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Central Information Commission

2nd Floor, August Kranti Bhawan,


Bhikaji Cama Place, New Delhi 110 066
Website: www.cic.gov.in

Decision No.4193/IC(A)/2009
F. No.CIC/MA/A/2009/000209
Dated, the 21st July, 2009
Name of the Appellant:

Shri. R.L. Kain

Name of the Public Authority:

1. National Commission for Scheduled Castes


2. M/o Social Justice and Empowerment

Facts:

The parties were heard on 22nd April, 28th May and 17th July 2009.

1.

2.
In response to the appellants RTI application dated 26.6.2008, the PIO
replied on 24.7.2008. The PIOs response is re-produced here below:
Sub: Seeking information under RTI Act, 2005 by Shri R.L. Kain
S.No.
RTI Request
1.
The news item appeared in Times of India on
17.06.2008 at page 17 (col. 4-8) (copy enclosed)
reported that the National Commission has
shown its agreement with the Justice Usha
Mehra Commissions report which has
recommended that Scheduled Castes be divided
into groups with the communitys total job quota
apportioned among them in the State of Andhra
Pradesh. If this news items is correct then
please supply the copy of Justice Usha Mehra
Report together with the copy of the State
Governments
request
seeking
advice/recommendations of NCSC as mentioned
in this news clipping and produce the relevant file
for inspection and supply the copy of its decision.
2.

PIOs Reply
The Commission
has not given its
comments in the
issue.

Whether the National Commission for Scheduled The Commission


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If you dont ask, you dont get. - Mahatma Gandhi

Castes has received any such proposal under


sub-clause 9 or any other sub-clause of Article
338 of the Constitution of India either from A.P.
Government or from the Central Government
separately, please clarify the sub-clause and
Article of the Constitution under the which the
above proposal was received NCSC from any of
the authorities on the subject which was
considered by the NCSC and action report
thereon and apprise the specific provisions of the
Entry of List II and III in Seventh Scheduled
under Article 246 of the Constitution of India
under which legal provisions are existed for
groups or sub-groups.

has received the


proposal
under
Article 338(9) of
the Constitution.

3.

Whether the NCSC had also received similar


request in the past from the A.P. government
recommending categorization through statute,
please supply the copy of the recommendations
of the Commission and apprise the specific
provisions of the Entry of List II and III in Seventh
Schedule in Article 246 of the Constitution of
India under which the State Government can
make legislation on the subject or recommend
the same to Central Government for enactment
of law;

Yes, it can be
obtained
on
payment
of
Rs.444/total
pages
222/-as
per
prescribed
rate @Rs.2/- per
page.

4.

Whether it is a fact that Constitution bench of


Supreme Court ha already declared the Andhra
Pradesh scheduled castes (Rationalization of
Reservations) Act, 2000 (A.P. 20 of 2000) as
ultra vires being beyond the legislative
competence of the State and violation of Article
14 of the Constitution in a Civil Appeal Nos.6758
of 2000 E.V. Chinnaiah vs State of Andhra
Pradesh & ors., 6934 of 2000 M/s Malamalandu
Registered Society vs State of Andhra Pradesh
& ors., 7344 of 2000 Mallela Venkata & Ors. Vs
State of Andhra Pradesh & Ors. Civil Appeal
No.3442/2001 Kota Samanth vs. State of Andhra
Pradesh & Ors. On 05.11.2004, if yes, what were
the observations of the National Commission for
Scheduled Castes whether any report was sent
to the Government or to the President of India, if
yes, please supply the copy of the same.
Whether any caste based census of India or any Yes, there is no

5.

part thereof was carried out by the Government Article.


of A.P., If yes, please apprise the Article and
Clauses o the Constitution of India which permit
sub-caste based census i.e. individual castes
under the Scheduled Castes;
6.

Whether the National Commission for Scheduled


Castes has ensured itself in writing that no group
will ever demand for Block-level, Taluka-level,
District-level and State-level modification of
proposed job reservation statute for segmentwise when their population is shown
upward/downward trend in a particular area at a
particular point of time within these segments of
Scheduled Caste and how it will stand for
judicial scrutiny, please apprise the factual
position as per law;

Please refer to
the Report o the
NCSCs & STs on
categorization of
State of A.P.

7.

Whether these different groups have expressed


in writing that they will remain in water tight
compartment of Four Varnas system of Hindu
society and no group will demand for interchange
from one group to another group in future,
whether any State Government or Union of India
has filed nay Appeal or Review petitions against
the above decisions in Civil appeals as quoted in
para 4, if yes, what is the out come thereof, if no
Appeal or Review petitions were filled then as to
why the Government of Haryana and the
Government
of
Punjab
continued
their
categorization orders in operation and what
measures were taken by this Commission or by
the Ministry of Welfare or by DoPT to safeguard
the interests of the Scheduled Caste as a whole;

Please refer to
the Report o the
NCSCs & STs on
categorization of
State of A.P.

8.

Whether is it, correct that the virus of communitywise and sub-groups wise reservation was
invoked/initiated by the Government of Punjab
followed by the Government of Haryana against
the
constitutional
established
scheme
propounded by Baba Saheb Dr. B.R. Ambedkar
as quoted in the majority judgments in all the civil
appeals as mentioned in para 4 of this RTI
application against political exploitation as also
envisaged in the historical Poona Pact made
between Dr. B.R. Ambedkar as the leader of the

The proposal is
under
examination
in
the Commission

Depressed Classes and the Hindus represented


by
Pt.
Madan
Mohan
Malviya,
C.
Rajagopalacharya etc. etc. entering into political
consensus of Joint Electorate instead of
separate Electorate (dual voting right) based
on the principle of Communal Award of 1932
but the National Commission for Scheduled
Castes is propounding the theory of division of
Scheduled Caste communities into groups on the
basis of their sub-castes which is barred by
definition given by Dr. B.R. Ambedkar in the
Constitution Assembly as mentioned in Supreme
court Judgment, in support of the contention that
no political party would exploit the people of the
Scheduled Caste communities on political factor,
if yes, please confirm it categorically:
9.

In case the reply to para 8 is in affirmative then N.A.


please supply the copy of the recommendations
made by the National Commission for Scheduled
Castes to the State Government/Central
Government.

10.

If no recommendations are made on the Justice No


Usha Mehra Commission report of A.P. recommendations
government, please confirm it in writing;
are made by
NCSC so far.

11.

The National Commission for Scheduled Castes


constituted under Article 338 of the Constitution
enjoy the constitutional status and sub-clause 4
of Article 338 empowers the Commission to
regulate its own procedure of functioning etc. If it
is true then please apprise as in how many
cases the Commission had become party in the
court of law to defend and safeguard the interest
of the Scheduled Castes in service matters and
social filed, supply the details thereof whether
the Commission had filled any caveat before the
Supreme Court and High Courts where the
Governmental authorities had exceeded their
limits and ignoring the Commission for taking its
recommendations on the constitutional rights of
Scheduled Castes as had been ignored in the
case of A.P. government while passing the
Andhra
Pradesh
Scheduled
Castes

Visit
the
Commission No.
such figure has
been maintained
in
the
Commission.

(Rationalization of Reservations) Act, 2000


without considering the Report of the National
Commission for Scheduled Castes by the State
Legislature as required under Article 338(9) as
mentioned in the Apex Court judgment dated
05.11.2004, if yes, please supply the particulars
thereof, if not, the reasons thereof;
12.

Is it true that the various Ministries/Departments


under the control of Government of India have
expressed their conflicting and contradictory
views and shift their responsibilities on each
other on account of implementation of the
government policies over job reservations and
social upliftment, if yes, the; National
Commission for Scheduled Castes being the
expertise body to vouch safe the interests of
Scheduled Caste people has revised its own
procedure under sub clause 4 of Article 338 of
the Constitution of India, in view of the fact as an
expertise and constitutional body, if yes, please
supply the copy of the same, if now procedure
has been revised whether the Commission is
going to revise the same in view of the all going.

The
Rule
procedure of
National
Commission
SCs
may
obtained
payment
Rs.100/-

of
the
for
be
on
of

3.
Being not satisfied with the above response, the appellant submitted his
1st appeal dated 5.8.2008 in which he pointed out the inadequacies of information
in respect of each point of PIOs response. He has alleged that in response to
the 1st appeal, the PIO, Shri. Kaushal Kumar, Dy. Director, himself replied after a
lapse of over two and a half months vide his letter dated 23.10.2008 as under:
Sub: Seeking information under RTI Act, 2005.
Sir,
I am directed to refer to your appeal addressed to the Joint Secretary and
Appellate Authority, National Commission for Scheduled Castes on the
above mentioned subject and to say that as per order of the Joint
Secretary and the Appellate Authority, NCSC we can provide you only 26
pages out of total 276 pages as asked by you under RTI Act and your
appeal has been transferred to the concerned department u/s 6(3) of the
RTI Act.
Further it is to inform you that it is not finalized by the National
Commission for Scheduled Castes that whether noting pages of the files
of the Commission can be provided to the appellant under RTI Act or not
as the matter is pending in the Court.

Accordingly 25 pages are enclosed as asked by you under RTI Act.


4.
Subsequently, the appellant submitted his second appeal before the
Commission on 19.12.2008 in which he alleged that the Appellate Authority of
the respondent has not passed the necessary order.
5.
In the meantime, the Appellate Authority heard the matter on 23.1.2009
and passed the order on 16/2/2009, which is as under:
Whereas as per order of the undersigned, the requisite information has
been provided by the PIO, NCSCs and the third party information has to
be supplied by the concerned Deptt. to whom it was transferred under
section 6(3) of the RTI Act. Since the Appellant has sent the 2nd appeal to
the Central Information Commission, New Delhi therefore further action
will be taken after the decision of the CIC.

6.
During the hearing, the appellant stated that he has asked for information
regarding the proposed categorization of SCs in the State of Andhra Pradesh.
The PIO and the Appellate Authority have unduly harassed and furnished
incomplete information. Specifically, he stated as under:
The PIO provided incomplete information and, therefore, he submitted his 1st
appeal, which was not examined and replied within the stipulated period of 30
45 days. On behalf of the Appellate Authority, the PIO himself replied after
78 days or so, by which time he had submitted his 2nd appeal before the
Commission on 19.12.2008.
The appellant was allowed inspection of records and at least 276 pages were
identified by the appellant. But, the respondent has provided 25 pages only
while the remaining documents, 255 pages have not been furnished to him.
The PIO has also not indicated the reasons for refusal of the documents,
which were identified by the appellant. The Appellate Authority too has not
done the needful.
In response to the 1st appeal dated 5.8.2008, the Appellate Authority of the
respondent replied on 16.2.2009 after a lapse of over six months. And, at this
stage, he transferred the RTI application u/s 6(3) of the Act, to the CPIO of
the Ministry of Social Justice and Empowerment, without indicating as to
which part of information was to be provided by the Ministry. The transfer of
his application at this stage was uncalled for as the respondent is the
custodian of information and the appellant had already inspected the
concerned files and identified the required documents.
The appellant pleaded for both initiating penalty proceedings under Section
20(1) of the Act, against the PIO for denial of information for malafied reasons
and awarding of compensation u/s 19(8)(b) of the Act, for harassment by the
officials of the respondent.

7.
The respondents stated that the appellant was allowed inspection of the
concerned files and 25 pages out of the total 276 pages were furnished. For the
remaining documents, this application was transferred u/s 6(3) of the Act, to the
Ministry of Social Justice and Empowerment. The Ministry has replied and
stated that the report on sub-categorization of SCs is very confidential and is,
therefore, not in public domain.

Analysis of Facts and Decision Notice:


8.
The PIO, Shri. Kaushal Kumar has furnished partial information. The
remaining information was promised on payment of Rs.444/- under item 3 of the
RTI response, but it has not been supplied to the appellant. The PIO has not
been able to explain in his oral and written submissions as to why the documents
promised to the appellant on payment have not been provided. This is
attributable to malafied reasons.
9.
In his first appeal dated 5.8.2008 before the Appellate Authority, the
appellant pointed out the major deficiencies or inadequacies in the PIOs
response, as perceived by him. But, the Appellate Authority did not respond
within the stipulated period of 30-45 days. In fact, the Appellate Authority replied
on 16.2.2009, after the appellant had filed his 2nd appeal before the Commission.
And, at this stage, the Appellate Authority chose to transfer the RTI application,
u/s 6(3) of the Act, to the respondent-2, which is unjustified.
10.
Moreover, the Appellate Authority had allowed inspection of the concerned
files so that specified documents could be furnished to the appellant. The
appellant identified 276 pages of documents, of which only 25 pages were
supplied. The reasons for denial of remaining pages of documents have not
been indicated nor any exemption has been claimed u/s 8(1) of the Act. Both the
PIO and the Appellate Authority have, therefore, erred.
11.
The respondent-1, in consultation with the respondent-2, i.e. the Ministry
of Social Justice and Empowerment has refused to furnish the Report on subcategorization of SCs on the ground that the report is confidential and not in
public domain. Had the Report been in public domain, no one would have asked
for it under the provisions of the Act. The respondent has moreover not claimed
exemption under the provisions of the Act. And, therefore, denial of information
merely on the ground of confidentiality of document is not acceptable, unless, of
course, relevant provisions u/s 8(1) of the Act are cited with proper justification
for claiming exemptions from disclosure of information.
12.
The PIO also stated, during the hearing, that on the basis of the Report on
sub-categorization of SCs, a proposal is under preparation for approval of the
Cabinet. Therefore, the Report in question is treated confidential by the

respondents. In response to this, the appellant presented a letter written by the


Chairman of the respondent-1, which states that the Govt. has no proposal to
categorize the SCs. Therefore, the ground for denial of copy of the Report is
unjustified. How can an investigative or study report prepared after wide
consultations among the stakeholders could be treated as confidential? This is
however not understandable.
13.

In view of the foregoing, the following decision notice is issued:

(i)

The sharing of information held by the respondents would lead to greater


participation by the stakeholders, mainly SCs, in articulation of policy on
reservation and positive discrimination, to which the entire nation is
committed. The PIO, NCSC, should therefore provide all the remaining
pages of documents that were identified by the appellant. A copy of the
Report on sub-categorization of SCs should also be provided to the
appellant to enable people to participate in the democratic process of
decision making. The respondent-1 & 2 have not claimed exemption u/s
8(1) of the Act, from disclosure of the Report. The denial of information on
such grounds as confidential or the document is not in public domain, are
not acceptable. Hence, rejected. The documents should therefore be
provided free of cost as per section 7(6) of the Act, within 15 working days
from the date of issue of this decision. The PIOs of respondent-1 & 2 are
accordingly directed.

(ii)

The PIO, Shri. Kaushal Kumar is held responsible for denial of information
without any reasonable cause. This is evident from the following:
First, he assured the appellant to provide certain documents on
payment of Rs.444/- but he did not actually intend to do so. Hence,
refused without proper justification. An assessment of replies
under different items indicates lack of concern for sharing the
information held by NCSC.
Second, in response to the 1st appeal filed by the appellant, the
PIO himself replied on behalf of the Appellate Authority, after the
lapse of about 78 days and decided at this stage to transfer the RTI
application u/s 6(3) of the Act, to the respondent-2, the Ministry of
Social Justice and Empowerment, without indicating as to which
part of information was to be supplied by the CPIO of the Ministry.
This also provided ground at a later stage, for endorsing the
decision of the PIO dated 23.10.2008 by the Appellate Authority
vide letter dated 16.02.2009. A PIO is not expected to examine the
1st appeal filed against the decision of the PIO. He has thus erred.
Third, the documents identified during the inspection have not
been furnished without specifying the reasons, which is attributable

to malafied reasons and constitute violation of Section 7(1) of the


Act. There is no justification for withholding the information, after
the same is allowed for inspection u/s 2(j) of the Act.
(iii)

The PIO, Sh. Kaushal Kumar, should therefore explain as to why a


maximum penalty of Rs.25,000/- (Rupees Twenty Five Thousand only)
should not be imposed on him for obstructing the free flow of information
and ultimately denial of information without any reasonable cause. He
should submit his explanation at the earliest and also appear for a
personal hearing on 19th August 2009 at 12.30 p.m., failing which penalty
would be imposed.

(iv)

The appellant has indeed suffered undue harassment in seeking


information from the respondent-1 due mainly to lackadaisical attitude of
officials of the NCSC. Not only the requested information has been
refused to him, the PIO and the Appellate Authority adopted circuitous and
bureaucratic methods for unnecessarily delaying the matter and finally
disappointing him.
First, the PIO did not properly reply to all the points and furnish the
complete information as discussed above.
Second, the appellants 1st appeal was not dealt with as per the
accepted procedure and provisions of the Act. Neither it was
replied within 30-45 days, as mandated, nor complete information,
as inspected and identified by the appellant was given.
Third, the application was transferred u/s 6(3) of the Act, by the
Appellate Authority, which was not proper. In fact, the identified
documents are maintained by the respondent and the transfer of
application was uncalled for. An application may be transferred at
the initial stage provided the information is held by another public
authority. Why was this done after the inspection of file was
allowed u/s 2(j) of the Act?
Fourth, the 1st Appellate Authority initiated the necessary
proceedings only after the appellant had submitted his 2nd appeal
before the Commission and the appellant was replied after six
months or so.

(v)

In view of the foregoing, we hold that the officials of the respondents have
deliberately adopted such an evasive tactic as would help them in their
design to discourage and harass the appellant from accessing the
information. In the process, the appellant has surely suffered all kinds of
losses - time and money - and harassment in pursuing his RTI application.

14.
The NCSC or its nominee, preferably through Appellate Authority, Shri.
S.S. Sharma, who has allegedly mishandled the entire case, should explain, at
the earliest, as to why a compensation of Rs.25,000/- (Rupees Twenty Five
Thousand only) should not be awarded to the appellant u/s 19(8)(b) of the Act,
for the detriment suffered by him in the process of seeking information. The
respondent-1, through its nominee, should also appear for a personal hearing on
the date and time indicated above, failing which the above amount of
compensation would be awarded to the appellant. The appellant may also be
present.
15.

The appeal is thus disposed of.


Sd/(Prof. M.M. Ansari)
Central Information Commissioner ii

Authenticated true copy:

(M.C. Sharma)
Assistant Registrar
Name & address of Parties:
1.

Shri. R.L. Kain, 66-B, Pocket-I, Dilshad Garden, Delhi 110 095.

2.

Shri. Kaushal Kumar, Dy. Director & PIO, National Commission for
Scheduled Castes, 5th floor, Loknayak Bhawan, Khan Market, New Delhi
110 003.

3.

Sh. S.S. Sharma, Jt. Secretary & Appellate Authority, National


Commission for Scheduled Castes, 5th floor, Loknayak Bhawan, Khan
Market, New Delhi 110 003.

4.

Sh. V.R. Malhotra, Director & PIO, Ministry of Social Justice and
Empowerment, Shastri Bhawan, New Delhi.

5.

The Appellate Authority, Ministry of Social Justice and Empowerment,


Shastri Bhawan, New Delhi.

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All men by nature desire to know. - Aristotle

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