CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00755 dated 11-5-2007
Right to Information Act 2005 - Section 19
Appellant: Col. R.S. Tiwary, NOIDA
Respondent: Defence Research & Development Orgn. (DRDO)
FACTS
Col. R.S. Tiwary of NOIDA moved two applications dated 9-11-06 before
the PIO, DRDO seeking following information in each:
Application No.1
“1. In case of pensioners the competent authority has to
ensure appropriate action to restore pension suo motto.
Kindly inform the action taken by DRDO in this regard.
2 Kindly inform the action taken on my letter dated 31.06.06.
If casualty/ part-II Order for restoration has been
published, kindly forward a copy of the same to me.”
Application No. 2
“1. Please provide a certified copy of the Selection Board
proceedings of 1989 as applicable in my case with copies
of the note sheet. The Hon’ble High Court of MP had
also perused these documents. The documents were not
shown to me, as, at that time, the RTI Act was not
prevailing.
2. When the above Court’s order was passed, ordering to
take action within a period of 4 months what action was
taken by DRDO to implement the order within the time
limit set by the Court. Please provide copies of the note
sheets.
3. I had sent a registered letter dated 28.12.05, forwarding a
copy of the Court’s order with request to kindly implement
it as soon as possible as I retired from DRDO 16 years
ago and all my contemporaries have also retired.
Therefore, its implementation would not lead to any
administrative complications. This letter has not been
responded till date. Kindly provide the minute sheets of
action taken on this letter. This letter along with Court’s
order is enclosed as Annexure-1.
4. I sent another registered letter dated 13.4.06, which has
also not been responded till date. Kindly furnish the
copies of minute sheets of action taken on this letter.
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5. Another reminder was sent by registered letter dated
22.5.06, enclosed as Annexure-3. No response has been
received till date. Kindly furnish the copies of the note
sheets to know the action taken on this letter.
6. Another registered letter dated 23.6.06 was addressed to
Dr. W. Selwamurthy CCR & D, (LS & HR), enclosed as
Annexure-4. This letter was written under the impression
that since I had served DRDO together with Dr.
Selvamurthy while in DIPAS, probably, he would be more
sympathetic towards me and the needful would be done.
There is no response to this letter also. If Dr.
Selwamurthy has forwarded this letter to the concerned
section of the office, kindly inform the action taken on this
letter along with the copies of the minute sheets.
7. The DRDO should not take shelter of the word
“Subjudice” for not furnishing information, as the
subjudiced matter is not exempt from disclosure of
information under section-8 of the Right to Information
Act- 2005.
8. It is also submitted that in the defence forces the soldier’s
welfare is one of the top most matter. But I have recently
learnt that DRDO is contemplating to file a revision of the
case or an appeal against the judgement of Jabalpur
Court. Where is the welfare of the solider who has retired
from the forces 16 years ago, when the court has decided
matter after 15 years of litigation, and now, instead of
implementing the court’s verdict, it is being contemplated
to file an appeal, which would take another 15 years?
Probably, much before the decision on appeal, I would be
dead. Is this the welfare? IF DRDO could not do justice
in 17 years, at least the opportunity provided by the court
could have been grabbed to do the justice.”
These applications were received in DRDO on 13-11-06, upon which
appellant Col. Tiwary received the following response dated 8-12-06 from Maj.
Gen. Umang Kapur:
“DRDO has been placed in the Second Schedule of the said Act
through a notification by Ministry of Personnel, Grievance and
Pension, Dep’t of Personnel and Training, thereby exempting
DRDO from the application of the general provisions of the said
Act, except for issues of Human Rights violation and/
corruption.”
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Aggrieved by this, Col. Tiwary moved his first appeal in both cases
before Shri K. Sheshiah, Director (Estt.) CPIO, MOD upon which he received
the following response, again from CPIO Maj. Gen. Umang Kapur, Director,
C-Tec, DRDO on 2-2-07 as follows:
“No wrong information was made available to you. We have
obtained clarification from AGs Branch (PS-5) on Army’s
instructions on restoration of commuted value of pension.
We quote the following:
“Commuted value of pension is restored suo moto by the office
of PCDA (P) after a period of 15 years from the date of grant of
commuted value of pension. However in the event of non-
restoration of commuted value of pension, the veteran officer
may be advised to apply to his PDA (Pension Disbursement
Authority) in the enclosed proforma”.
A copy of proforma is enclosed.
(b) Your contention regarding mention of DGAFMS (MPRSO)
as a deliberate act to harass you is not true. In fact office
of DGAFMS was quoted as a facilitator in case you
encountered any difficulties with CDA (P).
(c) As regards implementation of judgement of 28th October
2005, pronounced by Hon’ble High Court Judicature of
Jabalpur, Write Appeal has been filed and the Court has
admitted the WA 17/2006. Therefore, we have to await
Court’s subsequent order on the WA for taking necessary
action in the matter. Since you have sought redressal on
this issue through the Hon’ble High Court at Jabalpur, it
would not be appropriate to give any reply on this issue at
this stage pending final verdict by the court.”
Appellant has then moved his second appeal before us with the
following prayer:
“DRDO be directed to inform the action taken by it to restore my
commuted value of Pension, on its own as a responsible
employer & in response to my letter dated 31.8.069 AND
18.8.06 along with copies of note sheets.
DRDO be directed to inform the action taken by it on the High
Court’s directive and in response to my letters dated 28.12.05,
13.04.06, 22.5.06 & 23.6.06 along with copy of note sheets on
every letter.
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DRDO be directed to if form the reasons for not replying all my
letters, whether favourable to me or not, as expected from
responsible officials of a GOI office.
DRDO be directed to provide copy of the selection committee
proceeding held in Feb’89 which recommended deferment of my
promotion, as the reasons for deferment have not been
communicated to me which is my fundamental right to know.
Moreover, the Section-8 of RTI Act does not bar provision of
information of the subjudice cases. The judiciary itself is not
exempt from the RTI Act.
Appropriate action be taken against the CPIO, DRDO for
violating the RTI Act 2005 and not providing information sought.
I may also be provided all the arrears of my pension with interest
recoveries from the CPIO.”
In this appeal, however, he has also made the following submission:
“The information sought in both the above cases fall under the
violation of Human Rights. It is elaborated as under:-
(a) India is a party to the International covenant on civil &
political rights & the International covenant on economic,
social & cultural rights adopted by the General Assembly
of the United Nations on 16th Dec’66. The Human Rights
adopted in the aforesaid covenants stand substantially
protected by the Constitution of India.
(b) The expression “Human Right” has been defined in
section 2 (D) of the Act according to which Human Right
means the right relating to life, liberty, equality & dignity of
the individual guarantied by the constitution or embodied
in the International covenant enforceable by the courts of
India. From the definition itself it is clear that concept is
manifold & involves almost every aspect of life.
(c) The International covenants on economical, social &
cultural rights, 1966, which came into force on 3rd Jan’76
states as under:-
ARTICLE 6-1 The states parties to the present covenant
recognize the right to work which includes the right of every one
to the opportunity to gain his living by work which he freely
choose or accepts & will take appropriate steps to safe guard
this right. This covers my right to get my pension in time, which
is consequent to my work for 26 years in Army & DRDO.
ARTICLE 7 (B) The states parties to the present covenant
recognize the right to equal opportunities for every one to be
promoted in his employment to an appropriate higher level,4
subject to no consideration other than those of seniority and
competence.”
In his response to the appeal notice CPIO Maj. Gen. Umang Kapur in
his letter of 11-9-08 has submitted as follows:
“Col (Retd) Tiwary felt aggrieved by his deferment to the rank of
Brig and therefore, filed a Writ Petition No. 767/93 in the High
Court of MP at Jabalpur. This WP was partly allowed By
Hon’ble Court vide Order dated 28th October 2005. He
approached RDO to implement the Judgement. This judgement
was examined in detail and an LPA No. 17/2006 was filed which
was dismissed vide order dated 05th April 2006 on technical
grounds. Subsequently, a restoration petition MCC 1348/2006
was filed. The matter was heard on 03rd Jan 2007 and the LPA
No. 17/2006 was restored and described as writ Appeal is
awaiting hearing.
The applicant is fully aware of this development and also filed a
contempt petition No. 2701/2006 against which the counter
affidavit has been filed in Feb 2007 this matter is also awaiting
hearing.
While this issue was under examination, the office completed 15
years period after retirement and was eligible for restoration of
pension. The pension of the officer is restored to the appellant
by PCDA (P). Allahabad vide their PPO No.
M/CORR/3028/2008 dated 04th Dec 2007 and PPO dispatched
to the officer’s link Bank on 29 April 2008.
In view of the above, I pray to CIC not to take this issue into
consideration and dismiss his appeal.”
The appeal was heard on 17-9-2008. The following are present.
Appellants
Col. R.S. Tiwary
Respondents
Shri S. S. Bundela, PIO.
Air Commander N. D. Sharma, Addl. Dir.
Shri J. B. Singh, Jt. Dir.
Col. Tiwary presented a letter of 4-9-’08 in which he has submitted that
the first case regarding restoration of pension has been solved by CDA
(Controller of Defence Account, Allahabad) “and I have started getting
pension w.e.f. January 2008. Therefore, though, DRDO, either denied or
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furnished wrong information, I request your Honour to kindly drop the first
case.”
Shri S.S. Bundela, PIO submitted that the remaining application is of a
routine matter of personnel management i.e. promotion to the rank of
Brigadier. This cannot be construed as an allegation of human rights violation.
Col. Tiwary on the other hand submitted that this would amount to human
rights violation as per Article 7 (b) of the International Human Rights
covenants as quoted by him in his appeal before us.
DECISION NOTICE
It is undisputed that the DRDO is listed in the Second Schedule as
amended vide GSR No. 347 dated 8-10-05 at serial No. 20 and is therefore
not covered by the RTI Act 2005. Appellant has indeed taken recourse in his
appeal before us, to the proviso to Section 24 (1) which reads as follows:
“Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the
information shall only be provided after the approval of the
Central Information Commission, and notwithstanding anything
contained in section 7, such information shall be provided within
forty-five days from the date of the receipt of request.”
However, on examination of the record we find that there is, in fact, no
allegation of human rights violation either in the original application of 9-11-06
or in the first appeal of 6-1-07. This issue has only been raised in support of
appellant’s plea for promotion in his second appeal before us, but not as an
allegation of human rights violation. As will be seen from the quotation above,
the prayer before us makes no allegation of human rights violation.
Under the circumstances we cannot see in what way the proviso to
section 24 (1) can be invoked in a matter of routine human resources
management of the DRDO, an institution that is clearly outside our jurisdiction
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as per Section 24 (1).This Appeal being unsustainable under the RTI Act
2005 is, therefore, dismissed.
Announced in the hearing. Notice of this decision be given free of cost
to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
17-9-2008
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
17-9-2008
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