PIO: There was no “Transfer Policy” followed by the Respondent Public Authority before 2018 - CIC: Furnish an updated status of transfer policy guidelines; For redressal of his grievance, the Appellant is advised to approach an appropriate forum

O R D E R

RTI – I File No. CIC/CRCLT/A/2018/111318-BJ

FACTS:

The Appellant vide his RTI application sought information on 11 points in respect of the certified copies of the Approved Transfer Policy of CRCL under which Annual General Transfer of 2016-17 and 2017-18 were made, and the history of posting of all the Serving CRCL Officials’ i.e., from Chemical Assistant to Joint Director, till date, etc.

The CPIO and AO, CRCL, vide its reply dared 02.11.2017, forwarded the RTI application to the Chemical Engineer, Grade II/CPIO, CRCL while stating that due to acute shortage of staff and man power it was not feasible to complete/trace out the desired information as it was time taking and cumbersome procedure. Hence, the Applicant could be asked to visit the office personally on any working day with prior information to get the desired information from the office record. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA’s order, if any, is not on the record of the Commission.

RTI – II File No. CIC/CRCLT/A/2018/112916-BJ

FACTS:

The Appellant vide his RTI application sought information on 11 points in respect of the certified copies of the Approved Transfer Policy of CRCL under which Annual General Transfer of 2016-17 and 2017-18 were made, and history of posting of all the serving CRCL Officials’ i.e. from Chemical Assistant to Joint Director, till date, etc.

The CPIO (Cus-III), CBEC, New Delhi, vide its letter dated 26.09.2017, forwarded the RTI application to the CPIO, CRCL, New Delhi for furnishing information pertaining to their office directly to the Applicant. Subsequently, the CPIO & Chemical Engineer Grade II, New Delhi, vide its letter dated 02.11.2017 enclosed the information after receiving it from the concerned Section of CRCL. Furthermore, the CPIO and AO, CRCL, New Delhi, vide its reply dated 20.12.2017, provided a point-wise response to the Appellant to the extent that was available with the Respondent Public Authority. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 30.11.2017, directed the CPIO, CRCL, New Delhi, to provide the information to the Appellant, intended to be disclosed, by post or electronic mode instead of calling him personally, within fifteen days from the date of issue of the FAA’s order.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Rajesh Kumar through VC;

Respondent: Mr. Ajay Kumar Singh, CPIO & Chemical Examiner, Mr. Harish Chandra Pandey, CAPIO & AO, Mr. Azad Singh, AO and Mr. Mahesh Dixit, Tax Assistant;

The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. In its reply, the Respondent submitted that a suitable point-wise response had already been given to the Appellant. It was further informed that there was no “Transfer Policy” followed by the Respondent Public Authority before 2018. However, in the year 2018, they had formulated a new “Transfer Policy” which was available in the public domain, a copy of which was shown to the Commission also. The Appellant contested the above averments of the Respondent and submitted that his request for transfer on personal grounds had not been considered by the Public Authority despite several representations addressed to their Senior Officials. The Commission noted that the Appellant’s grievance primarily pertains to non-consideration of his transfer which was duly processed and rejected by the competent authority.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35..... “It 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. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides: “information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.

The Hon’ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:

“While deciding whether a citizen should or should not get a particular information “which is held by or under the control of any public authority”, the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions.”

Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:

“6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished.”

Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon’ble High Court of Delhi had held as under:

6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.

7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was:

(i) whether the information sought for by the respondent was provided to him;

(ii) if the same was denied, whether such denial was justified;

(iii) whether any punitive action was required to be taken against the concerned PIO; and

(iv) whether any directions under Section 19(8) were warranted.

In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.

A similar view delineating the scope of the Commission’s jurisdiction was also taken by the Hon’ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties, technically, no intervention of the Commission is required in the matter. However, the CPIO is directed to furnish an updated status of transfer policy guidelines followed by the Respondent Public Authority to the Appellant in accordance with the provisions of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.

The Appeals stand disposed accordingly.

(Bimal Julka)

(Information Commissioner)

Citation: Mr. Rajesh Kumar v. Central Revenues Control Laboratory IN Second Appeal No.(s):-  CIC/CRCLT/A/2018/111318-BJ and CIC/CRCLT/A/2018/112916-BJ, Date of Decision: 05.07.2019