CENTRAL INFORMATION COMMISSION F.No. CIC/AT/A/2006/00069 Dated the 13th July, 2006.

. Appellant: Shri Gopal Kumar, SE,Dir(Design), E-in-Cs Branch, Army HQ, Kashmir House, Room No. 167A, Rajaji Marg, New Delhi-110011.

Respondents: Maj Gen Gautam Dutt, DGW, E-in-Cs Branch, Army HQs, Kashmir House, DHQ P.O., New Delhi-110011. Maj Gen Gautam Banerjee, ADG(Army), E-in-Cs Branch, Army HQs, Kashmir House, Rajaji Marg, DHQ P.O., New Delhi-110011. This appeal has been filed by Shri Gopal Kumar against the order dated the 17th March, 06 of the appellate authority (AA), Maj Gen Gautam Dutt, DGW. The appellate authority in his order has provided point-wise clarifications to the request for information presented by the appellant. 2. The parties were called for a hearing on 24.5.2006. The appellant, Shri Gopal Kumar as well as the Appellate Authority, Maj Gen Gautam Dutt DGW and the CPIO, Maj Gen. Gautam Banerjee, ADG (Army) were present. 3. Between 17th October, 05 and 8th November, 05, according to the appeal filed by the appellant, he made representations to the CPIO, Maj Gen Gautam Banerjee, ADG (Army ), to provide him a certain set of information. These are reproduced below: 17th October, 05 (a) The reason for violating the guidelines for Management of MES Civilian Officer as I was not given second tenure (5 years) in spite of having qualification/earning best trophy/without any punishment/counseling/recommendation for Executive appt in ACR. The proceedings/documents/records based on which decision for posting to GE, second/third time GE, are being considered by a board/individual, based on which, I was debarred from second tenure after giving beyond expected result. The policy adopted by the board/individual selecting to CE (though not intimated earlier). Any policy used underground based on personal approach/gain (if any). .2

(b)

(c)

(d)

:2: (e) Action taken by the Authority on my application submitted time to time (latest application is attached). No response has been conveyed to me on my application.

26th October, 05 (a) That the Army Officer of Post graduation qualification with the payment are supposed to use for Adm and other duty rather than teaching to Engg/Advance Civil Engg. Student; That the interview with Cmdt CME by IDSE Officer is prohibited in CME; That I was deprived from the accommodation in spite of giving other similar officer reported later; That why I was shifted from CME prematurely. That the record/doc based on which such decision may be given.

(b) (c)

(d) (e)

26th October, 05 (a) That why I am not been posted as CWE in spite of the facts as above and continuous reminder; That the policy adopted by board/individual to post as CWE be provided; That CTC copy of the board proceeding/record/documents may please be provided along with the copy of documents considered in decision; That reason for non reply to my letters be provided; That Officer with less qualification/punished under CCA/charge sheet in progress can be better option than my case in the interest of state.

(b) (c)

(d) (e)

26th October, 05 (a) That why I was posted/attached from GE(P) Chanda prematurely in spite of performing the best by earning two best GEP Trophy of CE Pune Zone. Copy of record/doc for such decision may please be provided; That confirm posting from executive punishment/defamation as per law of land; to staff is considered as .3

(b)

:3: (c) That is it permitted to change the ACR of an officer without intimating to IO. Copy of revised ACR of Lt. V.P. Raman may pl. be provided; That copy of the proceeding/document/record final/outcome/decisions be provided; of enquiry and its

(d)

(e)

That such misconduct and ACR of such Army Officer is logical to be protected by the department; That any action taken against Lt V.P. Raman for his misconduct even after proof in the enquiry be provided; That continuous punishing me for no fault of mine is injudicious which require justification.

(f)

(g)

8th November, 05 (a) That the copy of DPC recommendation proving its own assessment with criteria in which I have not been considered by DPC fit for promotion; That DPC letter for CCA regarding intimation to the officer for representation, if any; That the proceeding/doc/record by which E-in-Cs Branch vide letter No.B/41023/EE/Rep/E1R dated 27 Feb 2002 has intimated me about careful consideration by CCA (copy enclosed); That the action/decision on my different representation by different authority; That the copy of ACR under consideration, on which I was not promoted; That the reason for maintaining MIS(Civil) by the Army officers who are neither aware of Rules nor ensure to provide justice to my representation; That any action taken/is being taken against defaulter for dumping representation/ reminder; That the defect noticed (assessed by DPC, CCA for not considering me fit for promotion as the same may have never been considered by my IO/RO; That any memo proving justifying any reason for considering me below Bench Mark; .4

(b)

(c)

(d) (e) (f)

(g)

(h)

(i)

:4: (j) That is there any rethinking to look after the case judicious and providing me justice.

8th November, 05 (a) That the reason of pending my representation of 1985 and debarring me from due promotion after 9 years of AEE, at my due place; That any action taken against the defaulter i.e. RP Bhatia & concerned officer relieving him.

(b)

8th November, 05 (a) (b) (c) (d) That why I was posted and accepted to DG MAP in spite of trained officer; That why I was posted out from DG MAP; That why I was not accepted in ESP Directorate in spite of orders; That our Govt is not so rich to have the work at much higher rate and on consultation without using MES; That further Phase may be considered by MES economically at much cheaper rate and contract which has not yet finalized; That there in any consideration to post civilian in Coord/ESP. Through his order dated the 2nd February, 06, the CPIO gave para-wise

(e)

(f) 4.

replies to the appellant as follows: (a) Letter No. GK/RTI/ACT/01 dated 17/26 Oct. 2005: Para 2 (a) Second tenure of GE is not legitimate right. You are requested to refer to para 08 of the Guidelines for Management of Civilian officers in MES where posting criteria of GE is covered. Para 2 (b) & (c) It is a departmental procedure including ACR appraisal which is confidential and beyond purview. Proper evaluation is done before issue of posting order for any appointment. Para 2(d) No. .5

(b)

(c)

:5: (d) Para 2 (e) Letters were replied as and when received. Ref. E-in-Cs Branch letter No. B/17003/SE/309/E1B dt. 14 June 2003 and B/17003/SE/309./E1B, dated 06 May 2004. You may appreciate that most of the letters are repetitive in nature. Letter No.GK/RTIACT/02 dt.26 Oct 2005: (a) Para 2(a) Officers are posted from one unit to another in the overall interest of the organization/Govt. The fact that you were given best GE Trophy when you deserved, indicates that department is fair in dealings with officers. Para 2 (b) No; you are aware that all officers are posted from staff to executive and vice versa. Para 2 & (e) No ACR can be changed or and has been changed. ACR is confidential document and copy can not be provided. Para 2 (d) Not clear. Please refer to para 1(j) of your letter. confirmed nothing wrong act/conduct was established against you. You have

(b)

(c)

(d)

(e)

Para 2 (f) This is a third party information and confidential matter cannot be provided. Para 2 (g) No punishment has been given to you at any stage. Letter No. GK/RTIACT/03 dated 26 Oct., 2005

(f)

(a)

Para 2 (a) Officers are given assignment as per requisite aptitude and organizational requirement and need for exposure to various appointment. Para 2 (b) No. Everyday number of IDSE officers are interacting with Commandant and nobody has complained so far. Para 2 Accommodation is provided everyone as per station rules. Para 2 (d) & (e) Officer was posted from CME to CE South Comd in organizational interest, qualification and experience of officer. 6

(b)

(c) (d)

:6: Letter No. GK/RTIACT/04 dt 26th October, 2005 (a) Para 2 (a) & (b) Officers are posted in the organizational interest. This is strictly as per policy guidelines issued vide Guideline for Management of Civilian Officers in MES. Para 2 (c) Officers are posted in the organizational interest. This is strictly as per policy guidelines issued vide Guidelines issued vide Guideline for Management of Civilian Officers in MES. Para 2 (d) Most of the letters are repetitive. However, officer was given reply vide E-in-Cs Branch letter Nol. B/17003/SE/309/E1B dt. 14 Jun 2005 and B/17003/SE/309/E1B dt. 06 May 2005. Para 2 (e) It may be your perception not supported by facts. Letter No. GK.RTIACT/05 dt. 08 Nov 2005 (a) Para 2 (a) DPC has considered your name but did not recommend your name in the DPC held on 02 and 05 Mar 2001 since your ACRs gradings are below Bench Mark. DPC proceedings is a confidential document and can not be provided. Para 2 (b) Not clear. Para 2 You had filed a court case for non consideration of your name by the DPC vide OA No. 717/2001 at CAT Jabalpur. Speaking Order to the officer was given vide E-in-Cs Branch letter No.B-41023/EE/Rep/E1R dated 27 Feb 2002. Para 2 (d) The officer was replied vide E-in-Cs Branch letter No. A/41023/EE/Rep/E1R dt. 02 Aug 01, B/41023/EE/Rep/E1R dt 27 Feb 02, B/41023/SE/2005-06/E1 (DPC-1) dt. 13 Jul 05 and B/41023/EE/Rep/E1 (DPC-1) dt. 05 Oct 2005. Para 2 (e) No copy of ACR can be given since it is a confidential document. Para 2 (f) Policy matter. No comments; you may appreciate your performance has not been found fit for promotion by independent body such as UPSC & the Courts. Para 2 (g) You may appreciate that in spite of replying your representation adequately you are sending same representations again and again. 7

(b)

(c)

(d)

(b) (c)

(d)

(e) (f)

(g)

:7: (h) Parta 2 (h) & (i) The DPC held at UPSC has not recommended you for promotion. Para 2 (j) UPSC and Court are independent bodies and have done adequate justice to your case. Letter No. GK/RTIACT/07, dt. 08 Nov 2005 (a) Para 2 (a) All promotions due to you as per laid down policies, procedure have been given to you in fair and just manner. Para 2 (b) Third party information can not be provided. Letter No. GK/RTIACT/07 dt. 08 Nov 2005 (a) Para 2 (a) Officers are posted to HQ DG MAP since it is an organizational requirement. Accordingly officer was posted to DG MAP. Para 2 (b) Posting within E-in-Cs Branch is as on required basis for optimum utilization of officers capability, experience and qualifications. Para 2 Unsubstantiated statement. Para 2 (d) & (e) No comments on Govt. richness; the MAP is functioning as organized and ordered by Govt. Para 2 (f) Not clear, civilians are already posted in Coord. And ESP. When this matter was taken in an appeal to the appellate authority (AA),

(j)

(b)

(b)

(c) (d)

(e) 5.

Maj Gen Gautam Dutt, the following decision was taken by him: 1 (a) The proceeding/documents/records based on which decision for posting to GE, second/third time GE, are being considered by a board/individual, based on which, I was debarred from second tenure after giving beyond expected result. Ans: For second tenure GE a selection panel is made which also includes the extract of ACR grading of the individual. Since ACR is a confidential document and has no relationship to any public activity the proceedings/note cannot be provided. (b) Policy adopted by the board/individual selecting to GE (though not intimated earlier). .8

:8: Ans: DDG Pers M will provide the policy paper on payment of the prescribed fee. 2. Is it permitted to change the ACR of an officer without intimating to IO. Copy of revised ACR of Lt VP Raman may please be provided. That such misconduct and ACR of such Army officer is logical to be protected by the department. Ans: The ACR of Lt VP Raman is a confidential document and has no relationship to any public activity. Therefore, the same cannot be provided. 3. The copy of DPC recommendation proving its own assessment with criteria in which I have not been considered by DPC fit for promotion. The copy of ACR under consideration, on which I was not promoted. Ans: Proceedings of DPC and ACRs are confidential documents and have no relationship with any public activity. Therefore, these documents cannot be provided. 4. Why I have not been posted as CWE. Ans: Reply of Asstt. CPIO is considered adequate. No more information on the subject is required to be given. 5. Action taken against the defaulter i.e. Shri R.P. Bhatia & concerned officer relieving him in case of non return of secret map at GE Kheria. Ans: Reply of Asst CPIO is considered adequate. No more information on the subject is required to be given. 6. (a) That the Army Officer of post graduation qualification with payment are supposed to use for Adm and other duty rather than teaching to Engg/Advance Civil Engg student. (b) That the interview with Comdt CME by IDSE officer is prohibited in CME. (c) That I was deprived from the accommodation in spite of giving other similar officer reported later. (d) That why I was shifter from CME prematurely. 9

:9: Ans: Reply to Asst CPIO is considered adequate. However, as regards point pertaining to accommodation, if the applicant gives details of the case, the Astt CPIO will take up the matter with CME Pune and furnish the reply to the applicant. 7. Why I was posted and accepted to DG MAP in spite of trained officers being available and why I was posted out from DG MAP. Ans: Reply of Asst CPIO is considered adequate. No more information on the subject is required to be given. 6. The appellate authority (AA) has apparently not responded to each point for information made by the appellant in his applications to the CPIO as listed in paragraph 3 above. 7. It may be seen that the appellant has asked for quite a large number of information most of which pertain to promotion policy, DPC, ACRs of himself and one other officer, the reasons for why he was not posted as CWE and record of action against defaulters and so on. This comprises the substance of the information he has solicited. Several information asked for do not qualify to be information in terms of Section 8(1) (j) of the RTI Act and are no more than articulation of grievances. There are many repetitions too. We have, therefore, limited ourselves to dwelling on the paraphrasing of the appellants exhaustive information related queries done by the AA as reproduced at para 5. 8. With reference to the appellate authoritys order at Sl. No. 1,2 and 3 at para 5 above, we note that these pertain to disclosure of the ACR noting/grading of the appellant as well of as another officer, Lt. P.V. Raman and the proceedings of the DPC which considered these ACRs for preparing a panel of officers for promotion. The point for consideration here is whether the Annual Confidential Reports (ACRs) of an officer can be disclosed to him in spite of those documents being classified as confidential or secret. We are also considering here whether the ACRs of another officer can be given to a third person. 9. The appellate authority has taken the position that these are confidential documents which have had no relationship with public activity and, therefore, should be barred from disclosure under Section 8(1) (j) of the RTI Act. .10

: 10 : 10. Section 8 (1) (j) bars disclosure of personal information the disclosure of which has no relationship to any public activity or interest or which will cause unwarranted invasion of the privacy of the individual unless the CPIO or the State PIO or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Disclosure can be authorized under this Section if larger public interest justifies the disclosure of such information. This is the exception to the rule. In this case, however, the CPIO is not satisfied of any such justification. 11. In our view this sub-Section 8(1) (j) should also be read with Section 8(2) of the RTI Act which stipulates that a public authority may allow disclosure of an information notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions in Section 8(1) if public interest in disclosure outweighs the harm to the protected interests. 12. The important point for examination in the request for information related to DPC proceedings and ACRs of the appellant as well as the another person is whether they contain personal information and whether they attract the provisions of the Official Secrets Act and if so, whether the public interest commends disclosure. 13. In regard to the annual confidential report of any officer, it is our view that what is contained therein is undoubtedly personal information about that employee. The ACRs are protected from disclosure because arguably such disclosure seriously harm interpersonal relationship in a given organization. Further, the ACR notings represent an interaction based on trust and confidence between the officers involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public. There are, thus, reasonable grounds to protect all such information through a proper classification under the Official Secrets Act. 14. No public purpose is going to be served by disclosing this information. On the contrary it may lead to harming public interest in terms of compromising objectivity of assessment which is the core and the substance of the ACR, which may result from the uneasiness of the Reporting, Reviewing and the Accepting officers from the knowledge that their comments were no longer confidential. These ACRs are used by the public authorities for promotions, placement and grading etc. of the officers, which are strictly house-keeping and man management functions of any organization. A certain amount of confidentiality insulates these actions from competing pressures and thereby promotes objectivity. ..11

: 11 : 15. We, therefore, are of the view that apart from being personal information, ACRs of officers and employees need not be disclosed because they do not contribute to any public interest. It is also possible that many officers may not like their assessment by their superiors to go into the hands of all and sundry. If the reports are good, these may attract envy and if these are bad, ridicule and derision. Either way it affects the employee as well as the organization he works for. On balance, therefore, confidentiality of this information serves a larger purpose, which far out-strips the argument for its disclosure. 16. We are aware that there are forceful arguments for a system of open assessment of employees working for an organization. But, that should be a conscious decision of the organization concerned and must be part of an overall systemic change. Till that happens, confidentiality of annual assessment of the employees of an organization should be allowed to be maintained, if that is the norm in that organization. 17. The Departmental Promotion Committees (DPCs) prepare their minutes and make recommendations after examining ACRs of the employees due for promotion. Disclosure of the complete proceedings of the DPC and the grades given by various officers to their sub-ordinates may lead to disclosure of the ACRs. As ACRs themselves, according to us, are barred from disclosure, we hold, that by inference the DPC proceedings should be similarly barred. However, in all such cases, the CPIO and the Appellate Authorities should apply the doctrine of severability and should provide him the information, which can be provided under sub-section (2) of Section 10 of the Right to Information Act, 2005. 18. The appellant asked for information on the policy adopted by the Board which makes selections of GEs. The appellate authority has been instructed that the policy paper may be made available to the appellant. We, therefore, do not wish to pass any order on this. 19. As regards the other points raised by the appellant, listed at Sl. No. 4 to 7 of the AAs order (Para 6), the information related queries of the appellant are loaded with presuppositions and are more grievances than requests for specific information. The CPIO has, nevertheless replied to them in considerable detail. The AA has upheld these replies. We agree with the assessment of the AA. 20. Before parting with this appeal we would like to advise all CPIOs and AAs that in case the request for information of an applicant is found to be unclear or vague, it helps if the applicant is called for a meeting/hearing where he may be advised to state precisely what information he seeks. These may be listed by the AA/CPIO and the concurrence of the requester obtained for their wording and scope. This could then form the basis for the order of the CPIO as well as of the AA and will limit the scope for any confusion regarding what the requester wanted and what he was given. ..12

: 12 : 21. To sum-up, the order of the AA in respect of information listed from Sl.No.1 to 7 at para 5 of this order, is upheld. 22. The appeal is disallowed.

Sd/(A.N. TIWARI) INFORMATION COMMISSIONER Authenticated by

Sd/(WAJAHAT HABIBULLAH) CHIEF INFORMATION COMMISSIONER

Sd/( L.C. SINGHI ) ADDL. REGISTRAR Address of parties: 1. Shri Gopal Kumar, SE,Dir(Design), E-in-Cs Branch, Army HQ, Kashmir House, Room No. 167A, Rajaji Marg, New Delhi-110011. Maj Gen Gautam Dutt, DGW, E-in-Cs Branch, Army HQs, Kashmir House, DHQ P.O., New Delhi-110011. Maj Gen Gautam Banerjee, ADG(Army), E-in-Cs Branch, Army HQs, Kashmir House, Rajaji Marg, DHQ P.O., New Delhi-110011. In-charge, NIC. Press E Group.

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3.

4. 5.