CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/00076 dated 16-2-2009
Right to Information Act 2005 - Section 19
Appellant: Shri Krishan Murari
Respondent: Dep't o Personnel & Training (DOPT)
Decision announced: 26.4.2010
Facts
In a decision of 26-6-2008 in CIC/WB/A/2007/00463; Krishan Murari
Vs. Ministry of Defence we have found as follows:
“It is quite clear as per notification of 26-8-1971 that the regulation
of reserved vacancies in Central Services and Posts Class I & II for
the released emergency commissioned officers and short services
commissioned officers of the Armed Forces of the Union had been
issued by the Cabinet Secretariat, Department of Personnel under
No 9/20/69-Ests (C), dated 26-8-1971. To this the DOPT is the
successor department. There is, therefore, little basis for the CPIO
in the DOPT pleading that the information did not pertain to that
department. This submission is, in fact, not a statement of fact but a
plea for evasion of responsibility. Shri P.K. Mishra, Under Secretary
& CPIO, DOPT to whom the original application of Shri Krishan
Murari dated 23-1-2007 was addressed will now show cause as to
why he should not be held liable for penalty of Rs. 25,000/- @ Rs.
250/- a day commencing from 23-2-2007 when the information
became due for having wrongly transferred this matter when in fact,
DOPT was the concerned authority u/s 6 (1) of the RTI Act.
Shri P.K. Mishra, Under Secretary & CPIO, DOPT will also ensure
that the information sought by the appellant is now provided to him
within 10 days of the date of issue of this decision notice and
submit compliance of these orders on 11th July, 2008 at 10.00 a.m.
when he is directed to appear before us in response to show cause
notice issued above. Whereas the questions of appellant Shri
Murari will be provided point wise, in case there are no orders
covering other than Class I and Class II employees, this will be
required to be intimated
Consequently, in our decision of 11-7-08 this case was closed with the
following order:
“It is a matter of satisfaction that records which had earlier been
considered untraced have in fact, as a consequence of a
request made under the RTI Act, 2005 been traced, the
concerned public authority holding those records identified and
the information in accordance with records held, to meet the
definition of Right to information u/s 2 (f), supplied to appellant1
Shri Krishan Murari. While, therefore, appellant Shri Krishan
Murari deserves to be commended for having persisted with
obtaining information on the matter, which has a direct bearing
on national interest, CPIO Shri P. K. Mishra, Under Secretary to
the Govt. of India, DOPT also deser5ves commendation for
having traced this record, as soon as he became aware that this
was information held by the DOPT. This has brought to a
satisfactory conclusion, a search that has covered Ministry of
Home Affairs, Ministry of Defence, Army Headquarters besides
Department of Personnel & Training. Now, if not satisfied with
the information received appellant Shri Murari is free to move his
first appeal before the 1st appellate authority DOPT u/s 19 (1) of
the RTI Act. The delay in sending the response is, however,
explained and can be understood to have occurred through
reasonable cause. Therefore, no penalty will lie.
The appeal is now closed.”
Subsequently, Shri Krishan Murari moved an appeal before Shri P.
Prabhakaran, DS, DOPT on 23-7-08, with reference to this decision, with the
following plea:
“The CPIO has not provided the information in respect of Para 1
and Para 2 (a) of my application dated 23.1.2007.
I, therefore, humbly appeal to your good self to kindly provide
information in respect of Para 1 and Para 2 (a) of my application
dated 23.1.2007 (copy again enclosed). The Para 1 and Para 2 (a)
are reiterated below.
1. Whether, Central Government had issued different
circulars and advertisements on the Radio and in the Press promising
certain benefits to be given to those young men (Enrolled or
Commissioned Officers) who join the military service;
If so, kindly provide copies of the Notification/ Circular
instructions.
2. Whether Central Government had framed National
Emergency Concession Rules similar to State Government of Punjab/
issued Notification to all the Ministries/ Public Sector Undertakings
granting certain benefits as Promised (increments, seniority and
pension) who are re-employed in Central Government Services/ Public
Sector Undertakings;
If so, kindly provide copies of Notification/ Circular instructions in
respect of
(a) Enrolled (Ex-serviceman).”
This is a replication of what appellant Shri Krishan Murari had sought
against the same serial numbers in his initial application of 23-1-07 then
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addressed to the CPIO, MHA. On this, Shri Prabhakaran passed the
following order:
“Keeping in view the information desired by you during
discussion the details from CPIOs dealing with Estt (Pay &
Allowances) in respect of increments/ pension and Estt. (D) in
respect of seniority have been collected. In addition the CPIO
dealing with ex-servicemen has also been consulted. Based on
the information desired by you in your letter dated 23.7.2008
and that desired by you during your visit on 28.7.2008. I am
sending you the following information:-
a) In respect of Point (1) of your letter dated 23.7.2008, a
copy of the Notification No. 14/11/68.Estt.(D)/Estt. (C )
dated 13th February, 1969 regarding reservation of
vacancies in the Central Civil Services and Posts, Class
III and Class IV is enclosed. The information relating to
Reservation of vacancies in respect of Released
Emergency Commissioned Officers as well as Short
Service Commissioned Officers has already been
furnished to you by the CPIO (Estt. C) vide letter dated
10.7.2008.
b) With reference to Point (2) of your letter dated 23.7.2008,
it may be mentioned that the Government have not framed any
National Emergency Co9ncession Rules. However, DOPT have
issued orders vide OM No. 3/1/85-Estt. (P.II) dated 31.7.1986
regarding the fixation of pay and other benefits on re-employment of
ex-servicemen pensioners as also civilian pensioners and governed by
the Central Civil Services (Fixation of Pay of Reemployed Pensioners)
Orders, 1986, a copy of which is enclosed.
c) For your convenience, the names of concerned officers
are given below:-
(i) For matters relating to grant of increment/
pay fixation of re-employed pensioners the
concerned CPIO is Smt. Raj Bala Singh, Under
Secretary, Estt. (P&A).
(ii) For matters relating to seniority the
concerned CPIO is Shri R. D. Talukdar, Under
Secretary, Estt.(D).
(iii) For matters relating to ex-servicemen the
concerned CPIO is Shri A. K. Cashyap, Under
Secretary, Estt. (Reservation).”
This has brought Shri Krishan Murari in second appeal once more
before us with the following prayer:
“Appellate Authority has not provided the copies of
different circulars which Central Government had issued
and advertised on the Radio and in the press promising
certain benefits to be given to those young men (Enrolled
or Commissioned Officers) who join the military service.
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Kindly issue necessary direction to the Appellate Authority
to provide information as per my submissions in the
enclosed.”
Thereafter Shri Krishan Murari pleading that he being a cancer patient
of advanced stage should be given an early hearing. The appeal was heard
on 26-4-2010. Only appellant Shri Krishan Murari is present. When
contacted on the telephone the DOPT informed the Registry that the CPIO is
deceased and the Appellate Authority had not received the notice of hearing.
This submission is not acceptable since the notice of hearing sent on April 9,
2010 has been received by the appellant on 18-4-10. We, therefore,
proceeded to hear this case ex parte.
Appellant Shri Murari submitted that in its order in Civil W. P. No.
1060/90 Dhan Singh and Ors. Vs. State of Haryana and ors; W. P. (C) No.
1159/89-Sukhbir Singh and Ors. vs. State of Haryana and Ors; W. P. (C )
No. 959/89 Ex. Captain R. Thal vs. State of Haryana and Ors., announced
on December 5th 1990, Hon’ble Supreme Court of India has found as follows:
“On account of the external aggression by the Chinese focus in
the Indian territory, the emergency was imposed by the
President of India in 1962. In order to interest young men to join
military service at that critical juncture, the Central Government
and the State Governments issued different circulars and
advertisements on the radio and in the press promising certain
benefits to be given to those young men who join the military
service.
The young persons who have joined the military service during
the national emergency and those who were already in service
and due to exigencies of service had been compelled to serve
during the emergency form two distinct classes. The appellants
and the petitioners who joined the army before the proclamation
of emergency, had chosen the career voluntarily and their
service during emergency was as a matter of course. They had
no option or intention of joining the government service during
the period of emergency as they were already serving in the
army. The persons who enrolled or commissioned during the
emergency, on the other hand, had on account of the call of the
nation joined the army at that critical juncture of national
emergency to save the motherland by taking a greater risk
where danger to the life or a member of the armed forces was
higher. They include persons who could have pursued their4
studies, acquired higher qualifications and joined a higher post
and those who could have pursued their studies, acquired
higher qualification and joined a higher post and those who
could have joined the government service before attaining the
maximum age prescribed and thereby gained seniority in the
service. Forgoing all these benefits and avenues, they joined
the army keeping in view the needs of the country and
assurances container in conditions of service in executive
instructions. The latter form a class by themselves and they
cannot be equated to those who joined the army before the
proclamation of the emergency. Benefits had been promised to
such persons who headed to the call of the nation at the critical
juncture.”
He, therefore, submitted that the information that he was seeking was
with regard to the benefits provided to enrolled ex-servicemen in keeping with
the promises referred to in the order of Hon’ble Supreme Court regarding
which DS Shri P. Prabhakaran has conceded only in terms of emergency
commissioned officers as well as service commissioned officers but not ex-
servicemen pensioner re-employment equating the latter with the general
circular issued in 1986 which, in his view, is inapplicable in cases such as his
own in light of the ruling of the Supreme Court of India as underlined by us for
reference in the quote above.
DECISION NOTICE
Section 2 (j) of RTI Act reads as follows:
2 (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 the right to–
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents
or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies,
tapes, videocassettes or in any other electronic mode
or through printouts where such information is stored
in a computer or in any other device;
In the present case it would normally be assumed that all information
as is held by the Estt. C Wing of the DOPT on the subject at issue has been
provided. However, since the information sought by appellant Shri Krishan
Murari is very specific in terms of the application of the “promises made” to
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persons enrolled in the services during the emergency, CPIO, DOPT will
confirm within 10 working days from the date of receipt of this decision notice
that there are no special rules, instructions, orders, held by the DOPT with
regard to ex-servicemen who enrolled in positions other than emergency
commissioned officers or short service commissioned officers which would
constitute information as described in the ruling of the Apex Court quoted
above, especially the underlined sentence. This appeal is disposed of
accordingly
Announced in the hearing. Notice of this decision be given free of cost
to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
26-4-2010
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO
of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
26-4-2010
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