Information in connection with a tender like comparative statement prepared after opening of technical bids, reasons for long delay etc. were sought - CIC: Tender process is over; Respondent to suo motu disclose tender related information on their website
O R D E R
The Appellant vide his RTI application sought information on 13 points in connection with tender no. 150/2014 dated 13.11.2014, technically sanctioned estimates alongwith all document, Comparative Statement prepared after opening of technical bids on 19.12.2014, reasons for long delay alongwith notice/ decision until opening on 31.07.2015 and issues related thereto. Dissatisfied by due non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO or the order of the FAA, if any, is not available on the record of the Commission.
Facts emerging during the hearing:
The following were present:
Appellant: Mr. M. R. Sonaje through VC;
Respondent: Mr. V. Ramulu, CPIO and Manager (HR), ISP Nashik and Mr. Ved Prakash Kala, AM(HR) through VC;
The Appellant reiterated the contents of his RTI application and stated that complete and satisfactory information had not been furnished to him. The Respondent submitted that on 04.08.2016, a response was provided by the then CPIO Mr. S. R. Lokhande but the Appellant remained dissatisfied with it. It was noted that the FAA had not disposed off the First Appeal which was a matter of concern and against the spirit of the RTI Act, 2005. However, on 28.01.2018 he received a reply from the CPIO which was also not comprehensive and complete. It was alleged by the Appellant that he desired the information relating to opening of technical bids and issues related thereto to expose alleged malpractices in ISP-Nashik. On a query from the Commission whether any reference was made to the CVO of the Corporation, he replied positively.
The Commission was in receipt of a written submission from the CPIO dated 24.01.2018 wherein a point wise response to the queries of the Appellant was furnished which was acknowledged by the Appellant. It was vehemently articulated by the Public Authority officials that the whole focus of RTI application filed by the Appellant revolved around the fact that he was not awarded work by the Public Authority and therefore he had been making repeated queries to seek details of the successful bidder and the process pursued therein. The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Commission referred to the decision of 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), wherein it was 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) Every public authority shall publish within one hundred and twenty days from the enactment of this Act,- (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed and thereafter update these publications every year; and 4(1)(c) Every public authority shall publish all relevant facts while formulating important policies or announcing the decisions which affect public; on its website so that the public have minimum resort to the use of the RTI Act to obtain the information.”
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 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) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. ].”
As observed by 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
“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.”
The Commission also referred to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar SInha and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, wherein it was held as under:
“26……..The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ……… Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract.”
The aforementioned decision was challenged before the Hon’ble Supreme Court of India in SLP (C) No. 18030/2007 and dismissed on 5th October, 2007. The Commission finds that the decision of the Hon’ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, quoted by the Appellant, is also pertinent to this matter wherein it was observed that:
“The act of entering into an agreement with any other person / entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual.”
In Mardia Chemical Limited v. Union of India MANU/SC/0323/2004 : (2004) 4 SCC 311, wherein the Hon’ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, had held as under :
“.............it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socioeconomic drive of the country...........”
Keeping in view the facts of the case and the submissions made by both the parties, and considering that the tender process had since been completed, the Commission advised the Respondent to suo motu disclose all tender related information pertaining to this matter on their website within a period of 30 days from the date of receipt of this order, keeping in view the spirit of the RTI Act, 2005 and the larger public interest involved in such matters. The Commission noted with serious concern that the FAA had also not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care. The Appeal stands disposed accordingly.
Citation: Mr. M. R. Sonaje v. Office of the General Manager, ISPN in Appeal No.:-CIC/ISPNR/A/2017/191825-BJ, Date of Decision: 02.02.2018