Gauhati High Court
Shasankar Koushik Boruah vs The Manging Director Assam ... on 7 January, 2022
Page No.# 1/11
GAHC010229422021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/106/2022
SHASANKAR KOUSHIK BORUAH
S/O PRODIP BORUAH, R/O NOWBOICHA, NORTH LAKHIMPUR, P.O.-
DOOLAHAT, PIN-787031, DIST-LAKHIMPUR, ASSAM
VERSUS
THE MANGING DIRECTOR ASSAM ELECTRICITY GRID CORPORATION
LIMITED AND 8 ORS
FIRST FLOOR, BIJULEE BHAWAN, PALTAN BAZAR, GUWAHATI-781001,
ASSAM
2:THE MANAGING DIRECTOR
ASSAM POWER GENERATION CORPORATION LIMITED
3RD FLOOR
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
3:THE MANAGING DIRECTOR
ASSAM POWER DISTRIBUTION COMPANY LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
4:THE CHIEF GENERAL MANAGER
ASSAM ELECTRICITY GRID CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
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5:THE CHIEF GENERAL MANAGER
ASSAM POWER GENERATION CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
6:THE CHIEF GEENRAL MANAGER
ASSAM POWER DISTIRBUTION COMPANY LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
7:THE GEENRAL MANAGER (HR)/SPIO
ASSAM ELECTRICITY GRID CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
8:THE GENERAL MANAGER (HR)/ SPIO
ASSAM POWER GENERATION CORPORATION LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSAM
9:THE GENERAL MANAGER (HR)/SPIO
ASSAM POWER DISTIRBUTION COMPANY LIMITED
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
ASSA
Advocate for the Petitioner : MS. S G BARUAH
Advocate for the Respondent : SC, AEGCL
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
07.01.2022
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Heard Ms. S.G. Baruah, learned counsel for the petitioner. I have also
heard Mr. T.J. Mahanta, learned Senior Counsel appearing on behalf of the
respondent nos.1, 4 and 7. Mr. S.P. Sharma, learned counsel appears for the
respondent nos.3, 6 and 9 and Mr. H.K. Sarmah, learned counsel appears for
the respondent nos.2, 5 and 8.
2. This is an application under Article 226 of the Constitution of India
challenging the actions of the respondent authorities in not providing the
information as requested by the petitioner under the Right to Information Act,
2005 (hereinafter referred to as 'the Act of 2005') from the Public Information
Officer of the respondent authorities.
3. It is the case of the petitioner that the petitioner had pursuant to an
Advertisement on 01.12.2020 applied for recruitment as the Assistant Manager
as well as Junior Manager in the Assam Electricity Grid Corporation Limited
(AEGCL), Assam Power Generation Corporation Limited (APGCL) and Assam
Power Distribution Company Limited (APDCL). The petitioner was selected as
the Junior Manager in Assam AEGCL and he joined the post of his place of
posting on 03.03.2021 and is presently working as Junior Manager in 132 KV
Sivasagar Grid Sub-Station, Sivasagar. Subsequently the petitioner could come
to learn that some of the candidates who have got lesser marks than the
petitioner have been appointed as the Assistant Manager by the respondent
Corporations and as such the petitioner filed applications under the Act of 2005
before the Public Information Officers of the aforesaid three Corporations asking
for the information. On 21.08.2021, the petitioner was given the information by
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the Public Information Officer of the APGCL to the effect as regards the marks
obtained by the petitioner. However, there was no information given as regards
the marks obtained by the selected candidates on the ground that the
information comes within the ambit of "personal information" related to a third
party and the disclosure of such information is exempted under Section 8(1)(j)
of the RTI Act. It may also be relevant to note that the other respondent entities
i.e. the Assam Electricity Grid Corporation Limited and the Assam Power
Distribution Company Limited did not provide any information under the Act of
2005. Being aggrieved the petitioner has approached this Court under Article
226 of the Constitution of India.
4. I have heard the learned counsel for the petitioner who submits that the
information so sought for is not "personal information" and as such the question
of exemption under Section 8(1)(j) of the Act of 2005 cannot be made
applicable. She further submits that the information which was sought for by the
petitioner was an information pertaining to how much marks the selected
candidates got who have been appointed as Assistant Manager of the three
respondent Corporations which is nothing but an information relating to public
activity by the Respondent Corporations in discharge of their duties. On the
other hand, Mr. T.J. Mahanta, learned Senior Counsel appearing on behalf of the
respondent nos.1, 4 and 7, Mr. S.P. Sharma, learned counsel appearing on
behalf of the respondent nos.3, 6 and 9 and Mr. H.K. Sarmah, learned counsel
appearing on behalf the respondent nos.2, 5 and 8 submitted that the writ
petition was not maintainable in view of the existence of an alternative remedy
inasmuch as, if the petitioner was aggrieved for non-furnishing of the
information the petitioner ought to have filed an appeal under Section 19 of the
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Act of 2005. The Counsels for the respondents therefore submitted that this is
not a case where any Writ is required to be issued on the ground that there is
an alternative remedy.
5. I have heard the counsel for the parties and after hearing the learned
counsel for the parties the question which emerges in the instant case is as to
whether the information which was sought for by the petitioner would be a
personal information and thereby exempted under Section 8(1)(j) of the Act of
2005.
6. The Act of 2005 has not defined what is "personal information". However,
"personal information" has been defined under other statutory frameworks.
Though those definitions obviously do not bind the interpretation under the Act
of 2005 but are useful sources of guidance in understanding the amplitude of
the expression and as such the same are required to be read with a Caveat
because the context of the uses is not the same. In Section 2(i) of the
Information Technology (Reasonable Security Practices and Procedures and
Sensitive Personal Data or Information) Rules, 2011, the term "personal
information" means any information that relates to a natural person which either
directly or indirectly in combination with other information available or likely to
be available with a body corporate, is capable of identifying such person. In
other words any information which is capable of identifying a natural person is
classified as a personal information. In the judgment of the Supreme Court
rendered in the case of Central Public Information Officer, Supreme Court of
India vs. Subhash Chandra Agarwal reported in (2020) 5 SCC 481, the
supplementing judgment of His Lordship Dr. D.Y. Chandrachud, J in paragraph
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nos.289, 290, 291 and 292 discusses what is a personal information and the
same is quoted hereinbelow -
"289. Courts in India have interpreted the scope of information which
constitutes "personal information" under the RTI Act. In Girish Ramchandra
Deshpande v Central Information Commissioner, the petitioner sought copies of
memos, show-cause notices and punishments awarded to the third respondent
by his employer along with details of movable and immovable properties,
investments, lending and borrowing from banks and other financial institutions.
The petitioner also sought the details of gifts stated to have been accepted by
the third respondent. A large portion of the information sought was located in
the income tax returns of the third respondent. A two judge bench of the Court
classified the information sought as "personal information" and held:
"12. ... The performance of an employee/officer in an organisation is
primarily a matter between the employee and the employer and normally
those aspects are governed by the service rules which fall under the
expression "personal information", the disclosure of which has no
relationship to any public activity or public interest. On the other hand,
the disclosure of which would cause unwarranted invasion of privacy of
that individual. Of course, in a given case, if the Central Public
Information Officer or the State Public Information Officer or the
appellate authority is satisfied that the larger public interest justifies the
disclosure of such information, appropriate orders could be passed but
the petitioner cannot claim those details as a matter of right.
13. The details disclosed by a person in his income tax returns are
"personal information" which stand exempted from disclosure under
clause (j) of Section 8(1) of the RTI Act, unless involves a larger public
interest and the Central Public Information Officer or the State Public
Information Officer or the appellate authority is satisfied that the larger
public interest justifies the disclosure of such information."
Thus, even in cases where information may be classified as "personal
information", the CPIO is required to undertake an enquiry on a case to case
basis to determine if the disclosure of information is justified.
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290. In R K Jain v Union of India, the appellant's application to the Chief
Information Commissioner seeking copies of note-sheets and files relating to a
member of CESTAT, was rejected. The two-judge Bench of this Court placed
reliance on the holding in Girish Deshpande and rejected the appellant's claim
for inspection of documents relating to the Annual Confidential Reports of the
member of CESTAT, including documents relating to adverse entries in the
Annual Confidential Reports and the "follow-up action" taken. In Canara Bank v
C S Shyam, the respondent was employed by the appellant bank as clerical staff
and had asked for information relating to the transfer and posting of other
clerical staff employed by the bank. This information sought included personal
details such as the date of joining, designation of employee, details of
promotion earned, date of joining to the branch. Speaking for a two-judge
Bench of this Court, Justice A M Sapre considered the holding in Girish
Deshpande and held :
"14. In our considered opinion, the aforementioned principle of law
applies to the facts of this case on all force. It is for the reasons that,
firstly, the information sought by Respondent 1 of individual employees
working in the Bank was personal in nature; secondly, it was exempted
from being disclosed under Section 8(1)(j) of the Act and lastly, neither
Respondent 1 disclosed any public interest much less larger public
interest involved in seeking such information of the individual employee
nor was any finding recorded by the Central Information Commission and
the High Court as to the involvement of any larger public interest in
supplying such information to Respondent 1."
291. In Subhash Chandra Agarwal v Registrar, Supreme Court of India, the
appellant had filed an application under the RTI Act seeking information relating
to the details of the medical facilities availed by the Judges of the Supreme
Court and their family members in the preceding three years, including
information relating to expenses on private treatment in India or abroad. The
Court held that disclosure of information regarding medical facilities availed by
Judges amounts to an invasion of privacy:
"11. The information sought by the appellant includes the details of the
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medical facilities availed by the individual Judges. The same being
personal information, we are of the view that providing such information
would undoubtedly amount to invasion of the privacy. We have also taken
note of the fact that it was conceded before the learned Single Judge by
the learned counsel for the appellant herein that no larger public interest
is involved in seeking the details of the medical facilities availed by the
individual Judges. It may also be mentioned that the total expenditure
incurred for the medical treatment of the Judges for the period in
question was already furnished by the CPIO by his letter dated 30-8-2011
and it is not the case of the appellant that the said expenditure is
excessive or exorbitant. That being so, we are unable to understand how
the public interest requires disclosure of the details of the medical
facilities availed by the individual Judges. In the absence of any such
larger public interest, no direction whatsoever can be issued under
Section 19(8)(a)(iv) of the Act by the appellate authorities. Therefore on
that ground also the order passed by the CIC dated 1-2-2012 is
unsustainable and the same has rightly been set aside by the learned
Single Judge."
292. Thus, it emerges from the discussion that certain category of information
such as medical information, details of personal relations, employee records and
professional income can be classified as personal information. The question of
whether such information must be disclosed has to be determined by the CPIO
on a case to case basis, depending on the public interest demonstrated in
favour of disclosure."
7. It would be seen from a perusal of paragraph 292 of the said judgment as
quoted hereinabove that certain category of information such as medical
information, details of personal relations, employee records and professional
income can be classified as personal information. In the said judgment the
majority opinion as delivered by His Lordship Sanjiv Khanna, J opines in
paragraph no.47 that the interplay of the competing rights under Clause (j) of
Section 8(1) and Section 11 and observed that while Clause (j) of Section 8(1)
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refers to personal information as distinct from information relating to public
activity or interest and seeks to exempt disclosure of such information, as well
as such information which if disclosed would cause unwarranted invasion of
privacy of an individual unless public interest warrants its disclosure, Section 11
exempts the disclosure of information or record which relates to or has been
supplied by a third party and has been treated as confidential by the third party.
Again in paragraph no.58 of the said judgment, it has been observed that
Section 8(1)(j) of the Act of 2005 specifically refers to invasion of right to
privacy of an individual and excludes from disclosure information that would
cause unwarranted invasion of privacy of such individual unless the disclosure
would satisfy the larger public interest test. This clause also draws a distinction
in its treatment of "personal information" whereas disclosure of such
information is exempted if such information has no relation to public activity or
interest. Thus it would be seen that to come within an ambit of personal
information, such information should have no relation to public activity or
interest and it is only when the information is personal as has been held by the
Supreme Court in the above quoted case then only the question of balancing
the right of information with the right of privacy do arise.
8. In the instant case, the information which has been sought for cannot be
termed to be a "personal information" thereby attracting the provisions of
Section 8(1)(j) of the Act of 2005 inasmuch as, the said information is in
relation to the marks obtained by the selected candidates to the post of
Assistant Managers in the three respondent Corporations and admittedly are a
State within the meaning of Article 12 of the Constitution of India. The marks so
granted to the selected candidates are within the realm of public activity and as
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such the same as per the judgment of the Supreme Court referred to
hereinabove would not be within the definition of "personal information" and
exempted from disclosure under Section 8(1)(j) of the Act of 2005.
9. In the backdrop of the above, this Court would deal with the contention of
the respondent Corporations as regards the availability of the alternative
remedy. It is no doubt apparent that an appeal lies against non-furnishing of
information by the First Authority under Section 19 of the Act of 2005 and as
such the petitioner could have very well approached the Appellate Authority
under the said Section. It is also true that the period for filing an appeal has
already expired and the petitioner if now relegated to file an appeal can do so
after showing sufficient cause for not filing the appeal within the period of
limitation prescribed in Section 19 of the Act of 2005. However, it is also
relevant herein to take consideration that when an illegality has been committed
by adopting a completely misconceived notion of the exemption granted under
Section 8(1)(j) of the Act of 2005 and thereby the authorities concerned have
withheld the information to which the petitioner ought to have been provided,
this Court under Article 226 of the Constitution of India cannot shut its eyes to
such illegality. The bar on the ground that there is an alternative remedy is
nothing but a self imposed limitation by the Courts exercising jurisdiction under
Article 226 of the Constitution of India and as such in circumstances as in the
instant case the Court under Article 226 of the Constitution of India can very
well exercise the discretion to issue an appropriate Writ, Direction and Order. In
that view of matter taking this as an exceptional case this Court deems it proper
to exercise under Article 226 of the Constitution of India and accordingly directs
the respondent nos.7, 8 and 9 to provide the marks of the successful candidates
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as requested by the petitioner in the petitioner's RTI application filed before the
authorities within a period of 15 (fifteen) days from today.
10. With the above observations, the instant petition stands disposed of.
JUDGE
Comparing Assistant
