Shri Rajesh Kumar vs Department Of Personnel & … on 8 December, 2008

                CENTRAL INFORMATION COMMISSION
               Adjunct to Appeal No. CIC/WB/A/2007/00976 dated 24-9-2007
                        Right to Information Act 2005 - Section 19

Appellant:           Shri Rajesh Kumar
Respondent:          Department of Personnel & Training, (DOPT)


FACTS

By an application of 13-2-2007Shri Rajesh Kumar of Rohini, Delhi
applied to the Under Secretary, Establishment, DOPT seeking the following
information:

“1. As per O. M. No. 36013/5/78-Estt (SCT) dated
19.12.1978 and 36011/15/79-Estt (SCT) dated 6.1.1981
and as per O. M. No. 36020/45/97-Estt. (Res.) dated
27.9.1999. Kindly clarify whether ST vacancy can be
converted or treated as de-reserved for General Category
and whether promotion can be given to General
Candidate after de-reservation or not.

2. As per Establishment and Administration Chapter 54,
Promotion Part-III Preparatory Action Determination of
Regular Vacancies Para No. 41. As regards vacancies
arising out of deputation only those cases of deputation
for periods exceeding one year should be taken into
Account………. Provided for. Kindly clarify whether the
same rule could also be applied for those officials who
have gone on deputation initially one year and then their
deputation is extended further for 1 year four times in the
same Ministry/ Department. Whether regular promotion
could be given to other officials against these vacancies.”

To this he received a response from Shri A. K. Cashyap, Under
Secretary as follows: –

“(i) In case of promotion, a vacancy reserved for Scheduled
Tribes can be de-reserved and filled by an other category
candidate (general category candidate) if suitable
Scheduled Tribe candidates are not available for filling up
such vacancy.

(ii) Issues raised in clause (2) of Para 1 of your application
concerns Shri A. K. Srivastava, Under Secretary (Estt. D)
and Central Public Information Officer, Department of
Personnel & Training, North Block, New Delhi. A copy of
your application has been forwarded to him for sending
you a suitable reply in the matter.”

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Subsequently through a further letter of 30th March after his reminder of
23.3.2007 Shri A. K. Srivastava, Under Secretary responded as follows:-

“Since the matters, as raised by you, elicit answer to your query
and seek the opinion of this public authority, your request is
beyond the scope of RTI Act, and the opinion sought, therefore,
cannot be provided. This also disposes of your letter dated
23.3.2007.”

Aggrieved Shri Rajesh Kumar moved his first appeal on 28.6.2007
before Ms. Smita Kumar, Director, Establishment, DoPT disputing this view
and objecting to his being asked to obtain a copy of the CIC ruling from the
CVC. Upon this Ms. Smita Kumar in her order of 20.7.2007 responded as
follows:-

“There are no specific instructions on the queries raised by you,
therefore, I endorse the reply given by CPIO. The CIC decisions
are available on their website; however, a copy (As downloaded)
of decision in D. V. Rao case is also enclosed.”

With the above clarification the appeal was then dismissed which
brought Shri Rajesh Kumar to his second appeal with the following prayer:-

“Due to Non- supply of information I am suffering from
mental agony and thus delaying my onward proceeding
regarding my grievances with the concerned Authority/
Department.

As opinion/ advice are also permissible under Rule 2 (f) of
RTI Act 2005 and my request is totally different from the
request of dr. D. V. Rao and linking my case with Dr. D. V.
Rao’s is illogical, as the reply given to me is unsatisfactory
and a clear violation of the provision of RTI.

You are, therefore, humbly requested to take necessary
action and instructed them to supply the requisite
information or Ruling copy at the earliest, as my aim was to
seek the comments/ opinions whether the vacancy arisen
due to going on deputation of some officials from one
department to another department initially for one year,
extended in succession 4 (Four) time in the same
Department/ Ministry can be accounted for regular
promotion amongst the eligible candidates.”

The appeal was heard on 8-12-08. The following are present.

Respondents
Ms. Smita Kumar, Director, DoPT.

Shri A. K. Srivastava, Under Secretary.

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Although informed of the date of hearing through our notice dated 22-
11-2008 appellant Shri Rajesh Kumar opted not to be present.

DECISION NOTICE

The issue here is application of section 2 (f) i.e. definition of information,
to the information sought to be provided. Section 2 sub-section (f) reads as
follows:-

“information” means 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;

From the above it will be clear that such information must be held in
material form. Moreover, section 2 goes on to clarify the definition of “Right to
Information” in sub-section (j), which reads as follows: –

(j) “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;

This further expands on the definition of information under section 2 (f)
because it is clear that only such information can be accessed as is in
material form, which can actually be held or controlled by any public authority.

In this case it has been clarified in the order of Ms. Smita Kumar First
Appellate Authority and Director (E-1), DOPT that such information does not
constitute part of any material held by the DoPT. She has moreover provided
a copy of the decision of this Commission on the subject that had earlier been

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cited by the CPIO, but not supplied in response to a subsequent request by
appellant.

For the above reasons we find that the information sought by appellant
Shri Rajesh Kumar has in fact been provided to the extent admissible in law.
There remains no further cause of action and we therefore find this appeal is
unsustainable. The appeal is dismissed.

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

(Wajahat Habibullah)
Chief Information Commissioner
8-12-2008

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
8-12-2008

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