SIC-K/SA/33/2012/233 - State Information Commission

File No - SIC-K/SA/33/2012
Decision No. SIC-K/SA/33/2012/233
Author: Mr. Nazir Ahmed, State Information Commissioner.
CORAM: Mr. G. R. Sufi, IRS (Retd.), Mr. Nazir Ahmad.
Title: Mr. Aarif Hussain Shah
Versus
1) Dr. Nisar Mir, First Appellate Authority, Kashmir University.
2) Ms Asmat Kawoosa, PIO, Kashmir University
Decision on: 04.12.2012.
This is a second appeal filed by Sh. Aarif Hussain Shah a resident of the State. The brief
grounds of appeal are as under:-
That the appellant filed an RTI application before PIO/University of Kashmir on
21.05.2011 which has been received by PIO on 23.05.2011. As he was not satisfied with the
reply of PIO, he filed a complaint before this Commission on 12.04.2012. As several allegations
were made in the complaint about the incorrectness of the information given by the PIO,
University of Kashmir, the Commission ordered an Enquiry Committee through Registrar of the
Commission. The proceedings of the enquiry were completed after receiving report of the
Registrar by Commission’s order dated 12.04.2012. Among other observations the Commission
advised the complainant to file an appeal as provided under Section 16 of the State RTI Act 2009
before First Appellate Authority(FAA). This advice was given particularly keeping in view the
Hon’ble Apex Court’s judgement under Appeal No.10787-10788 of 2011 in the case of Chief
Information Commissioner and another V/s State of Manipur. Accordingly the complainant filed a
first appeal before FAA of University of Kashmir on 20.05.2012. The first appeal was received by
FAA on 2 nd June 2012 which was disposed of on 29 th June 2012. This order has been passed on
time which is appreciated.
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Not being satisfied with the adjudication of the FAA, he preferred a second appeal before
this Commission which was received in the Commission on 25.07.2012. As this appeal was
deficient in number of respects, the Commission’s Registry issued a deficiency notice on
26.07.2012 to the appellant to remove deficiencies. In response, the requisite documents were
submitted by the appellant which were received in the Commission on 08.08.2012. These were
examined and the appeal was admitted to be heard on 18.10.2012.
The case was accordingly heard on 08.10.2012. It was noted that in the 2 nd appeal the
appellant has not substantiated how the information given by the PIO was incorrect and therefore,
the appellant was given a chance to substantiate the incorrectness in the information. As the
reply/counter statement were yet to be responded by both the parties and also in view of the
holidays on account of Idd, Dushhera etc. the time limit for disposal of appeal was extended
initially by 20 days beyond the time limit of 60 days. Thereafter, the case was again listed on
23.11.2012. However, both the parties did not attend the hearing due to traffic restrictions and
also the rejoinder of the respondent was yet to be responded by FAA/PIO. Accordingly time limit
was further extended upto 20 th of December 2012.
After going through the rejoinder furnished by the appellant and PIO it was felt that some
issues relating to the exact nature of information and interpretation of the information as
contained in Section 2 of the RTI Act is involved in said appeal. Therefore, the Information
Commissioner Kashmir who was hearing the appeal recommended to the Chief Information
Commissioner to constitute a larger bench to decide the issues emanating from the 2 nd appeal
and examine the arguments and submissions made by both the parties. Hon’ble Chief
Information Commissioner gave his consent on phone for constitution of such Division bench.
The date for hearing in the Division Bench was communicated to both the parties vide
Commission’s notice dated 23.11.2012. FAA/PIO and other representatives of Kashmir University
duly attended the hearing. However, the appellant attended proceedings late and submitted that
he did not receive Commission’s notice dated 23.11.2012 and he was informed on telephone No.
9622403288 today only and hence delay for his appearance before the Commission. The larger
bench accordingly heard both the parties.
The Commission perused all the documents of the appellant and PIO on record and also
heard the arguments of FAA/PIO.
Close scrutiny and perusal of the 2 nd appeal filed in the Commission on 25.07.2012 which
is enclosed with this order (Annexure-I) makes it quite clear that the appellant had not made any
specific grounds of appeal because he had not mentioned what he meant by “not providing
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complete information” and had requested the Commission to direct the PIO to “provide complete
information”, without elaborating what he meant by complete information. However, keeping in
view the objects and spirit of the RTI Act, for bringing transparency, the Commission admitted this
so-called appeal. During the subsequent hearing the Commission directed the appellant to
substantiate his argument which he has done vide letter dated 25.10.2012 received in the
Commission on 08.11.2012 are as under:-
1. Q (IX) and Q (XIII) to Q (XIX) have been replied in 3 contradictory averments.
As per RTI application in Q (IX) the appellant has asked to give reasons for leveling false
and unethical allegations against Sh. Aarif Hussain Shah and give enquiry report (whether these
allegations have been made).
any.
This has been responded to by the PIO by asking the applicant to submit the proof, if
“what” etc.
In Q (XIII) to (XIX) the RTI applicant has asked certain questions as to “why”, “who” and
Q (XIII) has been responded by PIO stating that two enquiries at the Institutional level
involving the applicant are already under process. The applicant has been asked to provide proof
in this regard to the relevant committee.
Q (XIV) to Q (XIX) has been responded by PIO stating that the department and office of
the Chief Proctor had amicably settled the issue on 29.04.2011 and both the warring students
tendered unconditional apologies in this regard duly signed by their relatives who were also
present on the spot.
In Q (XI) the appellant has asked to give the list of all the research scholars who have
completed or are currently doing M Phil/Phd from the Start of the Department till today including
the current batch who have applied to M Phil/Phd mentioning their date of exam/date of
joining/registration date of awarding degree, teaching experience.
PIO has responded to this query and provided date of joining of all those candidates
whose records are available in the Department.
Regarding Q (XII) to provide copy of answer sheets to the appellant of all the MSc
semesters including the internal assessment, which PIO has not provided to him till date, PIO has
submitted that “this is the domain of the Controller of Examinations. However, the continuous
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assessment sheets are destroyed after semester exams as we allow to showing the internal
assessment papers to the students immediately after the test paper is evaluated”.
The appellant while concluding the illustration and explanation of “incomplete information”
has further requested the Commission to direct the respondent to provide evidence on affidavit
alongwith University rules/statutes that the papers have been destroyed after showing to the RTI
applicant.
under:-
The Commission after hearing the parties and perusal of records on file has decided as
Finding of the Commission with regard to Query No. (IX) and (XIII) to (XIX), as narrated
above, is that these do not fall under the definition of “information” under Section 2 Sub-Section
(d). The Act has not only defined “information” but also the “Right to Information” of the citizen, as
defined under Section 2(i) (i to iv). Hence this does not fall under the Act. This issue of what
constitutes all information has also come under the consideration of various High Courts including
Hon’ble Supreme Court which have been provided answer in the negative.
Second point in the appeal is regarding Q (XI) of the RTI application wherein applicant
has sought list of research scholars who have completed M Phil/PhD from the start of the
Department till date mentioning their date of exam/date of joining/registration date of awarding
degree, teaching experience i.e. the period during they were or currently teaching in the
University officially or unofficially.
The appellant submitted that the information supplied to him is incomplete in respect of
date of examination, date of joining/registration and date of awarding degree.
FAA in his order dated 29.06.2012 had directed PIO to elaborate this limb of information
which the PIO has failed to do. PIO is directed to give this part of information which falls under the
definition of “information” and “Right to Information”. If any part of this information is not available,
PIO shall make a self-attested statement and the FAA is directed to ensure that directions given
in his order dated 29.06.2012 are complied with within 30 days from the receipt of this order.
Regarding Q (XII) pertaining to furnishing of copy of answer sheets to the information
seeker of all M.Sc semesters including the internal assessment, respondent has filed an
undertaking which is reproduced as under:-
“I, Prof. Syed Fayaz Ahmad, Registrar University of Kashmir do solemnly affirm
and declare as under:-
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1. That as per the University statutes the record of the internal assessments
(including answer books) shall remain in the custody of HOD/Principal of
the College as the case may be. The said statutes also provide that it
shall be open to inspection by the University for a period not exceeding
six months after the date of declaration of result of particular University
Examination.
2. That the University does not maintain the record of such type of
Examination material after the expiry of six months and normally such
type of material is thereafter destroyed or put to auction.
3. That as per the practice the award roll of such assessment Examinations
are shown to the students immediately after the same are evaluated and
displayed on the notice board.”
A copy of this undertaking be provided to appellant.
Regarding external exam papers, FAA and PIO submitted before the Commission that as
per the practice the answer sheets were retained for 2 years and thereafter destroyed. Presently
Statute provides that answer sheets are destroyed or auctioned after retaining them for one year.
However, appellant insists that the information was asked by him on 23.05.2010 and that despite
lapse of more than 2 years the information has not been given to him. PIO is directed to confirm
or reject this plea.
From the perusal of the records this information has not been given to the RTI applicant.
PIO submitted that it is on the website of the University. This factual statement should be
provided to the RTI applicant alongwith remaining part of reply to Q (XI).
FAA, PIO and appellant are expected that for complying with provisions of State RTI Act,
they are required to have fair knowledge of provisions of the said Act. This is necessary to save
precious time of various Public Authorities, Commission and public at large. What has emerged
from the records which have been brought on the file is that unfortunately there have been
substantial deficiencies in understanding this important legislation and its import. This Act has
come into existence since March 2009 and Commission has started its functions from March
2011. The Commission undertook vigorous campaign to make public authorities, designated
officers and public at large to understand and appreciate the Act which is one of the briefest Act
but serious attention is still lacking. An Institution like Kashmir University which imparts training in
law, and its implementation is expected to be torch bearer to make people understand this Act.
Similarly, information seekers have also been found lacking in appreciation of the provisions of
this Act resulting in wastage of precious time of Public Authorities as well as the Commission. It is
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expected that before citizen invokes his right under this Act, a basic knowledge of the Act is
required.
With these observations and directions the appeal is disposed of.
Sd/-
(G.R. Sufi)
Chief Information Commissioner
J&K State Information Commission
Sd/-
(Nazir Ahmed)
State Information Commissioner
J&K State Information Commission
Copy to the:-
1. Dr. Nisar Mir, Deputy Registrar/First Appellate Authority, University of Kashmir, Hazratbal,
Srinagar.
2. Ms Asmat Kawoosa, PIO/University of Kashmir, Hazratbal, Srinagar.
3. Sh. Aarif Hussain Shah S/o Gayas-U-Din Shah R/o Alfarooq Colony near CRPF Camp
Ahmad Nagar, Buchpora, Srinagar.
4. Stock file.
(Waseem Ahmad Lone)
Assistant Registrar
J&K State Information Commission,
Srinagar
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