CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01490 dated .2007
Right to Information Act 2005 - Section 19
Appellant - Dr. K. K. Singh
Respondent - Election Commission of India (ECI)
Facts
:
By an application of 30.7.07 Dr. K. K. Singh, Boring Road, Patna, applied to
CPIO, Election Commission of India seeking the following information:
“Under section 6 of the RTI Act, 2005 I seek the following
information from you:-(i) The list of officers indicating their parent department who
were transferred during the Bihar Legislative Assembly
elections, 2005.(ii) The details justification (or the proposal with reasons) in
each individual case that was sent to the ECI for getting
clearance prior to the issue of their transfer orders as
required by ECI guideline vide ECI letter no. 437/6/2005-
PLN III dated 3rd September 2005.(iii) The approval letter of the ECI sent to the State Government
of Bihar in reference to proposals of the State Government
as indicated in sub Para (ii) above, in ach individual case or
collectively, as required by the ECI guideline.(iv) Whether there was any violation of ECI guideline referred to
as in sub Para (i) above. What were the reasons for non
compliance by the State Government and what was the
response of the ECI in such cases.(v) Names of representative officers of the ECI who deliberated
on these transfers with their present place of posting and
postal addresses.”This question arose from an allegation made in the application by appellant,
a senior police official of the State, accusing the State Government of Bihar that
“they have thus sabotaged democratic norms clandestinely”.1
To this he received a response on 31.8.07 from Shri S. R. Kar, CPIO & US,
ECI as follows:“Item No. (i)
the list of transfer/ posting during the Bihar Legislative Assembly
Election, 2005 is not available in the Commission. The same may
be obtained from the CEO, Bihar/ the Chief Secretary, Bihar.Item No. (ii)
As regards detailed justification for transfer. It is informed that in
the conduct of elections, the Commision constantly assesses the
situation regarding election preparedness and appropriate action is
taken in the interest of free and fair elections, which may include
shifting of officials connected with the conduct of elections
wherever necessary. It may also be noted that transfer is an
incidence of service and it is not necessary to give opportunity of
hearing before transferring an official.Item No. (iii)
The papers relating to approval of the Commission for transfer/
posting of officers are available in the Commission. The list
showing the details is enclosed herewith. The aforesaid papers run
to 77 pages. You may obtain the same on payment basis by
depositing copying charges @ Rs. 2/- @ Rs/ 2/- per page as
prescribed under Rule 4 of the Right to information (Regulation of
Fee & Cost) Rules, 2005. the above said amount may be
deposited by way of cash against proper receipt or by way of Bank
draft/ Banker’s cheque/ Indian Postal Order in favour of Under
Secretary or Accounts Officer, Election Commission of India. In the
case of fee paid by way of Indian Postal Order, it should be payable
at “Nirvachan Sadan, New Delhi”.Item No. (iv)
It is not clear that which guideline under sub Para (i) has been
referred to under this item.Item No. (v)
There was no representative officer specifically appointed for
deliberating on transfer proposals.”Dr. K. K. Singh then moved his first appeal on 12.9.07 before the Appellate
Authority, Election Commission of India with the following three specific pleas:2
1. “My query was simply addressed to this1 guideline of the ECI. I had
requested for the justification put up by the Government of Bihar
regarding these transfers during the election process. I am afraid
that he PIO in his response in Para 2 has not restrained himself to
this point but has been beating around the bush.2. It is again contradictory to the response in Para 1 and 2 of the PIO.
If the list of officers transferred during the said period and the
justification of the state Government are not available how can the
approval of transfers be on record.3. That again was my specific query in Para 4 which have not been
addressed to. Thus the response of the PIO is incomplete,
incoherent and unfocussed.”Upon this Shri K. F. Wilfred, Secretary UPSC in his response of 19.10.07
has held as follows:“Your grievance in the present appeal is about alleged contradiction
in the reply given by the PIO and about alleged non-furnishing
information against item (ii) of your application. As regards the
alleged contradiction, it is stated that during the election period,
there may have been transfer of officials who are not connected
with the conduct of elections in any manner. In such cases, the
Commission would not be having the information/ list of the officials
concerned. That was the reason why PIO’s reply stated that the list
is not available in the Commission.As regards the officers connected with the conduct of election, you
have already been informed about the position and copies of the
comments related to approval of the Commission for transfer/
posting of officers have also been furnished to you. Regarding the
justification for each transfer/ posting, copies of communications
regards the proposal for transfer/ postings and approval of the
Commission have already been furnished to you. The fact that the
transfer/ postings were approved by the Commission would show
that the Commission was satisfied about the justification. It has
also been intimated to you that no case of violation of the
instructions in the letter dated 3.9.2005 was brought to the notice of
the Commission.’Dr. K. K. Singh’s prayer before us in his second appeal is as below:
“Provision of information as sought vide application Form A
dated 30.7.2007 and as in Form G (First appeal) dated
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A letter from ECI to State Govt. of Bihar of 3rd September 20053
12.9.2007. All relevant documents are enclosed for ready
reference.”However, the grounds on which this prayer has been made are as follows:
(a) “Aggrieved by the decision of the appellate authority.
Silence on the non-compliance of Election Commission of
India Letter No. 437/6/2005-PLN III dated 3.9.2005.”(b) “For previews and confirmation prospectively, all actions
undertaken and administrative orders issued by the ECI,
including those related to transfers by the respective state
govt. and the concurrence of the ECI thereto, have to be part
of records.”(c) “The ECI has functioned in this case as a whimsical
bureaucratic machinery rather than a democratic
Constitutional entity. There has been complete non
compliance of the ECI guideline as laid down in ECI letter
No. 437/6/2005-PLN III dated 3.9.05 by both the State Govt.of Bihar and the ECI itself. The response of the PIO and the
Appellate Authority of ECI has completely downplayed this
issue for reasons best known to them.’The appeal was heard on 9.2.09. The following are present:
Respondents
Shri K. F. Wilfred, Secretary, ECI
Shri Varinder K., Under SecretaryContacted on the telephone appellant Dr. K. K. Singh submitted that he
wished for the Commission to take a decision on the merits of his case. He has
opted not to be present. Shri Wilfred, Secretary ECI submitted that ECI has taken
note of the advice of Central Information Commission in CIC/WB/A/2007/00642
dated 14.7.2007 in which we have u/s 25(5) advised the ECI as follows:“In this case, it is quite clear that the information sought by
the appellant is
not held by the public authority to which applied i.e. the Election
Commission of India. It, therefore, cannot be supplied under the
RTI Act. However, the question arises in light of Dr. K. K. Singh’s
plea before us whether such information which could affect the
career of an officer in their
premier/services should be held by a public authority, particularly
when it is exercising administrative jurisdiction over such officers.4
Under the authority vested in us u/s 25(5) of the RTI Act, we,
therefore, recommend that the Election Commission of India
consider all aspects of actually holding such information in cases
where they recommend or agree to transfers and postings of
officers given the responsibility of SPs & DCs in Districts where
Elections are being conducted to allow for access to such officers,
subject to the exemptions provided in sec. 8(1). This would in all
fairness, ensure that such action does not thereafter become an
unfair ground for suspicion or doubt on the character of a civil
servant in the service of the public, thus tarnishing an image
otherwise above reproach.”Shri Wilfred submitted that vide their circular of 13.9.08, the Principal
Secretary Shri Shangara Ram has directed the staff of UPSC as follows:“2. The above decision of the Commission is brought to the
notice of all the concerned in the Commission for strict
compliance.3. It may also be noted that, as per the present policy of the
Commission vide letter No. 437/6/2006/PLN-II dated 6th
November, 2006 addressed to all the Chief Secretaries and
Chief Electoral Officers of all States and UTs, a detailed
review of the posting of officers is done by the CEO prior to
the General Elections to Lok Sabha/ State Legislative
Assemblies, to ensure that no officer connected with
elections, directly or indirectly, should be allowed to continue
in the present district of posting:(a) If she/ he is posted in her/ his home district.
(b) If she/ he has completed three years in that district
during last four years.3.1 While implementing this policy instruction certain transfers/
postings would result. A record of such transfer shall be
maintained noting the policy instruction under which such
transfers have been done.”
DECISION NOTICE
Having heard the arguments and examined the records, we find that the
appeal of Dr. K. K. Singh to this Commission is in the nature of a complaint that
the ECI has abdicated its responsibility under Representation of People’s Act,5
1951 and does not seek any information nor complains that any information has
been refused. As pointed out by respondents Shri Wilfred Secretary, ECI, the
ECI has already taken note of the orders of this Commission in a separate
appeal with regard to the same subject by the same appellant is in the process of
compliance. It is open to appellant Dr. K. K. Singh to make any further
suggestions directly to Election Commission of India with regard to this. In fact
Dr KK Singh deserves to be commended for bringing to the notice of ECI the
need that Apex Board cleave rigidly to the requirements of the Representation of
People’s Act, 1951, as he perceives it By this means the citizens of India might
ensure that this supreme authority for administering a key element of the nation’s
pride cleave to the ‘straight and narrow’ However, there being no further grounds
for providing information under the Right to Information Act, 2005, this appeal is,
with the above observations, now dismissed.
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
9.2.2009
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 Shreyaskar)
Joint Registrar
9.2.2009
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