Central Information Commission
Pratibha Sharma vs Directorate Of Education on 30 October, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka,
New Delhi-110067
F. No.CIC/DIRED/A/2017/149374
F. No.CIC/DIRED/A/2017/149371
Date of Hearing : 21.05.2018
Date of Interim Decision : 21.05.2018
Date of Final Decision : 22.10.2018
Appellant/Complainant : Pratibha Sharma
Respondent : PIO
O/o the Dy. Director of Education
Directorate of Education, GNCTD
Through:-Sh. Gautam Arora,
Mrs. Geeta Mallick,
Ms. Meenakshi Kalra, Ms. Divya
Sharma - Advocates
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 14.02.2017& 22.12.2016
PIO replied on : 15.03.2017& 08.02.2017
First Appeal filed on : 21.04.2017& 06.03.2017
First Appellate Order on : 23.05.2017& 23.05.2017
2ndAppeal/complaint received on : 18.07.2017& 18.07.2017
Information soughtand background of the case:
Appellant joined Balvantray Mehta VidyaBhawan (ASMA), Greater Kailash-II, New Delhi-110048 (Zone-29), on temporary basis as Assistant Teacher since 01.07.2002, was on probation from 01.07.2003 as Assistant Teacher and her services were regularized as Assistant Teacher from 01.07.2004.
Vide RTI application dated 14.02.2017, the appellant sought certified true copy of her Annual Confidential Report (ACR)of the under mentioned sessions. Another RTI application dated 22.12.2016 she sought copy of Service Book.
Sl. No Academic Sessions Sl.No. Academic Sessions 1 2002-2003 8 2009-2010 2 2003-2004 9 2010-2011 Page 1 of 10 3 2004-2005 10 2011-2012 4 2005-2006 11 2012-2013 5 2006-2007 12 2013-2014 6 2007-2008 13 2014-2015 7 2008-2009 14 2015-2016 DDE(Zone-29, Distt./South East vide letter dated 14.03.2017 informed that the Balwantray Mehta Vidyalay Bhawan (ASMA) G.K. II, New Delhi is recognized Un-Aided Private Public School and is not covered under the definition of Public authority under the RTI Act. He further informed that the school is the custodian of the Annual Confidential Report (ACR) of the appellant, record of ACR of the appellant is not kept by the office of Dy. Director of Education. Appellant was not satisfied with response of PIO and filed first appeal.
FAA/RDE(E) vide letter 23.05.2017 directed the PIO to provide revised reply to the appellant. In compliance of FAO, DDE(Zone-29) vide letter dated 29.06.2017 reiterated his earlier response dated 14.03.2017. Being dissatisfied, the appellant approached the Commission.
Relevant facts emerging during hearing:
The appellant is represented by her husband who contended that the appellant has been meted out unfair and discriminatory treatment by the School. Her queries related to her own service record and her own Annual Confidential report have been denied without furnishing any good reason for the denial. The Directorate of Education supposed to be in a supervisory and monitoring role has also failed to do justice in obtaining or ensuring that the concerned School does the needful.
While providing background of the case, the appellant's representative narrated that:
a) at the time of implementation of the Sixth Central Pay Commission, the appellant's basic pay fixation was done wrongly by the concerned School, viz. Balwantray Mehta Vidyalay Bhawan (ASMA) G.K. II, New Delhi.
b) She was denied the dues from January 2006 to September 2010.
c) She was even denied the first upgradation under MACP Scheme and once again denied the dues accumulated from 01.07.2013 TO 31.07.2016.Page 2 of 10
d) On 01.08.2016, she submitted a written application to the School office for clearance of the dues as mentioned above. But the School authorities started harassing and threatening of terminating her services, pressurising her to withdraw the application.
e) On the appellant's complaint to the Directorate of Education, Dy. Director of Education- District South East set up an Inquiry Committee in February 2017. This was followed by a Second Enquiry Committee in August 2017 which submitted its report to Directorate of Education clearly holding the School guilty for non payment of dues.
f) Meanwhile the School set up Internal Committee and cast false allegations against the appellant.
g) The appellant further informed that apart from her, 18 other employees/staff of the School have been similarly denied their legitimate dues and have been victimised by the high handedness of the School.
h) The appellant was suspended from service on 19.05.2017 Representative for the Respondent reiterated the stance taken by his office so far. However, when probed by the Commission about the role and responsibility of the Directorate of Education in ensuring better administration and development of school education, the Respondent acceded to take necessary steps, as per the DSEAR Act as directed by the Commission.
Interim Decision: 21.05.2018
1. After perusal of records of the case and hearing the averments stated on behalf of the appellant, the Commission notes adversely the conduct of the School in question, viz. Balwantray Mehta Vidyalay Bhawan (ASMA) G.K. II, New Delhi in denying the documents which the appellant is entitled to access as a matter of her right.
2. The Commission observes that dealing with similar facts and circumstances in case no. CIC/AD/A/2013/000122-SA Rajwanti Agarwal vs. Dte. Of Education, a co ordinate Bench of this Commission had vide order dated 20.05.2014 held as follows:
"5. The Commission in a number of cases involving the respondent a uthority came across cases whereby they have shown their inability to procure information if the school involved was private unaided school. The respondent authority had submitted in those cases that the information was not provided to them under Rule 180 of the Delhi School Education Rules, 1973 and that they had no other source to Page 3 of 10 collect the information or that it was not under their possession. The Commission finds it necessary to explain certain significant provisions of the Delhi School EducationAct &Rules, 1973 so that the respondents understand that they were given enough regulatory power to secure the information from schools..."
Discussing the powers and regulatory authority as provided by the DSEAR Act, 1973 upon the Dte. Of Education, the Commission in its order mentioned above has discussed the following provisions of the Delhi School Education Act, 1973,
a) Section 4 of the DSEAR Act dealing with Recognition of School :
"Under this section no school is provided recognition unless it submits application as toits adequate fund which includes the payment of salary and all owances to to its employees, its scheme of management etc and if the management co mmittee fails to comply with the provisions of this section the school's recogniti on can even be withdrawn."
Thus, the DoE is empowered to secure information from the recognized private unaided schools as to salaries, allowances, scheme of management as there is power with them to withdraw recognition if the schools do not comply with the mandates as specified in the DSEAR Act.
b) Section 8 deals with the Terms and conditions of services of employees of recognized private schools in the following manner:
"(1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognized private schools. . . . (2) Subject to any rule that may be made in this behalf, no employee of a recognized private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.
...........................................................................
(5) ........."
Thus it is clear that even with regard to the employees of recognized private school, the administrator/director should have information as to their recruitment or dismissal etc. Page 4 of 10 Further provisions of the Delhi Education School Education Rules, 1973 lay down the following parameters for exercising the monitoring and supervisory role over the Schools:
Rule 44 Notices of intention to open a new school:
"(1) With a view to enabling the Administrator to arrange for the plann ed development of school education in Delhi, every individual, association of individuals, society or trust, desiring to establish a new school, not being a minority school,shall, before establishing such new school, give an intimation in writing to the Administrator of his or their intention to establish such school.
(2) The intimation, referred to in sub--
rule (1), shall contain the following particulars,namely:--
(relevant Sub sections)
(e) the particulars including measurements of the building or other struct ure in which the school is proposed to be run;
...
........................;
(i) the proposed scales of pay for the head of the school and oth er teaching and non-teaching staff until the school is recognised under the Act,
(j)
(k) ...............
Thus the Act is designed in such a manner so thatthe school authorities are under mandate to submit details like particulars of school, management committee details, recruitment procedure, proposed pay scale etc while submitting plan for opening of new school Rule 49Form and Manner of application for recognition:
"Every private school seeking recognition shall make an application, if Form I, to the appropriate authority, and every such application shall either be delivered to the appropriate authority through any individual or sent to that authority by registered post acknowledgment due."
Form I of the above rule contain detail as to the school propert ies, salary paid to the employees of the school etc. Rule 112 deals with confidential reports Page 5 of 10 (1) "Confidential reports in relation to the heads of schools and other employees of recognised schools, whether aided or not, shall be maintained in form recognized schools, whether aided or not, shall be maintainedin form specifi ed by the Administrator in this behalf.
.........
......
(4) The confidential report shall be recorded every year, by the head of the school in respect of the employees working under him and every such confidential report shall be reviewed by the managing committee.
............................ . (8) The confidential report in relation to the head of the schoolshall bekept in the safe custody of the chairmanof the managing committee and the confidential repo rts in relation to the other employees of the school shall be kept in the safe custody of the hea d of the school."
Rule 184 mandates that the Managing committee to offer facilities for inspection:
"Every managing committee shall provide all reasonable facilities for the ins pection of the school and also for the inspection of its account books, registers and other documentsrequired by these rules to be maintained by such schools."
Rule 190 deals with the Inspection and supervision of schools:
(1)"The Director shall be responsible for the supervision and inspection of all recognised schools, whether aided or not.
Thus perusal of these rules explain that the DSEAR Act has been so designed with necessary mechanism such that the Department can exercise ample control and monitoring on the Schools by virtue of the what types of documents are needed to be furnished by the schools to the public authority, which has to 'hold' that information, which can be sought by the citizen under RTI Act, 2005. From a combined reading of Delhi School Education Act & Rules 1973 it can be seen that there is definite inherent power with the Department of Education through its Director for having significant amount of information about the schools in the form of the returns submitted to it. In view of the above provision of law, it is not correct for public authority to say that the record pertaining to appointment, salary, ACR is not available with them, because they are bound by law to maintain that. Hence, when a Citizen seeks a copy of any of the above documentswhich are available with the respondent authority Page 6 of 10 they have to share with the Citizens as per the RTI Act. The Commission's co ordinate Bench had thus held vide decision dated 20.05.2014, as follows:
10. Thus the Commission directs the respondent authority to instruct it s officers to collect information as within the provision stated above and provide the necessary information to the citizens as per the RTI Act. The Commission also directs the respondent authority to perform its duty of securing the regulatory information as per the Act and Rules and see that the concerned School also explains the delay for not responding to the direction of the regulatory authority, namely, Dte. of Education, as the delay led to obstruction in furnishing of information to the appellant, who has the right to information.It certainly amounts to the violation of right to information of the citizen resulted from breach of statutory duty of concerned school to furnish that information to the public authority, and also omission by the Respondent Department of Education in exercising their statutory authority in regulation of schools. If the concern schools still resist furnishing of information, the Commission directs the respondent authority to take necessary action as per Delhi Education Act and rules, against such school if not the respondent authority would be liable to penalty under Section 20 of RTI Act.
The School has not only erred in being unreasonable and dictatorial in its approach but the School management is also guilty of acting in contravention of dictum of the Hon'ble Supreme Court of India, as held in the case of Dev Dutt vs. Union of India, (2008) 8 SCC 725 decided on 12.05.2008 whereby upholding the principles of natural justice the Apex Court had held as follows:
".....19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non- communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
........................................................................................................................
39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public Page 7 of 10 servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation..........................................................................................
40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible...."
Reading the aforementioned celebrated decision of the Apex Court indicates how the denial of the information by the Respondent is wholly incorrect, illegal, arbitrary and even un-Constitutional since it infringes on the Fundamental Right of an individual.
The Commission notes rather regretfully that the Directorate of Education, despite conducting an Inquiry on 16.08.2017 against the School and concluding it in favour of the appellant; took no further steps to ensure that the appellant's grievance be redressed. No action appears to have been initiated against the School for violating the law and conducting its operations in the most arbitrary fashion. To add to the plight, the FAA/RDE(E)-Dr. Saroj Bala Sain has handled the First Appeal in the most perfunctory and robotic manner. She has not dealt with the facts of the case at all, nor appreciated the violation of the law by the School, has neither exercised her discretion nor judicially adjudicated the first appeal and passed a mechanical and meaningless order. Such mechanism of the Directorate of Education will soon reduce this elite institution from a governing and monitoring body to a rubber stamp office. The Respondent -Dte. Of Education should treat cases like this as a wake-up call and take necessary actions to ensure that the rule of law is not infringed.
In view of the above discussion, the Commission directs the Respondent to initiate necessary steps and ensure that the ACRs and Service Books as sought by the appellant are made available to her within three weeks of receipt of this order.
The Respondent - PIO shall remain present with the Compliance Report on the next date of hearing as scheduled by the Registry. It is made clear that non compliance of these directions shall attract penal action.
Page 8 of 10Final Decision: 22.10.2018 Both parties are present during the hearing. The Respondent has submitted written submission supported by Affidavit of Smt. Geeta Mallick-the Principal/HOD of the Balwantray Mehta Vidyalay Bhawan (ASMA) G.K. II, New Delhi stating as follows:
information regarding ACRs as well as Service Book have been duly supplied to the appellant vide letter dated 06.07.2018 and the same information had been forwarded to the appellant in person on 11.07.2018.
the appellant complained vide letter/representation dated 13.07.2018 that the ACR for the years 2002-03 and 2015-16 had not been furnished and the Service Book was incomplete.
Vide communication dated 18.08.2018, complete Service Book was furnished to the appellant alongwith the ACR of 2015-16 which was traced subsequently.
The Respondent has further explained that, since the Appellant was working on ad-hoc basis in the School for the period of 2002-03, for a consolidated salary, ACRs might not have been prepared. Hence the ACRs of 2002-03 pertaining to the appellant were not traceable.
Respondents have placed on record copies of the Service Book and ACR for 2015-16, so furnished to the appellant. If the appellant finds that the information provided to her is incorrect, she is at liberty to seek appropriate legal recourse.
Commission notes that information in the form of Service Book and ACRs for the years as available have been provided by the Respondent to the appellant. The respondent has furnished explanation about non traceability of the ACR pertaining to year 2002-03, which is found reasonable. In view of the fact that Respondent Dte. Of Education as well as the School have provided all available information to the appellant, the Commission drops further proceedings against the respondent.
Before concluding the case however, the Commission cautions the Respondent- Directorate of Education to be more prudent and stringent in exercise of their powers in future in accessing relevant information from the Schools and monitoring the operational aspects like the record maintenance, appointment/s made by the School, salary of staff and teachers, ACRs of employees etc. The Directorate of Education while discharging the noble function of imparting quality education to students, must also ensure that the teachers responsible for educating and shaping young minds are also adequately taken care of, for the creation of a better society. Basic rights like proper pay, ACRs etc should not be denied to Page 9 of 10 them, nor complaints about such denials by School/s be taken lightly by the Respondent.
The case is disposed of as such.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer Page 10 of 10