Tag Archives: Information Commissioner Bimal Julka

India, Right to Informartion

CIC orders Central authorities to put in public domain all details of allotment of property in Delhi’s Geeta Colony to displaced individuals from Pakistan

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New Delhi: The Central Information Commission has passed a landmark order instructing Union Urban Development Ministry’s Land and Development Officer to co-ordinate with the Ministry of Home Affairs and provide to the appellant within 30 days all the details of persons to whom allotment was made, details of properties that were allotted on lease basis, along with the terms and conditions of allotment in Jheel Khurenja Delhi, presently known as Geeta Colony (a Government built property), under the policy for displaced individuals from Pakistan.

The Commission has also ordered that the list of allottees and the criteria adopted for such allotment also should be placed on the official website for perusal by all concerned.

The order passed today by Central Information Commissioner Bimal Julka comes in response to an appeal by the Appellant, Sushil Kumar Malik, who had sought information regarding Geeta Colony under the RTI Act.

The Central Public Information Officer (CPIO), through a letter dated 16 December 2016 responded to the RTI application by stating that the information sought by the applicant was not available with them. The applicant was also informed that information regarding the third person could not be provided. Dissatisfied by the response of CPIO, the Appellant approached the First Appellate Authority (FAA). The FAA, through its order of 14 February 2017 responded that information sought by the Applicant has already been answered on 16 December 2016.

The Commission has taken serious note of the summary rejection of the application for information sought by the appellant and underscored that as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.

The Commission’s order puts on record that the Appellant, Sushil Kumar Malik along with another person, Ved Prakash Sharma, have reiterated the contents of the RTI application and stated that the information sought in respect of the policy for displaced individuals from Pakistan who finally settled in India and were allotted land for resettlement was not furnished by the Respondent. It was argued that the reply of the CPIO/FAA was vague and ambiguous deflecting the main issue raised in the RTI application. In its reply, the Respondent explained that the original policy may have been evolved by MHA and thereafter the subject matter for allotment of land to the displaced individuals was handed over to MOUD. He feigned ignorance about the policy enunciated by GOI in this regard and submitted that to the best of his knowledge, 3000 individuals approximately) had been allotted land for resettlement. No digitized records of such allottees was available with the Respondent. The Commission was in receipt of a written submission from the Respondent dated 13 January 2019, wherein the reply of the CPIO/FAA was reiterated.

The Commission heard the matter on Wednesday, 13 March. A copy of the order issued today, (14 March) has been marked to the Secretary, Ministry of Home Affairs and the Secretary, Ministry of Urban Development with the advise that they should, keeping in view the spirit of the RTI Act, 2005, depute an officer of an appropriate seniority to extract the information relating to the displaced individuals from Pakistan who had been allotted land in India for their resettlement.

India

CIC tells “Public Authority” to formulate rules for medical reimbursement with due diligence

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New Delhi: The Central Information Commission has passed an order underscoring that it is incumbent upon the “Public Authority” to revisit its guidelines in respect of the medical reimbursement and formulate the rules and regulations with due diligence and in a more precise and cogent manner in the interest of the beneficiaries within a period of 60 days from the date of receipt of the order.

The CIC order is with regard to medical reimbursement rules prevalent for the pensioners for use of various categories of equipment as advised by the Medical Specialists,

The order, passed by Information Commissioner Bimal Julka on 23 October 2018, gives the clear instruction that precise and clear guidelines should be put out in the public domain for its information and necessary action by all concerned. The Commission has also advised the Respondent (central Public Information Officer and Deputy Registrar Jawaharlal Nehru University -Legal) to exercise due care and caution in future to ensure that correct and complete information is furnished timely to the RTI applicant(s) as per provisions of the Act failing which penal proceedings shall be initiated under Section 20 .

This order by the Central Information Commission has come in response to a an RTI application seeking information on several points regarding the procedure and requirement for the grant of permission for purchase of oxygen concentrator, details of the relevant rules, if any, time within which the permission for the purchase of oxygen concentrator could be granted if it’s usage was recommended to a patient and other related issues.

Puneet Kumar Girdhar, the complainant had submitted that satisfactory information had not been provided to him on the generic issues raised by him in his RTI application. Explaining that the issues raised pertained to the larger public interest, the Complainant submitted that penalty should have been
have been imposed on the CPIO for the incorrect and misleading information provided to him. In its reply, the Respondent re-iterated the reply of the CPIO/First Appellate Authority (FAA) and written submissions on 8 October 2018.

The complainant further submitted on 10 October 2018 that the matter involved larger public interest and that there was a violation of Section 7 of the RTI act since the application was not disposed within 02 days. Furthermore, he questioned the conduct of the CPIO and Appellate Authority against which penalty could be imposed as per the provisions of the RTI Act, 2005.

The Commission has referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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.”

It has also made reference to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
“(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 ……..”

While passing this order the Commission has relied on a number of orders of the Supreme Court and the High Court of Delhi.

The Commission has referred to the Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35….. “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) of the Act, only refers to such material available in the records of the Public Authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

The Commission also has cited from the order of the Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010). The order says:

6. “….Under the RTI Act “information” is defined under Section 2(f) which provides:

“information” means any material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, report, 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.”

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “….the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

 

 

 

India

Central Information Commission asks Health Ministry and NPPA to check the menace of overpricing of essential drugs

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New Delhi: The Central Information Commission has recommended to the Union Ministry of Health and Family Welfare, Department of
Pharmaceuticals and National Pharmaceutical Pricing Authority (NPPA) to initiate a coordinated attempt to address the issue of checking the menace of overpricing of essential drugs and excessive trade margins to promote greater transparency for the benefit of the common man within a period of 2 months.

Central Information Commissioner Bimal Julka passed a significant order on 1 October 2018 in response to an appeal under the RTI Act linked with overpricing of essential drugs. The order says the information sought with regard to the subject matter pertained to Union Health Ministry which also had a catalytic role to play in checking the menace of over pricing of essential drugs and excessive trade margins.

The Commission has observed that the larger issue relating to the price structure and extraordinary heavy trade margins on the medicines especially generic medicines had not been addressed by the Respondent. The Respondent (NPPA) present at the hearing expressed inability to intervene.

The Appellant, S. P. Manchanda, through his RTI application had sought information on 5 points regarding whether or not NPPA was aware that some oncology medicines required for treating cancer had MRP printed which was many times more than their ex-factory price or import price with much higher profit margin. If yes, steps taken by the Authority to regulate their prices and action taken against manufacturers, importers, distributors and hospitals and doctors for looting the hapless patients, whether NPPA received complaints from the public or any other government organization or NGO on the aforementioned issue, details of the complainants who filed complaints during the last 5 years and the related issues.

The information sought by the appellant was in the larger public interest pertaining to the price regulation of oncology medicines
required for treating cancer patients. It was submitted before the Commission that a cogent and clear response ought to have been provided by the Respondent instead of skirting around the issues and taking the plea of disproportionate diversion of resources in answering the application. The intervener Subhash Chandra Agrawal raised larger public interest issues regarding availability of essential drugs at inflated MRPs detrimental to the interests of the needy patients who suffer the most. It was argued that the Ministry of Health, Department of Pharmaceuticals and NPPA have not been able to check the perpetual escalation in prices of essential drugs at exaggerated MRPs. While technically, in accordance with the provisions of the RTI Act, 2005, the information may have been provided to the Appellant but the greater issue of the mental agony and harassment caused to the suffering patients for abnormally high prices of drugs remained unchecked.

The Respondent stated during the hearing that the information held and available with the Public Authority had been provided. While referring to the Drugs (Prices Control) Order, 2013 alongwith the National Pharmaceutical Pricing Policy, 2012, the Respondent submitted that the prices were regulated based on 1) Essentiality of drugs; 2) Control of formulations prices only and 3) Market based Pricing and that the “Essentiality” criteria for drugs under the NPPP- 2012 was to be met by considering the list of medicines specified in the National List of Essential Medicines as revised from time to time and most recently declared by the Ministry of Health and Family Welfare, Government of India. The Respondent nonetheless continued to maintain that they were adhering to the Drugs (Prices Control) Order, 2013. It was further informed that the aspect of revision of ceiling price of the individual drugs or retail price of a pack was a decision to be taken in consultation with the Ministry of Health and that the efforts were underway to coordinate the same. It was specifically mentioned that a draft policy paper to determine the prices of a large number of essential drugs was under preparation in consultation with Ministry of Health and that the same would be notified in due course.

The Commission received a written submission from the Respondent on 25 September 2018, giving a point-wise response to the queries raised in the RTI application. For point no. 1, it was stated that pursuant to the announcement of the National Pharmaceutical Pricing Policy, 2012 (NPPP, 2012), the Govt. notified Drugs (Price Control) Order, 2013 on 15 May 2013. The medicines specified in the National List of Essential Medicines 2011 (NLEM) were included in the First Schedule of DPCO, 2013 and brought under price control. Further, the National List of Essential Medicines, 2015 was notified by the Ministry of Health and Family Welfare in December, 2015. It was thereafter notified as the First Schedule of DPCO, 2013 in March, 2016 by the Department of Pharmaceuticals. Accordingly, NPPA had fixed and notified ceiling prices of 851 scheduled formulations including 2 coronary stents and 81 cancer medicines under revised Schedule I (NLEM, 2015). It was further stated that the Government was effectively monitoring the prices of scheduled medicines notified by NLEM and appropriate action was taken against companies overcharging for the drugs. The details of the overcharging cases initiated by the NPPA were also available on its website. With regard to point no. 2, it was stated that compiling the information on the subject for the last 5 years from different sources and obtaining the third party consent would take substantial time and resources of their office which would be against the larger public interest. As regards point no. 3, it was stated that the information was never denied to the Appellant as he was informed about the website link to access NPPA recommendations on the issue. Explaining that being an attached office communication was not made directly with other ministers for policy related issues, it was stated that the physical copy of voluminous document was not provided along with the reply as RTI application was lodged online and applicant had never asked for the physical copy specifically. Regarding point no. 4, the status of Appellant’s online grievance of 18 March 2018 was provided. Considering the difficulties associated with the compilation of information, the information about all other public grievances received through PG portal could not be provided. Regarding point no. 5, it was stated that the inspection was not required since the records relating to pricing of formulations and overcharging cases were available on the website of NPPA. Further the records were not static in nature and being updated from time to time. While explaining that the information asked by the Appellant was provided within the stipulated time period, it was stated that the status of complaint disposal was a  continuous activity in a regulatory mechanism and the status of overcharged cases was disclosed to the public only when the case reached to conclusion such as issue of demand to company or the matter had been referred to the Collector for recovery.

The Commission even received an e-mail from Subhash Chandra Agrawal on 27 September 2018 stating that he was intimated about the matter on the eve of the hearing and submitted that since he was pre-occupied he wished to intervene in the matter of larger public interest through e-mail and if required through audio conference. Explaining that although the Appellant had raised important issue only with reference to cancer medicines but NPPA also ignored price structure and extra ordinary heavy trade margins on medicines especially generic medicines. Even though the matter was repeatedly taken up through various portals, yet NPPA ignored such suggestions. It was further submitted that his intervention application was also not irrelevant since cancer patients also consumed medicines other than the ones exclusively meant for them. Thus, it was submitted that his suggestions could be made part of CIC’s verdict for recommendations, under the provisions of the RTI Act, 2005 including Section 25 (5) with a compliance report from NPPA in a time bound manner on the recommendations.

The Commission also received another written submission from Subhash Chandra Agrawal on 28 September 2018 with a prayer to direct the Respondent to place the matter before the concerned Ministers and Secretaries of the two concerned ministries for their
personal attention apart from seeking the action taken reports and working sheets on the suggestions in a time bound period to achieve a noble public cause.

 

India

CIC orders Allahabad University to furnish marks secured by a student under RTI Act

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New Delhi: The Central Information Commission on Monday (10 September 2018) has passed an order directing the Vice Chancellor of Central University of Allahabad to re-examine the matter and furnish information regarding the marks secured by a student in BA Part 1, Part 2 and Part 3 examination to an Appellant within a period of 15 days under the provisions of the RTI Act, 2005.

Responding to a written submission of the Central Public Information Officer (CPIO), the Commission has instructed the Allahabad University Vice Chancellor to relook at the delivery mechanism in vogue in respect of the implementation of the RTI Act, 2005 and initiate corrective measures without wasting any time.

The Commission, through its order passed by Information Commissioner Bimal Julka, has advised the Allahabad University that a copy of the CIC order be placed before the next meeting of the Executive Council for its perusal by all the Members. Failure on this count would lead to action under Section 20(1) of the RTI Act, 2005.

The Commission also has instructed the University to convene periodic conferences and seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.

The Appellant, Rajan Srivastava, through his RTI application had sought information regarding the marks secured by by a student in BA Part 1, Part 2 and Part 3 examination.

The Appellant told the Commission that he had been wrongly intimated that the information was provided only to the office and institution seeking the information after payment of Rs. 500/- per candidate and that as per the provisions of the RTI Act, 2005 he was entitled to the know the marks secured by a candidate in the examination. In its reply, the University, while elaborating on the Administrative constraints, stated that the RTI application had been filed online and was never received by their office. Furthermore, online applications could only be accessed through the email id and password of the Nodal CPIO i.e. the Registrar and that none of the Registrars appointed during the last 02 years had provided him access to the e-mail id and password resulting in protracted delay in replying to the RTI applications and First Appeal. It was also submitted that after receipt of the notice of
hearing, they had provided a response to the Appellant on 30 August 2018 informing him that as
per the procedure devised by the Executive Council, information was provided only to the office or
institution seeking information on payment of a Bank Draft of Rs. 500/- per candidate in favour
of the Controller of Examination, University of Allahabad, Payable at Allahabad.

The Commission in this context also referred to several decisions regarding disclosure of a candidate’s own answer script. For example, the Commission has referred to the Supreme Court of India in the decision of CBSE v. Aditya Bandopadhyay and others [SLP(C) NO. 7526/2009] where it had observed the following in para 11:

“11. The definition of ‘information’ in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term ‘record’ is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or
record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also an ‘information’ under the RTI Act.”

It was furthermore stated in para 14 of the same judgement “The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are ‘information’ held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub section (1) of section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act.”

The aforesaid decision of the Supreme Court of India CBSE and another V. Aditya Bandopadhyay was further relied in the judgment pronounced on 16 August 2016 by the Supreme Court of India in Kumar Shanu and Anr. V. CBSE in I.A. No. 01/2016 in Contempt Petition No. 9837/2016 Civil Appeal NO.6454/2011.

The Commission felt that issues of Larger Public Interest affecting selection of meritorious candidates through a fair and transparent selection process were raised by the Appellant during the course of hearing, hence disclosure of information was warranted.

The Commission has observed that the Respondent in the present instance was charging a fee of Rs. 500/- for verification of academic credentials whereas the Appellant desired that provisions of RTI Act, 2005 ought to prevail over the rules and regulations framed by the Institute.

The Commission noted that similar issues relating to the matter of charging fees on answer scripts as per rules of university or institute vis a vis’ the rules under the RTI Act, 2005 was pending final adjudication before the Hon’ble Supreme in ICSI v. Paras Jain, SLP (C) No. 12692/2014 wherein the Hon’ble Court vide its order of 19 May 2014 had stayed the judgment of the High Court of Delhi in LPA. 275/2014 on 26 April 2014. In its hearing on 10 May 2018, the Supreme Court directed to list the matter on 16 May 2018. The judgment of the Supreme Court, as and when pronounced, shall be complied with accordingly.

Furthermore, the High Court of Delhi in a similar matter of University of Delhi vs. Abner Ignity W.P. (C) 1873/2016 on 10 August 2017 had set aside the decision of the Commission with the observation:

“the decision of the CIC cannot be sustained. The same is set aside and the matter is remanded to the CIC to consider afresh after the decision is rendered by the Supreme Court in the case of Paras Jain (supra)” in W.P. (C) 1873/2016 & CM Nos. 8014/2016, 25545/2016 & 25546/2016 on 10 August 2017”

During the hearing and in its written submission the Central University of Allahabad, various administrative lacunae and constraints for implementation of the RTI Act, 2005 which require urgent deliberation and rectification. The Commission was appalled to learn about the manner in which the hearings before it were handled by the University. According to the Commission, it indicated that there was complete negligence and laxity in the Public Authority in dealing with the RTI matters.

The Commission has said in its order that it was abundantly clear that such matters were being ignored and set aside without application of mind which reflected disrespect towards the RTI Act, 2005 itself. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.