Central Information Commission
Shri. Majid Hussain vs North Eastern Railway on 19 November, 2009
Central Information Commission
2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi - 110 066
Website: www.cic.gov.in
Decision No.4720/IC(A)/2009
F. No.CIC/SG/C/2009/000303
Dated, the 19th November, 2009
Name of the Appellant: Shri. Majid Hussain
Name of the Public Authority: North Eastern Railway
i
Facts:
1. Both the parties were heard on 18/11/2009. Sh. Jagdish, PIO & Sr. EDPM, NE Railway, Lucknow, and two of his colleagues represented the respondents. The appellant appeared for hearing after the respondents had left the Court room. He explained the reasons for his being late for the hearing and said that the train in which he traveled was running late.
2. During the hearing, the respondents stated that the information asked for relating to promotion of the appellant has already been furnished and that there is no denial of information. The PIO alleged that the appellant was mis-using the provisions of the Act for harassing the officials of the respondent.
3. On his turn, the appellant stated that vide his RTI application dated 5/12/2008, he asked for certain information relating to the marks obtained by him in the selection process conducted by the respondent during 2005-06. Since he did not receive any response within the stipulated period of 30 days, he submitted a complaint before the Commission, which directed vide its decision dated April 6, 2009, as under:
"From the facts given in his complaint, prima facie it appears that you have not provided the information without any reasons. If the facts stated in his complaint, a copy of which is enclosed, are correct, this amounts to denial of information without any reasons. If you have received the RTI application, you are directed to provide the information free of cost to the complainant before May 01, 2009.
i "If you don't ask, you don't get." - Mahatma Gandhi 1 It appears that the PIO's actions attract the penal provisions of Section 20(1). Therefore, you are directed to send the following to the Commission before May 06, 2009 by speed post or hand delivery:
(i) A copy of the information sent to the complainant.
(ii) Your explanation for not supplying the information to the complainant within the mandated time."
Sd/-
Shailesh Gandhi Information Commissioner April 06, 2009"
4. In pursuance of the above Commission's direction, the PIO replied vide his letter dated 29/4/09 and stated that the relevant information was being obtained from the concerned department and the same would be furnished in due course. However, no response was given till the Commission issued the notice for hearing to both the parties vide its letter dated 31st October, 2009. In response to this the PIO, Shri. Jagdish replied vide his letter dated November 12, 2009 along with which the letter of 29/4/2009 was attached. But, the relevant information regarding the irregularities in the selection process, in which the appellant was allegedly discriminated against, was not furnished. While the respondents stated during the hearing that the information was furnished to him, actually it was not furnished, as evident from the aforementioned letters on record.
5. The appellant presented evidence, in the light of which he stated during the hearing that in the process of departmental promotion, he has been deliberately discriminated against on the ground of higher educational qualification acquired by him. He obtained B.A. degree in 1978, which was also recorded and acknowledged by the respondent in the transfer order dated March 16, 1982. But, the selection committee has awarded him marks (58/100) on the basis of his High School Certificate. Had the selection committee of the respondents taken into account his BA degree qualification, he would have got much higher marks than required (60/100) for qualifying the selection criteria. He has been failed for short of only two marks, due to award of marks on High School basis, instead of B.A. degree qualification. He has thus been discriminated against. The respondents have therefore tried to suppress the information, as evident from deemed refusal of information.
6. The appellant also stated that he has been penalized and downgraded on the ground that he acquired higher degree, i.e. BA degree, without obtaining the necessary permission from the respondent, which he said is not true. He presented evidences before this Commission to demonstrate that he has duly obtained permission for appearing for Intermediate examination and likewise he also obtained permission for doing his graduation. This is duly reflected in the 2 transfer order of March 16, 1982 issued by the respondent, which indicated that the appellant's educational qualification is B.A. degree. This proves the malafied intentions of the concerned officials of the respondent, he asserted. For these reasons, the PIO has not provided correct information.
7. The appellant also stated that the respondents are unhappy because he has sought for information relating to irregularities in promotion of staff, resulting in alleged discrimination and injustice at the place of work. And, because of the established malafied intentions of the respondent and harassment meted out to the appellant, the Commission has earlier awarded him compensation vide its order dated 31st July 2008, while the imposition of penalty on the CPIO was condoned by the Commission on the basis of an apology offered by the respondents. Because of the use of RTI provisions for accessing information relating to the grounds of discriminatory awards of marks, the respondent has taken disciplinary action of downgrading him on the ground of acquiring higher degree. An RTI user has thus been victimized, the appellant alleged.
Decision:
8. India is committed to promote higher education and learning among all the citizens. By any reckoning, acquiring higher educational qualifications cannot therefore be considered punishable action. The story of the appellant is indeed disheartening.
9. The appellant has been pleading before the respondent for fair and objective award of marks for consideration of his promotion. Instead, the respondent has demoted him on the ground of acquiring higher educational qualification of B.A. degree, without official permission, as alleged by the respondents. The evidence on record show that the respondents' action is unjustified.
10. The evidence on record shows that the RTI application dated 5/12/2008 was not replied within the stipulated period of 30 days, which violates section 7(1) of the Act. Even when the Commission directed the respondent to provide the information, no worthwhile action was taken, which shows the malafied intentions of the concerned officials, who may be the custodian of information. The required information pertains to discriminatory basis of award of marks for educational attainments.
11. Under Section 4(1)(d) of the Act, a public authority is required to provide the grounds for any action taken to the affected persons. In the instant case, the appellant's service career has been jeopardized on the pretext of acquiring higher degree, allegedly without office permission, and use of RTI for seeking transparency of information. Eventually, this has led to downgrading of post held by the appellant. This is contrary to the appellant's expectation for obtaining promotion through a fair selection process.
312. The information asked for pertain to the alleged irregularities in departmental promotion. The appellant has alleged that he was awarded marks on the basis of Higher Secondary Certificate, instead of B.A. degree. The evidence shows, particularly the transfer order of March 16, 1982, that the respondents were aware that the appellant possessed BA degree, which was, however, not taken into reckoning for award of marks due to malafied reasons. And, therefore, the appellant could not get at least two marks more to qualify for getting promotion. He scored 58/100 marks while the required target score of 60/100 for promotion could have easily been met had the selection committee considered his B.A. degree.
13. The respondent's records show that the appellant possessed Intermediate and B.A. degree, which were acquired during the service period. It is, therefore, not understandable as to why the appellant's initial High School Certificate alone was taken into consideration for awarding marks for promotion. This proves the malafied intentions of the concerned official of respondents.
14. The evidence also shows that the appellant has been using RTI and because of the lackadaisical attitude of the respondent, this Commission also awarded compensation to the appellant for detriment suffered by him. Yet, the attitude of the respondent has not shown any sign of change, which is required under the transparency regime.
15. Why should an information seeker be penalized for seeking information relating to the subject matter with which he is affected and why should a person, who has acquired higher degree should not be rewarded, are the points for consideration. The respondents have not replied to the RTI application till the Commission intervened, which shows that the respondents have deliberately hided certain facts for which penal action is warranted.
16. In view of the fact that the major concern of the RTI is to seek accountability of the public authorities in all the matters of public activity, including the selection and the recruitment process, Sh. Ashok Kumar Singh, DRM, NE Railway, Lucknow, is, therefore, directed to enquire into the matters relating to the alleged discrimination against the appellant on the grounds of acquiring higher degree and use of RTI for seeking transparency in the decision making process of the respondent. As a result of which the appellant has been allegedly penalized and downgraded. A report should be submitted to the Commission within one month from the date of issue of this decision, failing which appropriate action would be initiated.
17. The PIO, Sh. Jagdish is held responsible for violation of section 7(1) of the Act, as he did not respond to the RTI application dated 5/12/2008 within the stipulated period of 30 days. Even when the Commission directed vide its 4 decision dated April 6, 2009, no worthwhile action was taken to provide the information. The PIO, Shri. Jagdish should explain as to why a maximum penalty of Rs.25,000/- (Rupees Twenty Five Thousand only) should not be imposed on him for deemed refusal of information without any reasonable cause. He should submit his written explanation at the earliest and also appear for a personal hearing on the date and time indicated below.
18. The appellant has indeed suffered harassment ever since he has been seeking information relating to transparency and objectivity in award of marks for promotion and the reasons for not taking into account the higher degree of the appellant, for which proper justification has not been provided. For using the provisions of RTI for accessing relevant information, he has been downgraded in his post. The appellant has surely suffered all kinds of harassment in accessing information. The DRM, on behalf of the respondent, should explain as to why a suitable compensation of Rs.1,00,000/- (Rupees One lakh only) should not be awarded to the appellant for the detriment suffered by him in seeking transparency and information that was required for securing natural justice. The DRM should submit a written explanation to the Commission and also appear for hearing on 23rd December 2009 at 11.00 a.m., failing which compensation would be awarded.
19. The matter would be taken up again for a hearing on the date and time indicated above in which all the concerned parties namely, the appellant, the PIO and the concerned officials of the respondents are expected to be present.
20. The appeal is thus disposed of.
Sd/-
(Prof. M.M. Ansari) Central Information Commissioner ii Authenticated true copy:
(M.C. Sharma) Assistant Registrar Name & address of Parties:
1. Shri. Majid Hussain, H. No.391/7A, Chhote Sahab, Alam Road, Noor Badi Sahadat Ganj, Lucknow.
ii "All men by nature desire to know." - Aristotle 5
2. Shri. Jagdish, PIO & Sr. EDPM, Office of the Divisional Rail Manager, North Eastern Railway, Lucknow, U.P.
3. Sh. Ashok Kumar Singh, DRM & AA, North Eastern Railway, Lucknow, U.P. 6