CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000355 dated 25.3.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Anurag Goel
Respondent - Union Public Service Commission (UPSC)
Decision announced: 3.6.2010
Facts
:
By an application of 14.10.08 Shri Anurag Goel of Pashchim Vihar, New
Delhi applied to the CPIO, UPSC seeking the following information:
“1. When did UPSC take the decision of notification of LDCE
2006? Please provide copy of noting portion of the file
whereby this decision was taken by the Commission (As per
CIC order in appeal No. CIC/OK/A/2006/00154 dated 2.1.07)
file noting can be provided to the applicant u/s 2(f) and u/s
2(i)(a) of RTI Act.)
2. When did UPSC intimate the decision of notification of LDCE
2006 to DOPT? Please provide a copy of letter sent by UPSC to DOPT
intimating the decision of notification of LDCE 2006.
3. As per the writ of mandamus issued by High Court of Delhi
in W.P.(C) No. 12722/2005, LDCE 2006 was to be notified by July 2007
as LDCE 2005 was held in December 2006. Why did UPSC not take the
decision of notification of LDCE 2006 in July 2007?
4. Was there any stay on the notification of SOs LDCE 2006
because of Delhi High Court’s orders dated 9.7.07, 6.11.07 or 27.3.08 in
W. P. (C) 4876/2007?
5. If there was no stay on SOs LDCE 2006, why did the
Commission take so much time in taking the decision of notification of
examination?
6. UPSC in a letter No. 9/2/2006 EIB dated 13.9.07 informed
DOPT of its decision not to notify LDCE 2006 till the final outcome of
subjudice case in High Court of Delhi on the plea that notifying LDCE
2006 making it subject to decision of Delhi High Court will lead to the
situation that existed a few years back where the Commission had to
release supplementary lists of repeat candidates. In an earlier case in
W.P.(C) 12722/2005 which was concerned with repeat candidates in
LDCE 2001 and 2002, Delhi High Court made the observation that the 14
candidates selected in LDCE 2001 ought not to have figured in LDCE
2002 list since LDCE 2001 results were already known at the time of
declaration of LDCE 2002 results. Hon’ble Court also observed that the
case under consideration did not present an issue of supplementary list
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and was merely a matter of adjustment of lists prepared subsequent to
results.
Did UPSC before taking the decision, as mentioned in above
referred letter consider the possibility of notifying LDCE 2006
subject in a way ensuring that no successful candidate in LDCE
2005 was repeated in results of LDCE 2006 thereby eliminating the
possibility of supplementary list? Please provide copy of noting
portion of the file whereby this decision of not notifying LDCE 2006
was taken.”
To this Shri Goel received a response pointwise dated 11.11.08, as follows:
“i) It is informed that the Commission had directed to notify the
SO Grade LDCE 2006 on 23.6.08. As desired, a copy of the
relevant noting portion (F. No. 9/2/2006-EIB pages 6-
9/notes) is enclosed.
ii) It is informed that the Commission had intimated its decision
to DOPT on 26.6.08. A copy of letter No. F.9/2/2006-EIB
dated 26.6.2008 addressed to DOPT and copy endorsed to
other participating Ministries / Department is enclosed.
iii) Since the matter regarding the very rules of the Examination
is subjudice, the Commission could not unilaterally notify SO Grade LDCE
2006 during July 2007.
iv) No, there was apparently no legal stay on the notification of
SOLDCE, 2006.
v) As mentioned against reply to Para 3, the Commission still
could not decide unilaterally to notify SOs Grade Examination, 2006
without the consent of the Government.
vi) No such letter was issued on 13.9.07 by the Commission.
However, a letter No. F.9/2/2006-EIB was written on 14.9.07 to DOPT
conveying the decision of he Commission to withhold the declaration of
result of SOs Grade 2006 and for also withholding the notification of SO
Grade LDCE 2006 due to various reasons in the light of the litigation
pending in the Hon’ble Delhi High Court. However, the above decision
was further reviewed and the Commission decided to declare the result of
SO LDCE 2005 and to notify SO LDCE 2006. However, the notification of
SOLDCE 2006 could not be proceed further in view of no agreement
reached between the Commission and the Government in this regard. As
desired the copy of the letter No. F.9/2/2006-EIB dated 14.9.2007
addressed to DOPT is enclosed.”
However, aggrieved by part of the answer Shri Anurag Goel moved an
appeal on 5.12.08 before Shri K. S. Bariar, Jt. Secretary, pleading as follows:
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“I had requested vide Q. No. 6 to provide copy of noting portion of
the file where UPSC took the decision of not notifying LDCE 2006
as intimated to DOPT vide letter No. 9/2/2006-E.I (B) dated
14.9.07. Instead of copy of noting portion, UPSC has provided a
copy of the said letter. Kindly provide me the copy of relevant file
noting portion.”
Upon this, with his order of 19.1.09 JS Shri Bariar allowed the appeal and
issued the following instructions:
“I, therefore, direct the CPIO, UPSC to either supply the above
requested document to the appellant or the reason for not
supplying the same to him within 15 days of issue of this order.”
In compliance CPIO Shri Rameshwar Dayal, Dy. Secretary informed Shri
Anurag Goel as below, through a letter of 4.12.09:
“It is informed that as per Para 8(1)(e) of the RTI Act, 2005, the
copy of noting portion of the file where UPSC took the decision of
not notifying LDCE 2006 cannot be provided to you since it will not
serve a larger public interest. Moreover, SOs grade LDCE 2006
could not be notified since the matter was subjudice and the Court
frowns upon any thing done outside the court proceedings in a
subjudice matter.”
This has brought Shri Anurag Goel before us in second appeal, praying as
follows:
“It is requested to direct CPIO to provide the relevant file
noting portion.”
The appeal was heard on 3.6.2010. The following are present:
Appellant
Shri Anurag Goel
Respondent
Shri Rameshwar Dayal, DS / CPIO
Shri D. R. Madan, Asstt.
Shri Naresh Kaushik, Advocate
Shri Amita Kalkal Chaudhary, Advocate
Learned Counsel for respondents Shri Naresh Kaushik submitted that the
Court has taken a decision with regard to the matter, which was subjudice, on the
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notification of SOs Gr. LDCE 2006. The purpose of appellant, Shri Anurag Goel
himself in service in the UPSC has, therefore, been served. CPIO Shri
Rameshwar Dayal also agrees that the disclosure of file noting after taking into
account sec. 8(1)(e) was acceptable.
DECISION NOTICE
The only issue before us now is the question of the disclosure of “relevant
file noting”. In his judgment in WP(C) 228/2009, CPO Supreme Court of India
vs. SC Agrawal & Anr. Hon’ble Ravindra Bhat J has discussed the concept of
fiduciary relationship in some detail. The HC ruling in the above case is as follows:
54. The petitioners argue that assuming that asset declarations, in
terms of the 1997 constitute “information” under the Act, yet they
cannot be disclosed – or even particulars about whether, and who
made such declarations, cannot be disclosed – as it would entail
breach of a fiduciary duty by the CJI. The petitioners rely on Section
8 (1) (f) to submit that a public authority is under no obligation to
furnish “information available to a person in his fiduciary
relationship”. The petitioners emphasize that the 1997 Resolution
crucially states that:
“The declaration made by the Judges or the Chief Justice, as
the case may be, shall be confidential.”
The respondent, and interveners, counter the submission and say
that CJI does not stand in the position of a fiduciary to the judges of
the Supreme Court, who occupy high Constitutional office; they enjoy
the same judicial powers, and immunities and that the CJI cannot
exercise any kind of control over them. In these circumstances, there
is no “fiduciary” relationship, least of all in relation to making the
asset declarations available to the CJI, who holds it because of his
status as CJI. It is argued that a fiduciary relationship is created,
where one person depends, on, or entrusts his affairs to 55. It is
necessary to first discern what a fiduciary relationship is, since the
term has not been defined in the Act. In Bristol & West Building
Society v. Mathew [1998] Ch 1, the term “fiduciary”, was described
as under:
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“A fiduciary is someone who has undertaken to act for and on
behalf of another in a particular matter in circumstances
which give rise to a relationship of trust and confidence.”
Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212
and Needle Industries (India) Ltd v. Needle Industries (Newey) India
Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company
owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v.
Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that
an agent and power of attorney holder can be said to owe a fiduciary
relationship to the principal.
56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of
Baroda 2008 (13) SCALE 160) the Supreme Court had to decide
whether a transaction resulted in a fiduciary relationship. Money was
sought to be recovered by the plaintiff, from a bank, who had moved
the court for auction of goods imported, and retained the proceeds;
the trail court overruled the objection to maintainability, stating that
the bank held the surplus (of the proceeds) in a fiduciary capacity.
The High Court upset the trial court’s findings, ruling that the bank
did not act in a fiduciary capacity. The Supreme Court affirmed the
High Court’s findings. The court noticed Section 88 of the Trusts Act,
which reads as follows:
“Section 88. Advantage gained by fiduciary. Where a
trustee, executor, partner, agent, director of a company, legal
advisor, or other person bound in a fiduciary character to
protect the interests of another person, by availing himself of
his character, gains for himself any pecuniary advantage, or
where any person so are, or may be, adverse to those of
such other person and thereby gains for himself a pecuniary
advantage, he must hold for the benefit of such other person
the advantage so gained.”
Affirming the High Court’s findings that the bank did not owe a
fiduciary responsibility to the appellant, it was held by the Supreme
Court, that:
“9. An analysis of this Section would show that the Bank, to
whom the money had been entrusted, was not in the capacity
set out in the provision itself. The question of any fiduciary5
relationship therefore arising between the two must therefore
be ruled out. It bears reiteration that there is no evidence to
show that any trust had been created with respect to the suit
money.”
The following kinds of relationships may broadly be categorized as
“fiduciary”:
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882)
• Legal guardians / wards (Section 20, Guardians and Wards
Act, 1890)
• Lawyer/client;
• Executors and administrators / legatees and heirs
• Board of directors / company
• Liquidator/company
• Receivers, trustees in bankruptcy and assignees in insolvency
/ creditors
• Doctor/patient
• Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary
relationship as
“a relationship in which one person is under a duty to act for
the benefit of the other on the matters within the scope of the
relationship….Fiduciary relationship usually arise in one of
the four situations (1) when one person places trust in the
faithful integrity of another, who is a result gains superiority or
influence over the first, (2) when one person assumes control
and responsibility over another, (3) when one person has a
duty to act or give advice to another on matters falling within
the scope of the relationship, or (4) when there is specific
relationship that has traditionally be recognized as involving
fiduciary duties, as with a lawyer and a client, or a
stockbroker and a customer”
58. From the above discussion, it may be seen that a fiduciary
relationship is one whereby a person places complete confidence in
another in regard to a particular transaction or his general affairs or
business. The relationship need not be “formally” or “legally”
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ordained, or established, like in the case of a written trust; but can be
one of moral or personal responsibility, due to the better or superior
knowledge or training, or superior status of the fiduciary as
compared to the one whose affairs he handles. If viewed from this
perspective, it is immediately apparent that the CJI cannot be a
fiduciary visàvis Judges of the Supreme Court; he cannot be said to
have superior knowledge, or be better trained, to aid or control their
affairs or conduct. Judges of the Supreme Court hold independent
office, and are there is no hierarchy, in their judicial functions, which
places them at a different plane than the CJI. In these
circumstances, it cannot be held that asset information shared with
the CJI, by the judges of the Supreme Court, are held by him in the
capacity of a fiduciary, which if directed to be revealed, would result
in breach of such duty. So far as the argument that the 1997
Resolution had imposed a confidentiality obligation on the CJI to
ensure nondisclosure of the asset declarations, is concerned, the
court is of opinion that with the advent of the Act, and the provision in
Section 22 – which overrides all other laws, etc. (even overriding the
Official Secrets Act) the argument about such a confidentiality
condition is on a weak foundation. The mere marking of a document,
as “confidential”, in this case, does not undermine the overbearing
nature of Section 22. Concededly, the confidentiality clause (in the
1997 Resolution) operated, and many might have bona fide believed
that it would ensure immunity from access. Yet the advent of the Act
changed all that; all classes of information became its subject matter.
Section 8(1) (f) affords protection to one such class, i.e. fiduciaries.
The content of such provision may include certain kind of
relationships of public officials, such as doctorpatient relations;
teacherpupil relationships, in government schools and colleges;
agents of governments; even attorneys and lawyers who appear and
advise public authorities covered by the Act. However, it does not
cover asset declarations made by Judges of the Supreme Court, and
held by the CJI. “
If CPIO is still of the view that disclosure of the identity of certain parties
that have contributed to the noting will be in violation of a fiduciary relationship in
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light of the above definition of fiduciary relationship laid down by the Delhi High
Court, he will now disclose the complete file noting after severance of the
exempted portion u/s 10(1) to appellant Shri Anurag Goel within ten working days
of the date of receipt of this Decision Notice. This appeal is allowed to this extent.
There will be no costs
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
3.6.2010
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
3.6.2010
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