Central Information Commission

2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi – 110 066

Website: www.cic.gov.in

Decision No.4193/IC(A)/2009 F. No.CIC/MA/A/2009/000209

Dated, the 21st July, 2009 Name of the Appellant: Shri. R.L. Kain Name of the Public Authority: 1. National Commission for Scheduled Castes 2. M/o Social Justice and Empowerment Facts: i

1. The parties were heard on 22nd April, 28th May and 17th July 2009. 2. In response to the appellant’s RTI application dated 26.6.2008, the PIO replied on 24.7.2008. The PIO’s response is re-produced here below: “Sub: Seeking information under RTI Act, 2005 by Shri R.L. Kain

S.No. RTI Request PIO’s Reply 1. 2.

The news item appeared in Times of India on 17.06.2008 at page 17 (col. 4-8) (copy enclosed) reported that the National Commission has shown its agreement with the Justice Usha Mehra Commission’s report which has recommended that Scheduled Castes be divided into groups with the community’s total job quota apportioned among them in the State of Andhra Pradesh. If this news items is correct then please supply the copy of Justice Usha Mehra Report together with the copy of the State Government’s request seeking advice/recommendations of NCSC as mentioned in this news clipping and produce the relevant file for inspection and supply the copy of its decision. Whether the National Commission for Scheduled

The Commission has not given its comments in the issue. The Commission

i “If you don’t ask, you don’t get.” - Mahatma Gandhi

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3. 4. 5.

Castes has received any such proposal under sub-clause 9 or any other sub-clause of Article 338 of the Constitution of India either from A.P. Government or from the Central Government separately, please clarify the sub-clause and Article of the Constitution under the which the above proposal was received NCSC from any of the authorities on the subject which was considered by the NCSC and action report thereon and apprise the specific provisions of the Entry of List II and III in Seventh Scheduled under Article 246 of the Constitution of India under which legal provisions are existed for groups or sub-groups. Whether the NCSC had also received similar request in the past from the A.P. government recommending categorization through statute, please supply the copy of the recommendations of the Commission and apprise the specific provisions of the Entry of List II and III in Seventh Schedule in Article 246 of the Constitution of India under which the State Government can make legislation on the subject or recommend the same to Central Government for enactment of law; Whether it is a fact that Constitution bench of Supreme Court ha already declared the Andhra Pradesh scheduled castes (Rationalization of Reservations) Act, 2000 (A.P. 20 of 2000) as ultra vires being beyond the legislative competence of the State and violation of Article 14 of the Constitution in a Civil Appeal Nos.6758 of 2000 E.V. Chinnaiah vs State of Andhra Pradesh & ors., 6934 of 2000 M/s Malamalandu Registered Society vs State of Andhra Pradesh & ors., 7344 of 2000 Mallela Venkata & Ors. Vs State of Andhra Pradesh & Ors. Civil Appeal No.3442/2001 Kota Samanth vs. State of Andhra Pradesh & Ors. On 05.11.2004, if yes, what were the observations of the National Commission for Scheduled Castes whether any report was sent to the Government or to the President of India, if yes, please supply the copy of the same. Whether any caste based census of India or any

has received the proposal under Article 338(9) of the Constitution. Yes, it can be obtained on payment of Rs.444/- total pages 222/-as per prescribed rate @Rs.2/- per page. Yes, there is no

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6. 7. 8.

part thereof was carried out by the Government of A.P., If yes, please apprise the Article and Clauses o the Constitution of India which permit sub-caste based census i.e. individual castes under the Scheduled Castes; Whether the National Commission for Scheduled Castes has ensured itself in writing that no group will ever demand for Block-level, Taluka-level, District-level and State-level modification of proposed job reservation statute for segment-wise when their population is shown upward/downward trend in a particular area at a particular point of time within these segments of Scheduled Caste and how it will stand for judicial scrutiny, please apprise the factual position as per law; Whether these different groups have expressed in writing that they will remain in water tight compartment of “Four Varnas” system of Hindu society and no group will demand for interchange from one group to another group in future, whether any State Government or Union of India has filed nay Appeal or Review petitions against the above decisions in Civil appeals as quoted in para 4, if yes, what is the out come thereof, if no Appeal or Review petitions were filled then as to why the Government of Haryana and the Government of Punjab continued their categorization orders in operation and what measures were taken by this Commission or by the Ministry of Welfare or by DoPT to safeguard the interests of the Scheduled Caste as a whole; Whether is it, correct that the virus of community-wise and sub-groups wise reservation was invoked/initiated by the Government of Punjab followed by the Government of Haryana against the constitutional established scheme propounded by Baba Saheb Dr. B.R. Ambedkar as quoted in the majority judgments in all the civil appeals as mentioned in para 4 of this RTI application against political exploitation as also envisaged in the historical “Poona Pact” made between Dr. B.R. Ambedkar as the leader of the

Article. Please refer to the Report o the NCSCs & STs on categorization of State of A.P. Please refer to the Report o the NCSCs & STs on categorization of State of A.P. The proposal is under examination in the Commission

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9. 10. 11.

Depressed Classes and the Hindus represented by Pt. Madan Mohan Malviya, C. Rajagopalacharya etc. etc. entering into political consensus of “Joint Electorate” instead of “separate Electorate” (dual voting right) based on the principle of “Communal Award” of 1932 but the National Commission for Scheduled Castes is propounding the theory of division of Scheduled Caste communities into groups on the basis of their sub-castes which is barred by definition given by Dr. B.R. Ambedkar in the Constitution Assembly as mentioned in Supreme court Judgment, in support of the contention that no political party would exploit the people of the Scheduled Caste communities on political factor, if yes, please confirm it categorically: In case the reply to para 8 is in affirmative then please supply the copy of the recommendations made by the National Commission for Scheduled Castes to the State Government/Central Government. If no recommendations are made on the Justice Usha Mehra Commission report of A.P. government, please confirm it in writing; The National Commission for Scheduled Castes constituted under Article 338 of the Constitution enjoy the constitutional status and sub-clause 4 of Article 338 empowers the Commission to regulate its own procedure of functioning etc. If it is true then please apprise as in how many cases the Commission had become party in the court of law to defend and safeguard the interest of the Scheduled Castes in service matters and social filed, supply the details thereof whether the Commission had filled any caveat before the Supreme Court and High Courts where the Governmental authorities had exceeded their limits and ignoring the Commission for taking its recommendations on the constitutional rights of Scheduled Castes as had been ignored in the case of A.P. government while passing the Andhra Pradesh Scheduled Castes

N.A. No recommendations are made by NCSC so far. Visit the Commission No. such figure has been maintained in the Commission.

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12.

(Rationalization of Reservations) Act, 2000 without considering the Report of the National Commission for Scheduled Castes by the State Legislature as required under Article 338(9) as mentioned in the Apex Court judgment dated 05.11.2004, if yes, please supply the particulars thereof, if not, the reasons thereof; Is it true that the various Ministries/Departments under the control of Government of India have expressed their conflicting and contradictory views and shift their responsibilities on each other on account of implementation of the government policies over job reservations and social upliftment, if yes, the; National Commission for Scheduled Castes being the expertise body to vouch safe the interests of Scheduled Caste people has revised its own procedure under sub clause 4 of Article 338 of the Constitution of India, in view of the fact as an expertise and constitutional body, if yes, please supply the copy of the same, if now procedure has been revised whether the Commission is going to revise the same in view of the all going.

The Rule of procedure of the National Commission for SCs may be obtained on payment of Rs.100/-“

3. Being not satisfied with the above response, the appellant submitted his 1st appeal dated 5.8.2008 in which he pointed out the inadequacies of information in respect of each point of PIO’s response. He has alleged that in response to the 1st appeal, the PIO, Shri. Kaushal Kumar, Dy. Director, himself replied after a lapse of over two and a half months vide his letter dated 23.10.2008 as under:

“Sub: Seeking information under RTI Act, 2005. Sir, I am directed to refer to your appeal addressed to the Joint Secretary and Appellate Authority, National Commission for Scheduled Castes on the above mentioned subject and to say that as per order of the Joint Secretary and the Appellate Authority, NCSC we can provide you only 26 pages out of total 276 pages as asked by you under RTI Act and your appeal has been transferred to the concerned department u/s 6(3) of the RTI Act. Further it is to inform you that it is not finalized by the National Commission for Scheduled Castes that whether noting pages of the files of the Commission can be provided to the appellant under RTI Act or not as the matter is pending in the Court.

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Accordingly 25 pages are enclosed as asked by you under RTI Act.”

4. Subsequently, the appellant submitted his second appeal before the Commission on 19.12.2008 in which he alleged that the Appellate Authority of the respondent has not passed the necessary order. 5. In the meantime, the Appellate Authority heard the matter on 23.1.2009 and passed the order on 16/2/2009, which is as under:

“Whereas as per order of the undersigned, the requisite information has been provided by the PIO, NCSCs and the third party information has to be supplied by the concerned Deptt. to whom it was transferred under section 6(3) of the RTI Act. Since the Appellant has sent the 2nd appeal to the Central Information Commission, New Delhi therefore further action will be taken after the decision of the CIC.”

6. During the hearing, the appellant stated that he has asked for information regarding the proposed categorization of SCs in the State of Andhra Pradesh. The PIO and the Appellate Authority have unduly harassed and furnished incomplete information. Specifically, he stated as under:

The PIO provided incomplete information and, therefore, he submitted his 1st appeal, which was not examined and replied within the stipulated period of 30 – 45 days. On behalf of the Appellate Authority, the PIO himself replied after 78 days or so, by which time he had submitted his 2nd appeal before the Commission on 19.12.2008.

The appellant was allowed inspection of records and at least 276 pages were identified by the appellant. But, the respondent has provided 25 pages only while the remaining documents, 255 pages have not been furnished to him. The PIO has also not indicated the reasons for refusal of the documents, which were identified by the appellant. The Appellate Authority too has not done the needful.

In response to the 1st appeal dated 5.8.2008, the Appellate Authority of the respondent replied on 16.2.2009 after a lapse of over six months. And, at this stage, he transferred the RTI application u/s 6(3) of the Act, to the CPIO of the Ministry of Social Justice and Empowerment, without indicating as to which part of information was to be provided by the Ministry. The transfer of his application at this stage was uncalled for as the respondent is the custodian of information and the appellant had already inspected the concerned files and identified the required documents.

The appellant pleaded for both initiating penalty proceedings under Section 20(1) of the Act, against the PIO for denial of information for malafied reasons and awarding of compensation u/s 19(8)(b) of the Act, for harassment by the officials of the respondent.

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7. The respondents stated that the appellant was allowed inspection of the concerned files and 25 pages out of the total 276 pages were furnished. For the remaining documents, this application was transferred u/s 6(3) of the Act, to the Ministry of Social Justice and Empowerment. The Ministry has replied and stated that the report on sub-categorization of SCs is very confidential and is, therefore, not in public domain. Analysis of Facts and Decision Notice: 8. The PIO, Shri. Kaushal Kumar has furnished partial information. The remaining information was promised on payment of Rs.444/- under item 3 of the RTI response, but it has not been supplied to the appellant. The PIO has not been able to explain in his oral and written submissions as to why the documents promised to the appellant on payment have not been provided. This is attributable to malafied reasons. 9. In his first appeal dated 5.8.2008 before the Appellate Authority, the appellant pointed out the major deficiencies or inadequacies in the PIO’s response, as perceived by him. But, the Appellate Authority did not respond within the stipulated period of 30-45 days. In fact, the Appellate Authority replied on 16.2.2009, after the appellant had filed his 2nd appeal before the Commission. And, at this stage, the Appellate Authority chose to transfer the RTI application, u/s 6(3) of the Act, to the respondent-2, which is unjustified. 10. Moreover, the Appellate Authority had allowed inspection of the concerned files so that specified documents could be furnished to the appellant. The appellant identified 276 pages of documents, of which only 25 pages were supplied. The reasons for denial of remaining pages of documents have not been indicated nor any exemption has been claimed u/s 8(1) of the Act. Both the PIO and the Appellate Authority have, therefore, erred. 11. The respondent-1, in consultation with the respondent-2, i.e. the Ministry of Social Justice and Empowerment has refused to furnish the Report on sub-categorization of SCs on the ground that the report is confidential and not in public domain. Had the Report been in public domain, no one would have asked for it under the provisions of the Act. The respondent has moreover not claimed exemption under the provisions of the Act. And, therefore, denial of information merely on the ground of confidentiality of document is not acceptable, unless, of course, relevant provisions u/s 8(1) of the Act are cited with proper justification for claiming exemptions from disclosure of information. 12. The PIO also stated, during the hearing, that on the basis of the Report on sub-categorization of SCs, a proposal is under preparation for approval of the Cabinet. Therefore, the Report in question is treated confidential by the

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respondents. In response to this, the appellant presented a letter written by the Chairman of the respondent-1, which states that the Govt. has no proposal to categorize the SCs. Therefore, the ground for denial of copy of the Report is unjustified. How can an investigative or study report prepared after wide consultations among the stakeholders could be treated as confidential? This is however not understandable. 13. In view of the foregoing, the following decision notice is issued: (i) The sharing of information held by the respondents would lead to greater

participation by the stakeholders, mainly SCs, in articulation of policy on reservation and positive discrimination, to which the entire nation is committed. The PIO, NCSC, should therefore provide all the remaining pages of documents that were identified by the appellant. A copy of the Report on sub-categorization of SCs should also be provided to the appellant to enable people to participate in the democratic process of decision making. The respondent-1 & 2 have not claimed exemption u/s 8(1) of the Act, from disclosure of the Report. The denial of information on such grounds as confidential or the document is not in public domain, are not acceptable. Hence, rejected. The documents should therefore be provided free of cost as per section 7(6) of the Act, within 15 working days from the date of issue of this decision. The PIOs of respondent-1 & 2 are accordingly directed.

(ii) The PIO, Shri. Kaushal Kumar is held responsible for denial of information

without any reasonable cause. This is evident from the following:

First, he assured the appellant to provide certain documents on payment of Rs.444/- but he did not actually intend to do so. Hence, refused without proper justification. An assessment of replies under different items indicates lack of concern for sharing the information held by NCSC.

Second, in response to the 1st appeal filed by the appellant, the PIO himself replied on behalf of the Appellate Authority, after the lapse of about 78 days and decided at this stage to transfer the RTI application u/s 6(3) of the Act, to the respondent-2, the Ministry of Social Justice and Empowerment, without indicating as to which part of information was to be supplied by the CPIO of the Ministry. This also provided ground at a later stage, for endorsing the decision of the PIO dated 23.10.2008 by the Appellate Authority vide letter dated 16.02.2009. A PIO is not expected to examine the 1st appeal filed against the decision of the PIO. He has thus erred.

Third, the documents identified during the inspection have not been furnished without specifying the reasons, which is attributable

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to malafied reasons and constitute violation of Section 7(1) of the Act. There is no justification for withholding the information, after the same is allowed for inspection u/s 2(j) of the Act.

(iii) The PIO, Sh. Kaushal Kumar, should therefore explain as to why a

maximum penalty of Rs.25,000/- (Rupees Twenty Five Thousand only) should not be imposed on him for obstructing the free flow of information and ultimately denial of information without any reasonable cause. He should submit his explanation at the earliest and also appear for a personal hearing on 19th August 2009 at 12.30 p.m., failing which penalty would be imposed.

(iv) The appellant has indeed suffered undue harassment in seeking

information from the respondent-1 due mainly to lackadaisical attitude of officials of the NCSC. Not only the requested information has been refused to him, the PIO and the Appellate Authority adopted circuitous and bureaucratic methods for unnecessarily delaying the matter and finally disappointing him.

First, the PIO did not properly reply to all the points and furnish the complete information as discussed above.

Second, the appellant’s 1st appeal was not dealt with as per the accepted procedure and provisions of the Act. Neither it was replied within 30-45 days, as mandated, nor complete information, as inspected and identified by the appellant was given.

Third, the application was transferred u/s 6(3) of the Act, by the Appellate Authority, which was not proper. In fact, the identified documents are maintained by the respondent and the transfer of application was uncalled for. An application may be transferred at the initial stage provided the information is held by another public authority. Why was this done after the inspection of file was allowed u/s 2(j) of the Act?

Fourth, the 1st Appellate Authority initiated the necessary proceedings only after the appellant had submitted his 2nd appeal before the Commission and the appellant was replied after six months or so.

(v) In view of the foregoing, we hold that the officials of the respondents have

deliberately adopted such an evasive tactic as would help them in their design to discourage and harass the appellant from accessing the information. In the process, the appellant has surely suffered all kinds of losses - time and money - and harassment in pursuing his RTI application.

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14. The NCSC or its nominee, preferably through Appellate Authority, Shri. S.S. Sharma, who has allegedly mishandled the entire case, should explain, at the earliest, as to why a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) should not be awarded to the appellant u/s 19(8)(b) of the Act, for the detriment suffered by him in the process of seeking information. The respondent-1, through its nominee, should also appear for a personal hearing on the date and time indicated above, failing which the above amount of compensation would be awarded to the appellant. The appellant may also be present. 15. The appeal is thus disposed of. Sd/- (Prof. M.M. Ansari)

Central Information Commissionerii

Authenticated true copy: (M.C. Sharma) Assistant Registrar Name & address of Parties: 1. Shri. R.L. Kain, 66-B, Pocket-I, Dilshad Garden, Delhi – 110 095. 2. Shri. Kaushal Kumar, Dy. Director & PIO, National Commission for

Scheduled Castes, 5th floor, Loknayak Bhawan, Khan Market, New Delhi – 110 003.

3. Sh. S.S. Sharma, Jt. Secretary & Appellate Authority, National

Commission for Scheduled Castes, 5th floor, Loknayak Bhawan, Khan Market, New Delhi – 110 003.

4. Sh. V.R. Malhotra, Director & PIO, Ministry of Social Justice and

Empowerment, Shastri Bhawan, New Delhi. 5. The Appellate Authority, Ministry of Social Justice and Empowerment,

Shastri Bhawan, New Delhi.

ii “All men by nature desire to know.” - Aristotle

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