{"id":130752,"date":"2010-05-03T00:00:00","date_gmt":"2010-05-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-r-p-yadav-vs-union-public-service-commission-on-3-may-2010"},"modified":"2017-08-24T11:14:26","modified_gmt":"2017-08-24T05:44:26","slug":"mr-r-p-yadav-vs-union-public-service-commission-on-3-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-r-p-yadav-vs-union-public-service-commission-on-3-may-2010","title":{"rendered":"Mr.R P Yadav vs Union Public Service Commission on 3 May, 2010"},"content":{"rendered":"
Central Information Commission<\/div>\n
Mr.R P Yadav vs Union Public Service Commission on 3 May, 2010<\/div>\n
                     CENTRAL INFORMATION COMMISSION\n              Appeal No. CIC\/WB\/A\/2009\/000237 & 242 dated 27-2-2009\n                  Right to Information Act 2005 - Section 19\n\nAppellant:             Shri R.P. Yadav;\nRespondent:            Union Public Service Commission, (UPSC)\n                           Decision announced 3.5.'10\nFacts<\/pre>\n
        These are two appeals received from Shri R.P. Yadav of Gurgaon,
\nHaryana that have been clubbed together for disposal<\/p>\n
Appeal No. CIC\/WB\/A\/2009\/000237
\n        By a request dated 26-5-08 Shri R.P. Yadav applied to CPIO, UPSC
\nseeking the following information:\n<\/p>\n
        “1.      Whether in respect of promotion to the grade of Foreman
\n                 Instructor GNCT, Delhi the proceedings of the DPC meeting
\n                 held on 9.4.2008 may be reviewed? As the DPC did not
\n                 take all material facts into consideration due to correct
\n                 information was not brought to their notice and there have
\n                 been grave errors in the procedure followed by the DPC as
\n                 given below: –<\/p>\n
                        a)      4 Lab Technicians viz. Shri Mohammed
\n                        Nasir, Raj Kumar, Shri Bhagwan & Manjeet Sing
\n                        have been promoted by mistake against the
\n                        vacancies of the year 2003-2004. Though, the
\n                        post of Lab Tech. was included in the feeder post
\n                        in the new RRs notified on 13.1.2004 how could
\n                        their eligibility be determined on 1st January 2003
\n                        being the crucial date for determining the eligibility
\n                        of officers for promotion against the vacancy year
\n                        2003-2004.\n<\/p><\/blockquote>\n
                        b)        The information furnished to the UPSC\/
\n                        DPC is factually incorrect and incomplete. The
\n                        department in the note for DPC has stated that the
\n                        posts of Foreman Instructors were created in the
\n                        new RRs notified on 13.1.2004 and concealed the
\n                        fact that the said posts were created in the old
\n                        RRs vide notification No. F.5\/24\/89\/TE\/Ad dated
\n                        2.5.1991. The very fact that there were 11 posts
\n                        created in old RRs.          Subsequently, 17 new
\n                        additional posts were created accordingly 28 posts
\n                        were notified in the amended RRs vide notification
\n                        even number dated 13.1.2004.\n<\/p><\/blockquote>\n
                        c)      It is not mentioned in the Note for DPC
\n                        whether the vacancies were available before the<\/p>\n
                                          1<\/span>
\n                     amendment of RRs. In fact, vacancies were
\n                    available due to death of Shri. M. P. Singh,
\n                    Foreman Instructor (Electrical) and retirement of
\n                    Shri D. D. Sharma, Foreman Instructor
\n                    (Mechanical), Shri. K. K. Sikka, Foreman Instructor
\n                    (Mechanical) etc. Unfilled vacancies of old RRs of
\n                    Foreman Instructor (Electronics & production) etc.
\n                    were also available before amendment of RRs. In
\n                    the old RRs feeder posts are less in numbers than
\n                    the amended RRs.\n<\/p><\/blockquote>\n
                    d)     Out of the four 3 Lab Tech were promoted
\n                    for the post of Foreman Instructor (electronics) by
\n                    mistake. As one post of Foreman Instructor
\n                    (Electronics) was created in old RRs which
\n                    remained unfilled. Unfilled vacancy of old RRs
\n                    would have been filled from the feeder post of old
\n                    RRs in accordance with the instructions of DOP&T
\n                    OM No. 22011\/5\/86-Estt. (D) dated 10.4.1989,
\n                    Para 3.1 which stated ‘A vacancy shall be filled in
\n                    accordance with the recruitment rules in force on
\n                    the date of vacancy’. The post of lab Tech was not
\n                    in the feeder posts in the old RRs. How could
\n                    aforesaid Lab Tech. be promoted against the
\n                    vacancy of old RRs.\n<\/p><\/blockquote>\n
                    e)     The 4th one Shri Mohammed Nasir, Lab
\n                    Tech. was promoted for the post of Foreman
\n                    Instructor (Electrical) by mistake against the
\n                    vacancy occurred due to death of Shri M. P. Singh
\n                    Foreman Instructor (Electrical) before the
\n                    amendment of RRs. A vacancy of F.I. Electrical,
\n                    which occurred earlier, should have been filled first
\n                    from the feeder posts of old RRs. Hence, Shri
\n                    Mohammed Nasir, Lab Tech. Electrical is ineligible
\n                    for the said promotion as their post was not in the
\n                    feeder post on the date of occurrence of vacancy.\n<\/p><\/blockquote>\n
      2.    In case review DPC is not possible then please provide
\n            total numbers of pages including DPC proposal, note for
\n            DPC, formal letters in which clarifications were sought
\n            and furnished, Performa for referring proposal for
\n            promotion to UPSC, check list of papers for DPC,
\n            recommendations of the DPC and all papers\/ documents
\n            and noting sheet pertaining to the promotion for the post
\n            of Foreman Instructor and also provide the total amount
\n            which are to be paid according to RTI Act, 2005 as I want
\n            to get the certified copies of each papers\/ documents.”\n<\/p><\/blockquote>\n
      To this Shri Yadav received a response dated 23-6-08 from Shri K.S.\n<\/p><\/blockquote>\n
Sampath, Under Secretary, UPSC informing him as follows:\n<\/p>\n
      “Point 1<\/p>\n
                                      2<\/span>
\n        It is stated that Para 18.1 of the DOP&T OM No. 22011\/5\/86-
\n       Estt. (D) dated 10th April, 1989 containing the Guidelines on
\n       Departmental Promotion Committee stipulates that ‘The
\n       proceedings of any DPC may be reviewed only if the DPC has
\n       not taken all material facts into considerations or if material facts
\n       have not been brought to the notice of the DPC or if there have
\n       been grade errors in the procedure followed by the DPC. Thus
\n       it may be necessary to convene Review DPCs to rectify certain
\n       unintentional mistakes.\n<\/p><\/blockquote>\n
       It is pointed out in this connection that there has not been any
\n       error in the procedure followed by the DPC held on 9.4.2008.
\n       However, it is not known whether the GNCT of Delhi failed to
\n       bring any material facts to the notice of the DPC. Thus the onus
\n       for moving the Commission for holding a Review DPC in the
\n       case of Foreman Instructor, GNCT of Delhi lies on the GNCT of
\n       Delhi. However, the Commission shall examine the proposal of
\n       the GNCT of Delhi taking into consideration, the Guidelines on
\n       the subject, as quoted above.\n<\/p><\/blockquote>\n
       Point 2
\n       It is pointed out that only copies of letters issued by
\n       Commission’s office and notes portion (excluding those where
\n       the names of Hon’ble Members of the Commission are
\n       reflected) can be given to you. Copies of documents such as
\n       forwarding letter of the proposal, note for DPC, formal letters
\n       under which clarifications were furnished, proforma for referring
\n       proposal to UPSC, Check List of papers for DPC etc pertaining
\n       to promotion to the grade of Foreman Instructor cannot be
\n       furnished to you as all these documents emanated from GNCT
\n       of Delhi and have been received by the Commission in a
\n       fiduciary relationship. This stand of the Commission in certain
\n       other cases. You are, therefore, advised to approach the GNCT
\n       of Delhi for supply of the copies the document that have
\n       emanated from them. As regards the number of pages of
\n       correspondence that emanated from the Commission’s office
\n       and that in the notes portion is being worked out and you will be
\n       intimated shortly of the same and the amount to be deposited by
\n       you in this regard.”\n<\/p><\/blockquote>\n
       Aggrieved Shri Yadav moved an appeal before Shri Jatinder Kumar, Jt.\n<\/p><\/blockquote>\n
Secretary pleading that the information provided is “incomplete, incorrect,
\nmisleading, injustice, surprising, arbitrary, averted and irresolute.”\n<\/p>\n
       With regard to question at point No. 1 appellant Shri Yadav has
\npleaded as under:\n<\/p>\n
                                         3<\/span><\/p>\n
               i)    A review DPC should be held keeping in mind the total
\n                    vacancies of the year. Moreover, aforesaid matter is also
\n                    available on the website of the UPSC at Para (a) of point
\n                    15 for review DPC even then, it is not informed to the
\n                    appellant.\n<\/p><\/blockquote>\n
              ii)   There has been grave error in the procedure followed by
\n                    the DPC held on 9.4.2008.”\n<\/p><\/blockquote>\n
       With regard to answer to point No.2 Shri Yadav’s plea is as below:
\n       “It is, therefore, obligatory on the part of UPSC to supply total
\n       number of pages as has been sought irrespective of whether
\n       emanated from GNCT of Delhi or the Commission’s Office and
\n       the total amount to be deposited by me in this regard as has not
\n       yet been informed.”<\/p><\/blockquote>\n
       Upon this Shri Jatinder Kumar, JS (Appointment) has passed a lengthy
\norder but the decision on this appeal dated 25-8-08 is anything but a speaking
\norder, worded as follows:\n<\/p>\n
       “I called for the file in which CPIO has taken decision and also
\n       sought his comments. I have gone through the appellant’s
\n       application dated 26.5.2008 as also the appeal under reference
\n       along with the relevant DPC file.<\/p><\/blockquote>\n
       After going through the various files and the reply furnished by
\n       the CPIO, I do not find any ground to issue direction to the CPIO
\n       on any of the points cited above. The first appeal is decided
\n       accordingly.’<\/p>\n
       This has brought Shri Yadav to his second appeal before us with the
\nfollowing prayer:\n<\/p>\n
       “The authority of the UPSC may kindly be directed to
\n       supply information correct and complete in all respect
\n       according to the guidelines of Govt. of India (DOP&T) and
\n       supply certified copies of 29 pages and also complete copy
\n       of remained pages. It is also request fully prayed to impose
\n       penalty or issue directions for disciplinary action for non
\n       receipt of complete information of point 1 at two levels and
\n       certified copies for point 2.”\n<\/p><\/blockquote>\n
       The grounds on which appellant’s prayer is based are as below:\n<\/p><\/blockquote>\n
       a)   There has been grave errors in the procedure followed by
\n            the UPSC\/ DPC held on 9.4.2008 as has been mentioned
\n            in detail in first appeal which are advertently either has
\n            been considered nor decided by the Appellate Authority
\n            because of the (04) four officers who have been promoted<\/p>\n
                                      4<\/span>
\n            against the vacancy year 2003-04 were ineligible against
\n           the said vacancy year.<\/p><\/blockquote>\n
      b)   The copies of only 29 pages furnished by the UPSC have
\n           neither have been certified by any authority of UPSC nor
\n           some of the copies are readable because of defective of
\n           photocopy. Hence, certified and readable copies again
\n           requested for which I had paid\/ deposited the requisite
\n           amount.’<\/p>\n
      With regard to the latter Shri R.P. Yadav has repeated the argument
\nthat a fiduciary relationship cannot apply in this case. In response to our
\nappeal notice appellant Shri Yadav has submitted a further representation in
\nwhich with regard to point 1 he has submitted that he has been “informed that
\nthere has not been any error in the procedure followed by the DPC held on
\n9.4.2008 whereas there has, in his view, been grave error in the procedure
\nfollowed by the DPC held on 9.4.2008 as the DOPT OM No. 22011\/9.98-Estt.
\n(D) dated 8.9.1998, 16.6.2000 & 14.12.2000 (copy enclosed ‘C’, ‘D’, ‘E’)
\ncontained the procedure to be observed by the DPC (subject of the said OMs
\nmake it easier to understand that procedure prescribed therein is required to
\nbe observed by the DPC) to ensure that DPCs are to be convened in advance
\nand approved select panel is to be prepared well before commencement of
\nthe relevant vacancy year.    But it is not observed by the DPC held on
\n9.4.2008 for the vacancy year 2008-2009, which is an error in the procedure
\nfollowed by the DPC held on 9.4.2008.”\n<\/p>\n
      With regard point No. 2 Shri Yadav has, in this representation,
\nsubmitted as follows:\n<\/p>\n
      “I need these documents\/ records hence as such total amount of
\n      Rs. 60\/- has been paid, in spite of the intimation towards the
\n      additional fees was given after the 30 days of receipt of request
\n      wherefore information should be supplied free of charge.
\n      According to the Act, the CPIO should supply the information
\n      within 30 days of receipt of request where the applicant is asked
\n      to pay additional fee, the period intervening between the
\n      dispatch of said intimation and payment of fee shall be excluded
\n      for calculating the period of reply of 30 days. But the CPIO has
\n      failed to give the information within the prescribed time, and in
\n      the form as sought for as per sub section 9 of section 7, he shall
\n      be deemed to have refused the request.”\n<\/p><\/blockquote>\n
Appeal No. CIC\/WB\/A\/2009\/000242<\/p>\n
                                      5<\/span>
\n        In this case Shri Yadav’s request of 26-5-08 addressed to the CPIO,
\nUPSC is as below:\n<\/p>\n
       “1.      As per your letter even number dated 3rd March 2008
\n                under point 5 there 6 vacancies were shown but letter No.
\n                F. 2\/31(3)\/2008\/-AP-2 dated 9th April 2008 shows 7
\n                officers were to be promoted. Whether any additional
\n                officer was included for promotion after sending the
\n                proposal to the UPSC in May 2007? If yes, please
\n                provide the name, reason and date of induction in
\n                eligibility list?\n<\/p><\/blockquote>\n
2.              How was it is noticed that the post of Technician has not
\nbeen prescribed\/ included in the Feeder Posts in the old RRs who had
\nbeen recommended and promoted against the vacancy of the old RRs
\nnotified on 2.5.1991? As I stated in point (iii) vide page 2 of letter No.
\nF. 2\/31(3)\/2008-AP-2 dated 8th April 2008 that in the amended RRs
\n(notified on 13.1.2007) Feeder posts are more in numbers than the old
\nRRs. Though, it has been noticed that 11 year’s qualifying years of
\nservice has been prescribed in both the old and amended RRs vide
\npage 6 of letter dated 8.4.2008.\n<\/p>\n
3.              How the CPIO has submitted in his comments to the
\nappellate authority that DPC guidelines are silent on hypothetical
\nsituation given by the appellant in regard to point 5 vide page 6 of letter
\ndated 8.4.2008? Actually, it is not a hypothetical situation and DPC
\nguidelines are not silent vide DOP&T OM No. 22011\/5\/86-Estt. (D)
\ndated 10.4.1989, Para 3.1 page 3 ‘Frequency of DPC meeting’ which
\nstates that it is essential for the concerned appointing authority to
\ninitiate action to fill up the existing as well anticipated vacancies well in
\nadvance. In addition to that vide Para 6.4.1, 6.4.2 and in Para 18.2 it is
\nstated that a Review DPC should consider only those persons who
\nwere eligible as on the date of meet6ing of original DPC. Further,
\nproforma for referring proposals for promotion to UPSC (vide Annexure
\n1 Para 4.2.1) point 8 (g) shows that the eligibility list should be drawn
\nup as on 31 December of every year. Hence, up to 31st December,
\n2007 all eligible persons should have been included in the eligibility list
\nfor which the concerned department states that eligibility list up to 31 st
\nDecember 2007 was not asked by UPSC while taking clarifications
\nbefore approval of proposal for fixing the meeting of the DPC for April,
\n2008.\n<\/p>\n
4.              Why was the wrong information that ‘there are no specific
\nguidelines issued by the DOP&T concerning point 3 sent to the
\nappellate authority by the CPIO, UPSC vide page 5 of letter No. F.
\n2\/31(3)\/2008-AP-2 dated 8th April 2008. Whereas specific guidelines
\nhave already been issued by the DOP&T vide their OM No.
\n22011\/5\/86-Estt.(D) dated 10.4.1989 Para 3.1 page 3 under the
\n‘Frequency of DPC meeting’ it is stated that a vacancy shall be filled in
\naccordance with recruitment rules in force on the date of vacancy.\n<\/p>\n
5.              Why were the names of the eligible candidates up to 31st
\nDecember 2007 not considered for promotion as the DPC meeting was
\nnot fixed till the date and even the DPC meeting had been scheduled<\/p>\n
                                         6<\/span>
\n for April 2008? Whereas sufficient number of vacancies were available
\nfor their promotion.\n<\/p>\n
6.            Will the officers who had become eligible up to Aug, 2007
\nbe considered for promotion in the Review DPC?               Incase the
\nproceeding of DPC meeting held on 9.4.2008 may be review to rectify
\nmistakes.”\n<\/p>\n
      Upon this Shri R.P. Yadav has received a response dated 23-6-08 from
\nCPIO Shri K.S. Sampath, Under Secretary as below:\n<\/p>\n
      “Point 1 to 4
\n      It is observed from your present application that in items 1 to 4,
\n      you have relied upon the orders dated 8.2.2009 of the First
\n      Appellate Authority and raised certain issues seeking response
\n      of the CPIO thereon. It is pointed out in this connection that in
\n      case you are not satisfied with the orders of the First Appellate
\n      Authority, you are required to move the Hon’ble Central
\n      Information Commission by way of Second Appeal under
\n      section 19 (3) of the RTI act, 2005. You are, therefore, advised
\n      accordingly.\n<\/p><\/blockquote>\n
      Point 5
\n      It is pointed out that the DPC held on 9.4.2008 considered
\n      vacancies only of the years 2003-2004 and 2007-08. There
\n      were no eligible officers for the years 2004-2005 to 2006-2007.
\n      The officers who complete their eligible service on 31.12.2007
\n      become eligible for consideration for the vacancy year 2008-
\n      2009 only. Therefore, such officers who completed their
\n      qualifying service on 31.12.2007 were not considered by the
\n      DPC as the proposal of the GNCT of Delhi was only up to the
\n      vacancy year 2007-2008.\n<\/p><\/blockquote>\n
      Item 6
\n      It s pointed out that in terms of Para 18.1 of DOP&T OM No.
\n      A32011\/5\/86-Estt. (D) dated 10.4.1989, the Review DPCs are
\n      required to review the proceedings of an earlier DPC only to rectify
\n      certain unintentional mistakes. Para 18.2 of the said OM inter alia
\n      clearly lays down that persons who become eligible on a
\n      subsequent date should not be considered. Such cases, will of
\n      course, come up for consideration by a subsequent regular DPC.”<\/p><\/blockquote>\n
      In his appeal before Shri Jatinder Kumar, JS, UPSC Shri Yadav’s
\nprayer is as below:\n<\/p>\n
             “Request to supply the required information.”\n<\/p>\n
      Shri Yadav has challenged the information supplied by CPIO Shri K.S.
\nSampath with regard to point Nos. 1 to 4 as follows:\n<\/p>\n
      “Point 1 to 4 are fresh information, but prepared on the basis of
\n      the information supplied by the UPSC through various letters
\n      which are contradictory with each other. It is not a case of<\/p>\n
                                      7<\/span>
\n       dissatisfaction with the order of the First Appellate Authority.
\n      Therefore, I cannot move by way of second appeal as advised.”\n<\/p><\/blockquote>\n
      And with regard to point No.5 as below:\n<\/p><\/blockquote>\n
      “As the CPIO, UPSC has reported that there were no eligible
\n      officers for the year 2004-05 to 2006-07, which is factually
\n      incorrect, because the officers belonging to the cadre of Lab
\n      Technician were eligible for the year 2005-06 who were included
\n      only in the feeder cadres prescribed for new RRs notified on
\n      13.1.2004 as 1st January of the vacancy year is the crucial date
\n      for determining eligibility of officers for promotion. Hence, these
\n      officers shall be eligible for the year 2005-06.”<\/p><\/blockquote>\n
      In his order of 22-8-08 Shri Jatinder Kumar, JS (Appointment) in his
\nspeaking order examined each of the points raised, holding as follows:\n<\/p>\n
      “In regard to point 1 of the appellant’s letter dated 26.5.2008, it
\n      is pointed out that initially only names of six eligible officers were
\n      included by the GNCT of Delhi in the Eligibility List.
\n      Subsequently the name of Shri Hans Raj was also included
\n      based on the clarifications furnished by the DOP&T in regard to
\n      equivalence of educational qualifications possessed by him.\n<\/p><\/blockquote>\n
      In regard to point 5, it is felt that the appellant has certain
\n      grievances in regard to his promotion to the grade of Foreman
\n      Instructor. He has categorically stated that the information
\n      furnished by the CPIO is factually incorrect and has contended
\n      that officers belong to the cadre of Lab Technician were eligible
\n      for the year 2005-06 who were included in the feeder cadres
\n      prescribed in the new RRs notified on 1.1.2004. The DPC held
\n      on 9.4.2008 in the Commission’s office was held strictly on the
\n      basis of various inputs provided by the Government of NCT of
\n      Delhi such as Seniority List, Eligibility List etc. he is. Therefore,,
\n      advised to take up the matter with the Government of NCT of
\n      Delhi for redressal of his grievances and therefore, I do not
\n      consider it necessary to pass any order on the reply furnished
\n      by the CPIO to point 5 of the appellant’s letter dated 26.5.2008.\n<\/p><\/blockquote>\n
      As regards point 6, I observe that in his letter dated 26.5.2008,
\n      the appellant had sought to know as to whether the officers who
\n      had become eligible up to August, 2007 be considered for
\n      promotion in the Review DPC in case the proceedings of DPC
\n      meeting held on 9.4.2008 may be reviewed to rectify mistakes.
\n      The CPIO’s reply to this point is quite clear wherein he has
\n      relied up the provisions of Para 18.1 of DOP&T OM dated
\n      10.4.1989 relating to the circumstances under which review
\n      DPCs are required to be held. It goes without saying that if any
\n      eligible persons were omitted from being considered by the
\n      original DPC in the vacancy year in which they ought to have
\n      been considered, the proceedings of the original DPC may be<\/p>\n
                                        8<\/span>
\n          reviewed to rectify such mistakes. Further, it appears that the
\n         appellant has not understood the concept of crucial date. All
\n         officers who complete the qualifying years of service as on 1st
\n         January preceding the vacancy year become eligible to be
\n         considered for promotion in that vacancy year. In the case in
\n         hand, DPC was held up to the year 2007-08. All officers who
\n         complete the qualifying years of service as on 1.1.2007 are
\n         required to be included in the zone of consideration. As regard
\n         officers who complete the requisite qualifying years of service in
\n         August, 2007 and after 1st January, 2007, they become eligible
\n         for consideration for the subsequent vacancy year 2008-09, the
\n         crucial date for 2008-09 being 1.1.2008.\n<\/p><\/blockquote>\n
         In view of the above, I do not find any ground to issue directions
\n         to the CPIO on any of the points discussed above except as
\n         indicated above.”<\/p><\/blockquote>\n
         Appellant Shri Yadav’s prayer before us in his second appeal is as
\nbelow:\n<\/p>\n
         “I am aggrieved and not satisfied with the decision of
\n         appellate authority due to non receipt of information of
\n         point 2 to 4 and supply incomplete and wrong information
\n         of point 1, 5 and 6 at two levels, thus the second appeal is
\n         being filed point wise before the Central Information
\n         Commission for justice under section 19 (3) of RTI Act,
\n         2005.\n<\/p><\/blockquote>\n
         It is requested that the CPIO\/ Appellate Authority of UPSC
\n         may kindly be directed to supply the information on all the
\n         06 points on perusal of the appeal. If RTI Act permit to do
\n         so. A copy of the same may kindly be sent to the applicant
\n         so that information furnished by them for all the 06 points
\n         can be perused prior to the date of hearing for placing the
\n         material before CIC for justice.”<\/p><\/blockquote>\n
         Both appeals were heard together on 3-5-2010.         The following are
\npresent:\n<\/p>\n
         Appellant
\n         Shri R. K. Sahal (on behalf of appellant).<\/p><\/blockquote>\n
         Respondent
\n         Shri. Rajesh Gupta, Under Secretary, CPIO<\/p>\n
         Shri R.K. Sahal presented a letter dated 2-5-10 from appellant Shri
\nR.P. Yadav with Shri Sahal’s signatures attested requesting that Shri R.K.
\nSahal will appear before the Commission to represent Shri Yadav’s case. The
\nletter has been placed on file<\/p>\n
                                         9<\/span>
\n        Respondent Shri Rajesh Gupta, present CPIO & US, UPSC while
\narguing that an opinion cannot be provided under the RTI Act unless it is
\nrecorded, conceded that in such case as the present under appeal no
\nfiduciary relationship could apply. Shri R.K. Sahal, representing the appellant
\nalso submitted that copies of documents received are not clear and these are
\nunattested.\n<\/p>\n
                             DECISION NOTICE<\/p>\n
Appeal No. CIC\/WB\/A\/2009\/000237
\n       In this case the information sought against point No.1 stands provided
\nto appellant Shri Yadav. Shri Yadav on the other hand on the basis of the
\ninformation provided has come to the conclusion that the UPSC proceedings
\nin the DPC are in error. The authority of this Commission is simply to provide
\nthe information held or under the control of a public authority to a citizen
\napplying for it. We cannot adjudicate upon the merits or worthiness of the
\ninformation provided.    This is a matter for agitation either before the
\nconcerned department or the judicial courts.\n<\/p>\n
       On point No. 2, however, a fiduciary relationship has been argued. We
\nnow have a very clear definition of what constitute a fiduciary relationship In
\nhis judgment in WP(C) 228\/2009, CPIO Supreme Court of India vs. SC
\nAgrawal & Anr. Ravindra Bhat J has discussed the concept of fiduciary
\nrelationship in some detail. The High Court ruling in the above case is as
\nfollows:\n<\/p>\n
       56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of
\n       Baroda<\/a> 2008 (13) SCALE 160) the Supreme Court had to decide
\n       whether a transaction resulted in a fiduciary relationship. Money was
\n       sought to be recovered by the plaintiff, from a bank, who had moved
\n       the court for auction of goods imported, and retained the proceeds; the
\n       trail court overruled the objection to maintainability, stating that the
\n       bank held the surplus (of the proceeds) in a fiduciary capacity. The
\n       High Court upset the trial court’s findings, ruling that the bank did not
\n       act in a fiduciary capacity. The Supreme Court affirmed the High
\n       Court’s findings. The court noticed Section 88 of the Trusts Act, which
\n       reads as follows:\n<\/p><\/blockquote>\n
                                      10<\/span><\/p>\n
         “Section 88. Advantage gained by fiduciary. – Where a
\n        trustee, executor, partner, agent, director of a company,
\n        legal advisor, or other person bound in a fiduciary
\n        character to protect the interests of another person, by
\n        availing himself of his character, gains for himself any
\n        pecuniary advantage, or where any person so are, or
\n        may be, adverse to those of such other person and
\n        thereby gains for himself a pecuniary advantage, he must
\n        hold for the benefit of such other person the advantage
\n        so gained.”\n<\/p><\/blockquote>\n
Affirming the High Court’s findings that the bank did not owe a fiduciary
\nresponsibility to the appellant, it was held by the Supreme Court, that:\n<\/p>\n
        “9. An analysis of this Section would show that the Bank,
\n        to whom the money had been entrusted, was not in the
\n        capacity set out in the provision itself. The question of
\n        any fiduciary relationship therefore arising between the
\n        two must therefore be ruled out. It bears reiteration that
\n        there is no evidence to show that any trust had been
\n        created with respect to the suit money.”\n<\/p><\/blockquote>\n
The following kinds of relationships may broadly be categorized as
\n“fiduciary”:\n<\/p>\n
    \u2022 Trustee\/beneficiary (Section 88, Indian Trusts Act, 1882)
\n    \u2022 Legal guardians \/ wards (Section 20, Guardians and
\n    Wards Act, 1890)
\n    \u2022 Lawyer\/client;\n<\/p><\/blockquote>\n
    \u2022 Executors and administrators \/ legatees and heirs
\n    \u2022 Board of directors \/ company
\n    \u2022 Liquidator\/company
\n    \u2022 Receivers, trustees in bankruptcy and assignees in
\n    insolvency \/ creditors
\n    \u2022 Doctor\/patient
\n    \u2022 Parent\/child:\n<\/p><\/blockquote>\n
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines
\nfiduciary relationship as
\n        “a relationship in which one person is under a duty to act
\n        for the benefit of the other on the matters within the
\n        scope of the relationship….Fiduciary relationship usually
\n        arise in one of the four situations (1) when one person
\n        places trust in the faithful integrity of another, who is a
\n        result gains superiority or influence over the first, (2)
\n        when one person assumes control and responsibility over
\n        another, (3) when one person has a duty to act or give
\n        advice to another on matters falling within the scope of
\n        the relationship, or (4) when there is specific relationship
\n        that has traditionally be recognized as involving fiduciary
\n        duties, as with a lawyer and a client, or a stockbroker and
\n        a customer”\n<\/p>\n
58. From the above discussion, it may be seen that a fiduciary
\nrelationship is one whereby a person places complete<\/p>\n
                               11<\/span>
\n       confidence in another in regard to a particular transaction or his
\n      general affairs or business. The relationship need not be
\n      “formally” or “legally” ordained, or established, like in the case of
\n      a written trust; but can be one of moral or personal
\n      responsibility, due to the better or superior knowledge or
\n      training, or superior status of the fiduciary as compared to the
\n      one whose affairs he handles. If viewed from this perspective, it
\n      is immediately apparent that the CJI cannot be a fiduciary vis-\u00e0-
\n      vis Judges of the Supreme Court; he cannot be said to have
\n      superior knowledge, or be better trained, to aid or control their
\n      affairs or conduct. Judges of the Supreme Court hold
\n      independent office, and are there is no hierarchy, in their judicial
\n      functions, which places them at a different plane than the CJI. In
\n      these circumstances, it cannot be held that asset information
\n      shared with the CJI, by the judges of the Supreme Court, are
\n      held by him in the capacity of a fiduciary, which if directed to be
\n      revealed, would result in breach of such duty. So far as the
\n      argument that the 1997 Resolution had imposed a confidentiality
\n      obligation on the CJI to ensure non-disclosure of the asset
\n      declarations, is concerned, the court is of opinion that with the
\n      advent of the Act, and the provision in Section 22 – which
\n      overrides all other laws, etc. (even overriding the Official Secrets
\n      Act) the argument about such a confidentiality condition is on a
\n      weak foundation. The mere marking of a document, as
\n      “confidential”, in this case, does not undermine the overbearing
\n      nature of Section 22. Concededly, the confidentiality clause (in
\n      the 1997 Resolution) operated, and many might have bona fide
\n      believed that it would ensure immunity from access. Yet the
\n      advent of the Act changed all that; all classes of information
\n      became its subject matter. Section 8(1) (f) affords protection to
\n      one such class, i.e. fiduciaries. The content of such provision
\n      may include certain kind of relationships of public officials, such
\n      as doctor-patient relations; teacher-pupil relationships, in
\n      government schools and colleges; agents of governments; even
\n      attorneys and lawyers who appear and advise public authorities
\n      covered by the Act. However, it does not cover asset
\n      declarations made by Judges of the Supreme Court, and held by
\n      the CJI..”\n<\/p>\n
      Clearly then there is no fiduciary relationship involved in the present
\ninformation sought nor has CPIO, UPSC been able to produce any document
\nin the hearing in support of his predecessor’s claim that this Commission has
\nheld such a relationship as in the present case to be fiduciary. This appeal is,
\ntherefore, allowed in part. The complete document sought by appellant Shri
\nYadav at Point 2 of his request will now be supplied to Shri Yadav within 10
\nworking days of the date of receipt of this Decision Notice, subject to the
\nconcluding paragraph of this decision notice below.\n<\/p>\n
                                       12<\/span><\/p>\n
 Appeal No. CIC\/WB\/A\/2009\/000242
\n       In this case we find that information sought against point Nos. 1, 5 and
\n6 have indeed been provided at the stage of Appellate Authority by Shri
\nJatinder Kumar, JS in his order of 22-8-08 as quoted by us in some detail
\nabove.\n<\/p>\n
       Question Nos. 2, 3 and 4 on the other hand are notional questions
\nwithout reference to any information held by the UPSC but seeking an
\nopinion.   An important question that arises in this context is as to whether
\nwhat the appellant is asking can be treated as an “information” within the
\nmeaning of Section 2(f) of the Right to Information Act, 2005. The term
\n“information” as defined by Section 2(f) includes “any material in any form
\nincluding records, documents, memos, e-mails, opinions, advices, press
\nreleases, circulars, orders, logbooks, contracts, reports, papers, samples,
\nmodels, data material held in any electronic form and information relating to
\nany private body which can be accessed by a public authority under any other
\nlaw for the time being in force.”\n<\/p>\n
       In order to understand the essence of the Act, it is important to read
\nSection 2(f) along with Sections 2(i) and 2(j). Section 2(j) reads as under: –\n<\/p>\n
      ” ‘right to information’ means the right to information accessible
\n      under this Act which is held by or under the control of any public
\n      authority and includes the right to –\n<\/p><\/blockquote>\n
      (i)     inspection of work, documents, records;\n<\/p><\/blockquote>\n
(ii)          taking notes, extracts or certified copies of documents or
\nrecords;\n<\/p>\n
(iii)         taking certified samples of material;\n<\/p>\n
(iv)  obtaining information in the form of diskettes, floppies, tapes,
\nvideo cassettes or in any other electronic mode or through printouts
\nwhere such information is stored in a computer or in any other device.”\n<\/p>\n
       Section 2(i) reads as under:-\n<\/p><\/blockquote>\n
       “records” includes –\n<\/p><\/blockquote>\n
              “(a) any document, manuscript and file;\n<\/p><\/blockquote>\n
                (b) any microfilm, microfiche and facsimile copy of a
\n              document;\n<\/p><\/blockquote>\n
              (c) any reproduction of image or images embodied in
\n              such microfilm (whether enlarged or not); and<\/p>\n
                                       13<\/span>\n<\/p><\/blockquote>\n
               (d)any other material produced by a computer or any
\n              other device.”\n<\/p><\/blockquote>\n<\/blockquote>\n
       From the above, it is clear that the Right to Information Act confers on
\na citizen only access to such information that is held by or is under the control
\nof a Public Authority. Section 2(f), on the other hand, defines “information” as
\nsomething which is available in a material form. “Information”, therefore, can
\nbe something that is available in a material form and is retrievable from the
\nofficial records. It cannot be something that is not a part of the record. An
\n“opinion” or an “advice” which is not recorded cannot, therefore, be treated as
\n“information” within the meaning of Section 2(f) of the RTI Act. Similarly, the
\nCPIO cannot either confirm or deny some perception of the appellant, which
\nhe has about a particular set of information. The role of the CPIO under the
\nRight to Information Act, 2005 is of information provider and he cannot be
\ntreated as a creator of the information. If a matter has been decided, he can
\ncommunicate the decision, but if the matter is still to be decided, he cannot
\nprovide a decision. Similarly, he also cannot either justify a decision already
\ntaken or provide reasons for such decision.        That is clearly outside the
\npurview of the CPIO under the RTI Act.          While upholding the denial of
\ninformation in this regard by both the CPIO and Appellate Authority, the CPIO
\nShri Rajesh Gupta is advised that even if a request does not fall within the RTI
\nAct it is the duty as CPIO to inform the applicant\/citizen that such an
\napplication is inadmissible and provide the reasons for the same which in this
\ncase has not been done.        With this observation, however, this appeal is
\ndismissed.<\/p><\/blockquote>\n
       CPIO Shri Rajesh Gupta, US, UPSC has, in the interest of bringing, the
\nappeals of appellant Shri Yadav to an amicable conclusion offered to allow
\ninspection of the records by appellant Shri Yadav. Accordingly, Shri Yadav
\nmay call upon Shri Rajesh Gupta in his office on a mutually convenient date
\nand time to be fixed on the telephone with CPIO Shri Rajesh Gupta
\n(9868213496) when the orders under Appeal No. CIC\/WB\/A\/2009\/000237
\ncan also be disposed of, but in any case not later than 10 working days of the
\ndate of receipt of this decision notice.\n<\/p>\n
                                           14<\/span><\/p>\n
        Announced in the hearing. Notice of this decision be given free of cost
\nto the parties.\n<\/p>\n
(Wajahat Habibullah)
\nChief Information Commissioner
\n3-5-2010<\/p>\n
Authenticated true copy. Additional copies of orders shall be supplied against
\napplication and payment of the charges prescribed under the Act to the CPIO
\nof this Commission.\n<\/p>\n
(Pankaj K.P. Shreyaskar)
\nJoint Registrar
\n3-5-2010<\/p>\n
                                      15<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[39,1],"tags":[],"class_list":["post-130752","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nMr.R P Yadav vs Union Public Service Commission on 3 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-r-p-yadav-vs-union-public-service-commission-on-3-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr.R P Yadav vs Union Public Service Commission on 3 May, 2010 - 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