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  1. rtiindia

    Oral Directions to Civil Servants

    Where the fear of APAR is there, does a junior officer ever get a chance to record that superior officer has given the directions? Even if superior officer gives oral directions, it is actually imbibed by junior officer as his own noting. Both All India Civil Service Rules and Central Civil Service Rules covering most of the Government civil service contains the provision in Section3 from time immortal: The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter; A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing. Supreme Court Decision: "We, therefore, direct all the State Governments and Union Territories to issue directions like Rule 3(3) of the All India Services (Conduct) Rules, 1968, in their respective States and Union Territories which will be carried out within three months from today." Oral Directions to Civil Servants It is not understood why this is a big news for the media, except for creating expectation of unexpected. On the first reaction from most of the officers, it is found that without reading the judgement of supreme court, they have unanimously concluded that from now on all decisions shall be in writing. That superior officer shall give most of the directions in writing. However, with the decision of Hon'ble Supreme Court, nothing changes. Only that SC has emphasised that like AIS rule 3(3) applicable to All India Service Officers, the directions shall be issued by all state Government to be implemented for other officers too. What is means that now the method applied by IAS in the state Government shall need to be followed by other service personnel too like State Services / Provincial Services. There is no change in the way Rule 3 (3) is to be interpreted. Rule 3 (3) in IAS and also in Central Civil Service has always been there from 1964 or so. It is true that the civil servants cannot function on the basis of verbal or oral instructions, orders, suggestions, proposals, etc. and they must also be protected against wrongful and arbitrary pressure exerted by the administrative superiors, political executive, business and other vested interests. Further, civil servants shall also not have any vested interests. Resultantly, there must be some records to demonstrate how the civil servant has acted, if the decision is not his, but if he is acting on the oral directions, instructions, he should record such directions in the file. If the civil servant is acting on oral directions or dictation of anybody, he will be taking a risk, because he cannot later take up the stand, the decision was in fact not his own. Recording of instructions, directions is, therefore, necessary for fixing responsibility and ensure accountability in the functioning of civil servants and to uphold institutional integrity. But does it really change anything in the system? The problem is not who records it, the problem is if it is ever recorded! Where the fear of APAR is there, does a junior officer ever get a chance to record that superior officer has given the directions? Even if superior officer gives oral directions, it is actually imbibed by junior officer as his own noting. And yes indeed he cannot later take up the stand, the decision was in fact not his own. Therefore, implementing the Supreme Court Decision in other Departments and ministries of state Government shall not make much difference in so far as AIS 3 (3) is concerned. One of the discussion thread on Oral Directions in reference to RTI is available here
  2. When an RTI applicant asked for the Service book of Postal Gramin Dak Sevaks (GDS) employees, he got the response that there is no service book maintained for the GDS employees. The CPIO informed that "no service book is maintained for GDS as they are part time workers", although the Hon'ble Supreme Court have held that Gramin Dak Sevaks are holders of civil post outside the regular civil service. As per the Government rules, there is no parity in terms and conditions of employment between the Central Government regular employees and Gramin Dak Sevaks. The Government treats Gramin Dak Sevaks and regular employees of the Government to two distinct and separate groups. Whereas Government employee works for 8 hours, Gramin Dak Sevak work on a part time basis ranging from three hours to five hours per day and are discharged after attaining 65 years of age. If you have any questions, you can post it over our forums here! Legal Status of the Gramin Dak Sevaks: The Gramin Dak Sevaks are governed by separate set of Conduct and Employment Rules, 2001 which are non-statutory in nature and not framed under Article 309 of the Constitution. They are not covered by Central Civil Services (Pension) Rules, 1972, Fundamental & Supplementary Rules, Leave Rules, Central Civil Services (Recognition of Service Association) Rules, 1993 which apply only to regular Government servants. They are paid Time Related Continuity Allowance on a pro-rata basis. They are also paid discharge benefits like ex-gratia gratuity & severance amount at the time of discharge. The women Gramin Dak Sevak are, now, paid maternity grant equivalent to 3 months Time Related Continuity Allowance for the birth of two children. Gramin Dak Sevaks are also eligible for 20 days paid leave in a year. More details can be read from India Post website here! The Decision by which the RTI applicant got the information that No Service book is maintained for GDS employees can be found here!
  3. rtiindia

    The dilemma of the CPIO!

    [caption id=attachment_391" align="alignright" width="300] The dilemma of the CPIO[/caption] Imagine the dilemma of the CPIO! In one of very peculiar case, Director who was once a CPIO became an RTI applicant and demanded records of the document which he himself as Director did not hand over to next incumbent. The CPIO therefore replied the RTI query that "the records were not handed over by the then Director, who is the applicant in the present case, therefore, the information cannot be provided." The appellant was earlier Director in the Animal Husbandry Department. He was responsible for recruitment of a number of attendants in 2009-2010. He has since retired from service. The Department is contemplating registration of a criminal case against him for irregularities committed by him in the recruitment. Besides, he also submits that it is suspected that the appellant took away certain documents relating to the recruitment in question and, therefore, on the basis of incomplete records, it is not possible for PIO to provide information, as requested in the RTI application dated 12.4.2012. The Commission appreciate the dilemma of the CPIO. Even so, the CPIO is directed to give inspection of the available records to the appellant on a mutually convenient date and time. It is, however, clarified that he will not be provided copies of any documents at this juncture.” The dilemma of the CPIO During the hearing the FAA filed his written submissions before the Commission as follows: The appellant retired as Director of DAH&AW. During his period he made a recruitment of Attendant post in the year 2010. He has superannuated on 31.12.2010. He did not hand over the records related to the recruitment of Attendant post. Under the RTI he has submitted four applications of the same issue; The information sought by the appellant relates to certain materials of the recruitment to the post of Attendant in DAH&AW; The materials in question are under dispute, the reason being such materials were found untraceable in this Department for sometime and later the same was received by the Department by post from an anonymous sender. Hence, the genuineness of the received materials is being suspected. The information has been brought to the notice of the authorities concerned and a file was mooted to obtain a written approval to lodge a complaint with the Police so as to ascertain the genuineness of the received material since the same has to be produced before the Hon’ble Court for the litigations filed by some of the applicants of the recruitment. At present, the matter is under investigation with the Police Department based on the request given by this Department; Since the genuineness of the material is suspected and multiple litigations pending with the Court, the exposure of the same would likely affect the investigation process and may also affect the commitments made by the Department in the Court; The matter has been explained to the Commission during the hearing held on 20.11.2012 at New Delhi in respect of RTI application of the same appellant and once again explained to the Commission during the hearing held on 27.2.2013 at Puducherry in the presence of the appellant. You may read the following earlier case law here: Can a Government Employee Ask Question under RTI Act 2005?
  4. [caption id=attachment_110" align="alignright" width="300] RTI and Leaks[/caption] Before the enactment of Right to Information Act, there used to be times when obtaining information from Government would be an act of bravery or reserved to privilege few like Media. There are provisions in the Government Act, regulations and directions which ensures that most of the Government work was and is performed in secrecy and confidentiality. Each an every communication made by any Government official outside was considered to be 'Misconduct'. Rule 11 of the Central Civil Services (Conduct) Rules, 1964 lays down that a Government servant may not communicate directly to other Government servant or to non-official persons or to press any documents or information which may have come into his possession in the course of his public duties. Retention of such documents or information by a Government servant in his personal custody for use in furtherance of his personal interest, e.g. in making representation to the authorities concerned is not only objectionable but also constitutes an offence under Section 5 of the Official Secrets Act, 1923. A person contravening the provisions of the above Act renders himself liable to prosecution. Contravention of the provisions of the Act and of the Conduct Rules can also be dealt with departmentally under the relevant Discipline Rules, and may well justify the imposition of a suitable penalty with reference to the fact and circumstances of each case. [MHA OM No. 24/54/58-Ests., dated the 12th April, 1954] The Official Secret Act is very clear as to what information is classified and how to deal with them. However, most of the Ministries either shall make a file classified by virtue of official norms or shall treat them virtually confidential otherwise. Thus, an information of Government outside Government was treated as 'Leaked'. We shall read newspapers with profound amusement and enthusiasm reading such information. The Medial would and still continues to draw statistical interpretations for our enlightenment on information of Government. But things changed with the enactment of Right to Information Act 2005 and in this subject DoPT states that: "Every Government servant shall, in performance of his duties in good faith, communicate information to a person in accordance with the Right to Information Act, 2005 (22 of 2005) and the rules made thereunder." The ccs conduct rules 1964 available over the DoPT website however continues after the above statement as follows: "Provided that no Government servant shall, except in accordance with any general or special order of the Government or in performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or classified information to any Government servant or any other person to whom he is not authorised to communicate such document or classified information." From the above it is clear that on one hand there still hold the sword of Misconduct on giving information by Government Servant, there is a ray of hope by way of Right to Information Act. Recently there was again allegation over Comptroller and Auditor General (CAG) of leak of information to Press. Denying the allegations that the CAG draft report was leaked, Comptroller and Auditor General (CAG) of India Shri. Vinod Rai has said that he has already cleared his stand to the PM and Lok Sabha speaker. Shri. Rai, who was in Jaipur on Saturday said the allegations that draft report was leaked. “CAG comes under Right to Information (RTI) Act. If someone wants information under RTI, we cannot deny him. Draft report was also given officially under RTI,” said Rai who had come to the city for the launch of International Centre for Environment Audit & Sustainable Development (ICED), the training and research facility of CAG. Thus the era of 'Leaks' is getting over with enactment of Right to Information Act. Do you think the media will loose the punch as more and more common citizen draws information and statistics from information obtained from Government by using Right to Information Act even before it is published?
  5. The disclosure of APAR (Annual Performance Appraisal Report) of Government official has been the hot topic after the implementation of the RTI (Right to Information) Act was passed in 2005. Various RTI have been filed to obtain the APAR from the Government organisations. It has been established that the APAR is to be revealed to the individual for whom it has been written. You may go through this discussions here! [caption id=attachment_33" align="alignright" width="300] The APAR of Government Officer[/caption] The ACR (now APAR) is to be disclosed to the officer reported upon only. Except Military Officers, all other officers are entitled to get copy of their own ACR/APAR. ACR/APAR cannot be disclosed to third party. PDF copy of Judgment is available in below link: SUPREME COURT - Dev Dutt's case : SUPREME COURT ON ACR - DEV DUTT Vs UoI 12-5-2008.pdf FULL BENCH CIC DECISION ON DISCLOSURE OF ACR/APAR - CIC - ACRs NOT DISCLOSABLE TO 3RD PARTY -- EPFO Vs MRUDULA GHAI - CIC-SM-C-2011-000934-M-66093 d.pdf As per Supreme Court (DB) judgment in Dev Dutt case (Civil Appeal No.7631 of 2002), ACRs are disclosable only to the officer(s) to whom they belong. These cannot be provided to third party. (Read para-39 of the Judgment). However, the latest one is the decision of Hone'ble SC (3rd Oct, 2012 SLP (Civil) No. 27734 of 2012 G R Deshpande Vs CIC ), where Hon'ble SC has clearly said that, unless a larger public interest is involved, APAR (earlier ACR) can not be disclosed to third party. {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. 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 of 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.... ......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. } Apex court - APAR cannot be disclosed to third party if overriding public interest is not established
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