Shri P.K. Sarin vs Central Public Works Department ...

on 19 February, 2009

Central Information Commission

Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009
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
Date of Decision

10.02.2009
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.
5) Certified copy of the C.R. of P.K. Sarin from 1st April 2003 to 31srt March, 2004.
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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 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:Indian Kanoon - http://indiankanoon.org/doc/1816202/

Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

(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.
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 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
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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 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.
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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 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 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
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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 entry 1 (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 Emphasis added by us
(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)."

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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 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."

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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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 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 Emphasis ours
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
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Shri P.K. Sarin vs Central Public Works Department ... on 19 February, 2009

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.
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)
Information Commissioner

(ML Sharma)
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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