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Delhi High Court says RTI Act immunity to Enforcement Directorate does not cover information sought on corruption or employees’ promotion

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The Delhi High Court earlier this week directed the Enforcement Directorate to provide copies of the seniority list in respect of Lower Division Clerk (LDCs) to an employee of the organization facing prejudices regarding seniority while noting that employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in intelligence and security.

The Division Bench of Justices Manmohan and Sudhir Kumar Jain was dealing with an appeal challenging the Single Judge’s order dismissing ED’s plea against the order of the Central Information Commission (CIC) directing the establishment to furnish the information sought by the employee (respondent herein) under the Right to Information Act, 2005.

A Superintendent in the Enforcement Directorate’s Administration wing had filed an RTI application seeking information on seniority list and proposal for promotion, whereby the CIC directed ED to furnish requisite information.

Challenging the order passed by the CIC, the Union of India approached the Delhi High Court in 2018, which was dismissed by the Court on December 7, 2018. Being aggrieved, the instant appeal was filed wherein notices were issued on December 21, 2018, while the stay application was rejected.

Accordingly, a Special Leave Petition was filed before the Apex Court which was disposed of with a direction to the Delhi High Court to first decide the issue with respect to applicability of the RTI Act on the ED and thereafter to decide the appeal within a period of eight weeks.

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Copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time.

Advocate Amit Mahajan, representing ED, argued that the information sought under the RTI application does not fall under the purview of Section 24 of the RTI Act and that the Legislature has granted complete immunity to organizations mentioned in the Second Schedule to the RTI Act, thereby, they cannot be called upon to disclose information under the provisions of the RTI Act.

Per contra, the counsel representing the employee argued that in the absence of information sought for, the respondent is unable to enforce her fundamental and legal right to promotion.

Observations made by the Bench

The Bench observed that though the Enforcement Directorate is an intelligence and security organization and cannot be called upon to disclose information under the purview of the RTI Act except when the information sought pertains to allegation of corruption and human rights violation, yet its employees cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment. “To hold so would amount to holding that those who serve in these organizations have no human rights,” said the Bench.

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The Bench opined that the expression human rights cannot be given a narrow or pedantic meaning and that non-supply of information sought by the employees of the establishment is a human rights violation as the absence of same would not entitle them to agitate their right to promotion.

“It is settled law that employees have a legitimate expectation of promotion. The intent of service jurisprudence at the level of any establishment/organization is to promote peace and harmony and at the level of the society, the objective is to promote human rights. If employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic”

-noted the Bench.

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It goes on to add that:

“In fact, RTI Act is a tool which facilitates the employees and officers in airing their grievances systematically. According to Statement of Objects and Reasons, the intent and purpose of RTI Act is to secure access to information in order to promote transparency and accountability in the working of every public authority. It is said that ‘Sunlight is the best disinfectant’ and RTI Act promotes the said concept. Consequently, both service and RTI laws ‘act like a safety valve in the society’.”

The Bench, while making it clear that information pertaining to proposals for promotion of third parties cannot be provided under the RTI Act, directed the Centre to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of the respondent herein placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of Departmental Promotion Committee from time to time.

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