Central Information Commission
Pankaj Mishra vs Pharmacy Council Of India on 24 February, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/PHRCI/A/2018/147441-BJ
Mr. Pankaj Mishra
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Dy. Secretary
Pharmacy Council of India
NBCC Centre, 3rd Floor, Plot No. 2
Community Centre, Maa Anandamai Marg
Okhla Phase, New Delhi - 110020
... ितवादीगण /Respondent
Date of Hearing : 20.02.2020
Date of Decision : 24.02.2020
Date of RTI application 15.04.2018
CPIO's response 07.05.2018
Date of the First Appeal 18.05.2018
First Appellate Authority's response 15.06.2018
Date of diarised receipt of Appeal by the Commission 30.07.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding the year-wise description of the 1/4th amount of fees received by the Pharmacy Council of India in accordance with Section 44 of the Pharmacy Act, 1948 for the years from 1990 to March, 2012, etc. The CPIO, vide its reply dated 07.05.2018 stated that the information sought by the Appellant could be available with different files and compilations and providing photocopies thereof involves a lot of work which would disproportionately divert the resources of their office. Thus, the Appellant was requested their office after taking prior appointment and inspect and take copies of the relevant documents u/s 2 (f) of the RTI Act, 2005. No TA/DA however would be paid by the Council for such journey (ies). Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA vide its order dated 15.06.2018, concurred with the response of the CPIO.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Pankaj Mishra through VC;
Respondent: Mr. Anil Mittal, Dy. Secretary, PCI and Mr. G. C. Labra, Consultant, PCI and Mr. Sunil Kumar Gupta, US, MoH&FW;
The Appellant reiterated the contents of the RTI application and stated that although inspection of records was facilitated by the Respondent at their office in New Delhi, he wasn't willing to undertake the same due to travel and logistical issues. He specifically referred to point no 01 of the RTI application and stated that in the said point he had only sought information regarding the total amount of fee deposited by colleges in the State of UP as per the provisions of the Pharmacy Act, 1948. He further referred to point no 02 of the RTI application and stated the guidelines/ rules pertaining to the time period within which renewal of Pharmacist Registration Certificate was required to be made was not provided by the Respondent. He further referred to points 03 and 04 of the RTI application and stated that the information regarding the list of Registered Pharmacists provided by the UP Pharmacy Council to the Pharmacy Council of India (PCI) and the copy of the Central Register prepared since the year 2016 should be disclosed by the Respondent. A reference was also made by the Appellant to point no 05 of the RTI application to submit that he also desired a copy of the report of the CAG in the said context which should have been disclosed to him being a public document. In its reply, the Respondent stated that the documents relating to the fee received from the colleges as per the provisions of the Pharmacy Act, 1948, the list of Registered Pharmacists provided by the UP Pharmacy Council to the Pharmacy Council of India (PCI) and the copy of the Central Register prepared since the year 2016 being large and voluminous data could not be disclosed to the Appellant as it amounted to diversion of its meager manpower resources. He was requested to avail inspection of records on a mutually convenient date and time. As regards the information on point no 02, the Respondent submitted that as per the extant guidelines renewal of Pharmacist Registration Certificate was required to be made every 05 years and the copy of the relevant executive order dated 28.04.2017 was also provided to the Appellant, the receipt of which was denied by the Appellant during the hearing. As regards, point no 05, the Respondent agreed to disclose the CAG report and it was stated that the same was held and available with them which could be disclosed, if so directed by the Commission. During the hearing, the Respondent also submitted that they had developed a Pharmacist Registration Tracking System (PRTS) portal on their website wherein all the Pharmacists nationwide (10.5 Lakhs approx) were required to enter their details including name, educational qualification, registration details, etc for creation of a Uniform Central Database. The Appellant contested the aforementioned submission and stated that more than 30 Lakh Pharmacists were registered with the Pharmacy Council of India which included candidates who had produced fake degrees at the time of their registration and apprehended large scale fraudulent activities carried out by the concerned agencies with the connivance of PCI.
The Commission was in receipt of a written submission from the Respondent wherein while re- iterating the action taken in the matter it was stated that as per Section 2 (f) of the RTI Act, 2005 a citizen has right to seek such information the Public Authority which is available with it and had already been provided to the Appellant.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
Page 2 of 7"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 Vs. Aditya Bandopadhyay), 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 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."
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory response to the Appellant. The Page 3 of 7 provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non- disclosure."
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Furthermore, the Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that ".....The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
Page 4 of 7The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
The Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest':
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:Page 5 of 7
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in view of the larger public interest and its ramifications on the general public, the Commission instructs the Respondent to furnish point-wise reply in respect of the UP Pharmacy Council as desired by the Appellant within a period of 15 days from the date of receipt of this order failing which action under Section 20 (1) of the RTI Act, 2005 could be initiated. The Commission expressed serious concern over lack of due diligence by the CPIO of Pharmacy Council of India on a sensitive and critical matter like this.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का) (Information Commissioner) (सूचना आयु ) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के .एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दनांक / Date: 24.02.2020 Page 6 of 7 Copy to:-
1. The Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011. (with the instruction that suitable directions be issued to the Public Authority that the Preamble to the RTI Act, 2005 should be followed and complied with in letter and spirit. A suitable remedial action needs to be undertaken to rectify the appalling situation of lack of due diligence in answering the RTI applications involving larger public interest).
2. Mr. Arun Singhal, Special Secretary, 2nd Floor, A Wing, Ministry of Health & Family Welfare, Department of Health & Family Welfare, Nirman Bhawan, New Delhi - 110011 Page 7 of 7