BY REGISTERED POST
Right to Information
Act, 2005
Second Appeal No.
[For Office Use only]
* * * * * * * *
INDEX OF SECOND APPEAL
|
S No.
|
Subject
|
Dated of origin
|
Annexure
|
Page(s) Number(s)
|
|
1
|
Index of Second Appeal
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-
|
-
|
1
|
|
2
|
Second Appeal
|
|
-
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1-8
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3
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RTI application No. DOP&T/R/2019/51717
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27.3.2019
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A
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9
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4
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Reply of CPIO vide F No. 407/01/2019-AVD-IC(LP)
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23.4.2019
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B
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10-12
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5
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First Appeal No. DOP&T/A/2019/60366
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24.4.2019
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C
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13-14
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6
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Order of FAA vide F No. 407/-1/2019-AVD-IV (LP) received online
on 24.5.2019
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22.5.2019
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D
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15-18
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Place: Bengaluru -
560038
Date: 1st June 2019 (S.
Y. SAVUR)
Name of the applicant/Appellant
* * * * * * *
The Right to
Information Act, 2005
Second Appeal before
Central Information Commission
Submitted under Section
19 (1),
(8) (a) (iv), (b) of
the Right to Information Act -2005
1. Name and Address of the Appellant: S Y
Savur, 141 Jal Vayu Towers, NGEF Layout,
Indira Nagar (PO), Bengaluru - 560038
2. Name and address of the Central Public
Information Officer to whom the application was addressed: - Shri Anil Bajpai, Under Secretary & CPIO,
Dept of Personnel & Training, Ministry of Personnel, Public Grievance &
Pensions, Govt of India, North Block, New Delhi - 110001
3. Name and address of the Central Public
Information Officer who gave reply to the application: - Shri Anil Bajpai,
Under Secretary & CPIO, Dept of Personnel & Training, Ministry of
Personnel, Public Grievance & Pensions, Govt of India, North Block, New
Delhi - 110001
4. Name & address of the First Appellate
Authority Appeal: - Shri Anurag Sharma, Deputy Secretary & First
Appellate Authority (FAA), Dept of Personnel & Training, Ministry of
Personnel, Public Grievance & Pensions, Govt of India, North Block, New
Delhi - 110001
5. Name & address of the First Appellate
Authority Appeal who passed order on the appeal: - Shri Anurag Sharma,
Deputy Secretary & First Appellate Authority, Dept of Personnel &
Training, Ministry of Personnel, Public Grievance & Pensions, Govt of
India, North Block, New Delhi - 110001
6. Particulars of the application, including
number and date, name and address of CPIO and to whom the application was made:
- RTI Online Application number
DOP&T/R/2019/51717 dated 27.3.2019 (Annexure
A) to Shri Anil Bajpai, Under Secretary & CPIO, Dept of Personnel &
Training, Ministry of Personnel, Public Grievance & Pensions, Govt of
India, North Block, New Delhi - 110001
7. Particulars of the First Appeal, including number and date,
name and address of FAA to whom the First appeal were made: - RTI Online
First Appeal No. DOP&T/A/2019/60366 dated 24.4.2019 Shri Anurag Sharma,
Deputy Secretary & First Appellate Authority, , Dept of Personnel & Training, Ministry
of Personnel, Public Grievance & Pensions, Govt of India, North Block, New
Delhi - 110001
8. Particulars of the Reply including number,
if any, against which the appeal is preferred
(a) Under Secretary
& CPIO, DoP&T, Reply vide F No. F No. 407/01/2019-AVD-IC(LP) dated
23.4.2019
(b) Deputy Secretary
& FAA, DOP&T, Order vide F No. 407/01/2019-AVD-IC(LP) dated 22.5.2019 received online on 24.5.2019
9. Brief Facts leading to Second Appeal in DOP&T/R/2019/51717
and DOP&T/A/2019/60366
9.1. RTI Application No. DOP&T/R/2019/51717:
As a public spirited, law abiding senior citizen and Armed Forces Veteran
who retired at the level equivalent to a Secretary to the Govt of India, this
applicant/appellant has been following the case(s) filed in the honourable
Supreme Court in the matter of inordinate delay by the Govt of India in
appointing the Lokpal and Lok Ayuktas. When finally the matter was resolved, by
the GoI giving its action taken report to the honourable Court, the undersigned
decided to file a RTI request to learn about and understand the process by
which the Lokpal and Members of the Lokpal were appointed. Therefore, as
allowed by Section 2 (f) of the RTI Act, 2005, the undersigned sought
information (Please refer to Annexure A) including file notings that preceded
the appointments by the Govt of India. However, the CPIO denied the information
(Please refer to Annexure B) citing
and attaching an order of the honourable Supreme Court in Contempt Petition No.
714 of 2018 by citing a passage from the order viz.
“…for putting the
names recommended by the Search Committee in the public domain is concerned, we
have considered the provisions of Section 4 (4) of the Act and it is our
considered view that no direction from the Court should be issued in this
regard…”
9.1.1. Section 4 (4) of the
Lokpal & Lokayuktas Act 2013 reads as follows: -
“(4) The Selection
Committee shall regulate its own procedure in a transparent manner for
selecting the Chairperson and Members of the Lokpal.
On plain reading of the above section, it would not be difficult
to understand that the honourable Court did not wish to issue any direction on how the Selection Committee shall
regulate its own procedure in a transparent manner because the Section 4
(4) of the Lokpal and Lok Ayuktas Act 2013 states that the Selection Committee
shall regulate its own transparent manner. For a matter to be transparent,
there needs ready access to the information so that knowledge of the procedure
adopted by the Committee is available to any one who wishes to seek information.
Further, not providing information would have been possible only if either the Court
issued an order barring dissemination of information or the Selection Committee
barred information by invoking the provisions of Section 8 (1) or 9 of the RTI
Act, 2005.
9.1.2. As CPIO has not
provided a copy of an order from the Selection Committee seeking exemption
under Section 8 or 9 of the RTI Act, 2005 or from the Court specifically that
information should not be provided as explained in Section 8 (1) (b), the
matter of placing information in the public domain is governed by Section 4 of
the RTI Act, 2005. Neither of these reasons has been stated by the CPIO in his
reply to deny the requested information. Therefore, this applicant was forced
by the reply of the CPIO to file a First Appeal.
9.2. Online First Appeal No. DOP&T/A/2019/60366:
The FAA has, vide his order dated 23.5.2019 (Please refer to Annexure D) sought to support the stand
taken by the CPIO and expanded that denial by stating the following reasons:
“6. AND WHEREAS, it
is also observed that appellant has not
reflected which public interest it serves while referring to Section 8 (2) of
the RTI Act and also seemingly the analogy drawn from provisions of Section 22
of the RTI Act also does not appear relevant for this appeal.
9.2.1. Crores of Indians
know that corruption is prevalent in may departments of the Govt and that under
immense public pressure, the UPA Govt enacted the Lokpal and Lok Ayuktas Act
2013. It is also common knowledge, that the FAA would not be ignorant of, that
the honourable Supreme Court had to continuously prod the GoI to make progress
on the appointment of Lokpal and Lok Ayuktas in public interest as it would provide succour to ordinary law-abiding
citizens seeking remedy from the corruption of public servants, including the
Prime Minister. It appears that the FAA does not wish to acknowledge that the
appointment of Lokpal and Lok Ayuktas was in Public interest. Therefore, the FAA, who is a Deputy Secretary to
the Govt of India, (even an IAS) requiring this appellant to inform him “which
public interest” the order (Please see Annexure
D) is against (Section 6 (2) of the RTI Act, 2005) as an applicant or appellant does not have to give reasons for
requesting for the information.
9.2.2. Further, the Hon’ble
Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N.
Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of
Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 observed as
under:
“The ideal of ‘Government by
the people’ makes it necessary that people have access to information on
matters of public concern. The free flow of information about affairs of
Government paves way for debate in public policy and fosters accountability in
Government. It creates a condition for ‘open governance’ which is a foundation
of democracy.”
9.2.3. FAA vide his order
of 23.5.2019 (Please refer to Annexure D)
has sought to deny information on the grounds that this appellant has not spelt
out the invoking of Section 8 (2) viz Public
Interest. Lokpal & Lok Ayuktas has been established in Public interest
to protect the ordinary citizen from corrupt officials and knowing the decision
making process of selecting the Protectors is adequate “Public interest.” This
appellant requests that honourable CIC may wish to consider the following
supporting orders/judgments: -
(i) Decision
No. CIC /OK/A/2008/00860/SG/0809 ;
Appeal No. CIC/OK/A/2008/00860/
“During the next hearing
on 31 December 2008, the Commission said the RTI is one of the most fundamental
human rights and before going further, it is desirable to look into the
Preamble of the Act and some of its provisions. The preamble reads as...
“AND WHEREAS democracy requires an informed citizen 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 WHERAS revelation of information in actual practice
is likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal resources and the
preservation of confidentiality of sensitive information;
“AND WHEREAS it is necessary to harmonize this conflicting
interest while preserving the paramountcy of the democratic ideal;”
The preamble is the soul
of the Act and clearly spells out the aims and objectives of the Act, Mr Gandhi
said. As per Section 3 of the Act, citizen’s right to access information under
the Act is absolute, subject only to limitations prescribed under the Act. To make this right meaningful and
effective, citizens are not required to give any justification for seeking
information, the Commission said” (emphasis supplied).
(ii) The Hon’ble Supreme Court in the matter of Bihar Public
Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while
explaining the term “Public Interest” held:
“22. The expression
"public interest" has to be understood in its true connotation so as
to give complete meaning to the relevant provisions of the Act. The expression
"public interest" must be viewed in its strict sense with all its
exceptions so as to justify denial of a statutory exemption in terms of the
Act. In its common parlance, the
expression "public interest", like "public purpose", is not
capable of any precise definition. It does not have a rigid meaning, is elastic
and takes its colour from the statute in
which it occurs, the concept varying with time and state of society and its
needs (State of Bihar v. Kameshwar Singh ([AIR 1952 SC 252]). It also means
the general welfare of the public that warrants recognition and protection;
something in which the public as a whole has a stake [Black's Law Dictionary
(8th Edn.)]” (Emphasis supplied).
(iii) Hon’ble High Court of Delhi in
Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28
April, 2009) wherein it was held as under:
“14.......The
court cannot be unmindful of the circumstances under which the Act was framed,
and brought into force. It seeks to foster an "openness culture"
among state agencies, and a wider section of "public authorities"
whose actions have a significant or lasting impact on the people and their
lives. Information seekers are to be furnished what they ask for, unless the
Act prohibits disclosure; they are not to be driven away 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” (emphasis
in Complaint
No.:-CIC/DOREV/C/2016/294561-BJ Date of Hearing: 06.10.2017; Date of Decision:
10.10.2017).
9.2.4. The interconnection between RTI request and Public interest
and several orders of the CIC and honourable Courts has been explained in great
detail in a paper on the website of CIC. The following extracts are produced: -
(i) In Secretary, Ministry of
Information and Broadcasting, Govt. of India and Ors. v. Cricket Association of
Bengal and Ors. MANU/ SC/0246/1995: (1995) 2 SCC 161, this Court also held that
right to acquire information and to disseminate it is an intrinsic component of
freedom of speech and expression.
(ii) On Page 5: - The terms public interest has to be interpreted as “Redressing public
injury, enforcing public duty, protecting social, collective, ‘diffused’ rights
and interests vindicate public interest... [In the enforcement of which] the
public or a class of the community have pecuniary interest or some interest by
which their legal rights or liabilities are affected.
9.3. FAA further
attempts to justify his denial of an order to the CPIO to provide information with
the following statement:
7. AND WHEREAS as
regards (a) in para 5 above, the concerned CPIO has within his administrative
competence san legal expertise viewed that the directions of the Apex Court to
preclude sharing of such information on public platform notwithstanding
provision of Section4 (4) of the Lokpal and Lokayuktas Act, 2013. Thus, it may
not be appropriate to direct the CPIO to provide the information as desired by
you as legal expertise to interpret such directions is not available in the
executive domain of DOP&T.”
9.3.1. The Section 4 (4) of
the Act referred to, in the opinion of this applicant/appellant is that in the
Lokpal and Lok Ayuktas Act 2013 which reads as
“(4) The Selection
Committee shall regulate its own procedure in a transparent manner for
selecting the Chairperson and Members of the Lokpal.”
9.3.2. A plain reading
language will show that there is no ambiguity that the Order of the honourable
Court pertains to the procedure to be evolved by the Selection Committee which
has to be in a “transparent manner”
(emphasis supplied). A simpler understanding would be that the Court did not
find the necessity to comment on the procedure the Selection Committee would
adopt for selecting the Chairpersons and Members of the Lokpal. Further, the
need for transparency is obviously so that any one wishing to know how the
Selection Committee went about its business would be provided the information.
9.3.3 FAA, while denying
information or an order to the CPIO to provide information has not stated in
his order that
9.3.3.1. The Selection Committee exercised exemption from
disclosure of information under Section 8 or 9 of the RTI Act, 2005.
9.3.3.2. The honourable Court has given an order as required in Section
8 (1) (b) not to disclose information.
Further, the matter of placing information in the public domain is
governed by Section 4 of the RTI Act, 2005 and not by Section 4 (4) of the
Lokpal and Lok Ayuktas Act 2013.
9.3.4. In several judgments
by honourable High Court and most recently the Supreme Court in Review Petition
(Criminal) 46 of 2019 in Writ Petition (Criminal) 298 of 2018, commonly known
as the Rafale Review Petition, has held that the RTI Act 2005 has primacy over
any other Act including the Official Secrets Act 1923. Therefore, for the FAA
to conclude that this has no relevance to the present application for
information (Annexure A) or Appeal (Annexure C) is inconsistent with facts,
even the truth.
10. Prayer
or relief sought:
10.1. CPIO, DoP&T may be ordered to provide
the specific information requested for.
10.2. FAA, DOP&T may
be required to improve his knowledge of his Ministry as well as of the purview
of the RTI Act, 2005 especially of the relevant and contemporaneous orders of
CIC/Courts on what constitutes Public Interest and how the CPIO may seek
assistance under Section 5 of the RTI Act. FAA may also be instructed to derive
benefit from attending the training/sensitisation courses DOP&T conducts on
for CPIOs and FAAs on RTI Act, 2005.
11. Grounds for the prayer or relief: -
11.1. Involving the CPIO, DOP&T:
11.1.1. This
applicant/appellant has not sought any opinion, legal or otherwise or an
interpretation by the CPIO insofar as the judgment of the honourable Supreme
Court in Contempt Petition 714/2018 in WP (C) No. 245 of 2014. The application
simply requested for information as defined in Section 2 (f) of the RTI Act,
2005. viz. photocopies of the file notings, meetings, discussions etc that
preceded the selection of the Lokpal and Members.
11.1.2. From a prior reading of the CIC orders/ Courts’ judgments,
this applicant/appellant is aware that CPIO, “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….”
(i) Para 35 of most often
quoted to deny information of the honourable Supreme Court’s judgement in
Aditya Bandopadhyay Vs CBSE in SLP (C) No. 7526 of 2009
(i)
CIC/SB/A/2016/001025/CBECE-SJ in Subrata Guha Ray Vs CPIO, CBEC
(ii) Judgment of hon’ble Supreme Court in SLP (C) 34868 of 2009
decided on 04.1 2010 in Khanapuram Gandiah Vs AO & Others, etc.
11.1.3. CPIO has sought to
deny information by his interpretation/opinion on the honourable Court allowing
the Selection Committee to set its own procedure under Section 4 (4) of the
Lokpal and Lokayuktas Act 2013 as his reason to deny information. This is neither
relevant nor in the spirit of the RTI Act, 2005 supported by above quoted
orders of CIC and judgments of honourable Supreme Court. CPIO must surely be
aware that
(i) Information can
be denied only under Section 8 or 9 of the RTI Act, and
(ii) That Section 22
of the RTI Act 2005 clearly states that the Act has primacy over all others
Acts and Rules.
11.2. FAA has sought to
deny information
11.2.1. By stating that this
appellant has not explained the reason for public interest though he would be
aware that the political party elected to form the Govt in 2014 rode to power
on the promise of a speedy implementation of the Lokpal and Lokayuktas Act
2013, enacted by the previous (UPA) Govt.
11.2.2. Even though there are orders of CIC and Courts have been
cited to illustrate that the applicant need not give reasons for his/her
request vide Section 6.2 of the RTI Act, 2005.
11.2.3. Even though the information
sought is specific – file notings, minutes of deliberations, discussion,
meetings, OMs, ID Notes etc that preceded the announcement of the appointments
of Lokpal and Members.
11.2.4. Inferring with what
reason that he alone knows that the CPIO is not qualified to provide any Opinion
or advice or legal interpretation of the honourable Court’s order which he has
attached to his reply. Hence it conveys an impression that there in an
intentional delay in providing information for which the FAA has remarked about
legal competence of the CPIO, which is not part of the information sought nor
relevant to the request ( Ref No. DOP&T/R/2019/51717).
11.2.5. Even though the FAA, who is a senior officer is aware of “The role of the Department of Personnel & Training can be conceptually divided into two parts, In its large nodal role, it acts as the formulator of policy and the watch-dog of the Government ensuring that certain accepted standards and norms, as laid down by it, are followed by all Ministries/Departments, in the recruitment, regulation of service conditions, posting/transfers, deputation of personnel as well as other related issues (https://dopt.gov.in/about-us/functions/roles-responsibilities-).
11.2.6. With Departments and attached offices such Central Vigilance Commission, Joint Consultative Machinery, Central Administrative Tribunal, Staff Welfare, Public Sector Enterprises Board and Central Information Commission, requiring legal advice of numerous matters, there would be no dearth of legal qualified officers in Min of Personnel, Public Grievances and Pension. If legal assistance to help the CPIO or FAA decide whether the information could, per se, be provided, but which is NOT relevant to the instant request for information, then CPIO or FAA could have sought such assistance under Section 5 of the RTI Act 2005.
12. Other Information Related to the Second
Appeal
Nil
13. Verification/Authentication by the Appellant:
I hereby verify that the aforementioned facts are true to the best of my
knowledge and belief. I also declare that this matter is not previously filed
with this Commission or is pending with any Court or Tribunal or Authority. I
also declare that I have authenticated all copies attached to this Second
Appeal.
Place: Bengaluru -
560038 Sd/--------------------
Date: 1st June 2018 (S. Y. SAVUR)
Name of the applicant/Appellant
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