Apka Adhikar

1. IN THE HIGH COURT OF DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF: -

Arvind Kejriwal .…Petitioners

Versus

Central Information Commission & Others ….Respondents

I N D E X
Particulars Page Nos.
1. Notice of Motion
2. Urgent Application
3. Synopsis and List of Dates
4. Memo of Parties
5. Writ Petition along with Affidavit
6. Annexure A
Copy of amended OM dated 5.1.96
7. Annexure B
Copy of application under the Right to Information Act, 2005 (RTI) dated 17.11.05
8. Annexure C
Copy of application under the Right to Information Act, 2005 (RTI) dated 28.11.05
9. Annexure D
Copy of application under the Right to Information Act, 2005 (RTI) dated 28.11.05
10. Annexure E
Copy of Part information provided by DOPT vide letter dated 16.12.05
11. Annexure F
Copy of order passed by the First Appellate Authority dated 3.2.06
12. Annexure G
Copy of order passed by the Central Information Commission dated 14.07.06
13. Annexure H
Copy of part information provided by DOPT through letter dated 20.7.06
14. Annexure I
Copy of part information provided by DOPT through letter dated 8.8.06
15. Annexure J
Copy of letter asking for copies of certain documents by letter dated nil but written in September, 2006
16. Annexure K
Copy of letter from DOPT taking refuge under section 7(9) of RTI dated 10.10.06.
17. Annexure L
Copy of order passed by the Central Information Commissioner dated 18.4.07
18. Annexure M
Copy of part information provided by DOPT vide letter dated 28.12.05
19. Annexure N
Copy of order passed by the First Appellate Authority dated 3.2.06
20. Annexure O
Copy of part information provide by DOPT through letters dated 17.7.06 .
21. Annexure P
Copy of part information provide by DOPT through letters dated 3.8.06.
22. Annexure Q
Copy of part information received by the from DOPT on 17.1.06
23. Annexure R
Copy of order passed by the First Appellate Authority dated 30.03.06
24. Annexure S
4.8.06 DOPT addressed a letter to the petitioner refusing to provide information
25. Annexure T
Copy of letter written by the Petitioner to the Cabinet Secretariat asking that the order of the CIC dated 14.7.06 be implemented dated 25.4.07
26. Annexure U
Copy of letter sent by the Commission to the DOPT dated 21.5.07
27. Annexure V
Copy of compliance reports of DOPT dated 26.2.07
28. Annexure W
Copy of compliance reports of DOPT 27.2.07
29. Application for directions along with affidavit
30. Vakalatnama
FILED BY

Advocate for the Petitioners
Place: New Delhi
NOTICE OF MOTION
IN THE HIGH COURT DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF: -
Arvind Kejriwal . …Petitioner

Versus

Central Information Commission & Others. ….Respondents

Sir,
The enclosed Writ Petition in the aforesaid matter as being filed on behalf of the Petitioner and is likely to be listed on .07.2007 or on any other day thereafter.
Please take notice accordingly.

New Delhi,
Dated:

Central Information Commission
Block IV (5th floor),
Old JNU Campus,
New Delhi 110067 … Respondent 1

Department of Personnel & Training,
Through Secretary (Personnel),
Ministry of Personnel Public Grievances & Pensions,
Government of India,
North Block,
New Delhi … Respondent 2

Cabinet Secretariat,
Through Cabinet Secretary,
Rashtrapati Bhavan
New Delhi … Respondent 3

IN THE HIGH COURT OF DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF: -

Arvind Kejriwal .…Petitioners

Versus

Central Information Commission & Others. ….Respondents

URGENT APPLICATION

To

The Registrar
High Court of Delhi,
New Delhi.

Sir,

Kindly treat the matter on the file on urgent basis. The ground of urgency is that Interim directions are being pleaded in this Petition.

Advance copy is already served on the counsel for the Respondents.

Advocate for the Petitioner

SYNOPSIS

1. This petition raises following points of law:

(i) After a two member bench of the CIC consisting of Prof. M.M. Ansari and Dr O. P. Kejariwal made the order dated 14.07.06 directing to provide the information; was it permissible for a member of the said bench to operate singly and dispose of the complaint of the applicant to the effect that the order was not implemented; particularly when the other member Dr O. P. Kejariwal had specifically requested that he continue to be associated with the case? Was his exclusion from the bench by the other member legal and proper?

(ii) Is the order-dated 18.04.07 vitiated due to the fact that no notice was give to the petitioner and no opportunity was given to him?

(iii) Once the order of the CIC dated 14.07.06 was made, after hearing the respondents’ objections with respect to section 7(9) and 11 (1) of RTI, was it open for the respondents to take the same objections while refusing to provide the information?

(iv) Can the officers whose names appeared in the “offer list” be treated as third parties under 11(1) RTI Act, when they are neither been involved in the preparation of the list and not provided the information confidentially?

(v) Can refuse under 7(9) of the RTI act be taken when the number of pages do not exceed 700 and the applicant is in any case required to pay four times the market rate?

2. By way of executive orders made originally sometime in 1950s and amended from time to time, the Central Staffing Scheme was laid down by Government of India, and this scheme governs the procedure for appointment of bureaucrats from Under Secretary level up to the Secretary level in various Ministries of Government of India. The amended copy of the OM dated 5.1.96, which is currently in operation, is at Annexure A. The said executive instructions state that for the post of Additional Secretary and above, the filling up of any specific post would be based not only on merit and competence, but also on the “specific suitability” of the officer for a particular vacancy in the Central Government. The said OM also lays down the procedure for filling vacancies upto the post of Joint Secretary. Vacancies at these levels have to be reported by respective Ministries giving “detailed descriptions” of the qualifications, experience and specific suitability required for each post. Thereafter the Establishment Officer is required to prepare a panel of three names for each vacancy in the manner prescribed keeping in view the educational qualifications, service, experience and special training required for that post.

3. Contrary to the executive instructions, petitioner has conclusively learnt and wishes to establish that in the case of a large number of appointments to posts from the Deputy Secretary to the highest post, the procedure laid down is not at all being followed and appointments are made without properly preparing the “Offer Lists” of officers and final selections are made without properly matching the educational qualifications, experience and specific suitability of officers with the requirements of posts. The irregularities include exclusion of highly meritorious officers of some services, while including not so meritorious officers of other services, even though the executive instructions of GOI specifically state that there will be no discrimination amongst the services. Secondly, as the file moves upwards from the Section Officer level, names of officers are arbitrarily included and deleted from the “Offer List” based on the personal whims of the officers concerned.

4. By way of an example, assuming there is a vacancy for the post of Deputy Secretary, Telecom. According to the Central Staffing Scheme, the Telecom Ministry is required to intimate DOPT the occurrence of the vacancy along with the educational qualifications, professional experience and special training required for this post. The petitioner now understands that in very few cases do the Ministries actually intimate DOPT regarding the qualifications and the experience required for the post. The Ministries merely indicate that a particular post has fallen vacant. As a result, from the Offer List, a completely arbitrary selection is done often without reference to merit, qualifications, experience or specific suitability of an officer for a particular post. The empanelling of three officers as is required to be done for each post falling vacant, is done on a completely arbitrary basis.

5. Petitioner filed an application under the Right to Information Act, 2005 (RTI) on 17.11.05 and two applications on 28.11.05. In these applications, petitioner sought information regarding the preparation of the Offer List, the empanelling of officers and the appointments made at various levels of Government for the financial years 2004-05 and 2005-06. These are at Annexures B, C and D.

Regarding the Deputy Secretary and Director level posts

6. Part information was provided by DOPT vide letter dated 16.12.05. This is at Annexure E. First Appeal was filed before the Establishment Officer on 2.1.06. The First Appellate Authority made an order on 3.2.06 directing DOPT to provide some more information to the petitioner and to reconsider the rest of the issues. This is at Annexure F. This order was never implemented by DOPT. Petitioner filed second Appeal on 12.4.06. The CIC made an order dated 14.07.06 after hearing the parties. This is at Annexure G. The relevant part of the CIC order is as under:

“In the course of hearing, it was agreed that the concerned CPIOs would review and consider the advice given by the appellate authority and accordingly dispose of the cases within one month from the date of issue of this decision.
The Respondents agreed to provide all information as allowed by the first appellate authority in the next one month. On the issues, which the first appellate authority had referred back to the CPIO for reconsideration, the CPIO would find ways & means to provide information to the Appellant in the light of these discussions. There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways & means so that all information were provided to the Appellant in the true spirit of RTI Act.”

7. Pursuant to this order DOPT provided part information by letters dated 20.7.06 and 8.8.06. (Wrongly typed in the letter as 8.7.06) These are at Annexures H and I. Inspection of files was allowed. Inspection was taken. During inspection, the following was noted by the petitioner:

(i) That every year, without making t public, DOPT has been laying down a quota for each service. The quota is the upper limit of the number of officers that DOPT decides to include in offer list from that service in that year. A quota is laid by DOPT for all services other than IAS. For IAS, it is written that all the officers who apply would be included. Such prescription of quota for services and discrimination amongst services is violative of Central Staffing Scheme (hereinafter referred to as “CSS”). Besides, the quota has absolutely no logical basis. The petitioner noted several cases, where officers with outstanding records were rejected from one service whereas those with “Very Good” records from other service were included.

(ii) The petitioner also noted that in the case of same service, if officers more than the prescribed quota applied, the officers were selected for offer list in a completely arbitrary fashion as the file moved upwards from section officer upto the Establishment Officer. Every officer would include some names and remove others completely whimsically.

(iii) Inspections of files also revealed that most of the ministries had not intimated DOPT what educational qualifications, experience or special training should be there in an officer selected for a particular post. In the absence of the same, it was not possible to do a matching of bio datas of officers with the requirements of posts, as envisaged in CSS. This creates scope for doing selections and appointments on extraneous considerations.

8. After inspection was taken, the petitioner asked for copies of certain documents by letter dated nil but written in September 2006 during the course of inspection of documents. This is at Annexure J. This was refused by DOPT taking refuge under section 7(9) of RTI vide letter dated 10.10.06. This is at Annexure K.

9. Petitioner complained to CIC on 11.12.06 regarding the above order of DOPT and the non-compliance of the order of the CIC dated 14.7.06 above quoted.

10. On 18.4.07 CIC made the following order:

“The Commission has duly considered the issue. In the light of your review petition and the compliance report from the DOPT, it is observed that its Order dated 14.07.2006 has been complied with and the relevant information, as permissible under the Act, has already been provided after allowing you inspection of the documents. There is, therefore, no justification for reviewing the case.”

This order is marked and annexed as Annexure L.

Regarding the Joint Secretary Posts

11. Part information was provided by DOPT vide letter dated 28.12.05. This is at Annexure M. First Appeal was filed before the Establishment Officer on 2.1.06. The First Appellate Authority made an order on 3.2.06 directing providing of some more information to the petitioner and directing DOPT to reconsider the rest of the issues. This is at Annexure N. This order was never implemented by DOPT. Petitioner filed second Appeal on 12.4.06. The CIC made an order dated 14.07.06 after hearing the parties abovementioned. This is at Annexure J. The relevant part of the CIC order is as under:

“In the course of hearing, it was agreed that the concerned CPIOs would review and consider the advice given by the appellate authority and accordingly dispose of the cases within one month from the date of issue of this decision.

The Respondents agreed to provide all information as allowed by the first appellate authority in the next one month. On the issues, which the first appellate authority had referred back to the CPIO for reconsideration, the CPIO would find ways & means to provide information to the Appellant in the light of these discussions. There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways & means so that all information were provided to the Appellant in the true spirit of RTI Act.”

12. Pursuant to this order DOPT provided part information by letters dated 17.7.06 and 3.8.06. These are at Annexures O and P. Inspection of files was allowed. Inspection was taken. The petitioner found similar irregularities as noted above.

13. After inspection was taken, petitioner orally asked for copies of certain documents. This was refused by DOPT on the basis that the earlier request abovementioned had been refused.

14. Petitioner complained to CIC on 11.12.06 regarding the above order of DOPT and the non-compliance of the order of the CIC dated 14.7.06 above quoted.

15. On 18.4.07 CIC made an identical order as quoted above.

Regarding posts of Additional Secretary and above

16. Petitioner made an RTI application to DOPT on 28.11.05. Regarding posts of Additional Secretary and above DOPT forwarded the application to Cabinet Secretariat under section 6(3) of RTI on 30.11.05, since the information did not pertain to DOPT but to the Cabinet Secretariat. On 13.12.05 Cabinet Secretariat rejected Petitioner’s application saying it was not in proper form. The petitioner therefore filed a complaint-dated 21.12.05 before the CIC. While the complaint made before the CIC regarding the rejection by the Cabinet Secretariat was pending, petitioner received part information by DOPT on 17.1.06. This is at Annexure Q. Petitioner filed First Appeal on 22.2.06. The First Appellate Order dated 30.03.06 is identical to the First Appellate order abovementioned. This is annexed as Annexure R. This order was not obeyed by DOPT. Second Appeal was therefore filed by the petitioner to the CIC on 22.4.06. CIC made an order on 14.7.06 without making the Cabinet Secretariat a party to the proceedings. The order of the CIC is the same as abovementioned. This order was not obeyed. On 4.8.06, DOPT addressed a letter to the petitioner refusing to provide information. This is at Annexure S. In the said letter apart from the ground relating to Section 7(9) RTI as abovementioned, an additional ground relating to section 11(1) RTI was also taken.

17. Section 11(1) of RTI is as under:

“11 (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fAct that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.”

18. In the submission of the petitioner, section 11(1) of RTI would not apply. The critical part of this clause is “as being treated as confidential by that third party”. In the present instance, the so called third parties have not been involved in any manner in the preparation of the Offer List or the empanelment or final selection. They have not provided any information confidentially. In any case, the section provides for notice to the third parties. A reasoned order is to be made as to whether the information should be disclosed after hearing the parties. In the submission of the petitioner the officers whose names appeared in the Offer List or on panels cannot be treated as third parties. Hence the denial of this information is illegal. Moreover, after the CIC had rejected the submissions of the DOPT in respect of section 7(9) and 11(1) RTI Act, DOPT could not have taken the same grounds while rejecting the demand for information.

19. The petitioner therefore filed a complaint against the DOPT order abovementioned, to the CIC on 11.12.06. On 18.4.07 the CIC made an order, which is reproduced above. Petitioner also wrote to the Cabinet Secretariat on 25.4.07 asking that the order of the CIC dated 14.7.06 be implemented. This is at Annexure T. There was no response.

20. Critical to this case is the order of the CIC dated 14.7.06, the relevant extract being as under:
“There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways and means so that all information was provided to the appellant in the true spirit of RTI Act”.

21. This order was passed after hearing the DOPT in respect of their objections taken under section 7(9) and 11(1) of RTI. If after considering the objections of DOPT the above order was made, the question arises as to whether it was permissible for DOPT to once again take the same objections while refusing information.

22. In this case for the posts of Deputy Secretary and for the posts of Joint Secretary, pursuant to the RTI applications and appeals made by the petitioner, he was granted inspection of relevant records and this inspection confirmed his initial apprehension and understanding that appointments to these posts were done on a completely arbitrary basis. After taking inspection when petitioner asked for Xerox copies, at his expense, of a limited number of documents, these copies were refused. The refusal was done on the following basis:
“As regards your request to provide copies of files for the year 2006 (1st January to 31st March), this cannot be provided to you, as it would attract the provisions of Section 7(9) of RTI Act. (Wrongly typed as 8(9)).”

23. Section 7(9) of RTI is as under:
“An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.”

24. Refuge under 7(9) of RTI could not be taken by the respondents as the number of pages would not exceed 700 pages and the petitioner would be required to pay at the rate of Rs 2 /- which is four times the market price. In any case, under RTI applications, various applicants have been given Xerox copies of 10,000 pages of documents by some other public authorities. There was therefore, no question of diversion of resources nor was there any issue relating to the safety of the records.

25. The order of the CIC dated 18.4.07 has been made without jurisdiction and in a highly improper manner in as much as the RTI appeals of the petitioner were heard by a two judge bench of the CIC consisting of Prof. M.M. Ansari and Dr. O.P. Kejariwal. It is this two member bench which made the order dated 14.7.06 directing the DOPT to provide information on all three applications. When a complaint was made by the petitioner that the order was not obeyed, a single member bench consisting of Prof. M.M. Ansari made the impugned order dated 18.4.07 holding that compliance had been done. Prof. M.M. Ansari sat singly and made the impugned order even though the other member Dr. O.P. Kejariwal had requested that he be associated with the hearing of the complaint. This is recorded in the note put up by the Joint Registrar of the Commission on 28.2.07 wherein he has recorded:
“IC (Information Commissioner) (M.A.) (M. Ansari) may also kindly see…observations thereon by the IC (O.K.) (O. Kejariwal), who has requested that he be associated with the hearing of the case.”

26. The other impropriety and illegality in the present case relates to the intervention of the Chief Information Commissioner relating to this matter, which was heard by the two member bench. Though one of the members, Dr. Kejariwal, was of the opinion that a hearing should be given relating to compliance and that he too should be on the bench, the Chief Information Commissioner intervenes and makes an order dated 9.5.07 remarking that no hearing is necessary.

27. In fact the Chief Information Commissioner in his note dated 9.5.07 has written:

“In this context IC (A) and IC (K) who constituted the Bench which delivered the order of 14.7.06 were consulted. IC (K)’s views are at page 9/N as are those of IC (A). Whereas IC (K) has suggested that a hearing be held, IC (A) is of the view that the decision has been duly complied with, as intimated under his directions to applicant Shri Kejriwal.
Although the application is titled review of decision, the contents of the application do not mention what part of the decision requires a review and in fact also that decision be complied with. I do not see what purpose will be served by further hearing. This is simply a request for compliance with the decision of this Commission. The Registry may take further action to ensure compliance at the level of Establishment Officer in the DOPT, who was earlier Appellate Authority in this matter on whose decision the orders of 14.7.06 were passed. The Department of Personnel & Training may be asked to report compliance in accordance with section 7(9) cited in the order of this Commission.”

28. The Information Commissioner, Dr. O.P. Kejariwal also made a note on the file as under:

“Although the applicant Sri Arvind Kejriwal has filed his application with the caption, ‘Review Petition”, in his application his only prayer to the Commission is to ensure compliance of the Commission’s Order. According to him though he was allowed to inspect certain files, photocopies of the inspected documents were not provided to him. He has also alleged that certain files regarding appointments of officials above the level of Joint Secretary were not even shown to him.
CIC has also agreed that the main contention of the application is non-compliance and has suggested that our Registry may do the needful to secure compliance of the Order. According to me, the role of the Registry is limited to assisting and facilitating the administrative functioning of the Commission. It, therefore, would be advisable to inquire into the matter by calling the parties for a hearing. In this way the Commission can also satisfy itself as to whether there was non-compliance on the part of the public authority and at the same time the request of the applicant (that he may be heard) will also be fulfilled. It may be pointed out that in several cases earlier, the Commission has held hearings in case of non-compliance of its Orders.”

29. After making this remark, the Chief Information Commissioner once again intervenes and makes a noting “I had given my decision earlier, dated 9.5.07.” As a result of this noting no hearing was given to the petitioner and the impugned order came to be passed.

30. The total non application of mind in the making of the impugned order dated 18.4.07 can be seen from the fAct that even after Prof. Ansari concluded in the order that the directions of the Commission had been complied with, a subsequent letter dated 21.5.07 was sent by the Commission to the DOPT stating, inter alia, as under:

“The Commission has received a complaint from the appellant stating, inter alia, that the DOPT has refused to provide the copies of the documents which were shown to him during the course of inspection. The matter was again placed before the Chief Information Commissioner and I am directed to request you to submit a compliance report in respect of the Decision dated 14.7.2006 passed by the Commission in connection with the aforesaid appeals. The Commission has further asked that compliance should be ensured at the level of the Establishment Officer in the DOPT, who was earlier the Appellate Authority in the matter and on whose decision the order of the Commission dated 14.7.2006 was passed.
In view of the above directions of the Commission, I request that the compliance may kindly be ensured at your level and a report submitted at your earliest convenience.”

Copy of this letter is annexed at Annexure U. Thus it can be seen that even before verifying as to whether the directions of the Commission were complied with, Prof. Ansari acted in undue haste and made the impugned order.

31. In fact, petitioner subsequently learned that Prof. Ansari had asked for a compliance report from DOPT and had received two communications dated 26.2.07 and 27.2.07 which were never shown to the petitioner and which the petitioner subsequently obtained through another RTI application through which he received the full set of papers of the Commission. In these replies of DOPT to the CIC, it is categorically stated that the information was not given to the petitioner for certain reason. Thus Prof. Ansari knew that the order was not complied with when he made the impugned order holding that the directions of the Commission had been complied with. The order of Prof. Ansari is therefore malafide. In that he knowingly made a wrong order, he excluded a member of the bench wrongly and he did not give a hearing to the petitioner before making the impugned order. The compliance reports of DOPT dated 26.2.07 and 27.2.07 are annexed at Annexure V and W.

32. Hence this petition challenges the following orders:

S.No. Order dated Passed by RTI ACT Application

1.
10.10.06
DOPT
17.11.05
2. 4.8.06 DOPT 28.11.05
3. 4.8.06 DOPT 28.11.05
4. 18.4.07 CIC Complaint dated 11.12.06
GROUNDS

33. The order of the CIC dated 14.7.06 was passed after hearing the DOPT in respect of their objections taken under section 7(9) and 11(1) of RTI. If after considering the objections of DOPT the above order was made, the question arises as to whether it was permissible for DOPT to once again take the same objections while refusing information. In the submission of the petitioner, it could not be done.

34. In the submission of the petitioner, section 11(1) of RTI Act would not apply. The critical clause is “as being treated as confidential by that third party”. In the present instance the so called third parties have not been involved in any manner in the preparation of the Offer List or the empanelment. They have not provided any information confidentially. In any case, the section provides for notice to the third parties. A reasoned order is to be made as to whether the information should be disclosed after hearing the parties. In the submission of the petitioner the officers whose name appeared in the Offer List cannot be treated as third parties. The authorities cannot refuse to issue notices to them. Hence the denial of this information is illegal. Moreover, after the CIC had rejected the submissions of the DOPT in respect of section 7(9) and 11(1) RTI, DOPT could not have taken the same grounds while rejecting the demand for information.

35. Refuge under 7(9) of RTI could not be taken by the respondents as the number of pages would not exceed 700 pages and the petitioner would be required to pay at the rate of Rs 2 /- which is four times the market price. In any case, under RTI applications, various applicants have been given Xerox copies of 10,000 pages of documents. There was therefore, no question of diversion of resources nor was there any issue relating to the safety of the records.

36. That the order dated 18.4.07 is vitiated by non application of mind and also on account of the fAct that no notice was given to the petitioner and no hearing opportunity was provided. The order of the CIC dated 14.7.06 was not complied with. No inspection of documents were given in respect of RTI application dated 28.11.05 relating to appointments to the posts of Additional Secretary and above. Hence the finding in the order that inspection had been given is incorrect. Secondly if after inspection of documents, the petitioner seeks Xerox copies of a limited number of documents that cannot be denied on the ground that inspection has been given. Inspection is only for the limited purpose of pruning the list of documents in respect of which Xerox copies are sought. It is not an alternative to the providing of Xerox copies. In the RTI application itself, the petitioner has mentioned that he would be seeking Xerox copies after taking inspection.

37. The order of the CIC dated 18.4.07 has been made without jurisdiction and in a highly improper manner inasmuch as the RTI appeals of the petitioner were heard by a two judge bench of the CIC consisting of Prof. M.M. Ansari and Dr. O.P. Kejariwal. It is this two member bench which made the order dated 14.7.06 directing the DOPT to provide information on all three applications. When a complaint was made by the petitioner that the order was not obeyed, a single member bench consisting of Prof. M.M. Ansari made the impugned order dated 18.4.07 holding that compliance had been done. Prof. M.M. Ansari sat singly and made the impugned order even though the other member Dr. O.P. Kejariwal had requested that he be associated with the hearing of the complaint. This is recorded in the note put up by the Joint Registrar of the Commission on 28.2.07 wherein he has recorded “IC (Information Commissioner) (M.A.) (M. Ansari) may also kindly see … observations thereon by the IC(O.K.) (O. Kejariwal), who has requested that he be associated with the hearing of the case.”
Hence this Petition.

LIST OF DATS AND EVENTS

Date Event
First Application for the post of Deputy Secretary:

17.11.05 : RTI application filed for seeking details preparation of the Offer List, the empanelling of officers and the appointments made at various levels of Government for the financial years 2004-05 and 2005-06 for the Dy Secretary level posts.

16.12.05 : Part information was provided by DOPT for the post of Dy Secretary

02.01.06 : First appeal was filed against the order of the PIO.

03.02.06 : First Appellate Authority passed the order for providing more information

12.04.06 : As this order was not implemented, petitioner filed second appeal before CIC

14.07.06 : CIC passed its order allowing accessing information.

20.07.06, 8.08.06 : DoPT provided part information. Inspection of files was also allowed.

Sept. 06 : Petitioner inspected files and sought copies of certain documents.

10.10.06 : Petitioner’s request for copies of files was denied.
11.12.06 : Petitioner again approached CIC for implementation of its order.

18.04.06 : CIC passed its order and observed that the information has been provided.

Second Application for the post of Joint Secretary:

28.11.05 : RTI application filed for seeking details preparation of the Offer List, the empanelling of officers and the appointments made at various levels of Government for the financial years 2004-05 and 2005-06 for Jt. Secretary level posts.

02.01.06 : First appeal was filed against the order of the PIO.

03.02.06 : First Appellate Authority passed the order for providing more information

12.04.06 : As this order was not implemented, petitioner filed second appeal before CIC

14.07.06 : CIC passed its order allowing accessing information.

17.07.06, 3.08.06 : DoPT provided part information. Inspection of files was also allowed.

Sept. 06 : Petitioner inspected files and sought copies of certain documents, which was denied.

11.12.06 : Petitioner again approached CIC for implementation of its order.

18.04.06 : CIC passed its order and observed that the information has been provided.

Third Application for the post of Additional Secretary and above:

28.11.05 : RTI application filed for seeking details preparation of the Offer List, the empanelling of officers and the appointments made at various levels of Government for the financial years 2004-05 and 2005-06 for Addnl. Secretary and above level posts.

30.11.06 : The application was forwarded to Cabinet Secretariat under section 6(3) of RTI Act.

13.12.06 : Cabinet Secretariat rejected the application that it is not in format.

21.12.06 : Petitioner filed a complaint to the CIC against this decision of Cabinet Secretariat.

17.01.06 : Part information was provided by DOPT.

22.02.06 : First appeal was filed against the order of the PIO.

30.03.06 : First Appellate Authority passed the order for providing more information

22.04.06 : As this order was not implemented, petitioner filed second appeal before CIC

14.07.06 : CIC passed its order allowing accessing information. But it did not make Cabinet Secretariat a party to the matter.

04.08.06 : DoPT refused to provide information.

Sept. 06 : Petitioner inspected files and sought copies of certain documents.

11.12.06 : Petitioner again approached CIC for implementation of its order.

18.04.06 : CIC passed its order and observed that the information has been provided.

25.04.07 : Petitioner wrote to Cabinet Secretariat to implement CIC’s order, but no have received no reply till date.

Common proceedings:

21.05.07 : On complaint of petitioner, CIC issued a letter to DOPT seeking compliance report.

26.02.07 : DoPT sent its compliance report to CIC.

: Filing of this Petition

IN THE HIGH COURT OF DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

MEMO OF PARTIES

IN THE MATTER OF: -

Arvind Kejriwal
C/o Parivartan
G3/57, Sundar Nagari
Delhi 110093 … Petitioner

Versus

Central Information Commission
Block IV (5th floor),
Old JNU Campus,
New Delhi 110067 … Respondent 1

Department of Personnel & Training,
Through Secretary (Personnel),
Ministry of Personnel Public Grievances & Pensions,
Government of India,
North Block,
New Delhi … Respondent 2

Cabinet Secretariat,
Through Cabinet Secretary,
Rashtrapati Bhavan
New Delhi … Respondent 3

Divya Jyoti Jaipuriar
Advocate for Petitioner
E-109, Pandav Nagar
Delhi 110092

New Delhi,
Dated:
IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007

IN THE MATTER OF:

Shri Arvind KejriwaI,
C/o Parivartan,
G-3/57, Sunder nagari,
Delhi –110093 …..Petitioner

Versus

1. Central Information Commission
Block IV (5th floor),
Old JNU Campus,
New Delhi 110067

2. Department of Personnel & Training,
Through Secretary (Personnel),
Ministry of Personnel Public Grievances & Pensions,
Government of India,
North Block,
New Delhi

3. Cabinet Secretariat,
Through Cabinet Secretary,
Rashtrapati Bhavan
New Delhi … Respondents

WRIT PETITION UNDER ATICLE 226 OF THE CONSTITUTION OF INDIA OF QUASHING AND SETTING ASIDE THE ORDERS OF THE DOPT DATED 10.10.06, 4.8.06, 4.8.06, AND DATED 18.4.07 OF THE CIC.

To,
The Hon’ble Chief Justice and
The other Companion Judges of
The Hon’ble High Court of Delhi.

HUMBLE PETITION OF THE
PETITIONER ABOVE NAMED.

MOST RESPECTFULLY SHOWETH:

1. This petition raises following points of law:

(i) After a two member bench of the CIC consisting of Prof. M.M. Ansari and Dr O. P. Kejariwal made the order dated 14.07.06 directing to provide the information; was it permissible for a member of the said bench to operate singly and dispose of the complaint of the applicant to the effect that the order was not implemented; particularly when the other member Dr O. P. Kejariwal had specifically requested that he continue to be associated with the case? Was his exclusion from the bench by the other member legal and proper?

(ii) Is the order-dated 18.04.07 vitiated due to the fact that no notice was give to the petitioner and no opportunity was given to him?

(iii) Once the order of the CIC dated 14.07.06 was made, after hearing the respondents’ objections with respect to section 7(9) and 11 (1) of RTI, was it open for the respondents to take the same objections while refusing to provide the information?

(iv) Can the officers whose names appeared in the “offer list” be treated as third parties under 11(1) RTI Act, when they are neither been involved in the preparation of the list and not provided the information confidentially?

(v) Can refuse under 7(9) of the RTI act be taken when the number of pages do not exceed 700 and the applicant is in any case required to pay four times the market rate?

2. By way of executive orders made originally sometime in 1950s and amended from time to time, the Central Staffing Scheme was laid down by Government of India, and this scheme governs the procedure for appointment of bureaucrats from Under Secretary level up to the Secretary level in various Ministries of Government of India. The amended copy of the OM dated 5.1.96, which is currently in operation, is at Annexure A. The said executive instructions state that for the post of Additional Secretary and above, the filling up of any specific post would be based not only on merit and competence, but also on the “specific suitability” of the officer for a particular vacancy in the Central Government. The said OM also lays down the procedure for filling vacancies upto the post of Joint Secretary. Vacancies at these levels have to be reported by respective Ministries giving “detailed descriptions” of the qualifications, experience and specific suitability required for each post. Thereafter the Establishment Officer is required to prepare a panel of three names for each vacancy in the manner prescribed keeping in view the educational qualifications, service, experience and special training required for that post.

3. Contrary to the executive instructions, petitioner has conclusively learnt and wishes to establish that in the case of a large number of appointments to posts from the Deputy Secretary to the highest post, the procedure laid down is not at all being followed and appointments are made without properly preparing the “Offer Lists” of officers and final selections are made without properly matching the educational qualifications, experience and specific suitability of officers with the requirements of posts. The irregularities include exclusion of highly meritorious officers of some services, while including not so meritorious officers of other services, even though the executive instructions of GOI specifically state that there will be no discrimination amongst the services. Secondly, as the file moves upwards from the Section Officer level, names of officers are arbitrarily included and deleted from the “Offer List” based on the personal whims of the officers concerned.

4. By way of an example, assuming there is a vacancy for the post of Deputy Secretary, Telecom. According to the Central Staffing Scheme, the Telecom Ministry is required to intimate DOPT the occurrence of the vacancy along with the educational qualifications, professional experience and special training required for this post. The petitioner now understands that in very few cases do the Ministries actually intimate DOPT regarding the qualifications and the experience required for the post. The Ministries merely indicate that a particular post has fallen vacant. As a result, from the Offer List, a completely arbitrary selection is done often without reference to merit, qualifications, experience or specific suitability of an officer for a particular post. The empanelling of three officers as is required to be done for each post falling vacant, is done on a completely arbitrary basis.

5. Petitioner filed an application under the Right to Information Act, 2005 (RTI) on 17.11.05 and two applications on 28.11.05. In these applications, petitioner sought information regarding the preparation of the Offer List, the empanelling of officers and the appointments made at various levels of Government for the financial years 2004-05 and 2005-06. These are at Annexures B, C and D.

Regarding the Deputy Secretary and Director level posts

6. Part information was provided by DOPT vide letter dated 16.12.05. This is at Annexure E. First Appeal was filed before the Establishment Officer on 2.1.06. The First Appellate Authority made an order on 3.2.06 directing DOPT to provide some more information to the petitioner and to reconsider the rest of the issues. This is at Annexure F. This order was never implemented by DOPT. Petitioner filed second Appeal on 12.4.06. The CIC made an order dated 14.07.06 after hearing the parties. This is at Annexure G. The relevant part of the CIC order is as under:

“In the course of hearing, it was agreed that the concerned CPIOs would review and consider the advice given by the appellate authority and accordingly dispose of the cases within one month from the date of issue of this decision.
The Respondents agreed to provide all information as allowed by the first appellate authority in the next one month. On the issues, which the first appellate authority had referred back to the CPIO for reconsideration, the CPIO would find ways & means to provide information to the Appellant in the light of these discussions. There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways & means so that all information were provided to the Appellant in the true spirit of RTI Act.”

7. Pursuant to this order DOPT provided part information by letters dated 20.7.06 and 8.8.06. (Wrongly typed in the letter as 8.7.06) These are at Annexures H and I. Inspection of files was allowed. Inspection was taken. During inspection, the following was noted by the petitioner:

(i) That every year, without making t public, DOPT has been laying down a quota for each service. The quota is the upper limit of the number of officers that DOPT decides to include in offer list from that service in that year. A quota is laid by DOPT for all services other than IAS. For IAS, it is written that all the officers who apply would be included. Such prescription of quota for services and discrimination amongst services is violative of Central Staffing Scheme (hereinafter referred to as “CSS”). Besides, the quota has absolutely no logical basis. The petitioner noted several cases, where officers with outstanding records were rejected from one service whereas those with “Very Good” records from other service were included.

(ii) The petitioner also noted that in the case of same service, if officers more than the prescribed quota applied, the officers were selected for offer list in a completely arbitrary fashion as the file moved upwards from section officer upto the Establishment Officer. Every officer would include some names and remove others completely whimsically.

(iii) Inspections of files also revealed that most of the ministries had not intimated DOPT what educational qualifications, experience or special training should be there in an officer selected for a particular post. In the absence of the same, it was not possible to do a matching of bio datas of officers with the requirements of posts, as envisaged in CSS. This creates scope for doing selections and appointments on extraneous considerations.

8. After inspection was taken, the petitioner asked for copies of certain documents by letter dated nil but written in September 2006 during the course of inspection of documents. This is at Annexure J. This was refused by DOPT taking refuge under section 7(9) of RTI vide letter dated 10.10.06. This is at Annexure K.

9. Petitioner complained to CIC on 11.12.06 regarding the above order of DOPT and the non-compliance of the order of the CIC dated 14.7.06 above quoted.

10. On 18.4.07 CIC made the following order:

“The Commission has duly considered the issue. In the light of your review petition and the compliance report from the DOPT, it is observed that its Order dated 14.07.2006 has been complied with and the relevant information, as permissible under the Act, has already been provided after allowing you inspection of the documents. There is, therefore, no justification for reviewing the case.”

This order is marked and annexed as Annexure L.

Regarding the Joint Secretary Posts

11. Part information was provided by DOPT vide letter dated 28.12.05. This is at Annexure M. First Appeal was filed before the Establishment Officer on 2.1.06. The First Appellate Authority made an order on 3.2.06 directing providing of some more information to the petitioner and directing DOPT to reconsider the rest of the issues. This is at Annexure N. This order was never implemented by DOPT. Petitioner filed second Appeal on 12.4.06. The CIC made an order dated 14.07.06 after hearing the parties abovementioned. This is at Annexure J. The relevant part of the CIC order is as under:

“In the course of hearing, it was agreed that the concerned CPIOs would review and consider the advice given by the appellate authority and accordingly dispose of the cases within one month from the date of issue of this decision.

The Respondents agreed to provide all information as allowed by the first appellate authority in the next one month. On the issues which the first appellate authority had referred back to the CPIO for reconsideration, the CPIO would find ways & means to provide information to the Appellant in the light of these discussions. There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways & means so that all information were provided to the Appellant in the true spirit of RTI Act.”

12. Pursuant to this order DOPT provided part information by letters dated 17.7.06 and 3.8.06. These are at Annexures O and P. Inspection of files was allowed. Inspection was taken. The petitioner found similar irregularities as noted above.

13. After inspection was taken, petitioner orally asked for copies of certain documents. This was refused by DOPT on the basis that the earlier request abovementioned had been refused.

14. Petitioner complained to CIC on 11.12.06 regarding the above order of DOPT and the non-compliance of the order of the CIC dated 14.7.06 above quoted.

15. On 18.4.07 CIC made an identical order as quoted above.

Regarding posts of Additional Secretary and above

16. Petitioner made an RTI application to DOPT on 28.11.05. Regarding posts of Additional Secretary and above DOPT forwarded the application to Cabinet Secretariat under section 6(3) of RTI on 30.11.05, since the information did not pertain to DOPT but to the Cabinet Secretariat. On 13.12.05 Cabinet Secretariat rejected Petitioner’s application saying it was not in proper form. The petitioner therefore filed a complaint-dated 21.12.05 before the CIC. While the complaint made before the CIC regarding the rejection by the Cabinet Secretariat was pending, petitioner received part information by DOPT on 17.1.06. This is at Annexure Q. Petitioner filed First Appeal on 22.2.06. The First Appellate Order dated 30.03.06 is identical to the First Appellate order abovementioned. This is annexed as Annexure R. This order was not obeyed by DOPT. Second Appeal was therefore filed by the petitioner to the CIC on 22.4.06. CIC made an order on 14.7.06 without making the Cabinet Secretariat a party to the proceedings. The order of the CIC is the same as abovementioned. This order was not obeyed. On 4.8.06, DOPT addressed a letter to the petitioner refusing to provide information. This is at Annexure S. In the said letter apart from the ground relating to Section 7(9) RTI as abovementioned, an additional ground relating to section 11(1) RTI was also taken.

17. Section 11(1) of RTI is as under:

“11 (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fAct that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.”

18. In the submission of the petitioner, section 11(1) of RTI would not apply. The critical part of this clause is “as being treated as confidential by that third party”. In the present instance, the so called third parties have not been involved in any manner in the preparation of the Offer List or the empanelment or final selection. They have not provided any information confidentially. In any case, the section provides for notice to the third parties. A reasoned order is to be made as to whether the information should be disclosed after hearing the parties. In the submission of the petitioner the officers whose names appeared in the Offer List or on panels cannot be treated as third parties. Hence the denial of this information is illegal. Moreover, after the CIC had rejected the submissions of the DOPT in respect of section 7(9) and 11(1) RTI Act, DOPT could not have taken the same grounds while rejecting the demand for information.

19. The petitioner therefore filed a complaint against the DOPT order abovementioned, to the CIC on 11.12.06. On 18.4.07 the CIC made an order, which is reproduced above. Petitioner also wrote to the Cabinet Secretariat on 25.4.07 asking that the order of the CIC dated 14.7.06 be implemented. This is at Annexure T. There was no response.

20. Critical to this case is the order of the CIC dated 14.7.06, the relevant extract being as under:
“There seems to be no objection on the part of DOPT to provide information. The only issue is how to provide it considering its voluminous nature. The CPIO should work out ways and means so that all information was provided to the appellant in the true spirit of RTI Act”.

21. This order was passed after hearing the DOPT in respect of their objections taken under section 7(9) and 11(1) of RTI. If after considering the objections of DOPT the above order was made, the question arises as to whether it was permissible for DOPT to once again take the same objections while refusing information.

22. In this case for the posts of Deputy Secretary and for the posts of Joint Secretary, pursuant to the RTI applications and appeals made by the petitioner, he was granted inspection of relevant records and this inspection confirmed his initial apprehension and understanding that appointments to these posts were done on a completely arbitrary basis. After taking inspection when petitioner asked for Xerox copies, at his expense, of a limited number of documents, these copies were refused. The refusal was done on the following basis:
“As regards your request to provide copies of files for the year 2006 (1st January to 31st March), this cannot be provided to you, as it would attract the provisions of Section 7(9) of RTI Act. (Wrongly typed as 8(9)).”

23. Section 7(9) of RTI is as under:
“An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.”

24. Refuge under 7(9) of RTI could not be taken by the respondents as the number of pages would not exceed 700 pages and the petitioner would be required to pay at the rate of Rs 2 /- which is four times the market price. In any case, under RTI applications, various applicants have been given Xerox copies of 10,000 pages of documents by some other public authorities. There was therefore, no question of diversion of resources nor was there any issue relating to the safety of the records.

25. The order of the CIC dated 18.4.07 has been made without jurisdiction and in a highly improper manner in as much as the RTI appeals of the petitioner were heard by a two judge bench of the CIC consisting of Prof. M.M. Ansari and Dr. O.P. Kejariwal. It is this two member bench which made the order dated 14.7.06 directing the DOPT to provide information on all three applications. When a complaint was made by the petitioner that the order was not obeyed, a single member bench consisting of Prof. M.M. Ansari made the impugned order dated 18.4.07 holding that compliance had been done. Prof. M.M. Ansari sat singly and made the impugned order even though the other member Dr. O.P. Kejariwal had requested that he be associated with the hearing of the complaint. This is recorded in the note put up by the Joint Registrar of the Commission on 28.2.07 wherein he has recorded:

“IC (Information Commissioner) (M.A.) (M. Ansari) may also kindly see…observations thereon by the IC (O.K.) (O. Kejariwal), who has requested that he be associated with the hearing of the case.”

26. The other impropriety and illegality in the present case relates to the intervention of the Chief Information Commissioner relating to this matter, which was heard by the two member bench. Though one of the members, Dr. Kejariwal, was of the opinion that a hearing should be given relating to compliance and that he too should be on the bench, the Chief Information Commissioner intervenes and makes an order dated 9.5.07 remarking that no hearing is necessary.

27. In fact the Chief Information Commissioner in his note dated 9.5.07 has written:

“In this context IC (A) and IC (K) who constituted the Bench which delivered the order of 14.7.06 were consulted. IC (K)’s views are at page 9/N as are those of IC (A). Whereas IC (K) has suggested that a hearing be held, IC (A) is of the view that the decision has been duly complied with, as intimated under his directions to applicant Shri Kejriwal.
Although the application is titled review of decision, the contents of the application do not mention what part of the decision requires a review and in fact also that decision be complied with. I do not see what purpose will be served by further hearing. This is simply a request for compliance with the decision of this Commission. The Registry may take further action to ensure compliance at the level of Establishment Officer in the DOPT, who was earlier Appellate Authority in this matter on whose decision the orders of 14.7.06 were passed. The Department of Personnel & Training may be asked to report compliance in accordance with section 7(9) cited in the order of this Commission.”

28. The Information Commissioner, Dr. O.P. Kejariwal also made a note on the file as under:

“Although the applicant Sri Arvind Kejriwal has filed his application with the caption, ‘Review Petition”, in his application his only prayer to the Commission is to ensure compliance of the Commission’s Order. According to him though he was allowed to inspect certain files, photocopies of the inspected documents were not provided to him. He has also alleged that certain files regarding appointments of officials above the level of Joint Secretary were not even shown to him.
CIC has also agreed that the main contention of the application is non-compliance and has suggested that our Registry may do the needful to secure compliance of the Order. According to me, the role of the Registry is limited to assisting and facilitating the administrative functioning of the Commission. It, therefore, would be advisable to inquire into the matter by calling the parties for a hearing. In this way the Commission can also satisfy itself as to whether there was non-compliance on the part of the public authority and at the same time the request of the applicant (that he may be heard) will also be fulfilled. It may be pointed out that in several cases earlier, the Commission has held hearings in case of non-compliance of its Orders.”

29. After making this remark, the Chief Information Commissioner once again intervenes and makes a noting “I had given my decision earlier, dated 9.5.07.” As a result of this noting no hearing was given to the petitioner and the impugned order came to be passed.

30. The total non application of mind in the making of the impugned order dated 18.4.07 can be seen from the fAct that even after Prof. Ansari concluded in the order that the directions of the Commission had been complied with, a subsequent letter dated 21.5.07 was sent by the Commission to the DOPT stating, inter alia, as under:

“The Commission has received a complaint from the appellant stating, inter alia, that the DOPT has refused to provide the copies of the documents which were shown to him during the course of inspection. The matter was again placed before the Chief Information Commissioner and I am directed to request you to submit a compliance report in respect of the Decision dated 14.7.2006 passed by the Commission in connection with the aforesaid appeals. The Commission has further asked that compliance should be ensured at the level of the Establishment Officer in the DOPT, who was earlier the Appellate Authority in the matter and on whose decision the order of the Commission dated 14.7.2006 was passed.
In view of the above directions of the Commission, I request that the compliance may kindly be ensured at your level and a report submitted at your earliest convenience.”

Copy of this letter is annexed at Annexure U. Thus it can be seen that even before verifying as to whether the directions of the Commission were complied with, Prof. Ansari acted in undue haste and made the impugned order.

31. In fact, petitioner subsequently learned that Prof. Ansari had asked for a compliance report from DOPT and had received two communications dated 26.2.07 and 27.2.07 which were never shown to the petitioner and which the petitioner subsequently obtained through another RTI application through which he received the full set of papers of the Commission. In these replies of DOPT to the CIC, it is categorically stated that the information was not given to the petitioner for certain reason. Thus Prof. Ansari knew that the order was not complied with when he made the impugned order holding that the directions of the Commission had been complied with. The order of Prof. Ansari is therefore malafide. In that he knowingly made a wrong order, he excluded a member of the bench wrongly and he did not give a hearing to the petitioner before making the impugned order. The compliance reports of DOPT dated 26.2.07 and 27.2.07 are annexed at Annexure V and W.

32. Hence this petition challenges the following orders:

S.No. Order dated Passed by RTI ACT Application

1.
10.10.06
DOPT
17.11.05
2. 4.8.06 DOPT 28.11.05
3. 4.8.06 DOPT 28.11.05
4. 18.4.07 CIC Complaint dated 11.12.06

GROUNDS

33. The order of the CIC dated 14.7.06 was passed after hearing the DOPT in respect of their objections taken under section 7(9) and 11(1) of RTI. If after considering the objections of DOPT the above order was made, the question arises as to whether it was permissible for DOPT to once again take the same objections while refusing information. In the submission of the petitioner, it could not be done.

34. In the submission of the petitioner, section 11(1) of RTI Act would not apply. The critical clause is “as being treated as confidential by that third party”. In the present instance the so called third parties have not been involved in any manner in the preparation of the Offer List or the empanelment. They have not provided any information confidentially. In any case, the section provides for notice to the third parties. A reasoned order is to be made as to whether the information should be disclosed after hearing the parties. In the submission of the petitioner the officers whose name appeared in the Offer List cannot be treated as third parties. The authorities cannot refuse to issue notices to them. Hence the denial of this information is illegal. Moreover, after the CIC had rejected the submissions of the DOPT in respect of section 7(9) and 11(1) RTI, DOPT could not have taken the same grounds while rejecting the demand for information.

35. Refuge under 7(9) of RTI could not be taken by the respondents as the number of pages would not exceed 700 pages and the petitioner would be required to pay at the rate of Rs 2 /- which is four times the market price. In any case, under RTI applications, various applicants have been given Xerox copies of 10,000 pages of documents. There was therefore, no question of diversion of resources nor was there any issue relating to the safety of the records.

36. That the order-dated 18.4.07 is vitiated by non-application of mind and also on account of the fAct that no notice was given to the petitioner and no hearing opportunity was provided. The order of the CIC dated 14.7.06 was not complied with. No inspection of documents was given in respect of RTI application dated 28.11.05 relating to appointments to the posts of Additional Secretary and above. Hence the finding in the order that inspection had been given is incorrect. Secondly if after inspection of documents, the petitioner seeks Xerox copies of a limited number of documents that cannot be denied on the ground that inspection has been given. Inspection is only for the limited purpose of pruning the list of documents in respect of which Xerox copies are sought. It is not an alternative to the providing of Xerox copies. In the RTI application itself, the petitioner has mentioned that he would be seeking Xerox copies after taking inspection.

37. The order of the CIC dated 18.4.07 has been made without jurisdiction and in a highly improper manner inasmuch as the RTI appeals of the petitioner were heard by a two judge bench of the CIC consisting of Prof. M.M. Ansari and Dr. O.P. Kejariwal. It is this two member bench which made the order dated 14.7.06 directing the DOPT to provide information on all three applications. When a complaint was made by the petitioner that the order was not obeyed, a single member bench consisting of Prof. M.M. Ansari made the impugned order dated 18.4.07 holding that compliance had been done. Prof. M.M. Ansari sat singly and made the impugned order even though the other member Dr. O.P. Kejariwal had requested that he be associated with the hearing of the complaint. This is recorded in the note put up by the Joint Registrar of the Commission on 28.2.07 wherein he has recorded “IC (Information Commissioner) (M.A.) (M. Ansari) may also kindly see … observations thereon by the IC(O.K.) (O. Kejariwal), who has requested that he be associated with the hearing of the case.”

38. That the petitioner has not filed any other case/ petition is this matter before this Hon’ble Court or in any other court.

RELIEFS

39. For a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the orders of the DOPT dated 10.10.06, 4.8.06, 4.8.06, and dated 18.4.07 of the CIC.

40. For an order directing DOPT and the Cabinet Secretariat to provide the petitioner with information and Xerox copies of the documents as requested in his letter dated 11.12.06 to the CIC and in the three RTI applications dated 17.11.05 and 28.11.05.

41. For passing any other order that this Hon’ble Court may deem fit.

AND FOR THIS ACT OF KINDNESS THE PETITIONER SHALL EVERY AS IN DUTY BOUND EVER PRAY.
Petitioner
Through
Date:

(Advocate for Petitioner)