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karira

Caste certificates of Govt employees are deniable under RTI

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karira

Quoting the Girish Deshpande judgment of the Apex Court, the CIC has ruled that caste certificates of individual employees, which they submitted at the time of recruitment, are deniable under RTI.

 

It is fairly obvious that the caste and educational certificates of an employee are in the natureof personal information about a third party. The employee might have filed these documentsbefore the appointing authority for the purpose of seeking employment, but that is not reasonenough for this information to be brought in to the public domain to which anybody couldhave access.

 

The Supreme Court in Girish Ramchandra Deshpande v. CIC & Ors., [sLP 27734 of 2012]has held,

 

“13. … The performance of an employee/officer in an organization is primarily amatter between the employee and the employer and normally those aspects aregoverned by the service rules which fall under the expression “personalinformation”, the disclosure of which has no relationship to any public activity orpublic interest. On the other hand, the disclosure of which would causeunwarranted invasion of privacy of that individual. Of course, in a given case, ifthe Central Public Information Officer or the State Public Information Officer ofthe Appellate Authority is satisfied that the larger public interest justifies thedisclosure of such information, appropriate orders could be passed but thepetitioner cannot claim those details as a matter of right.”

 

Keeping in view the above, we concur with the submissions of the CPIO that the informationis exempted from disclosure as no larger public interest is established.The appeals are disposed of accordingly.

 

 

Full decision of the CIC is attached to this post.

Caste certificates of Govt servants deniable under RTI.pdf

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G.R.Vidyaranya

Hence we can conclude that while seeking copies of caste and educational certificate of Govt. Employees, it is absloutely essential to establish larger public interest. Otherwise, the application could be denied. One more hurdle to cross.

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G.R.Vidyaranya

Our friend JPS sir has done a good job writing to CIC but will they reconsider its judgement based on this letter (with enclosures) or will it be necessary to go for WP?

 

Recently the Delhi Law Min was found to have submitted a fake degree cert before the Bar Council which has now decided to cancel his registration. If such degree and caste certificates get proteced under personal info how can such scams be exposed?

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jps50

Whether decision is reviewed or not [and most probably not], at least I could point out deficiency in decision to the IC concerned, so that hopefully in future such decisions will not be taken. I have observed that at times ICs have corrected their future decisions, may be after perusing my social audit report. I presume that ICs are also human beings like us and at times they do err due to lack of knowledge of judgements or previous decisions of other ICs on the same matter.

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RAVEENA_O

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 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 candidate 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.

 

(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 –

 

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 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 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 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 appointment, are required to be dealt with great confidentiality. The information may come to 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 conferred to that individual in a convocation, meaning thereby that such a qualification is publicly celebrated and there is nothing which 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 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.

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G.R.Vidyaranya

I suggest both @jps50 and @RAVEENA_O apply for the post of IC so that more people could benefit from their knowledge and experience.

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MANOJ B. PATEL

The details of the qualification of govt. officials is not persona in nature and as such can be supplied; " Praveen Sakuja v. Export Inspection Council of India, Appeal No. ICPB/A-17/CIC/2006 decided on 10.5.2006.

When a candidate submits his application for appointment to a post under PA, the same becomes a public document, and its disclosure can not be objected on the grounds of invasion of privacy: Bhagvan Chand Saxena v. Export Inspection Council, Appeal No. ICPB/A-9/CIC 2006 decided on 3.4.206(CIC) refered in J. Shivkumar v. Bharat Earth Movers Ltd., Appeal No. CIC/WB/A/2007/00880-SM, decided on 20.11.2008(CIC)

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koteswararaonerella

one of my case on similar lines was heard by honourable CIC Sri. Basanth seth, file No. CIC/BS/A/2014/0000623/7062 dated 25-02-2015 and the CPIO tried to invoke the above judgement but I could convince the CIC and got information for two of four important points which resulted in my getting the required information . I have already uploaded the judgement in the portal.

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rameshverma

Post 6

 

R/Raveena Ji, with all humility at my command, I beg to differ with the opinion propounded by you on the instant subject. Without dilating on the issue and burdening the thread unnecessarily, I draw your kind attention to:-

 

1. Apex Court Order dated 6.8.2013 in CIVIL APPEAL NO. 6362 OF 2013 (Arising out of SLP© No.16870/2012) titled Union Public Service Commission Versus Gourhari Kamila which set aside the contrary judgment of Delhi High Court.

 

2. HIGH COURT OF DELHI decision dated 30th March, 2012 in LPA 253/2012 titled SHRI HARISH KUMAR Versus PROVOST MARSHAL-CUM-APPELLATE AUTHORITY & ANR.

 

3. HIGH COURT OF DELHI decision dated 08.11.2013 in W.P.© 5812/2010 titled UPSC versus PINKI GANERIWAL.

 

There are other umpteen number of judgments of different HCs across the country, on the issue of disclosure of educational certificates/date of birth/experience certificates/caste certificates etc. submitted to recruiting agencies by prospective candidates, which lays down the inescapable conclusion that such documents are exempt from disclosure in view of S. 8(1)(e and/or j) unless the larger public interest dictates otherwise.

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harinder dhingra

Dear All,

 

Last year, I was trying to prove that recuritments done in Congress regime was only for one community except where the posts were reserved for SC/ST & other reserved category.

 

The Haryana Police denied information on the above mentioned grounds but during second appeal lasting number of hearings, it was held by Hon'ble SIC (the ex chief secretary of State) that if the performa for job application had the column of Caste then it has to be provided and the same were provided and that is how I was able to prove that all 90 % of jobs were given to then Hon'ble CM community in Haryana Police.

 

It is all-together different story that the same was used and misused by various political parties in Haryana in Oct Assembly elections with desired results.

 

hd

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Prasad GLN

The Supreme Court in Girish Ramchandra Deshpande v. CIC & Ors., [sLP 27734 of 2012] applies to educational qualifications of PM also ?

If so why this hue and cry in twitter about particulars of his educational qualifications when there is no larger public interest involved in knowing his educational qualifications by a citizen ?

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harinder dhingra

Learned Mr G L N Prasad Sir,

 

If so why this hue and cry in twitter about particulars of his educational qualifications when there is no larger public interest involved in knowing his educational qualifications by a citizen ?

 

Sir, You know what happens on twitter. The PM qualification and copy/ies of degree are non-issues.

 

 

hd

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Prasad GLN

I am not worried about what is happening on twitter, but such information is given by an RTI Activist, on denial of such information from PMO, as per SC judgment.

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harinder dhingra

Learned Mr G L N Prasad Sir,

 

but such information is given by an RTI Activist

 

sir, you know, we have all sorts of people. Let us ignore them.

 

hd

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jps50

I quote as under from judgement dated 04-03-2013 of Punjab & Haryana High Court in CWP No.4239 of 2013 (O&M) - Vijay Dheer v/s State Information Commission

 

“…….A part of information/documents sought by the complainant, relates to the mode of appointment/promotion of a person on a public post, therefore, Information / documents to that extent fall under the domain of larger public interest. The documents on the basis of which a person has sought an appointment in a public office becomes the documents of larger public interest." [emphasis added]

 

 

Please also refer attachment.

RECRUITMENT- EDUN CERTI 050415.pdf

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MANOJ B. PATEL

Cast certificate of public servant can be disclosed - IC, SA.

 

file:///C:/Users/dell%20pc/Downloads/CIC_SA_A_2015_000038_M_155207.pdf

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harinder dhingra

Yes Learned Mr Manoj B Patel Sir,

 

hd

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sppataskar

But the orders of the CIC are based on the judgement of the Supreme Court as mentioned in last para of the orders. Still can we say that it could not stand to the scrutiny of the Law?

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jps50

In no judgement SC has made caste certificates undisclosable under RTI Act. Girish Deshpande judgement is being misused by PIOs to save those who would have used fake certificates. Currency notes to all types of certificates are under doubt for common men in India, which is reduced to fakeing country. There is corruption in getting fake certificates of all types and also for not exposing.

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