Central Information Commission
Dharmendra Kumar vs Bar Council Of India on 20 February, 2020
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/BCOI/A/2018/146320-BJ
Mr. Dharmendra Kumar
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Secretary, Council Department
Bar Council of India, 21, Rouse Avenue,
Institutional Area, New Delhi - 110002
... ितवादीगण /Respondent
Date of Hearing : 19.02.2020
Date of Decision : 20.02.2020
Date of RTI application 22.02.2018
CPIO's response Not on Record
Date of the First Appeal 12.04.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 24.07.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information/clarification on 04 points whether the Regular Law Practitioner can pursue LLM Course; whether while pursuing LLM Course, the candidate is required to withhold his registration or not; whether he can continue his Law Practicing or not and other issues related thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Dharmendra Kumar, arrived late, through VC;
Respondent: Mr. N. Senthil Kumar, Asst. Secy. & CPIO and Mr. Ashok Kr. Pandey, Jt. Secretary;Page 1 of 5
The Appellant remained absent during the hearing. Mr. Ajit Yadav, Network Engineer NIC studio at Allahabad confirmed the absence of the Appellant. However, the Appellant arrived after completion of the hearing and while tendering his unconditional apology for the delay in arrival, submitted that the information sought was not received by him, till date. In its reply, the Respondent tendered unconditional apology for the delay in submission of replies and attributed the delay due to their engagement in the enrolment verification process. It was opined that henceforth the delay would not recur. With regard to the queries raised by the Appellant in his RTI application, the Respondent informed that as per the decision of the Bar Council of India, an advocate is eligible to pursue LL.M course along with the Advocacy. The relevant resolution in this regard is "RESOLUTION NO. 160/2009" which resolved that "the practicing advocates can join in LLM Course as a regular student without suspending the practice".
The Commission was also in receipt of a written submission from the Respondent dated 18.02.2020 wherein at the outset it was admitted that there was an involuntary delay in replying to the applicant since the matter of a lot of law colleges were considered and continuous meetings were held to take a decision on the matters of law colleges as the academic year had started and counseling for admission in the Law Courses was also started. Being the head of the department he and the other staff members were extremely tied up to handle the matter of law colleges as the future of the students was at stake. Further, there was a change/ exchange of staff between the departments of the Council which took place every two years due to which there was some delay that happened while replying to the RTI queries since December, 2017 and there was no intention to deny the information to the Appellant. While stating that a reply was sent to the Appellant on 27.11.2019, the Respondent further elaborated the reasons for the delay in replying to the RTI application. The Respondent also stated that the aforementioned reasons were placed before the then Hon'ble Chief Information Commissioner, Mr Sudhir Bhargava in respect of the delay in replying to the RTI applications which was considered by the CIC who accepted the reasons with a warning to reply to all the pending RTI applications and also not to repeat the mistake in future. The directions of the Commission were duly complied with by them. Hence, it was prayed to consider their apology regarding the delay in replying to the RTI application.
The Appellant however, denied receipt of the written submission sent by the Respondent as well as the reply dated 27.11.2019.
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:
"(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 ........"Page 2 of 5
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), 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."
The Commission 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 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 Page 3 of 5 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, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"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."
A reference can also be made to the decision of 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, wherein it was 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."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission expressed concern over the delay in furnishing a reply by the Respondent Public Authority and advised the Secretary, Bar Council of India, New Delhi, to exercise due diligence in adhering to the stipulated time schedule in accordance with the provisions of the RTI Act, 2005. The Respondent was also directed to endorse a copy of their written submission dated 18.02.2020 along with enclosures sent to the Commission to the Appellant, as well, forthwith.Page 4 of 5
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: 20.02.2020 Copy to:-
1. Mr. Srimanto Sen, Secretary, Bar Council of India, 21, Rouse Avenue, Institutional Area, New Delhi - 110002 Page 5 of 5