Punjab-Haryana High Court
Shish Pal vs State Information Commission ... on 2 September, 2023
Neutral Citation No:=2023:PHHC:115299
CWP-19362-2023 [1] 2023:PHHC:115299
102
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19362-2023
Date of decision: 02.09.2023
Shish Pal
...Petitioner
Versus
State Information Commission, Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Prateek Mahajan, Advocate for the petitioner.
Ms. Rajni Gupta, Addl. A.G., Haryana
for the respondents.
****
VIKAS BAHL, J. (ORAL)
1. This is a Civil Writ Petition filed under Articles 226/227 of
the Constitution of India for the issuance of a writ, order or direction
especially in the nature of certiorari for quashing the order dated
14.02.2023 (Annexure P-17) passed by the State Information
Commission, Haryana-respondent No.1 in Appeal Case No.4901 of 2022
titled as "Shish Pal Vs. The State Public Information Officer and
another". Challenge in the present writ petition has also been made to the
order dated 16.06.2022 (Annexure P-8) passed by respondent No.3 and
order dated 05.07.2022 (Annexure P-10) passed by respondent No.2.
2. Brief facts of the present case are that the petitioner had filed
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an application before the State Public Information Officer under the Right
to Information Act, 2005 (hereinafter referred to as "the Act of 2005"), in
which, the following information was sought:-
"It is humbly submitted that the following information
may please be supplied as early as possible:-
1. Please provide a certified copy of Divyang Certificate
of all Person with Benchmark Disability Candidates who
had been shortlisted for document verification held on dated
23-25 July, 2019 for the post of Clerk, Advertisement. No.
01/2018 and for which final Result had been declared on
27/07/2019.
2. Please provide a certified copy of Verification report
of Disability Certificate of all selected Person with
Benchmark Disability Candidates by concerned authority for
the post of Clerk, Advertisement. No. 01/2018.
It is requested that all the requisite documents/certified
copies desired above may please be provided under
attestation by your office & send details of additional
charges, if any, at under mentioned address. However, the
requisite fee in the shape of Postal order of Rs.30 has been
enclosed against the minimum required fee of Rs.10/- to
cover the cost of information charges."
3. In the reply, vide letter dated 16.06.2022 (Annexure P-8), the
SPIO stated that the information sought was personal information and
was exempted from disclosure under Section 8(1)(j) of the Act of 2005.
Aggrieved against the same, the petitioner had filed the first appeal on
23.06.2022 (Annexure P-9), which was dismissed vide order dated
05.07.2022 (Annexure P-10). The petitioner, thereafter, filed the second
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statutory appeal on 09.07.2022 (Annexure P-11) and in the grounds of
appeal, specific reference was made to the judgment dated 16.05.2018
passed by the Central Information Commission which, as per the case of
the petitioner, squarely covered the case in favour of the petitioner. The
Second Appellate Authority i.e. the State Information Commission,
Haryana, vide its order dated 14.02.2023 (Annexure P-17) dismissed the
said appeal without making any reference to the judgment dated
16.05.2018 relied upon by the petitioner.
4. Learned counsel for the petitioner has submitted that the
issue, in the present case, is "as to whether the Disability Certificate
which has been submitted by the shortlisted candidates in pursuance of
the Advertisement No.1 of 2018 can been given to the petitioner who
himself has participated in pursuance of the said advertisement and is
himself disabled to the extent of 80%". It is submitted that the Central
Information Commission, while considering a similar case, had observed
that the Certificate issued by the authority which is an essential pre-
requisite to claim the benefits/concessions prescribed under social
welfare legislations cannot become a private or personal document of the
holder and would be a public document within the meaning of Section 74
of the Indian Evidence Act and that the Certificate which has been issued
by a public authority to a candidate, who becomes a public servant or
beneficiary of the public scheme based on the Certificate of disability,
could not be stated to be 'private' or 'personal' but is a document which
is a public document as per Section 74(iii) and is accessible under Section
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76 of the Indian Evidence Act. It is contended that in the said judgment,
the provisions of Section 8(1)(j) as well as Section 11(1) of the Act of
2005 were also considered and it was observed that in case, the Disability
Certificate is to be treated as a personal document then it was incumbent
upon the authorities under the Act to examine whether the disclosure
would cause an unwarranted invasion of privacy and whether the
disability information relates to public activity or not. It is argued that
once, the said decision had been specifically referred to in the grounds of
appeal, then, it was incumbent upon the authority to have considered the
said judgment. It is further argued that in the impugned order dated
14.02.2023, reliance has solely been placed upon a letter dated
05.01.2021 issued by the Chief Secretary to Government of Haryana, in
which also, it has been mentioned that conditional access is available
when larger public interest is satisfied. It is submitted that the matter has
not been considered by the authority even in light of the same as there is
no discussion on the question of a larger public interest being involved or
not.
5. Learned counsel for the petitioner has further referred to the
said instructions dated 05.01.2021 to highlight the fact that the said
instructions are based upon the judgment passed by the Hon'ble Supreme
Court in "Central Public Information Officer, Supreme Court of India
Vs. Subhash Chander Aggarwal", reported as 2020(5) SCC 481 and it is
argued that even the said judgment and its true import have not been
considered by the State Information Commission, Haryana, while
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considering the second statutory appeal filed by the petitioner. Learned
counsel for the petitioner has further placed reliance upon a judgment
dated 16.08.2023 passed by this Court in CWP-17672-2023 titled as
"Rajwinder Singh Vs. State of Punjab and others", in which, the
authorities have been specifically directed to pass speaking orders and
detailed directions have also been given with respect to all the necessary
points which are required to be noted at the time of adjudicating cases
under the Act of 2005. It is submitted that the impugned order is also in
violation of the said judgment. Learned counsel for the petitioner has
prayed that the impugned order dated 14.02.2023 be set aside and the
State Information Commission, Haryana, be directed to reconsider the
matter after taking into consideration the judgment passed by the Hon'ble
Supreme Court in the case of Central Public Information Officer,
Supreme Court of India (Supra), the judgment passed by this Court in
the case of Rajwinder Singh (Supra) and also the judgment dated
16.05.2018 (Annexure P-18) passed by the Central Information
Commission, and pass a fresh order after granting due opportunity of
hearing to the petitioner/his representatives.
6. Learned State Counsel has submitted that the State
Information Commission, Haryana would decide the matter afresh after
taking into consideration the judgment passed by the Hon'ble Supreme
Court in the case of Central Public Information Officer, Supreme Court
of India (Supra), the judgment passed by this Court in the case of
Rajwinder Singh (Supra) and also the judgment dated 16.05.2018
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(Annexure P-18) passed by the Central Information Commission.
7. This Court has heard learned counsel for the parties and has
perused the paper book.
8. A perusal of Annexure P-11 (at page 52 of the paper book)
which is the second statutory appeal filed by the petitioner before the
State Information Commissioner would show that the petitioner had made
a specific reference in his grounds of appeal to the judgment dated
16.05.2018 (Annexure P-18) passed by the Central Information
Commission. Relevant portion of para 3 of the said grounds of appeal is
reproduced hereinbelow:-
"3. Brief facts leading to the Appeal:-
(1) The SPIO, LUVAS University, Hisar cannot deny the
information under section 8 (1) (j) of the RTI Act, 2005 as
the information sought by the Applicant would serve a larger
Public Interest and Public document.
Further, Central Information Commission vide
Judgment No.CIC/Posts/A/2018/105570 has held that:
"6" A certificate issued by authority, which is an essential
pre-requisite to claim benefits/concessions prescribed
under social welfare legislations cannot become a private
or personal document of the holder. It has to be a public
document under Section 74 of Evidence Act, which says:
74. Public documents. The following documents are public
documents:-
(1) Documents forming the acts, or records of the acts--
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of
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any part of India or of the Commonwealth, or of a foreign
country; of any part of India or of the Commonwealth, or of
a foreign country:"
(2) Public records kept in any State of private documents.
"7"The certificate issued by public authority to a candidate,
who became public servant or beneficiary of public scheme
based on the certificate of disability, which is submitted to
and held by that public authority that appointed him or gave
benefit from the public exchequer to him, could be neither
the 'private' nor 'personal' nor 'third party
information/document, but a public document as per Section
74 clause (iii). This document is accessible under Section
76 of Evidence Act, which says:-
76. Certified copies of public documents.--Every public
officer having the custody of a public document, which any
person has a right to inspect, shall give that person on
demand a copy of it on payment of the legal fees therefore,
together with a certificate written at the foot of such copy
that it is a true copy of such document or part thereof, as the
case may be, and such certificate shall be dated and
subscribed by such officer with his name and his official title,
and shall be sealed, whenever such officer is authorized by
law to make use of a seal; and such copies so certified shall
be called certified copies.--Every public officer having the
custody of a public document, which any person has a right
to inspect, shall give that person on demand a copy of it on
payment of the legal fees therefore, together with a
certificate written at the foot of such copy that it is a true
copy of such document or part thereof, as the case may be,
and such certificate shall be dated and subscribed by such
officer with his name and his official title, and shall be
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sealed, whenever such officer is authorized by law to make
use of a seal; and such copies so certified shall be called
certified copies." Explanation.--Any officer who, by the
ordinary course of official duty, is authorized to deliver such
copies, shall be deemed to have the custody of such
documents within the meaning of this section."
Hence the desired information sought by the
Applicant cannot be denied under either Section 8(1)(j) or
Section 11(1) of RTI Act.
(ii) The SPIO, LUVAS, Hisar cannot deny the certified copy
of Verification report of Disability Certificate of selected
Person with Disabilities candidates as any citizen has a right
to see and verify the authenticity of disability certificate for
the purpose of transparency in the recruitment.
Further it has been held by the Central Information
Commission vide Judgment No.CIC/Posts/A/2018/105570
that:-
"9" Assuming disability certificate is a personal document,
the CPIO should have examined whether its disclosure
would cause an unwarranted invasion of his privacy, does
this disability information relates to public activity because
it is concerned with public benefits being offered by the
Government at the cost of the public exchequer, etc., as per
Section 8(1)(j). Affirmative action, welfare measures and
other benefits for disabled are important social welfare
activities that promote public interest. To ensure benefits
reach the genuine persons, verification of the document of
disability certificate is essential and its verification is
equally necessary. This transparency will serve as a method
to prevent corruption. Either competitor or any citizen has
a right to see and verify the genuineness of disability
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certificate"
9. A perusal of the judgment dated 16.05.2018 (Annexure P-18)
would show that the Central Information Commission had, after taking
into consideration the provisions of the Indian Evidence Act more so,
Sections 74 and 76 and also Section 8(1)(j) or Section 11(1) of the Act of
2005, observed that in case the Disability Certificate is to be treated as a
personal document, then also the authorities have to further examine
whether its disclosure would cause an unwarranted invasion of the
privacy of the third party and that as to whether the disability information
relates to public activity or not. It was further observed that either the
competitor or any citizen has a right to see and verify the genuineness of
the Disability Certificate so as to ensure that benefit of disability is
reaching genuine persons and the same would also serve transparency as
a method to prevent corruption.
10. The abovesaid judgment has not been considered in the order
dated 14.02.2023 (Annexure P-17) passed by the State Information
Commission, Haryana in spite of the same having been mentioned in the
grounds of appeal and also being relevant with respect to the issue at
hand. Primary reference in the said order dated 14.02.2023 has been
made to the letter issued by the Chief Secretary to Government of
Haryana dated 05.01.2021 which is based upon the judgment passed by
the Hon'ble Supreme Court in the case of "Central Public Information
Officer, Supreme Court of India" (Supra). Learned counsel for the
petitioner has highlighted paragraphs 60 and 61 of the said judgment
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which are reproduced hereinbelow:-
"71. In Arvind Kejriwal v. Central Public Information
Officer and Another, AIR 2012 Delhi 29, the Delhi High
Court had examined and interpreted Section 11 of the RTI
Act in the following manner:
"12. Section 11(1), (2), (3) and (4) are the procedural
provisions which have to be complied with by the
PIO/appellant authority, when they are required to apply the
said test and give a finding whether information should be
disclosed or not disclosed. If the said aspect is kept in mind,
we feel there would be no difficulty in interpreting Section
11(1) and the so called difficulties or impartibility as
pointed out by the appellant will evaporate and lose
significance. This will be also in consonance with the
primary rule of interpretation that the legislative intent is to
be gathered from language employed in a statute which is
normally the determining factor. The presumption is that the
legislature has stated what it intended to state and has made
no mistake. (See Prakash Nath Khanna v. CIT, (2004) 9
SCC 686; and several judgments of Supreme Court cited in
B. Premanand and Ors. v. Mohan Koikal and Ors.
13. Read in this manner, what is stipulated by Section 11(1)
is that when an information seeker files an application which
relates to or has been supplied by third party, the PIO has to
examine whether the said information is treated as
confidential or can be treated as confidential by the third
party. If the answer is in the possible sphere of affirmative
or "maybe yes", then the procedure prescribed in Section
11 has to be followed for determining whether the larger
public interest requires such disclosure. When information
per se or ex facie cannot be regarded as confidential, then
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the procedure under Section 11 is not to be followed. All
information relating to or furnished by a third party need
not be confidential for various reasons including the
factum that it is already in public domain or in circulation,
right of third party is not affected or by law 38 AIR 2012
Delhi 29 is required to be disclosed etc. The aforesaid
interpretation takes care of the difficulties visualised by the
appellant like marks obtained in an examination, list of
BPL families, etc. In such cases, normally plea of privacy
or confidentiality does not arise as the said list has either
been made public, available in the public domain or has
been already circulated to various third parties. On the
other hand, in case the word "or" is read as "and", it may
lead to difficulties and problems, including invasion of right
of privacy/confidentiality of a third party. For example, a
public authority may have in its records, medical reports or
prescriptions relating to third person but which have not
been supplied by the third person. If the interpretation given
by the appellant is accepted then such information can be
disclosed to the information seeker without following the
procedure prescribed in Section 11(1) as the information
was not furnished or supplied by the third person. Such
examples can be multiplied. Furthermore, the difficulties and
anomalies pointed out can even arise when the word "or" is
read as "and" in cases where the information is furnished by
the third party. For example, for being enrolled as a BPL
family, information may have been furnished by the third
party who is in the list of BPL families. Therefore, the
reasonable and proper manner of interpreting Section 11(1)
is to keep in mind the test stipulated by the proviso. It has to
be examined whether information can be treated and
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regarded as being of confidential nature, if it relates to a
third party or has been furnished by a third party. Read in
this manner, when information relates to a third party and
can be prima facie regarded and treated as confidential, the
procedure under Section 11(1) must be followed. Similarly,
in case information has been provided by the third party and
has been prima facie treated by the said third party as
confidential, again the procedure prescribed under Section
11(1) has to be followed.
xx xx xx
16. Thus, Section 11(1) postulates two circumstances when
the procedure has to be followed. Firstly when the
information relates to a third party and can be prima facie
regarded as confidential as it affects the right of privacy of
the third party. The second situation is when information is
provided and given by a third party to a public authority and
prima facie the third party who has provided information has
treated and regarded the said information as confidential.
The procedure given in Section 11(1) applies to both cases."
72. We would clarify that Section 11(1) is not merely
procedural but also a substantive provision which applies
when the PIO intends to disclose information that relates to
or has been supplied by a third party and has been treated as
confidential by that third party. It requires the PIO to issue
notice to the third party who may make submission in writing
or orally, which submission has to be kept in view while
taking a decision. Proviso to Section 11(1) applies in all
cases except trade or commercial secrets protected by law.
Pertinently, information including trade secrets, intellectual
property rights, etc. are governed by clause (d) to sub-
section (1) of Section 8 and Section 9 of the RTI Act. In all
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other cases where the information relates to or has been
supplied by the third party and treated as confidential by
that third party, disclosure in terms of the proviso may be
allowed where the public interest in disclosure outweighs in
importance any possible harm or injury to the interest of
the third party. Confidentiality is protected and preserved in
law because the public interest requires such protection. It
helps and promotes free communication without fear of
retaliation. However, public interest in protecting
confidentiality is subject to three well-known exceptions.
The first exception being a public interest in the disclosure
of iniquity for there cannot be any loss of confidentiality
involving a wrongdoing. Secondly, there cannot be any
public interest when the public has been misled. Thirdly,
the principle of confidentiality does not apply when the
disclosure relates to matters of public concern, which
expression is vastly different from news value or news to
satiate public curiosity. Public concern relates to matters
which are an integral part of free speech and expression
and entitlement of everyone to truth and fair comment
about it. There are certain circumstances where the public
interest in maintaining confidentiality may be outweighed
by the public interest in disclosure and, thus, in common
law, it may not be treated by the courts as confidential
information. These aspects would be relevant under the
proviso to Section 11(1) of the RTI Act."
11. A perusal of the above-reproduced paragraphs would show
that in para 61, it has been observed that even in case the information is
treated as confidential by the third party then also, the authority would be
required to issue notice to the third party and after hearing them, the
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authority is required to consider as to whether the public interest in
disclosure outweighs any possible harm or injury to the interest of the
third party. It was further observed that the public interest in protecting
confidentiality is subject to three well known exceptions; first being
public interest in the disclosure of iniquity for there cannot be any loss of
confidentiality involving a wrongdoing, second being when the public
has been misled and the third being when the disclosure relates to matters
of public concern. In para 60, the Hon'ble Supreme Court has taken into
consideration the judgment passed in the case of "Arvind Kejriwal v.
Central Public Information Officer and another", reported as AIR 2012
Delhi 29, wherein the Delhi High Court had noted that even as per
Section 11(1) of the Act of 2005, where the information has been
supplied by the third party, the authority has to first examine whether the
said information is treated as confidential or can be treated as confidential
by the third party and in case the answer is in affirmative then the
procedure under Section 11 of the Act of 2005 has to be followed and
then the second issue as to whether larger public interest requires
disclosure of such information or not is to be considered by the authority.
It was further observed that when the information per se or ex facie
cannot be regarded as confidential then the procedure under Section 11 of
the Act of 2005 is not required to be followed. It is the argument of
learned counsel for the petitioner that in the light of the law laid down in
the abovesaid judgment as well as provisions of Section 8(1)(j) and
Section 11 of the Act of 2005, it was incumbent upon the State
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Information Commission, Haryana to have first considered as to whether
the information sought was to be treated as confidential by the third party
or not and in case the authority came to the conclusion that the same is to
be treated as confidential by third party then the procedure as mandated
under Section 11 of the Act of 2005 was required to be followed and
notice was required to be issued to the third party and after hearing all
parties concerned, it was incumbent upon the authority to then consider
whether public interest in case of disclosure of such information
outweighs any possible harm or injury to the interest of the third party.
Learned counsel for the petitioner had pointed out that as per the
provision of Section 19(4) of the Act of 2005 even in case the State
Information Commission, Haryana, comes to the conclusion that notice is
required to be issued then the State Information Commission, Haryana,
itself can issue notice to the said third party and on the said aspect alone,
the matter is not required to be remanded by the State Information
Commission. It is further the case of the petitioner that in case, the
authority comes to the conclusion that the information could not be
treated as confidential by the third party then the information was
required to be supplied without following the procedure under Section 11
of the Act of 2005 and without issuing any notice to the third party.
12. A perusal of the order dated 14.02.2023 would show that the
said aspects, the relevant provisions of the Act of 2005 as well as the
relevant law on the issue at hand, have not been considered while passing
the order dated 14.02.2023 and thus, keeping in view the abovesaid facts
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and circumstances, the present Civil Writ Petition is partly allowed and
the order dated 14.02.2023 (Annexure P-17) is set aside with a direction
to the State Information Commission, Haryana to decide the second
statutory appeal filed by the petitioner i.e., Appeal Case No.4901 of 2022
titled as "Shish Pal Vs. The State Public Information Officer and
another" afresh after taking into consideration the judgment passed by
the Hon'ble Supreme Court in the case of Central Public Information
Officer, Supreme Court of India (Supra), the judgment passed by this
Court in the case of Rajwinder Singh (Supra) and the judgment dated
16.05.2018 (Annexure P-18) passed by the Central Information
Commission, in accordance with law after hearing all the parties
concerned, as expeditiously as possible, preferably within a period of four
months from the date the petitioner/his representatives and the respondent
authorities appear before the State Information Commission, Haryana.
The parties are directed to appear before the State Information
Commission, Haryana on 14.09.2023.
02.09.2023 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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