Bimal Julka DECISION
Bimal Julka, Information Commissioner
FACTS:
1. The Appellant vide his RTI application sought information on 05 points regarding details of total vacancies created in the cadre of Group 'A' (Assistant Commissioner), details of total vacancies filled in regular promotion and after giving reservation benefit in the promotion in cadre of Group 'A' (Assistant Commissioner) as per Cadre Restructuring of Central Excise and Customs notification/scheme in 2014-2015 in Western Zone for General and Reserved Category i.e., SC and ST, etc.
2. The CPIO and Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, CBEC, vide its letter dated 04.10.2016 provided a point wise response stating on point (i) that details of vacancy created and allotted were available on the website of CBEC. As regards point (ii) to (iv), it was stated that the promotion was made as per Recruitment Rules of All India Basis and not Zone Wise. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 25.11.2016, concurred with the reply of the CPIO.
HEARING:
Facts emerging during the hearing:
3. The following were present:
Appellant: Mr. Rajesh D. Bindra through VC;
Respondent: Mr. S.A. Ansari, Under Secretary;
4. The Appellant reiterated the contents of his RTI application and stated that despite repeated attempts, satisfactory information had not been received. It was argued that the Respondent had consistently evaded reply to specific queries and skirted the issues involved therein. It was submitted that as an Association, they desired specific information related to number of vacancies created in the cadre of Group-A (Assistant Commissioners) as a part of cadre restructuring exercise in 2014-2015, details of vacancies filled on regular promotion, grant of benefit of reservation in this cadre, file notings etc. in respect of the Western Zone for General and Reserved Category i.e. SC/ST only. The Respondent in his reply explained that point-wise response had been given to the Appellant by the CPIO and the FAA. It was explained that they do not maintain zone wise data and hence precise details were offered to the Appellant. During the hearing, it was elaborated that in CBEC, they maintain data on All India Basis and Zone-Wise details were neither maintained nor compiled by them. Therefore, the information as sought was provided accordingly. As regards the DPCs conducted consequent upon the cadre restructuring exercise, the details were available with them and the minutes and other records of the DPCs thus conducted had already been shared with other Associations. It was stated that the Respondent Authority were willing to share these details with the Appellant as well. The Respondent clarified that the details of vacancy created and allotted were available on its website and that the Appellant had been informed about the same. As regards filling up the vacancies for reservation benefit for promotion, the entire issue had been dealt with on All India Basis and no benefit of reservation was provided in view of Hon'ble CAT Chandigarh's direction in Rajesh Rai case.
5. The Appellant however, contested the claims of the Respondent and complained that the Respondent Public Authority had intentionally and deliberately concealed the information from him. Even the FAA had not afforded an opportunity for personal hearing in accordance with Section 19(4) of the RTI Act, 2005. Consistently, the Respondent denied any malafide in the matter.
6. The Commission observed that under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under control of the public authority can be provided. The PIO is not supposed to create information that is not a part of the record. He is also not required to interpret information or furnish replies to hypothetical questions. Similarly, redressal of grievance, reasons for non compliance of rules/contesting the actions of the respondent public authority are outside the purview of the Act.
7. It was however, noted that in a sensitive and significant issue relating to promotion and reservations, due diligence needs to be exercised by the Respondent Public Authority and the entire exercise of grant of promotion to the eligible officials should be carried out in a completely transparent and objective manner. The list of eligible candidates should necessarily be displayed on its website including the policies, rules, norms and procedures adopted for holding the DPC, the conduct of DPC proceedings etc. to provide reasonable opportunity for each category of employees to know about the manner in which the whole exercise had been executed.
8. The Commission observed that the information sought by the Appellant pertaining to number of vacancies created in the cadre of Group-A (Assistant Commissioners), details of vacancies filled on regular promotion, grant of benefit of reservation in this cadre, file notings etc, ought to be suo motu disclosed on the website of the public authority in order to promote openness and transparency in its working. In this context, the Commission referred to the decision of The Hon'ble Supreme Court of India in SLP(C) No. 7526/2009 (CBSE & Anr. Vs. Aditya Bandopadhyay & Ors) wherein it had observed as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption"
9. The Commission also observed that the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on: 21.05.2010), held as under:
"16. It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
10. In this context, a reference can also be made to the decision by Hon'ble High Court of Delhi in General Manager Finance Air India Ltd. & Anr. Vs. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 wherein it had held as under:
8. "The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1)(b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)].
11. Also, 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, while dealing with significance of free flow of information had stated 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."
12. The High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The 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. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
DECISION
13. Considering the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to furnish all the details of the information sought by the Appellant including the minutes of the DPC, within a period of 15 days from the date of receipt of this order.
14. The Commission also advised the Respondent Public Authority that in the larger public interest and in the light of the aforesaid decisions of the Hon'ble Courts, the Respondent Public Authority should post details of total vacancies created in the cadre of Group 'A' (Assistant Commissioner), details of total vacancies filled in regular promotion, minutes of the DPC, etc on its website to facilitate dissemination of information to the public at large. The compassionate appointment policy and its implementation should be suo-moto disclosed and placed on its website to obviate any reason for suspicion or suspense. Thus, suo moto disclosure of all such information in compliance with Section-4 of the RTI Act, 2005 should be made to ensure transparency, objectivity and accountability in the functioning of the Public Authority.
15. The Appeal stands disposed with the above direction.
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