Central Information Commission
Vipin Sharma vs Central Board Of Secondary Education on 30 January, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली - 110067
Munirka, New Delhi-110067
Decision no.: CIC/CBSED/C/2018/150864/02754
File no.: CIC/CBSED/C/2018/150864
In the matter of:
Vipin Sharma
...Complainant
VS
Central Public Information Officer
Central Board of Secondary Education (CBSE)
Shiksha Kendra - 2, Community Centre,
Preet Vihar, Delhi - 110 092
...Respondent
RTI application filed on : 12/06/2018 CPIO replied on : 13/07/2018 First appeal filed on : Not on record First Appellate Authority order : Not on record Complaint filed on : 16/08/2018 Date of Hearing : 15/01/2020, 29/01/2020 Date of Decision : 15/01/2020, 29/01/2020 The following were present: Complainant: Present over VC
Respondent: Shri Dinesh Ram, Assistant Secretary (Coord) and CPIO, present in person Information Sought:
The complainant has sought the following information:
1. Certified copies of the answer sheets of subject English Core (301), Physics (042), Mathematics (041), Chemistry (043), Hindi Core (302) and Physical Education (048) in respect of Roll No. 5613339 (Class XII, Year 2018) School No. 08973 Centre No. 5027.
2. Certified copies of the answer key of Series SGN Subject English Core (301) set-3, code No. 1/3, Physics (042), set-3, code No. 55/3, Mathematics (041) set-1
3, code No. 65/3, Chemistry (043) set-3, code No. 56/3 and Hindi Core (302) set-3, code No. 2/3, Physical Education (048) set-4, code No. 75.
Grounds for filing complaint The CPIO did not provide the desired information.
Submissions made by Complainant and Respondent during Hearing:
The complainant submitted that he is aggrieved with the reply of the CPIO as the RTI application was returned despite filing of the IPO as per the RTI Rules. Moreover, he was not aware of the authority in whose name the IPO should have been drawn in CBSE.
The CPIO submitted that in the website of CBSE the details of the authority to whom IPO is payable is mentioned. Moreover, the RTI application was received on 09.07.2018 and an apt reply was provided on 13.07.2018 guiding the appellant to draw an IPO in favour of Secretary CBSE. He further submitted that Secretary CBSE is the Accounts Head and IPO in favour of Accounts officer could not be encashed due to non availability of accounts. Observations:
Based on a perusal of the record it was found imperative to discuss the provisions for payment of RTI fee. Rule 6 of the RTI Rules 2012 reads as follows:
"6. Mode of Payment of fee.--Fees under these rules may be paid in any of the following manner, namely:--
(b) by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority; "
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the information sought was related to answer sheets and answer key of a student.
As regards the submission of the Respondent that the RTI fee was required to be paid by way of an IPO in favour of Secretary, CBSE and not the Accounts Officer, no satisfactory response was provided regarding the rule/ regulation/ guidelines specifically framed in this regard for RTI matters. In the absence of any such regulation/ bye law being highlighted by the Respondent present during the hearing, the question of CBSE's regulations prevailing over the rules made under the RTI Act, 2005 does not arise at all. Rule 6 (2) of the RTI Rules, 2012 clearly stipulates that Fees under the Rules may be paid in any of the following manner, namely:- (b) by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority.2
File no.: CIC/CBSED/C/2018/150864 Furthermore, the OM issued by the DoP&T dated 05.12.2008 specifically addresses the issues raised in the instant matter. The relevant extract of the OM is as under:
"Refusal to accept an application on the ground that the demand draft/ banker's cheque/ IPO submitted by the applicant has been drawn in the name of the Accounts Officer may amount to refusal to accept the application. It may result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer under Section 20 of the Act. All the public authorities should therefore ensure that payment of fee by demand draft/ banker's cheque/ IPO made payable to the Accounts Officer of the public authority is not denied."
Moreover, as regards the plea taken by the Respondent regarding non- submission of fees in the prescribed mode, the Commission referred to the judgement of the Hon'ble Delhi High Court in the matter of Union of India vs. Vansh Sharad Gupta in W.P(C) 4761/2016 wherein it was held that the technical approach undertaken by the Public Authorities for not filing the RTI application in a prescribed form and with the RTI fees could not be allowed to come in the way of substantial justice. The relevant observations made in the judgement are as under:
"3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.
4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"3
Interim Decision:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission observes that ignorance of the provisions of Rule 6 of the RTI Rules 2012 by the CPIO resulted in denial of information to the complainant. The CPIO's conduct in returning the RTI application and denying the information and that too contrary to the prescribed rules under the RTI Act amounts to gross violation of the provisions of RTI Act. In view of this, the Commission directs the then CPIO Smt. Rama Sharma to appear before the bench on 29.01.2019 at 12.30 pm to show cause as to why action should not be initiated against her under Section 20(1) and (2) of the RTI Act. The then CPIO is also directed to send a copy of all supporting documents upon which she chooses to rely during the hearing. The said documents be sent to the Commission at least two days prior to the hearing via linkpaper. If any other persons are responsible for the said omission, the then CPIO shall serve a copy of this order on such persons to direct their presence before the bench as well.
Shri Dinesh Ram, Assistant Secretary (Coord) and CPIO shall serve a copy of this order to the then CPIO Smt. Rama Sharma to appear for the showcause explanation. He shall ensure that the then CPIO appears for the showcause hearing without fail.
The case is adjourned accordingly.
Date of Hearing : 29/01/2020 The following were present:
Respondent: Smt. Rama Sharma Head (Media & public relation) / Nodal Officer (RTI), present in person Submissions made by Respondent during Hearing:
The then CPIO submitted a copy of the record of total number of RTI applications received and submitted that they received a total 3586 RTI applications since 01.06.2018 out of which 861 applications were received offline. She also stated that as per record there were 14 applicants whose RTI 4 applications were returned due to incorrect IPO and they had submitted the correct IPO as per request.
She also submitted a certificate from the DDO, CBSE Headquarter dated 24.01.2020 which reads as follows:
" The matters of "Receipt of the Board Revenues and their credit to CBSE Account" are governed under the Financial Manual 2000 of the Board which is approved by the Governing Body, the apex decision making body of the Board. The Financial Manual of the Board stipulates in clause 1.4.2 that, "All the income received by the Board either directly by the Regional offices or by the Headquarters office stands credited to the official account of the Secretary, C.B.S.E., in the Accredited Bank. As such, the Board has an account in the name of Secretary, CBSE only and all types of receipts and payments of the board including RTI applications are made through this account."
Furthermore, she submitted that the applicant sent an offline application dated 12.06.2018 to CBSE headquarters for obtaining information under the Right to Information Act, which was received by the Board on 09.07.2018. The applicant asked for the certified copies of Answer Sheet and Answer Key/Marking Scheme of 2018. The case pertained to CBSE Regional Office Allahabad as the candidate had appeared from a school under the jurisdiction of RO Allahabad. An IPO of Rs. 10 /- was attached to his application dated 12.06.2018 in the name of Accounts Officer in lieu of fee. Since the RTI application was offline Shri Vipin Sharma was made aware about the extant rules of the Board promptly vide letter dated 13.07.2018 with a request to deposit fee in favour of " Secretary, CBSE" as per Board's rules to register the offline application so that available information could be given. It was also brought to the notice of the applicant that he could also apply through online mode at the central portal where this condition did not exist. The applicant sent another letter on 01.08.2018 which was received in the board on 07.08.2018. The Board again made the applicant aware about the inability to register the application due to non-submission of fee as per extant rules of the Board and requested him vide letter dated 16.08.2018 to deposit Rs. 10/- in the name of the Secretary to enable the Board to take action for supply of information. The applicant was again informed that he could also apply through online mode at the central portal where this condition did not exist. She further submitted that the applicant was also contacted several times by the Assistant, PR Unit on phone number XXXXX24766 and was again requested 5 to complete the RTI application process, informing the applicant of the Board's rules. The Board could not get the desired fee or co-operation from the applicant even after multiple requests. The matter of "Receipt of the Board Revenues and their credit to Board's Account" are governed under the Financial Manual of the Board which is approved by the governing body, the apex decision making body of CBSE. The Financial Manual of the Board stipulated in clause 1.4.2 that, " All the income received by the Board either directly by the Regional Officer or by the Headquarters office stands credited to the official accounts of the Secretary, C.B.S.E, in the Accredited Bank" A copy of the same was submitted by her. Accordingly as per Board's rules and regulations, the Board has an account in the name of Secretary, CBSE only and all types of receipts and payments of the board including RTI applications are made through this account. She also submitted that different types of fee by the school candidates and all other stakeholders for the purpose of affiliation, duplicate copy of class XI, XII Mark Sheet or Certificates registration fee, private candidates fee, fees for professional exams etc. are also payable to the Board's account in the name of Secretary, CBSE. There are more than 22 thousand schools being looked after by CBSE in India and 25 countries. CBSE has 16 Regional Officers spread across the country and has proactively made its internal systems and procedure online and e- office has been implemented and is utilized by the applicants including for RTI. The board has implemented the RTI Act 2005 in letter and spirit, while all online applications are received through the candidates RTI portal and accepted as mandated, offline applications with accompanying fee are requested to apply online or to make payment in the name of Secretary CBSE under the rules of the board. She drew the attention of the Commission to the fact that at no stage has the Board denied information to the applicant. She also placed on record that the Board receives offline RTI requests with IPOs in different names and duly makes correspondence with the applicants in such cases through similar letters as sent to the applicant and always provides information after getting revised IPOs as per procedure of the Board. Furthermore, she pointed out that the rules and regulations structured by the Board are binding on its employees. She has been designated as a Nodal Officer (RTI) to monitor RTI applications at HQ while 27 CPIOs, Appellate Authorities and 26 Link Officer handle RTI Applications across 16 offices of CBSE in India. As such, the Board takes up each RTI application readily and makes all efforts to provide information without any bias. She further submitted that she and the staff have made all 6 File no.: CIC/CBSED/C/2018/150864 possible communications with Shri Vipin Sharma and gave him all feasible support and information by even connecting personally with him to clarify their rule position and facilitate him in getting the desired information in time. She further relied on the decision of the Commission in the case of Randhir Singh Nehra vs CBSE ( Decision No. CIC/CBSED/A2018/124438 dated 01 May 2019 ) clearly stating that "the CPIO shall provide the reply subject to the appellant's filing of correct IPO addressed to " Secretary CBSE " along with the RTI application within 15 days.
She summed up stating that CBSE is a student friendly Board and works with utmost transparency. It imparts several services to the students including free of cost tele-counselling services and other public outreach programs. The information asked by the applicant about the Answer KEY/marking Scheme of different Question Papers of 2018 was also available on CBSE website in public domain free of cost at link http://cbse.nic.in/newsite/examination.html. From these facts, she requested the Commission to assess that the Board was always willing to provide information to the applicant and he was never denied information. In addition to communications with the applicant, the applicant was even personally contacted to facilitate him in getting the desired information in time and also to clarify the rule position keeping in view the interest of the student while giving him all available options for filing the RTI application. As the matter belonged to RO Allahabad, he was also guided over phone to file RTI at RO Allahabad offline or online to save his time. It is evident that the matter was constantly pursued by the Board with all possible support and information to the applicant with the inclination of providing him information. Despite the Board's genuine efforts he did not cooperate to even revise the fee details and register the offline application nor took the other option of filing online so that desired information could be provided to him in time.
Observations:
At the outset, the Commission finds it relevant to peruse the order of the same bench of dated 01.05.2019 in case no. CIC/CBSED/A/2018/124438, where it was held as follows:
"The PIO submitted that IPO was not drawn in favour of the proper authority i.e "Secretary CBSE". She further submitted that the appellant 7 was intimated of the same on 29.12.2017. She also submitted that no first appeal was received by them after the reply.
The appellant submitted that the reply was not received. Hence, he could not submit the corrected IPO; he further requested for liberty to submit the correct IPO.
Observations:
From a close scrutiny of the RTI application dated 21.12.2017, it was noted that appellant mentioned his previous postal address in the RTI application. Accordingly, the reply dated 29.12.2017 of the CPIO was also sent to the same address. However, when the first appeal was filed on 02.02.2018, the appellant mentioned his present postal address. Due to this it appears that, the reply might have been returned undelivered. Further, the first appeal was not received by the FAA as per the CPIO's submission during hearing, hence the matter remain unresolved. Decision:
Keeping in view the above circumstances, the Commission finds it appropriate to direct the CPIO to provide information as available on record in respect of points 2 to 12 after obliterating any personal information u/s 10 of the RTI Act. In respect of point 1 only the status can be given , the rest being hypothetical ,is not covered u/s 2(f) of the RTI Act. The CPIO shall provide the reply subject to the appellant's filing of correct IPO addressed to "Secretary CBSE" alongwith the RTI application, within 15 days from the receipt of the order. A compliance report relating to the same shall be submitted to the Commission thereafter."
It is relevant to mention here that the appellant in the above case had not contested the CPIO reply but submitted that the reply was not received and hence the corrected IPO could not be submitted and in the light of that fact, the Commission held that the CPIO shall provide the reply subject to the appellant's filing of correct IPO addressed to "Secretary CBSE" alongwith the RTI application. The same cannot be construed as the Commission accepting the prevalence of CBSE extant rules over the RTI Rules 2012. The facts in the instant case are different; the complainant in the present case had legally submitted the correct IPO by addressing it in favour of "Accounts Officer" which is in conformity with Rule 6 (2) of the RTI Rules, 2012. Moreover, after the communication of the reply dated 13.07.2018, the complainant had objected vide letter dated 01.08.2018 which was received in 8 File no.: CIC/CBSED/C/2018/150864 the Board on 07.08.2018. The Board again made the applicant aware about the inability to register the application due to non-submission of fee as per extant rules of the Board and requested him vide letter dated 16.08.2018 to deposit Rs. 10/- in the name of the Secretary in lieu of the application fee to enable the Board to take action for supply of information.
In view of the above contentions of the CPIO, the Coordinate bench had already made observations vide its order dated 05.12.2018 in case no. CIC/CBSED/A/2017/176040-BJ. Reference is drawn to the same. The relevant paras read as follows:
"As regards the submission of the Respondent that the RTI Fee was required to be paid by way of an IPO in favour of Secretary, CBSE and not the Accounts Officer, no satisfactory response was provided regarding the rule/ regulation/ guidelines specifically framed in this regard for RTI matters. In the absence of any such regulation/ bye law being highlighted by the Respondent present during the hearing, the question of CBSEs regulations prevailing over the rules made under the RTI Act, 2005 does not arise at all. Rule 6 (2) of the RTI Rules, 2012 clearly stipulates that Fees under the Rules may be paid in any of the following manner, namely:-(b) by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority. Furthermore, the OM issued by the DoP&T dated 05.12.2008 specifically addresses the issues raised in the instant matter. The relevant extract of the OM is as under:
"Refusal to accept an application on the ground that the demand draft/ banker's cheque/ IPO submitted by the applicant has been drawn in the name of the Accounts Officer may amount to refusal to accept the application. It may result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer under Section 20 of the Act. All the public authorities should therefore ensure that payment of fee by demand draft/ banker's cheque/ IPO made payable to the Accounts Officer of the public authority is not denied."
Moreover, as regards the plea taken by the Respondent regarding non- submission of fees in the prescribed mode, the Commission referred to the judgement of the Hon'ble Delhi High Court in the matter of Union of 9 India vs. Vansh Sharad Gupta in W.P(C) 4761/2016 wherein it was held that the technical approach undertaken by the Public Authorities for not filing the RTI application in a prescribed form and with the RTI fees could not be allowed in the way of substantial justice. The relevant observations made in the judgement are as under:
"3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.
4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Respondent to provide point wise information to the Appellant and update the details of the authority to whom the IPO should be addressed as per the provisions of the RTI Rules, 2012 and DoP&T's notification dated 05.12.2008 within a period of 15 days from the date of receipt of this order.
The CPIO is however, cautioned to exercise due care in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings under Section 20 shall be initiated The Appeal stands disposed accordingly."
In view of the above highlighted paras it is crystal clear that the CBSE authority was directed to update the details of the authority to whom the IPO should be addressed as per the provisions of the RTI Rules, 2012 and DoP&T's notification dated 05.12.2008 within a period of 15 days from the date of receipt of the order dated 05.12.2018. On a query by the Commission during hearing, the CPIO was clueless as to the reason for not implementing the order of the Commission dated 05.12.2018 and taking the same stand that the IPO should be addressed in favour of the "Secretary CBSE".10
File no.: CIC/CBSED/C/2018/150864 It is also pertinent to mention here that the order dated 01.05.2019 of the same bench was not regarding applicability of RTI Rules or CBSE Extant Rules. There are various public authorities who are having Accounts Head in different names which is a policy decision and the Commission cannot intervene. However, as a CPIO it is the primary duty of the concerned officer to ensure that the reply provided under the Act is in compliance of the RTI Act and the RTI Rules. It shows the attitude of the CPIO in obstructing the information. Reference is also drawn to order dated 05.12.2018 in case no. CIC/CBSED/A/2017/176040-BJ, following paras where order of the Hon'ble Delhi High Court was relied upon:
"Moreover, as regards the plea taken by the Respondent regarding non- submission of fees in the prescribed mode, the Commission referred to the judgement of the Hon'ble Delhi High Court in the matter of Union of India vs. Vansh Sharad Gupta in W.P(C) 4761/2016 wherein it was held that the technical approach undertaken by the Public Authorities for not filing the RTI application in a prescribed form and with the RTI fees could not be allowed in the way of substantial justice. The relevant observations made in the judgement are as under:
"3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.
4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"
The information sought in point no. 2 i.e the answer key was available in the website as per the CPIO's written submission. However, the sensitivity in depriving the complainant from receiving the answer sheets for Class XII examination of the year 2018 cannot be overlooked. As on date, the status 11 remains the same. In view of this, the Commission, contacting the complainant over phone, following the financial manual and guiding him to file online RTI application is of no use. The fact remains that the complainant was deprived of his right to information. Had the IPO been addressed/drawn in favour of any other officer, the Commission could have accepted the reply that the same should be addressed to Secretary, CBSE. But it was drawn in favour of "Accounts Officer" and is in conformity with the RTI law.
Final Decision:
In view of the above discussions, the Commission is constrained to impose a token penalty of Rs 2000 on the then CPIO, Smt Rama Sharma for refusing to accept the RTI fee without any reasonable cause, and for causing obstruction of information.
The same shall be deducted in 2 equal instalments from the salary of Smt Rama Sharma w.e.f. March 2020.
Shri Anurag Tripathi, Secretary, CBSE, Government of India shall comply with the above penalty order and remit the same by way of demand draft drawn in favour of 'PAO CAT' New Delhi in 2 equal monthly instalments. The first instalment should reach the Commission by 10.03.2020 and the last instalment should reach by 10.04.2020. The Demand Draft should be sent to Deputy Registrar (CR-II), e-mail ;[email protected] Room no. 106, First Floor, Central Information Commission, Baba Gangnath Marg, Munirka, New Delhi-110067. An advisory is issued u/s 25(5) of the RTI Act to the Chairperson, CBSE to take cognizance of the order dated 05.12.2018 of the Commission and take immediate steps for compliance to avoid such instances from being repeated. This change may be made applicable solely for the purpose of RTI applications as per the RTI Act and Rules on this subject.
The complaint is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) 12 File no.: CIC/CBSED/C/2018/150864 Authenticated true copy (अिभ मा णत स या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date Copy to:
Chairperson, CBSE Central Board of Secondary Education (CBSE) Shiksha Kendra - 2, Community Centre, Preet Vihar, Delhi - 110 092 Secretary, CBSE Central Board of Secondary Education (CBSE) Shiksha Kendra - 2, Community Centre, Preet Vihar, Delhi - 110 092 13