Central Information Commission
Suresh Kumar vs Central Government Health Service ... on 14 October, 2019
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/CGHSD/A/2018/121877-BJ
Mr. Suresh Kumar
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Under Secretary, Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi - 110011
2. CPIO - II
Office of the CPIO - II, Safdarjung Hospital & VMMC
RTI Cell, New Delhi - 110029
... ितवादीगण /Respondent
Date of Hearing : 10.10.2019
Date of Decision : 14.10.2019
Date of RTI application 17.11.2017
(mentioned in 2nd
Appeal)
CPIO's response 28.11.2017
Date of the First Appeal Nil
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 06.04.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 04 points regarding number of faculty posts of Maxillofacial Surgeon in VNMC and Safdarjung Hospital, New Delhi, number of posts filled and other related issues.
The Assistant Admn. Officer, Safdarjung Hospital vide its letter dated 28.11.2017 transferred the RTI application to the Ministry of Health & Family Welfare, Nirman Bhawan on the ground that Group 'A' Dental posts were maintained by the Ministry. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Suresh Kumar;
Respondent: Ms. Sarita Nair, US, M/o H&FW, Dr. Kashika, CPIO & SMO, Safdarjung Hospital and Dr. Mukesh Nagar, CPIO & SMO, Safdarjung Hospital;
The Appellant reiterated the contents of the RTI application and stated that the information was not provided within the stipulated time period. While submitting that the issues raised by him were in the larger public interest, the Appellant submitted that specific posts for Doctors based on specialization were not filled by the Respondent Public Authority resulting in brain drain to private hospitals/ foreign countries and overall degradation of the Government Health Care Facilities/ Services affecting the public at large. He also apprehended that contrary to the reply provided to him there were more sanctioned posts which remained vacant, till date and that the information was not suo motu disclosed on the website of the Respondent Public Authorities. In its reply, the Respondent (M/o Health and Family Welfare) submitted that the RTI application was not received by them. However the First Appeal was received in the month of May, 2018 and the information was provided to the Appellant vide their letter dated 13.06.2018. The Respondent (Safdurjung Hospital) re-iterated the reply of the CPIO and their written submissions dated 05.10.2019 and stated that since the appointing authority for the post mentioned in the RTI application was the M/o Health and Family Welfare, the RTI application was transferred to them. On being queried by the Commission regarding the suo motu disclosure of the number of posts sanctioned/ filled, pay scale offered and other important terms and conditions on their website, the Respondent Safdurjung Hospital replied in the affirmative and submitted that the details of the Doctors appointed periodically were available on their website. On being further queried regarding the reasons for transferring the RTI application to the concerned Ministry when the whole/ part information was available with them, the Respondent, Safdarjung Hospital, feigned ignorance.
The Commission was in receipt of a written submission from the Respondent (Safdarjung Hospital and VNMC, RTI-Cell) dated 05.10.2019 wherein it was stated that the RTI application dated Nil was received on 14.11.2017 which was transferred to the Ministry of Health and Family Welfare u/s 6 (3) vide letter dated 30.11.2017. The First Appeal was filed by the Appellant in the Ministry of Health and Family Welfare and was not received by Safdarjung Hospital. A copy of the aforementioned submission was also sent to the Appellant.
Having heard both the parties and on perusal of the available records, the Commission observed that the Appellant had raised generic queries relating to appointment of Doctors for the post of Maxillofacial Surgeon in Safdarjung Hospital and VNMC, New Delhi which should have been provided at the initial stage by the Respondent, Safdarjung Hospital instead of callously transferring the RTI application to the Ministry. Had the Respondent exhibited self awareness and applied his mind while replying to the RTI application, the delay caused in furnishing the reply to the Appellant could have been avoided and provisions of the RTI Act, 2005 would have been complied with.
The Commission also observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble Page 2 of 7 High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers.
It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy." Furthermore, it cannot be said that the transferring authority can be completely absolved of his duties and responsibilities as CPIO thereafter. In this context, a reference can be made to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 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."
Furthermore, in Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, the Hon'ble High Court of Delhi held as under:
"15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organisation. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to Page 3 of 7 furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials."
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."
Moreover, the Commission further noted that instead of appointing competent administrative staff to look into RTI matters, the Respondent, Safdarjung Hospital had appointed Doctors as CPIOs to appear before the Commission instead of attending to their pressing engagements with the needy patients in the Hospital which required a deeper and considered re-examination by the Hospital authorities.
On being queried by the Commission regarding the suo motu disclosure of the number of posts sanctioned/ filled, pay scale offered and other important terms and conditions on their website by the Safdarjung Hospital, no satisfactory response was provided by the Respondent. The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, Page 4 of 7 etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
However, with regard to the response provided by the M/o Health and Family Welfare, New Delhi, the Commission observed that the information held and available with the Authority had been shared with the Appellant.
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:
Page 5 of 7"(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 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."
Page 6 of 7DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission advises the Respondent, Safdarjung Hospital & VMMC, New Delhi to suo motu disclose the information regarding the number of posts sanctioned/ filled on their website for the ease and convenience of the public at large. The Commission also cautions the Respondent (Safdarjung Hospital & VMMC, New Delhi and M/o Health and Family Welfare, New Delhi) to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities. 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: 14.10.2019
Copy to:
1. The Secretary, Ministry of Health and Family Welfare, 'A' Wing, Nirman Bhawan, New Delhi-110011.
2. Dr. Sunil Gupta, Medical Supdt. Safdarjung Hospital & VMMC, New Delhi - 110029
3. Mr. Mohelas Anal, Dy. Dir. (Admn.) Safdarjung Hospital & VMMC, New Delhi - 110029 Page 7 of 7