CENTRAL INFORMATION COMMISSION

Appeal Nos. CIC/WB/A/2009/000692 & 693 dated 15-7-2009

Right to Information Act 2005 – Section 19

Appellant: Ms. Suchitra Goswami

Respondent: Dep’t of Personnel & Training (DOPT)
Decision announced: 27.4.2010

FACTS
These are two appeals received from Ms. Suchitra Goswami of West
Kidwai Nagar, New Delhi.

File No. CIC/WB/A/2009/000692

In this case Smt. Suchitra Goswami made an application to CPIO,
DOPT, CS Division dated 10-10-08 seeking the following information:
“(a) Gradings of all CRs from the year ending 31.3.1976 to
31.3.1994 along with date of completion of CR by
Reviewing Officer.
(b) Complete proceedings including notings etc of DPC held
on 21.9.98 by Central Estt. Board for considering the applicants name
for inclusion in suitability List and Directors for the year 1994.
(c) Date of review of one of the CRs for the year 1987 by
Shri Gokak.
(d) Date of setting aside or pasting over of CR for the year
1987 written by Shri Mansingh & reviewed by Shri Ganeshan who was
not the reviewing officer.”

To this she received a response from CPIO Shri Deepak Israni, US,
DOPT dated 18-8-08 as follows:
“4. (b) The matters relating to promotion etc of CSS officers to
the level of DS/ Director were the concern of
Establishment Officer’s Division of this Department till
restricting of the CSS took place in October 2003.
Thereafter, the same was transferred to CS Division
along with various files relating to the subject. On
scrutiny of transferred files of EO’s Division, the proposal
for inclusion of the applicants name in the suitability list of
Directors for the year 1994 was dealt in file No. 29/6/98-
EO (MM-1). Since this file has not yet been transferred to
CS Division, a copy of the application is hereby forwarded
to the CPIO, EO (MM) Division for further necessary
action.”

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 Not satisfied, therefore, Ms. Suchitra Goswami then made an appeal
before the Appellate Authority, Dy. Secretary, CS-I DOPT dated 26-11-08
pleading as follows:
“Applicant feels that all records relating to CSS officers should
be available with CS Division & if a particular file has not been
transferred (even though the restructuring of CSS took place
over five years ago), it is for the PIO to obtain the same instead
of forwarding the application to EO’s Division which has led to a
delay of 18 days as on date in providing to information.’

Upon this she received the following order from Shri M.C. Luther,
Appellate Authority, Dy. Secretary, CS-I DOPT, dated 29-12-08:
“The file No. 29/6/98-EO (MM-1) relating to inclusion of the
applicant’s name in the suitability list of Directors for the year
1994 could not be found. Accordingly, the applicant was
transferred to EO (MM) Division as per procedure. You would,
therefore, appreciate this Division’s inability in providing you with
the required information in the absence of information in any
material form.

In case you need further clarification/ scrutiny of documents/

files transferred from EO Division to CS Division, you are free to
visit this office on any mutually convenient date and time. You
may like to also contact Ms. Trihaljit Sethi, Director and
Appellate Authority, EO (MM) Division, DOP&T, North Block
(Ph. 23092842) for any further information on this subject.”

This was followed up by a reminder from Ms. Goswami dated 12-3-09

addressed to Dy. Secretary, CS-I DOPT seeking to know whether the file
earlier reported to be untraceable has now been traced. On not getting a
further response Ms. Goswami moved an appeal before us with the following
prayer:
“(a) Direct respondents to provide information as
requested vide para 4 (b) of the RTI application dated
10.10.2008 concerned details of DPC proceedings for
inclusion of applicant’s name the scale list of
directions for the year 1994.
(b) Impose exemplary cost/ penalties on officials
denying such vital information for such a long time case.
(c) Pass any other orders as deemed fit and proper in
view of the facts and circumstances of this case.”

File No. CIC/WB/A/2009/000693

In this case Smt. Suchitra Goswami made an application to CPIO,
DOPT, CS Division dated 10-10-08 seeking the following information:

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 “You are requested to provide the information as per format
enclosed concerning her CRs from 1975-76 to 2006-07.”

With this a chart with the following form was enclosed seeking
information for the years 1975-76 to 2006-07:
Year Grading by Grading by Counselling or adverse
Reporting officer Reviewing remarks as on date
officer

On not receiving a reply even after the passage of 51 days Ms.

Goswami moved an appeal before appellate authority, Dy. Secretary, CS-I
DOPT dated 1-12-08, upon which she received an order of 17-12-08 as
follows:
“The details of your ACR had been denied in the light of O. M.
No. 10/20/2006-IR dated 21st September, 2007 (copy enclosed).
Neither RTI section nor Estt. (A) Section of DOP&T (who are
concerned with general orders/ instructions on ACR) have
issued any revised guidelines/ general instructions with regard
to disclosure of ACR grading so far. Secondly, it may also be
noted that under RTI only information as is available in any
material form can be given. The information in the manner and
format as sought by you is neither available nor can the same
be sought under RTI.”

Subsequently, appellant had in a letter of 12-3-09 addressed to Shri

M.C. Luther, Dy. Secretary protested that in spite of citing decision of CIC in
the matter HC Goswami vs. UOI (CIC/WB/A/2007/ 100368 dated 31.7.2008),
wherein the Supreme Court judgment (Devdutt vs. UOI) has been
extensively quoted by the Hon’ble Commission, the requisite information has
not been provided to the applicant, which amounts to contempt of both CIC &
Supreme Court, but to no avail.

Ms. Goswami’s prayer before us in her second appeal is as below:

“(a) Direct respondents to provide information as requested

vide her RTI application dated 10.10.2008 as per the
format enclosed with application.
(b) Impose exemplary cost/ penalties on officials denying
such vital information for such a long time and also
initiate legal proceedings against the respondents for not
following/ obeying the judgment of the Hon’ble Supreme
Court and the decision of this Hon’ble Commission in a
similar case.”

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 The appeals were heard together on 27-4-2010. The following are
present.
Appellant
Lt. Col. Prakash Goswami.
Respondents
Shri M. C. Luther, Dy. Secretary, DOPT
Shri Ravinder Kumar, Under Secretary
Ms. Reena Seth, DO

Lt. Col. Prakash Goswami presented a letter from appellant Ms.

Suchitra Goswami where under she has appointed her husband Lt. Col.
Prakash Goswami as her authorised agent/representative/attorney to present
her case. This has been placed on record.

File No. CIC/WB/A/2009/000692

Respondent Shri M.C. Luther, DS, DOPT submitted that pursuant to a
determined effort to trace the record between E.O. and C.S. Divisions the
concerned file has been traced in July 2009 and is in his possession, which
he is willing to disclose.

File No. CIC/WB/A/2009/000693

In this case Shri M.C. Luther submitted that initially subsequent to the
decision of the Supreme Court in Dev Dutt Vs. UOI, DOPT have issued an
OM of 21-9-2007 which reads as follows:
“An ACR contains information about the character, capability
and other attributes of the official reported upon, disclosure of
which to any other person amounts to cause unwarranted
invasion of the privacy of the individual. Besides, an ACR, as its
name suggests, is a confidential document. The Official Secrets
Act, 1923 is not completely superseded by the Right to
Information Act. Sub –section (2) of section 8 of the 2005 Act
gives a discretion to the public authority to disclose or not to
disclose the ACRs of an officer to himself or to any other
applicant.

It is clear from the above discussion that the public authority is

not under obligation to disclose ACRs of any employee to the
employee himself or to any other person inasmuch as disclosure
of ACRs is protected by clause (j) of sub-section (1) of section 8
of the RTI Act and an ACR is a confidential document,
disclosure of which is protected by the Official Secrets Act,
1923. However, the public authority has a discretion to disclose

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 the Annual Confidential Reports of an employee to the
employee himself or to any other person, if the public authority is
satisfied that the public interest in disclosure outweighs the harm
to the protect interest.”

However, on further review of the matter the information sought by

appellant Shri Luther submitted that Ms. Goswami has been supplied to her in
full attached with a letter of 29th March, 2010 enclosing copies of the original
record in each case. A representation has been received from appellant Ms.
Suchitra Goswami that some photocopies are illegible. This request is now in
process.

Lt. Col. Prakash Goswami on the other hand submitted that the
disposal of his wife’s representations since 1994, the year in which she was
passed over for the post of Director, has shown high degree of insensitivity.
The ACRs now received show that she has been mostly ranked as
`outstanding’. Nevertheless she has remained Dy. Secretary. Besides, in his
opinion untraceability of the DPC file arose not so much from its inaccessibility
but from the failure of DopT to make an effort. He suggested action under
Section 166 of the IPC against defaulting officers who he claimed have ruined
the career of Ms. Suchitra Goswami.

DECISION NOTICE

This Commission is not a court of law authorised to go into the matters

beyond the scope of RTI Act 2005. We must, therefore, restrict ourselves to
ensuring that such information as is sought by a citizen of India is provided to
him/her. Where, of course, there is loss or detriment suffered or as in one of
the present cases, failure to supply information, compensation is payable or
penalty imposed.

File No. CIC/WB/A/2009/000692

In this case the file has, admittedly, been traced since July, 2009. The
requested information will, therefore, be supplied to appellant Ms. Goswami
within a week of the receipt of this Decision Notice. In this case we might

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observe that although responses have been made within the prescribed time,
the suspicion of lack of commitment is further borne out by the failure of the
CPIO to provide the information even after the file was traced in July, 2009
despite the persistent efforts of appellant Ms. Goswami to gain access to the
same. A greater degree of sensitivity to the needs of colleagues is, therefore,
enjoined upon CPIO, DOPT.

File No. CIC/WB/A/2009/000693

In this case the information sought has now been supplied. However,
there has been a failure by CPIO, then Shri Deepak Israni, Under Secretary,
to respond to the original RTI application. We have, in the hearing, been
given copies of the responses sent by DOPT to the appellant, which have
been brought on record. These are as follows:-
(i) Response to the RTI application in file no. 693 from US Deepak
Israni dated 31.10.2008 (quoted in the discussion above).
(ii) Letter of 3.11.2008 with reference to the same application of
10.10.2008 answering questions (a), (c ) & (d) from CPIO Ms.
Reena Seth, Under Secretary, CS-1 (CR). This information has
not been the subject of any appeal.
(iii) Order in appeal by Shri M. C .Luther dated 7.12.2008, to which
reference has been made above.
(iv) Letter to Ms. Suchitra Goswami of 29.3.2010 from CPIO Ms.
Reena Seth, Under Secretary, CS-1 (CR), attaching a copy of
the ACRs requested.
(v) Letter of 26.4.2010 from CPIO Ms. Reena Seth, Under
Secretary, CS-1 (CR) inviting appellant Ms. Suchitra Goswami
to inspect the record in case she finds copies illegible because
of their age and fragile nature.

There is, in fact, no response to the second request of 10-10-08 except

the order in first appeal of 17-12-08 followed by the letters of dated 29-3-10
and 26-4-10 cited above. Shri Deepak Israni the then CPIO, CS-1 (D) who
continues to serve as Under Secretary in the DOPT although in a different
Division, will show cause as to why he should not be held liable for penalty

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from the date the information sought became due on 10-11-08 to the date
when Appellate Authority responded to the RTI application i.e. 17-12-08
amounting to Rs. 9,250/- (@ Rs. 250/- per day for 37 days). He will submit
his explanation in writing to Shri Pankaj K.P. Shreyaskar, Jt. Registrar and Dy.
Secretary, CIC by or before 17th May, 2010, failing which this Commission will
take further steps as required u/s 20 of the RTI Act, 2005.

Announced in the hearing. Notice of this decision be given free of cost

to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
27-4-2010

Authenticated true copy. Additional copies of orders shall be supplied against

application and payment of the charges prescribed under the Act to the CPIO
of this Commission.

(Pankaj K.P. Shreyaskar)

Joint Registrar
27-4-2010