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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2013
(arising out of SLP(C)No.22609 of 2012)
R.K. JAIN …. APPELLANT
VERSUS
UNION OF INDIA & ANR. ` ….RESPONDENTS
J UD G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. In this appeal, the appellant challenges the final
judgment and order dated 20th April, 2012 passed by the
Delhi High Court in L.P.A. No. 22/2012. In the said
order, the Division Bench dismissed the appeal against
the order of the learned Single Judge dated 8th
December, 2011, wherein the Single Judge held that “the
information sought by the appellant herein is the third
party information wherein third party may plead a
privacy defence and the proper question would be as to
whether divulging of such an information is in the
public interest or not.” Thus, the matter has been
remitted back to Chief Information Commissioner to
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consider the issue after following the procedure under
Section 11 of the Right to Information Act.
3. The factual matrix of the case is as follows:
The appellant filed an application to Central
Public Information Officer (hereinafter referred to as
the ‘CPIO’) under Section 6 of the Right to Information
Act, 2005 (hereinafter referred to as the ‘RTI Act’) on
7
th October, 2009 seeking the copies of all note sheets
and correspondence pages of file relating to one Ms.
Jyoti Balasundram, Member/CESTAT. The Under Secretary,
who is the CPIO denied the information by impugned
letter dated 15th October, 2009 on the ground that the
information sought attracts Clause 8(1)(j) of the RTI
Act, which reads as follows:
“R2001168/2009 – ADIC – CESTAT
Government of India
Ministry of Finance
Department of Revenue
New Delhi, the 15.10.09
To
Shri R.K. Jain
1512B, Bhishm Pitamah Marg,
Wazir Nagar,
New Delhi – 110003
Subject: Application under RTI Act.
Sir,
Your RTI application No.RTI/09/2406 dated
7.10.2009 seeks information from File No.27
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3/2002 Ad1C. The file contains analysis of
Annual Confidential Report of Smt. Jyoti
Balasundaram only which attracts clause 8 (1)
(j) of RTI Act. Therefore the information
sought is denied.
Yours faithfully,
(Victor James)
Under Secretary to the Govt. of India”
4. On an appeal under Section 19 of the RTI Act, the
Director (Headquarters) and Appellate Authority by its
order dated 18th December, 2009 disallowed the same
citing same ground as cited by the CPIO; the relevant
portion of which reads as follows:
“2. I have gone through the RTI application
dated 07.10.2009, wherein the Appellant had
requested the following information;
(A)Copies of all note sheets and
correspondence pages of File No.
27/3/2002 – Ad. IC relating to Ms. Jyoti
Balasundaram.
(B)Inspection of all records, documents,
files and note sheets of File
No.27/3/2002 – Ad. IC.
(C)Copies of records pointed out during /
after inspection.
3. I have gone through the reply dated
15.10.2009 of the Under Secretary, Ad. IC
CESTAT given to the Appellant stating that as
the file contained analysis of the Annual
Confidential Report of Ms. Jyoti Balasundaram,
furnishing of information is exempted under
Section 9 (1) (j) of the R.T.I. Act.
5. The provision of Section 8 (1) (j) of the
RTI Act, 2005 under which the information has
been denied by the CPIO is reproduced
hereunder:
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“Information which relates to personal
information the disclosure of which has no
relationship to any public activity or
interest, or which would cause unwarranted
invasion of the privacy of the individual
unless the Central Public Information Officer
or the State Public Information Officer or the
appellate authority, as the case may be, is
satisfied that the larger public interest
justifies the disclosure of such information……”
6. File No.27/3/2002 Ad.1C deals with follow
up action on the ACR for the year 20002001
in respect of Ms. Jyoti Balasundaram,
Member (Judicial), CEGAT” (now CESTAT).
The matter discussed therein is personal
and I am not inclined to accept the view of
the Appellant the since Ms. Jyoti
Balasundaram is holding the post of Member
(Judicial), CESTAT, larger public interest
is involved, which therefore, ousts the
exemption provided under Section 8 (1) (j).
Moreover, Ms. Jyoti Balasundaram is still
serving in the CESTAT and the ACR for the
year 20002001 is still live and relevant
insofar as her service is concerned.
Therefore, it may not be proper to rush up
to the conclusion that the matter is over
and therefore, the information could have
been given by the CPIO under Section 8(1)
(i). The file contains only 2 pages of
the notes and 5 pages of the
correspondence, in which the ACR of the
officer and the matter connected thereto
have been discussed, which is exempt from
disclosure under the aforesaid Section.
The file contains no other information,
which can be segregated and provided to the
Appellant.
7. In view of the above, the appeal is
disallowed.”
5. Thereafter, the appellant preferred a second
appeal before the Central Information Commission under
Section 19 (3) of the RTI Act which was also rejected
on 22nd April, 2010 with the following observations:
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“4. Appellant’s plea is that since the
matter dealt in the abovementioned file
related to the integrity of a public
servant, the disclosure of the requested
information should be authorized in public
interest.
5. It is not in doubt that the file
referred to by the appellant related
to the Annual Confidential Record of a
thirdparty, Ms. Jyoti Balasundaram
and was specific to substantiation by
the Reporting Officer of the comments
made in her ACRs about the third –
party’s integrity. Therefore,
appellant’s plea that the matter was
about a public servant’s integrity
perse is not valid. The ACR examines
all aspects of the performance and the
personality of a public servant –
integrity being one of them. An
examination of the aspect of integrity
as part of the CR cannot, therefore,
be equated with the vigilance enquiry
against a public servant. Appellant
was in error in equating the two.
6. It has been the consistent position of
this Commission that ACR grades can
and should be disclosed to the person
to whom the ACRs related and not to
the third – parties except under
exceptional circumstances.
Commission’s decision in P.K. Sarvin
Vs. Directorate General of Works
(CPWD); Appeal No.
CIC/WB/A/2007/00422; Date of Decision;
19.02.2009 followed a Supreme Court
order in Dev Dutt Vs. UOI (Civil
Appeal No. 7631/2002).
7. An examination on file of the comments
made by the reporting and the
reviewing officers in the ACRs of a
public servant, stands on the same
footing as the ACRs itself. It
cannot, therefore, be authorized to be
disclosed to a thirdparty. In fact,
even disclosure of such files to the
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public servant to whom the ACRs may
relate is itself open to debate.
8. In view of the above, I am not in a
position to authorize disclosure of
the information.”
6. On being aggrieved by the above order, the
appellant filed a writ petition bearing W.P(C) No. 6756
of 2010 before the Delhi High Court which was rejected
by the learned Single Judge vide judgment dated 8th
December, 2011 relying on a judgment of Delhi High
Court in Arvind Kejriwal vs. Central Public
Information Officer reported in AIR 2010 Delhi 216.
The learned Single Judge while observing that except in
cases involving overriding public interest, the ACR
record of an officer cannot be disclosed to any person
other than the officer himself/herself, remanded the
matter to the Central Information Commission (CIC for
short) for considering the issue whether, in the larger
public interest, the information sought by the
appellant could be disclosed. It was observed that if
the CIC comes to a conclusion that larger public
interest justifies the disclosure of the information
sought by the appellant, the CIC would follow the
procedure prescribed under Section 11 of Act.
7. On an appeal to the above order, by the impugned
judgment dated 20th April, 2012 the Division Bench of
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Delhi High Court in LPA No.22 of 2012 dismissed the
same. The Division Bench held that the judgment of the
Delhi High Court Coordinate Bench in Arvind Kejriwal
case (supra) binds the Court on all fours to the said
case also.
The Division Bench further held that the procedure
under Section 11 (1) is mandatory and has to be
followed which includes giving of notice to the
concerned officer whose ACR was sought for. If that
officer, pleads private defence such defence has to be
examined while deciding the issue as to whether the
private defence is to prevail or there is an element of
overriding public interest which would outweigh the
private defence.
8. Mr. Prashant Bhushan, learned counsel for the
appellant submitted that the appellant wanted
information in a separate file other than the ACR file,
namely, the “follow up action” which was taken by the
Ministry of Finance about the remarks against
‘integrity’ in the ACR of the Member. According to
him, it was different from asking the copy of the ACR
itself. However, we find that the learned Single Judge
at the time of hearing ordered for production of the
original records and after perusing the same came to
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the conclusion that the information sought for was not
different or distinguished from ACR. The learned
Single Judge held that the said file contains
correspondence in relation to the remarks recorded by
the President of the CESTAT in relation to Ms. Jyoti
Balasundaram, a Member and also contains the reasons
why the said remarks have eventually been dropped.
Therefore, recordings made in the said file constitute
an integral part of the ACR record of the officer in
question.
Mr. Bhushan then submitted that ACR of a public
servant has a relationship with public activity as he
discharges public duties and, therefore, the matter is
of a public interest; asking for such information does
not amount to any unwarranted invasion in the privacy
of public servant. Referring to this Court’s decision
in the case of State of U.P. vs. Raj Narain, AIR 1975
SC 865, it was submitted that when such information can
be supplied to the Parliament, the information relating
to the ACR cannot be treated as personal document or
private document.
9. It was also contended that with respect to this
issue there are conflicting decisions of Division Bench
of Kerala High Court in Centre for Earth Sciences
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Studies vs. Anson Sebastian reported in 2010 ( 2) KLT
233 and the Division Bench of Delhi High Court in
Arvind Kejriwal vs. Central Public Information Officer
reported in AIR 2010 Delhi 216.
10. Shri A. S. Chandiok, learned Additional Solicitor
General appearing for the respondents, in reply
contended that the information relating to ACR relates
to the personal information and may cause unwarranted
invasion of privacy of the individual, therefore,
according to him the information sought for by the
appellant relating to analysis of ACR of Ms. Jyoti
Balasundaram is exempted under Section 8(1)(j) of the
RTI Act and hence the same cannot be furnished to the
appellant. He relied upon decision of this Court in
Girish Ramchandra Deshpande vs. Central Information
Commissioner and others, reported in (2013) 1 SCC 212.
11. We have heard the learned counsel for the parties,
perused the records, the judgements as referred above
and the relevant provisions of the Right to Information
Act, 2005.
12. Section 8 deals with exemption from disclosure of
information. Under clause (j) of Section 8(1), there
shall be no obligation to give any citizen information
which relates to personal information the disclosure of
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which has no relationship to any public activity or
interest, or which would cause unwarranted invasion of
the privacy of the individual unless the Central Public
Information Officer or the State Public Information
Officer or the appellate authority is satisfied that
the larger public interest justifies the disclosure of
such information. The said clause reads as follows:
“Section 8 Exemption from disclosure of
information.
(1) Notwithstanding anything
contained in this Act, there shall be no
obligation to give any citizen,
xxx xxx xxx
xxx xxx xxx
(j) information which relates to personal
information the disclosure of which has no
relationship to any public activity or interest,
or which would cause unwarranted invasion of the
privacy of the individual unless the Central
Public Information Officer or the State Public
Information Officer or the appellate authority,
as the case may be, is satisfied that the larger
public interest justifies the disclosure of such
information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature
shall not be denied to any person.”
13. On the other hand Section 11 deals with third
party information and the circumstances when such
information can be disclosed and the manner in which
it is to be disclosed, if so decided by the Competent
Authority. Under Section 11(1), if the information
relates to or has been supplied by a third party and
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has been treated as confidential by the third party,
and if the Central Public Information Officer or a
State Public Information Officer intends to disclose
any such information or record on a request made under
the Act, in such case after written notice to the third
party of the request, the Officer may disclose the
information, if the third party agrees to such request
or if the public interest in disclosure outweighs in
importance any possible harm or injury to the interests
of such third party. Section 11(1) is quoted
hereunder:
“Section 11 Third party information. (1)
Where a Central Public Information Officer or a
State Public Information Officer, as the case
may be, intends to disclose any information or
record, or part thereof on a request made under
this Act, which relates to or has been supplied
by a third party and has been treated as
confidential by that third party, the Central
Public Information Officer or State Public
Information Officer, as the case may be, shall,
within five days from the receipt of the
request, give a written notice to such third
party of the request and of the fact that the
Central Public Information Officer or State
Public Information Officer, as the case may be,
intends to disclose the information or record,
or part thereof, and invite the third party to
make a submission in writing or orally,
regarding whether the information should be
disclosed, and such submission of the third
party shall be kept in view while taking a
decision about disclosure of information:
Provided that except in the case of trade or
commercial secrets protected by law, disclosure
may be allowed if the public interest in
disclosure outweighs in importance any possible
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harm or injury to the interests of such third
party.”
14. In Centre for Earth Sciences Studies vs. Anson
Sebastian reported in 2010(2) KLT 233 the Kerala High
Court considered the question whether the information
sought relates to personal information of other
employees, the disclosure of which is prohibited
under Section 8(1) (j) of the RTI Act. In that case
the Kerala High Court noticed that the information
sought for by the first respondent pertains to copies
of documents furnished in a domestic enquiry against
one of the employees of the appellantorganization.
Particulars of confidential reports maintained in
respect of coemployees in the above said case (all
of whom were Scientists) were sought from the
appellantorganisation. The Division Bench of Kerala
High Court after noticing the relevant provisions of
RTI Act held that documents produced in a domestic
enquiry cannot be treated as documents relating to
personal information of a person, disclosure of which
will cause unwarranted invasion of privacy of such
person. The Court further held that the confidential
reports of the employees maintained by the employer
cannot be treated as records pertaining to personal
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information of an employee and publication of the
same is not prohibited under Section 8(1) (j) of the
RTI Act.
15. The Delhi High Court in Arvind Kejriwal vs.
Central Public Information Officer reported in AIR
2010 Delhi 216 considered Section 11 of the RTI Act.
The Court held that once the information seeker is
provided information relating to a third party, it is
no longer in the private domain. Such information
seeker can then disclose in turn such information to
the whole World. Therefore, for providing the
information the procedure outlined under Section
11(1) cannot be dispensed with. The following was
the observation made by the Delhi High Court in
Arvind Kejriwal (supra):
“22. Turning to the case on hand, the documents
of which copies are sought are in the personal
files of officers working at the levels of
Deputy Secretary, Joint Secretary, Director,
Additional Secretary and Secretary in the
Government of India. Appointments to these posts
are made on a comparative assessment of the
relative merits of various officers by a
departmental promotion committee or a selection
committee, as the case may be. The evaluation of
the past performance of these officers is
contained in the ACRs. On the basis of the
comparative assessment a grading is given. Such
information cannot but be viewed as personal to
such officers. Visàvis a person who is not an
employee of the Government of India and is
seeking such information as a member of the
public, such information has to be viewed as
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Constituting 'third party information'. This can
be contrasted with a situation where a
government employee is seeking information
concerning his own grading, ACR etc. That
obviously does not involve 'third party'
information.
23. What is, however, important to note is that
it is not as if such information is totally
exempt from disclosure. When an application is
made seeking such information, notice would be
issued by the CIC or the CPIOs or the State
Commission, as the case may be, to such 'third
party' and after hearing such third party, a
decision will be taken by the CIC or the CPIOs
or the State Commission whether or not to order
disclosure of such information. The third party
may plead a 'privacy' defence. But such defence
may, for good reasons, be overruled. In other
words, after following the procedure outlined in
Section 11(1) of the RTI Act, the CIC may still
decide that information should be disclosed in
public interest overruling any objection that
the third party may have to the disclosure of
such information.
24. Given the above procedure, it is not
possible to agree with the submission of Mr.
Bhushan that the word 'or' occurring in Section
11(1) in the phrase information "which relates
to or has been supplied by a third party" should
be read as 'and'. Clearly, information relating
to a third party would also be third party
information within the meaning of Section 11(1)
of the RTI Act. Information provided by such
third party would of course also be third party
information. These two distinct categories of
third party information have been recognized
under Section 11(1) of the Act. It is not
possible for this Court in the circumstances to
read the word 'or' as 'and'. The mere fact that
inspection of such files was permitted, without
following the mandatory procedure under Section
11(1) does not mean that, at the stage of
furnishing copies of the documents inspected,
the said procedure can be waived. In fact, the
procedure should have been followed even prior
to permitting inspection, but now the clock
cannot be put back as far as that is concerned.
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25. The logic of the Section 11(1) RTI Act is
plain. Once the information seeker is provided
information relating to a third party, it is no
longer in the private domain. Such information
seeker can then disclose in turn such
information to the whole world. There may be an
officer who may not want the whole world to know
why he or she was overlooked for promotion. The
defence of privacy in such a case cannot be
lightly brushed aside saying that since the
officer is a public servant he or she cannot
possibly fight shy of such disclosure. There may
be yet another situation where the officer may
have no qualms about such disclosure. And there
may be a third category where the credentials of
the officer appointed may be thought of as being
in public interest to be disclosed. The
importance of the post held may also be a factor
that might weigh with the information officer.
This exercise of weighing the competing
interests can possibly be undertaken only after
hearing all interested parties. Therefore the
procedure under Section 11(1) RTI Act.
26. This Court, therefore, holds that the CIC
was not justified in overruling the objection of
the UOI on the basis of Section 11(1) of the
RTI Act and directing the UOI and the DoPT to
provide copies of the documents as sought by Mr.
Kejriwal. Whatever may have been the past
practice when disclosure was ordered of
information contained in the files relating to
appointment of officers and which information
included their ACRs, grading, vigilance
clearance etc., the mandatory procedure outlined
under Section 11(1) cannot be dispensed with.
The short question framed by this Court in the
first paragraph of this judgment was answered in
the affirmative by the CIC. This Court reverses
the CIC's impugned order and answers it in the
negative.
27. The impugned order dated 12th June 2008 of
the CIC and the consequential order dated 19th
November 2008 of the CIC are hereby set aside.
The appeals by Mr. Kejriwal will be restored to
the file of the CIC for compliance with the
procedure outlined under Section 11(1) RTI Act
limited to the information Mr. Kejriwal now
seeks.”
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16. Recently similar issue fell for consideration
before this Court in Girish Ramchandra Deshpande v.
Central Information Commissioner and others reported in
(2013) 1 SCC 212. That was a case in which Central
Information Commissioner denied the information
pertaining to the service career of the third party to
the said case and also denied the details relating to
assets, liabilities, moveable and immovable properties
of the third party on the ground that the information
sought for was qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI Act.
In that case this Court also considered the question
whether the orders of censure/punishment, etc. are
personal information and the performance of an
employee/officer in an organization, commonly known as
Annual Confidential Report can be disclosed or not.
This Court after hearing the parties and noticing the
provisions of RTI Act held:
“11. The petitioner herein sought for copies of
all memos, showcause notices and
censure/punishment awarded to the third
respondent from his employer and also details
viz. movable and immovable properties and also
the details of his investments, lending and
borrowing from banks and other financial
institutions. Further, he has also sought for
the details of gifts stated to have been
accepted by the third respondent, his family
members and friends and relatives at the
marriage of his son. The information mostly
sought for finds a place in the income tax
returns of the third respondent. The question
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that has come up for consideration is:
whether
the abovementioned information sought for
qualifies to be “personal information” as
defined in clause (j) of Section 8(1) of the RTI
Act.
12. We are in agreement with the CIC and the
courts below that the details called for by the
petitioner i.e. copies of all memos issued to
the third respondent, showcause notices and
orders of censure/punishment, etc. are qualified
to be personal information as defined in clause
(j) of Section 8(1) of the RTI Act. The
performance of an employee/officer in an
organisation is primarily a matter between the
employee and the employer and normally those
aspects are governed by the service rules which
fall under the expression “personal
information”, the disclosure of which has no
relationship to any public activity or public
interest. On the other hand, the disclosure of
which would cause unwarranted invasion of
privacy of that individual. Of course, in a
given case, if the Central Public Information
Officer or the State Public Information Officer
or the appellate authority is satisfied that the
larger public interest justifies the disclosure
of such information, appropriate orders could be
passed but the petitioner cannot claim those
details as a matter of right.
13. The details disclosed by a person in his
income tax returns are “personal information”
which stand exempted from disclosure under
clause (j) of Section 8(1) of the RTI Act,
unless involves a larger public interest and the
Central Public Information Officer or the State
Public Information Officer or the appellate
authority is satisfied that the larger public
interest justifies the disclosure of such
information.
14. The petitioner in the instant case has not
made a bona fide public interest in seeking
information, the disclosure of such information
would cause unwarranted invasion of privacy of
the individual under Section 8(1)(j) of the RTI
Act.
15. We are, therefore, of the view that the
petitioner has not succeeded in establishing
that the information sought for is for the
larger public interest. That being the fact, we
are not inclined to entertain this special leave
petition. Hence, the same is dismissed.”
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17. In view of the discussion made above and the
decision in this Court in Girish Ramchandra
Deshpande(supra), as the appellant sought for
inspection of documents relating to the ACR of the
Member, CESTAT, inter alia, relating to adverse
entries in the ACR and the ‘follow up action’ taken
therein on the question of integrity, we find no reason
to interfere with the impugned judgment passed by the
Division Bench whereby the order passed by the learned
Single Judge was affirmed. In absence of any merit,
the appeal is dismissed but there shall be no order as
to costs.
………..………………………………………..J.
(G.S. SINGHVI)
………………………………………………….J.
(SUDHANSU JYOTI
MUKHOPADHAYA)
NEW DELHI,
APRIL 16, 2013.
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