Shri. T John Longkumer, IPS and ANR DGP, Police Head Quarter, Nagaland Kohima V. Naga Tribal Union Chumukedima Town and ANR represented by its President Lhousito Khro and The Nagaland Information Commission represented by its State Information Commissioner

WP(C)/39/2022

AI Insights

The case revolves around a writ petition challenging the orders of the Nagaland Information Commission, which directed the Director General of Police, Nagaland, to furnish information regarding the appointment of police personnel and administrative staff during 2019-2020. The petitioners argued that the information sought was personal and protected under Section 8(1)(j) of the RTI Act, 2005, which exempts disclosure of personal information that does not relate to public activity or interest. However, the respondents contended that the information was necessary to address alleged backdoor appointments in the Police Department, thus serving public interest. The court examined whether the information sought was in the public interest and whether it could be disclosed without infringing on personal privacy.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 808998 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 16-12-2022
• Assessment Year: misc
• Other Referred Cases: Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agarwal, Harkishan vs President Secretariat, Canara Bank vs C.S. Shyam and Anr, Girish Ramchandra Deshpande vs Central Information Commissioner, R K Jain vs Union of India
• Laws Referred To: RTI Act, 2005
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: Z ZHIMOMI; LIMAWAPANG
• Assessee Lawyers: A ZHO
• Keywords: Accountability; Exemption Clause; Personal Information; Privacy; Public interest; Right to Information; Transparency
• Section: 3; 8(1)(j)

Judgement Text

"Page No.# 1/17 GAHC020000762022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C) 39/2022 1:SHRI. T JOHN LONGKUMER, IPS AND ANR DGP, POLICE HEAD QUARTER, NAGALAND KOHIMA 2: SHRI. S. TOKIUMONG TIM IPS IGP (HQ) AND PIO (PHQ) NAGALAND KOHIM VERSUS 1:NAGA TRIBAL UNION CHUMUKEDIMA TOWN AND ANR REPRESENTED BY ITS PRESIDENT LHOUSITO KHRO, H.Q. CHUMOUKEDIMA, DIMAPUR 2:THE NAGALAND INFORMATION COMMISSION REPRESENTED BY ITS- STATE INFORMATION COMMISSIONER AGRI-FARM COLONY LANE NO. 6 HOUSE NO. AFC-578 POST BOX NO. 148 KOHIM Advocate for the Petitioner : A. ZHO Advocate for the Respondent : Z. ZHIMOMI (R-1) Page No.# 2/17 BEFORE HON'BLE MR. JUSTICE SONGKHUPCHUNG SERTO Date : 16-12-2022 JUDGEMENT & ORDER (CAV) Heard Mr. A. Zho, learned counsel appearing for the petitioners and also heard Ms. Z. Zhimomi, learned counsel appearing for the respondent No.1 and Mr. Limawapang, learned counsel appearing for respondent No.2. 2. Aggrieved by the order dated 27/07/2021 and the order dated 24/11/2021 passed by the Nagaland Information Commission, directing them to furnish complete information sought by the respondent No.1 regarding appointment of Police personnel, and administrative staffs in the Police Department of Nagaland during the period 2019-2020, the writ petitioners filed the writ petition challenging the two orders. 3. The undisputed facts and circumstances which led to the filing of the writ petition are as follows:- (1) On 22/8/2020, the respondent No.1 represented by its President Mr. Lhousito Khro submitted an application to the PIO of the office of the DGP Nagaland requesting the following informations:- “1. Number of post advertised under the establishment of Director General of Police, Nagaland Kohima for the year, 2019. 2. Number of appointments made under the establishment of Director General of Police, Nagaland Kohima from 2019 till Page No.# 3/17 date. 3. Appointment orders of the following categories of posts for the year 2019-2020: (i) UBSI (GD) (ii) SI (Opr) (iii) SI (Tech) (iv) ASI (v) LDA Directorate (PHQ Kohima) (vi) LDA District (vii) Stenographer (GR-III) 4. Appointment Orders of Non Combatant Executives (NCE) w.e.f.1st Jan.2018-2020.” (2) On receipt of the application, the petitioner No.2 furnished some of the informations vide his letter dated 28/10/2020, as follows:- “1. Number of posts advertised under the establishment of Director General of Police, Nagaland, Kohima for the year 2019. Reply:- Constables - 206 2. Number of appointments made under the establishment of Director General of Police, Nagaland, Kohima from 2019 till date Reply:- Sub-Inspector - 14 ASI - 01 Constables - 897 LDA (District - 13 The information sought by you at queries Sl.no.3 and 4 are Page No.# 4/17 protected under Section 8(1) (j) of the RTI Act,2005 and thus cannot be revealed. The First Appeal, if any, against the reply may be made to the First Appellate Authority mentioned below within 3o days of the receipt of reply.” (3) Not being satisfied with the reply/information provided, the respondent No.1 approached the First Appellate Authority i.e. the DGP (writ petitioner No.1) reiterating his request for the following informations:- “A-1 Number of posts advertised under the establishment of Director General of Police (DGP) Nagaland, Kohima for the year 2019. 2. Number of appointments made under the establishment of Director General of Police (DGP) Nagaland, kohima from 2019 till date. 3. Appointment Order of the following categories of posts for the year 2019-2020: (i) UBSI (GD) (ii) SI (Opr) (iii) SI (Tech) (iv) ASI (v) LDA Directorate (PHQ Kohima) (vi) LDA District (vii) Stenographer (GR-III) 4. Appointment order od Non Combatant Executives (NCE) w.e.f.1st Jan.2018-2020. B. To initiate proceeding as per Sec.20 of RTI Act 2005 as Page No.# 5/17 deem and proper.” (4) The First Appellate Authority heard the appeal and dismissed the same by order dated 17/12/2020. Being aggrieved by the dismissal order of the First Appellate Authority, the respondent No.1 (the RTI applicant) approached the Nagaland Information Commission. After hearing the parties the Nagaland Information Commission disposed the same by the impugned order dated 27/7/2021 directing the DGP, Nagaland (petitioner No.1) to furnish complete information as sought by the RTI applicant and to submit action taken report to the Commission within 40 days from the date of receipt of copy of the order. Being aggrieved by the order of the Commission(Second Appellate Authority), the petitioner No.1 submitted an appeal to the State Information Commission contending that the information sought for pertains to personal information of Police personnel which comes under the exemption clause given under Section 8 (1) (j) of the RTI Act,2005, therefore the order passed by the Second Appellate Authority may be re- considered so as to protect the privacy of the Police personnel of the State which is under Armed Forces Special Power Act. The appeal was taken up by the Commission and it was disposed with the impugned order dated 24/11/2020 wherein, the order dated 27/7/2020 passed by the Commissioner was upheld. Being aggrieved by the two orders of the Commission, the writ petitioners have come before this Court, through the writ petition challenging the two impugned orders i.e. order dated 27/7/2021 and order dated 24/11/2021 of the Nagaland Information Commission. Page No.# 6/17 4. Mr. A. Zho, learned counsel appearing for the petitioners assailed the impugned orders mainly on 2 grounds:- (1) That as per Section 3 of the RTI Act,2005 it is only citizens who are entitled to seek and obtain information. And there is no other provision in the Act which gives right to seek and obtain information to any association or jurisdict person. Therefore, the respondent No.1 which is an association has no right under the Act to seek and obtain any information. Mr. Zho by giving emphasis to the word ‘citizens’ mentioned in Section 3 of the RTI Act, 2005 submitted that the word ‘citizens’ refers to a natural living being and not a jurisdict person. But in this case, the RTI applicant is an association and the application is signed by its President in his representative capacity. Had the President applied in his individual capacity and as a citizen he would have fulfilled the criteria given in Section 3 of the RTI Act, 2005. But since he applied as the President of the association which is not a natural living being no information could have been given by the authorities from whom the information was sought. In support of his submission Mr. A. Zho, referred to an order dated 3/3/2008 passed by the Central Information Commissioner in CIC/AD/A/2007/00410. (2) That Section 8 of the RTI Act, 2005 provides certain exceptions for which there is no obligation to give information to any citizen. And further at clause (1) (j) of the same Section there is a prohibition from giving information which relates to personal information of a third party, the disclosure of which would have no connection to any public activity or Page No.# 7/17 interest and which would cause unwarranted invasion on the privacy of the individual. In this case information sought for is regarding appointment orders of Police personnel which contains all the details of the person concerned. Therefore, to pass on such information to a third party would mean invasion of privacy of that Police personnel. Moreover, such information will not in any way serve public interest. As such, the direction of the Information Commission given in the order dated 27/07/2021 and the order dated 24/11/2021 are beyond the scope of right to information Act and hence, beyond the jurisdiction of the Commission. Mr. A. Zho, also submitted that information regarding a 3rd party can be given even if it relates to his or her appointment order but permission of that person is required since it relates to his personal details. In support of his submission Mr. Zho referred to the judgment of Delhi High Court passed in the case of Harkishan President Secretariat in W.P.(C) 7976/2020. He also referred to the judgment of the Hon’ble Supreme Court passed in the case of Canara Bank vs C.S. Shyam and Anr reported in (2018) 11 SCC 426. The relevant portion referred to is paragraph 14 of the judgment. “14) In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(I)(j) of the Act and lastly, neither respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to respondent No.1.” Page No.# 8/17 5. Mr. Limawapang, learned counsel appearing for the respondent No.2 (Information Commissioner) submitted that the RTI application was submitted by an individual who is a citizen of the country therefore, he is a natural living person and not a jurisdic person, as such, the contention of the writ petitioners that the RTI applicant is a jurisdic person is baseless. In support of his submission, Mr. Limawapang, referred to the RTI application itself and submitted that the applicant’s name i.e is Mr. Lhousito Khro and his signature are there therefore, just because he submitted the application on the letter head of the association of which he is the President does not mean that he applied for the informations on behalf of the association. The learned counsel further submitted that in this case, the RTI applicant disclosed his identity but, in the case cited by the writ petitioners, the applicant therein did not disclosed his identity but simply signed as Secretary of the Commission. Therefore, there is a difference between the two cases. In support of his submission the learned counsel referred to paragraph 52 of the decision rendered by the Central Information Commission on 12/12/2012 in: FileNo.CIC.AD/A/2012/000570, File No.CIC/LS/A/2011/003966, File No.CIC/LS/A/2012/001314, File No.CIC/LS/A/2012/001120. Mr. Limawapang, also referred to a guide of Right to information Act published by the Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personal and Training wherein at paragraph 17 of part 1 it is stated as given Page No.# 9/17 here below: “17. The Act gives the right to information only to the citizen of India. It does not make provision for giving information to Corporation, Association, Companies etc. which are legal entities/persons, but not citizens. However, if an application is made by an employee or office bearer of any Corporation, Association, Company, NGO etc. indicating his name and such employee/office bearer is a citizen of India, information may be supplied ti him/her. In such cases, it would be presumed that a citizen has sought information at the address of the Corporation etc.” After referring to the above, the learned counsel submitted that as long as the applicant gives his name and he or she is a citizen of India, information has to be given. 6. On the second issue i.e relating to personal information, Mr. Limawapang, submitted that appointment order may disclose personal details of the person concerned but that does not mean that information regarding the same cannot be given. Any information, even if it relates to personal details, if the same is sought for in public interest or public purpose it has to be given to the information seeker. In support of his submission, Mr. Limawapang referred to paragraphs 277, 289, 290, 291 and 292 of the judgment passed in the case of Central Public Information Officer, Supreme Court of India vs Subhash Chandra Agarwal reported in (2020) 5 SCC 481. 7. Ms. Z. Zhimomi, learned counsel appearing for the respondent No.1, while adopting the submission of Mr. Limawapang also Page No.# 10/17 submitted that the information was sought because so many backdoor appointments were made in the Police Department, so in order to take up such issues informations as sought for are required. Therefore, this is a case where public interest demands giving of such informations. 8. I have considered the submissions of the learned counsels in the light of the facts and circumstances and the law applicable on the issues in the case. Section 3 of the RTI Act, 2005 provides as follows:- “3. Right to information- Subject to the provisions of this Act, all citizens shall have the right to information.” The provision of this Section no doubt shows that it is only citizens of this country who have the right to seek information under the Act. The word ‘citizens’ definitely means living natural persons and not a jurisdict person. The interpretation of the word ‘citizens’ relating to this Act is no longer res integra and there is no dispute on that aspect, therefore without dwelling so much on it I will straight away deal with the issue as to whether the RTI application was submitted by the respondent No.1(RTI applicant) in his individual capacity as citizen or in his representative capacity of the association of which he is the President. For better appreciation, the contents of the RTI application is reproduced here below:- “OFFICE OF THE NAGA TRIBAL UNION CHUMOUKEDIMA TOWN DIST DIMAPUR H.Q CHUMOUKEDIMA 792103 NAGALAND Ref No. NTUCT/RTI-PHQ/AP-08-2020 Dated 22nd Aug 2020 To The Public Information Officer Director General of Police, Kohima Nagaland. Sub:- Furnishing documents under RTI Act, 2005 Page No.# 11/17 Sir, With due respect, kindly furnish the following documents under RTI 1. Number of post advertised under the establishment of Director General of Police, Nagaland Kohima for the year, 2019. 2. Number of appointments made under the establishment of Director General of Police, Nagaland Kohima from 2019 till date. 3. Appointment orders of the following categories of posts for the year 2019-2020: (i) UBSI (GD) (ii) SI (Opr) (iii) SI (Tech) (iv) ASI (v) LDA Directorate (PHQ Kohima) (vi) LDA District (vii) Stenographer (GR-III) 4. Appointment Orders of Non Combatant Executives (NCE) w.e.f.1st Jan.2018-2020. It is unfortunately found that in the recent RTI reply dated 24.2.2020 furnishing the name list of 930 +55 constables appointed during 2018-2020 your authority has concealed many names from the list. It is therefore cautioned that repetition of such concealment of documents will attract legal action. A fee of Rs.10/- is enclosed hereto Dated: 22nd August, 2020 (LHOUSITO KHRO) President Naga Tribal Union Chumoukedima Town (NTUCT) Contact-7628086245” The form, language, tune and tenor of the application shows that the application was not filed on behalf of the Association-“Naga Tribal Union Chumukedima Town”. Secondly, the applicant gave his name and signature. Therefore, it can only be concluded that the applicant submitted the application on the letter head of the organization, of which he is the President to show his identity and his address but, the application was submitted in his individual capacity as a citizen. As such, requirement of Section 3 that RTI application can only be submitted by a citizen has been squarely met. Page No.# 12/17 9. On the second issue raised by the learned counsel of the petitioner the judgment passed by the 5 Judges bench in the case of Central Public Information Officer of Supreme Court of India vs Subhash Chandra Agarwal is more relevant in this case, therefore the relevant paragraphs which were also referred to by the learned counsel of respondent No.2 are reproduced here below:- “277. Clause (j) of sub section (1) of Section 8 requires the Information Officer to first determine whether the information sought falls within the meaning of ―personal information‖. Where the information sought falls within the scope of ―personal information‖ and has ―no relationship to any public activity or interest‖ the information is exempt from disclosure under the RTI Act. However, where there exists a ‗public interest‘ in the disclosure of the information sought, the test to be applied by the Information Officer is different. The Information Officer must evaluate whether the ―larger public interest‖ justifies the disclosure of the information notwithstanding the fact that the information is ―personal information‖. In doing so, the Information Officer must balance the privacy interest of the individual whose personal information will be disclosed with the right to information of the public to know the information sought. The substantive content of the terms ―personal information‖ and ―public interest‖ must be informed by the constitutional standards applicable to the ‗right to know‘ and the ‗right to privacy‘ as disclosure and non-disclosure under the RTI Act directly implicate these constitutional rights. In striking a balance within the framework of the RTI Act, the Information Officer must be cognisant of the substantive contents of these rights and the extent to which they can be restricted within our constitutional scheme. It is also crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate PART H 84 interest of the countervailing interest in question. It is now necessary to examine the content of ―personal information‖ and ―public interest‖. 289. Courts in India have interpreted the scope of information which constitutes ―personal information‖ under the RTI Act. In Girish Ramchandra Deshpande v Central Information Commissioner94, the petitioner sought copies of memos, show-cause notices and punishments awarded to the third respondent by his employer along with details of movable and immovable properties, investments, lending and borrowing from banks and other financial institutions. The petitioner also sought the details of gifts stated to have been accepted by the third respondent. A large portion of the information sought was located in the income tax returns of the third respondent. A two judge bench of the Court Page No.# 13/17 classified the information sought as ―personal information‖ and held: ― 12. … The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression ―personal information” the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of 94 (2013) 1 SCC 212 PART H 91 privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 13. The details disclosed by a person in his income tax returns are ―”personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information.” Thus, even in cases where information may be classified as ―personal information‖, the CPIO is required to undertake an enquiry on a case to case basis to determine if the disclosure of information is justified. 290. In R K Jain v Union of India , the appellant‘s application to the Chief Information Commissioner seeking copies of note-sheets and files relating to a member of CESTAT, was rejected. The two-judge bench of this Court placed reliance on the holding in Girish Deshpande and rejected the appellant‘s claim for inspection of documents relating to the Annual Confidential Reports of the member of CESTAT, including documents relating to adverse entries in the Annual Confidential Reports and the ―follow-up action‖ taken. In Canara Bank v C S Shyam96, the respondent was employed by the appellant bank as clerical staff and had asked for information relating to the transfer and posting of other clerical staff employed by the bank. This information sought included personal details such as the date of joining, designation of employee, details of promotion 95 (2013) 14 SCC 794 96 (2018) 11 SCC 426 PART H 92 earned, date of joining to the branch. Speaking for a two-judge Bench of this Court, Justice A M Sapre considered the holding in Girish Deshpande and held:― 14. In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by Respondent 1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(1)(j) of the Act and lastly, neither Respondent 1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee nor was any finding recorded by the Central Information Commission [C.S. Shyam v. Canara Bank, 2007 SCC OnLine CIC 626] and the High Court [Canara Bank v. CIC, 2007 SCC OnLine Ker 659] as to the involvement of any larger public interest in supplying such information to Page No.# 14/17 Respondent 1” 291. In Subhash Chandra Agarwal v Registrar, Supreme Court of India97 , the appellant had filed an application under the RTI Act seeking information relating to the details of the medical facilities availed by the Judges of the Supreme Court and their family members in the preceding three years, including information relating to expenses on private treatment in India or abroad. The Court held that disclosure of information regarding medical facilities availed by judges amounts to an invasion of privacy: ― 11. The information sought by the appellant includes the details of the medical facilities availed by the individual Judges. The same being personal information, we are of the view that providing such information would undoubtedly amount to invasion of the privacy. We have also taken note of the fact that it was conceded before the learned Single Judge by the learned counsel for the appellant herein that no larger public interest is involved in seeking the details of the medical facilities availed by the individual Judges. It may also be mentioned that the total expenditure incurred for the medical treatment of the Judges for the period in question was already furnished by the CPIO by his letter dated 30-8-2011 and it is 97 (2018) 11 SCC 634 PART H 93 not the case of the appellant that the said expenditure is excessive or exorbitant. That being so, we are unable to understand how the public interest requires disclosure of the details of the medical facilities availed by the individual Judges. In the absence of any such larger public interest, no direction whatsoever can be issued under Section 19(8)(a)(iv) of the Act by the appellate authorities. Therefore on that ground also the order passed by the CIC dated 1-2-2012 is unsustainable and the same has rightly been set aside by the learned Single Judge.” 292.Thus, it emerges from the discussion that certain category of information such as medical information, details of personal relations, employee records and professional income can be classified as personal information. The question of whether such information must be disclosed has to be determined by the CPIO on a case to case basis, depending on the public interest demonstrated in favour of disclosure.” Before I proceed any further, it will be appropriate to reproduced the provisions of Section 8(i) (j) also: “8. Exemption from disclosure of information- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen- (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the Page No.# 15/17 State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:” 10. Careful reading together of the provisions of the RTI Act given herein above and the relevant portions of the judgment of the Hon’ble Supreme Court which is also reproduced herein above, clearly shows that when an information relating to personal information of a third party is sought such information can be denied, but if the information sought for relates to or is connected with larger public interest, the same can be given. In other words, information sought for may relate to personal information but if public interest involved in it is so overwhelming, then the information sought for has to be given. Further, it may be worthwhile to look into the introduction of the RTI Act, 2005. The RTI Act, 2005 begins with the introduction which is as follows:- “An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in rder to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commission and for matters connected therewith or incidental thereto. Whereas the Constitution of India has established democratic Republic. And whereas democracy requires an informed citizenary and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; And whereas revelation of information in actual practice is likely to conflict with other public interest including efficient operations of the Government, optimum use of limited fiscal Page No.# 16/17 resources and the preservation of confidentiality of sensitive information; And whereas it is necessary to harminise these conflicting interest while preserving the paramountcy of the democratic ideal; Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it. Be it enacted by Parliament in the Fifty-sixth Year of the Republic of India as follows: The introduction can help one to understand the purpose of the Act to great extent. The words “in order to promote transparency and accountability in the working of every public authority” in the first paragraph of the introduction shows that the main purpose of Right to Information Act is to promote transparency and accountability in the working of every public authority. In the times gone by, the public did not have so much access to many of the informations which are required for people to be informed citizenary so that the functionings of public authorities can be questioned and checked which is essential in a democratic form of Government. Therefore, every information which may be classified as personal information cannot be denied if it is connected or has relationship with public interest because if that is done, the very purpose of the Act would be defeated. In this case, the RTI applicant sought for information in order to know who and who have been appointed in the Police Department in such recruitment process where the process provided under the relevant rules are suspected to have been flouted or have not been followed, so that, further necessary steps can be taken to prevent such illegal appointments in future. This undoubtedly involves public interest because equality clause of the Constitution mandates that every citizen must be given equal opportunity when it comes to Page No.# 17/17 employment in Government jobs. Therefore, the exception clause provided in Section 8 particularly Clause (i) and (j) in my considered view will not apply in this case. 11. Taking all the above, this Court is of the view that the Information Commission has rightly directed the concerned authorities to give the information as sought for by the RTI applicant. In that view of the matter, I find no merit in the writ petition. Accordingly, it is dismissed. Sd/- JUDGE Comparing Assistant "