appeal no. cicwba200700315 dated 20-3-2007

8/9/2019 Appeal No. CICWBA200700315 dated 20-3-2007

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CENTRAL INFORMATION COMMI SSION

Appeal No. CIC/WB/A/2007/00315 dated 20-3-2007Right to Information Act 2005 Section 19

Appellant: Shri Ramesh N. Gandhi, Ulhasnagar

Respondent: Hq. SWAC, Gandhinagar (Guj)

FACTS

By an application of 26-10-06 Shri Ramesh Gandhi of Ulhasnagar

applied to Group Capt. H.K. Nair, CPIO, for Air Officer Commanding in Chief

Hq. SWAC, Gandhinagar, Gujarat seeking the following information:

1. Full names of Three Senior most teachers designated asPGT, and subjects taught by them. Please expand PGT.

2. What is the rule governing private tuitions done by thesethree PGTs?

3. Whether the permission from School managementcompulsory for doing private tuitions?

4. Whether any of the above three PGTs has takenpermission to do privation tuitions.

5. Please confirm in yes/ no the attendance of these threePGTs on following dates:

Senior most PGTS.No.

Date Day PGTPresent/Absent

If absent, kindof leave taken.

10.08.2001 Friday04.10.2001 Thursday28.11.2001 Wednesday02.01.2002 Wednesday04.02.2002 Monday11.03.2002 Monday

09.04.2002 Tuesday22.05.2003 Thursday23.05.2003 Friday

24.05.2003 Saturday07.06.2003 Saturday09.06.2003 Monday10.06.2003 Tuesday

11.06.2003 Wednesday04.08.2003 Monday


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05.08.2003 Tuesday06.08.2003 Wednesday

07.08.2003 Thursday08.08.2003 Friday08.08.2003 Monday090.9.2003 Tuesday

10.09.2003 Wednesday11.09.2003 Thursday12.09.2003 Friday13.09.2003 Saturday

Second Senior most PGTS.No.



10.08.2001 Friday

04.10.2001 Thursday28.11.2001 Wednesday

02.01.2002 Wednesday04.02.2002 Monday11.03.2002 Monday

09.04.2002 Tuesday22.05.2003 Thursday23.05.2003 Friday24.05.2003 Saturday07.06.2003 Saturday09.06.2003 Monday

10.06.2003 Tuesday11.06.2003 Wednesday04.08.2003 Monday05.08.2003 Tuesday06.08.2003 Wednesday07.08.2003 Thursday08.08.2003 Friday

08.09.2003 Monday09.09.2003 Tuesday10.09.2003 Wednesday11.09.2003 Thursday12.09.2003 Friday

13.09.2003 Saturday

Third senior most PGTS.No.



10.8.2001 Friday4.10.2001 Thursday


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28.11.2001 Wednesday2.1.2002 Wednesday

4.2.2002 Monday11.3.2002 Monday9.4.2002 Tuesday22.5.2003 Thursday

23.5.2003 Friday24.5.2003 Saturday7.6.2003 Saturday9.6.2003 Monday10.6.2003 Tuesday11.6.2003 Wednesday4.8.2003 Monday5.8.2003 Tuesday6.8.2003 Wednesday

7.8.2003 Thursday8.8.2003 Friday

8.9.2003 Monday9.9.2003 Tuesday10.9.2003 Wednesday11.9.2003 Thursday12.9.2003 Friday

13.9.2003 Saturday

To this he received a response on 16-11-06 refusing the information on

the following grounds:

Air Force School, Jodhpur run by Air Force Station Jodhpurdoes not fall under the definition of Public Authority as defined

in section 2 (h) of RTI Act 2005. The School is a WelfareVenture of the Air Force.

Information regarding the school was earlier given to youerroneously.

Dissatisfied with this response Shri Gandhi moved his first appeal

before the Appellate Authority Gr. Capt. H.K. Nair, upon which he received an

order of 3-1-07 from Air Vice Marshall M. John, Sr. Officer in-Charge,

Administration Hq. SWAC which states as follows:

AND WHERAS, the Air Force Schools are Non-Public Fundventures and are administered and managed by a Societyregistered under the Societies Registration Act, 1860, viz,Indian Air Force Educational and Cultural Society. The IAFEducational and Cultural society is a non-profit making welfareinstitution with its primary objectives being promotion ofeducation, fine arts and culture and diffusion of useful


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knowledge mainly amongst the past and present employees ofIAF, their children and families.

AND WHEREAS, in the circumstances aforesaid, in my view theAir Force School at Jodhpur s not a Public Authority as isenvisaged in section 2 (h) of RTI Act.

Appellants prayer before us is as follows:1. The PIO may please be ordered to provide me the

desired information in desired format. Also the PIO mayplease be ordered to allow the applicant and/ or hiscounsel to inspect the records containing the desiredinformation.

2. CPIO may please be penalized as per the provisions ofsection 20 of the RTI Act.

3. The concerned authority, i.e. Indian Air Force, may

please be ordered to pay Rs. 10,000/- as compensationto the applicant for harassment, mental torture causeddue to this refusal and the cost of postal expenses andcost of counselling with RTI expert.

4. Any other relief may please be granted, as may bedeemed fit by the Honble CIC, according to theprovisions contained in section 18 and 19 of the RTI Act.

5. Any other penalty may please be imposed on the CPIO,as may be deemed fit by the Honble CIC, according tothe provisions of the RTI Act 2005.

He has gone on to submit further arguments in a letter of 8-3-08 as follows:

1) The subject school is an educational institution withoutany doubt.

2) This institution is run and administered by Air ForceStation, Jodhpur, through IAF educational and culturalsociety.

3) Without any doubt, whether an educational institution is

managed by a private or public entity, all the activitiesperformed by any educational institution, its functioningmachinery, teachers, employees, etc., fall under thedomain of public life.

4) Even though the funds for running such an institution maybe private in nature, entire educational system, itsfunctioning machinery, teachers, employees, etc., areanswerable to public at large.


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5) More so in the present case, as the learned CPIO and his

appellate authority have themselves agreed that thesubject institution is a NON PROFIT making welfareinstitution. Any welfare institution, especially, educationalinstitution cannot shun its responsibilities towards public

at large.

6) It is also stated by the learned authorities that theobjective of the subject institute is to serve present andpast employees of IAS, their children and families. Thepast and present employees of IAF are/were part of IAF,which is a public authority. Therefore, any matter relatedto their lives is public in nature.

The above arguments may please be formed as part of therecord and be considered while deciding the appeal.

The appeal was heard through Videoconferencing on 31-7-2008.

Following are present.

Appellants at NIC Studio, MumbaiShri Ramesh N. GandhiShri Kailash Bhatia

Respondents at NIC Studio, Gandhinagar (Gujarat)Wg. Cdr. Rajshekhar, CPIO (South West Air Command)

Wg. Cdr. Rajshekhar submitted that the school is run by an

independent society, receives no funding from Government and has not been

set up under any notification. The administrative chain of the society is from

the Central Society called the IAF Educational and Cultural Society of which

the administrative chair is Air Officer in charge of administration, and the

President of every School Management Committee at the local level is the

Station Commander ex-officio, and other than the Administrative Officer, who

is the AO of the Air Force station the members include the Principal and a

representative of teachers. Shri Rajshekhar also cited the decision of this

Commission in the case of Sanjiv Kumar vs. Registrar of Coop. Societies in

case No. CIC/WB/C/2006/00104 dated 9-6-06. In this decision notice we

have held as follows:

Whereas appellant is justified in reading into our decision abovecited that information held by a cooperative society isinformation under the RTI Act as defined in Sec 2(f), we haveheld repeatedly that a Cooperative Society in Delhi does not fall


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within the definition of a public authority u/s2 (h) (d) which readsas follows:

Sec. 2(h)public authority means any authority or body or institution ofself-government established or constituted -3x x

d) By notification issued or order made by the appropriateGovernment and includes any

i) body owned, controlled or substantially financed

ii) non-Government organization substantially financed directlyor indirectly by funds provided by the appropriate Govt.

In such matters it would only be the provision of beingsubstantially financed by a public authority that would call forinvocation of section 2(h) (d) (ii). Holding land at subsidized

rates for qualifying for loans at differential rate of interest cannotitself contribute substantial finance. In our Decision in AppealNo.CIC/WB/C/2006/00080 dated 9.10.06 we have held asfollows:

Whether the cooperative society in question falls withinthe definition of public authority or not u/s 2 (h) (d) or notis for the office of Registrar to decide.

Again, in Veeresh Malik vs. Indian Olympics Association & Ors,CIC/PBA/2006/158 of 28.11.2006 we have held that the termsubstantially financednot having been defined in the Act, thedefinition may be found in a relatable statute and applied andhave therefore applied the definition given in Sec 14(1) of theCAG Act 1971 for the term.

The norms for arriving at a decision on definition of a publicauthority have been spelled out in Pradeep Gupta vs. Servantsof the People Society Complaint No.CIC/WB/C/2006/00157dated 1.5.07 wherein we held:

To determine whether this Society will fall within thedefinition for public authority under sec. 2(h)(d)(i)&(ii), thefollowing will require to be determined:

1. Whether the accounts of the Society are under the

Audit of C&AG.2. Whether the society is under the control of aDepartment.

3. Whether the society is in possession of land giftedby government.

None of these norms being met in the present case, theresponse of Asstt. Registrar Cooperatives and CPIO is,therefore, correct. Any information regarding the Cooperative


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Society that he seeks may be sought by appellant Shri SanjivKumar from PIO of the office of Registrar as per sec. 2(f) of theRTI Act, read with sec. 2(j) which defines the RTI as informationas that which is held by or under the control of any publicauthority.

Appellant Shri Gandhi on the other hand invited our attention to the

definition of Public Authority u/s 2 (h) and contended that the school was both

a self-governing institution and established under the Companies Act. He

also submitted that information sought from the school had been provided to

him earlier, and as admitted by respondents a building had been provided to

the school by the Air Force, which would amount to substantial finance. Wg.

Cdr. Rajshekhar on the other hand contended that for such accommodation

provided by the Air Force a rent was charged. By subsequent e-mail he has

clarified that as an example the license fee for use of govt facilities charged

the school in question is an amount of Rs 7,360/ for the period April, 08 to

June 08. However functional control is that of the school management

Committee. But in written arguments submitted by Wg Cmdr RN Magadum,

legal CPIO Hq SWAC, in which he has cited payment of fee, quoted above,

he has also gone on to state that the school is not authority within the

meaning of Article 12 of the Constitution of India. In doing so he has cited the

judgement in AIR 1975 SC 1329 Sabhajit Tewary vs. UOI & Ors in which CSR

was held not be such an authority. The Wg Cmdr has taken the opportunity of

presenting his case as follows:

(a) Air Force Schools are Non-Public Fund ventures and areadministered and managed by a Society viz. Indian AirForce Educational and Cultural Society. The IAFEducational and Cultural Society is registered under theSocieties Registration Act, XXI, of 1860, on 25September 1980 vide Regd. No. S/11214. The IAFEducational and Cultural Society, is a non-profit makingwelfare institution with its primary objectives being

promotion of education, fine arts and culture and diffusionof useful knowledge mainly amongst the past and presentemployees of IAF, their children and families.

(b) In this context it is relevant that, AF School Jodhpur runsin accordance with rules and bye-laws laid down byGoverning Council of the IAF Educational and CulturalSociety New Delhi. Its funds are generated throughmonthly payments by the students and grants from the


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Welfare Funds and no funds are sanctioned from theMinistry of Defence to it. The employees of the AF Schoolare not paid out of the Defence Estate or Governmentexchequer i.e. Public Fund. Further, Air Force Schoolscan not be stated to be an integral part of the Air Force.The core activity of the Air Force is to defend the country

in a war. Providing educational facilities to wards of itspersonnel is only incidental and not the main function ofthe Air Force. Furthermore, Air Force School Jodhpur isneither performing any public function (An act or duty ofa public servant in his capacity as such) nor any publicduty (A duty in the discharge of which the State, thepublic or the community at large has an interest). It isonly providing educational facilities to wards of itspersonnel, both serving and retired.

(c) Indian Air Force Educational and Cultural Society andthe Air Force School Jodhpur can not be said to have

been established or constituted by or under Constitutionof India; or by notification issued or order made by theappropriate Government (Central Government in thepresent case), including any body owned, controlled orsubstantially financed; or non-Government organizationsubstantially financed directly or indirectly by fundsprovided by the appropriate Government.

(d) Earlier, the information sought by Shri RN Gandhi videhis application dated 07 Jul 2006 was given by the CPIOvide letter SWAC/3451/10/P1 dated 12 Sep 2006. Thesame was given erroneously because of the followingreasons: -

(i) The information regarding list of teachers,seniority-wise including their names, date of joining, designation/position, nature ofemployment - Temporary/Permanent, grade ofemployment, educational qualifications, break-up of salary, details of leave etc of teachersemployed in AF School, Jodhpur pertained toinformation on third party. Before providing thesaid information, provisions laid down in Sec 11

of RTI Act, 2005, i.e. third party information,were not followed.(ii) Since the said information relates to personal

information, the disclosure of which had norelationship to any public activity or interest.Further, such disclosure could have causedunwarranted invasion of the privacy of theindividual teachers. Thus, the information


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should have been rejected as the same fallsunder Sec 8(1) (j) of RTI Act, 2005.

(iii) Most importantly, AF School Jodhpur was not aPublic Authority in terms of Sec 2 (h) of RTIAct, 2005; hence, the applicant was not entitledto seek any information under RTI ACT, 2005

in respect of AF School, Jodhpur.

(e) Further, from the Application dated 16 Jul 2007 filedbefore the Honble CIC for urgent disposal of his appeal,it is evident that the appellant is seeking the informationfor his matrimonial case. He has also not indicated anybonafide public interest in seeking the said information.Thus, the appellant is seeking the information forpromotion of his personal interest rather than public.

DECISION NOTICE

The contention of appellant that simply because the school is a

self-governing institution it falls under the definition of Public Authority is

invalid. The form of institution referred to in Section 2 (h) is an institution of

self-government which is quite distinct from simply a self-governing

institution, since it will not only govern itself but actually engages in

governance and the term alludes to institutions like Panchayats and

municipalities. Nor is it valid that simply because the institution is registered

under the Societies Registration Act 1860 or even the Companies Act or

Cooperative Societies Act that it becomes a Public Authority, because

although it may be registered under such an Act it is not established or

constituted by that law in itself. The law referred to in Sec 2 (h) is one that

actually establishes or constitutes an institution and not a law that simply

sets up a mechanism for recognizing different forms of institutions.

On the other hand we find the arguments submitted in writing by Wg

Cmdr Magadum are largely specious. U/s 6 sub-section (2), An applicant

making request for information shall not be required to give any reason for

requesting the information1 The argument at (e) above is altogether

irrelevant. Besides, it is nobodys case that the School in this case

constitutes State under Article 12 of the Constitution. The example of the

1Underlined by us for emphasis.


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CSIR is entirely misplaced since the CSIR is indeed a public authority u/s

2(h) of the RTI Act, with a complete infrastructure built assiduously in

compliance with the RTI Act, 2005. Wg Cmdr Magadum is advised to visit

CSIRs website to learn more on this.

In addition we have the ruling of MM Kumar, J and TPS Mann, J of the

Punjab & Haryana Hi gh Court, in Civi l WP NO. 2626 OF 2008 in

DAV College Trust and Management Society & Ors vs. Director of Public

Instructions & Ors of the Chandigarh Administration in which they have held

as follows:

The Full Bench has taken a view that since the institutionsdischarge public functions, it cannot be regarded as a private

individual limiting the powers of the Court in issuance ofdirections including prerogative writs. It has further been heldthat imparting of education is a public function irrespectiveof any financial aid. Once the institutions like thepetitioners are performing public functions affecting the lifeof a huge segment of the society and in addition arereceiving substantial grant-in-aid then it cannot be arguedthat it is not a public authority. 2 Therefore, for the additionalreason, detailed in Ravneet Kaurs case (supra), the writ petitionwould not survive and the question posed has to be answeredagainst the petitioners.

The key issue before us, then, is whether because of the constitution

of its School Management Committee under the ex-officio chairmanship of

the Air Force Station Commander, the Air Force School is controlled by the

Air Force. In this context, the response of PIO to the initial application is

telling in the manner in which he describes the school in question as, Air

Force School, Jodhpur run by Air Force Station Jodhpur3 However,

admittedly, although the School Management Committee is indeed headed

by a serving officer in that capacity, and because of that he has the potential

to exercise substantial control, the school is not structured to be controlled

by government. Nevertheless u/s 2(f) of the RTI Act the definition of

information includes any material in any form.relating to any private

2 Emphasis ours3

Underlined by us for emphasis


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body which can be accessed by a public authority under any law for the time

being in force. Even if we were to concede that the Air Force School

Jodhpur is a private body, by dint of its head being a serving officer and

serving as head in that capacity, by the very act of registration such an

officer has the authority to access information regarding the school and is

therefore required to service RTI applications pertaining to such accessible

information.

The appeal is therefore allowed. The information sought by applicant

inasmuch as it can be accessed by Air Force Station Commander will be

provided to appellant Shri Ramesh Gandhi in accordance with the RTI Act,

2005, within ten working days of the date of receipt of this Decision Notice.

However, because the application involved a substantive question of law

there will be no costs.

Reserved in the hearing this decision is announced in open chamber

on 1.08.08. Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)

Chief Information Commissioner1-8-2008

Authenticated true copy. Additional copies of orders shall be supplied againstapplication and payment of the charges prescribed under the Act to the CPIOof this Commission.

(Pankaj K.P. Shreyaskar)Joint Registrar1-8-2008

appeal no. cicwba200700315 dated 20-3-2007

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