Listen to this article:
New Delhi: The Central Information Commission (CIC) has denied information to an IAS officer on the Union government’s empanelment process for a senior post in the Indian Administrative Service, citing an 11-year-old stay order granted by the Delhi high court to allow non-disclosure of the notes and recommendations of the Appointments Committee of the Cabinet (ACC).
Earlier too the Union government departments had cited this court order for refusing Right to Information (RTI) appeals by civil servants on sharing information pertaining to appointments or appraisals of IAS officers.
IAS officer Jyoti Kalash had filed an application under the RTI Act on August 29, 2018, seeking information on “the cut-off numerical score for the empanelment of IAS officers of 1990 batch as additional secretary to the Government of India” for higher pensionary benefits.
Kalash is from the Nagaland cadre. He also sought information on “the weightage of APAR (Annual Performance Appraisal Reports) and 360 degree evaluation while making assessment on an officer for the purpose of empanelment.”
Kalash’s appeal was transferred by the chief public information officer (CPIO) (RTI Cell) of the department of personnel and training (DoPT) to the cabinet secretariat the very next day. However, on October 3, the CPIO of the cabinet secretariat wrote to him that no such information was available with it. The IAS officer then filed a first appeal in November 2018, but in March 2019, the First Appellate Authority upheld the reply of the CPIO.
The officer then approached the CIC with the second appeal and appeared for a hearing through video conferencing on September 21.
The Delhi HC order
In his order, chief information commissioner Y.K. Sinha recorded that during the hearing, Kalash stated that “the information sought was important as empanelment to the rank of additional secretary will help him avail higher pensionary benefits after retirement”.
On behalf of the cabinet secretariat, the CPIO, however, stated that following receipt of the notice from the CIC, the matter was re-examined and it was found that information on point 2 – pertaining to Kalash’s numerical score – was available.
However, the officer said, “In consultation with DoPT, it is decided not to disclose the information since the matter relating to disclosure of ACC notes and recommendations under RTI Act, 2005 is presently sub judice before the division bench of the high court of Delhi, where the decision of the single judge bench of the high court of Delhi was stayed.”
Taking cognisance of the submissions of both Kalash and the CPIO, as also the available records, Sinha observed that the decision of the Delhi high court on November 30, 2009 in the matter pertaining to disclosure of ACC notes and recommendations was stayed by the division bench of same court on July 12, 2010 and continues till date.
Therefore, he held that “it would be judicious to await the final outcome of the pending matter in the Delhi high court.”
Incidentally, ever since the division bench of the Delhi high court stayed the operation of the CIC order and the single judge bench’s decision to uphold it, in several matters before the CIC, civil servants have struggled to get answers pertaining to appointments and empanelment by the ACC through the Commission.
Several appeals denied in the past too
The CIC had earlier too allowed exemption in the matter of Nutan Thakur vs CPIO, DoPT — in which the RTI activist had sought all documents, letters exchanged between DoPT and different offices, with regard to the appointments of all officers to various posts through the ACC, of which the Minister of Home Affairs is one of the members. Then central information commissioner Divya Prakash Sinha had on March 2019 restricted the disclosures citing the Delhi high court order.
In this case too, the CPIO submitted that “information sought in the RTI application was denied under Section 8(1)(i) of RTI Act as the Delhi high court vide LPA No. 347/2010 had stayed operation of a CIC order wherein disclosure of records of the ACC was ordered and later upheld by single bench of the high court.”
The information commissioner further noted that the relevant portion of the court order stated: “…This rule-making power (for conduct of the government business) of the President of India is his supreme power, in his capacity as the supreme executive of India. This power is unencumbered even by the Acts of parliament, as this rule-making power flows from the direct constitutional mandate and they are not a product of any legislative authorisation. In view of the fact that the separation of powers is one of the fundamental feature of the our Constitution, these rules, promulgated by the President of India, for regulation of conduct of government’s business (transaction of business and allocation of business) cannot be fettered by any Act or by any Judicial decision of any Court, Commission, Tribunal, etc.”
The court had further held that “since the ACC is a product of the rules framed under Article 77(3) of the Constitution of India [Conduct of Business of the Government of India], its business (deliberations including the decision whether they are to be made public) are not the subject matter of any other authority other than the President of India himself”.
Therefore, the high court held that “unless these rules, framed under Article 77(3), themselves provide for disclosure of information pertaining to the working of the cabinet and its committees, no disclosure can be made pertaining to them, under the RTI Act. Therefore, the RTI Act has rightly provided for non-disclosure of the information pertaining to Cabinet Papers.”
In light of these observations, the information commissioner had recorded that “the issue pending adjudication in LPA No. 347/2010 is whether records of the ACC being Cabinet Papers are yet distinct from the records of deliberations of Council of Ministers or not.”