Central Information Commission
Anmol Singh Nayar vs Punjab & Haryana High Court on 28 July, 2020
के य सचू ना आयोग
Central Information Commission
बाबा गंगनाथ माग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
वतीय अपील सं या / Second Appeal No.:- CIC/PUHHC/A/2018/167125-BJ
Mr. Anmol Singh Nayar
(E - Mail: [email protected])
....अपीलकता/Appellant
VERSUS
बनाम
CPIO and Jt. Registrar (Rules),
High Court of Punjab & Haryana
Sector - 1, Chandigarh - 160001
... तवाद गण /Respondent
Date of Hearing : 28.07.2020
Date of Decision : 28.07.2020
Date of RTI application 21.06.2018
CPIO's response 23.07.2018
Date of the First Appeal 01.08.2018
First Appellate Authority's response 09.08.2018
Date of diarised receipt of Appeal by the Commission 14.11.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points whether Ms. Vivek Bharti, Ex - Additional District & Sessions Judge, in the State of Haryana was awarded 'C' rating in her ACR/ Inspection Report in the preceding 05 years before her promotion to the cadre of Additional District & Sessions Judge in the State of Haryana; number of subordinate judicial officers in the State of Haryana who had been awarded 'C' rating since 2007 till 31.03.2017 and other issues thereto.
The CPIO, vide its letter dated 23.07.2018 denied disclosure of information u/s 8(1) (j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 09.08.2018 upheld the response of the CPIO.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. N. S. Nayar (M: representative of the Appellant, through VC; Respondent: Mr. Satish Kumar Wig, CPIO and Mr. Charanjit Singh, Sr. Assistant through VC;
The Appellant's representative re-iterated the contents of the RTI application and stated that the information on point no 01 was incorrectly denied u/s 8 (1) (j) of the RTI Act, 2005 since the same pertained to allegations of corruption and nepotism in the promotion of Ms Vivek Bharti to the post of Additional District & Sessions Judge. Explaining that the said candidate was promoted against the rules, the Appellant's representative submitted that the said candidate had also approached the Hon'ble High Court of Punjab and Haryana in its Writ Jurisdiction on the issue of her premature/ compulsory retirement and the matter was presently sub-judice. The Appellant's representative further submitted that with regard to point nos 02 and 03, the information sought was generic in nature hence could not be denied u/s 8 (1) (j) of the RTI Act, 2005. In its reply, the Respondent while re-iterating the response of the CPIO/ FAA stated that the information sought in point no 01 was personal in nature exempted from disclosure under Section 8 (1) (j) of the RTI Act, 2005 and that the allegations of corruption made by the Appellant could not be substantiated at this stage and that no case of corruption was filed by the Appellant against the said candidate. As regards point no 02 and 03, it was stated that the information sought was not held and available with them in the format as desired by the Appellant. On being queried if he had substantiated his allegations of corruption against the official mentioned in the RTI application before any judicial forum or higher official within the Public Authority, the Appellant's representative replied in the negative. On being further questioned regarding the larger public interest warranting disclosure of information pertaining to Ms. Vivek Bharti, no satisfactory response was offered by the Appellant's representative. He primarily desired information to prove his bonafides.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "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 Page 2 of 7 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."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
The Commission further referred to the judgment of the Hon'ble Supreme Court of India in Girish Ramchandra Deshpande vs. Central Information Commission & ors. SLP(C) No. 27734 of 2012 dated 03/10/2012 wherein it was held as under:
"13......The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right."
The Hon'ble Supreme Court of India in the matter of Canara Bank Rep. by its Deputy Gen. Manager v. C.S. Shyam, Civil Appeal No. 22 of 2009 dated 31.08.2017 had held as under:
Page 3 of 7"5) The information was sought on 15 parameters with regard to various aspects of transfers of clerical staff and staff of the Bank with regard to individual employees. This information was in relation to the personal details of individual employee such as the date of his/her joining, designation, details of promotion earned, date of his/her joining to the Branch where he/she is posted, the authorities who issued the transfer orders etc. etc
11) Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order and dismiss the application submitted by the 1st respondent under Section 6 of the Act.
12) In our considered opinion, the issue involved herein remains no more res integra and stands settled by two decisions of this Court in 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, 5 it may not be necessary to re-examine any legal issue urged in this appeal.
14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature;
secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1."
Furthermore, in a recent judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon'ble Supreme Court of India, had observed as under:
"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 conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive."
With regard to non-disclosure of ACR of a third party, the Commission referred to the decision of the Hon'ble Supreme Court of India in the matter of R.K. Jain v. Union of India and Anr., in Civil Appeal arising out of SLP (C) No. 22609 of 2013, wherein while referring to the decision of Girish Ramchandra Deshpande had held as under:
"17. In view of the discussion made above and the decision in this Court in Girish Ramchandra Deshpande(supra), as the appellant sought for inspection Page 4 of 7 of documents relating to the ACR of the Member, CESTAT, inter alia, relating to adverse entries in the ACR and the 'follow up action' taken therein on the question of integrity, we find no reasonto interfere with theimpugned judg ment passed by theDivision Bench wherebythe order passed by the learned Single Judge was affirmed."
In the judgement of the Ld. Single Judge of the Hon'ble High Court of Delhi in R.K. Jain v. Union of India, W.P. 6756 of 2010 dated 08.12.2011 which was affirmed by the Hon'ble Supreme Court of India vide its aforementioned decision it was held as under:
"10. Therefore, except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the officer himself/herself."
Furthermore, a reference was made to the decision of Hon'ble High Court of Delhi in W.P. (C) 4735/2011 in Union of India vs. D.S Meena wherein it was held as under:
"22. So far as the respondent sought the information regarding the Departmental Promotion Committee proceedings ("DPC" for short) and the minutes of such proceedings this Court is further of the opinion that the same cannot be disclosed except for in public interest. This Court in, "THDC India Ltd. Vs. R.K. Raturi' W.P. (C) 903/2013 decided on 08.07.2014 has observed as under:
"13. Consequently, this Court is of the view that ACR grading/ratings as also the marks given to the candidates based on the said ACR grading/ratings and their interview marks contained in the DPC proceedings can be disclosed only to the concerned employee and not to any other employee as that would constitute third party information. This Court is also of the opinion that third party information can only be disclosed if a finding of a larger public interest being involved is given by CIC and further if third party procedure as prescribed under Sections 11(1) and 19 (4) of the RTI Act is followed."
23. In the instant case, the information sought by the respondent pertains to the ACRs of Shri N. Jayaram, O.P. Kala, Vijaykumar who are government servants and the DPC proceedings so conducted. As I have already observed that ACRs of these employees are confidential documents. The reasons provided by the respondent are not convincing enough to establish before this court that disclosure of ACR details of the said three persons and the DPC proceedings is important for larger public interest. Learned counsel for the respondent has established no grounds for the same. Merely because the respondent wants to avail such information, does not form a substantial reason so as to why this Court should allow disclosure of such information. In the absence of any cogent reasons brought on record to establish the necessity of disclosure of the information sought by the respondent in the interest of public this Court is not inclined to violate the right to privacy of the said three public officers which is a Fundamental Right embedded in our Constitution."
The Commission also referred to the decision of the Hon'ble High Court of Sikkim in the matter of Sancha Bahadur Subba vs. State of Sikkim W.P. (C) 31/2017 dated 30.04.2018 wherein it was held as under:
Page 5 of 7"30. What concludes therefore from the gamut of discussions herein above is that in a given case information pertaining to assets and liabilities can be disclosed with the rider that there must be larger public interest involved justifying such disclosure. As can be culled out from the averments and submissions, the Petitioner herein suspects that the Respondent No. 5 is in possession of assets disproportionate to his known sources of income, however mere suspicion without any prima facie material to substantiate it does not justify the disclosure of such information of the Respondent No. 5 as rests with the concerned government authority. This situation indeed appears to be a fishing expedition embarked upon by the Petitioner without any bona fide public interest. In these circumstances, it obtains that disclosure of such information would cause unwarranted invasion of the privacy of the individual and falls under the ambit of Section 8(1)(j) of the RTI Act."
The Commission further observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the Page 6 of 7 confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, no further intervention of the Commission is warranted in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(The order will be posted on the website of the Commission) (Bimal Julka) ( बमल जु का) (Chief Information Commissioner) (मु य सूचना आयु त) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के.एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 28.07.2020 Page 7 of 7