{"id":218843,"date":"2008-09-17T00:00:00","date_gmt":"2008-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/col-r-s-tiwary-vs-defence-research-development-on-17-september-2008"},"modified":"2018-10-04T12:14:25","modified_gmt":"2018-10-04T06:44:25","slug":"col-r-s-tiwary-vs-defence-research-development-on-17-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/col-r-s-tiwary-vs-defence-research-development-on-17-september-2008","title":{"rendered":"Col. R.S. Tiwary vs Defence Research & Development … on 17 September, 2008"},"content":{"rendered":"
Central Information Commission<\/div>\n
Col. R.S. Tiwary vs Defence Research & Development … on 17 September, 2008<\/div>\n
              CENTRAL INFORMATION COMMISSION\n                Appeal No. CIC\/WB\/A\/2007\/00755 dated 11-5-2007\n                  Right to Information Act 2005 - Section 19\n\nAppellant:         Col. R.S. Tiwary, NOIDA\nRespondent:        Defence Research & Development Orgn. (DRDO)\n\n\nFACTS<\/pre>\n
      Col. R.S. Tiwary of NOIDA moved two applications dated 9-11-06 before
\nthe PIO, DRDO seeking following information in each:\n<\/p>\n
Application No.1
\n      “1.   In case of pensioners the competent authority has to
\n            ensure appropriate action to restore pension suo motto.
\n            Kindly inform the action taken by DRDO in this regard.\n<\/p>\n
      2      Kindly inform the action taken on my letter dated 31.06.06.\n<\/p>\n
             If casualty\/ part-II Order for restoration has been
\n             published, kindly forward a copy of the same to me.”\n<\/p>\n
Application No. 2<\/span><\/p>\n
      “1.   Please provide a certified copy of the Selection Board
\n            proceedings of 1989 as applicable in my case with copies
\n            of the note sheet. The Hon’ble High Court of MP had
\n            also perused these documents. The documents were not
\n            shown to me, as, at that time, the RTI Act was not
\n            prevailing.\n<\/p>\n
      2.     When the above Court’s order was passed, ordering to
\n             take action within a period of 4 months what action was
\n             taken by DRDO to implement the order within the time
\n             limit set by the Court. Please provide copies of the note
\n             sheets.\n<\/p>\n
      3.     I had sent a registered letter dated 28.12.05, forwarding a
\n             copy of the Court’s order with request to kindly implement
\n             it as soon as possible as I retired from DRDO 16 years
\n             ago and all my contemporaries have also retired.
\n             Therefore, its implementation would not lead to any
\n             administrative complications. This letter has not been
\n             responded till date. Kindly provide the minute sheets of
\n             action taken on this letter. This letter along with Court’s
\n             order is enclosed as Annexure-1.\n<\/p>\n
      4.     I sent another registered letter dated 13.4.06, which has
\n             also not been responded till date. Kindly furnish the
\n             copies of minute sheets of action taken on this letter.\n<\/p>\n
                                      1<\/span><\/p>\n
       5.     Another reminder was sent by registered letter dated
\n             22.5.06, enclosed as Annexure-3. No response has been
\n             received till date. Kindly furnish the copies of the note
\n             sheets to know the action taken on this letter.\n<\/p>\n
      6.     Another registered letter dated 23.6.06 was addressed to
\n             Dr. W. Selwamurthy CCR & D, (LS & HR), enclosed as
\n             Annexure-4. This letter was written under the impression
\n             that since I had served DRDO together with Dr.
\n             Selvamurthy while in DIPAS, probably, he would be more
\n             sympathetic towards me and the needful would be done.
\n             There is no response to this letter also.             If Dr.
\n             Selwamurthy has forwarded this letter to the concerned
\n             section of the office, kindly inform the action taken on this
\n             letter along with the copies of the minute sheets.\n<\/p>\n
      7.     The DRDO should not take shelter of the word
\n             “Subjudice” for not furnishing information, as the
\n             subjudiced matter is not exempt from disclosure of
\n             information under section-8 of the Right to Information
\n             Act- 2005.\n<\/p>\n
      8.     It is also submitted that in the defence forces the soldier’s
\n             welfare is one of the top most matter. But I have recently
\n             learnt that DRDO is contemplating to file a revision of the
\n             case or an appeal against the judgement of Jabalpur
\n             Court. Where is the welfare of the solider who has retired
\n             from the forces 16 years ago, when the court has decided
\n             matter after 15 years of litigation, and now, instead of
\n             implementing the court’s verdict, it is being contemplated
\n             to file an appeal, which would take another 15 years?
\n             Probably, much before the decision on appeal, I would be
\n             dead. Is this the welfare? IF DRDO could not do justice
\n             in 17 years, at least the opportunity provided by the court
\n             could have been grabbed to do the justice.”\n<\/p>\n
      These applications were received in DRDO on 13-11-06, upon which
\nappellant Col. Tiwary received the following response dated 8-12-06 from Maj.
\nGen. Umang Kapur:\n<\/p>\n
      “DRDO has been placed in the Second Schedule of the said Act
\n      through a notification by Ministry of Personnel, Grievance and
\n      Pension, Dep’t of Personnel and Training, thereby exempting
\n      DRDO from the application of the general provisions of the said
\n      Act, except for issues of Human Rights violation and\/
\n      corruption.”<\/p><\/blockquote>\n
                                       2<\/span><\/p>\n
        Aggrieved by this, Col. Tiwary moved his first appeal in both cases
\nbefore Shri K. Sheshiah, Director (Estt.) CPIO, MOD upon which he received
\nthe following response, again from CPIO Maj. Gen. Umang Kapur, Director,
\nC-Tec, DRDO on 2-2-07 as follows:\n<\/p>\n
       “No wrong information was made available to you. We have
\n            obtained clarification from AGs Branch (PS-5) on Army’s
\n            instructions on restoration of commuted value of pension.
\n            We quote the following:\n<\/p><\/blockquote>\n
       “Commuted value of pension is restored suo moto by the office
\n       of PCDA (P) after a period of 15 years from the date of grant of
\n       commuted value of pension. However in the event of non-
\n       restoration of commuted value of pension, the veteran officer
\n       may be advised to apply to his PDA (Pension Disbursement
\n       Authority) in the enclosed proforma”.\n<\/p><\/blockquote>\n
       A copy of proforma is enclosed.\n<\/p><\/blockquote>\n
       (b)   Your contention regarding mention of DGAFMS (MPRSO)
\n             as a deliberate act to harass you is not true. In fact office
\n             of DGAFMS was quoted as a facilitator in case you
\n             encountered any difficulties with CDA (P).\n<\/p><\/blockquote>\n
       (c)    As regards implementation of judgement of 28th October
\n              2005, pronounced by Hon’ble High Court Judicature of
\n              Jabalpur, Write Appeal has been filed and the Court has
\n              admitted the WA 17\/2006. Therefore, we have to await
\n              Court’s subsequent order on the WA for taking necessary
\n              action in the matter. Since you have sought redressal on
\n              this issue through the Hon’ble High Court at Jabalpur, it
\n              would not be appropriate to give any reply on this issue at
\n              this stage pending final verdict by the court.”<\/p><\/blockquote>\n
       Appellant has then moved his second appeal before us with the
\nfollowing prayer:\n<\/p>\n
       “DRDO be directed to inform the action taken by it to restore my
\n       commuted value of Pension, on its own as a responsible
\n       employer & in response to my letter dated 31.8.069 AND
\n       18.8.06 along with copies of note sheets.\n<\/p><\/blockquote>\n
       DRDO be directed to inform the action taken by it on the High
\n       Court’s directive and in response to my letters dated 28.12.05,
\n       13.04.06, 22.5.06 & 23.6.06 along with copy of note sheets on
\n       every letter.\n<\/p><\/blockquote>\n
                                         3<\/span><\/p>\n
        DRDO be directed to if form the reasons for not replying all my
\n       letters, whether favourable to me or not, as expected from
\n       responsible officials of a GOI office.\n<\/p><\/blockquote>\n
       DRDO be directed to provide copy of the selection committee
\n       proceeding held in Feb’89 which recommended deferment of my
\n       promotion, as the reasons for deferment have not been
\n       communicated to me which is my fundamental right to know.
\n       Moreover, the Section-8 of RTI Act does not bar provision of
\n       information of the subjudice cases. The judiciary itself is not
\n       exempt from the RTI Act.\n<\/p><\/blockquote>\n
       Appropriate action be taken against the CPIO, DRDO for
\n       violating the RTI Act 2005 and not providing information sought.
\n       I may also be provided all the arrears of my pension with interest
\n       recoveries from the CPIO.”\n<\/p><\/blockquote>\n
In this appeal, however, he has also made the following submission:\n<\/p>\n
        “The information sought in both the above cases fall under the
\n        violation of Human Rights. It is elaborated as under:-\n<\/p><\/blockquote>\n
        (a)     India is a party to the International covenant on civil &
\n                political rights & the International covenant on economic,
\n                social & cultural rights adopted by the General Assembly
\n                of the United Nations on 16th Dec’66. The Human Rights
\n                adopted in the aforesaid covenants stand substantially
\n                protected by the Constitution of India.\n<\/p><\/blockquote>\n
       (b)    The expression “Human Right” has been defined in
\n              section 2 (D) of the Act according to which Human Right
\n              means the right relating to life, liberty, equality & dignity of
\n              the individual guarantied by the constitution or embodied
\n              in the International covenant enforceable by the courts of
\n              India. From the definition itself it is clear that concept is
\n              manifold & involves almost every aspect of life.\n<\/p><\/blockquote>\n
       (c)    The International covenants on economical, social &
\n              cultural rights, 1966, which came into force on 3rd Jan’76
\n              states as under:-\n<\/p><\/blockquote>\n
       ARTICLE 6-1 The states parties to the present covenant
\n       recognize the right to work which includes the right of every one
\n       to the opportunity to gain his living by work which he freely
\n       choose or accepts & will take appropriate steps to safe guard
\n       this right. This covers my right to get my pension in time, which
\n       is consequent to my work for 26 years in Army & DRDO.\n<\/p><\/blockquote>\n
       ARTICLE 7 (B) The states parties to the present covenant
\n       recognize the right to equal opportunities for every one to be
\n       promoted in his employment to an appropriate higher level,<\/p>\n
                                         4<\/span>
\n        subject to no consideration other than those of seniority and
\n       competence.”<\/p><\/blockquote>\n
       In his response to the appeal notice CPIO Maj. Gen. Umang Kapur in
\nhis letter of 11-9-08 has submitted as follows:\n<\/p>\n
       “Col (Retd) Tiwary felt aggrieved by his deferment to the rank of
\n       Brig and therefore, filed a Writ Petition No. 767\/93 in the High
\n       Court of MP at Jabalpur. This WP was partly allowed By
\n       Hon’ble Court vide Order dated 28th October 2005.             He
\n       approached RDO to implement the Judgement. This judgement
\n       was examined in detail and an LPA No. 17\/2006 was filed which
\n       was dismissed vide order dated 05th April 2006 on technical
\n       grounds. Subsequently, a restoration petition MCC 1348\/2006
\n       was filed. The matter was heard on 03rd Jan 2007 and the LPA
\n       No. 17\/2006 was restored and described as writ Appeal is
\n       awaiting hearing.\n<\/p><\/blockquote>\n
       The applicant is fully aware of this development and also filed a
\n       contempt petition No. 2701\/2006 against which the counter
\n       affidavit has been filed in Feb 2007 this matter is also awaiting
\n       hearing.\n<\/p><\/blockquote>\n
       While this issue was under examination, the office completed 15
\n       years period after retirement and was eligible for restoration of
\n       pension. The pension of the officer is restored to the appellant
\n       by PCDA (P).               Allahabad vide their PPO No.
\n       M\/CORR\/3028\/2008 dated 04th Dec 2007 and PPO dispatched
\n       to the officer’s link Bank on 29 April 2008.\n<\/p><\/blockquote>\n
       In view of the above, I pray to CIC not to take this issue into
\n       consideration and dismiss his appeal.”\n<\/p><\/blockquote>\n
The appeal was heard on 17-9-2008. The following are present.\n<\/p>\n
       Appellants
\n       Col. R.S. Tiwary<\/p>\n
       Respondents
\n       Shri S. S. Bundela, PIO.\n<\/p>\n
       Air Commander N. D. Sharma, Addl. Dir.\n<\/p>\n
       Shri J. B. Singh, Jt. Dir.\n<\/p>\n
       Col. Tiwary presented a letter of 4-9-’08 in which he has submitted that
\nthe first case regarding restoration of pension has been solved by CDA
\n(Controller of Defence Account, Allahabad) “and I have started getting
\npension w.e.f. January 2008.     Therefore, though, DRDO, either denied or<\/p>\n
                                       5<\/span>
\n furnished wrong information, I request your Honour to kindly drop the first
\ncase.”\n<\/p>\n
         Shri S.S. Bundela, PIO submitted that the remaining application is of a
\nroutine matter of personnel management i.e. promotion to the rank of
\nBrigadier. This cannot be construed as an allegation of human rights violation.
\nCol. Tiwary on the other hand submitted that this would amount to human
\nrights violation as per Article 7 (b) of the International Human Rights
\ncovenants as quoted by him in his appeal before us.\n<\/p>\n
                               DECISION NOTICE<\/p>\n
         It is undisputed that the DRDO is listed in the Second Schedule as
\namended vide GSR No. 347 dated 8-10-05 at serial No. 20 and is therefore
\nnot covered by the RTI Act 2005. Appellant has indeed taken recourse in his
\nappeal before us, to the proviso to Section 24 (1) which reads as follows:\n<\/p>\n
         “Provided that the information pertaining to the allegations of
\n         corruption and human rights violations shall not be excluded
\n         under this sub-section:\n<\/p><\/blockquote>\n
         Provided further that in the case of information sought for is in
\n         respect of allegations of violation of human rights, the
\n         information shall only be provided after the approval of the
\n         Central Information Commission, and notwithstanding anything
\n         contained in section 7, such information shall be provided within
\n         forty-five days from the date of the receipt of request.”<\/p><\/blockquote>\n
         However, on examination of the record we find that there is, in fact, no
\nallegation of human rights violation either in the original application of 9-11-06
\nor in the first appeal of 6-1-07. This issue has only been raised in support of
\nappellant’s plea for promotion in his second appeal before us, but not as an
\nallegation of human rights violation. As will be seen from the quotation above,
\nthe prayer before us makes no allegation of human rights violation.\n<\/p>\n
         Under the circumstances we cannot see in what way the proviso to
\nsection 24 (1) can be invoked in a matter of routine human resources
\nmanagement of the DRDO, an institution that is clearly outside our jurisdiction<\/p>\n
                                         6<\/span>
\n as per Section 24 (1).This Appeal being unsustainable under the RTI Act
\n2005 is, therefore, dismissed.\n<\/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
\n17-9-2008<\/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
\n17-9-2008<\/p>\n
                                      7<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Col. R.S. Tiwary vs Defence Research & Development … on 17 September, 2008 CENTRAL INFORMATION COMMISSION Appeal No. CIC\/WB\/A\/2007\/00755 dated 11-5-2007 Right to Information Act 2005 – Section 19 Appellant: Col. R.S. Tiwary, NOIDA Respondent: Defence Research & Development Orgn. (DRDO) FACTS Col. R.S. Tiwary of NOIDA moved two applications dated 9-11-06 […]<\/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-218843","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nCol. R.S. 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