Mr.Kulbhushan Dania vs Directorate Of Education,

Mr.Kulbhushan Dania vs Directorate Of Education, Gnct, ... on 26 November, 2010

CENTRAL INFORMATION COMMISSION

Club Building (Near Post Office)

Old JNU Campus, New Delhi - 110067

Tel: +91-11-26161796

Decision No. CIC/SG/A/2010/002555/10173

Appeal No. CIC/SG/A/2010/002555

Relevant Facts emerging from the Appeal:

Appellant : Mr. Kul Bhushan Dania, 18-LF, Tansen Marg, Near Bengali Market,

New Delhi- 110001

Respondent : Ms. Usha Kumari, PIO & DDE (E),

O/o Deputy Director of Education,

Directorate of Education, GNCTD,

District East, Anand Vihar,

Delhi- 110092

RTI application filed on : 17/07/2010

PIO replied on : 27/07/2010 and 01/09/2010 (After FAA's order) First Appeal filed on : 30/07/2010

First Appellate Authority order of : 27/08/2010

Second Appeal received on : 10/09/2010

Date of Notice of Hearing : 27/09/2010

Hearing Held on : 26/10/2010

The children of the Appellant namely, Vineet Dania and Swaril Dania were studying in Class XI of Mother Teresa Public School, Preet Vihar, New Delhi- 110092 (the "School"). The Principal of the School had taken an arbitrary decision to provide a stream other than Science to the Appellant's children without the consent of the Appellant.

Information sought:

The Principal of the School to provide copy of the set of records duly authenticated by the Principal pertaining to the arbitrary decision of providing streams other than Science without the consent and knowledge of the Appellant with the basis of the relevant rules/ regulations of the School/Directorate of Education, GNCTD.

Reply of the Public Information Officer (PIO):

The required information cannot be obtained from a private recognized school under the RTI Act.

Grounds for the First Appeal:

Dissatisfied with the reply of the PIO.

Order of the First Appellate Authority (FAA):

The FAA observed that complete information was not provided to the Appellant. The PIO & DDE (E) was directed to provide a revised reply to the Appellant within seven days specifying the reasons and provisions for denial of information under the RTI Act. The Appeal was disposed off. Page 1 of 4

Further to the order of the FAA, the PIO & DDE (B), by letter dated 01/09/2010, informed the Appellant that the information sought was non- existent as was evident from the status report of the complaint of the

Appellant on the said matter. As per the said status report signed by the Superintendent, O/o DDE (E), a

complaint was filed by the Appellant against the School wherein it was alleged that the Principal of the

School had provided subject stream other than Science to the children of the Appellant without the consent of the Appellant who was their lawful guardian. A meeting was called at the office of DDE (E) wherein the Principal, the Appellant and both the children were present. On investigation it was revealed that there was a dispute between the Appellant and his wife. The children stated that they had chosen the subjects as per their interests and potential and had not been forced either by the Principal or their mother. The mother of the children stated that she was the custodian of the children as per the order of the High Court and that the children had chosen the subjects with their interest and her consent. Since there was no substance in the complaint filed by the Appellant, the matter was closed under the Delhi School Education Act, 1973 (the"DSEA").

Grounds for the Second Appeal:

Dissatisfied with the information provided by the PIO.

Relevant Facts that emerged during the hearing held on October 26, 2010: The following were present:

Appellant: Mr. Kul Bhushan Dania;

Respondent: Ms. Usha Kumari, PIO & DDE (E);

"The Appellant has sought information about the actions of a private unaided school. The PIO stated that

since the School was a private unaided school, it was not a public authority and hence the RTI application

could not be transferred to it. The Appellant claimed that the department can access the information sought from the School and therefore the department must obtain the information and provide it to him. In this regard, the Appellant quoted Section 2(f) of the RTI Act and claimed that the information came within the category of "information relating to any private body which can be accessed by a public authority under any other law for the time being in force". The Appellant also relied on four decisions given by the Commission namely, CIC/WB/A/2006/00618 dated 22/08/2006, CIC/MA/A/2008/01068 and 01069 dated 26/09/2008, CIC/MA/A/2008/01117 dated 14/07/2010 and CIC/MA/A/2007/00867 dated 22/01/2008. The Appellant alsodrew the attention of the Commission to Para (II) of the Appeal in support of his contention." The decision was reserved during the hearing held on October 26, 2010.

Decision announced on 26 November 2010:

The Commission perused the four decisions submitted by the Appellant. The decisions of the Commission in S. C. Mazumder v. Survey of India, Kolkata CIC/WB/A/2006/00618 dated 22/08/2006 and Mohd. Sultan Khan v. Dept. of Posts CIC/MA/A/2007/00867 dated 22/01/2008 were irrelevant.

In Lalit Mohan Gupta v. Directorate of Education, GNCTD CIC/MA/A/2008/01068 + 01069, the information sought pertained to an unaided senior secondary school and was denied by the PIO on the basis that the said school was not a public authority under the RTI Act. Professor M. M. Ansari, Information Commissioner, by his decision dated 26/09/2008, held that all educational institutions especially those which have obtained land from the government at subsidized rates enjoyed recognition by the government, followed the guidelines for offer of various educational programmes and enjoyed affiliation to bodies such as CBSE, were necessarily performing a public function. Therefore, such institutions should be covered under the RTI Act to ensure transparency and accountability in their functioning. Therefore, the PIO was directed to seek assistance under Section 5(4) of the RTI Act from the Principal/ Deemed PIO of the concerned school and provide the information to the applicant. In other words, whether a body is performing a public function directed at

serving the larger public good, has been Page 2 of 4 used as a factor to determine whether the concerned school was a "public authority" under Section 2(h) of the RTI Act.

Section 2(h) of the RTI Act defines the term "public authority" as follows:

""public authority" means any authority or body or institution of self government established or constituted,--

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"

On a plain reading of the definition of "public authority" given above, it appears that whether a body is

performing a public function or not is not a factor to determine whether such body is a public authority. The Commission cannot read in 'public function' as a criterion to determine whether a body is a public authority or not when 'public function' has not been expressly mentioned in Section 2(h) of the RTI Act. Therefore, with due respect to the observations of Professor M. M. Ansari, Information Commissioner, this Commission differs from his observation inasmuch as whether a body performs a public function is not a criterion to decide whether it is a "public authority" under Section 2(h) of the RTI Act. In fact, there are several institutions which perform public functions such as imparting technical guidance or providing medical facilities, but they do not come within the ambit of the RTI Act as they are not public authorities. Therefore, merely by performing a public function of imparting education, an unaided or private school cannot be considered a "public authority". The term "public authority" has been specifically mentioned and defined under the RTI Act, hence this Commission has to be guided by the definition provided under the RTI Act only. However, if it can be established that a private or unaided school is owned or controlled or has received substantial financefrom the appropriate government, it would be a "public authority" as defined in the RTI Act.

The Appellant has also submitted a copy of the Commission's decision in Bindu Khanna v. Directorate of

Education, GNCTD CIC/MA/A/2008/01117 dated 14/07/2010. The issue for determination in the said case was whether a private school (the third party) can refuse to furnish information under Section 8(1)(j) of the RTI Act. On a combined reading of Sections 2(f), 2(j) and 2(n) of the RTI Act, a bench comprising of three Information Commissioners held that information which a public authority was entitled to access under any law from a private body was "information" as defined in Section 2(f) of the RTI Act and was required to be furnished. It must however be clarified that in the Bindu Khanna decision, there was no ruling whatsoever as to whether a private or unaided school was a public authority under Section 2(h) of the RTI Act.

Further, the Appellant has relied on Section 2(f) of the RTI Act, which stipulates that the term "information" brings within its ambit "information relating to any private body which can be accessed by a public authority under any other law for the time being in force". It is the contention of the Appellant that a public authority, which has control over a private body by virtue of any law for the time being in force, can access any information pertaining to that private body. In other words, the DDE, which exercised control over the School in accordance with the DSEA, could access any information pertaining to the School including various policy decisions and furnish the same to the Appellant.

Theoretically, a public authority may be able to access any information relating to a private body over which it exercises regulatory control, while carrying out an inspection/ investigation. However, Section

2(f) of the RTI Act does not envisage the same. "Information", as defined under Section 2(f) of the RTI Act, brings within its purview only that information which has been furnished by a private body to a public authority, or which can be accessed by a public authority, in accordance with what is specifically prescribed in law. The law which establishes regulatory control of a public authority over a private body usually lays down the various reports, returns, compliance documents, etc which the latter is required to furnish to the former.

This typically includes information relating to the management and regulation of the private body and is

required to be furnished to the public authority for ensuring proper functioning of the private body by the

public authority. Only such information comes within the ambit of "information relating to any private body which can be accessed by a public authority under any other law for the time being in force" under Section 2(f) of the RTI Act. For instance, under the Companies Act, 1956 both public and private companies are required to be registered with the Registrar of Companies (the "ROC"). The ROC exercises various powers over companies and such companies are required to furnish various details, reports, etc to the ROC from time to time as prescribed under the Companies Act, 1956. If the contention of the Appellant was to be accepted, then the ROC can access any information pertaining to all the companies registered with it, including private companies and provide the same to the RTI applicant. This would tantamount to giving an extremely broad interpretation to Section 2(h) of the RTI Act, which does not appear to be the intent of the legislators. Therefore, the contention of the Appellant is not accepted.

Further, it appears that in the instant case, the information as available on record has already been provided to the Appellant by the PIO vide letter dated 01/09/2010 after the order of the FAA.

In view of the aforesaid, the Appeal is disposed.

This decision is announced in open chamber.

Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of the RTI Act.