FIRST APPEAL U/S 19(1) OF Right to Information Act, 2005

Subject: First Appeal under Section 19(1) of RTI Act 2005

Reference: Letter No. DMS/0369/RTI/101/69/Letter_2013 dated 29 October 2013 issued by CPIO, DMSRDE, Kanpur

Sir,

I am distressed by above referred decision of Public Information Officer, DMSRDE, Kanpur. I hereby submit this appeal u/s 19(1) of RTI Act 2005 for your kind consideration & decision.

1.   Details of appellant:-2.   Details of Central Public Information Officer (CPIO):-

3. Particulars of Decision/Order of CPIO against which appeal:-

Decision vide letter No. DMS/0369/RTI/101/69/Letter_2013 dated 29 October 2013 received by appellant on 04 November 2013. Copy enclosed as Enclosure -1.

4. Brief facts leading to appeal:-

(a)          An application under Section 6(1) of RTI Act 2005 dated 04 October 2013 was submitted to CPIO, DMSRDE, Kanpur for providing information regarding “Parking“. Copy of the RTI Application dated 04 October 2013 is enclosed as Enclosure-2.

(b)          Central Public Information Officer, DMSRDE, Kanpur rejected the application u/s 24(1) of RTI Act 2005 vide letter No. DMS/0369/RTI/101/69/Letter_2013 dated 29 October 2013 although it was clearly mentioned in RTI application that required information is directly related to the allegations of Corruption and not come under Schedule-II.

(c)          It was clearly mentioned in RTI application dated 04 October 2013 that “Central Information Commission in its various decisions consistently held that establishment matters relating to the organization notified u/s 24 of the RTI Act come within the purview of the Act and information in this regard thereto are not exempted from disclosure”.

(d)          In point (c) (1) of reply dated 29 October, 2013 CPIO informed that “Director, DMSRDE, Kanpur has not ordered for construction of any vehicle parking stand inside DMSRDE not being constructed”. It was also mentioned “Other information related to vehicle stand are also irrelevant and not applicable”.

(e)          In point (d)(2) of reply dated 29 October, 2013 CPIO informed that “Regarding CSD Canteen, its functioning has started from 21^st April 1977 and running continuously. The other information asked has no relevance with the allegations of Corruption. It is a social welfare activity and run in authorized manner with manually agreed terms & conditions of DMSRDE and MES office of, DMSRDE, Kanpur”.

(f)           CPIO, DMSRDE, Kanpur rejected the RTI application dated 04 October 2013 on invalid, illegal, ultra vires & false reasons with malafide intentions to linger on the process of seeking information with an ulterior motive under direction of Director, DMSRDE, Kanpur (The Public Authority). This act of CPIO, DMSRDE, Kanpur attracts action on CPIO u/s 20 of RTI Act 2005.

(g)          Appellant is intensely upset by the decision of CPIO, DMSRDE, Kanpur and this leads to appellant to file an appeal u/s 19(1) of RTI Act 2005.

5.   Reasons/Grounds for First Appeal:-

First Appeal is submitted to First Appellate Authority on following reasons/grounds.

(a)       Under the provisions of Section 24(1)  of RTI Act 2005 the organisation notified under II Schedule of the Act are exempted from the information except when the information pertained allegations of corruption and human rights violations only.

(b)       Appellant submitted an application dated 04 October 2013 under Section 6(1) of RTI Act 2005 to CPIO, DMSRDE, Kanpur for   providing information as mentioned in application dated 04 October 2013 enclosed as Enclosure 2 to this FA.

(c)        Information was denied by CPIO, DMSRDE, Kanpur on the ground that “DRDO is placed in Second Schedule of RTI Act, 2005 and is exempted from disclosure of Information under Section 24(1) except for information pertaining to the allegations of Corruptions and Human Rights Violations“.

(d)       The information sought by the appellant vide his application dated 04 October 2013 does not comes u/s 24(1) of the Act as per consistent views and decisions of Central Information Commission in various cases regarding organisation notified in Schedule II like DRDO as information sought is related to Establishment Matter and allegations of Corruption.

(e)       Information was denied on false and illegal grounds with malafide intentions to harass the appellant for getting the information.

(f)         CPIO is not aware of recent views and decisions of CIC regarding DRDO (notified organisation under Schedule II), thereby he misused Section 24(1) of the Act for denial of Information.

(g)       Appellant is deeply distressed by invalid decision of CPIO, DMSRDE, Kanpur, hence the First Appeal u/s 19(1) of RTI Act 2005 before FAA.

6.   Prayer /relief sought for:-

1. Information sought vides RTI Application dated 04 October 2013 by appellant has been denied on false and invalid reasons by CPIO, DMSRDE, Kanpur. Therefore, appellant kindly prays to FAA, DRDO to allow this appeal and issue instructions/orders to CPIO, DMSRDE, Kanpur to provide the information sought as seek by appellant vide his RTI Application dated 04 October 2013.
2. Direction may kindly be issued to CPIO, DMSRDE, Kanpur to work as per provisions of RTI Act 2005 and guidelines established in CIC decisions.
   1. 7.   Grounds for prayer/relief sought for:-
   2. 1.     CIC decisions on notified organizations under Schedule II of

     RTI Act 2005 like DRDO

(i)       CIC in its various decisions consistently held that Establishment Matters relating to the organization notified u/s 24 of the RTI Act come within the purview of the Act and information in this regard thereto are not exempted from disclosure.

(ii)      CIC in its various decisions clarified that the exemption u/s 24(1) for DRDO (notified organisation under Schedule II) is only for Scientific/Technical/Strategic/national security information and not for the information of General nature/Estt. Matters/ Routine Correspondence/ all other information for which exemptions u/s 24(1) are not allowed.

(iii)     These decisions of CIC are binding on all notified organisation under Schedule II, as these decisions of CIC has not been challenged till date in any court.

(iv)     Information sought in RTI Application dated 03 August 2013 was pertaining to Establishment Matter

(v)      In this regard following decisions of CIC are listed for your kind information and consideration.

1. CIC/LS/A/2012/002612 dated 22.03.2013 (Dr. Neelam Bhalla Vs DRDO)
2. CIC/LS/A/2009/001073 dated 17.2.2010 (Navin Praksh Gupta Vs DRDO)
3. CIC/LS/A/2012/002487 dated 31.12.2012 ( Ms. Savitha Vs DRDO)
4. CIC/LS/A/2010/000107 dated 26.4.2010 (Ms. K. Surya Kumari Vs DRDO)
5. CIC/SM/C/2008/00054/LS dated 29.01.2010 (Shri Prabhat Vs DRDO)
6. CIC/LS/A/2010/001277 dated 2.3.2010 (Ram Manohar Singh Vs. DRDO)
7. CIC/LS/A/2012/002599 & CIC/LS/A/2012/002146 dated 01.11.2012 (Virender Kumar Vs DRDO)
8. CIC/LS/C/2012/001204 dated 9.8.2012 (Rajiv Chauhan Vs DRDO)
9. CIC/SM/A/2009/001014/LS dated 09.11.2009 (Navin Prakash Gupta Vs DRDO)
10. CIC/LS/A/2009/001073 dated 17 Feb 2010 (Navin Prakash Gupta Vs DRDO)
11. CIC/SM/C/2009/00794, CIC/LS/A/2010/00015, CIC/LS/C/2010/000076 dated 18 June 2010 (Navin Prakash Gupta Vs DRDO)

(vi)     In these decisions CIC decided that “Immunity granted u/s 24(1) is only for scientific & strategic Information only. All other information should be provided by all organisation notified under second schedule of the Act“.

2.     Nature of information sought is not  related to strategic/national security/scientific /technical matters

Information sought is related to “Parking”. This type of information has already been allowed by CIC as information sought is not pertaining to strategic/national security/scientific/technical matters.

3.     Information sought is related to Estt. Matter/General Routine nature is permissible & allowed by CIC, even after the fact “DRDO is notified organisation under Schedule II”, in various decisions against DRDO.

4.     Information sought is also related to allegations of Corruption as already mentioned in RTI application dated 04 October 2013. Information sought is having angle of vigilance as per CVC Act. Under the provisions of Section 24(1) of the Act, the information should be pertaining to allegations of Corruption only. No evidences or proofs of corruption are required for seeking information related to corruption as per RTI Act 2005. Instead the onus is on CPIO to establish that information sought is not having vigilance angle and pertaining to allegation of corruption. In case the prima facie evidences of Corruption are available the appellant will approach to CVC/CBI not file RTI to get information pertaining to allegations of Corruption?

                  i.        It is alleged that Dr. AK Saxena, Director, DMSRDE misused his powers to construct/erect the parking shade near CSD Canteen. It has been accepted by Director, DMSRDE vide Minute Sheet No.  AE/Gen Admin/13/0578 dated 26 September 2013 issued by Dr. D.N. Tripathi, Addl. Director (Admin).  Vide this order “all officers & employees of DMSRDE were ordered to park their vehicles in parking area/shades near CSD Canteen with effect from 01 October 2013”. Again Chief Security Officer issued ION dated 03.10.2013 on behalf of Director regarding Car-Parking near Admin. Building. Again an ION was issued by Dr. DN Tripathi, Addl. Director(Admin) regarding parking area near CSD Canteen.

                ii.        This parking shade/vehicle stand was not constructed by MES or CCE (R&D) North. It was constructed by Director, DMSRDE using private contractor of his favor M/s Gupta Constructions, Gandhi Gram, Kanpur. Thereby CPIO provided false information vides his letter dated 29 October 2013.

              iii.        MES(Military Engineering Services) and CCE(R&D) are the only agencies authorize for any construction of buildings , to execute minor & major work in buildings, construction /erect of shades/parking area etc. in Technical & Residential area of DMSRDE.

               iv.        The source of fund used to erect two shades was from one project fund and not from build-up fund. Project fund cannot be used for construction work. Hence Dr. AK Saxena, Director misused his powers to illegal and unauthorized construction of two parking shades near CSD Canteen inside the Technical Area of DMSRDE, to give undue advantage to M/s Gupta Construction, Gandhi Gram, Kanpur with vested interest.

                 v.        All supply orders for purchase of material used to erect the parking shades were issued to M/s Gupta Constructions who is neighbor to Dr. AK Saxena residence at Gandhi Gram, Kanpur.

               vi.        Misuse of powers for personal gains, unauthorized construction and misuse of funds is clear case of Corruption. Documents are available in records with DMSRDE which can be verified by FAA.

             vii.        It is quite evident from Minute Sheet No. AE/Gen Admin/13/0578 dated 26 September 2013 that there exists building of CSD Canteen in DMSRDE near newly constructed parking area/shade.

            viii.        The nomenclature of building in which CSD canteen is running is CHEM STORE, as per MES record. Director, DMSRDE is using this building in unauthorized manner to run CSD Canteen in this building. CSD Canteen is a profitable URC under CSD hence it should pay rent as well as electrical charges to MES. In this connection MES also issued notice to CSD Canteen for payment of electrical charges and recently cut down the power of CSD  for fifteen days, thereby CSD was closed for about fifteen days.

               ix.        Information sought is related to “Parking”. This information is not related to any scientific/technical/strategic matter. Therefore information related to contract, supply order, purchase, construction and manufacturing etc. is disclosable under RTI Act, CIC decisions mentioned above and even by FAA, DRDO.

8.   Declaration:-

I hereby state that the information and particulars given above are true to the best of my knowledge and belief.

Appeal No.:FA/PDD/DMSRDE/2013/Parking

Date: 08 November, 2013                                          

 Enclosure: Two 

(1)  Letter from CPIO, DMSRDE dated 29 October 2013.

(2)  RTI Application dated 04 October 2013.