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2010 DIGILAW 735 (GAU)

District and Sessions Judge v. Shilabhadra Sinha

2010-09-16

BROJENDRA PRASAD KATAKEY

body2010
JUDGMENT B.P. Katakey, J. 1. The Petitioners, who are the learned District and Sessions Judge, West Tripura, Agartala as well as the learned Civil Judge (Senior Division) and Assistant District Judge, West Tripura, Agartala, appellate authority and State Public Information Officer, respectively, under the provisions of the Eight to Information Act 2005 ('the Act'), by the present petition have challenged the order dated 3rd June, 2010 passed by the State Information Commissioner in Appeal No. TIC-02 of 2010-11 directing the Petitioner No. 2, the State Public Information Officer, to furnish the Respondent No. 1 with the copies of Annual Confidential Report (ACR) for the years 2006, 2007 and 2008 and the relevant portion of the minutes of the DPC meeting held on 12th December, 2009 and 13th December, 2009 pertaining to the promoting to the post of Head Clerk/Accountant, within a period of 20 days from the date of issue of order, free of cost, as the State Information Officer could not provide required Informations to the Respondent No. 1 within the statutory period prescribed by the Act. The report of compliance of the said order was also directed to be furnished to the Commission. 2. The Respondent No. 1, who is presently working as UDC in the establishment of District and Sessions Judge, West Tripura, Agartala, filed an application on 30th January, 2010 before the State Public Information Officer (writ Petitioner No. 2) requesting him to furnish informations, i.e., supply of copies of his AC Rs pertaining to the years 2006, 2007 and 2008, apart from the minutes of the DPC meeting held on 12th December, 2009 and 13th December, 2009 relating to the promotion from the post of UDC to the post of Head Clerk-cum-Accountant. 3. The State Public Information Officer ('SPIO') vide order dated 9th February, 2010 partly allowed the prayer by supplying certain informations, without the copies of the AC Rs as asked for and also without the relevant portion of the DPC proceeding, for which a first appeal was preferred by the Respondent No. 1 before the appellate authority, namely, the learned District and Sessions Judge, West Tripura Agartala, seeking a direction to the SPIO to provide him complete information, as sought for. The said appeal was disposed of by the first appellate authority vide order dated 15th March, 2010 intimating the Respondent No. 1 about his grading in AC Rs for the years 2006, 2007 and 2008 and extract of certain comments as recorded in AC Rs, without, however, supplying copies thereof, as sought for. The appellate authority also supplied information to the Respondent No. 1 relating to DPC to the effect that he was not found suitable for promotion. By the said order, the Respondent No. 1 was also allowed to inspect p.3 of the minutes of DPC meeting held on 12th December, 2009 and 13th December, 2009. Being aggrieved, the Respondent No. 1 preferred a second appeal before the State Information Commission, which was allowed by the order dated 3rd June, 2010 with the directions as noticed above. Hence, the present petition. 4. I have heard Mr. S. Talapatra, learned senior counsel for the Petitioners and Mr. D.K. Biswas, learned Counsel for the Respondent No. 1. None appeared for the Respondent No. 2. 5. It is the contention of learned senior counsel for the Petitioners that the information sought for by the Respondent No. 1 being exempted from disclosure under Section 8(a)(j) of the Act, copies of AC Rs and relevant portion of DPC proceeding held on 12th December, 2009 and 13th December, 2009 in respect of promotion to the post of Head Clerk-cum-Accountant could not be furnished to the Respondent No. 1 According to learned senior counsel, the order passed by the second appellate authority is, therefore, contrary to the provisions of the Act, which requires interference. 6. It is the contention of learned Counsel for the Respondent No. 1 that under Section 8(1)(j), such information which is personal and disclosure of which has no relationship with any public activity or interest, or which would cause unwarranted invasion to 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 by, is satisfied that the larger public interest justifies the disclosure of such information, can only by with-held from disclosure. It is also submitted that the information which cannot be denied to the Parliament or State Legislature cannot also be denied to any person. It is also submitted that the information which cannot be denied to the Parliament or State Legislature cannot also be denied to any person. Referring to the provisions of Section 10 of the Act, it is submitted that it where a request for access to information is rejected on the ground that is in relation to information which is exempted from disclosure, then, notwithstanding anything contained in the Act, access may by provided to that part of the record which does not contain any information which is exempted from disclosure under the Act and which can reasonably be sneered from any part that contains exempted information. It is further submitted that the information sought for by the Respondent No. 1 does not come within any of the exempted information, as stipulated in Section 8(1) of the Act. 7. I have considered the submissions of learned Counsel for the parties and also perused the impugned order, apart from the documents, copies of which were sought by the Respondent No. 1, as produced by learned Counsel for the Petitioners. 8. The right to information although a facet of the fundamental right to speech and expression guaranteed under Article 19(1)(a) of the constitution, such right is subject to reasonable restrictions under Article 19(2) of the constitution. The Act was enacted in order to ensure greater and effective access to public information. All information that come within the definition of 'information' under Section 2(f) has to be disclosed when asked for, provided such disclosure is not exempted by any of the clauses in Section 8(1) of the Act. Thus, the Act though recognizes such right, it imposes certain reasonable restrictions in Section 8. The authority is not obliged to furnish information to any citizen, which comes within the purview of Clauses (a) to (j) of Sub-section (1) of Section 8 of the Act. Sub-Section 8, however, provides that a public authority may allow access to information, if public interest in disclosure over-weights the harm to the protected interests, notwithstanding anything in the Official Secretes Act, 1923, nor any of the exemptions as enumerated in Sub-section (1) of Section 8 of the Act. Sub-Section 8, however, provides that a public authority may allow access to information, if public interest in disclosure over-weights the harm to the protected interests, notwithstanding anything in the Official Secretes Act, 1923, nor any of the exemptions as enumerated in Sub-section (1) of Section 8 of the Act. Sub-section (3) of Section 8 further stipulates that subject to the provisions of Clauses (a), (c) and (i) of Sub-section (1) any information relating to any occurrence, event or matter, which has taken place, occurred or happened 20 years before the date on which any request is made under Section 6 shall be provided to any person making a request under that section. Section 10 of the Act mandates the authority to furnish the information relating to that part of the record, which does not contain any information which is exempted from disclosure and which can reasonably be severed from any part that contains exempted information. 9. Having noticed the broad features of the Act, I shall now proceed to deal with the core issue involved in the present writ petition. The information, i.e., the copies of the AC Rs of Respondent No. 1 and the relevant portions of the DPC proceeding, according to the Petitioners, are 'personal informations' within the meaning of Section 8(1)(j) of the Act, and, thus, exempted from disclosure. For better appreciation, Section 8(1)(j) of the Act is reproduced below: 8(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 not 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.... 10. The term 'personal information' occurring in Section 8(1)(j) of the Act, disclosure of which is exempted, naturally, denotes personal information of person other than the person who seeks information, and as maintained by the authority, which if disclosed, would cause unwarranted invasion of the privacy of the individual. 10. The term 'personal information' occurring in Section 8(1)(j) of the Act, disclosure of which is exempted, naturally, denotes personal information of person other than the person who seeks information, and as maintained by the authority, which if disclosed, would cause unwarranted invasion of the privacy of the individual. It does not include the personal information of the person seeking such informations that are maintained by the authority. 11. As noticed above, the Respondent No. 1 sought informations, i.e., copies of his own AC Rs pertaining to years 2006, 2007 and 2008. The Respondent No. 1 also sought information, i.e., a copy of the DPC proceeding held on 12th December, 2009 and 13th December, 2009 relating to promotion from the post of UDC to the post of Head Clerk-cum-Accountant, in which proceeding the Respondent No. 1's case for promotion was considered but not found suitable for promotion. The documents sought for come within the definition of "information" under Section 2(f) of the Act. 12. The AC Rs of the Respondent No. 1, apart from containing his personal information required for maintaining his service record, also contains comments/observations of reporting, reviewing and accepting authorities, including the grading awarded by them. In any case, under the law, an employee is entitled to know the comments of such authorities, including the grading awarded by them. The informations in the AC Rs being not the 'personal information' within the meaning of Section 8(1)(j), the same cannot be with-held from the Respondent No. 1. 13. Similarly, the DPC proceeding held on 12th and 13th December, 2009 cannot, by any stretch of imagination, be termed as 'personal information' within the meaning of Section 8(1)(j) of the Act. On perusal of the records produce before this Court it reveals that pp. 2, 3 and 4(part) of the DPC proceeding pertain to the decision of the DPC relating to promotion to the post of Head Clerk-cum-Accountant. The Petitioner No. 1, by his order dated 15th March, 2009, allowed the Respondent. No. 1 to inspect p. 3 of the proceeding. Page 2 of the said proceeding contains the numbers of existing and likely vacancies that may occur as on 31st May, 2009, the eligibility criteria fixed for promotion and the names of 5 officers who were considered for promotion. No. 1 to inspect p. 3 of the proceeding. Page 2 of the said proceeding contains the numbers of existing and likely vacancies that may occur as on 31st May, 2009, the eligibility criteria fixed for promotion and the names of 5 officers who were considered for promotion. Page 3 contains the names of the officers who were considered for promotion as well as the name of the officers of SC/ST/OBC categories. Relevant portion of p. 3 contains the names of other officers who were found suitable for promotion under SC/ST/UR category. When inspection of a major part of the said proceeding, that is, p. 3 of the proceeding, is allowed, there cannot by any reason as to why the p. 2 and part of p. 4 of the relevant proceeding should not be made available to the Respondent No. 1, who has a right to obtain such informations under the provisions of the Act. The Petitioner No. 1 having agreed to allow the Respondent No. 1 to inspect p. 3 of the proceeding, has conceded that such information is not exempted from disclosure under any of the clauses of Section 8 of the Act. 14. In view of the above, present petition has no merit and hence dismissed. The Petitioners shall, within 7 days from today, furnish copies of AC Rs pertaining to the years 2006, 2007 and 2008, and also the relevant portion of DPC proceeding held on 12th December, 2009 and 13th December, 2009 relating to promotion to the post of Head Clerk-cum-Accountant to the Respondent No. 1, free of cost. 15. The writ petition is accordingly dismissed. No costs. 16. Copies of this order be furnished to learned Counsel for the parties. Petition dismissed