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Details of a public servant - CIC: A public servant would own the assets by means of his earning as a public servant, it cannot be held that the details of his assets are private or that their disclosure has no relation to any public activity or interest

24 Apr, 2020

Information Sought:

The appellant has sought the following information:

1. Academic and Technical qualifications of Mr. Birendra Jaiswal, Examiner of Trade Marks.

2. Copy of the advertisement in response to which Mr. Jaiswal was initially appointed.

3. Copy of application form submitted by Mr. Birendra Jaiswal for the initial appointment in the office of the Trade Marks Registry.

4. Names, designations and qualifications of all the members of the Committee or any other authority recommending initial appointment of Mr. Birendra Jaiswal.

5. And other related information.

Grounds for Second Appeal

The CPIO did not provide complete information.

Submissions made by Appellant and Respondent during Hearing:

The appellant submitted that he is not satisfied with the reply of the CPIO on points (c),(d), (e), (n), (s)-(y) of the RTI application. With regard to points (c),(d) & (e), the appellant submitted that instead of transferring the RTI Application under Section 6(3) of the RTI Act, the CIPO has unilaterally & utterly declined to provide the same to him, contrary to the aforesaid provisions of law. In relation to point (n), (s) to (y), he submitted that the CPIO, while forwarding letter dated 25.6.2018 duly stated that the ‘Applicant is entitled for the information’ but no reasons have been assigned for not disclosing the same information later on. He further added that the notice of RTI application was sent to the third party under section 11 of the RTI Act, however, no reply has been received there from. Thus, even otherwise, he is entitled for the disclosure of the information when the concerned officer has never raised any demur thereto, even when a specific opportunity was granted to him. He stated that the information about the assets of the public servant cannot be withheld on account of fiduciary relationship, since as per Section 44 of ‘The Lokpal and Lokyukta Act, 2013’, it is mandatory on the part of every public servant to make a declaration as to his assets and liabilities. Moreover, the information, which is required to be disclosed under any enactment and/or any provision of law, cannot be held to be given under fiduciary relationship. To substantiate his submissions, he relied on the following judgements:

In Reserve Bank of India v. Jayantilal N. Mistry (SC), it has been held by the Hon’ble Supreme Court that:

“62. However, where information is required by mandate of law to be provided to an authority, it cannot be said that such information is being provided in a fiduciary relationship.”

In G.S. Reddy v. Central Bureau Of Investigation (CBI), Mumbai,(CIC)Ø Appeal No. CIC/WB/A/2008/01156. Dated 18.1.2010, it was held that:

“The CJI cannot be a fiduciary vis-a-vis Judges of the Supreme Court. The Judges of the Supreme Court hold independent office, and there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. The declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in the larger public interest. In these circumstances, it cannot be held that the asset information shared with the CJI, by the Judges of the Supreme Court, are held by him in the capacity of fiduciary, which if directed to be revealed, would result in breach of such duty. “12. Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; does indeed afford protection to a specific class, i.e. fiduciaries. The content of such provision may also include certain kind of relationships of public officials, such as doctor-patient relations; teacher pupil relationships, in government schools and colleges; agents of governments; even attorneys and lawyers who appear and advise public authorities covered by the Act. However, it cannot cover investigation of complaints of corruption”

In Kamal Kishore Arora v. Public Information Officer (SICP)- A.C. No. 673Ø of 2012. D/d. 4.7.2012, it was held by the Hon’ble Bench that:

“The information at (d) & (e) being asked pertains to a public servant and every citizen has a right to know if there are any complaints against the concerned official. There is nothing in the Right to Information Act, 2005, which exempts from disclosure such information. The mere fact that the information is voluminous by itself would not authorise a PIO to deny the information. Further information pertaining to conduct of official duties of a public servant is not private information of individual official which may fall within Section 8(i)(j). Disclosure of public complaints against an official could never be considered an invasion of privacy of the officer concerned”

c. Shri Kamal Kishore Arora Advocate, Amritsar v. Public InformationØ Officer (SICP)(D.B.) - Appeal No. AC-856 of 2011. D/d. 11.01.2012 It was observed by Hon’ble Division Bench of State Information Commission, Punjab:

“Attention was drawn to the provisions of Section 24 under which certain organizations could be exempted from the purview of the RTI Act. However, even this blanket exemption to the specified organizations under Section 24 is not available if allegations of corruption or Human Rights Violation are involved. Relying on the authority of the Punjab and Haryana High Court in CWP No. 10067/2010 decided on 21.1.2011 (First Appellate Authority was the CIC) in 2011 (3) RCR (Civil)164, it was argued that he information pertaining to allegation of Corruption and Human Rights Violation are not covered under any exemptions given in the RTI Act. In any case, it was pleaded that the offices of the Judges are not exempt under Section 24 of the Act ibid. Therefore, information sought on allegations/complaints against public servants of corruption can never be excluded from the public purview.”

In Subhash v. State Information Commission, Haryana, (PØ&H) - Civil Writ Petition No. 17718 of 2014 (O&M). D/d. 26.7.2016 it has been held:

“A citizen has right to seek detail of information of corruption cases pending against the serving and retired public servants. Right To Information Act, 2005 Section 8(1) A citizen has right to seek detail of information of corruption cases pending against the serving and retired public servants -AIR 2011 PLH 168 : 2012 (4) RCR (Civil) 559 : 2012 (5) Recent Apex Judgment (R.A.J.) 205 Relied.”

He concluded his submissions stating that for the sake of argument even if all the information sought is to be treated as ‘personal information’, the information ought to be disclosed to the appellant in public interest, especially when the concerned government officer is appointed and discharging public duties & functions and many complaints regarding misconduct and corruption are pending against the concerned officer (public servant), thus, a citizen has a right to know the corruption cases, complaints (including the complaint of the appellant herein) and any action taken against that public servant and other important details of concerned officer including assets, qualifications etc., keeping in view the democratic setup of the country, and larger public interest thereof.

The CPIO submitted that an appropriate and point-wise reply was given to the appellant on 31.07.2018.

Observations:

Having heard the submissions of both the parties, it is noted that the appellant is contesting the reply of the CPIO on points no. (c),(d), (e), (n) & (s)-(y) of the RTI application. To give any further relief on these points, the Commission finds it appropriate to examine each of these points one by one while considering the submissions advanced by the appellant in support of his contentions.

On point (c), the appellant has sought a copy of the application form submitted by Mr. Birendra Jaiswal for his initial appointment in the office of Trade mark Registry. The contention of the appellant is that instead of transferring the RTI Application under Section 6(3) of the RTI Act, the CIPO has unilaterally & utterly declined to provide this information to him, contrary to the aforesaid provisions of law. The Commission opines this information is duly covered u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act as the application form contains personal details like address, phone number along with other personal details and hence information cannot be provided.

On point (d), the appellant has sought the names, designations and qualifications of all the members of the Committee or any other authority recommending initial appointment of Mr. Birendra Jaiswal. On this point, except the names of the members which is covered u/s 8(1)(g)of the RTI Act, all other information can be shared with the appellant.

With regard to point (e), the information cannot be shared as being exempted u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act.

On point (n), the Commission agrees with the submissions of the appellant and the decisions quoted by him and note that as details about a public servant's assets were required by law to be submitted to the government, and as the public servant would own these by means of his earning as a public servant, it cannot be held that the details of his assets are private or that their disclosure has no relationship to any public activity or interest. Hence, the information which has been shared with the respondent organisation about the assets of Mr Birendra Jaiswal can be shared with the appellant.

With regard to points (s) to (y), the appellant has sought information about the action taken on the complaints filed against Mr Birendra Jaiswal for unlawful registration of the application forms and the details of criminal cases filed against him, if any. During the hearing, the CPIO submitted that there was no complaint filed against Mr Birendra Jaiswal and hence the question of taking any action does not arise. He also submitted that the appellant in his RTI application has failed to give details of the complaint filed by him and any other person so that the relevant information could have been provided. The Commission notes that in the reply of the CPIO dated 31.07.2018, the information on these points has been denied u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act. This reply and the submissions of the CPIO during the hearing are totally contradictory to each other as on one hand the same CPIO is submitting that no such record is available and on the other hand he is saying that the information is exempted u/s 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act which means that the information is available with him. The Commission expresses its dissatisfaction at the conduct of the CPIO for such contradictory replies which makes it difficult for the Commission to come to a logical conclusion. Under such circumstances, the CPIO is directed to go through the records and provide a categorical reply to the appellant whether such information is available with them or not. In case the information is not available, the CPIO should affirm the same by way of an affidavit and in case the information is available, the same should be provided to the appellant as per the provisions of the RTI Act and taking into consideration the various judgments referred to by the appellant.

Decision:

The CPIO is therefore directed to provide complete information to the appellant in respect of points (d) & (n) as discussed above. With respect to points (s) to (y), the CPIO is directed to go through the records again and provide a categorical reply to the appellant as to whether such information is available with them or not. In case the information is not available, the CPIO should affirm the same by way of an affidavit to the Commission with a copy duly endorsed to the appellant and in case the information is available, the same should be provided to the appellant as per the provisions of the RTI Act. This direction is to be complied with within a period of 21 days from the date of receipt of this order under intimation to the Commission.

The appeal is disposed of accordingly.

Vanaja N. Sarna

Information Commissioner

Citation: Kamal Kishore Arora v. Ministry of Commerce and Industry Intellectual Property Office, Delhi and Trade Marks Registry Mumbai and Delhi in Decision no.: CIC/MOCMI/A/2018/160203/03169, Date of Decision: 18/03/2020

Details of a public servant - CIC: A public servant would own the assets by means of his earning as a public servant, it cannot be held that the details of his assets are private or that their disclosure has no relation to any public activity or interest

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