therefore, unless these rules, framed under Article 77(3) themselves provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act.5
Therefore, the RTI Act has rightly provided for non-disclosure of the information pertaining to ―Cabinet Papers.' In other words, the issue pending adjudication in LPA No. 347/2010 is whether records of ACC being Cabinet papers are yet distinct from the records of deliberations of Council of Ministers or not.
It is pertinent to note that Section 8(1)(i) of RTI Act provides for exemption of cabinet papers including deliberations of Council of Ministers, where decision has not been taken, the matter is not complete, or over. In the instant case, information sought pertains to appointments already made, in other words, where process of appointment is in itself over. Adverting to the genesis of LPA No. 347/2010, it is not appropriate for the CPIO to cite Section 8(1)(i) of RTI Act but should only restrict to the factum of the stay order operative on the subject of disclosure of records of ACC."
In the instant case as well, the information sought for pertains to an extension order which was already issued, in other words, the decision of extension was not pending therefore it could not have attracted the exemption of Section 8(1)(i) of RTI Act. The CPIO was required to only intimate the factum of stay of the Hon'ble Delhi High Court on the subject of disclosure of ACC records under the RTI Act.
Having due regard to these earlier orders of the Commission issued in the year 2019 and onwards of year 2020 emphasising on the import of Section 8(1)(i) of the RTI Act vis-à-vis the P.D Khandelwal case, the CPIOs of DoPT ought to avoid repeating the same erroneous interpretation of the averred stay order as well as that of Section 8(1)(i) of the Act even to this date.
As regards, the contentions of the Appellant with respect to points 2-5 of the RTI Application, the Commission is unable to appreciate the same considering the fact that the said queries do not conform to Section 2(f) of the RTI Act. The Appellant has sought to confirm certain speculative statements and has required for the interpretation and deduction of records by the CPIO which is not the mandate of the RTI Act. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
6In this regard, his attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.7
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) Upon a conjoint consideration of the foregoing discussion, no scope of relief is pertinent in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8