Dr Raja MuzaffarBhat
Section 8 of Right to Information Act (RTI) which includes J&K RTI Act 2009 and Central RTI Act 2005 focusses on different types of information which cannot be sought under RTI Act. In the same section one important issue has been mentioned which information seekers or RTI users hardly notice. RTI legislation has empowered citizens to such an extent that information which can be accessed by Members of Parliament (MPs) or Members of State legislature (MLAs, MLCs) can be accessed by citizens as well. J&K RTI Act 2009 reads ” Provided that the information which cannot be denied to the parliament or the state legislature cannot be denied to any person” .
During an RTI appeal hearing at J&K Public Service Commission (PSC) office recently I raised this legal point before the Controller of Examination who is also the designated First Appellate Authority (FAA) under State RTI Act. In addition to it, section 19 of the Act says that J&K RTI Act 2009 shall have the effect notwithstanding anything inconsistent therewith contained in the State Official Secrets Act, Samvat 1977 and any other law for the time being in force or any instrument having effect by virtue of any law other than the Act (RTI Act) . Therefore both the legal points discussed above make it clear that RTI Act has an overriding effect on all such laws which prohibit in sharing information under RTI Act. If J&K Public Service Commission (PSC) raises issue that its internal rules don’t allow them to provide information about answer papers / OMR sheets / answer key under RTI Act is all absurd & illegal assumption.
RTI applies to Public Authorities :
As already discussed in one of previous columns, the J&K Public Service Commission is a Public Authority . RTI Act does not apply only to Government organizations but it applies to Public Authorities. PSC may not be a Government organization ,but being an autonomous institution , PSC is still a public authority. Even the State Information Commission (SIC) whose members (Commissioners) are appointed on the recommendation of both the Opposition and the Government is also a Public Authority. SIC very much adheres to the provisions of State RTI Act. How can PSC claim it is out of RTI ambit when they have already designated three Under Secretaries as Public Information Officer (PIO) as per their official website ?. In addition to it there are 3 First Appellate Authorities (FAAs) designated under RTI law in PSC.
CIC’s orders against PSC :
After being appointed as Chief Information Commissioner (CIC) , Khurshid Ahmad Ganai disposed off several cases wherein J&K Public Service Commission (PSC) was directed to provide information under RTI Act to information seekers who were mostly the aggrieved job seekers. In-fact the first case which was decided by CIC Khurshid Ganai in State Information Commission (SIC) was against PSC.
The appellant namely Narendra Pal Singh a resident of MohallaPahadian Jammu had filed RTI application before PIO of the J&K Public Service Commission (PSC) on 12-07-2016 seeking certain information . Aggrieved by the inaction of the PIO in furnishing information, the appellant filed 1st appeal on 12-08-2016.The First Appellate Authority (FAA) of J&K PSC too did not dispose of his 1st appeal. Finally the appellant filed 2nd appeal before the State Information Commission (SIC) on 15-09-2016 against the failure of PIO & FAA of J&K PSC. In his 2nd appeal the appellant requested the State Information Commission to direct the PIO of J&K PSC to provide him complete information. The 2nd appeal was initially listed before the SIC for hearing on 10-11-2016 and Commission passed an interim order directing the PIO to furnish him the requisite information within one week and file compliance report to the Commission.
During the 2ndhearing before CIC Khurshid Ahmad Ganai on March 7th2017 , the PIO of J&K PSC dispatched information to Narender Pal and when case was heard appellant filed written submission, that he had received all the requisite information.
Penalty Notice against PSC:
On May 16th 2017 the Chief Information Commissioner (CIC) MrKhurshidGanai issued penalty show cause notice against the PIO of J&K Public Service Commission (PSC) in a case titled Iram Fayaz V/S FAA and PIO J&K PSC . The 2nd appeal came up for hearing before the SIC on 16.05.2017 at Srinagar which was attended by Ishtiyaq Ahmed, PIO, J&K PSC and the appellant IramFayaz. During the hearing, the appellant submitted that the PIO has not furnished her the full information about a selected candidate for the post of Assistant Professor in Higher Education (Industrial Chemistry). The PIO submitted that whole information except ‘third party’ information was provided to the appellant, however, late by few days (08) days. CIC after hearing the case issued following order against the Public Service Commission (PSC)……
“It is clear from the record on the file of the JKPSC, that the PIO has failed to dispose of the application in time i.e, within 30 days after the receipt of the RTI application in terms of Section 7(1) of the J&K RTI Act,2009. The PIO has belatedly provided some information on 30.01.2017, the day the appellant filed the first appeal before the FAA of the J&K PSC. The FAA/ Secretary, J&KPSC has also not disposed of the 1st Appeal in terms of Section 16(7) i.e, within thirty days or within the extended period of 45 days from the date of filing. Both the authorities i.e, PIO and the FAA of the J&K PSC are in violation of the provisions of the J&K RTI Act,2009. They should have disposed of the application and the 1st Appeal within the stipulated time period which has unfortunately not been done. Although, during the proceedings before the Commission, the PIO referred to Section 11 relating to ‘third party’ information but no record has been provided to show that ‘third party’ proceedings were initiated in this case by him or that Section (11) was at all applicable in this case. No authority or judgment was quoted in support of applicability of third party information in this particular case of selection. The FAA has also not made any mention of third party proceedings either at the level of 1st appeal or at the time of proceedings with the PIO. For these reasons i.e, failure to dispose of the RTI application in terms of Section 7(1) which lays down specified time period of 30 days for disposal by the PIO and on the grounds of delay, the PIO is fit to be proceeded under Section 17 of the Act”. Pertinent to mention that under section 17 of J&K RTI Act 2009 , penalty proceedings are initiated against the erring Public Information Officers (PIO)
Conclusion :
Former Chief Information Commissioner (CIC) G R Sufi has issued several orders against PSC and in all the cases he has directed the PSC to provide information to RTI applicants / appellants. Present CIC Khurshid Ganai has also issued around four orders from last 6 months against PSC and in all the cases, PSC has been directed to share information under RTI Act. I cannot understand why PSC still continues to mislead information seekers by not providing them information ?
I will blame educated aggrieved job seekers / information seekers as well because they are not well versed with a 20 pagedRTI Act. They assume if information is denied under RTI Act , that is final . They are not aware of the fact that appeal can also be filed against the PIO before a senior officer and if they are aggrieved with 1st appeal finally a 2nd appeal can be filed at State Information Commission (SIC).
Not even 5 percent of RTI applicants take their case to State Information Commission (SIC). They believe the officer who has not provided information or has dispatched misleading information is final. I have come across many NET & SLET qualifiers and even PHDs who keep asking me absurd questions on RTI . If you are preparing for UPSC and State Civil Service exams and have been dropped during mains or interview and then use RTI for extracting information but don’t know how to get the information, I think fault is yours. Whosoever has gone to SIC , especially against the PSC , the aggrieved have got orders in their favour. I ask PSC authorities will you deny information to an MP or an MLA ? If no, why then deny the same to an aggrieved citizen ?
I would appeal State Information Commission (SIC) to be tough against habitual RTI violators. Issuing penalty show cause notices under section 17 of State RTI Act is ok , but why not impose penalty as well ? From last more than six years Information Commission has not penalized even one percent of Government Officers against whom appeals were filed before SIC. If SIC will not start penalizing the erring PIOs , people will lose their faith in Right to Information Act (RTI).
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