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Caste certificate and rti

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RAVEENA_O

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The Central Information Commission in Second Appeal cases - F.No. CIC/SS/A/2013/ 002007-YA, F.No. CIC/SS/A/2013/002514-YA & F.No. CIC/SS/A/2013/ 002008-YA decided on 13/11/2014 held that the caste and educational qualifications of an employee is personal information of third party.

The Information Commission erred in passing such an order holding that the Caste Certificate is exempted from disclosure under Section-8(1)(e) and 8(1)(j) of RTI Act.

The Commission denied disclosure of caste certificate mainly claiming exemption on the ground of fiduciary relationship and invasion of privacy of individual falling under Section-8(1)(e) and 8(1)(j) of the Act, by quoting citation from Supreme Court decisions. The caste certificate of an employee is on record as submitted by him as a prospective candidate for the recruitment, along with his application for recruitment and has become part of the recruitment process, and later become part of service record in post recruitment period. The caste certificate of an employee has no relation to his performance in that organization. The Central Information Commission failed to establish as to how fiduciary relationship exists between a prospective candidate and a recruitment authority, when the prospective candidate submitted caste certificate to the recruitment authority. The Commission also failed to establish whether there shall be invasion of privacy of an individual by disclosing his caste certificate. The commission arrived at a wrong conclusion without properly appreciating and adjudicating these two core issues.

 

Fiduciary relationship is well explained by the Hon'ble Apex Court in the case of CBSE Vs Aditya Bandhopadhyay (Para-20 to 27). An applicant who once submitted an application along with caste certificate to a recruiting authority, which discharges a statutory duty, does not maintain any relationship, much less fiduciary relationship with that recruiting authority. The Recruiting authority is not duty bound to act for the exclusive benefit of a particular candidate who submitted caste certificate, in the fiduciary relationship, but shall be required to act reasonably and fairly and consider the merit amongst various candidates and may be required to act against the beneficial interest of such candidates who submitted caste certificates. The recruiting authority which received the caste certificate need not protect the beneficial interest of that individual candidate but required to consider the meritorious candidate amongst those submitted similar certificates. The recruiting authority is therefore required to act with utmost objectivity and not for the beneficial interest of the candidate who submitted a caste certificate. The recruiting authority shall reject the candidature of that particular candidate in consideration of merit of other candidates, without the consent and knowledge of the candidate. Thus, the recruitment authority is not required to act for the best interest and benefit of the candidate in question. The recruitment authority is required to act for the benefit of third party (other candidates of merit) without the consent of the candidate in question. Therefore there no element of fiduciary relationship exists between the prospective candidate and the recruiting authority.

Moreover, once an application is submitted to the recruiting authority, the recruiting authority acts in its own without any interactive or consultative relation with the candidate. The relation between recruitment authority and the prospective candidate is limited to the conduct of recruitment. Therefore there is not even an iota of fiduciary relationship between the candidate and the recruitment authority. The Caste Certificate issued by a public authority, which is relied and acted upon by another public authority for the purpose of recruitment. Thus, the Caste Certificate is a public document in public domain and cannot become a document held by the later in fiduciary relationship. Central Information Commission therefore failed to appreciate the factual and legal position of the issues involved and erred in holding that the Caste Certificate is exempted from disclosure u/s 8(1)(e) of the RTI Act.

The next issue involved is invasion of the privacy of an individual. Before adverting to this issue, it is necessary to have a close look at Section-8(1)(j) of the Act.

Quote
(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:

The first condition is the relationship to any public activity or interest. In this case, the caste certificate in question has become part of public record out of the recruitment process. The process of recruitment starts by the recruiting authority, well before a person is appointed to a post. Recruiting authorities such as UPSC, SSC, SPSC, PESB, RRB etc. are entrusted with public activity of recruitment to public service in accordance with the express provisions of the Constitution. Recruitment is therefore a public activity.

Recruitment process has involvement of a large number of citizens. Large numbers of candidates become desirous to avail the benefit of recruitment and participate in the recruitment process. Thus, beneficial interest of a class seeking employment is involved in any recruitment. Recruitment process is done in accordance with the policy and rules framed by Government. Recruiting authority is required to act in fairness and within the framework of the recruitment Rules so framed by the Government. Therefore, recruitment is a public activity having public interest.

The caste certificate in question is submitted by the candidate in response to recruitment call by Recruiting Authority as part of its public activity. Recruiting authority considered and acted on such caste certificate in discharge of its public activity and extended statutory benefits to the candidate in exclusion of other similarly situated or better situated candidates of other categories. The consideration applied by recruiting authority is based on caste certificate submitted by the candidate. Therefore the caste certificate in question has relation to public activity as well as public interest.

The next issue emanating from Section-8(1)(j) is the unwarranted invasion of the privacy of the individual.

A mere look at the contents of the OBC Caste Certificate would reveal that it contains very simple aspect i.e –

Quote
This is to certify that Mr/Mrs/Miss…………. Son/daughter of …… of village ……… District/Division ……… in ………. State belongs to ……… community which is recognized as a backward class under:

 

[1] ……………. (Govt Resolution No. and date under which that community is included as other backward class.)

 

Shri. ……….. and/or his family ordinarily reside(s) in the …………… District / Division of the ……………State. This is also to certify that he/she does not belong to the persons/sections (Creamy Layer) mentioned in Column 3 of the Schedule to the Govt of India, Dept of Personnel & Training OM No. …. Dt 8.9.93, which is modified vide OM no….. dated 9.3.03.

The contents of this certificate only indicate the caste, village, and district of residence of the person to whom it is issued. This certificate is issued by a statutory authority in compliance and discharge of statutory duty. This is a public document issued for availing certain statutory benefits by the person concerned in exclusion of other similarly situated persons. Neither the caste of an individual nor his ordinary place of residence are confidential or protected privacy. A person’s caste or community and place of residence (Village and District) are openly known to the entire village or area. Disclosure of the contents of this certificate cannot therefore invade the privacy of that individual. Even after appointment, the caste and native place of an employee is reflected in various other public documents such as seniority list, LTC declaration etc which are widely circulated and hence not protected privacy. The Caste certificate contains no such information which may invade the privacy of that individual. The commission therefore erred in holding that the disclosure of the caste certificate shall invade the privacy of that individual.

The commission further failed to appreciate the core issues involved, while denying the information relying on the Apex Court decision on Girish Deshpande’s case. The judgment on Girish Deshpande interpreted and defined the term “personal information”. The substantial question of law considered by Apex Court, in that case, was whether the Information Commission acting under the Right to Information Act, 2005 was right in denying information regarding the personal matters pertaining to service career 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 and held that the performance of an employee/officer in an organization 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.

The document sought (Caste Certificate) in this case is not pertaining to the service career or generated during service career of that employee. The Information Commission failed to appreciate and differentiate between service career and recruitment. The Caste Certificate in question found a place in service record since it was submitted by the candidate to the Recruiting Authority in response to the recruitment call, which is a Public Activity entrusted to recruiting authorities such as UPSC, SSC, SPSC, PESB, RRB etc. The recruitment call and its process are public activities. The process of recruitment started by the recruitment authority well before a person is appointed to a post in public service. Recruitment is a public activity involving a large number of citizens having the beneficial interest and the recruiting authority is required to act in fairness and within the framework of the recruitment rules. Therefore, recruitment is a public activity having public interest.

The caste certificate in question, submitted by the candidate in response to recruitment call by the Recruiting Authority has become part of its public activity. The Recruiting authority considered and acted on such caste certificate and extended statutory benefits to the candidate in exclusion of other similarly situated candidates or better-situated candidates in other categories. Therefore the caste certificate in question has a definite relation to public activity as well as public interest.

What is dealt with by Hon'ble Apex Court in the case of Girish Deshpande is the performance of an employee in an organisation and service matters pertaining to such performance. The issue involved in the present case is with respect to parting of Caste Certificate submitted by a candidate to a recruiting authority during public activity of recruitment, which became part of service record, originated prior to the recruitment and appointment of that individual to public service. That part of service record pertaining to the recruitment and appointment of that employee, has no relation to the performance of that employee in that organization. The cited decision of Apex Court did not adjudicate any issue with respect to recruitment process and the issues pertaining to that public activity. Therefore the facts and circumstances, as well as the ratio of that judgment, is not applicable to the instant case dealt with by the Central Information Commission.

The decision of Apex Court dated 13/12/2012 in the case of Bihar Public Service Commission Vs. Saiyed Hussain Abbas Rizwi & Anr relied by the Information Commission is not germane to the facts and circumstances of the present case. What is dealt with in the cited portion is about weighing the larger public interest between the right to privacy and right to information? The other point dealt with by Apex Court in that judgment is about secrecy in appointment i.e. "Certain matters, particularly in relation to the appointment, are required to be dealt with great confidentiality. The information may come to the knowledge of the authority as a result of disclosure by others who give that information in confidence and with complete faith, integrity and fidelity. Secrecy of such information shall be maintained, thus, bringing it within the ambit of fiduciary capacity." The Commission has wrongly assumed that the Caste Certificate in question fall within the ambit of this Certain Matters, which was never the interpretation of the Hon'ble Apex Court.

The educational qualification of an individual is not confidential or secret. Such qualifications are conferred to individuals in convocations, meaning thereby that such qualifications are publicly celebrated and there is nothing which affect the privacy of an individual. On the other hand it add a feature to the cap of that individual. How can it affect the privacy of an individual?

The Central Information Commission has arrived at an erroneous conclusion that the caste and educational qualifications of employees are a personal and third party. The decision is unfounded and not based on sound and justified reasoning. Hence, the decision cannot stand scrutiny of law and required to be challenged before the High Court.

 

BLOG - CASTE CERTIFICATE UNDER RTI.pdf

 

Discussion thread: Caste certificates of Govt employees are deniable under RTI

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