Shri R. K. Tyagi vs Dep’T. Of Personnel & Training on 20 April, 2009

                         CENTRAL INFORMATION COMMISSION
                           Appeal No.CIC/WB/A/2007/01612 dated 17.12.2007
                              Right to Information Act 2005 - Section 19


Appellant        -          Shri R. K. Tyagi
Respondent           -      Dep't. of Personnel & Training


Facts

:

By an application of 16.7.07 Shri Rajesh K. Tyagi, ACE/Principal Director,
Directorate of Works, Ministry of Defence, New Delhi applied to the CPIO, Under
Secretary (ACC), DOPT seeking the following information:

“(a) Copies of DPC proceeding and notings of DPC proceedings
from the stage of DPC held on 28th March 2007, approval by
ACC and up to the stage of issue of panel bringing out the
cause of omission of certain names including mine from the
approved panel in respect of promotion of Additional Chief
Engineer to the grade of Chief Engineer in MES of the
Ministry of Defence against the vacancies for the year 2007-
08 for which approved panel for promotion has been issued
by E-in-C’s branch vide letter No. B/41021/DPC/CE/2007-
08/E1 (DCP-1) dated 27 Jun 2007.

(b) Why the main panel is only for 07 (Seven) officers where as
the vacancies existed was 10 (Ten) at the time of holding
DPC on 28th March 2007.

Out of the 07 officers included in the main panel, only 03
officers are retiring during the year 2007-08 then why the
extended panel is for 05 officers.”

To this he received a response forthwith on 24.7.07 refusing the information
sought u/s 8 sub sec. (1) (i) from CPIO Shri Ravindra Kumar, Under Secretary.
Shri Tyagi then moved his first appeal on 1.8.07 before Shri Alok Kumar,
Director, ACC, DOPT, in which he has contested the applicability of sec. 8(1)(i)
in his case, as follows:

“a) This section is applicable in cases involving deliberations by
Council of Ministers. Here ACC does not constitute council
of ministers. It is only a committee involving 2 to 3 ministers.

b) In this case though approved panel for promotion of
Additional Chief Engineers to Chief Engineers has already
been published by E-in-C’s Branch/ MES letter No.

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B/41021/DPC/CE/2007-08 E1 (DPC-1) dated 27th Jun 07
and DPC is complete and over. But reason thereof and the
material on the basis of which my name has not been
included in approved panel of promotion has not been made
public. This specifically is the information which has been
sought under RTI Act and no restriction exists against
revealing notings giving reason for exclusion of my name
from the approved panel of promotion in contravention of
existing DOPT guidelines and Govt rules on the subject as
on the date of DPC.”

In a closely argued order of 24.9.07 Shri Alok Kumar has sought to
distinguish between Cabinet Papers and decisions of Council of Ministers, as
follows:

“It is observed that Section 8 (1) (i) of the RTI Act clearly lays down
that “Cabinet papers” including “records of deliberations of the
Council of Ministers, Secretaries and other officers” are exempted
from disclosure. There is no obligation on the part of the CPIO to
give above mentioned information.

There is, however, a provision, under the section 8 (1) (i) which lays
down that the ‘decision 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’.

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 ‘decisions of the Council of Ministers’
and ‘material on the basis of which the decisions were taken’.
Naturally, there should be no occasion or need for any info-seeker
to ask for this class of information, as these are mandated, in any
case, to be made public. But this stipulation (making them
mandatorily public) is attracted, specifically, only in cases of

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‘Decisions of Council of Ministers’ and, definitely, not in respect of
any other class of ‘Cabinet Papers.”

Arguing that the proviso to sec. 8(1) (i) cannot be road to enable disclosure
of all classes of Cabinet Papers, he has come to the following conclusion:

“therefore, in view of afore quoted unambiguous provisions, the
‘Cabinet Papers’ are outside the purview of the RTI Act.’

He has also placed reliance on an additional exemption u/s 8(1) (j) as follows:

“Section 8 (1) (j) clearly provides as under:-

“information which relates to personal information the disclosure of
which has no relationship to any public activity or interest, or which
would cause unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the case may be,
is satisfied that the larger public interest justifies the disclosure of
such information”

From reading of this Section, it is apparent that the personal
information, disclosure of which has no relationship with public
activity need not be parted with, unless larger public interest is
justified, in disclosure. I find that disclosing of the information
sought for (even if accepted, for argument’s sake, as capable of
being disclosed) would not serve any larger public interest.”

On this basis, he has concluded as follows:

“In view of the aforementioned observations, I, therefore, hereby
reject the appeal of Shri Rakesh K. Tyagi.”

The appeal was heard on 20.4.2009. The following are present:

Respondents
Shri Prabhat, Director
Shri Kabindra Joshi, Under Secretary

Appellant Sh. R. K. Tyagi had been informed by Notice dated 21.3.2009
regarding the hearing but he has opted not to be present.

Shri Prabhat, Director, DOPT submitted that earlier decision by this
Commission on the same subject has been challenged by the Department,
before the High Court of Delhi. The Writ had, however, no so far been admitted.

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DECISION NOTICE

In our decision dated 23.10.08 CIC/WB/A/2008/00081, Khandelwal vs.
DoPT we have examined an identical argument of the same Appellate Authority
and concluded 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 which
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 which is
collectively responsible to the Lok Sabha. The Council of Ministers
is headed by the Prime Minister and it is he, primus inter pares 1
who determines which of the Ministers should be Members of the
Cabinet. [Page 651 Advanced Law Lexicon ]

4. It is a matter of common knowledge that the Council of
Ministers consist of the Prime Minister, Cabinet Ministers, Ministers
of State and the Civil Services. The 44th 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 44th Amendment, reads as under:-

“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

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First among equals.

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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 proviso
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 2 :

Provided further that those matters which come under the
exemptions specified in this section shall not be disclosed.”

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.”

Similarly in our Decision of16.3.2009 in appeal No. CIC/WB/A/2007/01359
PK Jain vs. DoPT we saw no reason to differ with above decision and also dealt
2
Underlined by us for emphasis

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with Appellate authority Shri Alok Ranjan’s application of exemption u/s 8 (1) (j)
as he has done in this case.

“Besides, however, while Shri Alok Kumar had been at pains to
discuss how decisions of the Council of Minister alone are
disclosable. he has gone on to argue that disclosure would not
serve any larger public interest. Shri Alok Kumar has completely
misunderstood the provisions of Section 8 (1) (j). Public interest in
this case cannot be used to deny information. It is, instead, an
enabling provision warranting the disclosure of information even
where it would otherwise fall in the category of exempted
information. Moreover, in this case the applicability of Section 8 (1)

(j) to an application seeking information on himself by any citizen of
India can hardly be construed as “invasion” of privacy. The effort to
invoke this exemption clause, therefore, is nothing less than
facetious.

For the above reasons the Commission accordingly directs that the
requested information be made available to the appellant Shri Jain
within a period of ten working says from the date of issue of this
order. This appeal is then allowed.”

This decision will apply mutatis mutandis in the present case. The appeal
is, therefore, allowed. Information sought will now be supplied to Shri Tyagi
within ten working days of the date of receipt of this Decision Notice. 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
20.4.2009

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
20.4.2009

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