Question: Can I file an application under the Right to Information Act, 2005 (RTI Act) in order to obtain copies of my own Annual Confidential Reports (ACRs). I am working in the State Government (Madhya Pradesh).
Answer: The answer is “yes”. Now, it should be possible for you to obtain your own ACRs (Annual Confidential Reports) by making an RTI application. There is a specific high court judgment on this issue, against which SLP was dismissed by the Supreme Court. Moreover, there is another Supreme Court judgment, which generally covers this issue.
Previously, vide Office Memorandum, O.M. No. 10/20/2006-IR dated 21st September, 2007 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, regarding disclosure of ACRs under the RTI Act, 2005, it was directed by the Government of India that the public authority is not under obligation to disclose ACRs of any employee to the employee himself or to any other person in as much as disclosure of ACRs is protected by clause (j) of sub-section (1) of Section 8 of the RTI Act and an ACR is a confidential document disclosure of which is protected by the Official Secret Act,1923. However, it was further mentioned in the said O.M. that the public authority has a discretion to disclose the Annual Confidential Reports of an employee to the employee himself or to any other person, if the public authority is satisfied that the public interest is disclosure outweighs the harm to the protected interests. It was further mentioned therein that if it was felt that public interest in disclosure of ACR of any employee outweighs the protected interests, decision to disclose the ACRs should be taken with the approval of the competent authority. Thus, only a discretion was given to the authority whether or not to provide copies of ACRs on an RTI application being filed for the same.
However, subsequently, in the case of State of Punjab vs. State Information Commission, Punjab [CWP No. 8396 /2008], decided on 19-05-2008, a Division Bench of the High Court of Punjab and Haryana at Chandigarh, comprising of Justice N.M. Kumar and Justice Mrs. Sabina held that copies of his own ACRs are required to be communicated to the applicant under an RTI application.
The brief facts of this case are that on 18.07.2006, Shri Faquir Chand Sharma had filed an application under the Right to Information Act, 2005, with the Public Information Officer for supply of copies of Annual Confidential Reports for the period from 01.04.2000 to 31.03.2006. The Public Information Officer referred the matter to the Appellate Authority i.e. Superintendent Executive Patiala Circle-I, PWD (B&R) Branch, Patiala. After considering the matter, the Appellate Authority vide order dated 08.08.2006 declined the request on the ground that the information demanded by the applicant was confidential and the same was exempted from disclosure under Section 8 of the said Act. Second appeal was filed and the State Information Commission, Punjab, passed an order dated 05.11.2007 holding that Shri Faquir Chand Sharma was entitled to the information sought by him. The Executive Engineer, Provincial Division No. 1, PWD (B&R), Patiala was directed to deliver copies of his ACRs for the period as above within a period of 15 days to him. This order was challenged under Article 226 of the Constitution of India before the Punjab and Haryana high court by way of the above writ petition vide CWP No. 8396 /2008.
The high court referred to the provisions of sub-clauses (e) and (j) of Section 8(1) of the RTI Act, which are reproduced as under:-
“8. Exemption from disclosure of information. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
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(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
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(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:\ Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
The high court held that while a perusal of Section 8(1)(e) of the Act shows that it opens up with a non-obstante clause providing that there is no obligation cast on the authorities to give a citizen any information concerning the fiduciary relationship of another person, however, the information may still have to be made available if larger public interest justifies such disclosure.
The high court approvingly quoted the following observations of the State Information Commission:
“The purport of this clause on a plain grammatical construction is that in a case where certain information is available to a person (meaning thereby, a Public Authority) in a fiduciary relationship is a relationship akin to a trust. The holder of information in a fiduciary capacity is a trustee and he holds the information for the benefit of the cestui que trust (That is the beneficiary of trust). Since the trustee holds the information for the benefit of the person to whom the information relates, the intendment behind the statutory provision (clause ‘e’) is that it be exempted from disclosure unless the larger public interest warrants otherwise. This clause, that is, clause (e) would be attracted only when third parties seek information pertaining to the beneficiary of the trust in the hands of the Public Authority (holding information as a trustee for the person to whom it relates). It is, thus, seen that the necessary pre-condition for the applicability of Clause (e) supra is that the Public Authority opts the information as a trustee for the person to whom the information relates. The Public Authority, is therefore, expected to keep that information confidential so that the interests of the beneficiary of the trust are not in any manner harmed. The refrain against disclosure of information of this nature can only be overridden where the large public interest so warrants. In the case of an ACR, however, none of the essential ingredients of clause (e) exist. The Public Authority does not hold information contained in an ACR as a trustee for the employee concerned or for any other person. ……”.
The high court further observed that likewise, according to Section 8(1)(j) of the RTI Act, if information sought is purely personal information without any relationship to any public activity or interest then its disclosure could be refused; it follows that disclosure of any information which is in public domain, cannot be denied. The ACRs of a public servant are not private in character. In any case, when an employee asks for disclosure of his own ACR the demand cannot be declined because now all ACRs are required to be communicated to a public servant, whether adverse, good, very good etc.
Thereafter, the high court relied upon the observations of the Supreme Court in the case of Dev Dutt v. Union of India, (2008) 8 SCC 725 : AIR 2008 SC 2513, in which it had been held that every entry in the ACR (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not.
In view of the above reasons, the Punjab and Haryana high court dismissed the above writ petition against the decision of the State Information Commission. Thus, the view that the ACRs of the employee are required to be provided to an employee under an RTI application was upheld by the high court.
It is pertinent to mention that against the above decision dated 19.05.2008 of the Punjab and Haryana high court, a Special Leave Petition vide SLP (C) No. 33417/2009 was filed in the Supreme Court. However, this SLP was dismissed by the Supreme Court vide its brief order dated 14.02.2011. Thus, the above order of the high court was affirmed.
At this juncture, it may germane to refer to the following relevant observations of the Supreme Court in the aforesaid case of Dev Dutt v. Union of India, (2008) 8 SCC 725 : AIR 2008 SC 2513:
“In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee’s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a “good” or “average” or “fair” entry certainly has less chances of being selected than a person having a “very good” or “outstanding” entry.
“In most services there is a gradation of entries, which is usually as follows: (i) Outstanding (ii) Very Good (iii) Good (iv) Average (v) Fair (vi) Poor. A person getting any of the entries at Items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the authority concerned.”
“If we hold that only “poor” entry is to be communicated, the consequences may be that persons getting “fair”, “average”, “good” or “very good” entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).”
“In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution.”
“In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O requiring communication of the entry, or even if there is a rule/G.O prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.”
It should thus be clear that a Government employee has right to obtain copies of his ACRs by filing an RTI application and the Government cannot deny to provide this information to him.