Central Information Commission
Shri Ramesh N. Gandhi vs Hq. Swac, Gandhinagar (Guj) on 1 August, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00315 dated 20-3-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Ramesh N. Gandhi, Ulhasnagar
Respondent: Hq. SWAC, Gandhinagar (Guj)
FACTS
By an application of 26-10-06 Shri Ramesh Gandhi of Ulhasnagar applied to Group Capt. H.K. Nair, CPIO, for Air Officer Commanding in Chief Hq. SWAC, Gandhinagar, Gujarat seeking the following information:
"1. Full names of Three Senior most teachers designated as PGT, and subjects taught by them. Please expand PGT.
2. What is the rule governing private tuitions done by these three PGTs?
3. Whether the permission from School management compulsory for doing private tuitions?
4. Whether any of the above three PGTs has taken permission to do privation tuitions.
5. Please confirm in yes/ no the attendance of these three PGTs on following dates:
Senior most PGT S. Date Day PGT If absent, kind No. Present/ of leave taken.
Absent 10.08.2001 Friday 04.10.2001 Thursday 28.11.2001 Wednesday
02.01.2002 Wednesday 04.02.2002 Monday 11.03.2002 Monday 09.04.2002 Tuesday 22.05.2003 Thursday 23.05.2003 Friday 24.05.2003 Saturday 07.06.2003 Saturday 09.06.2003 Monday 10.06.2003 Tuesday 11.06.2003 Wednesday 04.08.2003 Monday 1 05.08.2003 Tuesday 06.08.2003 Wednesday 07.08.2003 Thursday 08.08.2003 Friday 08.08.2003 Monday 090.9.2003 Tuesday 10.09.2003 Wednesday 11.09.2003 Thursday 12.09.2003 Friday 13.09.2003 Saturday Second Senior most PGT S. Date Day PGT If absent, kind No. Present/ of leave taken.
Absent 10.08.2001 Friday 04.10.2001 Thursday 28.11.2001 Wednesday 02.01.2002 Wednesday 04.02.2002 Monday 11.03.2002 Monday 09.04.2002 Tuesday 22.05.2003 Thursday 23.05.2003 Friday 24.05.2003 Saturday 07.06.2003 Saturday 09.06.2003 Monday 10.06.2003 Tuesday 11.06.2003 Wednesday 04.08.2003 Monday 05.08.2003 Tuesday 06.08.2003 Wednesday 07.08.2003 Thursday 08.08.2003 Friday 08.09.2003 Monday 09.09.2003 Tuesday 10.09.2003 Wednesday 11.09.2003 Thursday 12.09.2003 Friday 13.09.2003 Saturday Third senior most PGT S. Date Day PGT If absent, kind No. Present/ of leave taken.
Absent 10.8.2001 Friday 4.10.2001 Thursday 2 28.11.2001 Wednesday 2.1.2002 Wednesday 4.2.2002 Monday 11.3.2002 Monday 9.4.2002 Tuesday 22.5.2003 Thursday 23.5.2003 Friday 24.5.2003 Saturday 7.6.2003 Saturday 9.6.2003 Monday 10.6.2003 Tuesday 11.6.2003 Wednesday 4.8.2003 Monday 5.8.2003 Tuesday 6.8.2003 Wednesday 7.8.2003 Thursday 8.8.2003 Friday 8.9.2003 Monday 9.9.2003 Tuesday 10.9.2003 Wednesday 11.9.2003 Thursday 12.9.2003 Friday 13.9.2003 Saturday To this he received a response on 16-11-06 refusing the information on the following grounds:
"Air Force School, Jodhpur run by Air Force Station Jodhpur does not fall under the definition of "Public Authority" as defined in section 2 (h) of RTI Act 2005. The School is a Welfare Venture of the Air Force.
Information regarding the school was earlier given to you erroneously."
Dissatisfied with this response Shri Gandhi moved his first appeal before the Appellate Authority Gr. Capt. H.K. Nair, upon which he received an order of 3-1-07 from Air Vice Marshall M. John, Sr. Officer in-Charge, Administration Hq. SWAC which states as follows:
"AND WHERAS, the Air Force Schools are Non-Public Fund ventures and are administered and managed by a Society registered under the Societies Registration Act, 1860, viz, 'Indian Air Force Educational and Cultural Society'. The IAF Educational and Cultural society is a non-profit making welfare institution with its primary objectives being promotion of education, fine arts and culture and diffusion of useful 3 knowledge mainly amongst the past and present employees of IAF, their children and families.
AND WHEREAS, in the circumstances aforesaid, in my view the Air Force School at Jodhpur s not a 'Public Authority' as is envisaged in section 2 (h) of RTI Act."
Appellant's prayer before us is as follows:
"1. The PIO may please be ordered to provide me the desired information in desired format. Also the PIO may please be ordered to allow the applicant and/ or his counsel to inspect the records containing the desired information.
2. CPIO may please be penalized as per the provisions of section 20 of the RTI Act.
3. The concerned authority, i.e. Indian Air Force, may please be ordered to pay Rs. 10,000/- as compensation to the applicant for harassment, mental torture caused due to this refusal and the cost of postal expenses and cost of counselling with RTI expert.
4. Any other relief may please be granted, as may be deemed fit by the Hon'ble CIC, according to the provisions contained in section 18 and 19 of the RTI Act.
5. Any other penalty may please be imposed on the CPIO, as may be deemed fit by the Hon'ble CIC, according to the provisions of the RTI Act 2005."
He has gone on to submit further arguments in a letter of 8-3-08 as follows:
"1) The subject school is an educational institution without any doubt.
2) This institution is run and administered by Air Force Station, Jodhpur, through IAF educational and cultural society.
3) Without any doubt, whether an educational institution is managed by a private or public entity, all the activities performed by any educational institution, its functioning machinery, teachers, employees, etc., fall under the domain of public life.
4) Even though the funds for running such an institution may be private in nature, entire educational system, its functioning machinery, teachers, employees, etc., are answerable to public at large.4
5) More so in the present case, as the learned CPIO and his appellate authority have themselves agreed that the subject institution is a NON PROFIT making welfare institution. Any welfare institution, especially, educational institution cannot shun its responsibilities towards public at large.
6) It is also stated by the learned authorities that the objective of the subject institute is to serve present and past employees of IAS, their children and families. The past and present employees of IAF are/were part of IAF, which is a public authority. Therefore, any matter related to their lives is public in nature.
The above arguments may please be formed as part of the record and be considered while deciding the appeal."
The appeal was heard through Videoconferencing on 31-7-2008. Following are present.
Appellants at NIC Studio, Mumbai Shri Ramesh N. Gandhi Shri Kailash Bhatia Respondents at NIC Studio, Gandhinagar (Gujarat) Wg. Cdr. Rajshekhar, CPIO (South West Air Command) Wg. Cdr. Rajshekhar submitted that the school is run by an independent society, receives no funding from Government and has not been set up under any notification. The administrative chain of the society is from the Central Society called the IAF Educational and Cultural Society of which the administrative chair is Air Officer in charge of administration, and the President of every School Management Committee at the local level is the Station Commander ex-officio, and other than the Administrative Officer, who is the AO of the Air Force station the members include the Principal and a representative of teachers. Shri Rajshekhar also cited the decision of this Commission in the case of Sanjiv Kumar vs. Registrar of Coop. Societies in case No. CIC/WB/C/2006/00104 dated 9-6-06. In this decision notice we have held as follows:
Whereas appellant is justified in reading into our decision above cited that information held by a cooperative society is information under the RTI Act as defined in Sec 2(f), we have held repeatedly that a Cooperative Society in Delhi does not fall 5 within the definition of a public authority u/s2 (h) (d) which reads as follows:
Sec. 2(h) "public authority" means any authority or body or institution of self-government established or constituted -3 x x
d) By notification issued or order made by the appropriate Government and includes any -
i) body owned, controlled or substantially financed
ii) non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Govt. "
In such matters it would only be the provision of being substantially financed by a public authority that would call for invocation of section 2(h) (d) (ii). Holding land at subsidized rates for qualifying for loans at differential rate of interest cannot itself contribute "substantial finance". In our Decision in Appeal No.CIC/WB/C/2006/00080 dated 9.10.'06 we have held as follows:
"Whether the cooperative society in question falls within the definition of public authority or not u/s 2 (h) (d) or not is for the office of Registrar to decide."
Again, in Veeresh Malik vs. Indian Olympics Association & Ors, CIC/PBA/2006/158 of 28.11.2006 we have held that the term "substantially financed" not having been defined in the Act, the definition may be found in a relatable statute and applied and have therefore applied the definition given in Sec 14(1) of the CAG Act 1971 for the term.
The norms for arriving at a decision on definition of a public authority have been spelled out in Pradeep Gupta vs. Servants of the People Society Complaint No.CIC/WB/C/2006/00157 dated 1.5.'07 wherein we held:
"To determine whether this Society will fall within the definition for public authority under sec. 2(h)(d)(i)&(ii), the following will require to be determined:
1. Whether the accounts of the Society are under the Audit of C&AG.
2. Whether the society is under the control of a Department.
3. Whether the society is in possession of land gifted by government.
None of these norms being met in the present case, the response of Asstt. Registrar Cooperatives and CPIO is, therefore, correct. Any information regarding the Cooperative 6 Society that he seeks may be sought by appellant Shri Sanjiv Kumar from PIO of the office of Registrar as per sec. 2(f) of the RTI Act, read with sec. 2(j) which defines the RTI as information as that which is "held by or under the control of any public authority".
Appellant Shri Gandhi on the other hand invited our attention to the definition of Public Authority u/s 2 (h) and contended that the school was both a self-governing institution and established under the Companies Act. He also submitted that information sought from the school had been provided to him earlier, and as admitted by respondents a building had been provided to the school by the Air Force, which would amount to substantial finance. Wg. Cdr. Rajshekhar on the other hand contended that for such accommodation provided by the Air Force a rent was charged. By subsequent e-mail he has clarified that as an example the license fee for use of govt facilities charged the school in question is an amount of Rs 7,360/ for the period April, 08 to June '08. However functional control is that of the school management Committee. But in written arguments submitted by Wg Cmdr RN Magadum, legal CPIO Hq SWAC, in which he has cited payment of fee, quoted above, he has also gone on to state that the school is not authority within the meaning of Article 12 of the Constitution of India. In doing so he has cited the judgement in AIR 1975 SC 1329 Sabhajit Tewary vs. UOI & Ors in which CSR was held not be such an authority. The Wg Cmdr has taken the opportunity of presenting his case as follows:
(a) Air Force Schools are Non-Public Fund ventures and are administered and managed by a Society viz. 'Indian Air Force Educational and Cultural Society'. The IAF Educational and Cultural Society is registered under the Societies Registration Act, XXI, of 1860, on 25 September 1980 vide Regd. No. S/11214. The 'IAF Educational and Cultural Society', is a non-profit making welfare institution with its primary objectives being promotion of education, fine arts and culture and diffusion of useful knowledge mainly amongst the past and present employees of IAF, their children and families.
(b) In this context it is relevant that, AF School Jodhpur runs in accordance with rules and bye-laws laid down by Governing Council of the 'IAF Educational and Cultural Society' New Delhi. Its funds are generated through monthly payments by the students and grants from the 7 Welfare Funds and no funds are sanctioned from the Ministry of Defence to it. The employees of the AF School are not paid out of the Defence Estate or Government exchequer i.e. Public Fund. Further, Air Force Schools can not be stated to be an integral part of the Air Force.
The core activity of the Air Force is to defend the country in a war. Providing educational facilities to wards of its personnel is only incidental and not the main function of the Air Force. Furthermore, Air Force School Jodhpur is neither performing any 'public function' (An act or duty of a public servant in his capacity as such) nor any 'public duty' (A duty in the discharge of which the State, the public or the community at large has an interest). It is only providing educational facilities to wards of its personnel, both serving and retired.
(c) 'Indian Air Force Educational and Cultural Society' and the Air Force School Jodhpur can not be said to have been established or constituted - by or under Constitution of India; or by notification issued or order made by the appropriate Government (Central Government in the present case), including any - body owned, controlled or substantially financed; or non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government.
(d) Earlier, the information sought by Shri RN Gandhi vide his application dated 07 Jul 2006 was given by the CPIO vide letter SWAC/3451/10/P1 dated 12 Sep 2006. The same was given erroneously because of the following reasons: -
(i) The information regarding list of teachers, seniority-wise including their names, date of joining, designation/position, nature of employment - Temporary/Permanent, grade of employment, educational qualifications, break-
up of salary, details of leave etc of teachers employed in AF School, Jodhpur pertained to information on third party. Before providing the said information, provisions laid down in Sec 11 of RTI Act, 2005, i.e. 'third party information,' were not followed.
(ii) Since the said information relates to personal information, the disclosure of which had no relationship to any public activity or interest. Further, such disclosure could have caused unwarranted invasion of the privacy of the individual teachers. Thus, the information 8 should have been rejected as the same falls under Sec 8(1) (j) of RTI Act, 2005.
(iii) Most importantly, AF School Jodhpur was not a 'Public Authority' in terms of Sec 2 (h) of RTI Act, 2005; hence, the applicant was not entitled to seek any information under RTI ACT, 2005 in respect of AF School, Jodhpur.
(e) Further, from the Application dated 16 Jul 2007 filed before the Hon'ble CIC for urgent disposal of his appeal, it is evident that the appellant is seeking the information for his matrimonial case. He has also not indicated any bonafide public interest in seeking the said information. Thus, the appellant is seeking the information for promotion of his personal interest rather than public.
DECISION NOTICE The contention of appellant that simply because the school is a self-governing institution it falls under the definition of Public Authority is invalid. The form of institution referred to in Section 2 (h) is an "institution of self-government" which is quite distinct from simply a self-governing institution, since it will not only govern itself but actually engages in governance and the term alludes to institutions like Panchayats and municipalities. Nor is it valid that simply because the institution is registered under the Societies Registration Act 1860 or even the Companies Act or Cooperative Societies Act that it becomes a Public Authority, because although it may be registered under such an Act it is not established or constituted by that law in itself. The law referred to in Sec 2 (h) is one that actually establishes or constitutes an institution and not a law that simply sets up a mechanism for recognizing different forms of institutions.
On the other hand we find the arguments submitted in writing by Wg Cmdr Magadum are largely specious. U/s 6 sub-section (2), "An applicant making request for information shall not be required to give any reason for requesting the information" 1 The argument at (e) above is altogether irrelevant. Besides, it is nobody's case that the School in this case constitutes State under Article 12 of the Constitution. The example of the 1 Underlined by us for emphasis.
9CSIR is entirely misplaced since the CSIR is indeed a public authority u/s 2(h) of the RTI Act, with a complete infrastructure built assiduously in compliance with the RTI Act, 2005. Wg Cmdr Magadum is advised to visit CSIR's website to learn more on this.
In addition we have the ruling of MM Kumar, J and TPS Mann, J of the Punjab & Haryana High Court, in Civil WP NO. 2626 OF 2008 in DAV College Trust and Management Society & Ors vs. Director of Public Instructions & Ors of the Chandigarh Administration in which they have held as follows:
The Full Bench has taken a view that since the institutions discharge public functions, it cannot be regarded as a private individual limiting the powers of the Court in issuance of directions including prerogative writs. It has further been held that imparting of education is a public function irrespective of any financial aid. Once the institutions like the petitioners are performing public functions affecting the life of a huge segment of the society and in addition are receiving substantial grant-in-aid then it cannot be argued that it is not a 'public authority'. 2 Therefore, for the additional reason, detailed in Ravneet Kaur's case (supra), the writ petition would not survive and the question posed has to be answered against the petitioners.
The key issue before us, then, is whether because of the constitution of its School Management Committee under the ex-officio chairmanship of the Air Force Station Commander, the Air Force School is "controlled" by the Air Force. In this context, the response of PIO to the initial application is telling in the manner in which he describes the school in question as, "Air Force School, Jodhpur run by Air Force Station Jodhpur" 3 However, admittedly, although the School Management Committee is indeed headed by a serving officer in that capacity, and because of that he has the potential to exercise substantial control, the school is not structured to be controlled by government. Nevertheless u/s 2(f) of the RTI Act the definition of "information" includes "any material in any form....relating to any private 2 Emphasis ours 3 Underlined by us for emphasis 10 body which can be accessed by a public authority under any law for the time being in force." Even if we were to concede that the Air Force School Jodhpur is a private body, by dint of its head being a serving officer and serving as head in that capacity, by the very act of registration such an officer has the authority to access information regarding the school and is therefore required to service RTI applications pertaining to such accessible information.
The appeal is therefore allowed. The information sought by applicant inasmuch as it can be accessed by Air Force Station Commander will be provided to appellant Shri Ramesh Gandhi in accordance with the RTI Act, 2005, within ten working days of the date of receipt of this Decision Notice. However, because the application involved a substantive question of law there will be no costs.
Reserved in the hearing this decision is announced in open chamber on 1.08.'08. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 1-8-2008 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.
(Pankaj K.P. Shreyaskar) Joint Registrar 1-8-2008 11