Central Information Commission
Anjali Bhardwaj vs Department Of Personnel & Training on 16 August, 2021
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No :CIC/DOP&T/C/2019/655635
Anjali Bhardwaj ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Department of Personnel and
Training, RTI Cell, North Block,
New Delhi - 110001. .... ितवादीगण/Respondent
Date of Hearing : 25/06/2021
Date of Decision : 13/08/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 07/03/2019
CPIO replied on : 04/04/2019
First appeal filed on : 09/04/2019
First Appellate Authority's order : 08/05/2019
2nd Appeal/Complaint dated : NIL
Information sought:
The Complainant filed an online RTI application on 07.03.2019 seeking the following information with respect to advertisement inviting application for 4 posts of Information Commissioners in January 2019:1
1. "Number of applications received by the government in pursuance of the advertisement.
2. Names and particulars of persons who have applied in pursuance of the advertisement.
3. Copies of all documents, records, file notings, correspondence etc. related to the process adopted by the government to analyse or short-list the applications received for consideration for the post of information Commissioners. If any search committee has been constituted, please provide the following information related to the said committee-
a. Order regarding constitution of the committee b. Names of members of the committee c. Date of alt meetings of the committee d. Agenda of all meetings of the committee e. Copy of minutes/discussions/proceedings/verbatim recordings etc. of the proceedings of all the meetings f. Name and designation of persons attending the meeting g. Criteria adopted by the committee for shortlisting the candidates.
5. Provide the following information about all the meetings held of the committee constituted under section 12(3) of the RTI Act to select the Information Commissioners-
a. Date of meetings b. Agenda of meetings c. Copy of minutes/discussions/proceedings/verbatim recordings etc. of the proceedings of all meetings d. Name and designation of persons attending the meetings
6. Provide information on the current status of the process of appointment of the Information Commissioners.
The CPIO provided a point-wise reply to the Complainant on 04.04.2019 stating as under:-
Point No. 1: Total number of applications received is 256. Point no. 2-6: An advertisement for filling up of the 4 posts of Information Commissioners in Central Information Commission was put on DoPT website on 04.01.2019 and published in the newspapers on 03.01.2019. The last date of receipt of application was 25.01.2019. The judgment of the Honourable Supreme Court given in WP No. 436 of 2018 is under 2 consideration of the Department. The information relating is exempted under section 8(1)(i) of RTI Act, 2005. It would not be conducive to give such information in the manner it is sought since the process of selection is yet to be completed. No such practice is followed in any other equivalent high Level appointments of Government.
2. The instructions, OMs & Orders Issued from time to time relating to Right to Information Act are available in public domain and may be seen at the link below: dopt.gov.in/Notifications/OMs & Orders/RTI
3. The detailed provisions of RTI Act, 2005 & RTI Rules, 2012 are available in public domain and can be seen at link below:
dopt.gov.in-Download-Acts & Rules-RTI Act, 2005 dopt.gov.in-Download-Acts & Rules-RTI Rules, 2012."
Being dissatisfied with the denial of the information on points 2-6 of the RTI Application, the Complainant filed a First Appeal dated 09.04.2019. FAA's order dated 08.05.2019 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, Complainant approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:
Complainant: Present through audio conference.
Respondent: Pawan Kumar, Under Secretary & CPIO present through audio conference.
The Appellant stated that the information on points 2-6 of the RTI Application has been wrongly denied under Section 8(1)(i) of the RTI Act as the said exemption has no applicability to the facts of the instant case. She further submitted that in Writ Petition No.436 of 2018, the Apex Court on 13.12.2018 and on 15.02.2019 passed certain directives stipulating that it would be appropriate for the search committee to make the search criteria public as also information about who had applied and names of shortlisted candidates also has to be put in public domain. That, the instant RTI Application was filed subsequent to the date of the averred judgment of the Court and in fact in the CPIO's reply, DoPT has gone to the extent of saying that they are aware of the judgment of the Court but informed that the same is under consideration. She continued stating that this pretence of the DoPT 3 has baffled her as almost after two months of issuance of the Court directives, the DoPT is informing her about keeping the directives under consideration while also denying that same category of information which was supposed to be made available in the public domain by virtue of the Court directions of 13.12.2018.
The CPIO submitted that Section 8(1)(i) of the RTI Act includes the deliberations of the Secretary and therefore the then CPIO may have invoked the said exemption as the deliberation was pending before the Committee of Secretaries' and prayed to recall the detailed justifications tendered to this effect by the then CPIO, Sanjay Kumar before this bench with respect to a similar case of the Complainant decided vide File No. CIC/DOP&T/C/2019/102837 on 12.02.2021. He further submitted that as pointed out in the earlier case, the process of selection referred to in the instant RTI Application was similarly ongoing at the time of the reply provided on 04.04.2019and so the limited information about total number of applications received was informed to the Complainant. He furthermore submitted that he is not sure whether the names of the applicants could have been shared at that stage but particulars of the applicants are not disclosed until the process is complete and as with all the earlier selection processes, upon completion of the averred selection also, the entire gamut of records has been placed in the public domain. Now, as regards the disclosure of the names of the members of the search committee, the CPIO explained that as per his understanding, the disclosure of the identity of the members during the pendency of the selection process is unjustified as there may be instances of influencing the process of selection and it is not the case that the information is withheld even after the selection is complete since routinely information related to these selection processes is made available in the public domain in line with the transparency laws. In response to the specific contention of the Complainant alleging that the CPIO should be held accountable for complying with the said Court judgment, he stated that it is not within the domain of the CPIO but it is for the government to consider and in fact the government had also filed an affidavit in compliance of the directives stating that the search committee may fix a criteria but in what way the search committee evaluates the candidate is not an information which is available in the file of DoPT as it comes under the chairmanship of the Cabinet Secretary. Whatever is available in DOPTs records (files/part files/merged files) is put on the public domain within the shortest time span from the date of completion of the selection process, so the question of not being transparent does not arise.4
The Appellant emphasised that there is no similarity in the facts of the instant case and her earlier case as the directives of the Apex Court discussed above had come into effect much prior to the date of the instant RTI Application and the reply thereupon. She also pointed out that in the earlier case while justifying the denial of information the then CPIO had mentioned that at the time of his reply to the RTI Application, there was no such directive of the Court but the same cannot be argued in the instant case. In furtherance of said argument, she stated that pertinently so, the averred directives of the Court were issued during the pendency of the selection process referred to in the earlier case and when the Court had itself arrived at the said decision to publicise the names of search committee members; candidates as well as the search criteria, even if the then CPIO had any apprehensions about parting with the said categories of information, there was no scope for the CPIO to interpret the Court directives or the RTI Act. Citing the totality of issues raised by her, the Complainant lastly prayed for imposition of penalty on the grounds that the CPIO knowingly denied the information in the instant case juxtaposed to the earlier case. She also prayed that the imposition of penalty is crucial so that similar instance of flouting the transparency law seven after being espoused by the Court does not recur as the CPIOs will continue to deny the information at the time of filing the RTI Application and by the time the matter is heard by the Commission, the CPIOs will absolve themselves of the onus by placing the information in the public domain but this practice will gravely negate the very purpose of the directives issued by the superior courts.
The CPIO reiterated that he can only provide such information which is available in the records so insisting on the search criteria to be provided on the basis of the SC judgment does not enjoin him with a duty of getting the SC judgment implemented.
The Complainant also desired to bring on record that if DoPT did not intend to implement the Court's directive, it should have pursued the matter before the Court instead of withholding the information under the garb of keeping the judgment under consideration.
Decision The Commission based on a detailed perusal of the facts on record and having heard the submissions of the parties during the hearing observes that in principle, the denial of the same information as sought for in the instant RTI Application 5 under Section 8(1)(i) of the RTI Act has been discussed at length and decided upon in the earlier case of the Complainant vide File No. CIC/DOP&T/C/2019/102837 on 12.02.2021.
However, taking a considered view in the matter, as desired by the Complainant, the Commission notes the point of difference in both the cases which is said to be the fact that the denial of the information in the earlier case was based on the CPIO's wisdom alone, but by the time the instant RTI Application was filed the directions of the Apex Court in Writ Petition No.436 of 2018 Anjali Bhardwaj &Ors. Vs. Union of India &Ors. had come through asking the government to place certain details in the public domain in the following words:
"The respondents shall put on the website the names of the Search Committee, the names of the candidates who have been shortlisted as well as the criteria which is followed for selection. We may again record the statement of learned Additional Solicitor General that the selection criteria is prescribed in the RTI Act itself which is being followed. Still, that can be put on the website."
And, in the final judgment passed in the said writ petition on 15.02.2019, the Court observed as under:
"31) Pursuant to the aforesaid direction, Union of India filed the status report on 29th January, 2019 at the time of hearing of the matter. It is stated in this report that the selection criteria is prescribed in the RTI Act itself which is being followed, which also mentions the terms and conditions on which appointments of each Chief Information Commissioner and Information Commissioners in the CIC are to be made. The report further records as under:
'2. The files relating to appointment of Chief Information Commissioner (F.No. 4/13/201-IR) and Information Commissioners (F.No.4/9/2018-IR) in Central Information Commission have been put on the website of DoPT (dopt.gov.in/rti/proactive-disclosure/selection of information commissioners) except personal information of the applicants which has been exempted under Section 8(1)(j) of the Right to Information Act. These files contain a list of applicants, the names of the members of Search Committee, Agenda for the Search Committee, Minutes of the Search Committee. Copies of the Gazette of India notifying the appointment of Chief Information Commissioner and Information Commissioners in the Central Information Commission w.e.f. 01.01.2019 are enclosed. The terms of appointment in respect of newly appointed Chief Information Commissioner and Information Commissioners in Central 6 Information Commissioner will be regulated as per the Right to Information Act.
The procedure for selection of Information Commissioners is given in Section 12(3) of the Right to Information Act which has been followed for the newly appointed Chief Information Commissioner and Information Commissioners. Photocopy of the Section 12(3) of the Right to Information Act is enclosed.
3. The advertisement in respect of 4 Information Commissioners in Central Information Commission, against the present vacancies, has been uploaded on the website on DoPT on 04.01.2019 and the last date of receipt of applications for the same is 25.01.2019. The advertisement has been published in the 4 leading newspapers-The Hindu' and 'Times of India' (in English); 'Daining Bhaskar' and 'Hindustan' (in Hindi) and their editions throughout India by the Burea of Outreach and Communication.'
32) The aforesaid report reveals that some appointments have been made. At the same time, appointment process in respect of 4 Information Commissioners in CIC has been initiated. In this backdrop, three aspects on which the arguments were raised by the learned Counsel for the petitioner and which need to be addressed are the following:
(a) Timely filling up of the vacancies to ensure that the work of the Information Commissioners does not suffer.
(b) Transparency in the mode of appointments.
(c) Terms and conditions on which these appointments are to be made should be clearly stated.
33) Learned counsel for the petitioners made it clear that the petitioners were not challenging the appointments already made. However, they want transparency and full disclosure of information depicting : (a) definite criteria for such appointments,
(b) and such criteria should be made public in advance.
34) The petitioners are right in their submissions that there have been undue delays in filling up of these vacancies. We expect that the vacancies shall be filled up, in future, well in time. Certain directions in this behalf, which are necessitated, are given at the end of this judgment.7
35) Insofar as transparency of procedure is concerned, from the status report it becomes clear that the procedure is now adequately transparent. The Department of Personnel and Training has put on website information in respect of names of the applicants for these posts, names of the members of Search Committee, agenda for the Search Committee, Minutes of the Search Committee etc. It would be pertinent to point out at this stage that after the Search Committee sends its recommendations the Selection Committee has to make the final selection. The composition of the Selection Committee is provided in Section 12(3) of the Act which consists of:
(i) The Prime Minister, who shall be the Chairperson of the Committee;
(ii) The Leader of Opposition in the Lok Sabha;
(iii) The Union Cabinet Minister to be nominated by the Prime Minister.
The Statutory Committee, thus, consists of very high ranking persons.
36) Having regard to the aforesaid, it cannot be said that there is no transparency in the appointment process, when all essential information in respect of each candidate is made available to the public at large. Information in respect of Members of Search Committee, agenda of their meetings and even the Minutes of the Search Committee have also been put on website. The appointments made, finally, are also in public domain."
A bare perusal of the judgment suggests that there is no implicit or explicit direction cast upon the CPIO to provide the information on search criteria or committee members during the pendency of the selection process itself. In fact, the directions to place the averred details on the website was with reference to the appointments that were being carried out in pursuance of the 2018 advertisement and by the time the status report informing the Court that all these details have been placed on the website was filed, as evinced therefrom the appointment process was completed and there is enough emphasis on the point that the search criteria is already contained in the RTI Act itself. Per contra, the information sought for in the instant RTI Application is with respect to the subsequent advertisement issued in January 2019 and the process of selection was ongoing at the time of the instant reply dated 04.04.2019 issued by the then CPIO.
For the reasons as observed above, the Commission is unable to appreciate the contentions of the Appellant that the CPIO has denied the information knowingly 8 violating the stipulations of the Apex Court or that the CPIO had no right to exercise his wisdom vis-à-vis the applicability of Section 8(1)(i) of the RTI Act as the averred judgment is in no way prescribing any stipulation to the CPIO or to the provision of information under the RTI Act per se. Concededly, the directives were made to the Union of India in specific context of the appointments of the Information Commissioners and not with respect to the information sought under the RTI Act or applicability of the exemption of Section 8(1)(i) of the RTI Act. In fact, the averred judgment can be relied upon to add perspective to the extent of transparency and probity to be ensured while appointing the Information Commissioners but cannot be squarely applied as a precedent to accept or reject the exemptions of Section 8 of the RTI Act invoked by the CPIO when a requisition related to the appointment process of the Information Commissioners is made during the pendency of it.
In other words, the CPIO cannot be mortified for the implementation or non- implementation of Court directives issued to the Union of India in the instant matter.
Having observed as above, the reply of the then CPIO does not warrant penal or disciplinary action in the absence of any material on record to suggest that the denial or withholding of the information was deliberate or with a malafide intention. In this regard, attention of the Complainant is drawn towards a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies &Ors v. Dharmendra Kumar Garg &Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
" 61. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed...."9
Similarly, an observation of the Hon'ble Delhi High Court in the matter of Bhagat Singh vs. CIC &Ors. WP(C) 3114/2007 is also relevant to point out here which reads as under:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Nonetheless, having regard to the contentions of the Complainant, the Commission is of the considered opinion that the Secretary, DoPT may like to look into this matter relating to the implementation of the averred Court directives vis- à-vis similar requests for information received under the RTI Act.
The complaint is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु नाआयु ) Authenticated true copy (अिभ मािणतस!यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 10 Copy to:
Secretary Department of Personnel and Training, North Block, New Delhi - 110001
--(For appropriate action) 11