CENTRAL INFORMATION COMMISSION

(Room No.315, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

Information Commissioner

CIC/SA/A/2016/001065

Harkrishan Das Nijhawan v. Dept of Legal Affairs, GOI

Important Dates and time taken:

RTI/PIO:18-11/19-11-15 (1) FAA Order: 18-1-2016 2nd Appeal: 7-4-2016

Disposed of. Hearing: 27-06-2016 Decided on: 01-11-2016

Appellant: Present.

Public Authority: Dr.P.K.Behra, DLA & CPIO, Mr. Manindra Choudhary, Asst.

Third Party: M/s Saqib & Sarfaraj Ahmed, Advocates.

FACTS:

2. Appellant, Mr. Harkrishan Das Nijhawan is associated with Paradarshita

Public Welfare Foundation, (NGO) which brought several public interest issues
into limelight and helped promotion of public interest. He sought for following
information:

a. List showing all the bills released/issued by Shri Sanjay Jain (ASG),
Additional Solicitor General to the Government of India for his services to
represent the Union of India before the Hon’ble Delhi High Court or any
other Hon’ble Courts from the 1st date of his appointments as ASG to
18.11.2015.
b. List showing all payments made to Shri Sanjay Jain (ASG) Addition
Solicitor General of India to the Government of India for his services to
represent the Union of India before the Hon’ble Delhi High Court or any
other Hon’ble Courts from the 1st date of his appointments as ASG to
18.11.2015.
c. Copy of the TDS deducted by the Government of India/Law department,
Ministry of Law and Justice for the payments made to Shri Sanjay Jain

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 (ASG), Additional Solicitor General of India from the 1st date of his
appointments as ASG to 18.11.2015.
d. Copy of the note sheet/orders portion of appointment file along with the
application/request of Shri Sanjay Jain under which he was appointed as
Additional Solicitor General of India, etc.

3. In reply the PIO on 19.11.2015, for point no. 1 & 2, took the exception
u/s 8 (1)(j) and (d), for point no. 3 S.8 (1)(j) and for point no. 4,5 & 6 stated
that the information sought pertains to the Judicial Section, Department of Legal
Affairs and transferred the application. First Appellate Authority disposed of the
appeal agreeing with the CPIO. Appellant approached the Commission.

4. The Department of legal affairs transferred this part of RTI to Judicial

Wing, who did not respond so far. The counsel for Mr. Sanjay Jain submitted as
follows:

1. That the appellant has filed many cases in the Delhi High Court in which he
appears in person. The third party herein, being the senior most law officer of the
Govt. of India for Delhi High Court, has been contesting several such petitions of
the RTI Appellant, to protect the interest of Union of India. Thus, it is apparent
that the RTI Appellant herein is misusing the statutory provisions of the RTI Act
to settle personal scores/grudges with the third party and that he wants to
browbeat him so as to make him scared in performing his duties without fear or
favour. It is unfortunate that in a situation where the third party has no personal
issue or agenda against the RTI appellant, he is singularly targeting him in the
manner, which is clearly visible to this Hon’ble Commission.

2. The information being sought by the RTI appellant herein is otherwise highly
personal & confidential since it relates to third parties financial records, which
cannot be brought in public domain, as held by the Hon’ble Apex Court in a
catena of decisions.

3. That the information sought under query no.1 relates to the bills raised /
submitted by the third party herein. In this regard, it is submitted that all the bills
are submitted for processing in accordance with the procedure prescribed by the
law ministry based on the agreed rates along with copy of the court order stating
appearance of the third party herein. Unless and until the bill is duly accompanied
by the copy of the court order as above, the same cannot be even processed by
the litigation section of the Law Ministry in the Delhi High Court. It is vehemently

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 submitted that no public interest is involved in disclosure of information as per
query no.1 of the RTI Application and unjustified disclosure of the same would
cause serious prejudice and unnecessary invasion of privacy of the third party
herein.

4. The information being sought under query no.2 relates to the financial record of
the third party herein which is squarely covered under the definition of “personal
& confidential information” exempted under Clause (J) Section 8 (1) of the RTI
Act.

5. That, during the course of last hearing on dt. 27.06.2016, the RTI Appellant has
informed this Hon’ble Commission that he does not wish to press for information
sought by him under query no.3 i.e. details of TDS deducted in respect of the
third party. Since, the said information is rightly no longer been sought by the
RTI appellant, the same need no reply for the present.

6. That in reply to the disclosure of minutes/notings etc. of the Appointments

Committee of Cabinet (ACC) pertaining to the appointment of the third party
herein as ASGI for Delhi High Court, as sought by the RTI appellant under query
no.4, it is submitted as under:-

A. In exercise of the powers conferred by Clause (3) of the Article 77 of the

Constitution of India, the Government of India framed (Transactions of
Business) Rules, 1961, which envisages amongst other, constitution of
Appointment Committee of the Cabinet (ACC). The said Appointment
Committee of Cabinet comprises of the Prime Minister, Home Minister and
the Minister of the concerned Ministry.

B. To facilitate the functioning of the said ACC, the Establishment Officer’s

Division under the Cabinet Secretariat was established, which processes all
proposals received from the concerned Departments/Ministries requiring
approval of the Appointments Committee of the Cabinet under the
Government of India Transactions of Business Rules, 1961.

C. In terms of Allocation of Business Rules, the Cabinet Secretariat has been

assigned the duties to provide Secretarial assistance to the ACC.

D. The proposals seeking approval of the ACC are accordingly processed in

the Establishment Division and thereafter, submitted to the ACC through
the Cabinet Secretariat for taking decisions.

E. Thus, ACC is a product of the rules framed under Article 77 (3) of the
Constitution and unless the rules framed therein themselves provide for

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 disclosure pertaining to working of cabinet, no disclosure of the same can
be made under the RTI Act.

7. In any event, the third party in this case, prior to his appointment as ASG of
India had an experience of 29 years as an Advocate and was designated as a
Senior Advocate in 2005 by Full Court of Hon’ble Delhi High Court. Therefore, the
eligibility of the third party to serve on this position is not under question. Hence,
seeking ACC papers in this regard has no public interest, element either.

8. It is, therefore, humbly submitted that the instant Second Appeal preferred by
the Appellant is not maintainable being misuse of the provisions of RTI Act to
settle personal scores and cause harassment to an important functionary of the
Govt. of India. The appeal is bereft of merit and is devoid of any bona fide public
interest. The same deserves to be out rightly rejected. The relevant case law has
already been submitted during the hearing.

DECISION:

5. Mr. Harkrishan Das Nijawan sought information regarding payments made

to Shri Sanjay Jain, Additional Solicitor General of India from date of his
appointment to 18.11.2015. Learned Counsel for Shri Sanjay Jain objected to
disclosure of details of bills raised by ASG, though he had no objection to
disclosure about payments made. Denying the claim of privilege to protect the
bills from disclosure as illegal, the appellant demanded copies of the bills so that
he can compare claims with performance, like his claims of appearances and
appearances on dates of hearing.

6. The counsel for Mr. Sanjay Jain strongly objected to disclosure of TDS as
deducted by the respondent authority apprehending that appellant would come
to know the total income by multiplying the TDS amount. However, the Learned
Counsel did not have any objection to disclose total income through payment of
these bills.

7. Regarding the disclosure of TDS, in the case of B.B Das Adhikary vs.
Oriental Insurance Co. Ltd [CIC/DS/A/2012/002663], the Commission quoted
the order of CIC dated 24th March 2011, in Re: Manoj Kumar Saini,
CIC/LS/A/2010/001044DS, wherein it was observed.

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14. The mandate of the RTI Act to disclose personal
information under Section 8 (1) (j) is even stricter since it appends the
expression “Larger” to “public interest”. Mere public interest will not
suffice in the disclosure of personal information such as the IT
assessee unless the Applicant can prove that a “larger” public
interest demands such disclosure. The expression “larger” cannot
be defined or carved into a straight jacketed formula and neither
can it be easily disposed of. If the applicant incessantly stresses n
the argument that false dowry cases are a matter of “larger public
interest” and that the information relating to IT returns of his
father in law be furnished to him, then an equally challenging
rebuttal could be that the Income Tax Act, which defines the
procedure of disclosure of such IT returns of him, is a public policy
which has been enacted by the state keeping in mind the larger
good of the society. It is not the case of the Respondents that objection
to disclosure of the documents is taken on the ground that it belongs to a
class of documents which are protected irrespective of their contents,
because there is no absolute immunity for documents belonging to such
class.

15. In my view, having assessed the factual situation and the legal
reasoning at hand, the correct position of law is that the right forum for
seeking the IT returns of an assessee by a third person is either the Chief
Commissioner, Income Tax or the concerned court, if the matter is sub-
judice. My view is furthered by the fact that the position after the
repealing of section 137 of the Income Tax Act, 1961 by the Finance Act,
1964 is that the court in a sub-judice matter can direct the IT authorities
to furnish the information pertaining to IT returns of an assessee for
inspection by the court. Thus, disclosure will be warranted if such line of
action is followed. There is no absolute ban on disclosure of IT returns.

16. Since, the present appeal raises important question of law: it is our
duty to apply the law as it stands today. In S.P Gupta vs. UOI ([1982] 2
SCR 365), a seven judges bench of the Apex Court held that “the Court
would allow the objection to disclosure if it finds that the document relates
to affairs of State and its disclosure would be injurious to public interest,
but on the other hand, if it reaches the conclusion that the document does
not related to the affairs of the state or the public interest does not compel
its non disclosure of the documents”. It was further held that “in balancing
the competing interest, it is the duty of the court to see that there is the

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 public interest that harm shall not be done to the nation or public service
by disclosure of the document and there is a public interest that the
administration of justice shall not be frustrated by withholding the
documents which must be produced if justice is to be done”.

17. In light of the above view taken by the Apex Court, I am inclined to
make an observation in this case. I have already discussed the settled
point of law regarding public interest but it is in the pursuance of the
principle of that public interest only where we feel that the information
pertaining to the net taxable income of an assessee for the period of year
2000 till date be furnished by following section 10 of the RTI Act to his
Income Tax returns. We shall distinguish the present case from the
decision of the CIC in the case of Milap Choraria Vs. CBDT
(CIC/AT/A/2008/00628) as decided on 15.06.2009 and in teh case of P.R
Gokul Vs. Commissioner, IT, Kottayam (CIC/AT/A/2007/00405) decided
on 15.06.2007. The Milap Choraria Case did not deal with the issue of
information pertaining to net taxable income per se while the Gokul case
was not centred around the issue of larger public interest for the purpose
of disclosure of net taxable income, unlike the present case. In S.P Gupta
Case, the Hon’ble Supreme Court of India stated “The language of the
provision is not static vehicle of ideas and as institutional development and
democratic structure gain strength, a more liberal approach may only be
in larger public interest”.

In B.B Das Adhikary vs. Oriental Insurance Co. Ltd, the Commission said:
… the Commission is of the view that only net profession fees paid to Sri Beni
Prasad Mohanty, in aggregate terms (for the respective years 2005-2009) may
be disclosed under the RTI Act, 2005 by the CPIO as the current matter attracts
the ‘larger public interest’. However, Section 10 of the RTI Act is to be followed
severing his income tax returns in disclosing information”.

8. On this point, the Commission in the case of Kuntish Aggrawal vs. CPIO,
Department of Income Tax [CIC/CC/A/2015/000413/BS/10648] referred to the
Hon’ble Supreme Court in the matter of Girish Ramchandra Deshpande [decision
dated 03/10/2012 - SLP(C) No. 27734 of 2012] wherein it was held that
information relating to income tax matters of an assessee is "personal
information" which stands exempted from disclosure under clause (j) of Section

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8(1) of the RTI Act, unless the CPIO is satisfied that larger public interest
justifies the disclosure of such information.

9. The appellant did not show any larger public interest to seek the TDS details
of Mr. Sanjay Jain, which is his personal information or third party information,
cannot be disclosed. The question is whether the amount paid to the ASG for
performance of his public duty, will be third party information? Is there any
privilege that prevents disclosure? Whether the Bills claimed by the ASG are
‘confidential’ information?

10. As the payment was made from public exchequer by the public body for the
counselling service rendered by the public servant, such financial statement
could not be considered as third party information. The counsel and the PIO
claimed that the fee details sought is a privileged information. Section 126 of the
Evidence Act, 1872 says:

126. Professional communications.—No barrister, attorney, pleader or vakil shall

at any time be permitted, unless with his client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment
as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to
state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or
to disclose any advice given by him to his client in the course and for the purpose
of such employment: Provided that nothing in this section shall protect from
disclosure—

(1) Any such communication made in furtherance of any illegal purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of
his employment as such, showing that any crime or fraud has been committed
since the commencement of his employment. It is immaterial whether the
attention of such barrister, pleader, attorney or vakil was or was not directed to
such fact by or on behalf of his client. Explanation.—The obligation stated in this
section continues after the employment has ceased. Illustrations

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you
to defend me”. As the defence of a man known to be guilty is not a criminal
purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by

the use of a forged deed on which I request you to sue”. This communication,
being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him.

In the course of the proceedings, B observes that an entry has been made in A’s
account-book, charging A with the sum said to have been embezzled, which entry

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 was not in the book at the commencement of his employment. This being a fact
observed by B in the course of his employment, showing that a fraud has been
committed since the commencement of the proceedings, it is not protected from
disclosure.

11. This privilege protects the professional communication between private

client and the advocate. Appointment of a lawyer by a private person and
communication between them could be viewed as private or privileged, where as
hiring counselling services by the state is public function because state
constitutes the public, represents the public, supposed to act in public interest.
When the legal counsels, attorneys and advocates are being paid from the public
exchequer, the members of the public have right to know who is paid how much,
for what and in which case. But the Commission finds no mention of such
privilege anywhere in the Constitution or any other law which prevents the
details of payment made to a public servant by a public authority out of public
money. The ASG represents the interests of ‘state’, i.e., the public in general
and for that he is paid remuneration from public fund. The Judicial wing
respondent authority has to furnish information about appointment after
blocking all personal information of Mr. Sanjay Jain. Thus, there is no privilege
that protects the disclosure.

12. The appointment related information of public servants should be in the

public domain through voluntary disclosure under section 4(1)(b) of RTI Act.
Regarding this, the CPIO should have referred to the DoPT Office Memorandum
dated June 20, 2015 which mandates disclosure of details that were considered
for selection of some and rejection of others.

13. Appellant also sought note-sheet portion of appointment of Shri Sanjay

Jain as ASG and his application, cv etc. These documents might contain personal
email ids, mobile numbers addresses or names of family members, etc., which
can be withheld. However, the eligibility & educational qualification required for
the post, and other information showing merit for appointment etc, cannot be
considered as personal.

14. When appellant explained that he needed the information as he wanted to

verify whether claims made are factually correct, the CPIO of Legal Affairs
explained that they follow strict procedure in processing the bills claimed by the
counsels of the state including the ASG, verify whether the judicial order

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recorded the presence of such lawyer etc; if appearance is not recorded, bill will
not be honoured. Then appellant contended “as a citizen why should I not
compare the bills, appearance and final payment and satisfy myself?”

15. The CPIO also contended that the case details or bill details pertaining to
matters related to security, intelligence and NTRO cannot be given. There is a
merit in this contention and if there is any such sensitive information it could be
avoided, as that is hit by Section 8 (1)(a) of RTI Act.

16. Then CPIO/DLA Dr. P. K. Behera denied the information on the ground of
confidentiality. There is no such ground at all. Even if it is official secret as per
Official Secrets Act, Section 22 of says RTI overrides it. The CPIO has to justify
the denial on the touch stone of Section 8 of RTI Act alone. He cited a CIC order
of 30th June 2006 which generally talked about confidentiality of information
shared between a lawyer and client, in fiduciary capacity. It does not apply to
this case because appellant did not ask for that, but sought fee details only.
Appellant explained that he filed several public interest litigations in which Mr
Sanjay Jain appeared as the ASG for Government. The ASG, representing state
cannot be equated with private lawyer of private client. The Public Authority is
paying from the taxpayer’s money and tax-paying-citizen has right to
information about why and how much was paid.

17. The CPIO cited writ petition filed by Union of India against Subhash
Chandra Agrawal WPC 415/2012 & CM No 879/2012 dated 2.9.2014. The order
of CIC to disclose details of fee was rejected on the ground that queries may not
be germane to the substrata theme of the petitioner’s application, and that
answer to couple of questions would entail a mechanical exercise. At the end the
High Court held that ‘nothing stated in this order shall be construed as an
expression of opinion on the merits of the issue”. That means this petition was
not decided on merits. The HC held in this case that information need not be
given if it was not germane to the interests of the applicant. Here in this case,
the information sought is straight away connected to public interest, the PILs
were filed by appellant and were countered by Mr Sanjay Jain as ASG, and hence
it is germane to interests and issues raised by appellant. Another decision cited
by CPIO was order of CIC on 24th March 2011 pertaining to IT returns. The issue
in this case is not demand of IT Return, hence that order also will not come to

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 his rescue. The IT returns or TDS details of Mr. Sanjay Jain, the ASG cannot be
given as that could be third party information or his personal information.

18. The PIO has to provide the details of the fee paid to Sri Sanjay Jain, ASG
along with the noting portion regarding his appointment plus the CV/application
after separating personal information including TDS details. The Commission
directs the respondent authority to furnish certified copies of documents relevant
to points (a), (b) and (d) after separating personal information, within 15 days
from the date of receipt of this Order. Accordingly, the appeal is disposed of with
above directions.

Sd/-

(M. Sridhar Acharyulu)

Information Commissioner

Authenticated true copy

Deputy Registrar

Addresses of the parties:

1. The CPIO under the RTI Act, , RTI Cell, Govt. of India
Ministry of Law and Justice, Department of Legal Affairs
Shastri Bhavan, New Delhi-110001

2. Shri Harikishan Das Nijhawan

B-6/69-A, Safdarjung Enclave
New Delhi-110029

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