Mr.R P Yadav vs Union Public Service Commission on 3 May, 2010

                     CENTRAL INFORMATION COMMISSION
              Appeal No. CIC/WB/A/2009/000237 & 242 dated 27-2-2009
                  Right to Information Act 2005 - Section 19

Appellant:             Shri R.P. Yadav;
Respondent:            Union Public Service Commission, (UPSC)
                           Decision announced 3.5.'10
Facts

These are two appeals received from Shri R.P. Yadav of Gurgaon,
Haryana that have been clubbed together for disposal

Appeal No. CIC/WB/A/2009/000237
By a request dated 26-5-08 Shri R.P. Yadav applied to CPIO, UPSC
seeking the following information:

“1. Whether in respect of promotion to the grade of Foreman
Instructor GNCT, Delhi the proceedings of the DPC meeting
held on 9.4.2008 may be reviewed? As the DPC did not
take all material facts into consideration due to correct
information was not brought to their notice and there have
been grave errors in the procedure followed by the DPC as
given below: –

a) 4 Lab Technicians viz. Shri Mohammed
Nasir, Raj Kumar, Shri Bhagwan & Manjeet Sing
have been promoted by mistake against the
vacancies of the year 2003-2004. Though, the
post of Lab Tech. was included in the feeder post
in the new RRs notified on 13.1.2004 how could
their eligibility be determined on 1st January 2003
being the crucial date for determining the eligibility
of officers for promotion against the vacancy year
2003-2004.

b) The information furnished to the UPSC/
DPC is factually incorrect and incomplete. The
department in the note for DPC has stated that the
posts of Foreman Instructors were created in the
new RRs notified on 13.1.2004 and concealed the
fact that the said posts were created in the old
RRs vide notification No. F.5/24/89/TE/Ad dated
2.5.1991. The very fact that there were 11 posts
created in old RRs. Subsequently, 17 new
additional posts were created accordingly 28 posts
were notified in the amended RRs vide notification
even number dated 13.1.2004.

c) It is not mentioned in the Note for DPC
whether the vacancies were available before the

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amendment of RRs. In fact, vacancies were
available due to death of Shri. M. P. Singh,
Foreman Instructor (Electrical) and retirement of
Shri D. D. Sharma, Foreman Instructor
(Mechanical), Shri. K. K. Sikka, Foreman Instructor
(Mechanical) etc. Unfilled vacancies of old RRs of
Foreman Instructor (Electronics & production) etc.
were also available before amendment of RRs. In
the old RRs feeder posts are less in numbers than
the amended RRs.

d) Out of the four 3 Lab Tech were promoted
for the post of Foreman Instructor (electronics) by
mistake. As one post of Foreman Instructor
(Electronics) was created in old RRs which
remained unfilled. Unfilled vacancy of old RRs
would have been filled from the feeder post of old
RRs in accordance with the instructions of DOP&T
OM No. 22011/5/86-Estt. (D) dated 10.4.1989,
Para 3.1 which stated ‘A vacancy shall be filled in
accordance with the recruitment rules in force on
the date of vacancy’. The post of lab Tech was not
in the feeder posts in the old RRs. How could
aforesaid Lab Tech. be promoted against the
vacancy of old RRs.

e) The 4th one Shri Mohammed Nasir, Lab
Tech. was promoted for the post of Foreman
Instructor (Electrical) by mistake against the
vacancy occurred due to death of Shri M. P. Singh
Foreman Instructor (Electrical) before the
amendment of RRs. A vacancy of F.I. Electrical,
which occurred earlier, should have been filled first
from the feeder posts of old RRs. Hence, Shri
Mohammed Nasir, Lab Tech. Electrical is ineligible
for the said promotion as their post was not in the
feeder post on the date of occurrence of vacancy.

2. In case review DPC is not possible then please provide
total numbers of pages including DPC proposal, note for
DPC, formal letters in which clarifications were sought
and furnished, Performa for referring proposal for
promotion to UPSC, check list of papers for DPC,
recommendations of the DPC and all papers/ documents
and noting sheet pertaining to the promotion for the post
of Foreman Instructor and also provide the total amount
which are to be paid according to RTI Act, 2005 as I want
to get the certified copies of each papers/ documents.”

To this Shri Yadav received a response dated 23-6-08 from Shri K.S.

Sampath, Under Secretary, UPSC informing him as follows:

“Point 1

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It is stated that Para 18.1 of the DOP&T OM No. 22011/5/86-
Estt. (D) dated 10th April, 1989 containing the Guidelines on
Departmental Promotion Committee stipulates that ‘The
proceedings of any DPC may be reviewed only if the DPC has
not taken all material facts into considerations or if material facts
have not been brought to the notice of the DPC or if there have
been grade errors in the procedure followed by the DPC. Thus
it may be necessary to convene Review DPCs to rectify certain
unintentional mistakes.

It is pointed out in this connection that there has not been any
error in the procedure followed by the DPC held on 9.4.2008.
However, it is not known whether the GNCT of Delhi failed to
bring any material facts to the notice of the DPC. Thus the onus
for moving the Commission for holding a Review DPC in the
case of Foreman Instructor, GNCT of Delhi lies on the GNCT of
Delhi. However, the Commission shall examine the proposal of
the GNCT of Delhi taking into consideration, the Guidelines on
the subject, as quoted above.

Point 2
It is pointed out that only copies of letters issued by
Commission’s office and notes portion (excluding those where
the names of Hon’ble Members of the Commission are
reflected) can be given to you. Copies of documents such as
forwarding letter of the proposal, note for DPC, formal letters
under which clarifications were furnished, proforma for referring
proposal to UPSC, Check List of papers for DPC etc pertaining
to promotion to the grade of Foreman Instructor cannot be
furnished to you as all these documents emanated from GNCT
of Delhi and have been received by the Commission in a
fiduciary relationship. This stand of the Commission in certain
other cases. You are, therefore, advised to approach the GNCT
of Delhi for supply of the copies the document that have
emanated from them. As regards the number of pages of
correspondence that emanated from the Commission’s office
and that in the notes portion is being worked out and you will be
intimated shortly of the same and the amount to be deposited by
you in this regard.”

Aggrieved Shri Yadav moved an appeal before Shri Jatinder Kumar, Jt.

Secretary pleading that the information provided is “incomplete, incorrect,
misleading, injustice, surprising, arbitrary, averted and irresolute.”

With regard to question at point No. 1 appellant Shri Yadav has
pleaded as under:

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i) A review DPC should be held keeping in mind the total
vacancies of the year. Moreover, aforesaid matter is also
available on the website of the UPSC at Para (a) of point
15 for review DPC even then, it is not informed to the
appellant.

ii) There has been grave error in the procedure followed by
the DPC held on 9.4.2008.”

With regard to answer to point No.2 Shri Yadav’s plea is as below:
“It is, therefore, obligatory on the part of UPSC to supply total
number of pages as has been sought irrespective of whether
emanated from GNCT of Delhi or the Commission’s Office and
the total amount to be deposited by me in this regard as has not
yet been informed.”

Upon this Shri Jatinder Kumar, JS (Appointment) has passed a lengthy
order but the decision on this appeal dated 25-8-08 is anything but a speaking
order, worded as follows:

“I called for the file in which CPIO has taken decision and also
sought his comments. I have gone through the appellant’s
application dated 26.5.2008 as also the appeal under reference
along with the relevant DPC file.

After going through the various files and the reply furnished by
the CPIO, I do not find any ground to issue direction to the CPIO
on any of the points cited above. The first appeal is decided
accordingly.’

This has brought Shri Yadav to his second appeal before us with the
following prayer:

“The authority of the UPSC may kindly be directed to
supply information correct and complete in all respect
according to the guidelines of Govt. of India (DOP&T) and
supply certified copies of 29 pages and also complete copy
of remained pages. It is also request fully prayed to impose
penalty or issue directions for disciplinary action for non
receipt of complete information of point 1 at two levels and
certified copies for point 2.”

The grounds on which appellant’s prayer is based are as below:

a) There has been grave errors in the procedure followed by
the UPSC/ DPC held on 9.4.2008 as has been mentioned
in detail in first appeal which are advertently either has
been considered nor decided by the Appellate Authority
because of the (04) four officers who have been promoted

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against the vacancy year 2003-04 were ineligible against
the said vacancy year.

b) The copies of only 29 pages furnished by the UPSC have
neither have been certified by any authority of UPSC nor
some of the copies are readable because of defective of
photocopy. Hence, certified and readable copies again
requested for which I had paid/ deposited the requisite
amount.’

With regard to the latter Shri R.P. Yadav has repeated the argument
that a fiduciary relationship cannot apply in this case. In response to our
appeal notice appellant Shri Yadav has submitted a further representation in
which with regard to point 1 he has submitted that he has been “informed that
there has not been any error in the procedure followed by the DPC held on
9.4.2008 whereas there has, in his view, been grave error in the procedure
followed by the DPC held on 9.4.2008 as the DOPT OM No. 22011/9.98-Estt.
(D) dated 8.9.1998, 16.6.2000 & 14.12.2000 (copy enclosed ‘C’, ‘D’, ‘E’)
contained the procedure to be observed by the DPC (subject of the said OMs
make it easier to understand that procedure prescribed therein is required to
be observed by the DPC) to ensure that DPCs are to be convened in advance
and approved select panel is to be prepared well before commencement of
the relevant vacancy year. But it is not observed by the DPC held on
9.4.2008 for the vacancy year 2008-2009, which is an error in the procedure
followed by the DPC held on 9.4.2008.”

With regard point No. 2 Shri Yadav has, in this representation,
submitted as follows:

“I need these documents/ records hence as such total amount of
Rs. 60/- has been paid, in spite of the intimation towards the
additional fees was given after the 30 days of receipt of request
wherefore information should be supplied free of charge.
According to the Act, the CPIO should supply the information
within 30 days of receipt of request where the applicant is asked
to pay additional fee, the period intervening between the
dispatch of said intimation and payment of fee shall be excluded
for calculating the period of reply of 30 days. But the CPIO has
failed to give the information within the prescribed time, and in
the form as sought for as per sub section 9 of section 7, he shall
be deemed to have refused the request.”

Appeal No. CIC/WB/A/2009/000242

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In this case Shri Yadav’s request of 26-5-08 addressed to the CPIO,
UPSC is as below:

“1. As per your letter even number dated 3rd March 2008
under point 5 there 6 vacancies were shown but letter No.
F. 2/31(3)/2008/-AP-2 dated 9th April 2008 shows 7
officers were to be promoted. Whether any additional
officer was included for promotion after sending the
proposal to the UPSC in May 2007? If yes, please
provide the name, reason and date of induction in
eligibility list?

2. How was it is noticed that the post of Technician has not
been prescribed/ included in the Feeder Posts in the old RRs who had
been recommended and promoted against the vacancy of the old RRs
notified on 2.5.1991? As I stated in point (iii) vide page 2 of letter No.
F. 2/31(3)/2008-AP-2 dated 8th April 2008 that in the amended RRs
(notified on 13.1.2007) Feeder posts are more in numbers than the old
RRs. Though, it has been noticed that 11 year’s qualifying years of
service has been prescribed in both the old and amended RRs vide
page 6 of letter dated 8.4.2008.

3. How the CPIO has submitted in his comments to the
appellate authority that DPC guidelines are silent on hypothetical
situation given by the appellant in regard to point 5 vide page 6 of letter
dated 8.4.2008? Actually, it is not a hypothetical situation and DPC
guidelines are not silent vide DOP&T OM No. 22011/5/86-Estt. (D)
dated 10.4.1989, Para 3.1 page 3 ‘Frequency of DPC meeting’ which
states that it is essential for the concerned appointing authority to
initiate action to fill up the existing as well anticipated vacancies well in
advance. In addition to that vide Para 6.4.1, 6.4.2 and in Para 18.2 it is
stated that a Review DPC should consider only those persons who
were eligible as on the date of meet6ing of original DPC. Further,
proforma for referring proposals for promotion to UPSC (vide Annexure
1 Para 4.2.1) point 8 (g) shows that the eligibility list should be drawn
up as on 31 December of every year. Hence, up to 31st December,
2007 all eligible persons should have been included in the eligibility list
for which the concerned department states that eligibility list up to 31 st
December 2007 was not asked by UPSC while taking clarifications
before approval of proposal for fixing the meeting of the DPC for April,
2008.

4. Why was the wrong information that ‘there are no specific
guidelines issued by the DOP&T concerning point 3 sent to the
appellate authority by the CPIO, UPSC vide page 5 of letter No. F.
2/31(3)/2008-AP-2 dated 8th April 2008. Whereas specific guidelines
have already been issued by the DOP&T vide their OM No.
22011/5/86-Estt.(D) dated 10.4.1989 Para 3.1 page 3 under the
‘Frequency of DPC meeting’ it is stated that a vacancy shall be filled in
accordance with recruitment rules in force on the date of vacancy.

5. Why were the names of the eligible candidates up to 31st
December 2007 not considered for promotion as the DPC meeting was
not fixed till the date and even the DPC meeting had been scheduled

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for April 2008? Whereas sufficient number of vacancies were available
for their promotion.

6. Will the officers who had become eligible up to Aug, 2007
be considered for promotion in the Review DPC? Incase the
proceeding of DPC meeting held on 9.4.2008 may be review to rectify
mistakes.”

Upon this Shri R.P. Yadav has received a response dated 23-6-08 from
CPIO Shri K.S. Sampath, Under Secretary as below:

“Point 1 to 4
It is observed from your present application that in items 1 to 4,
you have relied upon the orders dated 8.2.2009 of the First
Appellate Authority and raised certain issues seeking response
of the CPIO thereon. It is pointed out in this connection that in
case you are not satisfied with the orders of the First Appellate
Authority, you are required to move the Hon’ble Central
Information Commission by way of Second Appeal under
section 19 (3) of the RTI act, 2005. You are, therefore, advised
accordingly.

Point 5
It is pointed out that the DPC held on 9.4.2008 considered
vacancies only of the years 2003-2004 and 2007-08. There
were no eligible officers for the years 2004-2005 to 2006-2007.
The officers who complete their eligible service on 31.12.2007
become eligible for consideration for the vacancy year 2008-
2009 only. Therefore, such officers who completed their
qualifying service on 31.12.2007 were not considered by the
DPC as the proposal of the GNCT of Delhi was only up to the
vacancy year 2007-2008.

Item 6
It s pointed out that in terms of Para 18.1 of DOP&T OM No.
A32011/5/86-Estt. (D) dated 10.4.1989, the Review DPCs are
required to review the proceedings of an earlier DPC only to rectify
certain unintentional mistakes. Para 18.2 of the said OM inter alia
clearly lays down that persons who become eligible on a
subsequent date should not be considered. Such cases, will of
course, come up for consideration by a subsequent regular DPC.”

In his appeal before Shri Jatinder Kumar, JS, UPSC Shri Yadav’s
prayer is as below:

“Request to supply the required information.”

Shri Yadav has challenged the information supplied by CPIO Shri K.S.
Sampath with regard to point Nos. 1 to 4 as follows:

“Point 1 to 4 are fresh information, but prepared on the basis of
the information supplied by the UPSC through various letters
which are contradictory with each other. It is not a case of

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dissatisfaction with the order of the First Appellate Authority.
Therefore, I cannot move by way of second appeal as advised.”

And with regard to point No.5 as below:

“As the CPIO, UPSC has reported that there were no eligible
officers for the year 2004-05 to 2006-07, which is factually
incorrect, because the officers belonging to the cadre of Lab
Technician were eligible for the year 2005-06 who were included
only in the feeder cadres prescribed for new RRs notified on
13.1.2004 as 1st January of the vacancy year is the crucial date
for determining eligibility of officers for promotion. Hence, these
officers shall be eligible for the year 2005-06.”

In his order of 22-8-08 Shri Jatinder Kumar, JS (Appointment) in his
speaking order examined each of the points raised, holding as follows:

“In regard to point 1 of the appellant’s letter dated 26.5.2008, it
is pointed out that initially only names of six eligible officers were
included by the GNCT of Delhi in the Eligibility List.
Subsequently the name of Shri Hans Raj was also included
based on the clarifications furnished by the DOP&T in regard to
equivalence of educational qualifications possessed by him.

In regard to point 5, it is felt that the appellant has certain
grievances in regard to his promotion to the grade of Foreman
Instructor. He has categorically stated that the information
furnished by the CPIO is factually incorrect and has contended
that officers belong to the cadre of Lab Technician were eligible
for the year 2005-06 who were included in the feeder cadres
prescribed in the new RRs notified on 1.1.2004. The DPC held
on 9.4.2008 in the Commission’s office was held strictly on the
basis of various inputs provided by the Government of NCT of
Delhi such as Seniority List, Eligibility List etc. he is. Therefore,,
advised to take up the matter with the Government of NCT of
Delhi for redressal of his grievances and therefore, I do not
consider it necessary to pass any order on the reply furnished
by the CPIO to point 5 of the appellant’s letter dated 26.5.2008.

As regards point 6, I observe that in his letter dated 26.5.2008,
the appellant had sought to know as to whether the officers who
had become eligible up to August, 2007 be considered for
promotion in the Review DPC in case the proceedings of DPC
meeting held on 9.4.2008 may be reviewed to rectify mistakes.
The CPIO’s reply to this point is quite clear wherein he has
relied up the provisions of Para 18.1 of DOP&T OM dated
10.4.1989 relating to the circumstances under which review
DPCs are required to be held. It goes without saying that if any
eligible persons were omitted from being considered by the
original DPC in the vacancy year in which they ought to have
been considered, the proceedings of the original DPC may be

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reviewed to rectify such mistakes. Further, it appears that the
appellant has not understood the concept of crucial date. All
officers who complete the qualifying years of service as on 1st
January preceding the vacancy year become eligible to be
considered for promotion in that vacancy year. In the case in
hand, DPC was held up to the year 2007-08. All officers who
complete the qualifying years of service as on 1.1.2007 are
required to be included in the zone of consideration. As regard
officers who complete the requisite qualifying years of service in
August, 2007 and after 1st January, 2007, they become eligible
for consideration for the subsequent vacancy year 2008-09, the
crucial date for 2008-09 being 1.1.2008.

In view of the above, I do not find any ground to issue directions
to the CPIO on any of the points discussed above except as
indicated above.”

Appellant Shri Yadav’s prayer before us in his second appeal is as
below:

“I am aggrieved and not satisfied with the decision of
appellate authority due to non receipt of information of
point 2 to 4 and supply incomplete and wrong information
of point 1, 5 and 6 at two levels, thus the second appeal is
being filed point wise before the Central Information
Commission for justice under section 19 (3) of RTI Act,
2005.

It is requested that the CPIO/ Appellate Authority of UPSC
may kindly be directed to supply the information on all the
06 points on perusal of the appeal. If RTI Act permit to do
so. A copy of the same may kindly be sent to the applicant
so that information furnished by them for all the 06 points
can be perused prior to the date of hearing for placing the
material before CIC for justice.”

Both appeals were heard together on 3-5-2010. The following are
present:

Appellant
Shri R. K. Sahal (on behalf of appellant).

Respondent
Shri. Rajesh Gupta, Under Secretary, CPIO

Shri R.K. Sahal presented a letter dated 2-5-10 from appellant Shri
R.P. Yadav with Shri Sahal’s signatures attested requesting that Shri R.K.
Sahal will appear before the Commission to represent Shri Yadav’s case. The
letter has been placed on file

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Respondent Shri Rajesh Gupta, present CPIO & US, UPSC while
arguing that an opinion cannot be provided under the RTI Act unless it is
recorded, conceded that in such case as the present under appeal no
fiduciary relationship could apply. Shri R.K. Sahal, representing the appellant
also submitted that copies of documents received are not clear and these are
unattested.

DECISION NOTICE

Appeal No. CIC/WB/A/2009/000237
In this case the information sought against point No.1 stands provided
to appellant Shri Yadav. Shri Yadav on the other hand on the basis of the
information provided has come to the conclusion that the UPSC proceedings
in the DPC are in error. The authority of this Commission is simply to provide
the information held or under the control of a public authority to a citizen
applying for it. We cannot adjudicate upon the merits or worthiness of the
information provided. This is a matter for agitation either before the
concerned department or the judicial courts.

On point No. 2, however, a fiduciary relationship has been argued. We
now have a very clear definition of what constitute a fiduciary relationship In
his judgment in WP(C) 228/2009, CPIO Supreme Court of India vs. SC
Agrawal & Anr. Ravindra Bhat J has discussed the concept of fiduciary
relationship in some detail. The High Court ruling in the above case is as
follows:

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:

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“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 fiduciary 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

11
confidence in another in regard to a particular transaction or his
general affairs or business. The relationship need not be
“formally” or “legally” 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 vis-à-
vis 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 non-disclosure 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 doctor-patient relations; teacher-pupil 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..”

Clearly then there is no fiduciary relationship involved in the present
information sought nor has CPIO, UPSC been able to produce any document
in the hearing in support of his predecessor’s claim that this Commission has
held such a relationship as in the present case to be fiduciary. This appeal is,
therefore, allowed in part. The complete document sought by appellant Shri
Yadav at Point 2 of his request will now be supplied to Shri Yadav within 10
working days of the date of receipt of this Decision Notice, subject to the
concluding paragraph of this decision notice below.

12

Appeal No. CIC/WB/A/2009/000242
In this case we find that information sought against point Nos. 1, 5 and
6 have indeed been provided at the stage of Appellate Authority by Shri
Jatinder Kumar, JS in his order of 22-8-08 as quoted by us in some detail
above.

Question Nos. 2, 3 and 4 on the other hand are notional questions
without reference to any information held by the UPSC but seeking an
opinion. An important question that arises in this context is as to whether
what the appellant is asking can be treated as an “information” within the
meaning of Section 2(f) of the Right to Information Act, 2005. The term
“information” as defined by Section 2(f) includes “any material in any form
including records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form and information relating to
any private body which can be accessed by a public authority under any other
law for the time being in force.”

In order to understand the essence of the Act, it is important to read
Section 2(f) along with Sections 2(i) and 2(j). Section 2(j) reads as under: –

” ‘right to information’ means the right to information accessible
under this Act which is held by or under the control of any public
authority and includes the right to –

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or
records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes,
video cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other device.”

Section 2(i) reads as under:-

“records” includes –

“(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a
document;

(c) any reproduction of image or images embodied in
such microfilm (whether enlarged or not); and

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(d)any other material produced by a computer or any
other device.”

From the above, it is clear that the Right to Information Act confers on
a citizen only access to such information that is held by or is under the control
of a Public Authority. Section 2(f), on the other hand, defines “information” as
something which is available in a material form. “Information”, therefore, can
be something that is available in a material form and is retrievable from the
official records. It cannot be something that is not a part of the record. An
“opinion” or an “advice” which is not recorded cannot, therefore, be treated as
“information” within the meaning of Section 2(f) of the RTI Act. Similarly, the
CPIO cannot either confirm or deny some perception of the appellant, which
he has about a particular set of information. The role of the CPIO under the
Right to Information Act, 2005 is of information provider and he cannot be
treated as a creator of the information. If a matter has been decided, he can
communicate the decision, but if the matter is still to be decided, he cannot
provide a decision. Similarly, he also cannot either justify a decision already
taken or provide reasons for such decision. That is clearly outside the
purview of the CPIO under the RTI Act. While upholding the denial of
information in this regard by both the CPIO and Appellate Authority, the CPIO
Shri Rajesh Gupta is advised that even if a request does not fall within the RTI
Act it is the duty as CPIO to inform the applicant/citizen that such an
application is inadmissible and provide the reasons for the same which in this
case has not been done. With this observation, however, this appeal is
dismissed.

CPIO Shri Rajesh Gupta, US, UPSC has, in the interest of bringing, the
appeals of appellant Shri Yadav to an amicable conclusion offered to allow
inspection of the records by appellant Shri Yadav. Accordingly, Shri Yadav
may call upon Shri Rajesh Gupta in his office on a mutually convenient date
and time to be fixed on the telephone with CPIO Shri Rajesh Gupta
(9868213496) when the orders under Appeal No. CIC/WB/A/2009/000237
can also be disposed of, but in any case not later than 10 working days of the
date of receipt of this decision notice.

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Announced in the hearing. Notice of this decision be given free of cost
to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
3-5-2010

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
3-5-2010

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