Telangana High Court
Ms.Mahnaz Khanam vs The Public Information Officer,And 4 ... on 5 June, 2023
Author: Surepalli Nanda
Bench: Surepalli Nanda
1
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 33324 of 2014
Between:
Ms. Mahnaz Khanam
... Petitioner
And
The Public Information Officer,
O/o. The Commissioner & Director of School Education,
Hyderabad & others
... Respondents
JUDGMENT PRONOUNCED ON: 05.06.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : Yes
_________________
SUREPALLI NANDA, J
2
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 33324 of 2014
% 05.06.2023
Between:
# Ms. Mahnaz Khanam
..... Petitioner
And
$ The Public Information Officer,
O/o. The Commissioner & Director of School Education,
Hyderabad & others
... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr P.V. Ramana
^ Counsel for Respondents : Government Pleader for
School Education.
? Cases Referred:
3
HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 33324 of 2014
ORDER:
Heard the Learned Counsel for the Petitioner and Learned Government Pleader for School Education.
2. This writ petition is filed to issue a writ, order or direction more in the nature of Mandamus declaring the orders passed by the 3rd respondent in Appeal No.1619/SIC- SPR/2010, dated 28.08.2013 for dropping the action for non- implementation of the orders passed by the 3rd respondent in Appeal No.1619/SIC-SPR/2010, dated 29.06.2012 is illegal, arbitrary and in violation of Articles 16 and 21 of the Constitution of India and contrary to the law laid down by the Hon'ble Supreme Court of India reported in Civil Appeal No.6454 of 2011, dated 09.08.2011 and consequently, declare that the petitioner is entitled for Xerox copy of the OMR answer sheet as per the directions issued by the 3rd respondent dated 29.06.2012.
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3. The case of the petitioner, in brief, is as follows:
a) Petitioner being eligible for the post of School Assistant (Social Studies) and Urdu Medium had applied to the recruitment notification issued by the 2nd respondent i.e., Commissioner and Director of School, Education, Hyderabad for 7 posts vide recruitment notification of DSC - 2008.
b) Since their being large scale irregularities in preparing the merit list took place and the 2nd respondent issued a press note, inviting students for verification of their respective OMR sheets by drawing a D.D. for Rs.500/- in favour of 2nd respondent and the petitioner had made an application to verify the OMR sheets on 05.07.2009.
c) In response, petitioner received a typed response OMR sheet. Even though the petitioner requested the Xerox copy, the same had not been provided to him. However, prescribed computer printed copy of scanned OMR answer sheet duly attested by the District Educational Officer in respect of response (Answers) shaded by the candidates would be issued by the DEOs concerned to the candidates on request.
d) Aggrieved, Petitioner made a representation to the 1st respondent under the provisions of Right to Information Act, 5 2005 against which, it was replied by the Public Information Officer, O/o. Commissioner and Director of School Education that the OMR has already been provided to the petitioner as per the D.S.C Notification 2008.
e) Aggrieved, petitioner filed an Appeal before the 1st Respondent on14.011.2009 under section 19(1) of the Right to Information Act, 2005 for issuing directions to the Public Information Officer, for furnishing copy of OMR sheet, and on 17.12.2009 petitioner received information from the 2nd respondent stating that all the documents required by the petitioner were furnished and accordingly the Appeal had been disposed.
f) Petitioner filed a 2nd Appeal addressing to the 3rd respondent under Section 19 (3) of the Right to Information Act, 2005 and after appearing before the 3rd respondent, the 3rd respondent had passed orders directing the Public Information Officer and the 2nd respondent to submit the Xerox copy of the OMR sheet within 10 days but in vain. Petitioner then filed complaint before the 3rd respondent under section 18, r/w 20 of the Right to Information Act, 2005. 6
g) Under these circumstances, petitioner issued a legal notice on 22.01.2014 to know about the stage of complaint petition but to no avail.
h) Further it is the case of the petitioner that the Hon'ble Apex Court elaborately considered the provisions of the Right to Information Act and the rights available to the citizens under the said Act and declared that answer sheets are bound to be supplied to the candidates and the same is not prohibited information and does not come under the exceptions provided under Enactment.
i) Petitioner filed a W.P. No. 30358 of 2014 for complying the directions of the 3rd respondent. The Respondent's counsel at the time of hearing placed before the court the order dated 28.08.2013, which was not furnished to the petitioner, which stated that the complaint petition filed by the petitioner for non- compliance of orders of the 3rd respondent is closed, without assigning any reason whatsoever.
j) The order of the 3rd respondent dated 28.08.2013 submitted to the court by the respondent counsel, which 7 arbitrarily closed the complaint petition without communicating the order to the petitioner had been challenged by the petitioner in the present writ petition. PERUSED THE RECORD :
4. The respondents filed counter affidavit, in particular, Para 10 reads as under:
"Para 10. It is submitted that the Govt. in G.O.Ms.No.161 dated 06.12.2018, under Rule (14) has authorized the Director of School Education to dispose off the material relating to the Teachers Recruitment such as ICR's, OMR's Q.P's etc. after one year from the date of conduct of written test/declaration of results/display of selection lists whichever is later and the selection process of DSC 2008 has been completed and the print out of the response OMR Sheet and Key are already furnished to her to checkout correctness of her answers. Further it is submitted that the Petitioner whatever shaded in the original OMR Answer sheet during the examination the same will be reflected in the printouts of Response OMR sheet as the Original OMR sheets are scanned in the scanners. The Petitioner is asking the copy of original OMR Answer sheet under RTI Act but all the original OMR Answer Sheets of all subjects near about (20,163) were put together at the same time of scanning and it is not possible to trace out the OMR Answer Sheet. Therefore, the printout of 8 response OMR answer sheet was issued to the Petitioner."
5. The last para of the order dated29.06.2012 passed in Appeal No.1619/SIC-SPR/2010 reads as under :
"On 20-6-2012 the case was called. The Appellant represented by Sri Sabir Ahmed Khan was present. The Respondents, PIO & 1" Appellate Authority were present. The appellant requested for his OMR sheet. The PIO informed the appellant that printed copy of response OMR sheet of the candidate will be issued on the payment Rs.500/- Accordingly he has also supplied response OMR sheet. Not satisfied with the information furnished, the appellant appealed to the 1" AA requesting to supply a copy of the OMR sheet. The 1 Appellate Authority maintained that response OMR sheet was already supplied by the PIO and nothing remains in the appeal to be decided. The contention of the appellant that his request is for a copy of his original OMR sheet and not for response OMR sheet. The PIO relied on the earlier ruling of this Commission in Appeal No.10713/SIC- ASR/2009 dated 12-4-2010 wherein it was held that scanned response OMR sheet only can be provided as taking out copy of OMR sheet may result in erosion, mutilation, tampering etc... This view may be correct in that particular case but in the instance case, some mistakes have crept in copying the information from the CDs and as, contended by the appellant that 9 an enquiry was also ordered by the Director of School Education. In view of the above facts the PIO ought to have furnished a copy of OMR sheet or at least permitted the appellant to see his OMR sheet, to exhibit transparency and instill confidence in the system. The PIO is directed to furnish copy of the OMR sheet within 10 days on receipt of this order."
6. The order passed by the 3rd Respondent in Appeal No.1619/SIC-SPR/2010, dt. 28.08.2013, in particular, relevant last two paras, reads as under :
"The show Cause Notice was issued to the Respondent directing him to appear before the Commission for hearing on 28.08.2013.
On 28.08.2013 the case is called. The Respondent/PIO, Sri P. V. Srihari is present. He represented that as per the procedure in vogue the response OMR answer sheet was furnished to the appellant. But the appellant wanted the Xerox copy of the OMR Answer Sheet which could not be furnished as per the practice prevailing at that time. The explanation is considered and further action is dropped."10
7. The order in Appeal No.8911/SIC-SPR/2010, dt. 03.10.2012, in particular, relevant last two paras reads as under :
"The 2 appeal was taken on file and Notices issued to both the parties for hearing on 20-9-2012.
On 20-9-2012 the case is called. The Appellant is absent. The Respondents, PIO / Joint Director (Services), O/o the Commissioner & Director of School Education, Saifabad, A.P., Hyderabad and the 1st Appellate Authority/Additional Director, O/o the Commissioner & Director of School Education, Saifabad, AP, Hyderabad are present. The PIO represents that a notification was issued for supplying scanned OMR sheet on payment of Rs 500/- and the last date was also prescribed as 6-7-2009) Since the appellant did not apply within the date prescribed it was rejected. Prior to filing the present application, in Appeal No.10713/SIC-ASR/2009 dated 12-4-2010 this Commission has justified providing scanned OMR sheet only to the candidate who applied in time. As the PIO relied on this Commission's order he did not furnish the information sought by the appellant. He further represents that OMR sheet life is only one year thereafter the OMR sheets are destroyed as per the G.O.Ms.No.161, Education (Services-VI) Dept, dated 6-12-2008. In view of the above facts, the appeal is closed."
8. Proceedings in Rc.No.B1/WP 33324/2014, dated 23.03.2023, in particular, last para, reads as under :
"It is submitted that the Govt. in GO Ms No. 161, dt.06.12.2008, under Rule(14) has authorized the Director of School Education to dispose off the material relating to the Teachers Recruitment such as ICR's, OMR's, Q.P's etc., after one year from date of conduct of written test/declaration of result/display of selection 11 list whichever is later and the selection process of DSC 2008 has been completed and the print out of response OMR sheet and key are already furnished to her to checkout correctness of her answer. Further it is submitted that the petitioner whatever shaded in the Original OMR Answer sheet during the examination the same will be reflected in the printout of Response OMR sheet as the original OMR sheets are scanned in the scanners. The petitioner is asking the copy of original OMR Answer sheet under RTI Act The printout of response OMR answer sheet was issued to the petitioner."
9. The relevant paragraphs of the judgment dt. 09.08.2011 of the Apex Court in Central Board of Secondary Education and another Vs. Aditya Bandopadhya & Others in Civil Appeal No.6454/2011 arising out of SLP (C) No.7526/2009 - Para 14 at page 62, Para 27 at page 79 and conclusion at page 93 reads as under :
"Para 14 :The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are 'information' held in its fiduciary relationship. They fairly concede that evaluated answer-books will not fall under any exemptions in sub-section (1) of section 8. Every examinee will have the right to access his thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act.
Para 27 : We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under section 8(1)(e) is not available to the 12 examining bodies with reference to evaluated answer- books. As no other exemption under section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.
Conclusion : In view of the foregoing, the order of the High Court directing the examining bodies to permit examinees to have inspection of their answer books is affirmed, subject to the clarification regarding the scope of RTI Act and the safeguards and conditions subject to which 'information' should be furnished. The appeals are disposed of accordingly.
10. Regulation 20 of the Andhra Pradesh Information Commission (Management) Regulations 2007 :
"20.Finality of Decision:-
(ii) An appellant or a complainant or a respondent may, however, subject to limitations applicable under the Civil Procedure Code, make an application for special leave to review a decision or order of a case and mention the grounds for such a request;
(iii) On receipt of such a request for review, the Chief InformationCommissioner may consider and decide the matter asdeemed fit."
DISCUSSION AND CONCLUSION :
11. A bare perusal of the orders dt. 29.06.2012 of the 3rd Respondent herein in Appeal No.1619/SIC- SPR/2010 indicate that the 3rd Respondent directed the PIO to furnish copy of the OMR sheet within 10 days in 13 response to the Writ Petitioner's request for his OMR sheet.
12. A bare perusal of the order impugned dt. 28.08.2013 passed in Appeal No.1619/SIC-SPR/2010, indicates that upon the representation of the PIO that the response OMR answer sheet was furnished to the Appellant there under i.e., the Petitioner herein and the Appellant/Writ Petitioner wanted the Xerox copy of the OMR answer sheet and since the same could not be furnished as per the practice prevailing at that time the State Information Commissioner i.e., the 3rd Respondent herein dropped further action in the matter.
13. The specific case of the Petitioner herein is, as follows:
i. That no notice has been issued by the 3rd Respondent prior to passing of the impugned order dt.
28.08.2013. The 3rd Respondent herein in the absence of the Petitioner on 03.10.2012, holding that the Petitioner did not apply within the date prescribed rejected the request of the petitioner on the ground that the OMR sheet life is only one year and thereafter the OMR sheets are destroyed as per G.O.Ms.No.161, 14 Education (Services-VI) Department, dt. 06.12.2008 and hence close the Appeal.
ii. That the Petitioner had no notice on 28.08.2013 when the order impugned has been passed and the order dt. 03.10.2012 closing the Appeal filed by the Writ Petitioner i.e., Appeal No.8911/SIC-SPR/2010 was also passed in the absence of the Petitioner and the Petitioner had not been present at the time of passing of either of the orders.
14. A bare perusal of the counter affidavit filed on behalf of the Respondents in February, 2015 no where indicates specifically that the OMR sheet of the Petitioner had been destroyed. Though, it refers to G.O.Ms.No.161, dt. 06.12.2008 and Rule 14 thereunder which authorizes the Director of School Education to dispose off the material relating to the Teachers Recruitment such as ICR's, OMR's, QP's etc., after one year from date of conduct of written test/declaration of results/ display of selection list whichever is later. A bare perusal of the proceedings Rc.No.B1/WP33324/2014, dt. 23.03.2023 of the District Educational Officer (FAC) Adilabad, addressed 15 to the Government Pleader, School Education, High Court Building, Hyderabad also does not specifically say that the OMR sheet of the Petitioner had been destroyed after expiry of one year from the date of conduct of written test/declaration of result/display of selection list.
15. This Court opines that in view of the fact that the writ petition has been filed in the year 2014 and though counter affidavit has been filed in February 2015, the Respondents did not contend specifically that the OMR sheet of the Petitioner had been destroyed though in general, reference is made to Rule 14 of G.O.Ms.No.161, dated 06.12.2008 which authorizes the Director of School Education to dispose of the material relating to teachers recruitment after one year from the date of conduct of written test/declaration of results/display of selection list whichever is later.The learned Government Pleader appearing on behalf of the Respondents brings on record proceedings Rc.No.B1/WP33324/2014, dt. 23.03.2023 and contends that OMR sheet of the Petitioner had been destroyed 16 referring to Rule 14 of G.O.Ms.No.161, dt. 06.12.2008. A bare perusal of the proceedings dt. 23.03.2023 of the District Educational Officer (FAC), Adilabad also nowhere indicates such a specific stand of OMR sheet of the Petitioner having been destroyed by the Respondent Authority.
16. This Court opines that as per the judgment of the Apex Court in Central Board of Secondary Education and another Vs. Aditya Bandopadhya& Others in Civil Appeal No.6454/2011 arising out of SLP (C) No.7526/2009, referred to extracted above it is very clear that evaluated answer books will not fall under any other exemptions in sub-section (1) of Sec.8. Every examinee will have the right to access his evaluated answer books by either inspecting them or to take certified copies thereof unless the evaluated answer books are found to be exempted U/s.8(1)(e) of the RTI Act.
17. The Apex Court in its conclusion in the said judgment infact upheld and affirmed the order of the 17 High Court directing the examining bodies to permit examinees to have inspection of their answer books subject to the clarifications regarding the scope of the RTI Act and the safe guards and conditions subject to which information to be furnished.
18. This Court opines that the finding in the order dt. 03.10.2012 of the State Information Commissioner in Appeal No.8911/SIC-SPR/2010, that the writ petitioner did not apply within the date prescribed and the last date prescribed was 06.07.2009 is factually incorrect and to that effect it is specifically averred by the Petitioner at para 5 of the reply affidavit filed in the present writ petition that in pursuance to the DSC Teachers Recruitment Notification issued in the year 2008 written examination was conducted on 31.05.2009 and results were declared in June 2009, press note was issued on 30.06.2009 for filing application for providing Xerox OMR sheets within 10 days and on 05.07.2009 the Petitioner made application along with DD for Rs.500/- and on 29.07.2009 typed response OMR sheet was furnished to the petitioner 18 instead of Xerox OMR sheet. Aggrieved by the same the Petitioner had preferred First Appeal before the 1st Respondent on 14.11.2009 and on 17.12.2009 the Petitioner was informed that all information was furnished which was factually incorrect and the Petitioner preferred Second Appeal to the Respondent No.3 and on 29.06.2012 the 2nd Appellate Authority had passed orders in favour of the Petitioner directing Information Officer to provide Xerox copy of OMR sheet within 10 days and when the same was not supplied, Petitioner filed complaint on 19.12.2012 and thereafter the present impugned order had been passed closing the entire complaint unilaterally in the absence of the Petitioner without notice to the Petitioner on 28.08.2013.
19. A bare perusal of Regulation 20 of the Andhra Pradesh Information Commission (Management) Regulations 2007 clearly indicates the finality of decision of an order passed by State Information Commissioner, which expressly says that a decision or an order once pronounced by the commission shall be 19 binding. This Court opines that the order impugned of the 3rd Respondent in Appeal No.1619/SIC-SPR/2010, dt. 28.08.2013 for dropping the action for the non- implementation of the orders passed in Appeal No.1619/SIC-SPR/2010, dt. 29.06.2012 passed by the State Information Commission without notice to the Petitioner, in the absence of the Petitioner, contrary to the Regulation 20 of Andhra Pradesh Information Commission (Management) Regulations 2007, is set aside and the matter is remitted to the 3rd Respondent herein and the 3rd Respondent herein is directed to reconsider the whole issue within a period of 3 weeks from the date of receipt of the copy of the order duly communicating the decision to the Petitioner in accordance with law in conformity with principles of natural justice duly taking into consideration the view taken by the Apex Court in Central Board of Secondary Education and another Vs. Aditya Bandopadhya & Others in Civil Appeal No.6454/2011 arising out of SLP (C) No.7526/2009, dt. 09.08.2011 and also the orders dt. 29.06.2012 passed by the State Information 20 Commissioner, in Appeal No.1619/SCI-SPR/2010, and also the fact that the Petitioner made application along with DD for Rs.500/- on 05.07.2009 itself which was well within the last date prescribed i.e., 06.07.2009 and also the fact that neither in the counter affidavit filed by the Respondents in February 2015 nor in the latest proceedings Rc.No.B1/ WP33324/2014, dt. 23.03.2023, of the District Educational Officer (FAC) Hyderabad, it is contended specifically by the Respondents that subject OMR answer sheet of the Petitioner had been destroyed. With these observations the Writ Petition is disposed off. However, there shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
___________________ SUREPALLI NANDA, J Date: 05.06.2023 Note: L.R. copy to be marked b/o kvrm