Indian Institute Of Banking And ... vs Mukul Srivastava
2010 Latest Caselaw 3491 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI


         W.P. (C) 1856/2010 & CMs 3713, 5390, 5682/2010

                                      Reserved on: July 16, 2010
                                      Decision on : July 27, 2010

INDIAN INSTITUTE OF BANKING AND
FINANCE                                     ..... Petitioner
              Through: Mr. N.K. Kaul, Senior Advocate with
              Mr. Sanjay Bhatt and
              Mr. Kishan Rawat, Advocates.

                versus


MUKUL SRIVASTAVA                         ..... Respondent
            Through: Mr. Tej Bahadur Verma, Advocate.


CORAM: JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be
    allowed to see the judgment?                             No
2. To be referred to the Reporter or not?                    Yes
3. Whether the judgment should be reported in Digest?        Yes

                            JUDGMENT

27.07.2010

1.The short question is whether the Indian Institute of Banking &

Finance, the Petitioner herein, is a `public authority‟ within the

meaning of Section 2(h) of the Right to Information Act, 2005 („RTI

Act‟).

2. The facts in brief are that the Respondent Mukul Srivastava, an

employee of the Punjab National Bank, enrolled with the Petitioner

Institute and appeared for the Junior Associate of the Indian Institute

of Bankers („JAIIB‟) examination conducted by it under the old

syllabus in December 2003. Although, he passed in the "Single Basic

Accountancy" paper in 2004, he could not clear the remaining

subjects under the old syllabus till December 2005. Even under the

revised syllabus he could not complete the examination by December

2007. He enrolled afresh for the first block of two attempts for JAIIB

examination in May 2008. He remained absent in all three

examinations in May and December 2008. The Respondent took the

on-line examination for the paper on "Legal Aspects of Banking" on

2nd December 2007. By a letter of that date, he requested the

Petitioner for 5 grace marks. The Petitioner replied on 29th December

2007 stating that the said request could not be acceded to. He then

approached the Minister of State for Finance, Government of India

with a similar request. This letter was forwarded to the Petitioner. It

was replied to on 28th February 2008 reiterating that as per the rules of

the examination, candidates were not entitled to any grace marks. This

was followed by a legal notice and a consumer complaint filed by the

Respondent with the District Consumer Forum, New Delhi.

3. In the above background, the Respondent sent a letter dated 24 th

February 2009 to the Petitioner under the RTI Act seeking

information about all the examinees who had appeared for the JAIIB

examination on 18th November 2007 and their respective answer

sheets. In reply to the above letter, the Petitioner informed the

Respondent that the Petitioner was not a public authority under the

RTI Act. Thereafter the Respondent approached the Central

Information Commission („CIC‟).

4. By the impugned order dated 9th February 2010, the CIC held that

the Petitioner was a public authority and directed it to appoint a

Central Public Information Officer („CPIO‟) within 30 days and

provide the information sought for, to the Respondent within the same

period.

5. The summary of the order of the CIC is as under:

(i) The policy making and the executive bodies of the Petitioner

Institute "are substantially manned by the senior executives of

the Public Sector Banks and the bulk of its finances also come

directly or indirectly from those banks."

(ii) The services of the Petitioner "are largely subscribed to and

enjoyed by the Public Sector Banks and their employees."

(iii) There was "a very close relationship between the Public Sector

Banks" and the Petitioner "almost verging on mutual

dependence".

(iv) The Petitioner, "a Non-Governmental Organisation, being

substantially financed by the Public Sector Banks directly and

indirectly is nothing but a public authority".

6. Apart from the above, the CIC observed that the holding of

examinations and setting standards for the banking sector was a public

service, even if the participants had to pay a fee for taking such an

examination. According to the CIC, in this respect, the Petitioner was

no different from the Central Board of Secondary Education, the

Institute of Chartered Accountants of India, the Institute of Cost and

Works Accountants of India, etc. Consequently, it was held that apart

from fulfilling the condition of "substantial financing as stipulated in

Section 2(h)(d)(ii)", the Petitioner "also performs public service

covering a vast section of population". Consequently, it was

concluded that the Petitioner is a public authority under Section 2(h)

of the RTI Act.

7. While directing notice to be issued to the Respondent on 18th March

2010, this Court stayed the impugned order. The Respondent appeared

through counsel and filed an application being CM No. 5390 of 2010

for directions. Learned counsel for the Respondent submitted that the

same should be treated as the Respondent‟s reply. With the consent of

both the parties, the petition was taken up for final hearing.

8. This Court has heard the submissions of Mr. N.K. Kaul, learned

Senior counsel appearing for the Petitioner and Mr. Tej Bahadur

Verma, learned counsel appearing for the Respondent.

9. There appears to be no dispute on the fact that the Petitioner

Institute is a non-governmental organization. Therefore, in order to

ascertain if it is a public authority, it is Section 2(h)(d)(ii) of the RTI

Act that requires to be referred to. The said provision reads as under:-

"2(h) "public authority" means any authority or body or institution of self-government established or constituted,

-

(a)...

(b)...

(c)...

(d) by notification issued or order made by the appropriate Government,

and includes any -

(i)...

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government."

10. The question for determination, as correctly formulated by the

CIC, is whether the Petitioner is "substantially financed directly or

indirectly by funds provided by the appropriate Government?"

11. The Petitioner was first incorporated as the Indian Institute of

Bankers under the Indian Companies Act, 1913 on 4th April 1928 and

its initial subscribers included the Bank of India and the Imperial

Bank of India. The present Governing Council of the Petitioner

consists of a President, two Vice Presidents and 18 Members, majority

of whom are from public sector banks. One of the main activities of

the Petitioner is to conduct examinations for banking personnel.

Passing in these examinations is a pre-condition for career promotion

in public sector banks. Therefore, a majority of the candidates who

appear in these examinations are from public sector banks. The

member banks and financial institutions give an annual subscription to

the Petitioner Institute and those appearing in the examination pay a

fees to the Petitioner for the service that it provides.

12. What appears to have weighed with the CIC is that the

subscription received by the Petitioner from its member banks and the

fees collected by it from the candidates appearing in the examinations

conducted by it tantamounts to "substantial financing directly or

indirectly by the appropriate Government". S.2(h)(d)(ii) of the RTI

Act as it reads is unambiguous. The substantial financing of the

Petitioner directly or indirectly has to be by "the appropriate

Government" and not by any other public authority.

13. It is possible that the member banks, for instance, the State Bank

of India („SBI‟), is itself a public authority. However, `substantial

financing‟ by the SBI would itself not make the Petitioner a `public

authority‟. It would have to be shown that the appropriate

Government itself directly or indirectly finances or has financed the

Petitioner.

14. It is nobody‟s case, and certainly not that of the Respondent, that

there is any substantial financing directly or indirectly of the

Petitioner by the appropriate Government. Counsel for the

Respondent repeatedly referred to the total amount of subscription fee

received from the members of the Petitioner Institute and submitted

that this amount was substantial enough for the Court to come to the

conclusion that the Petitioner is a public authority. This submission, in

the considered view of this Court, is misconceived. The mere

subscription received by the Petitioner from its members, some of

whom may be public authorities within the meaning of Section 2(h) of

the RTI Act and the fees collected by it from the candidates who take

the examinations conducted by it, cannot as such constitute

"substantial financing" by the "appropriate government". That is the

mandate of the statue. If the arguments of the Respondent were to be

accepted then Section 2(h)(d)(ii) should permit substantial financing

directly or indirectly through funds provided by "a public authority".

However, as the statue reads, such substantial financing has to be by

"the appropriate Government". It is not possible to read into Section

2(h)(d)(ii) of the RTI Act words that do not exist.

15. For the aforementioned reasons, this Court is not able to concur

with the impugned order of the CIC dated 9th February 2010 which is

hereby set aside. The writ petition is allowed, but in the circumstance,

with no order as to costs.

16. Writ petition and the pending applications are accordingly

disposed of.

S. MURALIDHAR, J JULY 27, 2010 ak