Information regarding Delhi Public School, Vijaipur - Appellant contested PIO’s view that DPS is not a public authority and claimed that it is financed by National Fertilizers Ltd. - CIC: DPS is a “Public Authority”; designate a PIO comply with Section 4
Information regarding Delhi Public School, Vijaipur was sought - PIO: DPS is not a public authority - Appellant: DPS Vijaipur is an integral part and financed by National Fertilizers Ltd.; the land, building, all infrastructure, residential accommodation for the teachers is provided by the NFL - PIO: NFL is reimbursing the deficit to DPS - CIC: DPS fulfils the essential elements of being a substantially financed by the NFL and can be called a “Public Authority”; Principal of DPS directed to designate a PIO, comply with Section 4 of the RTI Act & provide the information sought to the appellant
Shri Gopal Krishna Soni hereinafter called the appellant has filed the present appeal dated 6.2.2012 before the Commission against the respondent National Fertilizers Ltd., Vijaipur for denial of information in response to his RTI application dated 2.6.2012. The appellant was present whereas the respondent were represented by Shri Deepak Dongre, Manager (P&A), Shri Vijay Kumar Jain, Sr. AM, Shri Narender Singh, Manager (Law) and Shri Prabhat Kumar, Principal, DPS.
2. The matter was earlier heard by the Commission on 08.11.2013 and the Commission vide its interim order of even number dated 8.11.2013 held as follows:
“Submissions heard and documents on file perused. The Commission observes that the issue relates to the status of the Delhi Public School, Vijaipur an Educational Institution i.e. whether it is a “public authority” or not? Commission is of the view that for the purpose of deciding the issues raised in the matter, the parties are directed to furnish their written submissions within two weeks. The parties are further directed to be present with relevant documents and submissions on 16.12.2013.”
3. The appellant through his RTI application dated 02.06.2012 sought information on four points as follows:
“(1) Provide copy of documents relating to appointments of temporary/ permanent teachers in DPS, Vijaipur during the period 1.7.2006 to 31.12.2011;
(2) Provide all documents in respect of promotion of teachers as appointed during the period 1.7.2006 to 31.12.2011;
(3) Provide copy of all documents relating to eligibility, educational qualifications and experience certificate of all permanent and promoted teachers during 1.7.2006 to 31.12.2011; and
(4) provide copy of proposal for appointment of teachers along with copy of decision taken/ note sheet on that proposal by the Management Committee in relation to matters mentioned in Point No. 1, 2 and 3.”.
The CPIO vide letter No. NFVP/PACO/4820/2012-13/07/747 dated 30.6.2012 replied to the based on the reply of the Principal, DPS, Vijaipur as follows: “Delhi Public Schools are run by Delhi Public School Society registered under the Societies Registrations Act, 1860 of Government of India as education society having nonproprietary character and not receiving any aid from the Government. It is a private unaided body and does not come under the RTI Act, 2005”.
3.1 Aggrieved with reply of the CPIO the appellant filed first appeal on 10.08.2012 before the FAA. The FAA vide his order No. NFVP/PACO/19, 28/7a dated 10.09.2012 concurred with the reply of the CPIO.
4. In his written submissions filed before the Commission, the appellant states as follows:
· That an agreement between Delhi Public Society Delhi and NFL executed on 28.2.1986 to open a School at NFL, Vijaipur Project. As per the agreement A Society will be registered under the Society Registration Act 1860 to run the school in NFL, Vijaipur;
· That full power to establish, maintain and manage the said School shall vest in an Autonomous Governing Body(to be registered under the Society Registration Act 1860);
· That NFL at its own cost earmarked 15 acres of land, building, houses for teaches;
· NFL provided for in this agreement all other rights and liabilities in respect of DPS Vijaipur shall vest in the Society;
· The NFL shall subsidize the extent of deficit of revenue against expenditure if any;
· That 17 clauses are mentioned in the agreement shows NFL, Vijaipur is the owner of the School, fully financed by NFL, Vijaipur and having full administrative control over the school;
· That according to the said agreement a Society Delhi Public School Society, Vijaipur, Distt. Guna registered under the MP Society’s Registration Act, 1973 dated 28.1.1988 and having registration No. 19299;
· That according to the Memorandum of Association for registration of Societies, the Management of the affairs of the School entrusted by the regulation of the Society to the Managing Committee or Governing Body. The Management of the School shall be vested in the Managing Committee consisting of Chairman, Vice Chairman, Secretary and six Members. The Secretary (Principal or Vice Principal) subject to overall direction and control of the Governing Body;
· That free of cost education from 1986 to January 2013 provided to wards of NFL employees.
· In view of above details it is very much clear that DPS Vijaipur is an integral part or wing of NFL Vijaipur. DPS Vijaipur fully financed by NFL and in all type of school affairs NFL Vijaipur is a controlling authority. DPS Vijaipur having infrastructure, buildings, other amenities houses to school staff, salary and benefits to school staff, huge subsidy/ grant by NFL Vijaipur. Hence, DPS Vijaipur is a part and partial of NFL Vijaipur and covered under the provisions of the RTI Act.
5. In his written submissions filed before the Commission, the CPIO, NFL states as follows:
· The Delhi Public School (DPS), NFL Vijaipur was set up under the agreement dated 20.2.1996 executed between NFL and DPS Society Registered under the Societies Registration Act 1860. This School is apparent from the contents of Para 3 of the recital of the contract was set up on the request of NFL, Vijaipur from the academic year 1986-87 to impart education to the wards of NFL employees posted and residing at NFL township on the same lines as their schools known as DPS as there was no good school to impart education to wards of employees in its vicinity. As per terms of clause (2), this school is being maintained and managed by an autonomous governing body consisting of nine members under the Chairmanship of the Chairman of DPS Society, New Delhi;
· There being a clause (7) which provides “that NFL at its own cost shall construct, provide and maintain school buildings, equipment and place at the exclusive disposal of DPS, Vijaipur” NFL Vijaipur has provided buildings and equipment to DPS to run the school in utmost manner that too without disturbing the affairs of the school. From Clause (11) of the agreement the NFL has been subsidizing the school to the extent of deficit of revenue against expenditure if any on the basis of actuals. As per clause (11) the NFL only has right to determine and fix the tuition fees and other charges from time to time for the children of NFL employees and non NFL employees. Except determining the fees and other charges NFL has no right to interfere into the affairs of the DPS. NFL has been reimbursing the deficit of revenue against expenditure to DPS;
· As per Memorandum of Association executed between NFL and DPS Society duly signed by the following: (a) On behalf of DPS – (1) Dr. P.N. Kirpal, Chairman, DPS Society, New Delhi; (2) Justice A.N. Grover, Vice Chairman, DPS Society, New Delhi; (3) Dr. (Miss) A. Nanda, Member, DPS Society, New Delhi, (4) Mrs. N. Kapoor, Member, Principal DPS, New Delhi, (5) Mr. Salman Khurshid, Member; On behalf of NFL – (1) Mr.G.P. Khurana, Vice Chairman, GM, NFL, Vijaipur, (2) Mr. S.P. Puri, Member, DGM (Construction, Mr. S.S. Ranade, Member/DGM (Admn) and Mr. K.S. Aggarwal, Member, DGM (Civil).
· The DPS is run by the Delhi Pub lic School Society through Governing body/ Management Committee consisting nine members, five of whom are the Members from DPS Society and four from NFL. · As per the rules and regulations makes it clear that to run DPS at NFL, Vijaipur a DPS Society, Vijaipur came into existing registered office of which is situated at NFL. The DPS Vijaipur is running under the control and supervision of DPSS New Delhi through DPSS Vijaipur. The respondent company is paying maintenance charges plus service tax to the DPSS, New Delhi.
· To substantiate the claim of the respondent that the DPS Vijaipur is funded by NFL rather the respondent company is meeting/ subsidizing the deficit of revenue against expenditure;
· The fee charged by DPS, NFL is much lesser than the fees charged by other Delhi Public Schools. The fees charged by DPS, NFL is not sufficient to meet the expenditure of the DPS, NFL. So there is a deficit in every fiscal year and this deficit is being abridged by NFL by paying the differential amount against the expenditure of DPS. Basically to avoid burden of the NFL employees towards fee of the DPS, NFL is providing the deficit amount to DPS on behalf of NFL employees as a social welfare. This cannot be treated as financial aid rather it can be considered as subsidy to DPS against the revenue expenditure;
· The DPS is not substantially funded, however, the deficit is reimbursed by NFL to DPS, NFL for the period 2005-06 to 2012-13 as follows: 2005-06 – Rs. 59720078/80, 2006-07 – Rs. 8644294/20, 2007-08 – Rs. 10838786/-, 2008-09 – Rs. 12351494/-, 2009-10 – 17895309/-, 2010-11 – 23364324/-, 2011-12 – 29169194/-, 2012-13 – Rs. 30135543/20.
· The DPS, NFL Vijaipur is run and controlled by the DPSS, New Delhi and not by respondent NFL. The respondent has no control over the policy affairs of the DPS. All related directions, guidelines are issued to the Principal directly by the DPSS, New Delhi. Besides deficit the respondent is also paying the annual maintenance charges to DPSS, New Delhi.
6. The respondent CPIO, NFL in his submissions filed before the Commission has failed to refute the contention of the appellant that DPS, NFL is not a public authority. The CPIO on the one hand states that DPS, NFL is not substantially funded by NFL and on the other hand states that NFL is reimbursing the deficit to DPS, NFL. Moreover, land, building, all infrastructure, residential accommodation for the teachers is provided by the NFL. The CPIO has failed to convince the Commission that DPS, NFL is not a public authority.
7. The Hon’ble Delhi High Court while declaring the Indian Olympic Association and Sanskriti School as Public Authorities has held that “…Nongovernment organizations could be of any kind, registered societies, cooperative societies, trusts, companies limited by guarantee or other juristic or legal entities, but not established or controlled in their management, or administration by state or public agencies…” Furthermore, while discussing the purport and scope of the word “substantial financing” (with reference to non-government organizations) mentioned in Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act, 2005, the High Court has expanded the scope of the definition of Public Authority when it ruled that “….This Court therefore, concludes that what amounts to “substantial” financing cannot be straight-jacketed into rigid formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not ‘majority’ financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of non-government organization means that it is independent of any manner of government control in its establishment, or management. That the organization does not perform – or predominantly perform – “public” duties too, may not be material, as long as the object for funding is achieving a felt need of a section of the public, or to secure larger societal goals. To that extent of such funding, indeed, the organization may be a tool or vehicle for the executive government’s policy fulfillment plan”. The High Court has also discussed that: “….grants by the Government retain their character as public funds, even if given to private organizations, unless it is proven to be part of general public policy of some sort…A truly private school would have been under an obligation to return the amount, with some interest…” Considering the above facts that DPS, NFL, Vijaipur has been provided land, building, infrastructure, residential accommodation to teachers by NFL, Vijaipur. Moreover, the NFL is regularly reimbursing the entire deficit to DPS, NFL, Vijaypur during the financial years 2005-06 to 2012-13.
8. On consideration of all the above factors, the Commission holds that DPS, NFL, Vijaipur fulfils the essential elements of being a substantially financed by the NFL. It is therefore, covered by the regime of the RTI act and can be called a “Public Authority” as laid down under the provisions of Section 2(h) “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; “public authority” means any authority or body or institution of self-government established or constituted (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government; of the RTI Act, 2005.
9. The Commission, therefore, directs the Principal of DPS, NFL, Vijaipur to designate an official in the School as the PIO at the earliest as per provisions of Section 5 of the RTI Act, 2005 and also to comply with Section 4 of the RTI Act within four weeks of receipt of this order. The information as sought for by the appellant shall be provided to him free of cost within two weeks of receipt of this order, except copies of educational qualifications of teachers appointed by the DPS.
Citation: Shri Gopal Krishna Soni v. National Fertilizers Ltd., in Case No. CIC/SS/A/2013/000195