Central Information Commission
Shri Manoj Kumar Singh vs Indian Army on 21 October, 2009
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/SM/A/2009/00112/LS
File No.CIC/SM/A/2009/00116LS
Appellant : Shri Manoj Kumar Singh
Public Authority : Indian Army
(through Brig. Ved Prakash, Col. Ajay &
Lt. Col. K.S. George)
Date of Hearing : 9th and 21st October, 2009
Date of Decision : 21.10.2009
FACTS :
The matter, in short is that the appellant is a serving Lt. Col. In the Indian Army. Vide his RTI application dated 1.8.2008, he had sought information on the following 03 paras :-
"(i) ACRs for the period from 01 April 1992 to 31 November 2007 initiated on the undersigned.
(ii) Approach papers and notings which include comments by superiors on undersigned and other officers being considered by the board that were placed before the Selection Board-3 held in April 2008.
(iii) Notings and directions of the COAS prepared to process the Non Statutory Complaint (MS Regn No. N-805024) of the Year 2008."
2. The CPIO had responded to him vide his letter dated 22.8.2008 enclosing therewith note dated 14.8.2008 of the concerned officer of MS Branch wherein information was denied in terms of the exemption clauses of the RTI Act. Vide order dated 13.8.2008, the Appellate Authority had affirmed the decision of the CPIO.
3. Hence, the present appeal.
4. Heard on 9.10.2009. Appellant not present. The public authority is represented by the officers named above. It is the say of Brig Ved Prakash that in regard to para (c) of the RTI application, the CPIO had informed the appellant that the order of the COAS had already been communicated to him by the MS Branch vide their letter dated 18.7.2008. When queried as to why information relating to paras (a) & (b) of the RTI application should not be disclosed, Brig. Ved Prakash would submit that it is 'confidential' information held by the Army in fiduciary capacity and, therefore, it is not disclosable under clauses (e) & (j) of Section 8 (1) of the RTI Act.
5. The Commission wished to peruse the circulars/memorandums/regulations/orders issued by Army Authorities regarding non-disclosure of ACR etc. Brig. Ved Prakash would submit that he has not brought these materials today and seeks a week's adjournment to produce these materials.
6. The matter is adjourned to 21.10.2009 at 1600 hrs. The said material may be produced by Brig Ved Prakash or any other officer authorized by him on the above mentioned date and time.
7. As scheduled, the hearing was resumed today dated 21/10/2009. Col. C.V. Ajay is present before the Commission. His first and foremost submission is that disclosure of ACRs for military personnel has been barred in the Supreme Court judgment dated 12/05/2008 in Appeal No.7631 of 2022 (Dev Dutt Vs UOI & Ors). He draws the Commission's attention to paras 39 and 41 of the above judgment in this connection. These paras are extracted below:-
"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 servant, whether in civil, judicial, police or any other State service (except Military) must be communicated to him within a reasonable period so that he can make a representation for its upgradation. ....."
X X X "41. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this court in Union of India Vs. Major Bahadur Singh 2006 (1) SCC
368."
8. In addition, Col. Ajay would advert to 'Instructions for Rendition of Confidential Reports for Officers, 1989' issued by the Military Secretary's Branch, Army Headquarters, New Delhi, in this regard which bars disclosure of contents of Confidential Reports except in certain special circumstances. Para 156 of the Instructions is extracted below:-
"156. As per the current policy, the contents of CRs are NOT required to be communicated to the ratee. The exception to this provision and the procedure are explained in the succeeding paras."
He would submit that the exceptions to the above provision are the officers who have been rated below average or in respect of whom adverse remarks have been made etc. In short, his submission is that the contents of CRs are not to be disclosed but for certain special categories.
9. He would also submit that disclosure of CRs in the Military, instead of serving a public purpose, may, in fact, cause serious harm to public interest in terms of compromising the objectivity of assessment which is the core and substance of ACR system in the Military. Besides, disclosure of ACRs may seriously harm inter- personal relations and organizational cohesion. As regards the disclosure of Departmental Promotion Committee(DPC) proceedings, Col. Ajay would submit that minutes of the DPC are prepared after examining the ACRs of the officers concerned. The gradings given in the ACRs are reflected in the DPC proceedings. Hence, according to him, if the DPC proceedings were to be disclosed, then contents of ACRs would also be disclosed by inference. Hence, when the ACRs are not disclosable, by the same logic DPC proceedings are also not disclosable.
DECISION
10. It is to be noted that Annual Confidential Reports were not disclosable even in respect of civilian officers and staff until recently under the instructions of the Department of Personnel and Training. However, in compliance with the order of the Hon'ble Supreme Court in Dev Dutt case and several decisions of this Commission, the DoPT has recently revised its instructions, directing disclosure of ACRs to the officers/staff concerned. It is noteworthy that this change in the DoPT's stance has come about only pursuant to the order of the Hon'ble Supreme Court of India. It may be pertinent to mention here that the Supreme Court has expressly barred disclosure of ACRs in respect of the Military. The Army Instructions, 1989, also bar disclosure of ACRs except in special circumstances as mentioned hereinabove. Besides, the reasoning given by Col. Ajay for non- disclosure in the Military appears to be based on robust common sense and sound logic. In a disciplined organization like the Military, disclosure of ACRs, indeed, may adversely affect organizational cohesion and impact on the objectivity of the assessment made by the superior officers. The same logic will hold good in regard to the disclosure of DPC proceedings as these contain substantive elements of ACRs.
8. In view of the law laid down by the Hon'ble Supreme Court of India, the Instructions of Army and the reasoning given hereinabove, I am inclined to agree with the view taken by the CPIO and AA in the matter in hand. In my view, the appeal has no merit and is dismissed.
Sd/-
(M.L. Sharma) Central 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.
(K.L. Das) Assistant Registrar Address of parties :-
1. Brig. Ved Prakash Indian Army G-6, D-1 Wingh, Sena Bhawan, Gate No. 4, IHQ of MoD (Army), New Delhi-110011
2. Shri Manoj Kumar Singh 7, Sikh Li -912307 C/o 56 APO