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CIC Selection: How PMO and DOPT duped 3 RTI Applicants

Central Information Commissioners are selected arbitrarily. You need proof? C J Karira — a fellow petitioner in our PIL filed in Delhi High Court this week — emailed me some classic second-appeal orders passed by Chief CIC Wajahat. Three different RTI applicants asked: “Yes, we understand about Prime Minister’s Recommendation Committee and the selection criteria outlined in RTI Act sec. 12(5) and 12(6), but tell us: By what process did biodatas of current CICs land up before the committee? On what grounds were the present CICs selected? And who were the candidates rejected by this committee? Or rejected by DOPT, which puts up candidates to this committee?”

In a nutshell, the reply of PMO and DOPT was: “We appoint CICs as per Section 12 of RTI Act. That is the answer to all your questions. Now mind your own business.” Three RTI applicants had three approaches. DOPT and PMO found many ways to evade them:

One asked pointwise questions, and was told in reply to different questions: “Refer to RTI Section 12, and bugger off!” Wajahat politely concurred with this reply.

One applied to PMO, and was directed to DOPT.

Another asked DOPT, and was told that DOPT could not possibly have the information; maybe PMO had the information. In an elaborately reasoned order, Wajahat upheld this dubious claim.

One asked for a true copy of files, and was told to take inspection.

Another went for inspection and saw PMO and DOPT perform three different tricks:

· shuttled the applicant between PMO and DOPT

· showed partial or no meaningful information.

· When she appealed, she was told that the information was classified as confidential, disclosing it was not in public interest, and it was denied under Official Secrets Act 1923 and also Manual of Departmental Security Instructions.

Turning a blind eye to all these self-contradictions, Wajahat opined that it was the discretion of PMO and DOPT whether or not to give this information.

Want the case-by-case details? Read this:

CASE NO. 1

Activist C J Karira, who happened to be present as an observer on 22-12-2008, vividly describes the proceedings: “The hearing lasted for about 22 minutes. The PIO did not utter one single word. She only used facial and body ex-pressions: smile, nod, shaking of head, etc. All the talking was done by the Hon’ble CCIC himself who put up a very spirited defence on behalf of the CPIO.”

Below are highlights from Wajahat’s order dismissing Appeal No. CIC/WB/A/2007/01066 dated 14-11-2007.

[To read the full order, go to http://cic.gov.in/CIC-Orders/WB-22122008-01.pdf ]

By an application of 21-4-07, J S Bhattacharjee, a Delhi resident, asked DOPT:

Question: Government’s policy/ principle guidelines etc for the collection of names of expected CIC to be sent to the Recommendation Committee for selection.

The answer was: Clause (5) and (6) of Section 12 of RTI Act prescribe the conditions for appointment to the posts of Chief Information Commissioner (CIC) and Central Information Commissioners (IC). There is no other laid down policy/principle/ guidelines on the subject.

Question: Whether names of CIC are collected on ‘pick & choose’ basis or on the basis of the recommendations of Ministers

Answer: Persons for the post of CIC are considered on the basis of conditions contained in above referred provisions of the Act. No other information in the matter is available.

Question: Whether there was a system of “Search Committee” for collecting probable names and how the five names for CIC

Answer: As per available information there was no search Committee to collect probable names. No further information in the matter is available.

Question: How the five names for CIC have been finally selected by the Government leaving hundreds of qualified officials

Answer: The selections were made by the Selection Committee. No other information is available in the matter.

Question: Whether the post of CIC is meant only for retired official

Answer: No.

Question: Whether the present CIC had applied for the post and if so, the source of his information of vacancy

Answer: Information in this regard is not available.

Question: Whether government advertised for the post of CIC and when? Answer: The post was not advertised.

Question: Government policy/ principle for the appointment of only five CIC/ICs and not the 10 CIC(s) as per provision of the Act

Answer: Section 12 (2) of the RTI Act, 2005 provides that the Central Government may appoint such number of Central Information Commissioner not exceeding ten, as may be deemed necessary. The Government had appointed four Information Commissioners in addition to the Chief Information Commissioner on the basis of the need felt by the Government.

Question: In total, how many candidates were in the race for the post of CIC/ICs. Names of all candidates and their present designation and address be sent to me for my information

Answer: the information is not available.

Question: Whether non selected candidates for the post of CIC have been duly intimated with the cause for their non selection

Answer: In view of the position given in respect of point No. 9 above, question does not arise.

Question: Certified copies of Government decision regarding the non-appointment of 5 CICs

Answer: No such documents are available.

Question: Certified copies of Recommendation Committee “file notings” for the final selection of 5 CICs

Answer: the appellant was requested by the CPIO to deposit an amount of Rs. 2/- by way of cash or bankers’ cheque of Indian Postal Order in favour of Account Officer, Department of Personnel and Training as required under the provisions of RTI (Regulation of Fee and Cost) Rules, 2005. The appellant has not deposited the requisite amount so far.

How did Wajahat uphold this? His order, dictated soon after the hearing, reasoned thus: “Appellant Shri Bhattacharjee contended that since the Committee appointing or recommending appointment of Information Commissioners to the President was a ‘Selection’ Committee of the DoPT as was clear from the answer received by him from 1st appellate authority to Q. 4, it was governed by the guidelines issued by the DoPT in regard to the procedure to be followed by a Selection Committee.

“DECISION NOTICE

“The Committee set up u/s 12 (3) of the RTI Act cannot be deemed to be a Departmental Committee or Departmental Selection Committee. This is a Committee set up through the RTI Act 2005 not by Government but, through the very enactment of this law, by Parliament in order to make recommendations to the President of India on appointment of Chief Information Commissioner and Information Commissioners of the Central Information Commission. The response of the DoPT in this regard is correct in that the Department is only a servicing instrument for this Committee. The reference to the Committee as a Selection Committee by Shri K.G. Verma, Director in disposing of the first appeal is not to place this Committee in the category of a Departmental Selection Committee but only with reference to its purpose, which is indeed the selection of individuals it considers to be of eminence, which it recommends to the President of India for appointment as Chief Information Commissioner /Information Commissioner.

“Seen in this context it is quite conceivable that the DoPT, which is the only the servicing organisation, maintains no records of deliberations of this Committee, which the group is not required to maintain if they do in fact exist, other than its recommendations, which CPIO Ms. Zoya agreed before us is a document held by the DoPT. In light of the above it is clear that all information sought by appellant has, in fact, been provided within the definition of Section 2 (j), to the extent that that information is held or under the control of the public authority, in this case the DOPT.

“If, as pleaded by appellant before us, Shri Bhattacharjee would wish to inspect the letter of recommendation received from the Committee by the Department as submitted to the President of India, this will have to be sought through an application for the purpose made u/s 6 (1) of the RTI Act to the CPIO in the DoPT, which appellant is free to do. The present appeal being without substance is hereby dismissed.”

CASE NO. 2

Ms Vishaish Uppal of Gulmohar Park applied to Kamal Dayani, CPIO, Prime Minister’s Office on 22.11.2005 seeking to inspect files, papers etc. relating to the appointment of the Chief Information Commissioner and Information Commissioners. She subsequently received a copy of a letter from Kamal Dayani, CPIO indicating that the case had been transferred to DOPT Director Hari Kumar. In response Hari Kumar, Director in the Dept. of Personnel & Training invited Ms. Uppal to inspect the records.

However, on 13.1.06 Vishaish Uppal reverted to CPIO Kamal Dayani in PMO stating that she had been shown only one file and informed by PIO Hari Kumar that files pertaining to the entire selection process are with PMO and not with DoPT.

She, therefore, asked that she may be allowed to inspect the relevant files. In response Kamal Dayani held that it was not possible to allow inspection of the relevant records in PMO. Appellate Authority Jawed Usmani, Jt. Secy. in the PM’s Office, dismissed the appeal made to the Appellate Authority on 22.2.06. The Appellate Authority had held that the papers being classified confidential and no case having been made out for making any exception under sec. 8(2) of the Act, Vishaish Uppal could not be allowed to inspect the documents.

In his order, Wajahat went into a very lengthy legal reasoning, but in the end, left it to the public authority i.e. PMO, to decide. The last part of his reasoning went like this: “The Appellate Authority, therefore, cannot withhold this information either on the ground that the information is classified as “confidential” under the Official Secrets Act or under Section 8(2) alone. However, Sec 22 as described above only overrides anything inconsistent with the Right to Information Act, 2005. The Official Secrets Act, 1923 stands neither rescinded nor abrogated. While a public authority may only withhold such information as could be brought within any of the clauses of Section 8(1), it is open to that authority to classify any of these items of information as “Confidential”, thus limiting the discretion of any other authority in respect to these.

“In this particular case, denial of information is under the orders of the Public Authority and it is open to the Public Authority to deny the information provided such denial can be justified under Section 8(1) of the Act. The Prime Minister’s Office will, therefore, re-examine the matter in view of the observations made above within fifteen days of the date of issue of the Decision Notice and it may disclose the information to the appellant, unless of course, the disclosure of the information can be denied or withheld under any of the provisions of the RTI Act, 2005. The Public Authority shall take an appropriate reasoned decision.”

[To read the full order, go to http://cic.gov.in/CIC-Orders/Decision_22092006_2.pdf ]

CASE NO. 3

Shri Milap Choraria of Rohini, Delhi made the following application to the CPIO, PMO on 11-9-06:

“I do hope that the selection of Prof. M.M. Ansari, for the appointment of the Office of Commissioner of CIC, was certainly in pursuance to and compliance of sub-Section (5) of Section 12 of the RTI Act 2005 and in conformity with aims and objectives as enumerated in the aforesaid Act.

However, under Section 6 of the RTI Act, I wanted certified copies of the file notings of the entire file with all other related documents referred in the file notings from the respective file relating to the selection process adopted through which the Appointment of Prof. M.M. Ansari, for the office of the Commissioner of the CIC was concluded.”

This was transferred to DOPT on 14-9-06. PIO P K Misra, Under Secretary, in a letter of 12-10-06 responded: “I am to say that the term “information” as defined in Section 2 (f) of the Act excludes `file noting’. You are advised to inspect the file and the related documents other than the file noting and, if required, obtain the copies of specific documents by paying the requisite fee.”

In his order, Wajahat reasoned that file notings should also be shown. This decision of the Commission was duly communicated to the DOPT vide letter dated 26.2.2006 which was followed by a reminder on

27.3.2006 and 8.5.2006.

Milap Choraria moved another application on 29.1.’06, asking for fair and true copy of all the documents from the respective file relating to appointment of Prof M M Ansari in the CIC. To this he received no reply.

In the end, did Wajahat direct PMO or DOPT to give him the info? No.

Wajahat literally copy-pasted the reasoning from Case no. 2: “In this particular case, denial of information is under the orders of the Public Authority and it is open to the Public Authority to deny the information provided such denial can be justified under Section 8(1) of the Act. The Prime Minister’s Office will, therefore, re-examine the matter in view of the observations made above within fifteen days of the date of issue of the Decision Notice and it may disclose the information to the appellant, unless of course, the disclosure of the information can be denied or withheld under any of the provisions of the RTI Act, 2005. The Public Authority shall take an appropriate reasoned decision.”

And then Wajahat said, “In light of the above CPIO DoPT may process the present application.”

[To read the full order, go to http://cic.gov.in/CIC-Orders/Decision_16042007_09.pdf ]

CONCLUSION: What the CCIC meant to say in all the above-mentioned three RTI Orders was: “We understand that CPIOs are denying information because PMO and DOPT are instructing them to do so. We leave it to the discretion of PMO and DOPT to do so; We are not about to tell our bosses what to do, and we are not penalizing the PIOs. RTI Act jaye bhaad mein, aur tum activist log bhi tel laganey jao!”

Warm Regards,

Krish

98215 88114

Posted in Right to Information.


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