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