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Madhya Pradesh High Court · body

2010 DIGILAW 133 (MP)

Shrikant Pandya v. State of M. P.

2010-02-01

SANJAY YADAV

body2010
ORDER Sanjay Yadav, J. 1. Shri Vasudeo Bhatt, learned Counsel for the Petitioner. 2. Petitioner by way of present petition calls in question the legality of order dated 14-9-2009 passed by the Appellate Authority under Right to Information Act, 2005; whereby, the appeal preferred by the Petitioner against an order dated 2-6-2008 passed by District Education Officer/District Information Officer, whereby the Information sought by the Petitioner regarding the entire personal/service record of Shri M.S. Parihar, Sankul Pracharya has been turned down. 3. The case of the Petitioner is that he filed an application under Section 6(1) of Right to Information Act, 2005 on 1-5-2008 for supplying him 'certified copy' of complete service book and personal file of Shri M. S. Parihar, Sankul Pracharya, Karri. 4. The said application of the Petitioner was rejected on 2-6-2008 on the ground that the person concerned, i.e. said M.S. Parihar had declined to part with his service record and the personal file. Aggrieved of this order the Petitioner preferred an appeal before the first appellate authority. 5. The said appeal was dismissed on 8-8-2008 whereagainst the Petitioner filed a second appeal before M.P. State Information Commissioner, whereupon after considering the entire facts and while adverting to the provisions contained under Section 11 read with Section 8(1)(i), the appeal of the Petitioner has been dismissed. It is this order which the Petitioner is aggrieved of. 6. The Petitioner questions the legality of said order on the ground that the appellate authority having misconstrued the provisions contained under Section 11 read with Section 8(1)(j) has committed gross illegality in rejecting the appeal preferred by the Petitioner. It is urged that, under the Act of 2005, it is the right of the Petitioner to seek information in respect of third party because the information which was sought in respect of Shri M. S. Parihar was to disclose the fact that he had gained undue advantage by giving wrong declaration regarding his sterlizing and obtaining two advance increments. It is contended that none of the provisions as contained under Sections 11 and 8 could have prevented the competent authority to have disseminated the information which was sought. 7. For a proper appreciation of submission put forth by learned Counsel for the Petitioner, worth it would be to note the relevant provisions of Act of 2005. 8. The expression "information" as defined under Section 2(f) means: 2(f). 7. For a proper appreciation of submission put forth by learned Counsel for the Petitioner, worth it would be to note the relevant provisions of Act of 2005. 8. The expression "information" as defined under Section 2(f) means: 2(f). "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; 9. Section 3 stipulates that, subject to the provisions of the Act of 2005, all citizens shall have the right to information. 10. Section 4, obligates public authorities to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under the Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. 11. Section 6 enables a person, who desires to obtain any information under this Act of 2005, shall make a request in wring or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, specifying the particulars of the information sought by him or her to such authority as are designated under Section 5. 12. Section 8 deals with disposal of such request made by such persons. Sub-section (1), whereof, stipulates that- (1) Subject to the proviso to Sub-section (2) of Section 5 or the proviso to Sub-section (3) of Section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under Section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sections 8 and 9; Sub-section (1) of Section 8 further stipulates: 8. Exemption from disclosure of information:- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any Court of law or tribunal or the disclosure of which may constitute contempt of Court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the documents of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 13. Section 8, thus enumerates the cases as are exempted from disclosure of information. 14. 13. Section 8, thus enumerates the cases as are exempted from disclosure of information. 14. Furthermore, Section 11 stipulates provisions pertaining to third party information that: 11. Third party information.- (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under Sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in Section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, if the third party has been given an opportunity to make representation under Sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under Sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under Section 19 against the decision. 15. Close reading of Section 11 with Section 8 would clearly establish that when an information is sought in respect of third party the exception which are stipulated under Section 8 has a role to play; meaning thereby that, if such information sought for fall within the exception clause, then an applicant is not entitled for such information. 16. In the case at hand the certified copy of personal record as well as service book of third party, which was being sought by the Petitioner would contain annual confidential reports and other information like details of family and nomination thereof. These information are personal in nature and a Government servant has a right to guard the same. These information have no relationship to any public activity and if parted with will certainly lead to the unwarranted invasion of the privacy of a Government servant. 17. Clause (j) of Sub-section (1) of Section 8 stipulates that: 8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen.- (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. 18. In the present case, the certified copy of service book and personal record has been sought on the allegation that, the third party, namely, M. S. Parihar had taken benefit of two advance increments in lieu of sterlization. The Respondents were, therefore, within the right in declining the right of the Petitioner to have access to certified copy of the service record and personal record of third party, namely, M. S. Parihar. 19. In view of above, no relief can be granted to the Petitioner. 20. The petition is, therefore, dismissed in limine.