Central Information Commission
Rananjay Pratap Singh vs Chief Commissioner Of Customs, ... on 31 May, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCCAZ/A/2022/660038
RANANJAY PRATAP SINGH ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
DEPUTY COMMISSIONER, CUSTOMS
(PREV.), OFFICE OF THE COMMISSIONER
OF CUSTOMS (PREV.), JAMNAGAR,
RTI CELL, SEEMA SHULKA BHAVAN,
RAJKOT JAMNAGAR HIGHWAY,
JAMNAGAR-361001, GUJARAT. .... ितवादीगण /Respondent
Date of Hearing : 23/05/2023
Date of Decision : 23/05/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 07/08/2022
CPIO replied on : 05/09/2022
First appeal filed on : 17/09/2022
First Appellate Authority order : 19/10/2022
Second Appeal dated : 12/11/2022
Information sought:
The Appellant filed an RTI application dated 07.08.2022 seeking the following information:1
"....1. Please provide the list of 'Sensitive Posts' falling under the jurisdiction of Customs (Preventive), Jamnagar.
2. Please provide the details of competent authority to decide the list of 'Sensitive Posts' falling under the jurisdiction of Customs (Preventive), Jamnagar.
3. Please state whether any decision at Commissionerate can be taken in contravention of the Circular/OM/Instruction of CVC, DoPT & CBIC regarding the list of 'Sensitive Posts' or posting to 'Sensitive Posts'.
4. Please provide the criteria to define the nature of Posts as 'Sensitive' and/or 'non-Sensitive' as available in Circular/OM/Instruction of CVC, DoPT & CBIC or any Office Order.
5. Please state whether any officer(s) against whom a 'Preliminary Enquiry' has been conducted by an outside formation but, no 'Formal Enquiry' has been initiated by the Disciplinary Authority (DA) by way of Show Cause Notice/Charge-Sheet/Suspension/Prosecution can be treated at par with those against whom a 'Formal Enquiry' has been initiated or continuing for transfer/rotation/posting to 'Sensitive Posts'. If yes, please provide the copy of Circular/OM/Instruction of CVC, DoPT & CBIC or Office Order, if any in support of the same.
6. Please state whether making the 'Preliminary Enquiry Report' by an outside formation without independent 'Formal Enquiry' by the Disciplinary Authority (DA) a ground for denying the due benefits to any officer (except in the case of deputation/empanelment) may be just, proper & legal. If yes. please provide the copy of Circular/OM/Instruction of CVC. DoPT & CBIC. if any in support of the same.
7. Please clarify whether the word 'Appointments to Sensitive Posts' as expressed in the OM No. 111012/11/2007-Estt. (A) dated 14.12.2007 issued by DoPT is synonymous with the expression 'Transfer/Rotation to Sensitive Posts in General Transfers', if yes please provide the legal meaning of the word 'Appointment & 'Transfer/Rotation' as available in Circular/OM/Instruction of CVC. DoPT & CBIC or any Office Order.
28. Please state whether OM No 111012/11/2007-Estt. (A) dated 14.12.2007 issued by DoPT or any other Circular/OM/Instruction of CVC. DoPT & CBIC may be cited to deny 'Sensitive Posting' to an officer against whom neither Charge Sheet has been issued nor has he been suspended or being prosecuted.
9. Please clarify the meaning of 'Sensitive Posts' as expressed in OM No. 111012/11/2007-Estt. (A) dated 14.12.2007 issued by DoPT and its co- relation, if any with the 'Sensitive Posts' falling under the jurisdiction of Customs (Preventive). Jamnagar.
10. Please state if any officer's due benefits are denied on the basis of 'Preliminary Enquiry Report' of Administrative Authority then, would not it amount to taking sides by Disciplinary Authority (DA) with the Administrative Authority making the subsequent 'Formal Enquiry' unjust, unfair, partial and predetermined.
11. Please allow inspection of documents/records/files related to or connected with the aforesaid Points 01 to 10 and taking photocopies/print- outs of relevant pages after inspection."
The CPIO furnished a pointwise reply to the appellant on 05.09.2022 stating as under:
"1. Transfer placement policy dated 26.07.201I(copy enclosed) issued by the Customs Commissionerate, Jamnagar and Transfer policy doted 20.07.2021 issued by the CCO, Customs, Gujarat Zone, Ahmedabad (copy enclosed) may be referred.
2. Above may be referred 3 to 10: The information sought does not fall under the definition of Information under Section 2(f) of the RTI Act, 2005.
11. Relevant information is already provided as enclosure."
Being dissatisfied, the appellant filed a First Appeal dated 17.09.2022. FAA's order, dated 19.10.2022, upheld the reply of CPIO.
3Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Represented by Ishan Duggal, Deputy Commissioner present through video-conference.
The Rep. of CPIO invited attention of the bench towards his written submission dated 17.05.2023 wherein he furnished a point wise response to the instant Appeal of the Appellant stating as under -
"....Para 1:The appellant has sought the list of 'Sensitive Posts' falling under the jurisdiction of Customs (Preventive), Jamngar. The issue pertaining to "Sensitive Posts" and "Non-Sensitive Posts" pertain to transfer / rotation / posting. Hence, the CPIO has provided the copy of the Transfer Policy Guidelines dated 26.07.2011 issued by Jamnagar Customs and the Transfer Placement Policy dated 20.07.2021 issued by the office of the Chief Commissioner of Customs, Ahmedabad under the jurisdiction of which the Jamnagar Customs falls. The List of sensitive / non-sensitive posts is clearly given as Annexure-A in both the documents. Therefore, transfer policies along with list of 'Sensitive Posts' as requested by the appellant have already been provided to the appellant. When the information sought by the appellant is provided clearly as Annexure in a tabular format, the allegation by the appellant only shows that he has not even gone through the information provided by the Public Authority. Thus, there is absolutely no attempt to justify any wrong doings in decision making process, as alleged by the appellant.
Para 2:The competent authority to decide sensitive / non-sensitive posting is as per the transfer policies already provided to the appellant. It goes without saying that the authority who issued transfer policies, with list of 'sensitive posts' is the competent authority to decide list of such sensitive posts. The entire transfer policy which clearly lays down the sensitive & non-sensitive postings and the application of the same considering the administrative exigencies have been provided to the appellant. Therefore, the appellant has been correctly replied with utmost care to the provisions of the Act.
Para 3:The appellant has sought information as to whether decision at commissionerate can be taken in contravention of Circular / OM etc. regarding the list of 'sensitive posts' or postings to 'sensitive posts'. The information sought is purely in the form of opinion / 4 clarification and does not fall within the definition of Section 2(f) of the RTI Act, 2005. When the information sought do not fall under the definition of information, there comes no question of seeking exemption from disclosure of information under the provisions Section 8 or Section 9 of the RTI Act, 2005. Therefore, it appears that the appellant has miserably failed to appreciate and comprehend the very provisions of the RTI Act, 2005 that he himself has quoted.
The CIC and various judicial fora have clearly carved out the difference between information and interpretation under the RTI ACT, 2005. In the case of Yogesh Kumar vs. CPIO, M/o. Personnel, Public Grievances & Pensions, Department of Personnel & Training, the Appellant sought to know if there is any proposal to implement the MACP w.e.f 01.01.2006 instead of 01.09.2008 as per the judgment of the Hon'ble Supreme Court in Civil Appeal No. 3744 of 2016; if yes, its present position; if not, then the reasons thereof wherein the Commissioner ruled as given below:
The Commission observes from the proceedings during the hearing as well as the perusal of facts on record that the instant matter is not as much about seeking information as much it is about redressing the Appellant's grievance emanating from the non- implementation of the averred MACP scheme. As rightly pointed out by the CPIO, the information sought in the RTI Application does not even conform to Section 2(f) of the RTI Act. In this regard, the attention of the Appellant is drawn towards a judgment of the Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 OF 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the 3 exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such nonavailable information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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 5 voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied).
Nonetheless, the CPIO has provided adequate clarifications to the Appellant during the hearing, thus, leaving no further scope of intervention at this stage. Further, the Appellant is advised to await the decision of the appropriate Court of Law for redressing his grievance.
In view of the foregoing observations, the Commission finds the instant Appeal bereft of merit. From the above judgement of the CIC, it is amply clear that the reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the RTI Act, 2005 refers only to such material available in the records of the public authority and that the public authority is not required to provide 'advice' or 'opinion' to an applicant.
Para 4:The sensitive and non-sensitive posts are clearly carved out in the transfer policies which have been supplied to the appellant. The information sought i.e., criteria to define sensitive / nonsensitive post and relevant circulars / OM / Instructions of CVC, DOPT & CBIC is purely in the form of opinion / clarification and does not fall within the definition of Section 2(f) of the RTI Act, 2005.
xxx to such material available in the records of the public authority and that the public authority is not required to provide 'advice' or 'opinion' to an applicant.
Para 5: The information sought by the applicant is as to whether an officer against whom no formal inquiry has been initiated by way of SCN/Chargesheet/suspension/ prosecution can be treated at par with those against whom a 'Formal Enquiry' has been initiated. The applicant has sought opinion / clarification from the CPIO. Therefore, the information requested does not fall within the definition of Section 2(f) of the RTI Act, 2005.
xxx Para 6: The information sought by the appellant is whether denying due benefits to any officer without independent formal inquiry may be just, proper and legal.This information is also in the form of opinion / clarification of the CPIO and does not fall within the definition of Section 2(f) of the RTI Act, 2005.
xxx Para 7: The appellant has requested the CPIO to clarifywhether the word 'Appointments to Sensitive Posts' as expressed in DOPT OM dated 14.12.2007 is synonymous with the expression 'Transfer / Rotation to Sensitive Posts in General Transfers'. Further, the applicant has requested legal meaning of these words. This information is also in the form of opinion / clarification of the CPIO and does not fall within the definition of Section 2(f) of the RTI Act, 2005.
6xxx Para 8:The appellant has requested whether DOPT OM dated 14.12.2007 or any other circular / OM / instruction may be cited to deny 'Sensitive Posting'. The information whether such OM / Circular etc., may be cited or may not be cited is in the form of opinion / clarification and does not falling within the definition of Section 2(f) of the RTI Act, 2005.
xxx Para 9: The appellant has again requested to clarify the meaning of 'Sensitive Posts" as expressed in DOPT OM dated 14.12.2007. This information is in the form of opinion / clarification of the CPIO and does not fall within the definition of Section 2(f) of the RTI Act, 2005.
xxx Para 10:The appellant has requested to state if denying due benefits to an officer on the basis of Preliminary enquiry report would amount to taking sides by the Disciplinary Authority. The information sought by the appellant is in the form of opinion / clarification only. As stated above, the same does not fall within the definition of Section 2(f) of the RTI Act, 2005.
xxx Para 11: The information sought by the appellant has already been provided to the extent it is falling within the ambit of RTI Act, 2005. When the information sought by the appellant is already provided, there is no question of further inspection of the records. Therefore, there is no requirement to allow inspection of records pertaining to the subject matter. Further, transfer, posting and other staff related work is carried out in Vigilance Section of this Commissionerate, where many confidential matters are being dealt. The records containing information and documents pertaining all the employees and disclosure of the same would amount to third party information. Therefore, inspection of records of Vigilance Section cannot be allowed.
Further submissions:
I. As stated above, information sought vide Para 3 to 10 of the RTI application is purely in the nature of seeking opinion / clarification / view of the CPIO, which does not fall within the ambit of the RTI Act, 2005. In this regard, there are plethora of cases wherein it is held that a public authority is not required to furnish information which require drawing of interferences and/or making assumptions. It is also not required to provide 'advice' or 'opinion'. Some additional case laws are cited hereunder:
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:7
"information" means any material in any form, including records, documents, memos, emails, 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."
Hon'ble Central Information Commission in the following cases relied upon the case law of Aditya Bandopadhyay and decision of Hon'ble Supreme Court in the case of KhanapuramGandaiah Vs. Administrative Officer and dismissed the appeals of the appellants.
i. Javed Ahmed Vs. CPIO, MOHRD ii. Yogesh Kumar vs. CPIO, M/o. Personnel, Public Grievances & Pensions, Department of Personnel & Training iii. Mr. Ashutosh Gautam versus the CPIO, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi II. It is further submitted that the appellant is employee of the Customs Commissionerate. The information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information.In the case of Dr. K.C. Vijayakumaran Nair Vs Department of Post, Hon'ble CIC held as under:
"The information seeker, being an employee of the respondent, is a part of the information provider. Under the RTI, the employees are not expected to question the decisions of the superior officers in the garb of seeking information. Such employees have access to internal mechanisms for redressal of their grievances. Unfortunately, a large number of the government employees are seeking information for promotion of 8 their personal interest. This is done on the pretext of serving the public cause, without realizing the extent of distortions that it causes in use of public resources due to putting up frivolous applications by them for self-interest. This appeal is in no way exception. In the instant case, the information seeker and the provider being part of the same system should work together for evolving approaches to remove irritants in their mutual interaction, as a lot of public resources devoted to provide service to the entire Indian community is thus un-productively used. They ought to exercise restraints in misusing the Act, lest they should dilute the mandate of RTI Act to empower the common man."
Hon'ble Supreme Court of India in Central Board of Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors, SLP(C) NO. 7526/2009 held as under:
"Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of public authorities prioritising 'information furnishing' at the cost of their normal and regular duties."
Similarly, the Hon'ble Supreme Court in the matter of ICAI vs. Shaunak H. Satya (2011) 8 SCC 781 dated 02.09.2011 had held as under:
"26. We however agree that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources "The above said case laws have been relied upon by the Central Information Commission in various cases like Mr. Ashutosh Gautam versus the CPIO, Central Information Commission, New Delhi and Mohan Lal Atarwal vs Kendriya Vidyalaya Sangathan. The Commission has also relied upon the case of Shail Sahni Vs. 9 Sanjeev Kumar & Ors. in W.P.(C) No. 845 of 2014, wherein the Hon'ble Delhi High Court has held that "misuse of the RTI Act has to be appropriately dealt with, otherwise the public would lose faith and confidence in this "sunshine Act". A beneficent Statute, when made a tool for mischief and abuse must be checked in accordance with law."
III. Further, RTI cannot be turned into tool for vendetta by an employee against organization for some grievances. It is also a fact to be noted that a vigilance enquiry has been initiated against the appellant by the Department for various reasons because of which the appellant's transfer to sensitive posts and disbursal of rewards have been affected. It is in this context that the appellant appears to be involved in acts of intimidating his colleagues and senior officers through various forums like RTI. The present RTI application also appears to be intended to question the process of inquiry initiated against him in the garb of an RTI application. It appears from the information sought, that the appellant has filed the said RTI application seeking advice/opinion/ interpretation of the public authority just to quench his personal vendetta against the Public Authority and to use RTI Act as a tool to intimidate the authorities in his own organization.
In the case of Bidhan Chandra Das v. PIO, Department of Post, the CIC has ruled that:
"g) The RTI Act is meant to promote public interest and public-interest-based transparency in the administration of public offices; it cannot encourage the attempt to use the RTI to raise such harassing questions to the officers. If this kind of misuse is not checked, and officers will be threatened, demoralized and prevented from proceeding against employees like Mr. B.C. Das facing charges of misconduct.
3. Based on the above contentions, the Commission finds that it is an unscrupulous abuse of RTI by the appellant by filing multiple frivolous RTI applications out of vengeance of being reverted to a lower grade in the Department for no purpose, just for the purpose of harassing the department and colleagues. The officers expressed their agony and sought action against the appellant for causing wastage of time and mental harassment through his filthy remarks and character assassination of the lady officers...
4. Such a conduct in the name of RTI will cause a serious damage to this welfare legislation and embolden the other abusers of office. The Public Authority cannot abdicate its duty to inquire against such allegations of serious misconduct which might have facilitated him to extend the abuse further and also abuse the RTI. Exercising powers under Section 18(2) of RTI Act, the Commission directs the public authority to conduct inquiry against the appellant, former SSPO, on the allegations mentioned above like working on files of the Department illegally after being reverted, use of filthy language and abuse of RTI, and inform the victim officers about action taken on their 10 complaints of sexual harassment, and submit the report of action taken against him within 60 days from the date of receipt of this order.
5. An applicant who has approached the Commission with personal vengeance and who is alleged by colleagues to have abused the position, language and the RTI has no legal right to complain against the CPIO under RTI Act. A malicious complaint like this has no foundation under Section 20 of RTI Act and deserves to be rejected. If the inquiry on these allegations is proved, the appellant officer may have to compensate the damage caused to office and colleagues besides wasting the time of public authorities. This kind of abusive complaint does not stand on any provision or reason, hence dismissed.."
Per contra, the Appellant vehemently contradicted the above mentioned submissions of the Rep. of CPIO by placing reliance on his latest written submission, relevant extracts of which are as under -
"...1. All the contents of Reply / WS, except which are matter of record, unless specifically admitted, are misconceived, and hence, denied being false and misleading. The then CPIO, who is supposed to know the provisions of RTI, Act, 2005, is not aware of the basics of following provisions of RTI Act, 2005 that;
i. The malicious statements stated in the opening para (at Page 3 of 13 of WS filed by the then CPIO) of "Point-wise Reply to Grounds of Appeal" stating therein "It is brought to the kind attention of the Commission that the appellant is an employee of the Government of India working under the same Public Authority from whom the information have been sought.
Thus, the information seeker is part of the information provider and the information sought by him is already accessible to him in as much as it is accessible to the CPIO or the Public Authority. It is also a fact to be noted that a vigilance enquiry has been initiated against the appellant by the Department for various reasons because of which the appellant's transfer to sensitive posts and disbursal of rewards have been affected. It appears from the information sought that the appellant has simply filed the said RTI application seeking advice/opinion/ interpretation of the public authority just to quench his personal vendetta against the Public Authority and to use RTI Act as a tool to intimidate the authorities in his own organization." are false and hit by provisions of Section 3 of the RTI Act, 2005 read with law settled by this Hon'ble CIC in its Order dated 14.06.2017 in Second Appeal No. CIC/POSTS/A/2017/130777 titled as Manju v. PIO, Department of Posts (copy attached) wherein this Hon'ble CIC has held as under:
"12. These three propositions are baseless. To say that employees are part of holders or generators of information and hence they do not have right to information etc is neither legal nor logical. This amounts to adding a new restriction which was not provided under 11 RTI Act on the right of the employees. How can there be a general proposition that every employer is part of generating or holding or controlling the information and hence he cannot seek it under RTI Act? If the CPIO and public authority sincerely feel so why not they seek the information which they have generated, or are part of holding of that information? In such case there should be no problem in showing their-own generated information.
13. Every Government employee is a citizen first and RTI Act did not exempt the Government Employee from this right. There is no basis for concluding that employee of public authority has no right to information. Being a citizen, employee has equal right to information. As the RTI is part fundamental right guaranteed under Article 19(1)(a) of the Constitution, the RTI cannot be denied to the employee.
14. It is very clear from the provisions of RTI Act and judgments of Hon'ble Supreme Court and High Courts that information request can be rejected only under exceptions mentioned under Sections 8 and 9 of RTI Act. The contention of CPIO and the order cited by him are not based on any of the exceptions in those two sections.
15. The public authority cannot deny this right to information to the employee simply because he was part of public authority. It is also a misplaced proposition that a junior employee cannot question the decision of the senior employee or officer or employer quoting a CIC order in 883/1C(A)/2007 dated 14.06.2007 in Dr. K.C. Vijaykumaran Nair Vs. Department of Posts."
ii. Thus, it is a settled position of law that every citizen, including the Applicant/Appellant, has right to information and applications under provisions of RTI Act, 2005 are filed by the Citizens of India. (Section 3 of the RTI Act, 2005) iii. Filing a Second Appeal is a statutory right of every citizen which has been provided by the Parliament of India. (Section 19 (3) of the RTI Act, 2005) iv. The onus to prove, in any appeal proceeding, that a denial of request was justified is on the CPIO, who denied the request arbitrarily. (Section 19 (5) of the RTI Act, 2005) v. The burden of proving that CPIO acted reasonably and diligently is on the CPIO. (Proviso to Section 20 of the RTI Act, 2005) vi. The CIC is empowered to require the public authority to compensate the Complainant for any loss or other detriment suffered. (Section 19 (8) (a) of the RTI Act, 2005) vii. The CIC is empowered to impose any of the penalties provided under this Act or reject the Application. (Section 19 (8) (b) of RTI Act, 2005) 12 viii. The CIC is empowered to receive complaint from any person w.r.t. act / omission of CPIO / Public Authority, initiate the inquiry as per provisions of Section 18 (2) of RTI Act, 2005 w.r.t. act / omission of CPIO / Public Authority.
ix. The CIC is empowered to impose penalty on CPIO as per provisions of Section 20 (1) of RTI Act, 2005 or / and recommend disciplinary action against CPIO as per provisions of Section 18 (2) of RTI Act, 2005.
x. The CIC is not empowered to take any action against any citizen for filing Application, Complaint, Appeal and Second Appeal under the provisions of the RTI Act, 2005.
xi. The incompetence of the then CPIO, is also apparent from the fact that she has not gone through the Preamble of RTI Act, 2005 which justifies the enactment of the RTI Act, 2005 stating, inter alia, therein "The Constitution of India has established democratic Republic and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed and therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it."
xii. The CPIO or any other person acting as CPIO / FAA is not the Department. They cannot act as an advocate for any person. They have to act as per mandate and provisions of the RTI Act, 2005. It is apparent from the RTI Act, 2005 that seeking of information by citizen, who is also a responsible public officer, has nothing to do with whimsical observation of the then CPIO who is malafidely alleging that "Applicant/Appellant s attempting to settle personal score against the Department by misusing the RTI Act for his personal interest and vendetta."
Aforesaid allegation is nothing, but an attempt to circumvent the core issue by deviating the attention of this Hon'ble Commission. Following facts would clarify the position:
xiii. Section 6 (2) of the Act provides that an Applicant making request for information shall not be required to give any reason for requesting the information. However, it is respectfully submitted that the Applicant/Appellant is not having any personal vendetta against the Department, because the Department is not a person. Exercising the Right to Information by the Applicant/Appellant can by no stretch of imagination be stated as an attempt to settle personal score against the Department for personal vendetta.
xiv. The Written Submissions / Reply is not only devoid of any merit, but a compilation of factually incorrect, misleading, malicious and defamatory contents with an intention to malign the image of Applicant/Appellant before the Hon'ble CIC who has nothing to do with citizens filing Applications, Appeals, Complaints under RTI Act, 2005. The malicious 13 conclusion drawn by the then CPIO shows her desperation / and frustration in pointing fingers towards the Applicant/Appellant without even going through the basic provisions of the Act.
2. The information sought at Point Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are well within of definition of 'Information' prescribed in Section 2 (f) of RTI Act, 2005 which reads as under:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
3. Moreover, the information sought are not exempted under Section 8 and 9 of the RTI Act, 2005 because:
i. No Vigilance Inquiry has ever been initiated against the Applicant/Appellant, as wrongly and maliciously alleged by CPIO. Issuance of Show Cause Notice is an essential prerequisite of initiation of any Vigilance Inquiry against Government Servants. However, no such Show Cause Notice has ever been served to the Applicant/Appellant till date and a Vigilance Clearance Certificate (copy attached) has also been issued by the competent authority on 24.11.2022 paving way for credit of Rs. 90,000/- as Reward on 04.03.2023. Said certificate has been issued after filing the RTI Application and the CPIO is supposed to know the consequences of making false statements before quasi-judicial authority like Hon'ble CIC.
ii. The information is not relating to personal information of any person, but the information is directly relating to functioning of public authority. The information is directly relating to public activity and interest and it will, by no way cause any unwarranted invasion of the privacy of the individual.
The CPIO/FAA failed to examine that larger public interest justifies the disclosure of such information.
In addition, it is respectfully submitted that CPIO/FAA failed to examine that the since information sought by the Applicant/Appellant cannot be denied to the Parliament or a State Legislature and for same reason the same cannot be denied to any person, including the Applicant/Appellant herein.
iii. The disclosure of information would not endanger, the life or physical safety of any person and disclosure of information would not identify the source of information or assistance given in confidence for law enforcement or security purposes.14
iv. It is a settled position of law that CPIO/FAA cannot deny the information by merely citing / referring to provisions of Section 8 of the RTI Act, 2005. They have to justify that the denial of information under any sub-section of Section 8 of the RTI Act, 2005 is just, fair and reasonable. However, the CPIO/FAA miserably failed to do so. The case law relied upon by CPIO are not relevant in the matter as facts of same are distinguishable.
xxx
5. The Applicant/Appellant has nowhere claimed of any privileges of Government Servant for seeking information. The RTI Act, 2005 does not discriminate amongst citizens of India, and creating a separate category of Government Servants only to restrict their rights as citizen & prevent dissemination of information is not at all supported by the Act. Moreover, the subordinate officers of the then CPIO also treat the Applicant/Appellant as an Indian citizen and not any senior/equivalent officer to them as the Applicant/Appellant is always referred by them as 'Gentleman' in all mail correspondences (copy attached). So, the stand taken by the then CPIO to brand the Applicant/Appellant as Government Servant is for the limited purpose of claiming superiority & causing harassment even while dealing with RTI Application.
6. The then CPIO has wrongly alleged the Applicant/Appellant of showing disregard for the functions of the public authority, and disrespect for the Act enacted by the Parliament for use of the expression 'as expeditiously as possible'. In this regard, it may be noted that the said wordings are not the imagination of the Applicant/Appellant, but mandate provided u/S. 7 of the Act itself. The conclusion drawn by the then CPIO shows her desperation in pointing fingers towards the Applicant/Appellant without even going through the Act.
7. The CPIO has miserably failed to understand that Section 2 is a definition clause, only to define the words used in the Act at various places. Section 2 (f) cannot be quoted to seek exemption from disclosure of information or rejection of request. Once information is sought under the RTI Act, 2005, the CPIO is left with only two options i.e. supply of information under Section 7 or seek exemption from disclosure of information under Section 8 and/or rejection of request under Section 9 of the Act. The legislature has, in its own wisdom, not given any other discretion to the CPIO to carve-out any new exemption through her own imagination. Mere quoting of Section 2 (f) by the CPIO to deny information is not at all supported by any of the provisions of the RTI Act, 2005 and shows utter disrespect of an Act of Parliament by the CPIO. Various judgments given by the Hon'ble Courts of Law also contradict and criticise such stands taken by the CPIOs. The response made by the CPIO shows her desperate attempt to justify the wrong doings in decision making process and that's the precise reason of denying inspection as well. In the later part of this submission, relevant judgment especially dealing with Section 2 (f) of the RTI Act, 2005 have been elaborated.15
8. The then CPIO has time & again contended that the Applicant/Appellant is part of information provider and he could have sought information pertaining to his case which would have been provided. The contention of the then CPIO is utterly misleading & far from the truth, as the Applicant/Appellant has submitted a number of Representations to the competent authority for necessary action. No communication in r/o. the said Representations has been received till date.
9. In fact, it is apt to bring before kind attention of the Hon'ble Commission the injustices being meted out to the Applicant/Appellant at the hands of the administration. Very recently, the undersigned again submitted a Representation on 15.03.2023 regarding "A Request to Re-consider the Earlier Decision on Denying Sensitive Posting to the Undersigned, Causing Insinuations about His Capability and Integrity thereby Damaging His Reputation" to his controlling officer for further submission to the competent authority. Even after making numerous requests through letter as well as messages on WhatsApp, the said Representation was not forwarded to the competent authority till 17.04.2023. Ultimately, the Applicant/Appellant was constrained to submit an Advance Copy (copy attached) to the competent authority on 17.04.2023, and after passing of more than a month since then, the Applicant/Appellant has not been informed about the fate of the said Representation till date. All means of securing attention or redress from lower authorities have been duly tried and exhausted.
10. The then CPIO has wrongly & maliciously claimed of some pending Vigilance Inquiry because even after passing of months since filing of RTI Application on 07.08.2022, the Applicant/Appellant has not been given even a Memo/SCN. Plea by the then CPIO to get a direction from the Hon'ble Commission u/S. 18 (2) for another Inquiry against the Applicant/Appellant is nothing, but another attempt to delay the due benefits to him. It is worthy to put up on record that the Applicant/Appellant has been given 'Excellent/Outstanding' grade in Annual Performance Appraisal Reports (APAR) since 2009 to 2022 without any break. Moreover, the OM dated 01.01.2020 (copy attached) issued by the Central Board of Indirect Taxes & Customs (CBIC) itself lays down three conditions viz. issuance of chargesheet, suspension and prosecution for not granting Vigilance Clearance. In view of the factual and legal position, it is obvious that the undersigned has been arbitrarily and unreasonably singled out for harassment for no fault of his and the then CPIO has been trying to cover up those misdeeds.
11. The then CPIO has wrongly alleged the Applicant/Appellant for seeking information just to quench his personal vendetta. The Applicant/Appellant after submission of a number of Representations was forced to resort to RTI Act, 2005 to get his due benefits. In fact, it was the vendetta of the then CPIO towards the Applicant/Appellant in playing an instrumental role in denying due benefits to the Appellant. A Representation (copy attached) to this effect was submitted to the competent authority on 17.11.2022.16
12. The then CPIO has wrongly alleged of involvement of the Applicant/Appellant in intimidation of his colleagues and senior officers through various forums like RTI. The allegation is totally unfounded, baseless and defamatory in nature. The Commission may itself verify the number of RTI Applications filed by the Applicant/Appellant and the indication towards 'other forum' is ambiguous & malicious.
13. Case Laws relied upon by the CPIO are not applicable in the facts of the present case and the one Dr. K.C. Vijaykumaran Nair Vs. Department of Posts which has been emphatically relied upon by the CPIO has already been over ruled by this Hon'ble Commission in Manju v. PIO, Department of Posts in 2017. The Hon'ble Supreme Court of India in the case of Khanapuram Gandaiah versus Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 of 2009 has itself held that "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...."
In CBSE v. Aditya Bandopadhyay & Ors. (2011) 8 SCC 497, the Hon'ble Supreme Court of India has itself held that "If a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act." Further, the case of Bidhan Chandra Das versus PIO, Department of Posts has been referred to make out a case for initiation of Inquiry against the Applicant/Appellant, but the then CPIO failed to take into cognizance that this Hon'ble CIC in its Order dated 14.06.2017 in Second Appeal No. CIC/POSTS/A/2017/130777 titled as Manju v. PIO, Department of Posts (copy attached) has held as under:
"17. The decision of employer can be questioned by labour in Labour Court through Assistant Labour Commissioner. An employee of State Government can challenge decision of employer/superior in State Administrative Tribunal. Similarly, the employee of Central Government can question the decision before the CAT (Central Administration Tribunal). Every employee has freedom of speech and expression under the Constitution, at par with every citizen. Seeking information cannot be equated with the challenging the decision. If the decision of any authority is illegal or improper, everybody who is affected by it can challenge it in a letter, complaint, criticize it in association of employees or during the negotiations with officers. Especially when fundamental rights of a person are affected by the employer or superior officer, the employee can straight away challenge it before any High Court or the Supreme Court under Articles 226 and 32.
18. The Supreme Court recognized the right of a subordinate officer to seek review of adverse remarks made by the senior in his Annual Confidential Reports. He can even challenge the decisions of employer like transfer or denial of seniority or promotion or unjustified punishment in disciplinary action etc. Hence, the Commission rejects the contention of CPIO that public authority has authority to deny the RTI of its employee simply because he was an employee.17
19. It is also necessary to analyse the contention of the CPIO based on the order of the CIC, cited above. The order of the CIC is binding on parties as per the Section 19(7) of the RTI Act, 2005 says: "The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding." However, parties can challenge the order of the Commission under writ jurisdiction of Constitutional Courts. In the absence of such a challenge, they have to comply with the directions of the CIC order. At the same time, the CPIO should know that such an Order of CIC will not bind all parties for all times to come like precedent created by the Supreme Court or High Court. The order of the CIC or SIC in particular context is limited to that context only, and it can be cited or followed in similar contexts also. However, each CIC or SIC is independent and free to evaluate the disclosability of the information sought based on RTI Act, Constitution of India and any other relevant law. If the previous order of CIC on similar context is not in accordance with RTI Act or Constitution or any other law including the judgment of Constitutional Courts, it can be ignored. Generally, the order of CIC will certainly have a persuasive value in similar cases if it is well reasoned, based on RTI Act, legally tenable and logically correct. Judicial discipline demands that the order by a larger Bench of the Information Commission shall bind the other Commissioners. But if such an order is against the law, especially the provisions of the RTI Act, the individual Commissioner is not bound by the same. Moreover, if the facts differ from the context in which such an order was passed, the Commissioner is at liberty to take a reasoned decision."
14. On the contrary, the judgment of the Hon'ble High Court of Madras in [Ravi v. The Commissioner (Personal Assistant) & Ors. W.P(MD)No.16335 of 2021] has a binding precedent wherein the Hon'ble High Court dealing particularly upon the ambit & scope of Section 2 (f) of the RTI Act, 2005 held that "Upon examining the impugned order, it is evident that the first respondent has referred to section 2(f) of the Right to Information Act. Section 2(f) contains the definition of information. An authority, including an appellate authority, which receives a request for information under the Right to Information Act, is under an obligation to consider such request and either provide the information requested or indicate cogent reasons in accordance with the Right to Information Act for the refusal to provide such information. In particular, a request for information may be denied on grounds sets out in section 8 of the aforesaid enactment. In addition, if the information relates to a third party, the procedure prescribed in section 11 of the enactment should be followed. In the case at hand, the impugned order merely refers to and set out the definition of information under section 2(f). Therefore, the impugned order is an unreasoned order, which is unsustainable."
15. Similarly, coming down heavily over the senior officers & the CPIO for their attitude of prevention of dissemination of information and harassment of information seekers, the Hon'ble High Court of Delhi in [Mujibur Rehman versus Central Information 18 Commission W.P. (C) 3845/2007 Decided on 28.04.2009] held that "this 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 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."
16. The detailed grounds submitted in the Second Appeal are once again reiterated as the then CPIO has failed to address the same in a logical manner except for some pick & choose to cast aspersions over the Applicant/Appellant..."
Decision:
The Commission upon a perusal of records observes that through the impugned RTI Application the Appellant has sought for humungous information which majorly does not conform to Section 2 (f) of RTI Act and and also appears to be voluminous in nature, collation and compilation of which would entail diversion of manpower resources of the Public Authority and thus, cannot be provided in view of Section 7(9) of RTI Act. The same can be garnered from the relevant provisions of Section 7(9) of RTI Act which is reproduced below for ready reference -
"...7. Disposal of request.--
xxx (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question..."
It also appears that the Appellant has grossly misconceived the idea of exercising his Right to Information as being absolute and unconditional. It is rather unfortunate that even the best of intentions have to not only stand the test of procedural requirements and fetters laid down in the RTI Act but also stand the test of practicality, a notion well recognised by superior Courts through various judgments such as the Hon'ble Supreme Court's observation in Central Board of 19 Secondary Education (CBSE) & Anr. v. Aditya Bandhopadhyay and others [(2011) 8 SCC 497] stating that:
"37. xxxxx The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."(Emphasis Supplied)......."
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity relevant provision of Section 2(f) of RTI Act is reproduced below:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;.."
In this regard, the CPIO is in agreement with the citations quoted by the CPIO and would also like to invite Appellant's attention towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which 20 require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....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...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done 21 in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied Nonetheless, the point wise reply furnished by the CPIO to assist the Appellant is in the spirit of RTI, merits of which cannot be called into question.
In view of the above, no further relief can be granted in the matter. However, the Appellant is advised to make judicious use of his right to information in future.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 22