RTI is the flavour of the season : Disclose Legal / Discipline & Vigilance Advice and notings under RTI Act, says CIC

From www.indianmilitarybenefits.blogspot.com

RTI it seems is the flavour of the season.

In yet another decision affecting the military, the Central Information Commission has held that legal advice rendered by the JAG (Judge Advocate General) department shall be disclosable under the RTI Act and would not fall under the exemption of Section 8 (1) (e) of the Act which provides that information held under fiduciary capacity need not be disclosed.

The CIC has held that the JAG and DV (Discipline & Vigilance) authorities have to act in a transparent and analytical manner while dealing with quasi-judicial and administrative proceedings, hence any such reasoning or noting relating to how a particular case has been dealt with, need not be held back.

The CIC observed the following in the case titled ‘Dr Harish Uppal Vs Ministry of Defence’ :

“The proceedings before the Court Martial and the consequential application for pardon under Section 179 of the Army Act are matters which, although administrative in substance, are quasi-judicial in nature and in such a case, the authorities deciding the matter do decide in accordance with the law and in accordance with principles of natural justice. In proceedings like this, an authority has a duty to act in a transparent manner and cannot withhold its reasoning only on the ground that there is a fiduciary relationship between him and the Government. Such cases are decided in an analytical manner and reasons need to be recorded by the authority. It will be at the very least, inappropriate if the exemption under section 8(1) (e) is extended to such a situation.”

And now Army / Navy / Air Force Schools under the RTI Act : CIC

The Central Information Commission has ruled that schools established under welfare societies cannot claim exemption from application of the RTI Act. In a case involving Air Force School Jodhpur, the CIC has reached the conclusion that the school is under the purview of the Act. The CIC has also directed the Station Commander to divulge the requisite information within a period of 10 working days.

In another scathing observation vis-a-vis the same case, the CIC has also come down heavily on Air Force authorities which had the following comments to offer on the issue :-

Air Force : - “it is evident that the appellant is seeking the information for his matrimonial case. He has also not indicated any bonafide public interest in seeking the said information. Thus, the appellant is seeking the information for promotion of his personal interest rather than public.”
The CPIO of the Air Force also buttressed the claim by stating that the school was not a public authority by drawing a parallel quoting a judgement in which it was held that the CSIR was not an instrumentality of the ‘State’ under Article 12 of the Constitution of India.

CIC on the above plea by the Air Force :- “On the other hand we find the arguments submitted in writing by Wg Cmdr Magadum are largely specious. U/s 6 sub-section (2), “An applicant making request for information shall not be required to give any reason for requesting the information” The argument at (e) above is altogether irrelevant. Besides, it is nobody’s case that the School in this case constitutes State under Article 12 of the Constitution. The example of the CSIR is entirely misplaced since the CSIR is indeed a public authority u/s 2(h) of the RTI Act, with a complete infrastructure built assiduously in compliance with the RTI Act, 2005. Wg Cmdr Magadum is advised to visit CSIR’s website to learn more on this.”

Click here to see the complete order

Disclose ACRs and Overall profile to retired officer : Central Info Commission

The CIC had earlier in many decisions held that ACRs need not be disclosed to RTI Applicants.

However, in a major and important decision, it has been held by the CIC in an appeal by a retired Colonel, that such information can be disemminated to retired officers since "the only effect of such disclosure could be to either confirm or rectify a promotion made in the case of an error or oversight and, therefore, at best lead to readjustment of pension benefits to applicant."

The entire decision (Col Goswami Vs Directorate of Military Intelligence) is available here on the CIC website

Interesting defence related RTI Query, equally interesting order by the Central Info Commission

Click here for the complete order

Lt Col Kartar Singh of Dehradun had floated an interesting RTI Application. Though it was not exactly under the purview of the RTI Act and his queries did not even qualify the definition of ‘information’, here is what he had sought :-

Note :- The spelling mistakes / grammatical errors are not mine :-)

“(a) After the Supreme Court’s judgment, the issue of one rankone pension was taken up with the then Prime Minister,Indira Gandhi but IAS Cadre opposed it. When under thesimilar circumstances, the Court’s Directive wasimplemented in respect of their civilian counter part while theMPs and the Judiciary got themselves entitled to the same.Why then the Defence Pensioners were denied their rights,justice and equality and treated so shabbily? Pleaseintimate the name (s) and designation (s) of the officer (s)who was/ were responsible for the discrimination and one (s)who approved this and their reasons to negate the SupremeCourt’s Directive and later the 4th and 5th CPC’srecommendations.

(b) Rajiv Gandhi promised one rank one pension in his electionmanifesto but after his victory said there were financialconstraints. Please give the name (s) of the officer (S) whogave this advice and why?

(c) The then President of India addressing the first nonCongress government declared on the floor of theParliament House that his Government shall implement onerank one pension but later nothing materialized. Who wasthe person responsible to over ride the President’sdeclaration and why?

(d) Why, after the Supreme Court Directive of Dec 1982, theverdict of the specifically set up Central AdministrativeTribunal in favour of the pre 1973 defence pensionersrecommending the benefits of 1973 measures was neverimplemented? And why later spilt hairs by going to theSupreme Court and not honouring the agreement reachedbetween the advocates of the pensioners (will not insist forgratuity) and of the government (not of oppose hike inpension) thereby committing a breach of faith and trust?

(e) Why the recommendations of the 4th and 5th CPCs wereimplemented in respect of civilian pensioners but thoserelating to the Defence personnel and Pensioners weremodified to discriminate them? Please give name (S) anddesignation (S) of the officer (S) for this divide and rulepolicy and discrimination between the same class of people.Photo copy of the internal file nothings justifying the denialplease be given.

(f) Why were the recommendation of the high level committeesset up by the government and chaired by Mr. Singh Deo,and Shri Aeun Singh to grant one Rank one Pension werenot implemented? Please name the person and his reasonsto derail the justice. Please give photo copy of the internalfile nothings.

(g) Why the weight age to extend the actual service to 33 yearsas pension able service was fixed arbitrarily as this amountto breach of trust and faith. Please name the person for thisarbitrary decision and his reasons (please give the photocopy of the internal file notings at all the levels.

(h) On what legal ground committees of Group of Ministers wereconstituted later to negate and over ride the Supreme CourtDirective, the 4th and 5th CPCs recommendations and notundo the arbitrary fixation of weight age that was to ensure33 years pensionable service.

(i) Why the recommendations vide (d) and (f) were rejected (notimplemented) but those of at (h) were accepted. Pleasename the advisor (s) in both the cases with detailed reasons.

(j) What is the government’s intention to refer to the 6th CPCthe issue of non implementation of Supreme Court’sDirective and the recommendations of the last two CPCsrelated to Defence Services Pensioners? Is it to furtherdelay the due rights and justice to the senior pensioners onthe verge of kicking the bucket so that more may die or is itto seek approval of the arbitrary and discriminatory decisionmaking process of divide and rule.

(k) Why do the politician occupying the seat of power andbureaucrat advisors feel/ think that they can legally reduce,redefine and negate Supreme Court’s Directives and everything in the Constitution to suit their convenience and ulteriormotives? If ‘not’ then why this “non implementation” of theSupreme Court Directive dated 17th December 1982 as wellas the recommendation of the 4th and 5th CPCs in respect ofDefence Services and Pensioners only. (Details of interoffice noting on the files leading to denial of justice please begiven).

(l) Why did the Hon’ble Raksha Mantri misled the Parliamentwhen answering a supplementary to Un Starred questionNo. 206 in December 2004, that there were no anomalies inimplementation of V CPC pension Award for Ex-Servicemen;(Para 3 of his statement) when they are there a plenty inblack and white. Please name the person who wrote thisbrief over looking the ground realities.

(m) Will, those responsible for arbitrariness and discriminatorypolicies ever realize that, “if the treatment of those whoserved to protect the national integrity, (giving the best partof their lives) cannot be liberal or constructive and injusticerectified, then, the Defences Forces will be filled with moretime servers than in the past and will stagnate to be a greatwaste of ‘nation’s treasure in time to come”? Indications ofthis unfortunately are already there and very much visibleand disturbing.

(n) Every time the issue of non implementation of the one rankone pension and recommendations of the CPCs is taken up,the response always has been the non existing boggy offinancial constraints. If this (financial constraints) is thehonest truth then will the government please answer whythese very financial constraints were not or are nothindrance or are of no concern and therefore, not applicableto:

(aa) Civilian Pensioners.
(ab) MPs and MLAs.
(ac) Judiciary.
(ad) Granting of pensionary benefits recently to those MPs of bygone days not entitled to so far.
(ae) Recent hike of Rs. 35,000/- in salary/ perks of Delhi MLAswhen the capital suffers lack of proper drainage system,water, electricity and effective law and orders.
(af) MPs, voting for themselves ever increasing salaries,pensions and perks by thousand of rupees so often and nowDA to RS. 1000/-pd when their food, residence and transportis heavily subsidized/
(ag) Misuse of local area development fund by MPs as recentlyexposed; crores are being wasted there being less ofdevelopment and more of corrupt practices.
(ah) Writing off damaged food grains worth crores of rupeesevery year or so because of poor storage and lack ofeffective supervision and control…
(ai) Writing off framers loans and electricity charges worththousand of crores every now and then without eliminatingthe real cause of their problems- grossly reduced fertility ofland due to ever increasing input and over use of expensivechemicals every year.
(aj) Creation of a renewal fund of RS. 500/- crores for the benefitof the labour force of the Public sector Undertakingsincurring recurring losses.
(ak) When crores of rupees of the public money is wasted sooften in the Parliament due to non issues being raised,stoppage of proceedings when the MPs disobey theSpeaker, followed by Frequent walk outs and avoidableadjournment of the House.
(al) When the pension of a lakh of freedom fighters (who are stillsaid to be alive) is increased to over Rs. 10000/- pm when ithas been accepted that more than 40% are fake.
(am) The recent decision to pay Haj subsidies (Rs. 10000/- ph) toadditional 10000 Muslims (total now being 1,10000) everyyear when India is a secular nation and the religion apersonal matter.
(an) Crores being spent on advertisements by the Centre to builtimages of the political leaders.”

And here is what the Hon’ble Commission decided, an interesting order :

Having heard the parties and examined the record we find that indeed each of the questions posed under the heading Information sought and required are not requests for information but assertion with a wealth of innuendo. Even where information can be purported to have been sought, this cannot be defined as information u/s 2 (f) read with Section 2 (j) of the RTI Act and it refers to seeking the identity of those who in the view of appellant ‘conspired’ to deny servicemen their pensions. It can only, therefore, be inferred from the statement of respondent Shri Harbans Singh that such information as is sought by Lt. Col. Kartar Singh is not held by the public authority. What is clear from the application and the arguments before us is that Lt. Col. Kartar Singh nurses a deep grievance in the manner in which decisions of the Supreme Court regarding pre-1986 Defence Services Pensioners Pension have been disposed of.

Whereas, therefore, the request of Lt. Col. Kartar Singh is outside the purview of the RTI Act, giving due weight to the grievance held by this very senior officer of our Armed Forces and with fullest respect for his services to the nation, we have agreed to refer this matter to the Minister of Defence Shri A.K. Antony for sympathetic consideration

CIC rebuffs Department of Personnel & Training

The CIC has once again come down heavily on DoPT for stating on its website that ‘file notings’ are exempted from disclosure under the RTI Act.
The DoPT had in fact recently taken out a circular in which it was mentioned that “If the Central Information Commission, in any particular case, passes order to disclose the file noting, decision may be taken keeping in view the various provisions of the Act.”
The above was done by the DoPT despite the fact that decisions of the CIC are binding under Sec 19(7) of the Act and are not open to interpretation by govt departments. Moreover, it is quite amazing that the DoPT has chosen to substitute the provisions of a statute with its own interpretation.

Click here for the complete order

Army Selection Board Proceedings disclosable

From www.indianmilitarybenefits.blogspot.com
The Central Information Commission (CIC), in an important decision has held that while ACRs of Army Officers are not disclosable under the RTI Act, the same cannot be said about Selection Board proceedings. The Chief Information Commissioner on 06th June 2008, while dealing with an appeal filed by Brig Deepak Grover, has directed the MoD/Army to disclose full information relating to the Selection Board as was sought by the serving officer. The CIC has also not agreed with the govt that disclosure of such information would be detrimental to national security or would result in revealing the ‘organization of battle’.


See the complete order here

Prescribed form for seeking information not mandatory : Punjab SIC

http://www.tribuneindia.com/2008/20080526/punjab1.htm#4

Prescribed form not must for RTI applications
Tribune News Service
Chandigarh, May 25

The State Information Commission (SIC), Punjab, has held that public authorities cannot reject RTI applications on the ground that the information request was not in the form prescribed by the State Government.
The Punjab Government had prescribed ‘Form A’ under the Punjab RTI Rules, 2007, in which RTI applicants were supposed to answer nine queries first before the RTI application could be entertained.
The form was challenged by a local lawyer Capt Navdeep Singh before the full bench of the Commission on the ground that it contravened the provisions of the RTI Act which did not prescribe any such form.
The ambiguity was compounded by the fact that one Bench of the Commission comprising P K Verma had held the application form to be mandatory while another bench of Rupan Deol Bajaj had held that there was no requirement of seeking information in the said format since the Act did not prescribe it.
While holding that a complaint filed under Section 18 of RTI Act was not maintainable, the full Bench, however, made it clear that the rules were only directory in nature and not mandatory and if a sufficiently clear application was made to any public authority then the same could not be rejected for the reason of not being in ‘Form A’.
The Bench also stated that the rules were meant to facilitate information and had to be construed liberally. The commission also held that in case any PIO or appellate authority rejected an application on grounds of it not being in conformity of the state rules, the Commission could direct the supply of the information to the applicant.