Disclosure of ACR information

Disclosure of ACR information

The disclosure of ACRs to the concerned employee cannot, therefore, be denied in the light of decision/directions of the Hon’ble Apex Court, http://rti.india.gov.in/cic_decisions/FB-19022009-01.pdf
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CENTRAL INFORMATION COMMISSION


2nd Floor, August Kranti Bhavan

Bhikaji Cama Place, New Delhi-110066

(Appeal No. CIC/WB/A/2007/00422 dated 20.4.2007)

Name of the Appellant: Shri P.K. Sarin

Flat No.492, Blok: KG-I

Vikaspuri

New Delhi.

Public Authority: Directorate General of Works

Central Public Works Department (CPWD)

Nirman Bhawan

New Delhi-110 011.

Date of Hearing 10.02.2009

Date of Decision 19.02.2009

Facts of the case:

1. The appellant submitted an RTI application on 7th September, 2006 under Section 6 of the Right to Information Act, 2005 seeking the following information:-

1) Please state the C.R. pertaining to which years considered for clearing Efficiency Bar;

2) Please state the C.R. pertaining to which years considered for the ad hoc promotion from the post of A.E. to the post of EE issued vide No.28/10/2006-EC-I dated 21.4.2006 and also vide No.28/10/2006-EC-I (Voll-II) dated 12.5.2006;

3) What is the minimum criteria (i.e. minimum number of C.R. with grading good) fixed for ad hoc promotion from the post of A.E. to the post of EE issued vide No.28/10/2006-EC-I dated 21.4.2006 and also vide No.28/10/2006-EC-I (Voll-II) dated 12.5.2006;

4) Vacancies of the ad hoc promotion from he post of A.E. to the post of EE issued vide No.28/10/2006-EC-I dated 21.4.2006 and also vide No.28/10/2006-EC-I (Voll-II) dated 12.5.2006 pertains to which period.

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5) Certified copy of the C.R. of P.K. Sarin from 1st April 2003 to 31srt March, 2004.

2. The Public Information Officer of the CPWD in his letter dated September 22, 2006 informed the applicant that the information concerning item no. 1 will be provided by the office of the CE (PWD-I) and stated that a copy of his RTI application is being sent to that office necessary action. He provided the information covered by Items 2, 3 and 4, but in regard to certified copies of the confidential rolls, the CPIO declined to provide the information stating inter-alia as under:

“This information is of confidential nature as the reports are written and reviewed by various officers on the understanding that the remarks will be kept confidential. According to Rule 8(g) of RTI Act, 2005, such information cannot be disclosed which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes. As such, to keep the confidentiality of the officers who have written/reviewed ACRs, this information cannot be provided.”

3. The applicant appealed against the order of the CPIO before the Appellate Authority of the CPWD. In his appeal petition, the appellant submitted that he is entitled to have the information requested by him under the Right to Information Act and that withholding of information is unjustified and illegal. The appellant accordingly requested the Appellate Authority to direct the CPIO to release the information asked for by him under the Right to Information Act.

4. The First Appellate Authority held and directed the PIO to provide the information covering Item Nos.2 and 3 but in regard to supply of certified copy of Confidential Rolls from April, 2003 to March 2004, he suggested that the advice from the Department of Personnel and Training be obtained and action taken accordingly.

5. Aggrieved with the decision of the First Appellate Authority, the appellant approached this Commission under section 19(3) of the Right to Information Act seeking a direction for providing certified copies of the Confidential Rolls for the

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period from April 2003 to March 2004. In his Appeal Petition, the appellant stated that since Efficiency Bar has been allowed, there is no reason to deny the information regarding confidential rolls pertaining to the years considered for clearing Efficiency Bar. The appellant also stated that when adverse remarks are conveyed to individual, there should not be any reason to refuse certified copies of the annual confidential reports. The appellant also cited the decision of the Hon’ble Supreme Court of India in Union of India vs. Nirmal Kumar Tiwari decided in the year 1995 in support of his contention.

6. The appeal petition was received on April 20, 2007 and registered. Notices were issued to the CPIO and to the Appellate Authority asking them to appear and present their case on 15th of October 2008. A copy of the notice was also served on the appellant asking him to appear before the Commission with all relevant papers and documents. The appellant was also informed that if he does not wish to attend the hearing, he may file his submission to the Commission in writing.

7. The Single Bench of the commission heard the matter on 15th October, 2008. The Appellant appeared in person. The CPWD was represented by Shri A.P. Singh, Chief Engineer (P&S), and Shri Jagdish Arora, Section Officer. The Appellant made the following submissions:-

(a) that the ACRs for the years for which his ACRs were considered for crossing efficiency bar in 2000 may be furnished to him.

(b) that a copy of his ACR for the year 2003-04 may be furnished to him in support of which he adverted to the Hon’ble Supreme Court ruling in Dev Dutt Vs Union of India & Ors. (2008)8SCC725 wherein it has been laid down that the contents of ACR are to be furnished to the officer reported upon.

8. As regards point at (a) above, on the basis of office records, Shri A.P. Singh stated that the relevant records have been weeded out due to which this information cannot be furnished to the applicant.

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9. As regards point (b) above, Shri Singh submitted that CPWD had made a reference to DoPT seeking instructions regarding disclosure of ACRs to the officer reported upon whereupon DoPT had issued an Office Memorandum dated 21/09/2007. He also furnished a copy of the said Memorandum to the Commission which was taken on record. Perusal of the memorandum indicates that discretion has been left with the public authority to disclose or not to disclose ACRs to an employee depending upon as to whether the public interest in disclosure outweighs the harm to the protected interest. As regards the Supreme Court ruling referred to above, Shri Singh submitted that CPWD had made a fresh reference to DoPT whereupon the DoPT had reiterated their earlier instructions.

10. The Single Bench took note of the fact that at present only adverse entries are being communicated to the Government employees as per extant rules. The Commission also took note of the decision of its Division Bench in CIC/AT/A/2006/00069 which has held that confidentiality of the ACRs serves a larger purpose which outstrips the arguments for its disclosure. However, in view of the decision of the Hon’ble Supreme Court in “Dev Dutt Vs. Union of India & ors.” - (2008)8SCC725. the Single Bench of the this Commission decided to refer the matter to the Chief Information Commissioner for constitution of a Full Bench of the Commission to hear and decide the issue of disclosure of ACRs in view of the changed circumstances.

11. The Full Bench heard the matter on 10.2.2009. The appellant did not appear and the respondent Public Authority was represented by Shri A.P. Singh, Chief Engineer (P& S).

12. The only question for consideration in this case is as to whether a copy of the ACR of the Appellant for the year 2003-04 can be furnished to him under the RTI Act in view of the above mentioned decision of the Hon’ble Apex Court.

13. During the course of the hearing, it was submitted on behalf of the respondent that the ACRs are confidential by their very nature and that in regard

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to disclosure of ACRs, they are guided by instructions issued by the DoPT. He submitted that as per OM No.10/20/2006-IR dated 21.9.2007 issued by DoPT, ACR is a confidential document and the Official Secrets Act, 1923 is not completely superseded by the RTI Act. Sub-Section (2) of Section 8 the RTI Act, 2005 gives a discretion to the Public Authority to disclose or not to disclose the ACRs of an officer to himself or to any other applicant. It has further been stated that while a Public Authority decides to disclose the ACRs, it should satisfy itself that the public interest in disclosure of ACR outweighs the harm to the protected interests. He further submitted that the department is of the view that the disclosure of ACRs may endanger the lives/interests of the reporting/reviewing/countersigning officers. The ACRs are, therefore, not being disclosed by the department till now as per Rule 8(1)(g) of the RTI Act, 2005. However, the Hon’ble Supreme Court of India in a recent judgment has stated that grading given in the ACRs of an employee, whatever it is, should be communicated to the employee. Pursuant thereto, the matter was referred to DoP&T for seeking an advice in the matter in the light of judgment of Hon’ble Supreme Court of India. DOP&T has advised that till administrative instructions are issued in this regard, the CPIO may take a decision with regard to disclosure of the ACRs in the light of the RTI Act, 2005 and the decision of the Supreme Court. The Chief Engineer also filed copies of relevant Note-Sheets in support of his submissions.

DECISION AND REASONS:

14. In regard to the disclosure of Annual Confidential Report, it has been our view that what is contained therein is undoubtedly ‘personal information’ about that employee. Accordingly, in `Shri Gopal Kumar Vs. Maj. Gen. Gautam Dutt, DGW, Army HQ’ (Appeal No.CIC/AT/A/2006/00069 dated 13.7.2006), a Division Bench of Commission has held that ACRs are protected from disclosure because arguably such disclosure seriously harm interpersonal relationship in a given organization. Further, the ACR notings represent an interaction based on trust and confidence between the officers

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involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public. There are, thus, reasonable grounds to protect all such information through a proper classification under the Official Secrets Act. In this context, it will be appropriate to reproduce the following observations of the Division Bench in its decision in Appeal No.CIC/AT/A/2006/00069:

“In regard to the annual confidential report of any officer, it is in our view that what is contained therein is undoubtedly ‘personal information’ about that employee. The ACRs are protected from disclosure because arguably such disclosure could seriously harm interpersonal relationship in a given organization. Further, the ACR notings represent an interaction based on trust and confidence between the officers involved in initiating, reviewing or accepting the ACRs. These officers could be seriously embarrassed and even compromised if their notings are made public. Thus, there are reasonable grounds to protect all such information through a proper classification under the Official Secrets Act. No public purpose is going to be served by disclosing this information. On the contrary, it may lead to harming public interest in terms of compromising objectivity of assessment which is the core and the substance of the ACR which may result from the uneasiness of the Reporting, reviewing and the accepting officers from the knowledge that there comments were no longer confidential. The ACRs are used by the public authorities for promotions, placement and grading etc of the officers, which are strictly house keeping and man management functions of any organization. A certain amount of confidentiality insulates these actions from competing pressures and thereby promotes objectivity. We, therefore, are of the view that apart from personal information, ACRs of officers and employees need not be disclosed because they do not contribute to any public interest. It is also possible that many officers may not like their assessment by superiors to go into the hands of all and sundry. If the reports are good, these may attract envy and if these are bad, ridicule and derision. Either way it affects the employee as well as the organization he works for. On balance, therefore, confidentiality of this information serves a larger purpose which far out-strips the arguments for its disclosure.”

15. Based on the above decision of the Division Bench, a similar view was taken by this Commission in two other cases, i.e., Appeal No.59/ICPB/2006-C.No.PBA/06/86 (Anil Kumar Vs. Department of Telecommunications) and

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Appeal No. 83/ICPB/2006 – File No. PBC/06/89 (H.K. Bansal Vs. Ministry of Communications) Both appeals were dismissed. This decision of the Commission has also been followed in several other decisions and the Commission has held that the disclosure of ACR is exempt under Section 8(1)(e) of the Right to Information Act, 2005 unless the Competent Authority is satisfied that a larger public interest warrants disclosure of such information.

16. However, even in the case of Gopal Kumar supra decided by the Division Bench of this Commission, we have recognized that there are forceful arguments for a system of open assessment of employees working for an organization, but that should be as a result of a conscious decision by the organization concerned and must be part of an overall systemic change. Till that happens, it was our view that confidentiality of annual assessment of the employees of an organization should be allowed to be maintained, if that is the norm in that organization.

17. The issue concerning the disclosure of ACR also came up before a Full Bench of this Commission in Appeal No.CIC/AT/A/2008/00027 & 00033 (Ms. J.D. Sahay Vs. Ministry of Finance, Department of Revenue) wherein the appellant has forcefully submitted that in view of the decision of the Hon’ble Supreme Court in Dev Dutt Vs. Union of India, the disclosure of ACR cannot be held to be any more exempted. However in view of the fact that this Bench was already seized with this issue, the Commission did not pass any comment in JD Sahay’s case as to whether there is a need to change the hitherto held view of the Commission in regard to disclosure of ACR.

18. In this connection it would be pertinent to refer to the facts of the Dev Dutt case and the issues decided by the Hon’ble Supreme Court of India. Shri Dev Dutt was an Executive Engineer in the Border Roads Engineering Service, which is governed by the Boarders Road Engineering Service Group ‘A’ Rules. He was promoted as Executive Engineer on 22/02/1998 and was eligible to be considered for promotion to the post of Superintending Engineer on completion

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of 5 years in the grade of Executive Engineer, which he completed on 21/02/1993. Accordingly, his name was included in the list of candidates eligible for promotion. The Departmental Promotion Committee held its meeting on 16/12/1994. Shri Dev Dutt was not held to be eligible for promotion but his juniors were selected and promoted to the rank of Superintending Engineer. The reason for this was that the benchmark grade for the Superintending Engineer was ‘Very Good’ for the last five years before the DPC but Shri Dev Dutt had only ‘Good’ entry for the year 1993-94, due to which he was not considered for promotion. Even though ‘Good’ entry for the year 1993-94 was not an adverse entry but the effect of this entry was that promotion was denied to Shri Dev Dutt. It is in this context that the Supreme Court has observed as follows:-

“Thus, in this situation, the ‘Good’ entry, in fact, is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant; it is the effect which the entry is having which determines whether it is an adverse entry or not. It is, thus, the rigours of the entry which is important, not the phraseology. The grant of ‘Good’ entry is of no satisfaction to the incumbent; it, in fact, makes him ineligible for promotion or has adverse effect on his chances.”

19. The Supreme Court has further observed in the judgment as follows:-

“14. In our opinion, every entry1 (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee’ s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit), a person having a ‘good’ or ‘average’ or ‘fair’ entry certainly has less chances of being selected than a person having a ‘very good’ or ‘outstanding’ entry.

15. In most services, there is a gradation of entries, which is usually as follows:

(i) Outstanding

1 Emphasis added by us 8

(ii) Very good

(iii) Good

(iv) Average

(v) Fair

(vi) Poor

A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

16. If we hold that only ‘poor’ entry is to be communicated, the consequences may be that persons getting ‘fair’, ‘average’, ‘good’ or ‘very good’ entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances or promotion (or get some other benefit).”

20. The Supreme Court in this decision held that its earlier decision in U.P. Jal NIgam Vs. Prabhat Chandra AIR1996SC1661 and Union of India Vs. S.K. Goel AIR2007 SC 1199 cannot prevail over the seven Judges Bench decision of the Supreme Court in Menaka Gandhi Vs. UOI & Anr, AIR 1978 SC 597, in which it was held that arbitrariness violates Article 14 of the Constitution. The court further held that fairness and transparency in public administration requires that all entries whether poor, fair, average, good or very good in the ACR whether in civil, judicial, police or any other State service except military must be communicated to him within a reasonable period so that he can make a representation for its upgradation. The Apex Court held that in their opinion this is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.

21. In JD Sahay’s case we have held that the object of RTI Act is to bring transparency and accountability in the working of Public Authorities. The RTI Act confers a right on the citizen to access information held by a Public Authority and every Public Authority is obliged to facilitate this right. ACRs do contain an

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objective assessment of an officer and non-communication of the same has been held to be arbitrary by the Court and as such violative of Article 14 of the Constitution of India.

22. In the case in hand, the Appellant appears to have been denied promotion from Assistant Engineer to the rank of Executive Engineer based on the entry made in his ACR for the relevant period. Prima- facie the facts of this case appear to be similar with that of the case of Dev Dutt. In both the cases, civil consequences have ensued as a result of non-communication of ACR. But it is not for us to pass a decision in regard thereto, as it is for the concerned public authority to take the view and act in accordance with the law laid down by the Hon’ble court. This Commission is only concerned to determine as to whether the ACRs are liable to be disclosed under the Right to Information Act in the context of the recent decision of the Apex Court.

23. In this case, notices were not issued to the Department of Personnel and Training and the Cabinet Secretariat and as such they did not appear. However, both the Cabinet Secretariat and the Department of Personnel and Training were asked to appear and make written submissions before the full bench of this commission in J D Sahay’s case. The Cabinet Secretariat did not appear but in their letter dated 23rd of June 2008, they submitted as follows:

“the question of disclosure/communication of ACRs, comes under the purview of the Official Secret Act,1923, read with section 8(2) RTI Act, 2005. The question of taking a policy decision in this matter comes under the purview of the Department of Personnel and Training as per the Government of India (Allocation of Business) Rules, 1961. The Cabinet Secretariat has no direct role to play in this regard. In view of this, it is considered that there is no need to file a return submission before the CIC on behalf of Cabinet Secretariat.”

The Department of Personnel and Training, on the other hand, did not file any written submissions. However, Ms. Anuradha S. Chagti, Deputy Secretary, DoPT attended the hearing on 5.9. 2008. The respondent Public Authority in this case has submitted before us a copy of the note-sheet that contains the opinion

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of the DoPT as regards disclosure of ACRs. The opinion issued vide DoPT I.D. No.21011/1/2008-Estt(A) dated 26.8.2008 reads as under:

“2. In regard to the disclosure of ACR entries which are adverse, this Department has not issued any instructions after the Supreme Court judgment in Dev Dutt Vs. UOI (Civil Appeal No.7631/2002). After careful analysis of the import of the judgment, the Government have decided to file a Review petition in the Supreme Court in the case.

3. As regards point (b) para 5 of the AM’s note, the IR Seciton, which is the nodal Section for RTI Act, has advised that till the time administrative instructions are issued, the CPIO may take a decision with regard to the disclosure of the ACRs in light of the provisions of RTI Act, 2005 and the decision of the Supreme Court.2

Sd/- (Suneel K. Arora)

Under Secretary(E)”

24. The Hon’ble Supreme Court of India in Dev Dutt’s case supra has clearly laid down that they are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the ACR of a public servant, whether in civil, judicial, police or any other State service (except the Military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. The Hon’ble Court has further declared that that these directions will not apply to Military officers but they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servant) (Para 39, 41)

25. The aforesaid Supreme Court decision relates to communication of entries made in the ACRs, more particularly, the grade assigned to an employee (whether poor, fair, average, good or very good). This still leaves the issue as to whether copies of the ACRs (whether photostat or certified) could be issued to an employee under the Right to Information Act. The Hon’ble Apex Court has stated that the communication of the entries to a public servant must enable him to

2 Emphasis ours 11

make a representation against the entry to the concerned authority. Mere communication of an assigned grade will naturally not enable him to exercise his right of making a representation in an effective manner. The Hon’ble Court has further held that “all this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants”.

26. The objective of the Right to Information Act is also to bring transparency and accountability in the working of all Public Authorities. The disclosure of ACRs to the concerned employee cannot, therefore, be denied in the light of decision/directions of the Hon’ble Apex Court, in which in developing the principle of natural justice that Hon’ble Court has ruled that "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.” This does not however imply that it will necessarily be desirable to provide either a photocopy or a certified copy of the ACRs to a public servant. Similarly, one cannot seek an Annual Confidential Report of some one else as a matter of right. Such disclosure would be permissible only when the larger public interest so warrants.

27. In view of the above, the respondent Public Authority is directed to communicate the entries in the ACRs to the appellant for the period asked for by him in his RTI application within a period of 10 working days from the date of receipt of this Decision Notice.

The appeal petition is thus allowed in part and stands disposed of accordingly.

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Reserved in the hearing, announced on this the 19th day of February, 2009. Notice of this decision be given free of cost to the parties.

(Dr.O.P. Kejariwal) (ML Sharma)

Information Commissioner Information Commissioner

(Wajahat Habibullah)

Chief Information Commissioner

Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.

(L.C. Singhi)

Registrar

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