Mr. A T Daryani vs Union Public Service Commission on 27 September, 2010

                  CENTRAL INFORMATION COMMISSION
              Appeal No. CIC/WB/A/2009/000704 dated 15-7-2009
                Right to Information Act 2005 - Section 19

Appellant:          Shri A. T. Daryani
Respondent:         Supreme Court of India (SCI)
                                                     Appeal heard 24. 9. 2010
                                                Decision announced 27.9.2010


FACTS

By an application of 27.10.2006 Shri A. T. Daryani of Shivalik, New Delhi
applied to the UPSC seeking the following information:

“In the light of the RTI Act, I may be provided a certified copy of
confidential correspondence with assurance sent to the Min. of
Finance under your letter F. No. //15 (29)/2002-AP2, the requisite
fee of Rs. 10/- is paid vide cash receipt dated 27.10.96.’

To this appellant Shri A. T. Daryani received a response dated 1.11.2006
from CPIO Shri A. K. Dash, Jt. Secretary informing him as follows:

“The Commission have taken up the issue with DOP&T for
providing exemption under section 8 (1) of the RTI Act against
disclosure of records, information and procedures, the disclosure of
which would compromise the objectivity or fairness of testing or
examination process, or processes to determine individual
suitability, eligibility for appointment or promotion in Central/ State
Government services/ post. Pending a decision in this regard by
the govt. the Commission have taken a policy decision that such
sensitive information including minutes of DPC and Assessment
Sheets containing the grading may not be shared with the
applicants. Further, it has been held by the CIC in several cases of
appeal that disclosure of complete proceedings in the DPC and
grades given by officers to their subordinates may lead to
disclosure of the ACRs and as ACRs themselves are barred from
disclosure, by inference the DPC proceedings should be similarly
barred.’

It was only on 20.1.2009 that appellant Shri Daryani then moved his first
appeal with the following payer:-

“Sh. A. K. Dash, Jt. Sec. UPSC vide his letter F.2/15(12)/2006-AP-
2 dated 1.11.2006 had forwarded my request to Deputy Sec &

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CPIO, Min. Of Finance and requested me to await the information
from him.

It is more than two years that I have neither received any reply from
UPSC nor Min. Of Finance. I fail to understand as to why the
CPIO, UPSC preferred to forward my request to CPIO/ Dy. Sec.
Min. Of Finance when the request pertained to UPSC file.

I herewith appeal to you, Sir, to direct the CPIO, UPSC to look into
my complaint and send me the required information since I made a
request to CPIO, UPSC.”

In response the CPIO, UPSC, by then Shri S. C. Srivastava, Under
Secretary, in his letter of 12.2.2009 provided the following information:-

“It is stated that there are a total of 12 pages of the minutes of the
DPC held on 5.9.2003 for which a sum of Rs. 24/- may please be
deposited with the Accounts Officer, UPSC in any mode of payment
prescribed in the Right to Information (Regulation of Fee and Cost)
rules, 2005, before the same are provided to you.”

This amount was paid and the information provided but appellant Shri
Daryani moved an appeal on 20.1.2009 of which we have no copy of record but
regarding which Appellate Authority Shri Rajiv Srivastava had noted as follows in
his order of 28.4.2009:-

“The appellant preferred present appeal dated 19.2.2009 to the
Appellate Authority, UPSC stating that the CPIO, UPSC has
violated sub-section 3 (a) of section 7 of RTI Act by forwarding his
request dated 27.10.2006 to Ministry of Finance and forgot to reply
within the prescribed time under the Act. He has requested to fix
the responsibility for violation of section 7 of the Act.”

In this order in appeal Shri Rajiv Srivastava JS (J&V) has held as follows:-
“When the CPIO transferred the application dated 27.10.2006 of
the appellant, a proposal of the Commission was pending before
the DOP&T for exemption under section 8 (1) of the RTI act.
Pending decision of the DOP&T in this regard, the Commission had
taken a decision not to disclose such record under RTI Act.
Therefore, the CPIO, UPSC had furnished the factual position as
on that date to the appellant by endorsing a copy of the letter
addressed to the CPIO, Ministry of Finance. Later, by the time at
the first appeal dated 20.01.2009 of the appellant was received, a
decision had been taken by the Commission to share the minutes
of the DPC under RTI Act. Therefore, the appellant was provided
the same.

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In light of the above. I don’t see any violation committed by the
CPIO, UPSC in this case.”

Shri Daryani has then moved his second appeal before us where his prayer
is for compensation for the loss and detriment suffered as below:-

“I Rs. One lakh for putting a senior citizen in un-necessary
hassle.

      II     Rs. 25,000 for administrative expenses.
      III    Any action deemed fit by this Appellate Office."

Appellant has gone on to the argument that because of failure to obtain the
information in time, he lost the case before the Central Administrative Tribunal
(CAT) and his career stood ruined.

The appeal was heard on 24-9-2010. The following are present.

Appellant
Shri A. T. Daryani
Respondent
Shri S. C. Srivastav

CPIO Shri S.C. Srivastav, Under Secretary UPSC submitted that although a
response had been given to appellant Shri Daryani as early as 1.11.2006, which
was within the time mandated by section 7 (1), he has appealed only on 22.1.2009.

Since the policy of UPSC had undergone a change in the meantime a sympathetic
view was taken on this appeal, otherwise time barred, and information provided on
payment of the requisite fee. CPIO admitted that the documents provided were not
certified to be true copies but these were readily accepted when they were
personally handed over to appellant Shri Daryani.

Appellant Shri Daryani on the other hand submitted that the failure to
provide documents otherwise accessible to him under the Act had led him to loss
of promotion in 1997 which had a cascading affect so that he loss three
promotions and his juniors superseded him; his appeal was rejected by CAT for
his failure to produce the requisite documents. In response to a question as to
why he had not moved an appeal immediately on refusal Shri Daryani submitted
that he had been in communication with UPSC but had been extended shabby

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treatment. Although he himself was a government servant he was made to run
from pillar to post in the UPSC like a peon. It is only when he became frustrated
with this treatment then he moved his appeal.

DECISION NOTICE

Secretary, UPSC will please take note of the complaint of Shri Daryani of
the mistreatment of an RTI applicant in the premises of UPSC and so restructure
the system as to make it RTI friendly. On the other hand even if we accept the
argument of Shri Daryani, there is a time limit mandated by the law, which we
require to be observed, and there was nothing to prevent appellant from moving his
appeal even while pursuing the matter at the level of CPIO where as per his own
admission he was being treated shabbily.

Nevertheless, on the question of failure of CPIO to provide him the
information sought at the initial stage we must observe that the initial policy of
that public authority was for refusing the DPC. Our ruling in light of the RTI Act
has led to a change in the policy of UPSC. The CPIO cannot be held liable for
penalty simply because he has complied with UPSC policy, although that policy
was misplaced. He has in fact responded to the RTI application of Shri Daryani
well within the time mandated by subsection (1) of section 7. There is, therefore,
no liability for penalty.

On the other hand while we have noted that the information sought by
appellant Shri Daryani has now been provided in response to his appeal, the
demand of CPIO for payment of Rs. 24/-, which has in fact been paid is in violation
of section 7 (6). The DOPT is by no means an authority under the law to
determine the application of exemption under section 8 (1). If the UPSC had a
grievance regarding a decision of this Commission the recourse would have been
to obtain a stay in Writ before the High Court under Article 226 of the Constitution.
This was not done and, therefore, UPSC has forfeited the right to charge fees with
regard to this application. The initial fee charged for the application that was
responded to will remain. However the fee of Rs. 24/- being the cost of information

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provided will now, therefore, be refunded to appellant Shri Daryani within 10
working days of the receipt of this decision notice under intimation to Shri Pankaj
K. P. Shreyaskar, Jt. Registrar, Central Information Commission.

The remaining question is only of whether compensation has become due.
The loss or detriment suffered according to appellant Shri Daryani stems from his
being passed over in promotion from 1997. However, his application is dated
27.10.2006, and it is hence not possible to co-relate the two events. It could,
however be argued that had the information sought been provided in the first
instance appellant Shri Daryani could have contested the matter more effectively.
However, this is a question that must remain hypothetical and we must come to the
conclusion then there can be no realistic assessment of the loss or detriment
suffered. Moreover, the failure of appellant to move an appeal for nearly two years
on refusal of his initial request, and the ready condoning of the delay, hardly bears
out his claim of loss or detriment suffered. But because the UPSC has undoubtedly
erred in refusing information initially on grounds patently invalid, this Commission
directs that a token compensation of Rs. 5000/- be provided to appellant Shri
Daryani for the detriment suffered in the form of psychological stress arising from
the failure of UPSC to provide the information to Shri Daryani required for his
career development, in the first instance. This compensation will be paid to Shri
Daryani within 10 working days of receipt of this decision notice under intimation to
Shri Pankaj K. P. Shreyaskar, Jt. Registrar, Central Information Commission. The
appeal is thus allowed in part. There will be no other cost

Reserved in the hearing with regard to issue of compensation. The
complete decision is announced in open chamber on this twenty-seventh day of
September 2010. Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
27-9-2010

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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
27-9-2010

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