Central Information Commission
Mr.Anand Shivram Kelushkar vs Mumbai Port Trust on 27 April, 2010
CENTRAL INFORMATION COMMISSION
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F.No.CIC/AT/A/2010/000130
Dated, the 27 April, 2010.
th
Appellant : Shri Anand Shivram Keluskar
Respondent : Mumbai Port Trust
s This secondappeal came up for hearing on 15.04.2010 in the presence of both parties. Appellant was present in person, assisted by Shri Uday Chaudhary at NIC VC facility at Mumbai. Respondents ― represented by Capt. A.W. Karkare, PIO ― were present at the same venue. Commission conducted the hearing from its New Delhi office.
2. Appellant has stated that the present appeal was only regarding the disclosure of information contained in item D of his RTIapplication dated 03.09.2009. This item of query read as follows: "D. Please inform as to the exact wordings of the adverse remarks in the Annual Confidential Report noted against Shri H. Thakur (Presently working as a Store Officer) and Shri P. Lidkar, who was on panel for the post of Administrative Officer, prior to their appointments / promotions to the post of Administrative Officer in the Port Department."
3. Through CPIO's communication dated 23.09.2009 and Appellate Authority's decision dated 26.11.2009, appellant was informed that as the requested information belonged to a thirdparty and was personal to him, it came within the exemptions under Section 8(1)(j), and hence could not be provided to him.
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4. Appellant argued that the respondents' claim that the information attracted Section 8(1)(j) was misconceived. It was his case that he was entitled to receive the information regarding adverse remarks appearing in the Annual Confidential Reports of the officers who were allowed to take the promotional exams for the post of Administrative Officer held in the year 2007. He argued that the entry to the promotional exam was to be restricted only to those officers who have had a clean record in the Annual Confidential Reports. If an officer was allowed to take such an examination without his ACRs being clean, it amounted to violation of the extant rule and practice. He, therefore, urged that there was public interest in disclosing this information as only through such disclosure it would be possible to determine whether the selection process was according to the laiddown procedures and was fair.
5. Respondents, through the CPIO stated that there were 16 applicants for the said examination conducted in 2007. A couple of the examinees / officers did have adverse remarks in their ACRs, but they were allowed to take the examination all the same on consideration of their respective cases. The appellant was himself one of the examinees. Respondents argued that ACRs of any employee were exclusive to that person and any disclosure of its contents was likely to adversely affect the person concerned. They were, therefore, against disclosure of the details of the adverse remarks in the ACRs of some of the officers who were allowed to take the above examination.
6. Appellant argued that in case the management of the public authority allowed the ineligible officers to appear in the examination for promotion to the post of Administrative Officer, they very clearly went against the existing rule. Apart from this, by including the ineligibles they expanded the field of selection thereby adversely impacting the chances of those who were otherwise eligible for taking the promotional examination.
CIC_AT_A_2010_000130.doc Page 2 of 4 Decision:
7. This Commission has been allowing disclosure of ACR and performance grades of employees of public authorities only to the person to whom such grades pertained, not to others. In other words, ACR related information of thirdparties was not authorized to be disclosed to any RTIapplicant. This rule was established in Commission's Full Bench decision in P.K. Sarin Vs. Directorate General of Works (CPWD); Appeal No. CIC/WB/A/2007/00422; Date of Decision: 19.02.2009.
8. The appellant in the present case has brought up a matter which looks like an exception to the rule thus established. He has argued that ACRs of thirdparties should be disclosed in case such disclosures would demonstrate violations of rules by the public authority. In other words, when a public authority violates established norms, the information which would demonstrate such violation, could not be held up from disclosure.
9. In the present case, CPIO has admitted that there were certain officers whose ACRs have had adverse entries and yet were allowed to take the above examination in the year 2007. He has also admitted that under the extant Rules, only officers with clean records were eligible to take the examination but a view to allow all the applicants to take the examination was taken by the public authority's management.
10. Appellant has rightly argued that by exercising its discretion to allow the primafacie ineligible officers to take the examination, respondents had violated the norms which they themselves had established as eligibility criterion.
11. I, therefore, find myself in agreement with the appellant that the present request for disclosure of information constitutes an exception to the rule established in the abovereferred CIC Full Bench decision. In order to prove that established norms were not violated, or that they were CIC_AT_A_2010_000130.doc Page 3 of 4 violated in a given situation, an information not otherwise disclosable, should be allowed to be disclosed in the interest of justice and fair play ― public interest.
12. I, therefore, direct that the adverse remarks indicating that the official is not a fit person for being promoted to the officer cadre, contained in the ACR of officers, yearwise, who took the examination for the post of Administrative Officer in 2007, be copied from ACR files and made available to the appellant within two weeks of the receipt of this order.
13. Copy of this direction be sent to the parties.
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