Dated 13-11-2007

Name of the Complainant:
Sri Mrinal Ranjan Das
C.E PWD (Buildings), Chandmari, Assam, Guwahati-3

Name of the Public Authority/ SPIO:
PWD / Personnel Department.

The following was present:
1. Shri Jishnu Barua, IAS Commr & Secy Personnel (A)Dept 1st Appellate Authority
2. Shri Naresh Chandra Misra, Jt. Seey Personnel (A) Deptt,SPIO
3. Shri Mrinal Ranjan Das.

Brief of the case
Shri Mrinal Ranjan Das, Chief Engineer, PWD, building Assam, Guwahati submitted an appeal on 17-8-07 to this Commission for non-furnishing of complete information relating to the deliberation/ minutes for selection for the post of Secretary, PWD against the vacancy caused in 2006 and the particulars and gradings of ACRs for 2001, 2002, 2003, 2004 and 2005 of his and of Shri Mohan Chandra Boro, Chief Engineers of PWD, Assam at the time of selection for the post.

He submitted in his appeal petition that when he sought for the records relating to the particulars and gradings of ACRs in respect of Shri Mohan Chandra Boro and his own ftom the Deputy Secretary, Public Works Department, Govt. of Assam and from the Joint Secretary to the Govt. of Assam Personnel (A) Department who are the Public Information Officers in their respective Departments, the PIO of PWD informed him vide letter dated 23-7-07 that the ACRs/ dossiers of Shri Mrinal Ranjan Das and of Shri Mohan Chandra Boro for 2001,2002,2003,2004 and 2005 were sent to the Department of Personnel (A) Department Government of Assam for the purpose of selection for the post of Secretary, PWD and were available with the Personnel (A) Department. The Joint Secretary, Personnel (A) Department. Govt. of Assam furnished him a copy of the minutes of the meeting dated 22-06-07 for selection for the post of Secretary, PWD against the vacancy of the post of Secretary, PWD and informed him that as per section 8(1)(e) of the RTI Act, 2005 the particulars and grading of ACRs cannot be provided. Hence he (the appellant)submitted the appeal before the Commission with a request to direct the PIO of Personnel (A) Department. And the PIO of PWD to furnish the particulars and gradings of ACRs for 2001,2002,2003,2004 and 2005 in respect of these two officers.

On 21.8.07, that appeal petition was sent by the Secretary to the Commission to the Commissioner & Secretary Personnel Department. Government of Assam with a direction to him to treat it as the first appeal u/s 19(1) of the RTJ. Act and dispose it of within time stipulated in the Act as the Commission did not want to bye-pass the channels of appeal, without reasonable cause, provided under section 19 of the RTI Act.

On 30-10-07, a second appeal under section 19(3) of the Act was submitted before the Commission by the appellant stating that on 26-9-07, the 1st Appellant Authority, that is, the Commissioner and Secretary to the Govt. of Assam, Personnel (A) Department passed an order stating therein that the gradings of the ACR in respect of the aforesaid officers could not be provided u/s 8(d) and 8(e) of the RTT Act, 2005. In this petition, the appellant submitted that he was legally entitled to know the gradings of the ACRs because the entire selection process and minutes for promotion to the post of secretary, PWD was based on the said gradings of the relevant ACRs and being an incumbent for promotion to the post of Secretary, PWD Assam he had his fundamental right to know the gradings and as such the authority was legally bound to furnish the said gradings. He submitted that disclosure of the gradings would not adversely affect or harm the position of the third party i.e. Shri Mohan Chandra Boro and in-fact non-disclosure of the said gradings which was the main basis for selection to the post of Secretary, PWD would harm him. He also submitted that provisions of Section 8(1)(d) and 8(1)(e) of the RTI. Act, 2005 do not bar the authority from providing the gradings of the ACRs of Shri Mohan Chandra Boro.

Submission by the parties:
The appellant stated that in the hearing of the first appeal, he was not heard personally. He submitted before the Commission that non-disclosure of gradings would adversely harm him and he did not agree to the decision of the appellant authority that the disclosures are barred under per clause 8(1) (d) and 8(1) (e) of the RTI Act, 2005. He also stated that he would like to stick to the statements made in his second appeal before the Commission and that the withholding of the information relating to the gradings of his and of Shri Mohan Chandra Boro would harm his interest as he was a candidate for the post of Secretary, PWD and he was denied his due selection. He reiterated his stand that Sections 8(1) (d) and 8(1) (e) of the R TI Act are not applicable in this case. He prayed that the Commission be pleased to direct the authority to furnish him the gradings which he sought for by him.

The Commissioner & Secretary, Personnel stated that he had gone through the office memorandum no. 10/20/2006 IR issued by the Department of Personnel & Training of the Ministry of Personnel, Public Grievances & Pensions as well as the decision of the Central Information Commission in the case (Ms. Veena Sikri V s. Department of Personnel & Training and others) on the matter of disclosure of ACRs and had come to a decision in this particular case that disclosure of the ACR gradings would affect I harm the position of the third party i.e. of Shri M. C. Bora and accordingly exemption under Section 8(1) (d) and 8(1) (e) of the R.T.I Act could be legitimately invoked. He therefore rejected the appeal of Shri Das and duly communicated his decision to him.

Order of the Commission:
The Commission observed that the appeal was disposed of by the 1st Appellate Authority under section 18 (1) (b) & (c) of the Act which should have been under section 19 (1) of the Act. The Commission further observed that Section 8(1) (d) and 8(1) (e) of the RTI Act are not applicable in the present case.

These sections read as follows:

Section 8 (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen

(d) Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

From the reading of Section 8 (1) (d) it is clear that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of the third party is not to be disclosed. In this case, there is no case of commercial confidence, trade secrets or intellectual property involved and hence this clause is not applicable.

Likewise Section 8(1) (e) clearly indicates that information available to a person in his fiduciary relationship is not to be disclosed. Fiduciary relationship is a relationship involving trust especially with regard to the relationship between a trustee and a beneficiary. The relationship of an officer with superior officers who record/ review/ accept the gradings in ACR can not be termed as a relationship between a trustee and a beneficiary as the ACR of a particular officer is recorded, received and accepted in a purely administrative manner and the officer whose ACR is recorded can never be termed as a beneficiary and the Government as a trustee.

The Public Authority could have taken recourse to the exemption under section 8(1)(j) of the Act in respect of Annual Confidential Reports particularly with regard to the portions of the ACR in which the personal data and particulars are recorded, observations and comments made on the character and conduct and efficiency by the reporting / reviewing / accepting authority where the disclosure of these points has no relationship to any public activity or interest and is likely to cause unwarranted invasion of the privacy of the individual.

Here in it must be clearly understood that the grading of the officers in the ACR will not fall within the meaning of this Sub-Section as it is general in nature and not specific to any personnel character of the officers. While the Commission would not insist on disclosure of the personal information contained in the ACR, the disclosure of which could cause unwarranted invasion of privacy of the individual officer, the grading, on the other hand, does not mean any personal information. Hence it is not acceptable that the gradings in the ACRs cannot be disclosed.

The Commission also considered the decision of the Central Information Commission in Ms. Veena Sikri Vs. Department of Personnel & Training and others which was produced by the Commissioner & Secretary, Personnel. The Commission found that the set of requests made by Ms. Veena Sikri for information was not of the same type as the request by the appellant in the instant case. The Commission however, made it clear that the Central Information Commission and the State Information Commissions function in a parallel way and not in the controlling or subordinate relationship. The decision of the States and Central Commissions are independently arrived at keeping in view the nature of the request.

The Commission further perused the circular issued by the Department of Personnel & Training, Public Grievances & Pensions, Government of India by there office Memorandum No 10/20/2006-IR dated 21.9.2007. The Memorandum provides guidelines for action by the public authorities which they may follow in deciding the request for information. As for as the Commission is concerned, it has to act in accordance with the mandates laid down by the Act without being unduly influenced by any extraneous matters.

Decision of the Commission
On careful consideration of the facts and circumstances of the case, the Commission is of the considered view that the gradings of these two officers in their ACRs as sought by the appellant are to be disclosed by the Public Authority. Hence the Commission decided to admit the appeal and direct the Commissioner & Secretary, Personn.el Department, 'Government of Assam under section 19 (B) (a) (i) to furnish the information to the appellant within 7 days of the receipt of this order.

Sd/- (R.S. Mooshahary)
Chief Information Commissioner, Assam
Janata Bhawan, Dispur.

Sd/- (Dr. B K Gohain)
State Information Commissioner, Assam
Janata Bhawan, Dispur.

Authenticated true copy
(Jaiuddin Ahmed)
Secretary, State Information Commission, Assam
Janata Bhawan, Dispur.

Memo No: SIC/KP(M).18/2007/43 Dated November 13, 2007

CC:
1. Shri Jishnu Barua, IAS, Commissioner & Secretary, Personnel (A) Department & 1st Appellate Authority.
2. Shri Naresh Chandra Misra, Joint Secretary, Persolli1el (A) Department and SPIO.
3. Sri Mrinal Ranjan Das, C.E, PWD (Buildings) Chandmari, Assam, Guwahati-3.
4. The DIPR Dispur, Guwahati.
5. M. D, AMTRON, Bamunimaidan.
6. Office file.


Secretary, State Information Commission,
Assam, Janata Bhawan Dispur