Central Information Commission
CIC/AD/A/09/000658
Dated June 10, 2009
Name of the Applicant : Mrs. Veena Bhat Pandita
Name of the Public Authority : Department of Telecommunications
Background
1. The Applicant filed an RTI application dt. 4.6.08 with the CPIO, DOT, New
Delhi requesting for the following information:
i) Copies of note sheets of the file no. 11-3/2006/STG-I and also
inspection of file no. 11-3/2006/STG-I regarding promotion case of
TES Group B
ii) Copy of letter No. 5-1/2000/STGI.Pt dated 20.3.2001 from Secretary,
DOT to UPSC
iii) Copy of letter dater dated 16.5.07 from UPSC wherein the proposal in
file No. 11-3/2006/STGI dated 18.8.06 was returned by UPSC
2. The CPIO replied on 24.6.08 stating that as the final decision in the matter
regarding point (i) is yet to be taken it may not be possible to provide the
copies of the note-sheets or allowing inspection of file. He enclosed a copy of
letter sought in point (ii) and in the case of point (ii) he stated that the UPSC
is being requested for their comments regarding furnishing their letter dated
16.5.07 . He also added that as regards copies of file notings sought vide
letter dated 9.6.08, the final decision on the matter is yet to be taken and
therefore it may not be possible to provide copies of the same at this stage.
3. Not satisfied with this reply, the Applicant filed an appeal before the Appellate
Authority on 24.7.08 requesting that timely information against point (i) be
provided to her since she had sought the information many months prior to
her appeal in respect of her promotion case. She also reiterated her request
for copies note sheets in case the final decision in the matter has not been
taken. She further added that in case it is not possible to allow her to inspect
the files, she may be provided with copies of the note sheet numbering N/43
to N/53 urgently as the same were required for her petition filed in the CAT.
With regard to point no. (iii) in her RTI request she stated that she has not
been provided with the copy of the letter sought by her.
4. The Appellate Authority, in his Order dated August 2008 (date not given)
provided pointwise comments as follows:
(a) In connection with the furnishing of copy of note sheets/nspection of
file, it is intimated that the issue being dealt in F.No.11/3/2006-STG-I
has not yet been finalized. As such it may not be possible to provide
the copies of note-sheets/inspection of files at this stage.
(b) The UPSC was requested vide letter dated 24.6.08 to intimate as to
whether their letter dated 1.5.08 could be furnished in connection with
information furnished under RTI Act. The comments of UPSC in this
regard are awaited. The UPSC is again being requested to furnish
their comments at the earliest.
5. Being aggrieved with the continuous denial of information sought, the
Applicant preferred a second appeal before the CIC on 4.5.09 stating that
she has been denied information by both the CPIO and the Appellate
Authority and that the delay and denial of bonafide information has caused
her severe mental tension, financial loss and burden effecting the court case
in CAT,Delhi.
6. To a letter dated 23.5.09 from the Applicant reminding the Appellate
Authority to provide her copies of note sheets of file No. 11-3/2006/STG-I
wherein promotion of /DPC case of TES Group B to JTS Group A has been
processed, the latter replied on 27.4 09 informing the Applicant that the final
decision in the matter of promotion has not yet been finalized and that it is
not possible to furnish copies of file notings and inspection of files till the
promotion case is finalized.
7. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the
hearing for June 10, 2009.
8. Mr. R. R. Tiwari Dir (Staff) cum CPIO represented the Public Authority
9. The Applicant was present during the hearing along with Mr. S.N. Pandita.
Decision
10. The Respondent submitted that the contention of the Appellant that she had
been denied information is correct since she had been intimated well within
the statutory period that copies of file notings and inspection of files can only
be allowed after finalization of the promotion case of TES Group B to JTS
Group A. He stated that the matter of promotion is confidential until the
decision is taken and the Orders are issued. According to the Respondent,
allowing the copy of note sheets and inspection of file would have affected
the process of promotion of officers concerned. He also added that the delay
in finalization of the case is due to the Appellant herself since she has filed
Original Applications, Miscellaneous applications, Contempt Applications
before the Hon’ble CAT. The Hon’ble Tribunal, according to the Respondent,
has allowed the Department to make promotion to JTS and the process of
promotion from TES Group B is likely to be finalized shortly. He assured the
Commission that immediately after finalization of the promotion case the
copies of note sheets would be provided and inspection of files allowed.
11. The Appellant submitted the following arguments for seeking the information.
(i) Information sought is vital and significant since it relates to illegal
cancellation of 75 promotee quota vacancies of the year 2001-02
resorted by the DOT to deny consideration of promotion to TES
Group B.
(ii) Following direction of Hon’ble CAT , Delhi dated 12.5.06. the
Department intimated 108 promotee quota vacancies of ITS Group
A, including 75 for 2001-02, 9 for 2002-3 , 21 for 2003-04 and 3
for 2004-05, for consideration of TES Group B officers to the UPSC
and submitted a proposal for conducting DPC (Ref. letter dated
18.8.06 from Under Secretary, SCT). This proposal was returned
unconsidered by the UPSC for conducting DPC on 16.5.07 since
the Department had submitted the list of ineligible candidates who
had since been absorbed in BSNL (PSU Corporation) and ceased to
be Government servants. It is the Appellant’s contention that as
such the action of the Department in sending the list of ineligible
candidates is in violation of the Tribunal’s Order dated 12.5.06 .
The relevant portions of the Order against OA No. 1066/2005
dated 12.5.05 , pertaining to this case are as given hereunder:
….. The Recruitment Rules do not provide that direct
recruitment for a particular vacancy year is a condition
precedent for consideration of the feeder grade , eligible
officers or promotion to JTS for the vacancy year. If the
vacancies for for the year 2001- 02 and 2002-03 pertaining
to 50% promotion quota are available, respondents are
bound to consider the eligible feeder grade officers for
promotion in accordance with the recruitment rules and
instructions for holding DPC
….. The respondents shall immediately approach the UPSC
for convening the DPC expeditiously for filling up 75
vacancies which are available in 50% promotion quota
pertaining to the vacancies in 2001-02 by considering
eligible officers.
(iii) The Department, instead of sending the revised list of eligible
TES Group B offiers of DOT, to consider promotion for the 108
already intimated vacancies (as already explained in point (i) ,
sent the proposal to consider only 33 vacancies on 4.4.08
showing favour to some while ignoring the claim of other
eligible TES Group B officers and illegally cancelled the earlier
intimated 75 quota promotee vacancies of the year 2001-02. It
is the Appellant’s contention that the 75 promotee quota
vacancies resorted by the Department were illegally cancelled
by the Department on the pretext that these vacancies
pertained to BSNL. According to her the illegal cancellations of
75 vacancies resorted by the Department is contrary to the
repeated advices of DOP&T and the Legal Department of DOT
and is on record in the note sheets sought by her
(iv) The Appellant further averred that the cancellation of the 75
promotee quota vacancies , without any proper explanation, has
resulted in denial of promotion to the Appellant and other similarly
eligible TES Group B officers. She supplemented her argument
with a reply she had received from the CPIO dated 12 July, 08 to
an earlier RTI request, stating that all the officers of JTS of ITS
Grup A were holding civil posts (including the Government
posts operated in BSNL/MTNL) prior to their promotion to
STS of ITS Group A. These officers were promoted to STS of
ITS Group -A against the civil posts (including the Govt.
posts operated in BSNL/MTNL). However, the Appellant
pointed out that that as per information received from the
CPIO vide another letter dated 22.7.08, no JTS posts were
converted to non – civil posts. (Those converted were JAG –
7, STS-18, SAG -43 and HAG -16). Hence the Group A pots
including that of JTS operated in BSNL/MTNL/TEC/VTM Cells and
DOT are Government civil posts and also that no JTS post in BSNL
was converted into non-civil post.
(v) The Department has been making promotions continuously in ITS
Group A from JTS to STS, STS to JAG and JAG to SAG and has even
made direct recruitments in the JTS of ITS Group A in BSNL and MTNL
with the approval of UPSC. (Orders dated 27.1.05, 8.5.06 and
16.7.08 on the ground that they are all cvil posts . However when it
came to promotion to JTS of ITS Group A against the 75 promotee
quota vacancies, the authorities cancelled the vacancies with
malafide and ulterior motives based on sheer bias that ITS cadre
nurses against the promotee stream officers. .
(vi) The Appellant further contended that the Authorities have not come clean
on the number of vacancies for the consideration of promotion of the
Appellant and other similarly eligible officers of TES Group B to JTS of ITS
Group A and this evident from judgment of Hon’ble CAT, New Delhi dated
28.11.08 . Relevant portion of the Order is as given hereunder:
….. On careful consideration of the rival contentions of the
parties, in our considered view, Government has prerogative to
calculate vacancies and thereafter to effect promotion. Earlier, a
dicta of the Tribunal in consonance with the statutory rules
earmarked consideration of TES Group B officers to JTS of ITS
Group A against 50% quota of promotion, this was not subjected
to availability or otherwise as to the rest of the 50% of the direct
recruitment.
…… In our considered view when a specific direction has been
issued by the Tribunal to consider in a particular manner the claim
of the Applicant for promotion in TES Group B as a feeder
category, no other methodology could b adopted which not only
goes against the statutory rules bu also infiltrates into the area
occupied by the Judicial dicta. As such the directions of the
Tribunal have been made otiose and redundant by the
respondents. What we find is that while calculating the vacancies,
the policy decision taken by the respondents in 2006 by
interchangeability of STS officers had foreclosed even the chances
of promotion of the Applicant and the consideration thereof has
not only prejudiced the Applicant but denied fair consideration on
equitable basis, which being a fundamental right has been
infringed.
…… A good administration would be when their respective
claims are balanced in such a manner that no cadre is denied
fair consideration on equitable basis in the matter of
promotion. The decision taken by the respondents in 2006 and
reiterated in 2007 is wholly contrary to their initial decision of
2004 needs to be reviewed on re-examination.
The Appellant averred that despite the Orders of the CAT given
hereinabove, , the Department sent only a curtailed list of 33
vacancies, thereby showing favour to some while ignoring the claim of
other eligible officers including her.
12. On 12 June, 2009, as directed by the Commission, the CPIO submitted a
synopsis of the case indicating the position with regard to the promotion
of TES Group B officers to JTS of ITS Group A in the Department of
Telecom.
He stated as follows:
………. Mr.V.S.Tomar and others (officers of TES Group B) had filed
an OA 1066/2005 before the Hon’ble CAT, Principal Bench seeking
directions of the Hon’ble Court for expeditious holding of DPC for
promotion to JTS of ITS Group A for the years 2000-01, 2001-02,
2002-03 and 2003-04. In this OA, the Hon’ble CAT vide order
dt.12.5.06 had directed the Respondent to make the proposal for
promotion to JTS of ITS Group A for the vacancies pertaining to
50% promotion quota to UPSC. In its order dt.12.5.2006 the
Hon’ble CAT has observed that the eligible officers shall be
considered for promotion if the vacancies pertaining to 50%
promotion quota are available.
The DPC for promotion to JTS of ITS Group A against the
vacancies of 2000-01 has been held in September, 2005 i.e.
before the judgment dated 12.5.2006. In compliance to the
directions of the Hon’ble CAT, the Department had sent a proposal
to UPSC vide letter dt.18.8.06 for holding DPC for promotion to
JTS of ITS Group A against the 75, 9, 21 and 3 vacancies for the
vacancy years 2001-02, 2002-03, 2003-04 and 2004-05
respectively. After prolonged correspondence, the UPSC vide
letter dt.16.5.07 returned the proposal to the Department on the
following grounds:
i) To exclude the officers who had been absorbed in PSUs
w.e.f 1.10.2000 from the seniority list/eligibility list; and
ii) To recalculate the vacancies against civil posts only, which
do not include the vacancies of BSNL/MTNL.
The Commission also advised to take the opinion of DoP&T in the
matter, if felt necessary.
As regards direct recruitment for the vacancy year 2001-02, the
Department had intimated 75 vacancies to UPSC for being filled up
in ITS Group A through Engineering Service Examination (ESE) –
2001 for meeting the requirements of its PSUs. In this
connection it was intimated to the Commission that the successful
candidates may have to work on deemed deputation in a PSU and
may be required to get absorbed in the PSU thereafter and in no
case a recommended candidate will be left out unabsorbed.
However, the UPSC did not include ITS Group A in its notification
for ESE-2001 in view of formation of BSNL and refused to carry
out recruitment in respect of services/posts transferred to BSNL.
The advice of UPSC at (ii) above for considering only civil posts
against the promotion quota was consistent with their earlier
stand in the case of direct recruitment. The direct recruitment
vacancies for the remaining years were intimated only for the
requirements of DoT.
As per the advice of UPSC, the matter was referred to DoP&T
seeking their advice on exclusion of the absorbed officers of TES
Group B from the seniority list and making the vacancies for the
year 2001-02 as zero since these vacancies were not available in
DoT and were vacancies of BSNL. The DoP&T have concurred with
the views of UPSC so far as (i) above is concerned. As regards (ii)
above, the DoP&T have stated that the 75 vacancies existing in
BSNL/MTNL for the vacancy year 2001-02 may also be included
for holding DPCs. The matter was further taken up with
Department of Legal affairs, who had opined for considering only
DoT optee officers in the DPC and to make the vacancies for 2001-
02 as NIL as these vacancies were not available in DoT. In view
of these facts, a fresh proposal was sent to UPSC by excluding the
absorbed officers of TES Gr.B from eligibility list and also
excluding the 75 vacancies pertaining to BSNL/MTNL.
The proposal sent to UPSC contained the 9, 21 and 3 vacancies
(total 33), respectively, for the years 2002-03, 2003-04 and 2004-
05. The Commission was also intimated to consider the vacancies
occurring due to retirement of empanelled officers should be
taken into account for holding DPC for the vacancy year upto
2008-09.
In the meantime, the Appellant filed an OA No.1298/2008 before
Hon’ble CAT, Principal Bench challenging the interchangeability of
posts of JTS/STS in TERM Cells. In this OA the Hon’ble Tribunal
vide order dt.8.11.08 had stayed the process for holding of DPC
for promotion and further directed to pass a speaking order to the
Appellant. In compliance with the directions of the Hon’ble Court
a detailed speaking order dt.4.12.08 was issued. The Appellant
had filed a contempt case before the Hon’ble Tribunal in which a
direction was again given by the Hon’ble Tribunal to pass a fresh
speaking order. Accordingly, again a speaking order dt.19.3.09
was issued to the Appellant. However, she had again filed a
contempt before the Hon’ble Tribunal which was disposed of by
the Hon’ble Tribunal vide order dt.8.5.09 giving liberty to the
Appellant for challenging the speaking order dt.19.3.09 passed by
the Department in appropriate proceedings.
After settlement of the court case filed by the Appellant, the DPC
for promotion to JTS of ITS Group A was held in UPSC in May,
2009 for the vacancy year 2002-03 to 2008-09. The
recommendation of the DPC has also been approved by the
Appointing Authority i.e Hon’ble Minister of State and the order
for promotion of TES Group-B officers to JTS of ITS Group A has
also been issued on 12.6.09. With the issuance of the promotion
orders, the decision/action in this case has been finalized.
13. The CPIO further added that now that the final decision in the
matter of promotion of TES of Group -B officers to JTS of ITS
Group A has been taken, and the file is now available with the
undersigned, the Appellant may inspect the file on a mutually
convenient date.
14. On careful consideration of the submissions of both parties, the
Commission holds that denying the information by merely stating that the
decision regarding promotion from TES Group B is likely to be finalized
soon, without clearly explaining under what clause of Section 8(1)the
information was denied is not acceptable. The Appellant had a right to
know why a curtailed list of 33 officers was sent to UPSC, instead of the
original 75 as reported earlier for the proposed DPC vide letter dated
18.8.06., leaving out other eligible officers without any logical
explanation. (It was noted by the Commission that an attempt was made
at explaining away the action by the Department by stating that officers
were promoted to STS of ITS Group A against civil posts but according to
the Appellant this is an incorrect statement since no JTS posts were
converted to non – civil posts and that they were all civil posts). The
Commission further noted that the Respondent has averred in his
submission that the Department of Legal Affairs had opined that
vacancies were not available in DoT for 2001-02 and therefore only DOT
optee officers should be considered in the DPC while making the
vacancies for 2001-02 as NIL, without substantiating this explanation
with any supporting documents, in its submission to the CIC . It is also
important to point out at this stage that the Appellant has raised a much
larger issue than just one of promotion of TES Group B officers; that of
bias against promotee stream officers and in this regard, the Commission
is of the view that such apprehension on the part of the Appellant and
other officers of her grade should be put to rest through more suo motu
disclosure of information .
15. In the light of the peculiar facts of this case, it is the considered
opinion of the Commission that the complete information sought by the
Appellant in her RTI request of 4.6.08 ought to have been furnished to
her since the CPIO had failed to explain under what clause of Section 8(1)
the information was being denied. The Appellant, as the affected party,
was also entitled to the information in the light of the alleged bias
exhibited in the procedures for promotion of promotee stream officers,
thereby denying chances of promotion to such officers and causing mental
stress and financial loss to them. It is important to note that the action
take by the Department with regard to the revised list of eligible officers
was despite Orders from Hon’ble CAT, New Delhi and repeated advices
from DOP &T and the Legal Department of DOT. (Appellant’s submission
of 12.6.09).
16. The Commission, however, noted from the CPIO’s submission of 12.6.09
that now a decision with regard to promotion of TES of Group -B officers
to JTS of ITS Group A has been taken and that the relevant files are
available with him and accordingly directs the CPIO to provided by 10
July, 2009 complete information (which includes inspection of files and
supply of copies of documents required by the Appellant ) under
intimation to the Commission.
17. The appeal is accordingly disposed of.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G. Subramanian)
Asst. Registrar
Cc:
Ms. Veena Bhat Pandita
Flat No. 154, Plot No.10
New Ashiana Apartments
Sector-6
Dwaraka
The Central Public Information Officer
Department of Telecommunications
Room No. 419, Sanchar Bhavan
20, Ashoka Road
New Delhi
The Appellate Authority
Officer in charge, NIC
Department of Telecommunications
Room No. 419, Sanchar Bhavan
20, Ashoka Road
New Delhi
Press E Group, CIC
Officer in Charge NIC