Central Information Commission
Shri.Yasveer Singh Pathania vs Banking Division on 13 January, 2012
Central Information Commission,
New Delhi
File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200,
CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921,
CIC/SM/C/2011/000344, 000459, 000348, 000253, 000274, 000355, 001141,
001123, 000566
Under Section (18) and (19) of Right to Information Act 2005
: 20 October 2011
Date of hearing
Date of decision : 13 January 2012
Name of the Appellant : Shri Cyril Michael and others
Name of the Public Authority : Institute of Banking Personnel Selection
(IBPS), Mumbai
Chief Information Commissioner: Shri Satyananda Mishra
2. In the second appeal to the Commission in File No.
CIC/SM/A/2010/000873, the Appellant, Shri Cyril Michael had submitted an RTI
application on 8 August 2008 before the Institute of Banking Personnel Selection
(hereinafter, IBPS), Mumbai, seeking information regarding the details of the
File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192,
000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566
"Negative marking applicable" and copy of the "appellant's answer sheet" for
the examination dated 1 June 2008 held at Ranchi conducted by IBPS for the
promotion to SMG ScaleIV in the Punjab National Bank.
2. The RTI Application was forwarded to the CPIO, Management Audit and
Review Division (RTI Cell), Punjab National Bank, New Delhi. Vide CPIO Order
dated 18 September 2009. The CPIO did not furnish the information as the
examination was conducted by the IBPS and the information was not available
with the bank.
3. Not satisfied with the denial of information, Appellant filed his appeal to the
First Appellate Authority (FAA), Management Audit and Review Division (RTI Cell),
Punjab National Bank, New Delhi. The FAA in his order dated 21 December 2009,
informed the Appellant that there was no negative marking in the examination
conducted by the IBPS for the promotion to SMG ScaleIV in the Punjab National
Bank.
4. In its letter dated 4 January 2010, the IBPS has informed the Commission
that the IBPS does not disclose the marks/information to the candidates and the
candidate's request is forwarded to the concerned bank for necessary action. The
Appellant filed a second appeal before the Commission on 15 January 2010.
5. In another complaint filed before the Commission in File No.
CIC/SM/C/2010/000655, the Appellant, Shri H. Basavaraj had sought photocopy of
File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192,
000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566
the OMR Sheets and Model Answers concerning the written examination
conducted by the Pragathi Gramin Bank on 7 March 2010. The Appellant was
present at the hearing through videoconferencing at Davangere. The Respondents
were present at Mumbai. Both parties made their submissions to the Commission.
6. The IBPS submitted that they wrote to the Bank concerned to provide the marks awarded to the Appellant while observing that, as a matter of confidentiality, they did not disclose the answer keys. Not satisfied with the reply of the IBPS, The Appellant filed the present complaint.
7. At the hearing, the IBPS submitted that they were not public authority within the meaning of section 2 (h) of the RTI Act, 2005. The IBPS also submitted that as more than 10 million candidates appeared annually for the examinations conducted by it, it would be impossible to provide photocopies of the OMR sheets/ answer sheets to individual candidates.
8. Based on the submissions made by the IBPS, there are two issues to be decided in this case.
9. The first issue is whether under RTI Act, 2005, the answer sheets / OMR Sheets can be disclosed.
File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566
10. In its judgment in Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. Civil Appeal No.6454 Of 2011 the Supreme Court has held that:
"...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."
Further Justice Murlidhar, in the case before Delhi High Court; IIT, Delhi v. Naveen Talwar and Ors. W.P. (C) 751 of 2011 has stated:
"...In the first place given the fact that admittedly the evaluation of the ORS is carried out through a computerized process and not manually, the question of there being a fiduciary relationship between the IIT and the evaluators does not arise. the disclosure of evaluated answer sheets was "unlikely to render the system unworkable and as such the evaluated answer sheets in such cases will be disclosed and made available under the Right to Information Act .
...it is obvious that the evaluation of the ORS/ORM sheets is through a computerized process and no prejudice can be caused to the IIT (public authority) by providing a candidate a photocopy of the concerned ORS. This is not information being sought by a third party but by the candidate himself or herself. The disclosure of such photocopy of the ORS will not compromise the identity of the evaluator, since the evaluation is done through a computerized process..."
The law existing as on date in respect of the disclosure of answer sheets/OMR sheets under the RTI Act, 2005 is that the examining bodies evaluating the answer sheets /OMR sheets have to permit the inspection or File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 provide a certified copy of answer sheet/OMR sheets to the examinee, if such records are available with them.
11. The second issue is whether the RTI Act, 2005 is applicable to the Institute of Banking Personnel Selection (IBPS), Mumbai. The IBPS has been permitted by the Department of Financial Services, Ministry of Finance, Government of India in the letter no. 10/30/1/2010IR dated 20 September 2010 to conduct Common Recruitment Programme for selection of both Clerks and Officers in the Public Sector Banks. This means that the Government of India has delegated monopoly power for recruitment in Public Sector Banks to the IBPS, Mumbai at the behest of the Public Sector Banks as evident from the proposal sent to the Ministry by the Indian Banks' Association Mumbai in its letter no. HR & IR/MV/Govt./S/1120 Dated 21.08.2010
12. A Public Sector bank is one in which, the Government of India holds a majority stake and may be termed as 'other authorities' within the meaning of Article 12 of the Constitution of India.
13. The IBPS is an autonomous body registered as a Public Trust under the Bombay Public Trust Act of 1950 and as a Scientific and Industrial Research Organization by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. Further, the Governing Board of the IBPS consists of the nominees from the Reserve Bank of India, Ministry of Finance (Government of India), National Institute of Bank Management, representatives of Public Sector Banks, and Insurance Sector. The matters related File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 to policy and affairs of the Institute are vested in the Governing Board. This leads us to conclude that the IBPS is an organization which is controlled by the Government as well as agencies and instrumentalities of the State falling under the heading "other authorities" within the meaning of Article 12 of the Constitution of India.
14. Under section 2 (h) of the RTI Act public authority is defined as:
(h) "public authority" means any authority or body or institution of self government established or constituted--
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) nonGovernment organization substantially financed, directly or indirectly by funds provided by the appropriate Government; " [emphasis added] File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 The question is whether in light of the cumulative facts as stated above, the IBPS is a Public Authority as per Section 2 (h)(i) of the RTI Act or not. In the Veeresh Malik Case [W.P. (C) Nos. 876/2007, 1212/2007 and 1161/2008] the Delhi High Court has held that "Subclause (i) talks of a "body, owned, controlled or substantially financed" by the appropriate government [the subject object relationship ending with Subclause (ii)]. In the case of control, or ownership, the intention here was that irrespective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority. This definition would comprehend societies, cooperative societies, trusts, and other institutions where there is control, ownership, (of the appropriate government) or substantial financing." In the same case the Delhi High Court further has held that "These decisions, as well as previous judgments in India, have demonstrated that attempts have been made to account for actions of bodies that broadly perform "public" functions, through judicial review. The court is mindful that such attempts are part of the larger move to make such bodies accountable. In the case of coverage of the Act, however, the only value is transparency. It is not as if the actions of bodies which fall within its provisions, are otherwise judicially reviewable, if they are not "state" under Article 12, or not "authorities" under Article 226. The objective is to ensure information dissemination, so that members of the public are empowered in the decisions that they take, and the manner in which they wish to decide how policies should be made by the state, in granting largesse, aid, or File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 finance to such bodies." The IBPS, undoubtedly has taken upon itself the job which was hitherto being performed by the Recruitment Boards of the Banks. Shri M.V.Desai, DGM (Admin.) wrote to the CIC in his letter Dated 4.1.2010 "the Institute has been providing services to the Banks in developing, printing and supplying the question papers for conducting the examination for recruitment, promotion in their organisations and after the conduct of the examination by the Banks at their cost the examination papers are sent back to the IBPS for evaluation. The IBPS after the evaluation of these papers sends the result and the relevant information to the bank for further process of selection." This means that evaluated answer sheets/OMR sheets are not sent back to the Banks but are retained by the Organisation. Can anyone ask the IBPS for inspection or photocopies of these evaluated scripts along with the answer key is the basic question. In our opinion, the citizen has a right to ask for such evaluated scripts and the answer keys based on which he has been evaluated as the recruitment and selection for public employment is a 'public function" for which the Agency or instrumentality should be accountable.
15. For determining whether an organization is an agency or instrumentality of the 'State', Mathew, J. in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) ILLJ 399 SC propounded the following:
"...(2) Another factor which might be considered is whether the operation is an important public function.
File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 (3) The combination of State aid and furnishing of an important public service may result in a conclusion that the operation should be classified as State agency. If a given function is of such public importance and so closely related to governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of state action.
(4) The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public."
The court further highlighted the test give in the Ramana Dayaram Shetty 1979 SC R (3)1014 which were stated in following terms:
"... (3) It may also be a relevant factor... whether the corporation enjoys monopoly status which is state conferred or state protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a state agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of the Government.
(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of government."
16. Factual matrix as discussed leads us to conclude that the recruitment function conducted by the IBPS is of public importance and considering the Public Sector banks, also, a public function, as large numbers of candidates all over India apply for recruitment in Public Sector Banks, in which the Government of India has a majority stake. In other words, for getting a job in the Public Sector Banks, File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 participating in exam to be conducted by the IBPS is the only option available to the aspirant seeking a Banking Career in Public Sector. This exclusivity is conferred on the IBPS by the Department of Financial Services i.e. it is a state conferred monopoly. Thus, even the presence or absence of State financial aid might be irrelevant in concluding the status of the IBPS, Mumbai. The fact is that the IBPS enjoys a monopoly status granted by the Department of Financial Services, Ministry of Finance, Government of India, as the recruitment function of the Public Sector Banks has been transferred to the IBPS, in the absence of which, the IBPS could not have conducted Common Recruitment Programme for recruitment of both Clerks and Officers in Public Sector Banks all over India. More so, the Governing Board of the IBPS which governs the policy and affairs of the Institute consists of the Executive Director, Reserve Bank of India and the CMDs of all the Public Sector Banks. Thus, such a Monopoly given by the Government of India to the IBPS and extensive involvement of the Government in its governing board makes it an agency of the State, as it is functionally dominated by or under the CONTROL of the appropriate Government and, thereby, it comes under the meaning of Public authority under section 2 (h) (i) of RTI Act, 2005. 17 In the case of the Delhi International Airport Pvt. Ltd. vs. Union of India (UOI) and Ors. JT2011 (10) SC649 the issue in front of the Supreme Court was whether Delhi International Airport Limited (DIAL) works under the authority of the Central Government or not. It was decided by the court that the DIAL operated under the authority of the Central Government. The Supreme Court cited Steel Authority of India Limited and Ors. etc. v. National Union Water Front File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 Workers and Ors. MANU/SC/0515/2001: (2001) 7 SCC 1, in which the Constitution Bench held as under:
The phrase "any industry carried on under the authority of the Central Government" implies an industry which is carried on by virtue of, pursuant to, conferment of, grant of, or delegation of power or permission by the Central Government to a Central Government company or other government company/undertaking. To put it differently, if there is lack of conferment of power or permission by the Central Government to a government company or undertaking, it would disable such a company/undertaking to carry on the industry in question In para 52 onwards of the DIAL Case, SC stated " In case the Central Government had never granted permission, pursuant to Section 12A of the AAI Act, DIAL would not be able to carry out functions at the Delhi airports. The entire functioning of DIAL is fully dependent on the grant of permission by the Central Government.
53. The undertakings need not be government undertakings to have had authority conferred upon them. But the word "government" clearly modifies "company." However, it cannot modify "undertaking," for the phrase "government/any undertaking". Thus, it would seem that any "undertaking" even private undertakings, like DIAL may function "under the authority" of the Central Government."
18. The IBPS like the DIAL as mentioned above, has been given delegated permission/power by the Central Government to carry out the function of recruitment of Clerks and Officers in the Public Sector Banks and thus it is fully dependent on the grant of permission by the Central Government. Any "undertaking", like the IBPS which is not a government undertaking but an autonomous body may function "under the authority" of the Central Government File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 as an agent of the State. The IBPS has been delegated an exclusive power/permission for conducting Common Recruitment Programme for recruitment of both Clerks and Officers in Public Sector Banks on behalf of Government of India in its letter no. 10/30/1/2010IR dated 20 September 2010, thus making the IBPS an "Agency" which operates ONLY under the authority/control of the Central Government to carry out such recruitment programmes in Public Sector Banks. This makes the IBPS a Public authority within the meaning of Section 2 (h)
(i) of RTI Act, 2005.
19. Therefore, the IBPS has an obligation of being transparent to the citizens of the country in discharging public function of recruitment of both Clerks and officers in Public Sector Banks all over India and, hence in line with the Preamble of the RTI Act read with Section 2 (h) (i), it is required to discharge its obligations under Section 4 and Section 6 of the RTI Act.
20. The Commission, therefore, in respect to the Second appeal (File No. CIC/SM/A/2010/000873), directs the IBPS, Mumbai to appoint one or more CPIOs and furnish the information under Section 7 of the RTI Act, 2005 as desired by Shri Cyril Michael, Appellant within two weeks of the Receipt of the Order.
21. Regarding Complaint Nos. CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 00344,000348,000253, 000274, 000355, File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566 001141, 001123, and 000566, Commission directs the IBPS under section 25 (5) of the RTI Act, 2005 to comply with Section 4 and Section 6 of the Right to Information Act 2005 and appoint the Public Information Officers and First Appellate Authority as per the provisions of Section 6 of RTI Act, 2005. The Commission hereby redirects the above complaints to the Respondent Public Authority i.e. the IBPS for the disposal of the respective RTI Applications in view of the Supreme Court Judgment in SLP No. S.L.P. (C) Nos. 3276832769/2010 Dated 12.12.2011.
22. The copy of the order be given free of cost to all concerned.
Sd/ (Satyananda Mishra) Chief Information Commissioner 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.
(Aakash Deep Chakravarti) Joint Secretary & Additional Registrar File Nos. CIC/SM/A/2010/000873, CIC/SM/C/2009/000200, CIC/SM/C/2010/000655, 000903, 001190, 000897, 001192, 000921, CIC/SM/C/2011/000344, 000459, 000344,000348, 000253, 000274, 000355, 001141, 001123, 000566