Non-compliance of CIC orders will attract Rs 25,000 as fine

http://economictimes.indiatimes.com/articleshow/4334610.cms?prtpage=1

30 Mar 2009, 1520 hrs IST, PTI
NEW DELHI: Ignoring Central Information Commission's orders may prove costly for public authorities as non-compliance of the same will now be
treated as "obstruction of information" attracting a maximum fine of Rs 25,000 under the RTI Act.

"We will treat the non-compliance of our orders as fresh complaints. It will be treated as obstruction of information thus liable for a maximum penalty of 25,000," Chief Information Commissioner, Wajahat Habibullah told PTI.

Habibullah said though the Commission has not penalised any authority for non-compliance till now, but there have been instances where the CIC's orders were not followed and it has been decided that such public authorities would be dealt with strongly.

The Commission, however, does not have any mechanism to know if its orders are followed by public authorities or not. In such a situation, petitioners will have to file a follow-up appeal with the CIC, which takes its own time to come up for hearing.

According to the Chief Information Commissioner, the new procedure will mean that petitioners, if faced with non-compliance of CIC's orders and directives by public authorities, can file their grievance as fresh complaint which will ensure penal action by the Commission.

RTI power: Chembur locals zero in on illegal bldg, BMC razes it

As reported in Publication: Times of India Mumbai; Date: Mar 24, 2009; Section: Times City; Page: 5
RTI power: Chembur locals zero in on illegal bldg, BMC razes it
Sukhada Tatke I TNN

Mumbai: Acting on complaints from residents, a BMC officials’ squad started demolishing an unauthorised seven-storeyed structure at Tilak Nagar on Monday.

The demolished structure was the ‘C’ wing of Bharat Nagar Co-op Housing Society’s building number 29, which had come up illegally, without permission from the civic body’s building proposals department. Two other wings have the permission.

“The builder had permission to build only two wings, but he constructed the third on his own. A shop was also built there without consent. When we got to know of the irregularities last year, we demolished a portion,’’ said assistant municipal commissioner R W Pawar. “We wanted to bring it down by controlled explosions, but it was not possible due to the proximity to the other two wings.’’ It was then that they issued a tender for manual demolition. “It will take a few days to bring it down completely.’’

“In August 2003, members of Bharat CHS society in Tilak Nagar decided to demolish their old building and develop the plot to benefit from Mhada’s sanction of additional FSI. They constructed the building to rehabilitate the original 35 members of the society in Wing A and built Wing B as a saleable component. The society agreed upon developer Javed Memon of Paradise and Bhoomi Developers,’’ said Mohan Pednekar, secretary of the society. “We started living there in 2006. Suddenly another wing came up and we didn’t even know about it.’’ The developer was not available for comment.

A resident said it all started when they approached the BMC about the lack of open space and access to their wing. “Under the RTI Act, we learned that the ‘C’ wing was unauthorised,’’ said the resident.

When these facts were pointed out to BMC officials, they issued a notice under the MRTP Act to demolish the unauthorised seven-storied building and the shop. “The builder was arrested and is now out on bail,’’ said Pawar.

Info chief invites activists’ wrath for going soft on babus

As reported in Publication: Times of India Mumbai; Date: Mar 29, 2009; Section: Times City; Page: 2

PENDING QUERIES
Info chief invites activists’ wrath for going soft on babus
Viju B I TNN

Mumbai: Pandemonium broke out at a public meeting on governance and Right to Information (RTI) Act on S at u rd ay when activists accused state information commissioner Ramanand Tiwari of soft-pedalling appeals filed by citizens.

The activists burst out in outrage when Tiwari said he showed leniency to public information officers (PIO) who did not provide data within the prescribed 30 days because he felt that even they had families to look after and levying a penalty of Rs 5,000 would be too harsh on them. He was participating in a question-answer session with RTI activists, who urged the state information commission to tackle the issue of huge pendency of appeals that is “slowly killing the RTI Act’’.

Tiwari faced a volley of grievances from RTI applicants who participated in the discussion on the role of the Act and better governance at a seminar organised by Janhit Manch on Saturday. While some of the queries questioned his order, in which he was reportedly soft on the PIOs, others related to his inaction against officers who disregarded SIC orders. Tiwari brushed aside most of the queries, saying they were “personal in nature’’.

“I know there have been complaints like me being too soft on PIOs, but my disposal rate has been good. For me, the priority lies in providing information, but since the issue has been raised, I will try to improve and impose more penalties in future,’’ Tiwari said. The number of complaints and appeals with SIC touched over 15,000 till last year.

RTI activist Mohammed Afzal said he was shocked at the stance taken by the state information commissioner. “He has not yet dealt with most of the complaints against PIOs not providing information even after SIC ordered to furnish details. This way, applicants are losing faith in the efficacy of the RTI

Act,’’ he said. Consumer activist Rajan Alimchandani claimed that Tiwari had passed an order, in which he has excluded the Bar Council of Maharashtra and Goa from the RTI Act purview. “But I have got a copy from the CIC, which says the bar council comes under the purview of the Act,’’ he said.

Central Information Commissioner Shailesh Gandhi told TOI that all commissioners should immediately look into the pendency of appeals. “I have disposed of 2,600 appeals in the last six months,’’ Gandhi said. “The Act may become ineffective if the commissions did not address the issue and be strict with PIOs and the appellate authority.’’

Rights activists question move to appoint new info commissioners

As reported in Publication: Times Of India Delhi; Date: Mar 29, 2009; Section: Times Nation; Page: 9

SEEKING EC’S HELP
Rights activists question move to appoint new info commissioners
Himanshi Dhawan | TNN

New Delhi: Civil rights activist Aruna Roy has opposed the government’s move to appoint new information commissioners and has sought Election Commission’s intervention to halt the process. Terming the move “regrettable”, Roy pointed out that appointment of information commissioners while the model code of conduct was underway would raise concerns over the process of recruitment.

According to sources, the department of personnel and training has moved a proposal to appoint two information commissioners. It is learnt that while one person is a retired civil servant, the other belongs to a non-government organisation. There are seven information commissioners including chief information commissioner Wajahat Habibullah.

A letter signed by Roy and RTI activist Shekhar Singh sought the EC’s intervention to “advise the government to refrain from appointing information commissioners during the run-up to the general elections as this would be a clear

violation of the model code of conduct and would raise legitimate concerns about the fairness and the impartiality of the selection process”.

Sources added that there was no real need or urgency for new commissioners. In fact, the present set is facing a staff crunch and is unable to handle the workload due to that. According to estimates, a commissioner costs about Rs 25 lakh per year — including salary, house and transport facilities — to the public exchequer and the decision to appoint people should not be taken lightly. The CIC has an average disposal of 1,300-1,400 cases per commissioner while it is expected to be 4,000-5,000 cases.

Roy also questioned the timing of the move. “They (information activists and citizens) have argued that the selection of commissioners should be a transparent process based on an understanding of the current membership of the panel and the ideal mix and balance between different backgrounds and expertise of the commissioners. However, despite such protests, it is regrettable that government has decided to go ahead with these appointments even as the code of conduct preceding the elections has come into force,” the letter said.

Pending pleas: CIC to meet Delhi CJ

MIFFED AT DELAYS
Pending pleas: CIC to meet Delhi CJ
TIMES NEWS NETWORK

New Delhi: With several key decisions of the CIC stayed by courts, chief information commissioner Wajahat Habibullah is likely to meet Delhi high court chief justice to press for early hearings.

The decision was taken recently in an internal meeting of commissioners at the Central Information Commission where the issue of writ petitions being pending in the Delhi HC were discussed.

"The commission suggested that Habibullah may like to pay a visit to chief justice of Delhi High Court and present before him the concern,” minutes of the meeting said.

The meeting was called after the CIC found that public authorities appeal in the HC and get stay to certain orders passed by the commission. The CIC said the HC stay delayed the information seeking process. Amongst those issues that are under the HC’s consideration include disclosure under RTI of judges’ assets, whether Delhi government is bound to give details of the number of students admitted under the under-privileged category in private schools, disclosure related to UPSC aspirants and a RTI plea asking for details related to the oil-forfood scam. These are just a few amongst the many cases that have reached the court after CIC had ordered disclosure.

The commissioners expressed concern that the pending cases were hampering citizens’ right to get information from government and other public authorities.
As reported in Publication: Times Of India Delhi; Date: Mar 23, 2009; Section: Times Nation; Page: 10

"Pick and Choose" Method Adopted by AMU VC: University Counsel Fails to Appear in Special Appeal Before Allahabad HC

In an interesting development, the Counsel for Aligarh Muslim University (AMU) failed to appear before the bench hearing the Special Appeal filed in the Hon'ble High Court at Allahabad by AMU itself on on 8.3.2009!

AMU had gone in for Special Appeal against the judgment of Hon’ble Justice Rakesh Tiwari of the Allahabad High Court delivered on 6/02/2009 wherein he had observed that the counsel for AligarhMuslim University could not show application of any judicious mind in “pick and choose" method adopted by him (Prof. P K Abdul Azis, Vice Chancellor, AMU) thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and without reason. [Nishit Sharma (Minor) S/O Sri Prabhat Sharma Versus Vice Chancellor, AMU and others in CIVIL MISC. WRIT PETITION NO.61316 OF 2008; Disposed on 6/02/2009]

Justice Tiwari had noted that “Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test. (It is to be noted that in the instant case all the information pertaining to the case was obtained through the use of Right to Information Act by the petitioner.)

Delivering his judgement Justice Towari directed that the “Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCB") stream forthwith within a period of one week from the date of production of a certified copy of this order.”

Sri Prabhat Sharma, Father of Master Nishit Sharma has sent a complaint to the Vice Chancellor on 21.03.2009 against the non-implementation of the judgment dt. 6.02.2009 of Allahabad High Court by AMU.

For complete correspondence related to similar, please do visit www.rtigroup.org

For complete Writ and Judgement pl visit link given below:
http://rtigroupaligarh.blogspot.com/2009/03/pick-and-choose-method-adopted-by-amu.html

Scans of the Order passed on 18.03.2009 by Hon'ble High Court on the Special Appeal and the letter of Shri Prabhat Sharma addressed to Prof P K Azis, Vice Chancellor, AMU are given below:

AMU MBBS & BDS Admission Test Merit List (Session 2008-09)

The complete merit list for MBBS & BDS Admission Test conducted by Aligarh Muslim University (Session 2008-09) , obtained through exercise of Right to Information can be downloaded in PDF format from www.rtigroup.org (GO to RTI Questions--> Aligarh Muslim University-->Admissions & Examination).

Maharashtra’s CIC: If a PIO flouts SIC’s Order to provide Information, it would be a fit case for penalty

As posted on [rti4empowerment: rti4empowerment@yahoogroups.com] by Shri Krishnaraj Rao

Maharashtra’s Chief SIC made a statement with wide implications yesterday evening (19th March, 6 pm). At an impromptu meeting in his office with our activist group, Maharashtra’s Chief Information Commissioner Dr Suresh Joshi took the stand that, “If a PIO flouts SIC’s Order to provide Information, it would be a fit case for penalty.” He said this in the context of PIOs who continue to deny information even after being ordered by SICs to give information within one week, 15 days etc. And he said this not once, but thrice!

Why is Dr J’s statement significant? BECAUSE IT GIVE IMMEDIATE RELIEF TO THOUSANDS OF FRUSTRATED APPELLANTS WHO WERE AT A DEAD-END. Until now, SICs have generally held that after passing such orders, they could do nothing more. “Go to High Court,” SICs say with a shrug when aggrieved appellants come back complaining about non-compliance of the orders.

In practical terms, Dr Suresh Joshi’s new stand means: APPELLANTS WHO HAVE RECEIVED SUCH ORDERS AND NO INFORMATION MUST COMPLAIN TO SIC AND INSIST ON PENALTY & DISCIPLINARY ACTION. This includes even those appellants who have previously been told that nothing more could be done.

Our group was quick to hold onto Dr Joshi’s statement. We discussed this statement threadbare with him, and promised to return to him within a couple of weeks with a long list of such PIOs. “Sir, we will go to great lengths to find such orders that have not been obeyed, and you must then fulfill your promise to penalize the concerned PIOs,” we said.

We request appellants who were heard by SIC RAMANAND TIWARI & MR JOSHI: Please email to us 2nd appeal orders which was not obeyed by PIO, along with the name, designation and contact details of the PIO. (Even old cases will do.) We shall compile a list of such cases, and jointly take them up with Dr Joshi for penalty, reprimands etc. and entry into PIO’s Annual Confidential Report and Service Book.

In this context, I would like to quote what Dr Joshi said in his recent letter to Chief Secretary Johny Joseph: “If any disciplinary action has been taken against a PIO, or some punishment has been awarded in a departmental enquiry, this should be noted in the Confidential Report and Service Record.” (Point no 9, last sentence.) Let us now insist on this!

[Read Dr Joshi’s amazing letter in Marathi here: http://www.box.net/shared/d0ir4c5heb
Read English translation here: http://www.box.net/shared/yu6kez8utp

Maharashtra appellants, please take printouts, study them, quote them and use the points for arguing first and second appeal hearings. Dr Joshi has clearly spelled out various rights of appellants, various duties of PIOs, FAAs and others. Please put this to good use.]

Activists present at yesterday’s meeting with Dr Suresh Joshi were:
Pravinkumar B Patel
G R Vora
Indira Chhajerh
Mohammed Afzal
Krishnaraj Rao
Sunil Ahya

Warm Regards,

Krish
98215 88114

Speaker willing, ministers’ assets may be revealed

As reported by Himanshi Dhawan Times of India: Nation, Kolkata, March 17, 2009, pg 7

New Delhi: Wealth owned by ministers and their kin can only be made public if the Speaker allows it, the Central Information Commission (CIC) ruled. It also asked the Prime Minister’s Office to seek the Speaker’s nod for making public ministers’ assets. For ministers who are Rajya Sabha members, the commission has advised a similar procedure with the presiding officer.
The controversial issue of disclosure of ministers’ assets has been hanging fire for over a year. RTI applicant Subhash Chandra Agarwal had asked for information related to assets owned by Union ministers and their kin.
In his order, chief information commissioner Wajahat Habibullah said the “information is not disclosable except with the permission of the Speaker”. This is with reference to the disclosure of information related to ministers who are members of the Lok Sabha. He added: “If there is any equivalent rule with regard to the Rajya Sabha, this may also be exercised.” The CIC has stipulated a time period of 30 days.
The PMO had initially forwarded the application to the Cabinet secretariat, asking for the information to be disclosed.
In his appeal, Agarwal pointed out that in a letter written on May 19, 2008, the PMO had provided details of assets and liabilities of members of the Union council of ministers to the Cabinet secretariat to deal with such RTI applications. However, Agarwal was later informed by the PMO that the information sought was exempt under Section 8 of the RTI Act.

CIC hearing reveals PMO Email System was Bugged!

As reported in Times Of India Delhi; Date: Mar 16, 2009; Section: Times, Nation; Page: 7

Virus gripped PMO’s email for 3 months


New Delhi: Email system of the Prime Minister’s Office was under the grip of a computer virus for three months last year forcing officials to replace the software. The technical glitch plagued the email communication system of the PMO, which was based on the Microsoft Outlook Express, from February to April in 2008.

Although the extent of damage was uncertain, the PMO said that most of the emails addressed to it were not received. The problem was detected only

in late April after which the Microsoft Outlook Express email software was discontinued and replaced by — Squirrel mail.

The matter came to light during one of the hearings of the CIC where the PMO submitted that “there was virus problem during the months of Feb-Mar-Apr that was diagnosed only late in April”. The CIC was hearing the plea of one retired Air Commodore Lokesh Batra, who had complained to PMO, through an email, about discrepancies in the Hindi version of the RTI Act. AGENCIES

DOPT website contradicts info commissioner

Publication: Times of India Mumbai; Date: Mar 12, 2009; Section: Times City; Page: 3

‘RTI Act Doesn’t Cover Babus’ File Notings’

Viju B | TNN

Mumbai: Chief information commissioner Wajahat Habibullah might have passed an order stating that file notings and decisions made by bureaucrats and ministers should fall under the purview of the Right to Information (RTI) Act, the department of personnel and training (DoPT) does not think so.

The DoPT website’s “frequently asked questions” (FAQ) section states that access to file notings are denied under the act. DoPT is in charge of training and funding government officials on RTI awareness programmes and is also the nodal agency appointing information commissioners.

Central information commissioners expressed shocked at this. “It is deplorable that the government’s website continues to provide false and misleading information to PIOs and citizens. The government must accept the repeated rulings of the commission, show respect for the rule of law and stop spreading wrong interpretations of the RTI Act,’’ information commissioner Shailesh Gandhi told TOI.

The issue came to light when the public information officer (PIO) and the appellate authority of DoPT rejected an RTI query filed by applicant Syed Arshad Ali on the grounds that the website’s FAQ section maintained that access to file notings were denied under the act.

Syed Ali , a retired senior MTNL officer, had been battling for his dues and asked for details of the rules governing the pay of government servants who held temporary posts but were later promoted to other posts.

When the case up for hearing before the CIC, the commission took strong note of this and asked whether departmental instructions could be used to override provisions of the RTI Act.

The CIC noted that the public information officer of DoPT, U S Zoya, had earlier defended the denial of information to Syed Ali by producing a DoPT circular (issued by director Simi Nakra) that such information should not be published.

The CIC said file notings fell well “within the means of information under Section 2(f) of the RTI Act”.

The reasons given for the refusal—giving weight to departmental instructions over the law despite the commission issuing orders stating that file notings fell under the RTI Act—could only be described as vexatious and flippant, Habibullah said.

POINT NOTED

What the FAQ section of the DoPT website says:

Information means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law in force, but does not include “file notings”. TNN

Cops’ RTI reply on missing kids costs Rs 78,927

Publication: Times Of India Delhi; Date: Mar 15, 2009; Section: Times City; Page: 2

TIMES NEWS NETWORK

New Delhi: How much could asking for information on missing children under the RTI Act possibly cost? Well, if the questions are addressed to Delhi Police, it could be as high as Rs 78,927. That’s exactly how the office of DCP (southeast) responded to an application filed by the NGO, Bachpan Bachao Andolan (BBA), seeking details of Delhi’s missing children (2006-08).

In a reply to the BBA application, the DCP’s office said,

‘‘We have to suspend our regular work in order to furnish the requisite information sought by you for which considerable manpower will be utilised/diverted to discern this information. Hence, as per provisions of Sec 7(3)(a) of RTI Act, 2005, the requisite details/information can be provided on payment.’’

The letter then provides the project’s financial details. For instance, one head constable each from 15 police stations in the district would work for three days at the rate of Rs 840 per day costing Rs 37,800. Similarly, one constable each from the 15 police stations working for the same would cost another Rs 36,945. Similar charges for the sub-inspector associated with the work for three days adds another Rs 4,182 to the cost.

Section 7(3)(a) of RTI Act, 2005, says the public information officer shall send intimation to the person making the request giving ‘‘the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed...’’.

The police seems to believe it is playing by the rules. However, activists are wondering whether the letter is just a way of making it difficult to obtain information. ‘‘The question of public authorities charging citizens the cost of manpower employed for collection of information does not arise. Compliance with the Act’s provision is like any legal duty performed by a public servant,’’ says RTI activist Commodore Lokesh Batra.

Interestingly, Rakesh Sengar of BBA, points out that other police districts such as northeast and west have offered information on the same without asking for any legwork money as done by the southeast police. The NGO has appealed to the Central Information Commission, says Sengar.

It is not an open and shut case though. Wajahat Habibullah, Chief Information Commissioner, says there are similar cases pending before the commission. ‘‘This is a live issue before us. We have not passed any judgment in this regard,’’ he says. Those in favour of right to information would be hoping a favourable decision comes sooner than later.

toireporter@timesgroup.com

CIC Summons AMU Registrar Prof. V K Jaleel

In a significant development and close on the heels of imposition of a penalty of Rs 5000 that is to be paid as compensation for harassment of RTI activist Dr Tariq Islam, and not taking the RTI Act seriously,the Central Information Commission (CIC) has summoned the Prof. V K Abdul Jaleel, Registrar, Aligarh Muslim University, for personal appearance on 16th March 2009.

It should be recalled that despite clear directives from the Shri Wajahat Habubullah, Chief Information Commissioner, on 27th Sept 2008, the AMU administration has been dodging providing the desired information related to MBBS Admission Test for the Session 2008-09 to Ms Asma Anjum.

For complete details on the case please visit the section "Aligarh Muslim University/Admissions and Examinations" on www.rtigroup.org

Disclose documents of Batla House encounter: CIC

NEW DELHI: In a set back to Delhi Police, the CIC today directed them to provide documents pertaining to the Batla House encounter to a RTI applicant but asked them not to reveal names and details of those involved in the probe.

The applicant, a lawyer representing an accused in Delhi serial blasts, filed the RTI seeking the FIR and post-mortem reports of those killed during the incident.

The Central Information Commission allowed police to expunge person's name who filed the FIR, details of police officials involved in the encounter and subsequent probe and doctors, who conducted the post-mortem of the persons killed during the incident as it could impede the investigations.

Advocate Prashant Bhushan, representing an accused in Delhi serial blasts, had demanded copies of FIR and post-mortem reports of Inspector M C Sharma and suspected terrorists Mohammad Atif Amin and Sajid, killed during the encounter which took place in south Delhi on September 19.

Delhi Police had rejected the RTI application claiming that matter was under investigation and revelation of these crucial documents would impede the probe.

"...Delhi Police will provide copies of the documents sought by appellant...after applying severability clause described above to that portion held as exempt, within 10 working days," two member bench comprising Chief Information Commissioner Wajahat Habibullah and Information Commissioner Shailesh Gandhi held.

Times of India: 9 Mar 2009, 1922 hrs IST, PTI
http://timesofindia.indiatimes.com/articleshow/msid-4246464,prtpage-1.cms

Pending cases biggest threat to RTI: Info official

Viju B I TNN: Publication: Times of India Mumbai; Date: Mar 9, 2009; Section: Times City; Page: 5

Mumbai: Central information commissioner Shailesh Gandhi on Sunday said that the three-and-a-half year old Right to information (RTI) Act has given the average citizen some hope in providing better governance, compared to the long-drawn legal system in the country.

Gandhi, in his earlier avatar as a city-based RTI activist, had used the Act to expose some of the major loopholes in the state bureaucracy—be it examining the arbitrary disbursal of the chief minister’s relief fund or procuring the medical report of convicted state minister Swarup Singh Naik who got admitted to the air-conditioned ward of JJ hospital to escape a one-month prison term.

“I feel today the greatest threat to the survival of the RTI Act is the mounting pendency of appeals. If the applicants are not provided correct information within the stipulated period, then they will lose faith in the Act,’’ Gandhi said during an interaction with senior officials with the state information commission and RTI activists at Wadala.

State chief information commissioner Suresh Joshi, while lauding Gandhi’s efforts of clearing over 2,300 appeals in five months, said that Gandhi is truly the Sachin Tendulkar of the RTI movement. “But the SIC has now caught up with this zeal. The pendency in Mumbai has now come down to around three months,’’ Joshi said.

TOI had last week done an analysis on the performance of various commissioners and found that Shailesh Gandhi and Annapurna Dixit topped in the number of disposals per month. Gandhi, for instance, has heard 670 appeals in January this year while Dixit disposed of 330 appeals in the same period.

The CIC has a pending appeals of around 10,000 while the SIC’s pendency figures is over 15,000 till date. The state has a higher number of pending appeals because Maharashtra also receives the highest number of RTI applications in the world, Joshi said.

RTI activist Bhaskar Prabhu—while welcoming the state information commissioner’s assurance of speedy disposal—said that each commissioner should dispose at least two appeals every day to clear the current backlog. “We will take up the pendency issue with the governor soon,’’ RTI activist S K Nangia said.

Gandhi said that though he was facing a staff crunch, he has managed to dispose around 500 appeals every month as he has recruited computer-savvy volunteers. “About 70% of my salary goes towards the honorary payment of these volunteers,’’ Gandhi said.

He said that it is sad that many babus at the government offices still cannot operate a computer. “In my short exposure to the working of the government, I have realised that there is a systemic problem in our bureaucracy. Only if citizens and media come forward and challenge this rot on a daily basis will there will be any effective change,’’ he said.

RTI Picks Holes In Postal System, Directs Recovery Of Compensation From Errant Officials

Man gets refund for slow speedposts

RTI Picks Holes In Postal System, Directs Recovery Of Compensation From Errant Officials

Viju B I TNN: Publication: Times of India Mumbai; Date: Mar 6, 2009;Section: Times City; Page: 4

Mumbai: This is one problem many people face after sending their couriers through speedpost. The speedpost reaches its destination like letters by ordinary post, taking more than three-four days to reach.

Now, the RTI Act has come to the rescue of people who have been facing such problems. The senior superintendent of post offices, Mumbai, has acted upon an RTI query and asked the department of post to refund the postal charges in as many as eight cases to a single applicant after most of the couriers he posted via speedpost reached their destinations after the prescribed period of 24 hours.

The senior superintendent also directed the department to recover this refund amount as compensation from the errant officials who had caused the delay in service.

The issue was taken up by RTI activist Milind Mulay after several government agencies informed him that his letters were not reaching them on time. “I initially thought that the babus were trying to find another excuse for denying information,’’ Mulay said.

He then filed an RTI query, asking for the status of articles (with copies of proof) sent through speedpost. “I asked for the date of receipt of the speedpost articles I had sent in a span of 15 days. I also asked for refund in case the articles did not reach the destination on time under the money back guarantee scheme,’’ Mulay said.

He got a reply that out of the 12 couriers he had sent, eight were delayed. “A courier that was sent from Dadar to Colaba reached its destination after five days,’’ Mulay said.

He filed the query after he did some leg work like browsing the website of the Indian Postal Service about the rules and regulations in case of delay. “I found that the website also had an option by which one can track the path of the courier. But the website had not updated the path of my courier,’’ he said.

Mulay said he was prompted to file an RTI query as many in the country faced this problem. “More than the financial part, I wanted to show that the RTI Act can be put to everyday use and cut the red tape,’’ he said.

A senior official from the postal department admitted that the delay is caused at the despatch section. “We are happy to know that more and more people are using the RTI Act to keep officials on their toes,’’ he said.

Details of police complaints, arrest warrants can be made public: CIC

As reported by Himanshi Dhawan of TNN in timesofindia.indiatimes.com on 07 March 2009:

NEW DELHI: Overruling Delhi Police's objections, the Central Information Commission (CIC) recently decided that complaints, action taken reports, arrest warrants and other details against an individual could be made public and did not violate the person's right to privacy.

The commission ordered that the information be made available to the applicant within 15 working days, saying the matter was already discussed in Parliament -- which attests to the demands of public interest -- and left no justification for withholding the information.

Quoting a recent Madras High Court decision, chief information commissioner Wajahat Habibullah said the court had concluded that the "right to privacy fades out in front of the Right to Information and larger public interest".

An applicant, Prakash Jus Roy, had asked for information related to list of complaints, FIRs, arrest warrants, action taken reports and non-traceable reports filed in the case of builders T C Jaina and his sons, Rajender and Rakesh Jaina.

The information was denied by joint commissioner of police (New Delhi) Alok Verma on the plea that the appellant had sought information related to a third party. Under section 11 of the RTI Act, for information related to a third party, the person must be allowed to present his objections. When contacted, the third party, in this case Rajender Jaina, objected to information being given to Roy.

Roy then approached the CIC, arguing that the issue was discussed on the floor of both Lok Sabha and Rajya Sabha and that Jaina continued to cheat people and it was in larger public interest to disclose the information.

Habibullah heard Jaina's objections who sought exemption under section 8 of the RTI Act that says notwithstanding anything in the Act, no citizen shall be obligated to give "information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court".

However, CIC finally ruled that there was larger public interest in making this information public.
Details of police complaints, arrest warrants can be made public: CIC -India-The Times of India

CIC Directs AMU to Pay Penalty of Rs 5000 for Harassing Information Seeker

In the present case, the CIC vide its order dt. 30 June 2008 had granted a compensation of Rs 5000/- to the Dr Tariq Islam, Appellant, for the unnecessary harassment and not taking RTI Act in a serious manner.

However, the Aligarh Muslim University (AMU) filed a review petition before the commission to review the order of compensation. In the review petition, the respondent’s only submission was that in order to provide the desired information to the Appellant, the officials of AMU had to search almost 100 files.

However, the CIC did not find any merit in it and therefore dismissed it citing that procedural difficulties of a Public Authority cannot be a legitimate ground for the harassment of a information seeker.

The Commission, therefore directed the Registrar, AMU, to pay the compensation of Rs 5000/- to Dr Tariq Islam (Appellant) and that it should be done by 10 March 2009.

Info on judges appointment can't be revealed under RTI: Centre

4 Mar 2009, 1730 hrs IST, PTI (http://timesofindia.indiatimes.com/articleshow/msid-4223795,prtpage-1.cms)

NEW DELHI: The Delhi High Court HAS stayed a Central Information Commission order after the Centre pleaded that documents relating to appointment and transfer of judges could not be revealed under the Right to Information (RTI) Act.

Challenging the order of CIC which had asked the government to disclose documents and file-notings on appointment of Chief Justice of Himachal Pradesh, Additional Solicitor General P P Malhotra pleaded that such informations are beyond the purview of RTI Act.

"Correspondence exchanged between constitutional authorities is beyond the purview of the Act and the commission erred in law by directing to disclose it," the government said in its petition.

Justice S Ravindra Bhat, after hearing his contention, stayed the CIC order and issued notice to the RTI applicant on whose plea the Commission had passed the direction.

The Commission on January 19 had directed the Centre to disclose all information and file notings on appointment of Chief Justice of Himachal Pradesh Jagdish Bhalla, whose promotion file was returned by former President APJ Abdul Kalam.

AMU Ranks Third in RTI Queries Among Public Authorities

YOUR RIGHT TO KNOW: Home ministry receives maximum RTI queries
Himanshi Dhawan | TNN
(Publication: Times of India Mumbai; Date: Mar 3, 2009; Section: Times Nation; Page: 13)

New Delhi: The home ministry tops the chart amongst RTI information seekers while the finance ministry leads in rejection of applications. In 2006-2007, the ministry of home affairs (MHA) received 52,353 RTI applications compared to 1,316 pleas in 2005-2006.

Other ministries that received a large number of RTI applications include the ministry of communications and information technology (20,806), finance (18,830), railways (11,797) and urban development (10,938).

These are part of the annual report of the Central Information Commission (CIC) for 2006-2007 tabled in the Lok Sabha on Wednesday. Amongst the top five ministries that have the most number of rejections to their credit include finance ministry with the maximum of 6,160 rejected applications of the total of 18,830. These are followed by ministry of personnel, public grievances and pensions with 1,090 rejections and the Prime Minister’s Office (PMO) with 205 rejections. The ministry of petroleum and natural gas rejected 667 of the 4,003 applications it received while ministry of defence turned down 734 of the 5,521 requests for information.

The Delhi Development Authority (DDA) received 8,303 appeals, the maximum for any public authority. The DDA is followed by the estate office under the home ministry, followed by Aligarh Muslim University, Hindustan Shipyard Ltd and National Highway Authority of India. Incidentally, at 5,018, MHA is also at the top when it comes to receiving RTI appeals.

In an encouraging trend, the number of RTI applications have increased from 24,436 to 1.71 Lakh while the number of requests rejected have come down from 13.9% to 8.98%. Disciplinary action was taken in seven cases in 2006-2007 while penalty was levied in 24 cases. However, penalty was recovered only in 12 cases.

“Pick and Choose” Method Adopted by AMU VC in Class XI Admissions (2008-09) Criticized by Allahabad HC

Delivering a significant judgement [Nishit Sharma (Minor) S/O Sri Prabhat Sharma Versus Vice Chancellor, AMU and others in CIVIL MISC. WRIT PETITION NO.61316 OF 2008; Disposed on 6/02/2009] that is bound to have far reaching consequences for Aligarh Muslim University Hon’ble Justice Rakesh Tiwari of the Allahabad High Court observed that the counsel for the respondent University (Aligarh Muslim University) could not show application of any judicious mind in “pick and choose" method adopted by him (Prof. P K Abdul Azis, Vice Chancellor, AMU) thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and lacks reason.

Justice Tiwari noted that “Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test. (It is to be noted that in the instant case all the information pertaining to the case was obtained through the use of Right to Information Act by the petitioner.)

Delivering his judgement Justice Towari directed that the “Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCB") stream forthwith within a period of one week from the date of production of a certified copy of this order.”

However, it is learnt that AMU has decided to go in for special appeal in the matter.

For complete correspondence related to similar, please do visit www.rtigroup.org

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For complete text of the Writ filed at Allahabad High Court as well as the judgement, please scroll down

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The complete Writ filed at Hon'ble Allahabad High is given below
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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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CIVIL MISC. STAY PETITION NO.------------------------------ OF 2008
(Under chapter XXII Rule 1 of the High Court Rules)

On Behalf of Petitioner

IN

CIVIL MISC. WRIT PETITION NO. -------------------------------OF 2008
(Under Article 226 of the Constitution of India)

District Aliqarh

Nishit Sharma (Minor)
S /0 Sri Prabhat Sharma, through his next Friend/ Father Prabhat Sharma S/o Late M.L. Sharma R/o
1/14 Tar Ka Nagla, Gurudwara Road, Aligarh.

-----------Petitioner

Versus
1- Vice Chancellor, Aligarh Muslim University, District Aligarh.
2- Registrar, Aligarh Muslim University, District Aligarh.
3- Controller of Examination Aligarh Muslim University, District Aligarh.
4- Assistant Controller / Central Public Information Officer (Admission) Aligarh Muslim University, District Aligarh.
5- Deputy Controller/Appellate Authority (Admission), Aligarh Muslim University, District Aligarh.

----------------- Respondents

To,
The Hon'ble the Chief Justice and his other companion Judges of the aforesaid Court.
The humble writ petition of the above mentioned petitioners most respectfully showeth as under:

1. That the petitioner has not filed any other writ petition previously for the cause of action and relief sought in this writ petition before thisHon'ble Court or Lucknow Bench of this Hon 'ble Court and this is the first writ petition of the petitioner.
2. That the petitioner further declare that he has not received caveat any of the respondents or from any person till preparation of the instant writ petition.
3. That, the petitioner is a minor and hence he is filling the present writ petition through his next friend / father Prabhat Sharma.
4. That, by means of the present writ petition, the petitioner is seeking mandamus commanding the respondents to admit him in 10+2 Physics, Chemistry and Biology (PCB) stream.
5. That, the brief facts of the case that the petitioner has passed his High School in the year 2008 (Academic Session 2008-08) from Delhi Public School, Aligarh (CBSE) and secured 92% marks. True copy of the mark sheet of the petitioner is being filed here with and marked as Annexure No.1 to this writ petition.
6. That, in pursuance to the advertisement issued by the respondents inviting applications from interested candidates to take admission in 10+2 (Aligarh Muslim University) the petitioner submitted his form completing all the required formalities and opting Physics, Chemistry & Biology as his first choice and Physics, Chemistry & Math as his second choice (PCM).
7. That, a combined entrance examination for admission in 10+2 was conducted and the petitioner took the examination but his name did not find place in the list of successful candidates declared by the respondents.
8. That, as the petitioner had secured 92% marks in his High School he was hopeful that he will be selected Physics, Chemistry & Biology stream for taking admission in 10+2 but after the results were declared he tried to enquire matter and on 4-9-2008 under Right to Information Act seeking information about the marks secured by him as well as cut of marks secured by the selected candidates. True copy of the application dated 4-9-2008 and true copy of the admit card of the petitioner are being filed here with and marked as Annexure No.2&2A to this writ petition.
9. That, in reply to the application dated 4-9-2008 the Aligarh Muslim University send a reply on 24-9-2008 indicating therein that the marks secured by Nishit Sharma (Roll No. 299406) Physics, Chemistry & Biology were 39 and marks secured in examination of last candidates selected mGeneral Category was 47.75. True copy of the reply by Assistant Controller Admission dated 24-9-2008 is being filed here with and marked as Annexure No.3 to this writ petition.
10. That, after going through the reply dated 24-9-2008 the father of the petitioner was not satisfied and he made a application under Right to Information Act asking for complete details because as per his information the reply dated 24-9-2008 by the respondents was not correct. True copy of the application in this regard dated 1-10-2008 by Prabhat Sharma to Deputy Controller Admission/ Appellate, Aligarh Muslim University, Aligarh is being filed here with and marked as Annexure No.4 to this writ petition.
11. That, in reply to the application dated 1-10-2008 made by Prabhat Sharma the Deputy Controller/Appellate Authority Admission given by them earlier in reply dated 24-9-2008 is correct. It is pertinent to point out here that there are two modes of admissions in Aligarh Muslim University the first mode is (as far as 10+2 is concern is a combined entrance examination) and successful candidates as per their choices are given admission in different streams the other mode is a special category and under this special category students who do not get admission on merits are given admission under these categories and in this regard the petitioner is bringing on record a copy of table III wherein special categories have been defined. Section of society as Identified in NEP 1986.
12. That, out of 9 category, category no.3 is regarding children of Alumini (C.A.) this category gives a benefit to a candidate whose either parents have been old students of Aligarh Muslim University and as in the present case the name of the petitioner did not find place in the list of selected candidates hence he was entitled for admission as per clause III of special category as quoted above.
13. That, to show that Prabhat Sharma had been a student of Aligarh Muslim University, the petitioner is bringing on record a copy of certificate of B.Sc .. and M.Sc. of Prabhat Sharma. True copy of the certificate of B.Sc. and M.Sc. of Prabhat Sharma are being filed here with and marked as Annexure No. 5&6 to this writ petition.
14. That, it is relevant to point out here that Mr. Prabhat Sharma in his first application dated 4-9-2008 specifically sought information of cut of marks of last admission under Alumni old boys category and only reply provided by Aligarh Muslim University was that this information cannot Be provided to you as a policy matter.
15. That, while making a application dated 1-10-2008 to the Deputy Controller Admission/ Appellate Authority Mr. Prabhat Sharma again sought information about cut off marks of last candidate admitted under the Alumini Old Boys category and the Appellate Authority failed to provide any details and only indicated that this information cannot be given as a Vice Chancellor -is authorized to nominate the candidates to filled-up 20% of in take from amongst various categories including children of Alumini/Old Boys irrespective of the marks obtained in admission test. True copy of the reply dated 3-11-2008 issued by Deputy Controller / Appellate Authority (Admission) is being filed here with and marked as Annexure No.7 to this writ petition.
16. That, the petitioner nor his father was able to get the correct and complete details as the conduct of University have been biased as well as non co-operating.
17. That, on 6-10-2008, the petitioner made a application under Right to Information Act seeking complete details of all the students admitted in Physics, Chemistry & Biology and Physics, Chemistry & Math under different categories as well as the waiting list. True copy of the application dated 6¬10-2008 by the petitioner in this regard is being filed here with and marked as Annexure No.8 to this writ petition.
18. That, as the case of the petitioner of life and liberty hence he respondents ought to have given the complete information within 48 hours as per Right to Information Act but no reply was given by the respondents hence the petitioner was compelled to make to an-other application to the Vice Chancellor on 10-10-2008 requesting his goodself to give the required information to him within 24 hours. True copy of the application dated 10-10-2008 is being filed here with and marked as Annexure No.9 to this writ petition.
19. That, in pursuance to the application dated 6-10-2008 and 10-10-2008 the respondents send a reply dated 10-10-2008 indicating therein that the case of the petitioner does not relate to life and liberty. True copy of the reply dated 10-10¬2008 is being filed here with and marked as Annexure No.10 to this writ petition.
20. That, it is relevant to point out here that the application regarding admission in 10+2 in all the categories instead of giving such information the respondents chose to say that case of the petitioner is not of life and liberty.
21. That, firstly the objection by respondents that the case of the petitioner is not life and liberty is incorrect apart from this what was/is the occasion or justification - for not providing all the information this itself shows that admission has not been done in fair manner and this was reason why the respondents always avoided to supply the required information to the petitioner.
22. That, one Mr. Tayyab Ali son of Sharif Ansari also appeared in combined entrance examination for class 11th and Physics, Chemistry & Biology stream and he was selected in same stream.
23. That, Mr. Tayyab Ali made a application under Right to Information Act seeking information about the marks obtained by him with merit ranking in Physics, Chemistry & Biology stream as well as cut of merit for Physics, Chemistry & Biology and in reply to this Assistant Controller Admission has replied to Mr. Tayyab Ali on 26-8-2008 replying that the marks obtained by him is 26.25 and cut of merit is 20.5 in Physics, Chemistry & Biology. True copy of the reply by Assistant Controller Admission, Aligarh Muslim University dated 26-8-2008 is being filed here with and marked as Annexure No.11 to this writ petition.
24. That, the petitioner as well as Mr. Tayyab Ali both appeared in combined entrance examination for class 11th and as per the information given by the petitioner secured 39 marks and cut of marks of last admitted candidate in Physics, Chemistry & Biology stream is 47 and on other hand in the information given to Mr. Tayyab Ali provides that he secured 26.25 marks and cut of marks for last admitted candidate in Physics, Chemistry & Biology stream is 20.5 hence this itself shows that the University has not given admission to the candidates in fair manner it is also submitted that the rank of Mr. Tayyab Ali as shown in the list of successful candidates was/is 134 and he has not been nominated in any category.
25. That, petitioner is given details of one Mohd. Faisal Qureshi S / 0 Haji Yunus Qureshi to show the unfair means adopted by the respondents in giving admission in 10+2.
26. That, Mohd. Faisal Qureshi was also appeared in combined entrance examination and he was allotted Roll NO. 316356 and he was not selected and in this regard the petitioner bringing on record a copy of information obtained regarding the result of admission test from Internet and it shows that Mohd. Faisal Qureshi was not selected. True copy of the information regarding the result of admission test from Internet is being filed here with and marked as Annexure No. 12 to this writ petition.
27. That, a perusal of the annexure 12 shows that Mohd. Faisal Qureshi was not selected and subsequently one Mustaq Ahmad also sought information under Right to Information Act as to whether any candidates have been admitted beyond official displayed list and the University replied that we have not admitted any students beyond the officially displayed list hence it is clear that no students was admitted whose name did not appear in the list of selected candidates but to utter surprise Mohd. Faisal Qureshi was admitted in class 11 th in Physics, Chemistry & Biology stream . True copy of the reply given by respondents to Mustaq Ahmad dated 7-8-2008 and true copy of the admission card of Mohd. Faisal Qureshi are being filed here with and marked as Annexure No.13&14 to this writ petition.
28. That, it is relevant again to point out here that initially Mohd. Faisal Qureshi was not selected subsequently the respondent's stand was that no students have been admitted beyond officially displayed list but malafides are clearly apparent by perusal of annexure 14 i.e. admission card of Mohd. Faisal Qureshi and further from perusal of letter dated 15-10-2008 issued by Appellate Authority / Deputy controller (Admission) which contains a recital to the effect that marks obtained by Mr. Faisal Qureshi were 22. True copy of the letter dated 15-10-2008 is being filed here with and marked as Annexure No.15 to this writ petition.
29. That, the respondents have not admitted the students in fair manner which is clear from the fact that as admitted by the respondents Mohd. Faisal Qureshi is a student belonging to backward caste and has secured 22 marks in the combined entrance test and as informed by University in the case of Tayyab Ali the cut of marks on which the last candidate was admitted in Physics, Chemistry & Biology stream is 20:5 hence Mohd. Faisal Qureshi should have been selected at the first entrance i.e. his name should have in the list of successful candidates which has not done hence this itself shows the conduct of the respondents.
30. That, Mr. Prabhat Sharma has been informed by one Tariq Islam that he had made a application under Right to Information Act 2005 as to why the decision of admission Committee in January 10, 2008 that entire details regarding admission will be made available on the Internet why the same has not done this year and in reply to this, the Assistant Controller have stated that this could not be done due to technical computational difficulties. True copy of the letter dated 10-11-2008 in this regard is being filed here with and marked as Annexure No.16 to this writ petition.
31. That, it is submitted here that in the letter dated 10-11- 2008 the respondents have admitted that a decision was taken by Admission Committee in January 10, 2008 for displaying entire details about admission on Website and they could not do so due to technical computational difficulties hence it is not open for them to say that the details sought by the petitioner and his father regarding all the admissions in all categoriescould not be provided other policy decision.
32. That, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3-11- 2008 it has been admitted by Deputy Controller/Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
33. That, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner in spite of his repeated request more so in the event that this list was to be displayed on the Website this year.
34. That, 'as far as the recital contained in the letter dated 3-11¬2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category.
35. That, from the perusal of the aforesaid fact and hence In view of these facts and circumstances of the case it IS absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th.
36. That, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
37. That the petitioner has got no other alternative, speedy and efficacious remedy except to approach this Hon 'hIe High Court in the exercise of its jurisdiction under Article 226 of the constitution of India, inter-alia, on the following amongst many other grounds.

GROUNDS

1. Because, it is submitted here that in the letter dated 10¬11-2008 the respondents have admitted that a decision was taken by admission Committee in January 10, 2008 for displaying entire details about admission on Website and they could not do so due to technical computational difficulties hence it is not open for them to say that the details sought by the petitioner and his father regarding all the admissions in all categories could not be provided to their policy decision.
2. Because, Prospectus of combined entrance examination contains details of special category and one of category is category of old students/ Alumini and in letter dated 3¬11-2008 it has been admitted by Deputy Controller / Appellate Authority (admission) that 20% of seats will be filled-up amongst various categories and Alumini is also one of them.
3. Because, when a decision was taken by Admission Committee on 10-1-2008 to display the complete list of all the candidates admitted in class 11 th then firstly it is not open for the respondents to say that the complete details of admission under this special category cannot be provided further as the petitioner is also entitled to be admitted under the category of Alumini and as in the present case it is clearly apparent that the University have not admitted the students in fair manner, it is reasonable apprehension in the mind of the petitioner that so called discretion vested with the Vice Chancellor have not been fairly exercised and this is reason why the complete details of admission under this category has not been provided to the petitioner inspite of his repeated request more so in the event that this list was to be displayed on the Website this year.
4. Because, as far as the recital contained in the letter dated 3-11-2008 is concern it can not be accepted that Vice Chancellor can nominate and the candidate irrespective of marks obtained by him as the discretion is always to be exercise in a reasonable manner and it is not understandable as to why the respondents are denying to give details of admission under this category
5. Because, from the perusal of the aforesaid fact and hence in view of these facts and circumstances of the case it is absolutely clear that the respondents have acted in a very arbitrary manner in giving admission to the students of class 11th Because, in spite of best efforts the petitioner could not get a copy of any resolution by academic committee which provides that Vice Chancellor can nominate any student irrespective of any marks obtained by him.
PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:
(i) Issue a writ order or direction in the nature of Mandamus commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology stream.
(ii) Issue such other and further writ, order or direction, as this Hon 'hIe Court may deem fit and proper in the circumstances of the present case.
(iii) Award the cost of the writ petition to the petitioner.

Dated - ……………….. 2008 Divakar Rai Sharma
Advocate
Ch. No. 6 High Court, Allahabad
Councel for the petitioner

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The text of complete judgement of Hon'ble High Court at Allahabad is given below
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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD.

CIVIL SIDE

ORIGINAL JURISDICTION

DATED ALLAHABAD THE : 06.02.2009.

PRESENT

THE HON’BLE RAKESH TIWARI, ........................................................ JUDGE

CIVIL MISC. WRIT PETITION NO.61316 OF 2008.

Order on the petition of Nishit Sharma (Minor)……………PETITIONER.

IN RE:

Nishit Sharma (Minor) S/O Sri Prabhat Sharma, through his next Friend/Father Prabhat Sharma S/O Late M. L. Sharma R/O 1/14 Tar Ka Nagla, Gurudwara Road, Aligarh .
………………...Petitioner

VERSUS

1. Vice Chancellor, Aligarh Muslim University, District Aligart..

2. Registrar, Aligarh Muslim University, District Aligarh.

3. Controller of Examination, Aligarh Muslim University, Djstrict Aligarh.

4. Assistant Controller/Central Public Information, Officer (Admission), Aligarh Muslim University, District Aligarh.

5. Deputy Controller/Appellate Authority (Admission) Aligarh Muslim University, District Aligarh .

............................. Respondents.

Counsel for the Petitioner: Sri Divakar Rai Sharma

Counsel for the Respondents : Smt. Sunita Agrawal.

BY THE COURT

COURT NO. 39

Civl Misc, Writ Petition No. 61316 of 2008

Nishit Sharma Versus Vice Chancellor Aligarh Muslim University,

District Aligarh & others

Hon'ble Rakesh Tiwari, J.

Heard Sri Divakar Rai Sharma, learned counsel for the petitioner and Smt. Sunita Agarwal, learned counsel for respondent nos. 1 to 5. Perused the record.
The petitioner passed his High School from Delhi Public School, Aligarh in 2008 and obtained 92 % marks. He appeared. He appeared combined entrance exam for class 11th and diploma in engineering on 2.6.2008 opting Physics, Chemistry & Biology as his first choice. The petitioner had applied under two categories for admission in the University i.e. under the special categories of S.M. category which is for outstanding sportsman and under CA category which is for children of alumni or old students of the University and as such the petitioner was not admitted by the University in either of the aforesaid two categories of S.M. and C.A. His name did not find place in the list of selected candidates. On receipt of unconfirmed information that cut-off mark of the last student admitted in the aforesaid category of alumni/old students was lower than the petitioner. Whether an application dated 1.10.2008 was moved by the father of the petitioner, who was alumni of the Aligarh Muslim University.
An application was moved by the father of the petitioner on 24.9.2008 under the Right to Information Act regarding percentage of marks obtained by him in entrance examination. He was informed that the petitioner had obtained 39% marks in the combined entrance examination and that the last candidate, who has been granted admission in general category had secured 47.75 marks.
He also moved an application dated 6.10.2008 to the authority under the right to information Act for being provided with complete details about the admissions made in class XI in all the categories including waiting list and list of candidates selected in different categories.
The respondent University vide their letter dated 3.11.2008 replied that details of percentage of last candidates admitted under the category of children of alumni/old boys cannot be provided to him and instead giving details of all selected candidates in class XI the respondents rejected the claim of the petitioner on the ground that the case of the petitioner does not relate to life and liberty.
The petitioner claims that he has been discriminated and though he has brought all the relevant facts to the notice of the authorities of the University including the cases of Sri Tayyab Ali and Sri Faisal Qureshi, who had been admitted on lower marks than the petitioner yet no action was taken by the authorities to remove the discrepancies.
Sri Tayyab Ali was given admission in class XI in Physics, Chemistry & Biology stream on the ground that cut off merit for the aforesaid subjects was 20.5 and he had obtained 26.25% marks securing 134 rank.
As regards Sri Faisal Qureshi who was initially not selected in class XI but was subsequently given admission on the ground that he had obtained 22 % marks in (PCB) Science.
It is averred in the writ petition that the aforesaid name of all selected candidate published in the merit but names of Tayyab Ali and Faisal Qureshi was not in the list of selected candidates and if their admission was fair and transparent their names ought to have been in the merit list of the successful candidates for admission if they had qualified the admission; but they have been admitted later on though they were not qualified for admission.
It is further averred that an application dated 10.11.2008 was moved by one Tariq Islam with the same grievance as that of the petitioner the University informed him that it could not display the entire list of candidates, who had appeared in combined entrance test due to technical difficulty. This decision was taken by Admission Committee in January 10, 2009 but till date the petitioners have not provided with complete details of % of cut¬off marks obtained by them and the list of the candidates selected in spite of repeated request by the petitioner.
In the aforesaid backdrop the present writ petition has been filed for following reliefs.
Issue a writ, order or direction in the nature of mandamus Commanding the respondents to admit the petitioner in class 11th (10+2) in Physics, Chemistry & Biology" (PCB).Stream.
Issue such other and further writ, order or direction as This Hon'ble Court may deem fit and proper in the circumstances of the present case.
Award the cost of the writ petition to the petitioner.
Initially, the Court on 1.12.2008 granted one week's time for filing counter affidavit to the respondents and thereafter two days' time for filing rejoinder affidavit to the petitioner was granted directing the case to be listed on 11.12.2008. The C3se was thereafter listed on 21.1.2009 when the learned counsel for the respondents informed that the rejoinder affidavit has been served upon her on that date and she wanted to go through the same and seek instructions in the matter. She also filed supplementary counter affidavit on 1.2.2009. The case was then listed on 2.2.2009 and on that date Smt. Sunita Agarwal, learned counsel for the respondents wanted to address the Court that exercise of discretion does not require any reason and denial of admission to the petitioner cannot be said to be arbitrary on these grounds.
It is submitted by Smt. Sunita Agarwal. learned counsel for the respondents that the petitioner had failed in the trial of sports game and as such he could not be recommended for admission under that category. As regards the list of 49 candidates who had applied against the special. Category “CA” i.e children of alumni, she urged that the said list was placed before the Vice-Chancellor for nomination of candidates for admission on 22.6.2008, which has been annexed as Annexure-CA-3 to the counter affidavit filed on behalf of the University; that the Vice-Chancellor in his discretion did not nominate the petitioner and that the discretion exercised by him was in reasonable and without basis.
She has lastly urged that in view of the averments made in the paragraphs 11-B and 13 of the counter affidavit that the Vice chancellor had not exercised the discretion conferred upon him by the Academic Council for nomination of 20% of total intake students vide resolution dated 31.1.92 in arbitrary manner as alleged by the petitioner.
In rebuttal. learned counsel for the petitioner relying upon the averments made in the rejoinder affidavit and supplementary rejoinder affidavit to the replies of the averments made in the counter and supplementary counter affidavit submitted that there is no such arbitrary discretion vested in the Vice-Chancel/or, even if he had been authorized by the Academic Council to nominate any candidate irrespective of inter-se merit or any positive criteria laid down in this regard.
The question as to whether exercise of powers by the Vice-Chancel/or pursuant to resolution dated 31.1.92 vested in him with unfettered discretion to admit any candidate requires consideration.
The word “discretion" has been considered by the Apex Court in paragraphs 26 to 35 of the judgment in the case of Reliance Airport Developers reported in (2006) 10 scc1 which for ready reference are extracted below.
"26. Willie exercising tile discretion, certain parameters are to be followed 'Discretion', said Lord Mansfield in R. V.Wilkes, 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular'." (See Craies on Statute Law, 6th Edn., P.273 and Ramji Dayawala & Sons (P) Ltd. v. Invest Import,SCC, see p.96, para 20).
27. "Discretion" undoubtedly means judicial discretion and not whim, caprice or fancy of a Judge. (See Dhurandhar Prasad Singh v. Jai Prakash University.) Lord Halsbury in Susannah Sharpe v. Wakefield considered the word "discretion" with reference to its exercise and held: (All ER p.653 F-G)
“…………………………………………………………..”
28. "Discretion" when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful but legal and regular.
29. Though the word, "discretion" laterally means and denotes an uncontrolled power of disposal yet in law, the meaning given to this word appears to be a power to decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean that even if a person has a discretion to do something the said discretion has to be exercised within the limit allowed by positive rules of law. The literal (sic legal) meaning of the word "discretion" therefore, unmistakably avoids untrammeled or uncontrolled choice and more positively points out at there being a positive control of some judicial principles.
30. Discretion in general, is the discernment of "what is right and proper. it denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity. .And colorable glosses and pretenses, and not to do according to the will and private affections of persons.
31. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the Legislature concedes discretion it also imposes a heavy responsibility.
32. The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable, said Lord Camden, L. C.J., in Hindson and Kersey.
33. If a certain latitude or liberty accorded by statute or rules to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review.
34. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent Judges in somewhat different forms of words but with substantial identity. When a statute gives a Judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on he assumption that he is discreet (Per Willes J. in Lee v. Budge Railway Co. and in Morgan v. Morgan).
35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:
'Discretion" .-•Power of the Court or arbitrators to decide as they think fit.
The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. [Corpus Juris Secundum, Vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. V. Ravindra Kumar Suri, SCC p. 31, para 6: SLT at p. 430 para 6]
A discretion', said Lord WRENBURY, 'does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion donot what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates. (Roberts v. Hopwood). This approach to construction has two consequences: the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably (MAXWELL)
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'Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rookes case according to law, and not humour. It is to be not arbitrary, Vague and fanciful, but legal and regular. Lord HALSBURY LC in Susannah Sharp v. Wakefield. at p.179 referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd, (AIR pp. 333-35). (See also Aero Traders Pvt. Ltd. v. Ravindra Kumar Suri, See (3) p. 311, para 6, SLT at p. 430, para 6; Man Mal Sharma v. Bikaner Bhasin v. Union of India, AIR at p.322.
‘Discretion’ LORD MANSFIELD stated in classic terms in John Wilkes case, must be a sound one governed by law and guided by rule, not by humour ; Lord DENNING put it eloquently in Breem v, Amalgamated Engineering Union, that in a Government of Laws' 'there is nothing like unfettered discretion immune from judicial reviewability'. Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance. Between equity and colorable glosses and pretences and not to do according to ones wills and private affections. Lord BRIGHTMAN elegantly observed in Chief Constable of North Wales Police v. Evans, that:
'Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made.
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles, He is not to, yield to spasmodic sentiment. to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, discipline by system, and subordinated to ''the primodial necessity of order in the social life." Wide enough in al/ conscience is the field of discretion that remains. NENJAMIN CARDOZO in the Nature of judicial process.
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The word discretion, standing single and unsupported by circumstances signifies exercise of judgments, skill or wisdom as distinguished from folly, unthinking or haste. Evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking, the word in itself implies vigilant circumspection And care therefore, where the Legislature concedes discretion it also imposes a heavy responsibility. (See National Insurance Confidential. Ltd. v. Keshav Bahadur, SCC, p. 375 para 10,. AIR at p 1584, para 10).
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The power to decide within the limits allowed by positive rules of law as to punishments, remedies or costs and generally to regulate matters of procedure and administration decrement of what is right and proper. (See Article 136 (1), Constitution)
DISCRETION is governed by rule and it must not be arbitrary, vogue and fanciful. (See Jaisinghani v. Union of India, AIR At p.143).
When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law, (Tomlin). In its ordinary meaning, the word signifies unrestrained exercise of choice or will; freedom to act according to one's own judgement. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgement and conscience, uncontrolled by the judgement or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law.
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There (may) be several degrees of Discretion, discrelio generalis, discretioi legalis, discretio speciallis, -Discretio generalis is required of every one in everything that he is to do, or attempt;
'Legalis discretioi', is that which Sir E Coke meaneth and setteh forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law .
“The third disretion is where the laws have given no certain rule….. and herein discretion is the absolute of the cause, and gives the rule. (Callis. 112.113)
This principles laid down by the Apex Court in the aforesaid judgment have to be kept in mind while deciding whether the Vice-Chancellor of the University having been (delegated power by resolution dated 31.1.92 could have exercised any unchannelized or unfettered discretion in the matter of admission of the students on his whims and fancy. The counsel for the respondent University could not show application of any judicious mind in “pick and choose" method adopted by him thus rendering the discretion exercised by the Vice-Chancellor unregulated and absolutely capricious and lacks reason.
Furthermore, a perusal of Annexure-1 to the supplementary rejoinder affidavit, which is an information supplied by the Assistant Controller/CPIO, ( Admission) under the Right to Information Act regarding percentage in examination of last admission under Alumni/Old Boys category was given cut-off marks of 35 % whereas the percentage in examination of class XI (Science) of the petitioner was 39%. This shows unregulated hindrance of the Vice-Chancellor in exercise of his said discretion. The aforesaid letter dated 2.2.2009 is extracted below:

Office of the Controller of Examinations
(Admission Section)
A.M.U. Aligrah

Ext. D.No. 601/Adms. Dated 2.2.2009

Prabhat Sharma
1/14 Tar Ka Nag/a,
Gurudwara Road,
Aligarh-UP

Subject:- Seeking information Under the Right to Information Act.2005.

Reference to Decision No. CIC/SG/A/20 08/00155/1315 dated 28.2.2009 received from the Information Commissioner on the Appeal No. CIC/SG/A/2008/00155 dated 1.10.2008 filed by your regarding percentage in examination of last admission under the Alumni/Old Boys category.

The reply is as under:-

Si.no	Question	Reply
1.	Percentage in examination of class XI (science of Master Nishit Sharma Roll No. 299406 (PCB)	39.00
2.	Percentage in examination of last candidate selected in general category in the same.	47.75
3.	Percentage in examination of the last admission under Alumni/ old boys category	35.00
4.	Cut off percentage of B.Sc (Biochemistry) in Abdullah college	Internal: 77.25% External : 83.50%

Sign. Eligible

(Wajid AIi)

Assistant Controller/CP/O

(Admission)

Considering all the aforesaid aspects of the matter I am of the consideration that the petitioner has been discriminated by the Vice-Chancellor, who has exercised the powers delegated upon him by the Academic Council vide its resolution dated 31.1.92. The petitioner having obtained 39% marks under the category of Ward of Children of Alumni was entitled to be admitted in the University particularly when the last candidate admitted in the aforesaid category had obtained 35% marks in the entrance test.

It is directed that the Vice-Chancellor shall grant admission to the petitioner irrespective of any other consideration in class XI Science ("PCS"). stream forthwith within a period of one week from the date of production of a certified copy of this order. The petitioner will complete all formalities such as payment of fee etc. before taking admission. He shall not be denied permission to appear in the final examination of class XI by the University and any shortage of attendance would be deemed to be condoned as it is attributable directly to the arbitrary decision of the Vice-Chancellor denying admission to the petitioner for which the petitioner can not be penalized. However, as the petitioner has not been able to appear in the sessionals due to non grant of admission in the circumstances aforesaid, it would be desirable that he undergoes a sessional examination of 25% marks in the course completed.

In the last but not the least, the Court hopes and trusts that the University will not harbour any reservation in the cause of furtherance of justice against the petitioner for approaching the Court in the matter.

The writ petition is accordingly, allowed. No order as to costs.
Dated 6.2.2009
CPP/- Sd. Rakesh Tiwari-J