Central Information Commission
Mr. S. S. Gupta vs Union Public Service Commission (Upsc) on 10 February, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01274 dated 5.10.2007
Right to Information Act 2005 - Section 19
Appellant - Mr. S. S. Gupta
Respondent - Union Public Service Commission (UPSC)
Facts:
By an application of 28.2.07 Shri S. S. Gupta, then Principal Resident Commissioner, Govt. of Meghalaya, New Delhi, applied to the CPIO, UPSC seeking the following information:
1. "Total marks obtained in written exam. & interview (separately) for first 100 rank holders in the Civil Service Examination for 1980 & 1982 batches of officers.
2. I need this information in order to evaluate my performance and compare with others. More over public interest is served, because public has right to know how the recruits had performed in written and interview and merit in selection.
3. It is requested that information may be given to me at the earliest.
RTI Act was enacted with the object to bring transparency in functioning of various Govt. agencies, and therefore, denying me this information will defeat the very purpose of RTI Act."
To this he received a response dated 22.3.07 from Shri V.P. Singh, as follows:
"In this connection, it is to inform that the requisite information cannot be shared as it affects the confidentiality and integrity of the examination process and no public interest is served thereby."
Shri Gupta then moved his first appeal on 17.4.07 before Shri Biresh Kumar, Addl. Secretary (R&CV), UPSC, specifying the following grounds:
"Section 8(1) specifies the cases where exemption is given for furnishing information. The above information asked by me is not covered by any of these exemptions. There have been a number of decisions by Chief Information Commissioner and courts that marks obtained by candidate can be disclosed."1
In his order of 23.5.07 Shri Biresh Kumar remanded the appeal to the CPIO in the following words:
"The information, which the appellant is asking for does not belong to him rather it relates to third party information and according to me, it should have been dealt with u/s 11 of the RTI Act 2005. In view of this contention, I remand this appeal back to the CPIO to consider the request of the appellant afresh in the light of the above."
Arguing that, "After this order, I have not received any communication from CPIO, UPSC till date", Shri Gupta has submitted his second appeal before us in which he has prayed as follows:
"The marks sheet of above examinations has already been circulated to concerned officers indicating marks obtained under various subjects and interview. Copies of such mark sheet circulated to me are enclosed at Annexure V & VI. Therefore, it is not understood as to how it can be viewed as confidential. It is also not understood as to how it goes against public interest. Section 8(1) specifies the cases where exemption is given for furnishing information. The above information asked by me is not covered by any of these exemptions.
Sir, in case information is denied to me than it will defeat the very purpose of RTI Act, which is to bring transparency in Government functioning.
Therefore, it is requested that CPIO of UPSC may be directed to furnish information to me at the earliest."
The appeal was heard on 10.2.09. The following are present:
Respondents Sh. Prachish Kumar, Dy. Secy. & CPIO Sh. D. K. Purbey, Desk Officer Sh. Naresh Kaushik, Advocate Ms. Aditi Gupta, Advocate We have received a letter dated 3.2.09 from appellant Shri S.S.Gupta seeking exemption from personal appearance in view of his having been 2 transferred to Shillong but reiterating his request that the appeal be considered favorably so as to promote transparency.
Shri Naresh Kaushik, learned Counsel for UPSC submitted a copy of a letter of 9.1.09 from Shri D.V.Dass Under Secretary, UPSC with a counter statement of the UPSC. In this he has contended that vide letter dated Sept. 26, 2007 CPIO UPSC has in fact complied with the orders of First Appellate Authority Shri Biresh Kumar of 23.5.07 through a letter of 26.9.07. A copy of this letter from Shri Prachish Khanna, Dy. Secretary and CPIO is also attached, which, however, is dated 26.11.07. In this letter Shri Khanna has informed Shri S.S.Gupta as follows:
"As directed by the Appellate Authority, in his above mentioned order, your request for information has been considered afresh. UPSC does not disclose results/marks obtained by individual candidate and it is treated as confidential except for the candidates. The information sought by you falls under the Rule 11 of RTI Act 2005, which provides that if an information has been sought relating to a 3rd party, a written notice is to be given to the 3rd party asking his/her consent for disclosing the information. Since the information ranges for Civil Services Examinations 1980 and 1982, issuance of such notice and compilation of such a huge information at this belated stage will not be possible for the Commission which would also disproportionately divert the resources of this office and will despair the normal working and assigned duties. Therefore, in the larger public interest the said information cannot be provided. Inconvenience caused is deeply regretted.
With this the order of Appellate Authority and request vide your reminder letter dated 5.10.2007 to Appellate Authority is complied herewith."
DECISION NOTICE Appellant Shri S. S. Gupta has moved his appeal before us on 5.10.07 up to which time the order of the First Appellate Authority Shri Biresh Kumar had not been complied with. The fault lies not with the CPIO but with AS himself because he set no time limit for compliance with his directions. Now, however, 3 the compliance report has been sent to appellant Shri Gupta against which he has not appealed. If he is not satisfied with the information now provided, it was open to Shri Gupta to move a first appeal u/s 19(1) of the RTI Act 2005 since his st earlier appeal has arisen from non-compliance, before Shri Biresh Kumar, 1 appellate authority. But because this compliance has taken unduly long the 1st appellate authority has not addressed the response now provided to appellant Shri SS Gupta by CPIO Sh. Prachish Kumar, Dy. Secy , and in light of the letter of 3.2.'09 received from appellant Shri SS Gupta seeking a favorable response to his appeal, this Commission has decided to remand this appeal to Shri Biresh Kumar, 1st appellate authority and Addl Secretary UPSC, who is directed to dispose of the appeal of Shri SS Gupta within fifteen working days from the date of receipt of this decision, under intimation to Shri PK Shreyaskar, Jt Registrar, Central Information Commission with the qualification that if any documents are provided in consequence of the decision of appellate authority Shri Biresh Kumar, in accordance with Sec 7(6) of the RTI Act, 2005, no fees will be charged. If not satisfied with the information now provided, complainant Shri SS Gupta will be free to move a 2nd appeal before us as per Sec 19 (3).
In deciding the appeal, however, the First Appellate Authority Shri Biresh Kumar Addl. Secy. will keep in mind that sec. 11 sub-section (1) requires to be taken recourse to only where the CPIO "intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party" 1 . He must, therefore, before making a decision on the subject examine whether candidates appearing in a public examination expect the UPSC to treat as confidential the marks obtained by successful candidates, and if so, the ground for so concluding. He will also bear in mind that sec. 7(9) does not exempt a public authority from disclosing information but only mitigates the requirement, if providing the information in the form in which it is sought, "would disproportionately divert the resources of the public authority or would be 1 Underlined by us for emphasis 4 detrimental to safety or preservation of records". Therefore, it only allows for providing information in a form other than that in which it has been sought, under specified circumstances, and not for refusal.
With these observations, this appeal is remanded to appellate authority UPSC. Announced in the hearing.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 10.2.2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 10.2.2009 5