Date: 05-04-2015 By email
To,
Chief Information Commissioner
Central Information Commission,
New Delhi.
Email: secy-cic@nic.in
Hon’ble Sir,
Subject: Decision No.: CIC/BS/A/2014/000831/7283
dated 26-03-2015 -Review
As part of social audit and citizen participation in
governance, I happened to peruse captioned decision.
01. Denial of educational certificates of a govt. employee has been upheld vide above
decision based on following reasons:
A.
There is no larger public interest.
B.
Judgement dated 03-10-2012 of Hon’ble Supreme Court in Special Leave Petition
(Civil) No. 27734 of 2012-Girish Ramchandra Deshpande Versus Central Information
Commr & Ors.
C.
Judgement dated 13-12-2012 of Hon’ble Supreme Court in Civil Appeal no. 9052 of
2012 -Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizvi & anrs
02. I
request review of this decision by larger bench based on following averment:
A.
There is no larger public interest:
I quote as under from judgement dated
04-03-2013 of Punjab & Haryana High Court in CWP No.4239 of 2013 (O&M)
- Vijay Dheer v/s State Information Commission
“…….A part of information/documents
sought by the complainant, relates to the mode of appointment/promotion of a
person on a public post, therefore, Information / documents to that extent fall
under the domain of larger public interest. The documents on the basis of
which a person has sought an appointment in a public office becomes the
documents of larger public interest." [emphasis added]
This judgement is delivered after two judgements quoted
at B and C supra. Thus captioned decision of CIC is in defiance of interpretation
of Hon’ble High Court in the matter of documents supplied to recruiting
authority and element of larger public interest.
In case of
certificates based on which govt job is given, right to privacy has to give way
to larger public interest.
B.
Judgement dated 03-10-2012 of Hon’ble Supreme Court:
This
judgement has been as usual over-stretched. Hon’ble Court has decided that
following information is personal information of employee:
Copies of all memos issued to the third respondent, show
cause notices and orders of censure/punishment, income tax returns, property
details, borrowings, investment etc and information relating to performance of
duties by employee. Even this has to be disclosed if there is larger public
interest.
Certificates or documents submitted to get employment in
Govt is not mentioned in above judgement nor such certificates relate to
performance of employee. In addition, in judgement mentioned at A, it is
clear that disclosure of such certificates is in larger public interest.
C. Judgement dated 13-12-2012 of Hon’ble Supreme Court:
A paragraph is selectively quoted in CIC decision to
justify denial. This judgement relates to names and other details of
interviewers/examiners and no where educational certificates are discussed in
it. It relates to section 8.1.g. Even if fiduciary relationship is considered
to be valid, for the sake of argument, then also larger public interest will
come into play against section 8.1.e. Fiduciary will prevail only till
appointment and not thereafter, once candidate joins the job.
Education or other certificates which are basis of
eligibility for recruitment cannot be covered by “certain matters” [as stated
in paragraph quoted in captioned decision from judgement dated 13-12-2012] at
any stretch of imagination.
Thus this is a case of over stretching, misinterpreting and
quoting irrelevant judgement to uphold denial.
03. Judgements at B and C supra of Hon’ble Supreme Court
cannot be liberally interpreted or overstretched, since these judgements lay
down clarity on restrictions on rights of citizens. These judgements need to
be interpreted strictly. I humbly quote Hon’ble Madras High Court [Madurai
Bench] from judgement dated 06-07-2010 in Karanthai Tamil Sangam v. R.
Sivaprakasam and another, W.P.(MD) No. 5729 of 2008 - (2011(1) ID 31)] as
under:
“23.
The RTI Act has also provided a remedy for facilitating the exercise of the right to
information and the reason for the remedy is also indicated in the Preamble to the Act. So going by the direction in Heydon’s case (1584) 3 C. Rep
7a followed by the Supreme Court
in Bengal Immunity Co. Ltd v. State of Bihar
(1955) 2 SCR 603 such an Act must
receive a purposive interpretation to further the purpose of the Act. So any interpretation which frustrates the purpose of RTI Act must be eschewed.
Following the said well known canon of
construction, this Court interprets the
expression ‘public authority’ u/s. 2(h) (d)(i) liberally, so that financed, directly
or indirectly, by the Government, come within
the purview of the RTI Act. In coming
to the conclusion, this Court reminds
itself of the Preamble to the RTI Act which necessitates a construction which will hopefully cleanse
our democratic polity of the corrosive effect of corruption and infuse transparency in its activities. “
[emphasis added]
04. Unfortunately since 2012, an attempt is being made
by CPIOs, FAAs and Ld. ICs to hide all information about govt employees from
recruitment till retirement/termination, thereby facilitating corruption, fraud
through fake certificates to grab govt jobs at the cost of honest candidates,
by misinterpreting, misquoting or over-stretching judgements of Courts. It
denies public scrutiny of papers and process of recruitment in govt jobs which
are funded by public money. Quality and quantity of scrutiny, if any, done by
govt agencies are well known to public in India. Such decisions will
embolden dishonest youths to indulge into fake certificates to snatch away govt
jobs from honest candidates. Public cannot expect good and honest governance
from govt servants who have joined by resorting to corrupt practice of
submitting fake certificates. Thus larger public interest and societal good are
butchered in captioned decision.
05. The
captioned decision violates following judgement which is delivered after
judgements of Hon’ble Supreme Court as stated at B and C supra:
Judgement dated 23-04-2013 of HIGH COURT OF UTTARAKHAND in Writ Petition No.1814 of 2006
(M/S) -Uttaranchal Public Service Commission Vs. CIC.
It also punctures following CIC’s own
decisions in violation of principle of
precedence as mandated in judgement dated 01-06-2012 of Hon’ble HIGH COURT OF
DELHI in W.P.(C) 11271/2009 -REGISTRAR
OF COMPANIES & ORS v/s DHARMENDRA KUMAR GARG & ANR:
CIC/SS/A/2012/001370 dated 29-04-2013
CIC/SS/A/2013/000829 dated 15-10- 2013
CIC/SM/A/2013/000218
dated 18-06-2013 of
Chief Information Commissioner
CIC/SM/A/2013/000284
dated 13-06-2013 of Chief Information Commissioner
These
decisions are made after date of judgments of Apex Court quoted at B and C.
06. No one will ever believe or infer that Hon’ble Courts
intended to facilitate entry into govt jobs based on fake certificates. The
problem is with interpretation and applicability of judgements by CPIO, FAA and
Ld ICs. Degree certificates are given in open convocations and mark- sheets
are put on websites of examining bodies. Thus they are not private information
any more.
07. This information cannot be denied to Parliament or State Assembly.
08. There is every possibility that the appellant might
be having some information from reliable sources about fraud in educational
certificates of the concerned employee. Before proceeding further by lodging written
complaint etc, he would have wanted to have documentary evidence. The decision
has frustrated exposure of fraud through fake documents if any.
09. Following links will reveal how rampant is fake
certificate business in India, in public and private sectors:
This is tip of the iceberg. This menace cannot be left alone
to govt machinery. Public scrutiny should be encouraged through transparency
and hence ICs should properly interpret judgements in the face of ground
realities. Fear of being exposed will only contain cancer of fake certificates
for getting govt jobs.
10. Disclosure would not have harmed govt employee
concerned, if certificates were genuine. In case if certificates turn out to be
fake, then law has to definitely take its own course in larger public interest
and that of honest candidates.
11. My averment for disclosure is supported by section
4.1.c which necessitates publishing of all relevant facts while formulating
important policies or announcing decisions which affect public. Results
of recruitment are decisions which affect public, as quality of recruited govt
servants affects general public.
12. Thus captioned decision suffers error on the face of
it and needs review in larger public interest, good governance, quality of
employees being recruited and letter and spirit of RTI as stated in preamble,
more so when recruitment scams [involving even Governor [ MP State], Chief Minister [Haryana] and
their relatives are surfacing and more are waiting to be out. The order is
illegal on face of it. Copy of above decision is enclosed for ready reference.
13. Similar order No.CIC/BS/A/2014/000332+000344+000345+000349/6804 dated 20-01-2015 [copy enclosed] was passed
denying educational certificates of a govt employee. This also needs review by
larger bench.
14. I have locus standi for review, since govt servants
who are allowed to join on the basis of fake certificates or through corruption
affect quality of governance, which in turn affects every citizen, including
me.
15. Surprisingly, each and every currency note or instruments
like cheques, demand drafts, guarantees and LCs in banks are subjected to
double and cross scrutiny to confirm genuineness, while captioned decision excludes
public scrutiny of certificates submitted for jobs which may cost crores of
rupees to exchequer, over service period of employees.
Yours
faithfully,
J.
P. Shah
Encls:
a/a
Copies
to:
1.
Hon’ble Shri Basant Seth, Information Commissioner, CIC, New Delhi
Email: b.seth@nic.in --Kindly cogitate for future
decisions.
2.
Chief Vigilance Commissioner, Central Vigilance Commission, New Delhi
Email :
cenvigil@nic.in
----with
a request to intervene in review, since such orders would encourage corruption in getting govt jobs on
the basis of fake certificates, which in turn will affect quality of
governance.
3.
Director RTI, DoPT, Govt of India. Email: dirrti-dopt@nic.in
– this
has reference to zero tolerance policy of Central Govt against corruption and
ensuring good governance to citizens.
4.
Secretary, Department of Administrative Reforms & Public Grievances, Govt
of India
United Kingdom Freedom of Information Act 2000 section 40. Personal information. 40.—(1) Any information to which a request for information relates is information. exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if—(a) it constitutes personal data which do not fall within subsection (1), and (b) either the first or the second condition below is satisfied. (3) The first condition is— (a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data 1998 c. 29. Protection Act 1998, that the disclosure of the information to a member of the public otherwise than under this Act would contravene— (i) any of the data protection principles, or (ii) section 10 of that Act (right to prevent processing likely to cause damage or distress), and (b) in any other case, that the disclosure of the information to a member of the public otherwise than under this Act would
ReplyDeletecontravene any of the data protection principles if the exemptions in section 33A(1) of the Data Protection Act 1998 (which relate to manual data held by public authorities) were disregarded. “personal data” means data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual; section 2. In this Act “sensitive personal data” means personal data consisting l of information as to— .
(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union (within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
यदि सरकारी कर्मचारी के वह दस्तावेज जिनके आधार पर नियुक्ति हुई है वह कैसे निजी सूचना हो सकती है निम्न लिखित माननीय सर्वोच्च न्यायालय के निम्न निर्णयों का आशय यही है और यह बात भी की ईमानदारी किसी की ब्पोऔती नहीं होती है उच्च अधिकारी बेईमान/ईमानदार हो सकता है और एक मजदूर भी बेईमान/ईमानदार हो सकता है हो सकता है देश में उच्च पदस्थ कुछ अनेकों लोगो के पास नकली डिग्री हो :-
ReplyDeleteDistrict Collector & Chairman, Vizianagaram Social Welfare Residential School Society,
Vizianagaram & Anr. Vs. M. Tripura Sundari Devi (1990) 3 SCC 655; 6. It must further be
realised by all concerned that when an advertisement mentions a particular qualification and
an appointment is made in disregard of the same, it is not a matter only between the
appointing authority and the appointee concerned. The aggrieved are all those who had similar
or even better qualifications than the appointee or appointees but who had applied for the
post because they did not possess the qualifications mentioned in the advertisement. It
amounts to a fraud on public to appoint persons with inferior qualifications in such
circumstances unless it is clearly stated that the qualifications are relaxable. No court should
be a party to the perpetuation of the fraudulent practice. We are afraid that the Tribunal lost
sight of this fact. Union of India & Ors. Vs. M. Bhaskaran (1995) Suppl. 4 SCC 100; Vice
Chairman, Kendriya Vidyalaya Sangathan & Anr. Vs. Girdharilal Yadav (2004) 6 SCC 325;
State of Maharashtra v. Ravi Prakash Babulalsing Parmar (2007) 1 SCC 80; Himadri
Chemicals Industries Ltd. Vs. Coal Tar Refining Company AIR 2007 SC 2798; and Mohammed
Ibrahim & Ors. Vs. State of Bihar & Anr. (2009) 8 SCC 751).
25. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the
most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a
design to secure something, which is otherwise not due. The expression “fraud” involves two
elements, deceit and injury to the person deceived. It is a cheating intended to get an
क्या किसी सरकारी कर्मचारी का डॉक्यूमेंट जिसके आधार पे नियुक्ति हुई है वो रति से मांग सकते है
ReplyDeleteCan I seen educational documents of a public servant?
ReplyDelete