Arvind Kejriwal vs Central Public Information ...
2010 Latest Caselaw 3547 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                  W.P. (C) 6614/2008 & CM APPL No. 12685/2008

                                                  Reserved on: 8th July, 2010
                                                  Decision on: 30th July, 2010

ARVIND KEJRIWAL                                              ..... Petitioner
                                  Through Mr. Prashant Bhushan with
                                  Ms. Girija Kishan Verma and
                                  Mr. Rishikesh Kumar, Advocates.

                         versus

CENTRAL PUBLIC INFORMATION OFFICER, CABINET
SECRETARIAT                                 .....Respondent
                  Through Mr. S.K. Dubey with
                  Mr. Vanshdeep Dalmia and
                  Mr. Abhinav Rao, Advocates.

                                          WITH

                W.P.(C) 8999/2008 & CM APPL. No. 7517/2008

UNION OF INDIA                                           ..... Petitioner
                                  Through Mr. S.K. Dubey with
                                  Mr. Vanshdeep Dalmia and
                                  Mr. Abhinav Rao, Advocates.

                         versus

ARVIND KEJRIWAL                                            .....Respondent
                                  Through Mr. Prashant Bhushan with
                                  Ms. Girija Kishan Verma and
                                  Mr. Rishikesh Kumar, Advocates.


                                AND
                W.P.(C) 8407/2009 & CM APPL. 5286/2009

UNION OF INDIA                                           ..... Petitioner
                                  Through Mr. S.K. Dubey with
                                  Mr. Vanshdeep Dalmia and
                                  Mr. Abhinav Rao, Advocates.

                         versus


ARVIND KEJRIWAL                                          ..... Respondent
                                  Through Mr. Prashant Bhushan with
                                  Ms.Girija Kishan Verma and
                                  Mr. Rishikesh Kumar, Advocates.
W.P. (Civil) Nos. 6614 of 2008, 8999 of 2008 and 8407 of 2009        Page 1 of 16
 CORAM: JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be
    allowed to see the judgment?                                    Yes
2. To be referred to the Reporter or not?                          Yes
3. Whether the judgment should be reported in Digest?              Yes

                                    JUDGMENT

1. A short but interesting question arises for determination in these

petitions arising out of an order dated 12th June 2008, passed by the

Central Information Commission („CIC‟). That question is whether

the information seeker Mr. Arvind Kejriwal can be provided with

copies of documents in the files concerning appointments at the levels

of Deputy Secretary, Director, Joint Secretary, Additional Secretary

and Secretary in the Government of India without the procedure

outlined in Section 11(1) of the Right to Information Act, 2005 („RTI

Act‟) having to be followed?

2. The CIC allowed Mr. Kejriwal inspection of the relevant files

concerning empanelment of Additional Secretaries and Secretaries to

the Government of India and he was to be provided by the Department

of Personnel and Training („DoPT‟), Government of India copies of

the documents and records, as might be specified by him after

inspection. Further, it was held that since Mr. Kejriwal had already

been allowed inspection of the files of the appointments of officers in

the rank of Deputy Secretary, Director and Joint Secretary, the denial

of photocopies of the documents was not justified. These documents

included the annual confidential rolls („ACRs‟), the grading of the

officers, their vigilance clearance etc., However, since Mr. Kejriwal

himself stated that he did not want copies of the ACRs of each of the

officers "but required only the chart which contained the grading of

the officers" and "since such chart would not contain any personal

information", the CIC directed the DoPT to provide copies of the

chart to him within 20 working days.

3. Mr. Kejriwal has filed Writ Petition (Civil) No. 6614 of 2008

seeking implementation of the above order dated 12th June 2008 of the

CIC. The Union of India („UOI‟) has filed Writ Petition (Civil) No.

8999 of 2008 challenging the said order. It has also filed Writ Petition

(Civil) No. 8407 of 2009 challenging a subsequent order dated 27 th

November 2008 passed by the CIC taking exception to the DoPT‟s

non-compliance of its earlier order dated 12th June 2008 and directing

compliance by 30th December 2008.

4. While directing notice to be issued in the Writ Petition (C) No.

8999 of 2008 filed by the Union of India, this Court stayed the

operation of the impugned order dated 12th June 2008 of the CIC.

Likewise, in Writ Petition (Civil) No. 8407 of 2009 while directing

notice to be issued, this Court stayed the operation of the impugned

order dated 27th November 2008.

5. The background to the proceedings before the CIC has been set out

elaborately in the impugned order dated 12th June 2008 of the CIC.

Mr. Kejriwal sought information from the DoPT by filing three

separate applications on 17th November 2005 under the RTI Act. This

information related to empanelment of officers in the Government of

India at the level of (i) Deputy Secretary and Director (ii) Joint

Secretary (iii) Additional Secretary and above. Under each category

the Petitioner sought the following information:

"(i) Service-wise list of all the officers empanelled during Financial Years 2004-05 and 2005-06 for the posts of Deputy Secretary, Director, Joint Secretary and Additional Secretary & above and date of empanelment of each officer.

(ii) List of all posts of Deputy Secretary, Director, Joint Secretary and Additional Secretary & above on which, appointments were made under Central Staffing Scheme (CSS) during the Financial Years 2004-05 and 2005-06.

(iii)After the panels of suitable officers have been made, what is the procedure for appointing officers at various posts falling vacant at these levels. Which clause of the Central Staffing Scheme deals with the selection of officers from the panels and their final appointment? Please give copies of all Rules, Regulations etc. which guide this process.

(iv) Inspection of all files, including file notings, through which the officers were picked up from panels for particular posts during the period from January, 2005 till date.

(v) For each of the appointments done at these levels during the Financial Years 2003-04 and 2004-05 and till date in the current year, please indicate how the bio-data of appointed officer was considered more suitable than the others for that post."

6. While some of the information was provided, the Central Public

Information Officers („CPIOs‟) justified the withholding of the

remaining information stating that information relating to the Cabinet

Secretary and the Secretaries of the other departments was exempted

under Section 8 of the RTI Act. Secondly, the information concerning

empanelment of the officers was personal to those officers and had no

relationship with any public activity or interest. It would constitute an

unwarranted invasion of the privacy of the individuals and, therefore,

could not be disclosed under Section 8(1)(j) of the RTI Act. Thirdly,

the records which form part of the decision of the Appointments

Committee of the Cabinet (hereafter `the ACC‟) and the

recommendations thereon were „privileged‟ and could not be

disclosed under Section 8 of the RTI Act.

7. The Appellate Authority remanded the matter to the CPIOs by

separate orders passed on 3rd February 2006 and 13th March 2006.

Among the observations made by the Appellate Authority was that the

information sought by Mr. Kejriwal pertained to a third party and fell

within the provisions of Section 11(1) of the RTI Act. Therefore, it

was obligatory on the part of the CPIOs to issue notice to such third

parties and invite them to make submissions, in writing or orally, as to

whether the information could be disclosed. Further, since the

information sought would involve compilation of a huge amount of

data, this aspect was also required to be considered by the CPIOs.

8. Aggrieved by the above order, Mr. Kejriwal filed a second appeal

before the CIC. During the course of the said appeal, Mr. Kejriwal

submitted that "he did not require the information in any particular

format" and that "he may simply be allowed inspection of all files so

that he could specify the documents, copies whereof he desired to

have." In response to the submission of the UOI that allowing

inspection of so many files could disrupt the normal functioning of the

DoPT as there would be more than 600 files, Mr. Kejriwal suggested

that "he should be allowed inspection of 10-20 files everyday in such

a way that it did not disrupt the functioning of the Department".

9. On 14th July 2006, the CIC noted that during the course of the

hearing, the CPIOs agreed to dispose of the cases remanded by the

Appellate Authority within one month and that "the CPIO would find

ways and means to provide information to the Appellant in the light of

these discussions". It was noted that "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."

10. When the Petitioner went back to the CIC complaining of non-

implementation of its directions, notices were again issued to the

CPIOs by the CIC asking for a compliance report. As regards

information concerning the appointments of Deputy Secretaries and

Directors, the concerned CPIO informed the CIC by his letter dated

27th February 2007 that Mr. Kejriwal had already examined all the

files, noted down their details and, therefore, the order of the CIC

dated 14th July 2006 stood complied with. It was further submitted

that "copies of the examination report, files and notings include

personal information of the officers and, as such, furnishing of the

said information would attract Section 11(1) of the RTI Act. Since it

was a major exercise it would also attract the provisions of Section

7(9) of the RTI Act."

11. As regards appointments at the level of Joint Secretary, the

concerned CPIO informed the CIC that Mr. Kejriwal had been

allowed to inspect those files as well. However, the copies of the

examination report as sought by Mr. Kejriwal included the officers‟

ACRs, gradings, their vigilance clearance reports etc. Therefore,

providing that information would attract Section 11(1) of the RTI Act.

As regards appointments at the level of Additional Secretary and

Secretary, the CPIO informed that the Cabinet Secretariat had been

asked to provide the information and Mr. Kejriwal had been requested

to inspect the files relating to the appointments at the level of

Additional Secretary and Secretary.

12. The CIC apparently was satisfied and the Petitioner was informed

by a letter dated 18th April 2007 that with the above compliance no

further action was required. However, on 20th April 2007 Mr.

Kejriwal filed an application before the CIC seeking a review. The

CIC on 14th July 2007 passed an order dismissing the review petition.

This was challenged by the Petitioner by filing Writ Petition No. 6777

of 2007 in this Court. By an order dated 14th September 2007 this

Court remanded the case to the CIC to be heard by a Bench

constituted by the CIC.

13. During the hearing after remand before the CIC on 19th February

2008 the Section Officer and the CPIO in the DoPT informed the CIC

that the copies of the examination reports, file notings and

correspondence sought by Mr. Kejriwal included personal information

of the officers which apart from being voluminous would also attract

Section 11(1) of the RTI Act. Seeking prior permission of such

officers would itself be a major exercise. It was noted that in any case,

Mr. Kejriwal had already examined all the files and noted down the

details which had been brought to the notice of the CIC by an order

dated 17th December 2007.

14. The other CPIO informed the CIC that Mr. Kejriwal had examined

all the files pertaining to appointments at the level of Deputy

Secretary and Director for the years 2004 and 2005 "for about two

hours each day for several days." Mr. Kejriwal "was also provided a

list of all appointments made during 2005 at the levels of Deputy

Secretaries and Directors". Mr. Kejriwal‟s request to provide "copies

of the files for the year 2006" could not be acceded to as it was

voluminous attracting Section 7(9) of the RTI Act. As regards the

empanelment of officers in the select list of Joint Secretary, Mr.

Kejriwal was informed that "the grounds for determining the

eligibility had been laid down in the provisions of the Central Staffing

Scheme („CSS‟), a copy of which had been provided to it". Mr.

Kejriwal was informed that "all the officers from a given batch were

not sponsored by the respective cadre controlling authorities of Group

„A‟ services in the earlier years". The reasons why the remaining

officers were not sponsored for empanelment would be available with

the respective cadre controlling authorities. Accordingly Mr. Kejriwal

was provided a list of the services and the respective cadre controlling

authorities. As regards the DoPT which was the cadre controlling

authority in respect of the IAS, information was provided to Mr.

Kejriwal.

15. Consequently, the only point that remained to be considered by

the CIC was whether Mr. Kejriwal should be given copies of the

documents which he had already inspected. As regards the

information being of a voluminous nature, Mr. Kejriwal limited the

information sought to the appointment of senior officers over a period

of three years. Therefore, as regards the information concerning the

officers at the level of Deputy Secretary, Director and Joint Secretary,

inspection of the files had already been done and the CIC noted that

"the only question that now remained was whether photocopies of the

concerned files could be given or not". Since the DoPT had not

furnished any proper information, the CIC ordered that Mr.Kejriwal

should be furnished with copies of the documents he was seeking

within 20 days.

16. As regards the files concerning the empanelment of Additional

Secretaries and Secretaries, the CIC again directed that Mr. Kejriwal

should be provided the copies of the documents and records after

inspection.

17. In view of the narrow issue that was examined by the CIC in its

impugned order, both Mr. Prashant Bhushan, learned counsel

appearing on behalf of Mr. Arvind Kejriwal and Mr. S.K. Dubey,

learned counsel appearing for the Union of India confined their

arguments to the question whether providing copies of the above

documents, as sought by Mr. Kejriwal, would attract the provisions of

Section 11(1) of the RTI Act.

18. In order to appreciate their respective contentions, it is first

necessary to refer to Section 11(1) of the RTI Act which reads as

under:

"11. Third party information .- (1)Where a Central Public Information Officer or the 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." (emphasis supplied)

19. According to Mr. Bhushan, the „third party information‟ is that

information which is in fact provided by the third party and further

should be asked by the said third party to be kept confidential. It is

only when both these conditions are fulfilled that Section 11(1) of the

RTI Act is attracted. In other words, although Section 11(1) of the

RTI Act indicates that where the information sought "relates to or has

been supplied by a third party" the word „or‟ should be read as „and‟

for only then the provision would be workable. It was submitted that

unless the above interpretation is placed on Section 11(1), it will not

be possible for a person to access information relating to appointments

to the various posts in the Government of India.

20. On the other hand, it was submitted by Mr. Dubey that there was

no scope to substitute the word „or‟ with the word „and‟ and that since

the statute was unambiguous it had to be read as such. He submitted

that information pertaining to ACRs, vigilance reports etc., of an

individual officer and their collation even in the form of a chart would

be information personal to such officers and has to be viewed as „third

party information‟. It is submitted that in such event the mandatory

procedure outlined under Section 11(1) of the RTI Act has to be

followed.

21. This Court has considered the above submissions. It requires to be

noticed that under the RTI Act information that is totally exempt from

disclosure has been listed out in Section 8. The concept of privacy is

incorporated in Section 8(1)(j) of the RTI Act. This provision would

be a defense available to a person about whom information is being

sought. Such defence could be taken by a third party in a proceeding

under Section 11(1) when upon being issued notice such third party

might want to resist disclosure on the grounds of privacy. This is a

valuable right of a third party that encapsulates the principle of natural

justice inasmuch as the statute mandates that there cannot be a

disclosure of information pertaining to or which „relates to‟ such third

party without affording such third party an opportunity of being heard

on whether such disclosure should be ordered. This is a procedural

safeguard that has been inserted in the RTI Act to balance the rights of

privacy and the public interest involved in disclosure of such

information. Whether one should trump the other is ultimately for the

information officer to decide in the facts of a given case.

22. Turning to the case on hand, the documents of which copies are

sought are in the personal files of officers working at the levels of

Deputy Secretary, Joint Secretary, Director, Additional Secretary and

Secretary in the Government of India. Appointments to these posts are

made on a comparative assessment of the relative merits of various

officers by a departmental promotion committee or a selection

committee, as the case may be. The evaluation of the past

performance of these officers is contained in the ACRs. On the basis

of the comparative assessment a grading is given. Such information

cannot but be viewed as personal to such officers. Vis-à-vis a person

who is not an employee of the Government of India and is seeking

such information as a member of the public, such information has to

be viewed as constituting „third party information‟. This can be

contrasted with a situation where a government employee is seeking

information concerning his own grading, ACR etc. That obviously

does not involve `third party‟ information.

23. What is, however, important to note is that it is not as if such

information is totally exempt from disclosure. When an application is

made seeking such information, notice would be issued by the CIC or

the CPIOs or the State Commission, as the case may be, to such „third

party‟ and after hearing such third party, a decision will be taken by

the CIC or the CPIOs or the State Commission whether or not to order

disclosure of such information. The third party may plead a „privacy‟

defence. But such defence may, for good reasons, be overruled. In

other words, after following the procedure outlined in Section 11(1) of

the RTI Act, the CIC may still decide that information should be

disclosed in public interest overruling any objection that the third

party may have to the disclosure of such information.

24. Given the above procedure, it is not possible to agree with the

submission of Mr. Bhushan that the word „or‟ occurring in Section 11

(1) in the phrase information "which relates to or has been supplied by

a third party" should be read as „and‟. Clearly, information relating to

a third party would also be third party information within the meaning

of Section 11(1) of the RTI Act. Information provided by such third

party would of course also be third party information. These two

distinct categories of third party information have been recognized

under Section 11(1) of the Act. It is not possible for this Court in the

circumstances to read the word „or‟ as „and‟. The mere fact that

inspection of such files was permitted, without following the

mandatory procedure under Section 11(1) does not mean that, at the

stage of furnishing copies of the documents inspected, the said

procedure can be waived. In fact, the procedure should have been

followed even prior to permitting inspection, but now the clock cannot

be put back as far as that is concerned.

25. The logic of the Section 11(1) RTI Act is plain. Once the

information seeker is provided information relating to a third party, it

is no longer in the private domain. Such information seeker can then

disclose in turn such information to the whole world. There may be an

officer who may not want the whole world to know why he or she was

overlooked for promotion. The defence of privacy in such a case

cannot be lightly brushed aside saying that since the officer is a public

servant he or she cannot possibly fight shy of such disclosure. There

may be yet another situation where the officer may have no qualms

about such disclosure. And there may be a third category where the

credentials of the officer appointed may be thought of as being in

public interest to be disclosed. The importance of the post held may

also be a factor that might weigh with the information officer. This

exercise of weighing the competing interests can possibly be

undertaken only after hearing all interested parties. Therefore the

procedure under Section 11(1) RTI Act.

26. This Court, therefore, holds that the CIC was not justified in

overruling the objection of the UOI on the basis of Section 11(1) of

the RTI Act and directing the UOI and the DoPT to provide copies of

the documents as sought by Mr. Kejriwal. Whatever may have been

the past practice when disclosure was ordered of information

contained in the files relating to appointment of officers and which

information included their ACRs, grading, vigilance clearance etc.,

the mandatory procedure outlined under Section 11(1) cannot be

dispensed with. The short question framed by this Court in the first

paragraph of this judgment was answered in the affirmative by the

CIC. This Court reverses the CIC‟s impugned order and answers it in

the negative.

27. The impugned order dated 12th June 2008 of the CIC and the

consequential order dated 19th November 2008 of the CIC are hereby

set aside. The appeals by Mr. Kejriwal will be restored to the file of

the CIC for compliance with the procedure outlined under Section 11

(1) RTI Act limited to the information Mr. Kejriwal now seeks.

28. Writ Petition (Civil) No. 6614 of 2008 filed by Mr. Arvind

Kejriwal is dismissed and Writ Petition (Civil) Nos. 8999 of 2008 and

8407 of 2009 filed by the Union of India are accordingly allowed,

with no order as to costs. All the pending applications stand disposed

of.

S. MURALIDHAR, J JULY 30, 2010 ak