Bombay High Court
Union Of India vs Sanjiban De on 29 June, 2017
Bench: R.M. Savant
18.wp2791.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2791 OF 2016
Union of India through
The Secretary.
Department of Atomic Energy,
Having office at Anushakti Bhavan,
C.S.M. Marg, Mumbai 400 001. ..Petitioner.
Vs.
Shri Sanjiban De.
Scientific Officer/G,
Research Reactor Design and
Projects Division,
Bhabha Atomic Research Centre,
Trombay, Mumbai 400 085. ..Respondent.
Mr. Rajiv Chavan, Senior. Advocate i/b. Mr. A.O. Singh, for the Petitioner.
Mr. A.M. Kulkarni a/w. Mr. A.A. Kulkarni, Advocates for the Respondent.
CORAM :R. M. SAVANT &
SMT.SADHANA S. JADHAV,JJ
DATE : 29th JUNE, 2017
ORAL JUDGMENT :
1 Rule. Considering the nature of the challenge raised, made
returnable forthwith and heard.
2 The Writ jurisdiction of this Court is invoked against the order
dated 26/2/2016 passed by the Central Information Commissioner by which
Order the Second Appeal filed by the Respondent No. 1 herein under the Right
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to Information Act(for short the RTI Act) came to be allowed and resultantly,
the Central Information Commission directed the Petitioner herein to furnish
the complete Annual Performance Appraisal Report(APAR for short) for the
relevant years to the Respondent No. 1 within the time stipulated in the said
order.
3 It is not necessary to burden this order with unnecessary details
Suffice it would be to state that the Respondent No. 1 is working as a Scientific
Officer/G Research Reactor Design and Projects Division in the Bhabha Atomic
Research Centre(BARC for short), Trombay. The Respondent No. 1 has
applied to the Central Public Information Officer of the BARC for being
furnished his APARs for the years 2008 to 2014. The PIO did not furnish the
Respondent No. 1 his complete APARs. Since the Respondent was not
furnished with his complete APARS for the period 2008 to 2014 by the Central
Public Information Officer, the Respondent No. 1 had filed an Appeal before
the First Appellate Authority. The First Appellate Authority upheld the
decision of the Central Public Information Officer denying the complete APARs
to the Respondent No. 1. Aggrieved by the order dated 10 th November, 2014
passed by the First Appellate Authority, the Respondent No. 1 filed a Second
Appeal before the Central Information Commission. As indicated above, the
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Central Information Commissioner by the impugned Order dated 26/2/2016
has, allowed the Appeal and directed the Petitioner herein to furnish the
complete APARs for the period in question to the Respondent No. 1.
4 The learned Senior Counsel appearing on behalf of the Petitioners
Shri Rajiv Chavan would contend that the Respondent No. 1 has been
furnished with the gradings given to him for the relevant years in respect of
which he had sought information. However, what has been not given to him
and masked is the information which the Respondent considers to be sensitive
and therefore, covered by Section 8(1)(a) of the RTI Act.
5 The learned Counsel produced for our perusal the files consisting
of the complete APARs of the of the Respondent No. 1 for the relevant years.
The portion, which has been masked, is the portion where the Respondent No.
1 has carried out his self-assessment, as also the portion, wherein the
Reporting Officer has made his assessment of the Respondent No. 1.
6 We have perused with the assistance of the learned Senior
Counsel appearing for the Petitioner the file produced for our perusal. In so
far as the self-assessment is concerned, the Respondent No. 1 has mentioned
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the project and places at which he has been working during the relevant years.
In so far as the assessment of the Reporting Officer is concerned, the
Reporting Officer can be said to have made an overall assessment of the
performance of the Respondent No. 1. The assessment of the Reporting officer
in our view does not contain any information, which can be said to be sensitive
or is such if revealed would prejudicially affect the interests of the State. In
our view, the Reporting Officer has in a very subtle manner i.e. without
mentioning the details of the projects or the names of the places where the
Respondent No. 1 was working, has carried out the assessment of the
performance of the Respondent No. 1
7 In so far as Section 8 of the RTI Act is concerned, the said
provision carves out an exception in so far as the information to be provided
under the RTI Act is concerned. In the instant case, since reliance is sought to
be placed on behalf of the Petitioner on clause (a) of sub-section (1) of the
said provision, the same is reproduced hereinunder for the sake of ready
reference.
"8. Exemption from disclosure of information. (1) Notwithstanding anything
--
contained in this Act, there shall be no obligation to give any citizen,--
(a) information, disclosure of which would prejudicially affect the sovereignty and
integrity of India, the security, strategic, scientific or economic interests of the State,
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relation with foreign State or lead to incitement of an offence;"
Hence, one of the information which is exempted under the said
provision is the information, disclosure of which would prejudicially affect the
security, strategic, scientific or economic interests of the State. The
information therefore hasto be such which has the potential to affect the
interest of the State. The said information has therefore to be something
higher that the appraisal carried out of an employee by the Reporting Officer.
8 The issue has to be looked at from another perspective. As
indicated above the Respondent No. 1 has been provided his gradings, but
what has been masked, and thereby not provided is the assessment of the
Reporting Officer. It is well settled that the process of appraising an
employee's performance and communicating the same is with a view to give an
opportunity to the employee to correct himself or improve himself and also to
enable him to take recourse against the adverse remarks which are appearing
in his confidential reports. Hence, the information which has not been
furnished to the Respondent No. 1 would be such information which would
only enable the Respondent No. 1 to improve or correct himself. However,
depriving an employee of the appraisal of the Reporting Officer would
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tantamount to denying the employee an opportunity to correct or improve
himself or to represent against what has been recorded in his annual
confidential reports.
9 In the said context, a useful reference can be made to the
Judgment of the Apex Court reported in (2013) 9 Supreme Court Cases 566
in the case of Sukhdev Singh v/s. Union of India and ors. on which reliance
was placed by the learned Counsel appearing for the Respondent No. 1 in
support of his contention that the complete APARs have to be provided to the
Respondent No. 1. The Apex Court in the said Judgment held that every entry
in the ACR - poor, fair, average, good or very good- must be communicated to
him/her within a reasonable period. The Apex Court has held that
communication of every entry in the ACR brings transparency in recording the
remarks relating to a public servant and the system becomes more conforming
to the principles of natural justice. It has also been observed by the Apex
Court that an employee after being made aware of the entries in the ACR may
feel dissatisfied with the same and the communication of the entry therefore,
enables him/her to make representation for up-gradation of the remarks
made in the ACR. Hence, the principle underlying the communication of the
entries in the ACR has been expounded by the Apex Court in the judgment
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(supra).
10 As indicated above, we have gone through the portion which was
masked and thereby not provided to the Respondent No. 1, we do not find
anything in the report of the Reporting Officer to be sensitive or which could
prejudicially affect the scientific or economic interest of the State, so as to be
covered by Section 8(1)(a) of the RTI Act. Since we have come to the said
conclusion in our view depriving the Respondent No. 1 of the said information
would result in going against the objects behind the RTI Act. The order passed
by the Central Information Commissioner therefore, does not merit any
interference. For the reasons aforestated, we do not find any merit in the
above Petition. However, we make it clear that the Respondent No. 1 would be
entitled to only the assessment of the Reporting Officer for the relevant years
in question and that he would not be entitled to the self-assessment appraisal
which was masked. The Writ Petition is accordingly dismissed. Rule
discharged, with parties to bear their respective costs.
[SMT.SADHANA S. JADHAV,J] [R.M.SAVANT, J]
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