Central Information Commission
*****
No.CIC/OK/A/2006/00303
Dated: 24 October 2008
Name of the Appellant : Shri Ajay Jhuria,
6, Worli Sea Face,
Kanhaiya Kunj,
1st Floor, Khan Abdul Gaffar Khan Road,
Mumbai – 400 025.
Name of the Public Authority : Council for the Indian School
Certificate Examinations, New Delhi
Background:
Shri Ajay Jhuria of Mumbai filed an RTI application with the Public
Information Officer, Council for the Indian School Certificate Examinations,
New Delhi, on 7 February 2006 seeking certified copies of the record of the
action taken against Mr. Francis Fanthome by ICSE authorities. The Appellant
also sought a copy of the report of Justice Michael Saldhana Commission and
details regarding norms for granting affiliation to schools by the CISCE. As the
Appellant did not get any reply from the CISCE authorities, he filed an appeal
with the Central Information Commission on 27th June 2006.
2. The Commission called for the comments of the Secretary and Deputy
Secretary, Council for the Indian School Certificate Examination, New Delhi on
the appeal of Shri Ajay Jhuria. In the reply to the comments, the Deputy
Secretary stated that the Indian School Certificate Examinations, New Delhi,
was an unaided autonomous educational body registered under the Societies
Registration Act, conducting examinations for Class X and XII students of the
affiliated schools. As per their understanding, they were not a ‘public
authority’ as far as the RTI Act-2005 was concerned. The PIO also mentioned a
decision taken earlier by the Commission on 21 July 2006 in the case of Shri
Jehangir B. Gai Vs. the Bureau of Secondary Education in which it was stated
that “prima facie, the CISCE was not covered by the definition of a ‘public
body’ as stated in the Act. He, however, seemed to have overlooked the fact
that in the same Order, the Commission cited the provision of Section 2(f) of
the RTI Act and ordered that “the Respondents were directed to obtain the
information from the CISCE and supply the same to the Appellant within 15
days”. The case was heard by the Bench of Dr. O.P. Kejaraiwal on 27
December 2006. During the hearing, the Commission asked the representative
of the Respondents who was a Legal Advisor of the CISCE as to why he should be
heard since there was no provision for legal Representatives to be heard by the
Commission under Section 5(iv) of the Rules governing the Act. To this, he
responded that since the position of CISCE regarding their status as a Public
Authority was not clear, they did not have any PIO or any competent official
and therefore he was representing the Respondents. The Commission admitted
the point of view and heard the arguments put forth.
4. The matter revolved around the question of whether the CISCE was a
Public Authority. The Respondent pointed out that they were neither
controlled nor substantially financed by the Government and hence could not
be classed as a Public Authority. The Appellant, on the other hand, pointed out
that in their Council, the CISCE had a strong representation of the Government
through its nominees. He also presented before the Commission a copy of the
Constitution of the Council.
5. The Commission recalled that in the earlier case dealing with the CISCE
it had ordered: “After hearing the submissions of the Respondents, the
Commission came to the conclusion that prima facie CISCE was not covered by
the definition of a public authority since it was neither funded nor controlled
by the Government or any other public body. However, going by the definition
of the term ‘information’ under 2(f) of the RTI Act, which includes
‘information relating to any private body which can be accessed by a public
authority under any other law for the time being in force to be disclosed, the
Commission reiterated its stand.” The Respondent emphasized the fact that
there was no law for the time being in force under which the information could
be passed on to the Appellant. However, the Commission felt that since the
information could be accessed by the Government, the Respondents were
obligated to disclose the information sought for by the Appellant.
6. The Respondents, while agreeing to abide by the Commission’s decision,
pointed out to the Commission that in his original application, the Appellant
had not asked for the disclosure of the findings/reports of the Hon’ble Justice
Michael Saldhana Commission appointed to investigate the irregularities
committed by Mr. Francis Fanthome. As this was not a part of the original
application, they felt that they may not be asked to disclose this particular
information, to which the Commission agreed. The case was fixed for the
second hearing on 30 April 2007 by the Bench of Dr. O.P. Kejariwal, Information
Commissioner.
7. The Commission heard both the parties wherein the Appellant stated
that the Respondents had not supplied him the full information. In fact, the
information supplied was not only incomplete but was also inaccurate and even
misleading. The Respondents, on the other hand, maintained that they had
supplied whatever information that was available with them on the issues
raised by the Appellant. On going through some of the points on which the
information was asked for, the Commission felt that there was indeed room for
greater clarification. The Commission, therefore, gave the Respondents one
more opportunity to comply with the RTI-request of the Appellant. This they
were told to do by 15 May 2007. The Commission advised the Respondents to
call the Appellant to the office and, wherever possible, to open up all the files
containing the information the Appellant has asked for.
8. Since the Orders of the Commission had not been complied fully in the
first case, it only hoped that there was no further hearing on the issue of non-
compliance of its Orders. In case this happened, it would be considered
seriously and penalty proceedings would begin not only for the delay but also
for the wilful suppression of information.
9. The Commission also directed the Respondents that in case the Appellant
had to come again for another hearing in this case, he should be compensated
to the extent of to and fro travel from Mumbai to Delhi in the second class AC
and be given DA of Rs.500/- for his stay in Delhi. The Commission authorised
the Appellant to take photocopies of the pages of the records related to the
issues of his enquiry raised in the original RTI-application free of cost.
10. The Appellant approached the Central Information Commission against
the non-compliance of the Commission’s orders and requested for another
hearing in the matter.
11. The Bench of Dr. O.P. Kejariwal, Information Commissioner, heard the
matter again on 20 October 2008.
Decision:
12. The Commission heard both the sides and noted that this was the third
hearing in the case and when the Appellant’s request for information was direct
and simple: he wanted information and inspection of the records whereby a
certain school and its Branch had been affiliated to the CISCE. In the very first
instance, the Commission would like to bring to the notice of the Respondents
that there are a number of Orders of this Commission to the CBSE whereby they
have been asked to disclose information relating to affiliation of Schools
although they were privately run and unaided by the Government. By denying
the information to the Appellant, the Respondents have merely shown an
ignorance of the decisions of the Commission. In today’s hearing, the
Commission noted with some regret that neither the CPIO/PIO nor the
Appellate Authority was present. A deemed PIO who obviously was not familiar
with the facts of the case had come for the hearing. The Respondents kept on
saying that they had complied with the Commission’s earlier Orders and
provided whatever information there was on the subject to the Appellant –
which the Appellant vehemently denied. In fact, the Respondents went on for
about 10 minutes trying to convince the Commission, as well as the Appellant,
that all the information that was available on the subject had been provided
and went to the extent of saying that as many as 102 documents had been
provided by the Respondents to the Appellant. According to the Appellant, on
the other hand, there was not a single document relating to the information
that he was seeking. It is only stands to reason that when the Appellant is
making a request with the CISCE for information about the affiliation of a
certain school, the basic requirement would be a letter from the concerned
School asking or requesting for such affiliation. This the Respondents failed to
produce and what is more disturbing, did not have an answer as to why this
should not have been there on their records. The Commission itself went
through the index of records which they produced before the Commission,
which was surprised at the fact that then could not explain as to why these
records were being produced before the Commission when they had no bearing
on the case at all. The Commission, therefore, regards this as a clear malafide
suppression of information demanded by the Appellant and an attempt to
mislead him and also the Commission It, therefore, orders as follows:
(i) the concerned Organization should ensure that a PIO and an
Appellate Authority are in place by 28 November 2008. The
Commission was indeed surprised when it heard the Respondents
saying that for the appointment of a PIO and an Appellate
Authority they had to seek the concurrence of their Governing
Body whereas it should have been automatic and immediate after
the implementation of the RTI-Act;
(ii) In view of the fact that the Respondents kept on saying that they
would bring all the documents before the Commission for the
Commission itself to see whether the records on the subject were
available, the Commission takes grave objection to this stand and
directs them to provide specific information that the Appellant
has asked by 14 November 2008;
(iii) In case the information asked for by the Appellant is not available,
valid reasons must be provided to the Appellant for non-
availability of records on the subject;
(iv) In its earlier Order of 3 May 2007, the Commission had clearly
ordered that (in case the Appellant has to come again for another
hearing in the case, he should be compensated to the extent of to
and fro travel Mumbai-Delhi II A.C. fare and Rs.500/- for his stay
in Delhi. Since the Appellant has come for the hearing, the
Commission directs the Respondents to make this entire payment
to the Appellant by 14 November 2008;
(v) In view of the dilatory tactics of the Respondents in denying the
information to the Appellant, the Commission awards a
compensation of Rs.10,000/- to the Appellant for the unnecessary
mental harassment that he has undergone. This payment must be
made to the Appellant by 28 November 2008.
(vi) Finally, in case the Appellant has to come to the Commission
again for a hearing complaining of non-compliance of the
Commissions Orders, the Appellant may be once again paid the to
and fro 2 AC train Mumbai-Delhi train fare and Rs.1,000/- for his
stay in Delhi. In case the Appellant has to come again, he may
purchase the ticket and ask the Respondents for a compensation
of this amount.
13. On hearing from the Appellant about the compliance/non-compliance of
this case, the Commission may/may not decide to hold another hearing.
Sd/-
(O.P. Kejariwal)
Information Commissioner
Authenticated true copy:
Sd/-
(G. Subramanian)
Assistant Registrar
Cc:
1. Shri Ajay S. Jhuria, 6, Worli Sea Face, Kanhaiya Kunj, 1st Floor, Khan Abdul
Gaffar Khan Road, Mumbai-400025
2. Shri G. Arathoon, Deputy Secretary & Off., Chief Executive & Secretary,
Council for the Indian School Certificate Examinations, Pragati House, 3rd
Floor, 47-48 Nehru Place, New Delhi-110019
3. Shri J. Bedi, Legal Advisor, Council for the Indian School Certificate
Examinations, Pragati House, 3rd Floor, 47-48 Nehru Place, New Delhi-
110019
4. Officer Incharge, NIC
5. Press E Group, CIC