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2018 DIGILAW 1000 (KER)

Shaheer Chingath v. Union of India

2018-12-05

DEVAN RAMACHANDRAN

body2018
JUDGMENT : 1. Many a time now grievances are impelled before this Court by applicants for information, under the Right to Information Act, that the Public Information Officers (PIO for short hereinafter) are declining information sought, merely stating that such information is not available with them and that the Appellate Authorities under the Act are offering imprimatur to such position without first assessing if the concerned Public Authorities are bound in law to maintain such information statutorily. 2. The petitioner in this writ petition has voiced such a specific concern, since he alleges that the Statutory Appellate Authorities, whose orders are impugned herein, have approved the action of the PIO, in having rejected his application for certain information solely stating that such information is not available in the concerned office; and according to him, this stand is flawed and fallacious because the concerned office was statutorily bound to maintain the information sought for on their files; thus axiomatically that the denial of the information is illegal and contrary to the mandate of the Act. 3. The petitioner, who claims to be a public-spirited person interested primarily in the maintenance and enhancement of standards of public education in Kerala, made Exhibit-P2 application for certain information from the Office of the Deputy Director of Pachayaths, Malappuram, which was, however, declined by the Public Information Officer, attached to the said Authority, stating that such information is not available nor required to be maintained in the said office. 4. The petitioner says that, as is especially clear from Ext.P2, the information sought for by him was with respect to the action taken by the various Local Self Government Institutions and Authorities with respect to the several schools in Kerala under the Government and the Aided Sector, and that such information would have provided an insight as to the efficiency of the concerned Authorities in ensuring the safety, sanitation, well-being, nutrition and health of the countless children studying in the various schools. The petitioner says that the reply given to him, namely Ext.P3, which is to the effect that such information is not available and not required to be maintained in the office of the Deputy Director of Panchayath, is per se illegal and wrong because, as per the relevant Government Orders and Circulars, the information sought for by him, through Ext.P2, are mandatorily to be maintained by the office of the Deputy Director, he being the head of the Local Self Government Institutions of the District concerned. 5. The petitioner submits that when Ext.P3 rejected his request for application in such manner, he preferred Ext.P5 appeal before the Statutory Appellate Authority under the Act, which, however, again dismissed it in a mechanical fashion, merely affirming whatever has been stated in Ext.P3 and a copy of the said order has been appended to this writ petition as Ext.P6. The petitioner submits that he was, therefore, constrained to file a further appeal before the State Information Commission, through Ext.P7, which has now culminated in Ext.P11 order. He states that Ext. P11 has, unfortunately, again endorsed the statements in Ext.P3 reply given by the Public Information Officer and therefore, that the said order is also illegal and unlawful. 6. I have heard Sri. Alex M. Scaria, the learned counsel for the petitioner; Sri. M. Ajay, the learned Standing Counsel for the State Information Commission and the learned Government Pleader appearing for respondents 3 and 4. 7. As I have indicated above, the petitioner made Ext.P2 application on the assertion that the information sought for therein are obligated to be maintained by the office of the Deputy Director of Panchayaths, since the requirement of inspection and action to be taken with respect to the various schools are enjoined with the Local Self Government Institutions and their competent Authorities and therefore, that all such reports should, as per law, reach the office of the Deputy Director. However, the stand of the Public Information Officer attached to the Office of the Deputy Director of Panchayaths, as is evident from Ext.P3, is that no such information is liable to be maintained by them. It is on such basis that the order further asks the petitioner to approach the various Local Self Government Institutions in Malappuram for the said information. It is on such basis that the order further asks the petitioner to approach the various Local Self Government Institutions in Malappuram for the said information. This stand of the Public Information Officer attached to the Deputy Director's Office has been upheld by the Appellate Authority, as also by the State Information Commission. 8. Consequently, therefore, the constitutive question that arises is whether the information sought for, through Ext.P2, are ones that are imperatively required to be maintained by the Office of the Deputy Director or otherwise. This is very crucial because, if the information asked for in Ext.P2 are that which ought to be statutorily maintained by the office of the Deputy Director of Panchayaths, then the stand of the PIO in Ext.P3 would become completely untenable. This is more so since, if there is a legal obligation cast upon the office of the Deputy Director, to have this information on their files and if such information is not available, then it would be enjoined upon them to obtain such information from the Authorities under them, collate it and then provide it to the petitioner, as per the specific mandate of the RTI Act. 9. However, I notice that this issue has been completely missed by the Authorities in the hierarchy under the RTI Act, including the State Information Commission; and the impugned orders have been issued on the presumptive notion that there was no obligation on the office of the Deputy Director to maintain such information, thus concluding that the stand in Ext.P3 is legally correct. 10. I am afraid that I cannot countenance the position seen adopted in Ext.P3 or in the Appellate Orders on this issue because, without first adjudicating and verifying as to whether the information sought for in Ext.P2 are ones that ought to be maintained by the office of the Deputy Director, neither the Appellate Authority nor the State Information Commission could have arrived at the conclusions in the manner that they have done in Exts. P-6 and P-11 respectively. P-6 and P-11 respectively. Going by the mandate of the RTI Act, it is not sufficient for a Public Information Officer to merely say that an information is not available; he has also to show that such information was not required to be maintained by the Office to which he is attached; and if it is to the contrary, then he cannot decline the information merely saying that no such information is available, particularly if such an information is to be gathered from other sources mandatorily as per law and retained in their office. 11. Indubitably, the exercise as afore mentioned has never been attempted by the State Information Commission and resultantly, I cannot offer my approbation to Ext.P11 order, which has now been issued by the said Commission. I am certain that it is statutorily incumbent upon the said Commission to re-consider the appeal filed by the petitioner and to decide this issue first and then conclude whether the stand taken by the PIO and the Appellate Authority can be found to obtain forensic favour. In the afore perspective, I order this writ petition and quash Ext.P11 order, thus directing the State Information Commission to reconsider the appeal filed by the petitioner and to thereafter issue a fresh order, following the necessary procedural mandate under the RTI Act and after affording reasonable opportunity to all parties, as expeditiously as possible but not later than three months from the date of receipt of a copy of the judgment.