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Himachal Pradesh High Court · body

2016 DIGILAW 1618 (HP)

State of Himachal Pradesh v. Archit Sant

2016-08-05

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present Petitioner has filed writ petition under Article 226 of the Constitution of India laying challenge to the impugned order dated 31.08.2010 passed by the State Information Commission, Himachal Pradesh, in Appeal No. 115 of 2010-11, whereby, PIO-cum-Joint Secretary (Health) to the Govt. of Himachal Pradesh has been directed to send a revised reply to the appellant covering all the seven questions of the RTI application within 15 days on receipt of the order under intimation to the State Information Commission. 2. Briefly stated facts as emerged from the record are that respondent No. 1, namely, Archit Sant filed an application before the Public Information Officer (PIO)-cum-Joint Secretary (Health) to the Government of Himachal Pradesh under the Right to Information Act, 2005 and sought following information:- “1. Are these MBBS appointee is a government employee? 2. Is their contract has not been made with the Governor or Secretary (Health) of the State if not why (give reason) and with whom it has been made? 3. Is these appointees has authorised to cut MLC's & to done postmortem? 4. Is these appointees has the attestation power? If yes then there name has been mentioned on the official gazette? 5. Why the government is not appointing MBBS doctors through commission? (give reason). 6. Is the Ayurvedic doctors are also appointing under this society or through commission? If through commission so why this discrimination is in the appointment? 7. What are the grade/class of these appointee doctors?” 3. Pursuant to aforesaid application, present petitioner vide communication dated 18.05.2010 informed respondent that the answers sought for vide application are not covered by the expression “Right to Information” as defined under Section 2 (f) & (j) of the Right to Information Act, 2005 read with letter No. Per (AR) A (3)-1/2008-I, dated 06.09.2008 circulated by the ARO, Government of H.P., wherein, the PIO is required to supply the material in the form as held by the public authority and is not required to deduce anything from the material and then supply it to him/her. However, Public Information Officer-cum-Joint Secretary (Health) to the Government of H.P. advised applicant/respondent that in case, he has any grievance, he can sent representation to the competent/appropriate authority for the redressal of the same. However, Public Information Officer-cum-Joint Secretary (Health) to the Government of H.P. advised applicant/respondent that in case, he has any grievance, he can sent representation to the competent/appropriate authority for the redressal of the same. Besides above, present petitioner also informed applicant/respondent that appointments of medical officers in the Health Department of Himachal Pradesh are being made through Rogi Kalyan Samities and copy of RKS policy alongwith contract agreement signed between RKS and concerned M.O. alongwith terms and conditions was also made available to him. The information as provided by PIO-cum-Joint Secretary (Health) to the Govt. of H.P. is reproduced here-in-below:- “Please refer to your application dated 30th March, 2010, on the subject cited above. It is informed that the answers sought for d not cover by the expression “right to Information” as defined under Section 2(f) & (j) of the Right to Information Act, 2005 read with letter No. Per (AR) A (3)-1/2008-1, dated 6th September, 2008/circulated by the ARO, government of H.P. According to this letter/instructions the PIO is required to supply the material in the form as held by the public authority and is not required to deduce anything from the material and then supply it to him/her. However, if, you have any grievance you can sent representation to the competent/appropriate authority for the redressal of the same. Moreover, it is worthwhile to mention, here that the appointments of medical officers in the Health Department of Himachal Pradesh are being made through Rogi Kalyan Samities. The copy of RKS policy (five pages) and the copy of contract agreement which is signed between RKS and concerned MO alongwith terms & conditions (3 pages) are enclosed herewith. If you are not satisfied with the above, you have the right to prefer an appeal before the appellate authority i.e. Principal Secretary (Health) to the Government of Himachal Pradesh within a period of 30 days.” 4. Respondent being aggrieved with the aforesaid reply sent by the PIO-cum-Joint Secretary (Health) to the Government of Himachal Pradesh filed First Appeal under Right to Information Act, 2005 before the Principal Secretary (Health) to the Government of Himachal Pradesh (Annexure P-5). Respondent being aggrieved with the aforesaid reply sent by the PIO-cum-Joint Secretary (Health) to the Government of Himachal Pradesh filed First Appeal under Right to Information Act, 2005 before the Principal Secretary (Health) to the Government of Himachal Pradesh (Annexure P-5). However, the First Appellate Authority-cum-Principal Secretary (Health) to the Government of H.P. vide order dated 6th July, 2010, held that under Right to Information Act, it does not require the Department to reply to questions raised by the applicant and accordingly rejected the appeal preferred by the respondent. 5. Being aggrieved and dissatisfied with the order passed by the Appellate Authority-cum-Principal Secretary (Health) to the Government of Himachal Pradesh, respondent approached State Information Commission by way of Appeal No. 115 of 2010-11, laying challenge to the order dated 06.07.2010 as well as letter dated 18.05.2010 passed by First Appellate Authority and PIO-cum-Joint Secretary (Health) to the Government of H.P. State Chief Information Commissioner, Himachal Pradesh on the basis of averments in the appeal directed PIO-cum-Joint Secretary (Health) to send a revised reply to the appellant covering all the seven questions of the RTI application within 15 days of the receipt of order under intimation to the State Information Commission and advised applicant to seek information/documents as per section 2 (f) of the RTI Act, 2005. Chief Information Commissioner also observed that applicant should not pose questions to a PIO as has been the case in his present application. 6. Before adverting to the merits of the order passed by State Information Commissioner, this Court deems it fit to reproduce relevant paras of order passed by the State Information Commission. “6. A perusal of the paras 4 & 5 above shows that the appellant had sought replies to various questions pertaining to appointment of Medical Officers under RKS Policy of the State Govt. The PIO has rightly pointed out in his written reply that he had not sought any information/documents from the PIO who is in no position to interpret or give his views on policy decisions. Hence, the reply sent by the PIO vide letter dated 18.5.2010 cannot be faulted on legal grounds. However, the Appellant Authority ought to have sent a notice of hearing to the appellant to hear his point of view on the reply of the PIO. Hence, the reply sent by the PIO vide letter dated 18.5.2010 cannot be faulted on legal grounds. However, the Appellant Authority ought to have sent a notice of hearing to the appellant to hear his point of view on the reply of the PIO. The principle of natural justice requires that both parties should be given an opportunity by an Appellate Authority before deciding the issues involved in an appeal. These observations may be brought to the notice of the Appellant Authority for guidance in future, by the PIO-cum-Joint Secretary (health). 7. The questions of the Appellant contained in the RTI application were discussed with the PIO at the hearing. Although the stand of the PIO and that of the Appellant Authority is in accordance with the provisions of the RTI Act, 2005 yet plausible replies can be given to these questions. The PIO pointed out that the policy about Ayurvedic Doctors would have to be obtained from that Department. Hence, he may be allowed sufficient time to send replies to various questions of the appellant. Keeping in view these submissions, the PIO-cum-Joint Secretary (Health) is directed to send a revised reply to the appellant covering all the seven questions of the RTI application within 15 days of the receipt of this order under intimation to the State Information Commission. 8. The appeal of Shri Archit Sant is decided accordingly. He is, however, advised to seek information/documents as per section 2(f) of the RTI Act, 2005 and should not pose questions to a PIO as has been the case in his present application. He may also indicate in his appeal/complaint whether he would like to attend the hearing. In case, he is not in position to attend hearings at Shimla, his appeals/complaints can be decided after obtaining comments of the PIO concerned without holding a formal hearing.” 7. Bare perusal of aforesaid order passed by the State Information Commissioner suggests that while accepting the appeal preferred on behalf of respondent, State Information Commissioner has fallen in grave error in directing the PIO-cum-Joint Secretary (Health) to reply all the 7 questions of the applicant/respondent because it clearly emerges from the order that Commissioner was satisfied with the explanation rendered by the PIO, wherein he stated that respondent had not sought any information/documents from PIO and as such he was not in a position to give views on the policy decision. Accordingly, State Commission came to the conclusion that reply sent by PIO vide letter dated 18.5.2010 cannot be faulted on legal grounds. However, learned State Information Commissioner intervened only on the ground that Appellate Authority at the time of deciding the appeal preferred by applicant/respondent failed to sent notice to him and no opportunity of being heard was ever afforded to him, as such, principle of natural justice was not complied with. 8. Learned State Information Commissioner directed that the aforesaid observations made by it to be brought to the notice of Appellate Authority before deciding the issues involved for guidance in future, by the PIO-cum-Joint Secretary (Health). At this stage, it is noticed that State Information Commission while directing the PIO-cum-Joint Secretary (Health) to send revised reply, agreed with the stand taken by the PIO that no answer, if any, could be sent to the respondent in terms of his application dated 30.3.2010 because the same are not covered under Section 2 (f) & (j) of RTI Act, 2005 read with letter No. Per.(AR)A(3)-1/2008-I, dated 06.09.2008 circulated by ARO, Govt. of H.P. The PIO could only supply the material in any form as held by public authority in terms of section 2(f). The Act does not require the Public Information Officer to deduce some conclusion from the material and supply the conclusion so deduced to the applicant. 9. After thoughtful consideration, this Court is of the view that once State Information Commission had came to the conclusion that stand taken by the PIO and Appellant Authority is in conformity with the provisions of Right to Information Act, there was no occasion for it to observe that yet plausible reply could be given to the questions posed by the applicant in his application dated 30.03.2010. At this stage, it would be relevant to refer to Section 2(f) & (j) of Right to Information Act, 2005, as well as clarification given by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Govt. At this stage, it would be relevant to refer to Section 2(f) & (j) of Right to Information Act, 2005, as well as clarification given by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Govt. of India vide Office Memorandum dated 10th July, 2008, wherein, it has been specifically held that as per Section 2 (f) 'information' means 'any material in any form' and under the Act citizen has a right to get material from a public authority, which is held by or under the control of that public authority, which includes inspection of work, documents, records, taking notes, extracts or certified copies of documents or records, taking certified samples of material, taking information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device. Sections 2(f) & (j) are reproduced here-in-below:- “Section 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; (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 the right to – (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; 10. Careful reading of these provisions of law as well as Office Memorandum reproduced here-in-above nowhere suggests that PIO is required to supply such material and it does not require the Public Information Officer to deduce some conclusion from the material and supply the conclusion so deduced to the applicant. 11. Careful reading of these provisions of law as well as Office Memorandum reproduced here-in-above nowhere suggests that PIO is required to supply such material and it does not require the Public Information Officer to deduce some conclusion from the material and supply the conclusion so deduced to the applicant. 11. Consequently, in view of the aforesaid discussion as well as provisions of law and Office Memorandum reproduced here-in-above, this Court is of the view that impugned order dated 31.08.2010 passed by State Chief Information Commissioner is not sustainable and same needs to be quashed and set aside. However, it is expected that relevant information/documents would be supplied to the respondent, namely, Archit Sant in terms of Section 2(f) and (j) of the Right to Information Act, 2005, on his application, if not already supplied. 12. Accordingly, in view of the aforesaid discussions, the present petition is allowed and order dated 31.08.2010 is quashed and set aside.