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Shri R. C. Gupta vs Dep’T. Of Personnel & Training … on 14 December, 2009

Central Information Commission
Shri R. C. Gupta vs Dep’T. Of Personnel & Training … on 14 December, 2009
                        CENTRAL INFORMATION COMMISSION
                          Appeal No.CIC/WB/A/2008/01229 dated 10.7.2008
                            Right to Information Act 2005 - Section 19


Appellant       -          Shri R. C. Gupta
Respondent          -      Dep't. of Personnel & Training (DoPT)
                                 Decision announced : 14.12.2009


Facts

:

By an application of 10.1.06 Shri R. C. Gupta of Asian Games Village
Complex, New Delhi applied to the CPIO, DOPT seeking the following
information:

“I request you to provide me with the certified copies of papers /
documents / notings in respect of the processing of the panel of the
year 2001 during the period from January to March, 2005 for
appointment to the post of Director (Commercial & Marketing) in
ITDC.”

This was followed by another application dated 16.1.06 in which the
information sought from Director (ACC) & CPIO was as follows:

“Apart from certified copies of papers / documents / notings in
respect of the processing of the panel of the year 2001 for the
above post during the period from January to March, 2005, you are
requested to provide in particular copy of Note F. No.
16(10)EO/02/-(ACC) forwarded by Secretary (ACC) to ACC
sometimes in February 2005.

As the matter is urgent, I shall be grateful, if you would kindly
expedite providing me with the said documents / papers / notings.”

A joint response dated 17.1.06 was received to both these requests from
CPIO Shri Alok Kumar, Director (ACC), DOPT refusing the information as
follows:

“Since, the information sought by you ( i.e. DOPT records), which
are essentially part of the papers put up to ACC from this
Department falls in the category exempted under Sec. 8(1)(i), as
mentioned above, it may not be possible for the undersigned to
accede to your request.”

1

Appellant Shri Gupta then moved a third request on 3.10.07 before Shri S.

K. Ahluwalia, US (ACC), DOPT seeking the following information:

“1. Copy of minutes of the selection proceedings held by the
PESB on 9.3.1998, 13.7.2001 and 25.10.2005 for the post of
Director (Commercial & Marketing) in ITDC.

2. Correspondence relating to the delay in processing the
appointment of R. C. Gupta to the said post despite of his
position being No. 1 on the select panel in the interviews
held by PESB on 13.7.2001, due approval of the then
Minister and CVC clearance.

3. Correspondence received from the Ministry of Tourism,
Govt. of India, for scrapping the Panel of 13.7.2001.

4. Copy of Note vide F. No. 16(10)EO/02-(ACC) initiated by the
DOPT in February, 2005 in connection with the Panel of
13.7.2001.”

To this appellant Shri Gupta received the following response from CPIO
Shri S. K. Ahluwalia US dated 10.10.07 :

“Regarding Part (4) of the information sought by you, the same is
denied as information / records sought cannot be furnished as they
are exempted from disclosure under Sec. 8(1)(i) of RTI Act 2005.
Therefore, IPO No. 59E 144383 of Rs. 10/- is returned herewith.
Please acknowledge its receipt.

Insofar as part (1) and (2) & (3) of your application are concerned, I
am forwarding a copy of your application to the concerned CPIOs in
the Ministry of Tourism and the PESB under Sec. 6(3)(ii) of the RTI
Act 2005 for necessary action.”

Shri Gupta then moved appeal before Shri Alok Kumar, Director (ACC) on
17.10.07 pleading as follows:

“As I understand, the subject matter for which copies were sought
vide Para (4) of my letter dated 3.10.2007, has since been
complete and hence copies can be given in terms of the
explanatory notes appended under Sec. 8(1)(i), as above.
Reference is also invited to Sec. 10(1) of the RTI Act 2005, relevant
portions of which state as under:

” . . .Access may be provided to that part of the record
which does not contain any information which is exempt from
disclosure under this Act and which can reasonably be
severed from any part that contains exempt information.”

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Upon this appellant Shri Gupta received a detailed response dated
31.12.07 summarized in the forwarding letter, as follows:

“Your appeal in the above matter is rejected. The detailed order is
annexed herewith.”

The thoughtful details in the order of Director Shri Prabhat, Appellate
Authority questioned the relationship between Cabinet papers and record of
deliberations of the Council of Ministers, as below:

“Obviously, “Cabinet papers” have a wider meaning in the Act. It
includes all the papers pertaining to deliberations of the various
Committees of the Cabinet, apart from including the papers
pertaining to “Records of deliberations of the Council of Ministers”,
“Records of deliberations of the Secretaries” and “Records of
deliberations of other officers”. “Decisions of the Council of
Ministers” and “material on the basis of which the decisions were
taken” are a just a sub set of the larger set of documents
encompassed under the larger term “Cabinet Papers”.

Out of these types of documents – only one set of documents is
mandated to be made public after “the decision has been taken,
and the matter is complete, or over”. The use of the term “Shall be
made public”, in the Act, obviously makes it a duty for the Public
Authorities to make public the “decision of the Council of Ministers”
and “material on the basis of which the decisions were taken”. But
this stipulation (making them mandatorily public) is attracted,
specifically, only in cases of “Decision of Council of Ministers” and
definitely, not in respect of any other class of “Cabinet Papers”.

The papers (pertaining to Shri R.C. Gupta) being held by the
DOPT’s CPIO Shri S. K. Ahluwalia, Under Secretary are essentially
the papers pertaining to the deliberations of the “Appointments
Committee of the Cabinet”, they fall under the definition of “Cabinet
Papers”. They cannot be treated as “materials” for decision of
“Council of Ministers” (as envisaged and understood under proviso
to Sec. 8(1)(i) of the RTI Act 2005). As already brought out earlier,
as far as “Cabinet papers” are concerned, it is a separate class of
papers, distinct from “material on the basis of which decision of
Council of Ministers are taken” and cannot be made public even
after the decisions have been taken and the matter is complete or
over. This is because of the simple reason that the enabling
proviso under Sec. 8 talks only about the “decisions of the Council
of Ministers”. Hence, the proviso, under sec. 8(1)(i), cannot travel
beyond the legislative intent as reflected in the main Sec. 8(1)(i)

3
and the proviso cannot be read to enable disclosure of all class of
the Cabinet Papers.

In order to make the aforesaid postulate amply clear, once has to
bear in mind, the clear distinction between the term “Council of
Ministers” and the term “Cabinet”. Whereas the “Council of
Minister” is a creature (Article 74) of the Constitution of India, the
“Cabinet” is a creature of the rule-making power (Article 77(3)) of
the President of India. This rule making power (for conduct of the
Government business) of the President of India in his supreme
power, in his capacity as the supreme executive of India. In view of
the fact that the ‘separation of powers” is one of the fundamental
feature of our Constitution, these rules, promulgated by the
President of India, for regulation of conduct of Government’s
business (Transaction of business and allocation of business)
cannot be fettered by any act or by any Judicial decision of any
Court, Commission, Tribunal etc. Since ACC is a product of the
rules framed under Article 77(3) of the Constitution of India, its
business (deliberations including, and whether they are to be made
public) are not subject matter of the decisions of any other authority
other than the President of India himself.

Therefore, unless these rules framed under Article 77(3)
themselves, provide for disclosure of information pertaining to the
working of the cabinet and its committees, no disclosure can be
made pertaining to them, under the RTI Act. Therefore, the RTI
has rightly provided for non-disclosure of the information pertaining
to “Cabinet Papers.”

Shri R. C. Gupta has then moved his second appeal before us with the
following prayer :

“denial of information to me would be a denial of fair play and
justice. Therefore, it is requested that Under Secretary and CPIO,
DOPT, Govt. of India be directed to provide me with a copy of the
note vide F. No. 16(10)/EO/02-ACC initiated by DOPT in February,
2005 along with the notings thereon in connection with panel of
Director (Commercial & Marketing) ITDC of 13.7.2001 which will
enable me to strengthen by arguments in the sub judice matter.”

The appeal was heard on 14.12.09. The following are present :

Respondents
Shri Prabhat, Dir. DOPT
Shri Deepak Israni, Under Secy.

4

Although appellant Sh. R. C. Gupta had been informed by Notice dated
27.11.09 regarding the hearing he has nevertheless opted not to be present.

DECISION NOTICE

In this matter there is really no basis for further application of mind. In our
decision dated 23.10.08 in F. No. CIC/WB/A/2008/00081; PD Khandelwal vs.
DOPT, we have decided as follows:

“The Constitution of India, per se, did not include the term
“Cabinet”, when it was drafted and later on adopted and enacted by
the Constituent Assembly. The term “Cabinet” was, however, not
unknown at the time when the Constitution was drafted. Lot of
literature was available during that period about “Cabinet”, “Cabinet
System” and “Cabinet Government”. Sir Ivor Jennings, in his
“Cabinet Government”, stated that the Cabinet is the supreme
directing authority. It has to decide policy matters. It is a policy
formulating body. When the Cabinet has determined on policy, the
appropriate Department executes it either by administrative action
within the law, or by drafting a Bill to be submitted to Parliament so
as to change the law. The Cabinet is a general controlling body. It
neither desires, nor is able to deal with all the numerous details of
the Government. It expects a Minister to take all decisions that are
of political importance. Every Minister must, therefore, exercise his
own discretion as to what matters arising in his department ought to
receive Cabinet sanction.

3. In the Indian context, the Cabinet is an inner body within the
Council of Ministers, which is responsible for formulating the policy
of the Government. It is the Council of Ministers that is collectively
responsible to the Lok Sabha. The Prime Minister heads the
Council of Ministers and it is he, primus inter pares1 who
determines which of the Ministers should be Members of the
Cabinet.

4. It is a matter of common knowledge that the Council of Ministers
consist of the Prime Minister, Cabinet Ministers, Ministers of State
th
and the Civil Services. The 44 Amendment to the Constitution of
India for the first time not only used the term “Cabinet”, but also
literally defined it. Clause 3 of Article 352, which was inserted by
th
44 Amendment, reads as under: –

5

“The President shall not issue a Proclamation under clause
(1) or a Proclamation varying such Proclamation unless the
decision of the Union Cabinet (that is to say, the Council
consisting of the Prime Minister and other Ministers of
Cabinet rank appointed under article 75) that such a
Proclamation may be issued has been communicated to him
in writing.”

5. As per Section 8 of the Right to Information Act, 2005, a “Public
Authority” is not obliged to disclose Cabinet papers including
records of deliberations of the Council of Ministers, Secretaries and
other Officers. Section 8(1) sub-section (i) subjects this general
exemption in regard to Cabinet papers to two provisos, which are
as under: –

Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which the
decisions were taken shall be made public after the decision
has been taken, and the matter is complete, or over:

6. From a plain reading of the above provisos, the following may
be inferred: –

i) “Cabinet papers, which include the records of deliberations
of the Council of Ministers, Secretaries and other officers
shall be disclosed after the decision has been taken and the
matter is complete or over.

ii) The matters which are otherwise exempted under Section
8 shall not be disclosed even after the decision has been
taken and the matter is complete or over.

iii) Every decision of the Council of Ministers is a decision of
the Cabinet as all Cabinet Ministers are also a part of the
Council of Ministers. The Ministers of State are also a part of
the Council of Ministers, but they are not Cabinet Ministers.

As we have observed above, the plea taken by the First Appellate
Authority the decision of the Council of Ministers are disclosable but
Cabinet papers are not, is totally untenable. Every decision of the
Council of Ministers is a decision of the Cabinet and, as such, all
records concerning such decision or related thereto shall fall within
the category of “Cabinet papers” and, as such, disclosable under
Section 8(1) sub-section (i) after the decision is taken and the
matter is complete, and over.”

Besides, this decision described in its joint decision in WP (Civil) Nos.

8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007,
7930/2009 and 3607 of 2007 decided on 30.11.09, which includes WP No.

6
8396/2009, UOI thru DoPT vs. CIC & PD Khandelwal1 as the legal position
having been “succulently expounded” in our order of 23.10.08, as follows:

“On the question of distinction between the Cabinet and the Council
of Ministers, I entirely agree with the reasoning given by the Chief
Information Commissioner2 which has been quoted above.”

In light of this, the basis for the stand taken by the DOPT, however,
painstakingly constructed, has been established to be without foundation. The
information sought will now be provided to appellant Shri R. C. Gupta
within 15 working days of the date of receipt of this decision by CPIO Shri
Deepak Israni, Under Secretary, DOPT under intimation to the Jt. Registrar
Shri KP Shreyaskar, CIC. The appeal is, therefore, allowed. 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
14.12.2009

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
14.12.2009

1
This is a Writ against our Decision Notice cited
2
Underlined by us for emphasis

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