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| BOSE denies information to its employee for security reasons | | SIC issues penalty notice against PIO | | Early Times Report
Jammu, Dec 8: Trying to hide its wrong deeds, the J&K Board of School Education (BOSE) has told an RTI applicant who is also the employee of the BOSE that information related to file noting of his promotion case cannot be shared under section 8 (1) (f) of J&K RTI Act 2009 which means that if information is shared would endanger someone's life.
As the case reached in State Information Commission (SIC) the Chief Information Commissioner (CIC) castigated the Public Information Officer (PIO) of BOSE and directed him to share the said information with the RTI applicant. The SIC has also issued a show cause notice for penalty against the PIO and is planning to take disciplinary action as well against the former PIO who invoked section 8 (1) (f) of State RTI Act.
One Firdous Ahmad Khan an employee of J&K Board of School Education (BOSE) filed a complaint in State Information Commission (SIC) on 16-7-2013 against in action of First Appellate Authority (FAA) cum Secretary and PIO cum Deputy Secretary of J&K BOSE, Kashmir Division. As per details available with Early Times the complainant Firdous Ahmad had filed RTI application on 21st Feb 2013 seeking certain information related to his promotion . PIO did not pass order within stipulated time as provided under section 7 of the State RTI Act and passed order beyond the stipulated time period on 13-5-2013.
In the first appeal the complainant had requested the FAA to direct the concerned PIO for giving reason how information was refused to him invoking section 8 of the State RTI Act.
This appeal was received in the office of FAA i.e Secretary of the BOSE on 14-5-2013. Under section 16 of the State RTI Act first appeal was to be adjudicated within 30 days or on further extended time of 15 days after recording reasons in writing for extending the time. However, there is nothing on the record to show that any order was passed by the FAA cum Secretary BOSE . Having therefore being aggrieved by non action of FAA to adjudicate his appeal the appellant/complainant approached SIC vide his communication dated 16-7-2013 with the request for directions to PIO for disclosing information. The commission accordingly fixed the hearing. The commission also asked the PIO to let the commission know detailed reasons for invoking section 8(1)(f) of the State RTI Act.
The newly designated PIO BOSE M.A. Jallu who is the Deputy Secretary of the Board attended at SIC Jammu office on Nov 26th 2013 for the hearing and told the SIC that promotion dispute of the information seeker Firdous Ahmad involved his profound emotions and once the Xerox copies of noting side would be provided to him there would be every apprehension that it would give birth to a soaring feeling of enmity and loathing in him as the officers/officials who have/had processed the said file have/had expressed the factual position that led to his promotion case which might seem adverse to the applicant. Accordingly, in view of the above and the known situation in the Valley, this office invoked section 8(1)(f) of the RTI Act in the instant case." The SIC order reads :
"The information so asked by the complainant is being denied to be given to him on the plea that the "noting on the file constituted personal opinion of various officers/officials in the course of their duties." Surprisingly on the one hand the denial of information is justified vehemently misinterpreting provisions of section 8(1)(f). On the other hand it has been mentioned that "it is pertinent to mention here that whatever the process has taken place on the noting side of the instant file, the decision of the same stand communicated to the appellant/complainant in the form of letter from time to time as and when requested by the said official." During the hearing before this commission Mr. M.A.Jallu, Deputy Secretary- Cum-PIO was informed that above mentioned letter which has been addressed to the registry of the commission has been signed by one Mr. Farooq Ahmad Khan, APIO Kashmir Division. Under the scheme of RTI Act the limited role of APIO is to accept and forward RTI application to the PIO/FAA and the commission if so requested. As per section 7 of the State RTI Act "it is the PIO who on receipt of a request under section 6 shall pass the order within specified period of time either provide the information or denying the same." The PIO Mr. Jallu was accordingly informed that it is only PIO and FAA who are a quasi judicial authorities designated under the Act can pass orders and make submission etc. before the commission, no other officer can usurp the powers assigned to the PIO and FAA as they have to perform quasi judicial powers which cannot be delegated to others unless the law so permits". The SIC order further reads as :
After going through these official notings the commission has found that the PIO erroneously and with a mischievous mind invoked this provision with a purpose to deny the information to the information seeker, a right which has been conferred on the residents of the State as per section 3 read with section 6 of the State RTI Act. The RTI is not only a statutory right but it has been equated with fundamental right as enshrined in the Constitution of India in its chapter on fundamental right, which has been adopted by the Constitution of Jammu and Kashmir State as a part. Therefore, fundamental right cannot be denied to the citizens of the country or residents of the State. But prohibitions under section 8 of the State RTI Act 2009 have been provided are reasonable restrictions for protecting sovereignty and security of the Country. Prohibiting any contempt of a court etc. It would be appropriate to reproduce the provision of section 8(1)(f) which the PIO has invoked which are reproduced as under:-
"Notwithstanding anything contained in the Act, there shall be no obligation to give any citizen's information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;"
This prohibition is specifically meant for that information which has been given to the law enforcement agencies in confidence by any source. The purpose of this prohibition is to safeguard the life and security of a person who acts as a source. Thus denial of information given by a source has to be protected for the safety and security of that source.
Under the present facts and the circumstances of the case this provision of law is not applicable to the information seeker. He wants the information to pursue his claim to promotion which he feels, he has a fundamental right to pursue. The commission fails to understand how PIO has invoked this provision of law out of context and without justification. The aim has been to deny the information but not to apply law.
The PIO is therefore, accordingly directed to explain why penalty as provided under section 17 may not be imposed on him from the date information was to be given till the date information is actually received by him.
The then PIO is also directed to explain why his case may not be referred to appropriate authority for disciplinary action. While being briefed about the correct legal position of section 8(1)(f) and its importance during the hearing before the Commission, the present PIO has offered to provide this information to the information seeker within 10 days from the pronouncement of this order which was made on 26-11-2013 in his presence. The appellant/complainant Mr. Firdous Ahmad Khan is directed to inform this commission about compliance or otherwise of this order by the PIO. The PIO is also directed to serve a copy of this order on the PIO who received RTI application and denied information". |
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