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2017 DIGILAW 500 (CAL)

Md. Nasiruddin v. Hon’ble High Court at Calcutta

2017-05-19

SAMBUDDHA CHAKRABARTI

body2017
JUDGMENT : Pursuant to an advertisement dated April 16, 2014, inviting applications for Group ‘D’ posts in this High Court as well as in the West Bengal Judicial Academy the petitioner applied for the same. Subsequently, an admit card was issued in his favour by the High Court administration and he appeared in the written test. Since, the petitioner could not know the result for a pretty long time he made an application on February 11, 2015 under the Right to Information Act, 2005 (the Act, for short), seeking certain information about the selection process. 2. The petitioner alleges that the Deputy Registrar (Administration) and the State Public Information Officer (SPIO, for short), High Court, Calcutta i.e., the respondent no. 2 by a communication, dated March 9, 2015, informed him that since the selection process for the examination had not yet been completed due to its postponement no information pertaining to his queries could be supplied. After this reply, he submitted a further application on April 3, 2015 to the appropriate authority with further queries in respect of the matter. By a further communication dated April 16, 2015, the respondent no. 2 gave the same answer as before. 3. These two successive denials of the information sought by him made the unrelenting petitioner make a 3rd application before the Chief Information Commissioner, i.e., the respondent no. 4 herein, complaining of the incomplete information received from the respondent no. 2. The respondent no. 4 also did not take any steps in respect of the 3rd application made by the petitioner. 4. The petitioner alleges that he had come to know from the website of the Hon’ble Court that by a memo dated January 28, 2015, the result of the written test had been declared and the list of the selected candidates had been published for viva voce to be held on February 18, 2015. He has made a grievance that the High Court administration wanted to suppress the material facts and, therefore, they were giving incomplete information about the queries made by him. This has led him to file the present writ petition. 5. The High Court administration has contested the writ petition by filing a report in the form of an affidavit affirmed by the present respondent no. 2. The respondent no. This has led him to file the present writ petition. 5. The High Court administration has contested the writ petition by filing a report in the form of an affidavit affirmed by the present respondent no. 2. The respondent no. 2 says that the examination for recruitment to Group ‘D’ posts could not be completed due to some administrative reasons. For that the information sought could not be disclosed to any candidate appearing in the said selection process. The proposal for completion of the selection procedure was discussed in details amongst the various departments, like the Recruitment Cell, RTI Cell and the Registrar General, High Court, Calcutta. 6. The respondent no. 2 has further mentioned that the letter, dated March 9, 2015, will make it clear that the information which could be provided to a candidate regarding postponement of the recruitment process had been precisely communicated. This procedure is followed for all examinations. He has also craved leave to rely on the routine sheet of the Recruitment Cell and the Registrar General. 7. It has been frankly admitted that the information sought the petitioner in connection with the recruitment procedure was seriously discussed amongst the concerned departments and also the then Registrar General. After a detailed discussion and acquiring knowledge from various departments, it was communicated to the petitioner by the then State Public Information Officer using the expression “I am directed to inform”. No further information could be provided to him as it fell within the purview of Section 8(d) of the Act. 8. In course of hearing of this writ petition, I directed the High Court administration, by my order dated March 16, 2017, to place all the records and decisions relating to the alleged postponement of the selection process before and after the relevant date in the form of a supplementary affidavit. Pursuant to the same, the respondent no. 2 has filed a supplementary affidavit annexing thereto various documents as per the list mentioned in the said affidavit. 9. On consideration of the submissions made by the petitioner and on behalf of the High Court administration and on perusal of the records it appears that the petitioner’s queries related to the recruitment process for the concerned post for which he had applied, for example, the marks obtained by the petitioner, a photocopy of the OMR sheet, the highest score obtained by the candidate etc. If an examining body conducting the examination declines not to share the information relating to an ongoing selection process one may not find fault with the authority as this might lead to divulging certain confidential information relating to the examination before the completion of the recruitment process. For any examination confidentiality is to be maintained as the prime guiding principle. When the respondent no. 2 replied that the selection process had only been postponed, I quite appreciate the reasons behind the decision of not giving the information or a copy of OMR sheet before completion of the whole process. 10. However, I do not appreciate the stapes taken by the respondent no. 2, or for that matter the High Court administration in the process of giving the reply to the petitioner. In some respects, I find that there has been a serious violation of the provisions relating to the Act and the principles and the philosophy behind the enactment of the said legislation. The stand taken by the respondent no. 2 in his affidavit, affirmed on January 31, 2017, that the information sought by the petitioner fell within the scope of Section 8(d) of the Act is clearly based on wrong reading of the provision of the Act. Section 8(1)(d) says that there shall be no obligation to give any citizen 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. The deponent did not try to explain how the case attracts any of the pre-conditions mentioned in Section 8(1)(d) of the Act. A bare perusal of this provision of law can lead to no conclusion other than that this has patently no application to the rejection of the petitioner’s queries. 11. However, even if one argues that quoting a wrong provision of law is inconsequential, the manner in which the then SPIO, and in fact, a significant part of the High Court administration, involved in the process of dealing with information sought by the petitioner, had conducted himself or themselves leaves much to be desired from a public authority within the meaning of Section 2(h) of the Act. 12. It incumbent upon the respondent no. 12. It incumbent upon the respondent no. 2, while rejecting the petitioner’s prayer for information, also to disclose the designation and particulars of the appellate authority and the period within which an appeal against such rejection might be preferred. This is a non-relaxable requirement under Section 7(8) of the Act. I find the respondent no. 2 in either of the replies sent to the petitioner not following the mandatory provision of law, expressed through the use of the word ‘shall’. This must be reckoned to be quite serious lapse on his part. 13. However, far more serious lapse in the conduct of the respondent no. 2 transpires from a perusal of the record. In his affidavit the respondent no. 2 has sought to justify the use of the expression “I am directed to inform you” in the name of ‘serious discussion’ amongst different departments and the Registrar General. After a detailed discussion between them the communication was made to the petitioner. 14. While it is within the competence of a SPIO to collect information from various sources of the public authority, as it is quite likely that an individual public information officer may not be equipped with all the information regarding all the functioning of a public authority, he is not expected to decide anything about the request for information or providing access to an applicant upon discussion with other functionaries. This is a decision which has to be taken by the concerned SPIO strictly in accordance with the provisions of law. It cannot be glossed over that the spirit of the legislation is not to make a communication or to dispose of the request made by an applicant under the Act, on a collective decision taken by various functionaries or authorities of the concerned public authority. A Public Information Officer stands out very distinctly from the public authority’s views and can never act on their advice or instructions. If that be so, the independence of the SPIO is very significantly compromised by that and it would be entirely against what the law stands for or what it proposes to achieve. 15. In the present case it appears that not only the petitioner but several other candidates also made certain queries under the Act in connection with this recruitment process. 15. In the present case it appears that not only the petitioner but several other candidates also made certain queries under the Act in connection with this recruitment process. The Lower Division Assistant as well as the Superintendent of the Recruitment Cell by a routine sheet, dated March 6, 2015, placed all these requests before the Registrar General, High Court. Each such request was marked with letters A, B, C, D and E on the left hand margin of the routine sheet and in respect of each such query the Lower Division Assistant and the Superintendent of the Recruitment Cell had sought the approval of superior authority for giving access to the information to the applicants. It also appears that the Assistant Registrar by a note dated March 6, 2015 placed the office note submitted by the Recruitment Cell before the Registrar General “soliciting necessary orders” in respect of the queries noted as A to E on the left hand margin of the routine sheet. 16. This must make anybody raise his eyebrows about why the Recruitment Cell was dealing with the applications under the concerned Act. Under Section 5(4) of the Act an SPIO may seek the assistance of any other officer for proper discharge of his duties. This “assistance” must be understood and kept restricted to collecting information or other relevant materials for an effective disposal of a request for information. But these other officers cannot either take a decision nor can they seek approval of a superior authority about what the decision should be taken. In fact, not even the SPIO can seek such an approval from any superior authority. 17. The Registrar General had given his opinion on March 7, 2015 that “since the selection process has not been completed for its postponement to the knowledge of the authority answers and questions not to be supplied for the present. Inform” We thereafter find an office note to the Assistant Registrar (Establishment) to comply with the order of the Registrar General. 18. This procedure adopted by the High Court administration or a part of it, is exactly not what is desired while disposing of a request for information under the Act. That is why after perusing the reply given by the respondent no. 2 that I directed him to clarify why he had written “I have been directed” in his letter dated March 9, 2015. That is why after perusing the reply given by the respondent no. 2 that I directed him to clarify why he had written “I have been directed” in his letter dated March 9, 2015. The SPIO has not at all acted as an independent authority in the present case. After getting the first application from the petitioner the Section Officer (RTI Cell) wanted to know from Section Officer/Superintendent of the Recruitment Cell to intimate the RTI Cell whether the information sought by the applicant could be provided to him. This again is something he was never expected to do. Why must the RTI Cell of the High Court seek opinion, advice or guidance of another cell about permissibility or propriety of providing any information to an applicant? And after seeking this information how can the SPIO maintain his independence as an SPIO? 19. It is a part of our experience and is true more often than not that a Public authority or the superior officers in the hierarchy of it may very frequently like various information not to be shared with the applicants. Must their likes and dislikes, or the interest of the administration outweigh the statutory duty of an SPIO? Why must the decision be taken by superior officials on behalf of the Public Information Officer? If so, what for is the Public Information Officer appointed? 20. These are some of the disagreeable issues which the High Court administration never tried to respond. The Act never contemplates and it is against the spirit or the Act and the avowed purpose for which it had been legislated that the Public Information Officers shall act at the dictates of others, when Section 5(3) of the Act requires the State Public Information Officer to deal with the requests from persons seeking information and render reasonable assistance to them. It has already been noted that “assistance” within the meaning of Section 5(4) of the Act must necessarily relate to and in respect of procuring information requested by an applicant. Such ‘assistance’ can never amount to seeking advice and direction from a superior authority about the desirability of providing the information to an applicant. 21. So far as the High Court is concerned, the appellate authority is the Registrar Administration and the Public Information Officer is the Deputy Registrar Administration. As has been mentioned above, the respondent no. Such ‘assistance’ can never amount to seeking advice and direction from a superior authority about the desirability of providing the information to an applicant. 21. So far as the High Court is concerned, the appellate authority is the Registrar Administration and the Public Information Officer is the Deputy Registrar Administration. As has been mentioned above, the respondent no. 2 did not disclose the particulars of the appellate authority to the applicant while communicating the rejection of his request. On the top of it, the permission from the Registrar General was sought for. The Registrar General represents the highest authority in the non-judicial administrative hierarchy of this Court on the Appellate Side. 22. The entire thing has an undesirable impact. If the Registrar General who is the superior in administrative hierarchy to the Registrar (Administration) expresses his opinion, it becomes very difficult, if not impossible, for the Registrar (Administration) to take a view contrary to the one taken by his superior authority. Thus, even if the applicant could collect the details of the appellate authority and file an appeal against the rejection of the request by the SPIO, High Court, the fate of the appeal was practically determined by the steps taken by the administration of the High Court. It is also a matter worth taking note of that the Registrar General also had given his opinion in respect of the request for information by an applicant under the Act. A distinction ought to have been drawn between an ordinary application and an application under this Act whereby a valued right of a citizen of India has been sought to be ensured. In fairness, an authority as high as the Registrar General and versed in law might easily return the prayer for permission as either not falling within the scope of his jurisdiction under the Act or on the grounds of impropriety of seeking such an opinion. 23. This Act has been judicially interpreted as aimed at bringing transparency in the administration and to ensure to a citizen his right to get the correct information from a public authority. That is why a public authority is required to designate a Public Information Officer and fulfill the obligations mentioned in Section 4 of the Act. 23. This Act has been judicially interpreted as aimed at bringing transparency in the administration and to ensure to a citizen his right to get the correct information from a public authority. That is why a public authority is required to designate a Public Information Officer and fulfill the obligations mentioned in Section 4 of the Act. When Section 4(2) mentions it to be a duty of the public authority to take steps to provide as much information suo motu to public at regular intervals through various means of communication, the whole idea behind it is either to minimize or to reduce the number of occasions when the public may have to resort to the use of the Act. In the judgments delivered by this Court the lofty objects of the Act have been upheld and justified. The right to have information on various aspects of the administration of a public authority has been identified as a part of and flowing from the fundamental right of a citizen under Article 19 of the Constitution of India to get correct information about the functioning of a public authority. We have ourselves spoken of the freedom of speech and expression, considered the right to know as a part of the democratic process, how the Act seeks to provide better and effective access to information, the growing openness of the society, why the empowering provisions of the Act do not admit of any restriction of its operation, so on and so forth. And this procedure for providing information or disposal of requests cannot be complete if it is made contingent upon the permission of a superior authority of the administration of a particular public authority. 24. In the present case we have failed to live up to the expectation. While for other public authorities unfamiliarity with the provisions of law, even though that is no defence, cannot be a very uncommon a factor, for us even that illusory defence is not available. 25. Despite all that I have said so far in explaining the scope and spirit of the Right to Information Act and the importance of following the provisions of the Act by all the public authorities including this Court, these observations have nothing to do with the ultimate fate of the writ petition. 26. 25. Despite all that I have said so far in explaining the scope and spirit of the Right to Information Act and the importance of following the provisions of the Act by all the public authorities including this Court, these observations have nothing to do with the ultimate fate of the writ petition. 26. The writ petition cannot be allowed as the petitioner cannot be granted the reliefs as the entire selection process has been cancelled and new advertisement has already been published. The answer given to the petitioner was also correct, as, at that stage the information sought could not be provided to him. The merit of the writ petition admits of no other result. It deserves to be dismissed and is hereby dismissed. But on perusal records it appeared to me to be eminently necessary to lay down not only the principles of law but the do-s and don’ts, the rights and wrongs of the functioning of the SPIO, particularly of a constitutional authority like ours, so that the possible misconceptions may be removed and the Act may be followed in its proper perspective, and not in hollow theorizations. 27. There shall be no order as to costs. 28. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.