Tag Archives: RTI

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.”

 

 

 

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.

Is RTI Act being weakened?

Bimal Julka¹

There is a need to distinguish between “populism” and “realism”. Attention of the public is drawn to some of the practical aspects governing the implementation of the Act that are faced by the Commission in its day to day hearings. Instead of resorting to the populist discourse surrounding the issue of likely amendments to the RTI Act, 2005, there is an imminent need to ponder over realistic/ pragmatic issues confronting the implementation of the provisions of the Act…. Increasingly, the applicants are seeking redressal of their personal grievances and adjudication of disputes beyond the jurisdiction of the Commission.

Bimal Julka

Much is being debated in the media and other forums with regard to undermining transparency and accountability as envisaged under the RTI Act. It needs to be clearly understood that transparency and accountability are the two fundamental principles of the democratic
government.

The RTI Act, 2005, was enacted by the Parliament of India on 15 June, 2005 as a Sunshine Act to empower the common man with the right to secure access to information under the control of public authorities at a nominal fee of Rs. 10/- only. The Right to Information owes its genesis to Article 19 (1) (a) of the Constitution of India and the Hon’ble Supreme Court in a catena of judgements over four decades expounded the principle under the aforementioned article.

The Preamble/ Short Title of the RTI Act, 2005, recognizes the presence of harmonization of conflicting interest in the form of creating an informed citizenry and transparency of information which are vital to its functioning vis a vis the other public interest i.e., efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. The Act also serves as an effective tool to serve the purpose of “Good Governance” taking into consideration the interest of each and every individual.

I sincerely respect the views of each and every stakeholder involved in the ecosystem of the RTI mechanism. However, there is a need to distinguish between “populism” and “realism”. Attention of the public is drawn to some of the practical aspects governing the implementation of the Act that are faced by the Commission in its day to day hearings. Instead of resorting to the populist discourse surrounding the issue of likely amendments to the RTI Act, 2005, there is an imminent need to ponder over realistic/ pragmatic issues confronting the implementation of the provisions of the Act. It has been observed that there is a paradigm shift in understanding of the meaning of “information” as contained in Section 2 (f) and (j) of
the RTI Act. Increasingly, the applicants are seeking redressal of their personal grievances and adjudication of disputes beyond the jurisdiction of the Commission.

The Hon’ble Supreme Court in its landmark ruling in CBSE and Anr. vs. Aditya Bandopadhyay and Ors (SC, 2011) decided that the RTI Act could only provide information that was available and existing. In the matter of Union of India v. Namit Sharma (SC, 2013) it was held that “the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority”. Time and again several Courts have defined the jurisdictional powers of the Commission in this respect (for example the Hon’ble High Court of Delhi in Shobha Vijender vs. Chief Information Commissioner (2016) Sher Singh Rawat vs. Chief  Information Commissioner (2017) and Govt. of NCT vs. Rajendra Prasad (2017) and held that the CIC is neither required to nor has the jurisdiction to examine any other controversy or disputes.

Nonetheless, the Commission encounters adjudication of several personal issues related to service disputes, pay and pension fixation, seniority, grant of promotion, etc and issues relating to settlement of matrimonial disputes; requests for time bound completions of Tax Evasion Petitions (TEPs), accident related claims and compensation, etc where the applicants insist upon redressal of their personal grievances. Should the mandate of the Commission include such matters is an issue for public discourse!

Another aspect for consideration revolves around the power and procedure for deciding cases of non-compliance of Commission’s orders and associated penal provisions. There is also an urgent need to re-assess the understanding of the term Public Good/ Public Interest in the broader context of the ever evolving nature of the RTI mechanism.

With regard to the sharing of experiences of the ICs, the Commission has an established institutionalised mechanism for examining and analysing various aspects of the RTI Act, 2005 and its implementation through weekly meetings, conventions, seminars, etc. A point of view or dissent, if any, could be aired by any of the Information Commissioners through the structured mechanism rather than approaching the media directly. Thus, the tenets of judicial conduct and discipline are also equally important for the Commission to enable the public to repose its trust, faith and confidence in its functioning. The proposed amendments never featured in the discussions of the Commission and I am confident that the Commission as and when requested, would take a balanced and considered view in this regard.

At the centre-stage of the discussion, is the need to focus on re-assessing the efficaciousness of the RTI mechanism on the substantive issues of providing information and enforcing the provisions of the Act and awareness of both the applicants and the Respondents at various levels through periodic seminars,  workshops, etc.

Experience indicates that even after more than a decade after the
promulgation of the Act, we find that the stakeholders remain oblivious of their rights and obligations under the RTI Act, 2005. On several occasions it is found that the PIOs pass non-reasoned orders, do not adhere to the timelines prescribed under the Act or provide vague, incomplete and misleading information. The Commission also encounters cases of numerous Applications filed by a single applicant on the same subject matter causing disproportionate diversion of resources of the Public Authorities.

For an informed citizenry, the focus of the debate should engage all stakeholders including public spirited individuals, youth organisations and non-governmental organisations to come forward and create awareness about the provisions of the Act so that the RTI mechanism could be strengthened to usher in a new era of transparency, accountability and good governance in the country. It would not be out of place to state that the RTI Act should also be considered to be introduced as a subject for education at the school level itself to sensitize the younger generation.


¹ The Author is an Information Commissioner in the Central Information Commission. The views expressed herein are personal.

Transparency in Public Purchase

Lalit Shastri

 Mostly the system remains shrouded and the government working remains under wraps as long as there is no disgruntled element, someone who has been rubbed the wrong way by his superiors or co-workers, who ends up spilling the beans. Even when that happens, the entire government machinery becomes a cohesive unit and officers at each level become instrumental in creating a protective shield to protect the guilty, the wayward and the dishonest. Even when complaints are filed, FIRs get lodged, either the relatively junior officers get accused or the complaints get restricted to leveling charges of irregularities or non-compliance of rules leading to financial loss. One rarely sees officers down the line being accused of conspiracy and siphoning money from the exchequer.

As a journalist, first covering the state of Madhya Pradesh for The Hindu for almost 18 years and The Asian Age and Deccan Chronicle for more than 4 years, I have had the advantage of seeing the government working from close quarters. Before the enactment of the Right to Information Act, governments at the Centre and in the states have been accountable to Parliament and the state legislatures. Then we have the Comptroller and Auditor General of India as the apex audit agency and the pointers from the CAG based on random surveys are major eye openers. The media has also been playing its role as a watchdog unearthing and exposing corruption related scams—both big and small.

While the RTI is a monumental step forward towards ensuring accountability and transparency (to some extent) but the law as it stands today when it comes to guaranteeing people’s right to have access to a whole gamut of information including that relating to public procurement or government purchases does not wholly insulate the system from the malaise of corruption. It is another matter that proposals have been mooted to take away much from the present reach of the CIC. It is also debatable whether or not those from the judiciary should have primacy over others when it comes to appointment as Information Commissioners or during the course of hearing appeals under RTI Act.

Babus in Madhya Pradesh

The case of a Rs. 12, 000 crore claim pending before a sole Arbitrator

Case of Dewas Udyog, an industrial unit originally valued at Rs. 58.24 lakh owned by Madhya Pradesh State Industries Corporation Limited (MPSIC), which was handed over to a private Indore based business house on the basis of a 20-year management contract in 1998. State government departments had been issued letters by MPSIC to give Dewas Udyog preferential treatment in purchase matters.

Some bureaucrats in Madhya Pradesh apparently devised methods to abuse the process of the court to bleed the exchequer and extend huge financial benefits to business houses. This got amply reflected by the case of Dewas Udyog, an industrial unit originally valued at Rs. 58.24 lakh owned by Madhya Pradesh State Industries Corporation Limited (MPSIC), which was handed over to a private Indore based business house on the basis of a 20-year management contract in 1998.

In the Dewas Udyog case, which came up before a sole arbitrator appointed by the Supreme Court, Bhagwati enterprises, the proprietary firm managing this unit, filed a claim demanding Rs. 12000 crore. This case become more complicated as the state government passed a “deed of assignment” on April 30, 2011 to acquire all 16 industrial units owned by MPSIC. This despite the fact that Bhagwati Enterprises’ 20-year management agreement was still valid when the deed if assignment was issued.

The state government ordered transfer of Dewas Udyog from MPSIC to Madhya Pradesh Laghu Udyog Nigam (MPLUN) in 2002. Bhagwati Enterprises challenged the state government order in an Indore court, where MPLUN took the stand that the managing director of MPSIC was the arbitrator under an arbitration clause and hence the court had no jurisdiction in this case. Since the Indore court accepted this plea, Bhagwati Enterprises went to High Court, which set aside the Indore court order.

The state Government contested the High Court order in Supreme Court and when the apex court was seized of the matter, state Industries commissioner V.K. Semwal gave consent to a proposal by Bhagwati Enterprises to appoint retired judge P.C. Agrawal as arbitrator on August 5, 2010. Immediately thereafter, On August 31, 2010 Bhagwati Enterprises filed an application in Supreme Court to include “other disputes” in this case. During the course of hearing, the state Government took a u-turn and surrendered its position by giving consent for appointment of an arbitrator and also did not oppose enlargement of scope of this case. In this situation, the Supreme Court passed an order on January 13, 2011 appointing Justice Agrawal as the sole arbitrator in this case. In the meanwhile, Justice Agrawal had awarded a compensation of Rs. 16.50 crore to Bhagwati Enterprises in a case against the state Irrigation department. This was contested by the state government in High Court, which passed an order saying the arbitrator was not “fair and just” to have proceeded in this matter.

Inquiry has revealed how many state government departments had been issued letters by MPSIC to give Dewas Udyog preferential treatment in purchase matters. In a later development it has also come to light that since Bhagwati Enterprises had been using MPSIC letter-heads, a decision has been taken to file an FIR against the business house. The state government  also filed a petition in Supreme Court contesting Justice Agrawal’s appointment as arbitrator in this case since he had been censured by the High Court in another matter.

Government insiders point out that only a thorough inquiry would expose those in the government who delayed the filing of FIR and were instrumental in leaking classified documents and protecting the interests of the business group involved in this case.

In 2010, a retired High Court judge appointed arbitrator by an order of the High Court had ordered the state electricity Board to pay a compensation of Rs. 205 crore to Shubham Agency of Indore. This company and Bhagwati Enterprises have a common director. Fresh probe in this matter at the state government level drew a blank as the case in now shrouded in secrecy.

CAG: ATIR Report (Urban Local Bodies & Panchayati Raj Institutions), Madhya Pradesh For the Year 2009-10. The expenditure of Rs. 51.29 lakh incurred on procurement of office furniture and computers without establishing the sub divisional offices by Zila Panchayat, Khargone, was injudicious.

According to Rule 9 (ii) of Madhya Pradesh Finance code Vol.-I:

Expenditure should not be prima facie more than the occasion’s demands.

Government of Madhya Pradesh Panchayat and Rural Development Department decided (May 2008) to establish an intermediate sub-divisional level office to supervise, monitor and guide 10-12 Gram Panchayats and to maintain better co-ordination between Gram Panchayats and Janpad Panchayats of the area out of funds received for National Rural Employment Guarantee Scheme. These offices would be headed by Janpad Level Extension officers.

The expenditure on establishment of such office could be incurred on building rent, purchase of furniture, stationary, computer, telecommunication devices and drinking water subject to the limit of four percent of scheme fund prescribed for administrative charges.

Scrutiny of the records of Zila Panchayat, Khargone (September 2010) revealed that Zila Panchayat (ZP) decided (May 2008) to establish 43 sub-divisional offices in the district. For operation of proposed sub divisional offices, furniture and computers worth Rs. 51.29 lakh were procured from MPLUN and DG&SD in June 2008 and issued to all nine Janpad Panchayats including Zila Panchayat (July to December 2008) so far (August 2010) as shown in Appendix -XVI. During test check of records of Janpad Panchayats of Bhikangaon, Kesrawad, Maheswar (September 2010) of Khargone district it was observed that neither any sub divisional office was established nor

progress was made in this regard. Thus, the expenditure of Rs.51.29 lakh incurred on procurement of office furniture and computers was without establishment of sub divisional office in the district which was contrary to the Rule-9 (ii) of M.P.F.C Vol. -I.

On being pointed out in audit (September 2010) the Chief Executive Officer (CEO) Zila Panchayat Khargone stated that an office order to open the sub-divisional offices had been issued to all Janpads and the progress would be reported to audit later on. It was however stated in March 2011 that

Government of Madhya Pradesh had not sanctioned the posts of Janpad level extension officers and after obtaining sanction of the posts, the sub-divisional offices would be established. Thus the expenditure of Rs. 51.29 lakh incurred on procurement of office furniture and computers without sanction and availability of the staff for formation of sub divisional offices was injudicious and contrary to the Rule-9 (ii) of M.P.F.C. Vol.-I and was against the standards of financial propriety. It has also come to light that Social audit is not being conducted by gram sabhas (village general bodies).