Calcutta High Court (Appellete Side)
Dinesh Sinha & Anr vs Council For The India School ... on 1 September, 2016
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Shivakant Prasad
W.P. No. 12549 (W) of 2016
Dinesh Sinha & Anr.
-Vs.--
Council for the India School Certificate
Examinations & Ors.
For the petitioner : Mr. Ekramul Bari
Mrs. Tanuja Basak
For the respondent nos. 1 & 2 : Mr. Sanjay Kumar Baid
Mr. S. N. Bhattacharya
Mrs. Arunima Lala Sengupta
Heard on : 09.8.2016
C.A.V. on : 09.8.2016
Judgment on : 01.09.2016
SHIVAKANT PRASAD, J.
The instant writ is directed against an order rejecting the prayer of the petitioner no. 2 for disclosure of information under Right to Information Act, 2005 on the ground that the respondent authority is not a public authority under the statutory scheme of Right to Information Act, 2005.
The petitioner no. 2 being a minor is represented by his father as guardian being the petitioner no. 1.
Petitioner no. 2 appeared for Class-X examination from the respondent no. 3 School under Council for the India School Certificate Examinations (hereinafter called as the Council) in the year 2016 and became successful on acquiring qualifying marks. However, after receiving the statement of marks and pass certificate on May 6, 2016 the petitioners felt extremely aggrieved as the marks and grade awarded to the petitioner no. 2 was not at all upon the mark and unexpected considering the quality and standard of the petitioner no. 2.
On being aggrieved the petitioner made an application under Right to Information Act, 2005 on June 1, 2016 with a prayer for issuance of original answer scripts upon due completion of formalities as per annexure "P-2."
On June 24, 2016 by vide Memorandum No. CISCE/ RTI/2016, the respondent no. 2 rejected the prayer of the petitioner no. 2 under the said Act for the reason that the said Council is not a public authority and as such is not covered within the meaning of section 2(h) of the said Act, 2005 vide letter "P-3."
The petitioners contended that the Council has been so constituted as to secure suitable representation of Government of India, State Governments/Union Territories in which there are Schools affiliated to the Council and also the mission of the said Council is 'The Council for the Indian School Certificate Examinations is committed to serving the nation's children, through high quality educational endeavours, empowering them to contribute towards a humane, just and pluralistic society, promoting introspective living, by creating exciting learning opportunities, with a commitment to excellence.' Therefore, it is evident that the said Council is discharging a public function in the domain of education having National impact and also owes its allegiance to its State authority as contemplated under the expression 'State' enumerated under Article 12 of the Constitution of India. As such, the Council is covered by the expression public authority as perceived in the said Act, 2005.
It is also pointed out that Circular dated April 6, 2016 clearly provides that--
Public examinations conducted by the Council have been recognized under section 2(s) of the Delhi School Education Act, 1973 which states that- public examination means an examination conducted by Council for the India School Certificate Examinations and thus the Council is conducting public examination for which the Council has got all public element amenable to the said Act, 2005 and secondly that Class-X ICSE Examination of the Council has been expressly recognized by the Government of India vide issuance of Memorandum No. 6/9/69 -Estt. (D) dated August 3, 1974. As such, the Council is a public authority because various other Boards, Universities, Councils including CBSE do recognize the Council.
It is further submitted that the competent Court of law has also recognized the Council as per the website of the Union of India's list of all recognized Boards as bodies conducting public examinations under Delhi School Education Act, 1973.
Accordingly, it is submitted by Mr. Ekramul Bari the learned counsel for the petitioners that the Council is 'State' within the meaning of Article 12 of the Constitution of India and cannot deny the disclosure of the information as prayed by the petitioner by virtue of Section 2(h) of the RTI Act, 2005.
Mr. Bari further submitted that Memorandum being the Circular vide annexure "P-5" reflects that the existence and continuance of the Council has the backing of the authority of law and the examinations conducted by the Council have received recognition and/or equivalence from the Central/State Boards & Universities of the Country as well as from abroad. The aforesaid legal and factual position has further been accepted and recognized by various Courts of law of the country. For example, the Punjab & Haryana High Court in several writ petition/s and Appeal/s has held "that CBSE & CISCE stand recognized and thus find mention in the list posted on the website of the Union of India's list of all recognized Boards and this is so because they have been listed as bodies conducting public examinations in Delhi School Education Act, 1973.
In my considered view the said Circular was to dispel with the misgiving arising out of the propaganda resorted to by certain persons with otherwise motive and its assurance to all its stake holders that they should not entertain any doubt or misgiving of the legal status and authority of the Council to continue as a premier affiliating and examining Board of the country.
The question is as to whether the Council is a State or State instrumentality within the meaning of Article 12 of the Constitution of India.
In this context it would be profitable to reproduce the regulations relating to the constitution and origin of the Council which provides thus--
Origin The Council for the Indian School Certificate Examinations was established in 1958 by the University of Cambridge Local Examinations Syndicate with the assistance of the Inter-State Board for Anglo-India Education. It is registered under the Societies Registration Act No. XXI of 1860. Recognition The Delhi Education Act, 1973 passed by Parliament in Chapter 1 under Definitions Section 2(s) recognizes the Council as a body conducting public examinations. Constituents The Council has been so constituted to secure suitable representation of: The Government of India, responsible for affiliated schools in their States/Territories- the Inter-State Board for Anglo-Indian Education, the Association of Indian Universities, the Association of Heads of Anglo- Indian Schools, the Indian Public Schools' Conference, the Association of Schools for the I.S.C. Examination and members co-opted by the Executive Committee of the Council.
Administration The Council is administered by an Executive Committee consisting of the Chairman and four members. The Chief Executive and Secretary of the Council is ex-officio Secretary of the Committee.
The Chief Executive and Secretary acts as Secretary to the Council under authority of the Chairman. subject to the overall control of the Council and the Executive Committee, the Chief Executive and Secretary exercises all powers of the Council related to the administration of the examinations in accordance with the provisions of the Regulations and of other rules and procedures approved by the Council from time to time and for the time being in force.
It would also be apt to reproduce the definition of the term 'information' and 'public authority' as provided under Sections 2(f) and 2(h) of Right to Information Act, 2005 which reads as under--
"2(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic forth and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
(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) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government." Bearing in mind the aforesaid definition of 'information' and the 'public authority,' this Court is, thus, of the view that the Council is not a public authority or body or Institution of self- government established or constituted under the Constitution, under the law enacted by the Parliament or by the State Legislature or body owned, controlled or substantially financed, directly or indirectly by the fund provided by the appropriate Government. Therefore, it does not come within the purview of a public authority under Section 2(h) of the said Act.
Learned Counsel for the petitioner has relied on a case of Central Board of Secondary Education and Another Vs. Aditya Bandopadhyay and Others reported in (2011) 8 Supreme Court Cases 497 wherein the issues arose for consideration as to whether an examinee's right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination or taking certified copies thereof and as to whether an examining body holds the evaluated answer books "in a fiduciary relationship"
and consequently has no obligation to give inspection of the evaluated answer books under Section 8(1)(e) of the RTI Act and whether such rights is subject to any limitations, conditions or safeguards. The Hon'ble Apex Court affirming the right of examinee to inspect the answer book held that the right to information is a facet of the freedom of "speech and expression" as contained in Article 19(1)(a), Constitution of India and such a right is subject to reasonable restriction in the interest of the security of the State and to exemptions and exceptions. It also held that the answer book is a document or record as per of Sections 2(f) and 2(i) of RTI Act. The evaluated answer book becomes a record containing the "opinion" of the examiner. Therefore the evaluated answer book is also an "information" under the RTI Act. Having regard to Section 3, the citizens have the right to access to all the information held by or under the control of any public authority except those excluded or exempted under the RTI Act. The object of the RTI Act is to empower the citizens to fight against corruption and hold the Government and their instrumentalities accountable to the citizens, by providing them access to information regarding functioning of every public authority. The RTI Act was enacted in order to ensure smoother, greater and more effective access to information and provide an effective framework for effectuating the right to information recognized under Article 19 of the Constitution.
Certain safeguards have been built into the RTI Act so that the revelation of information will not conflict with other public interests which include efficient operation of the Governments, optimum use of limited fiscal resources and preservation of confidential and sensitive information. The RTI Act provides for exclusions by way of exemptions and exceptions (under Sections 8, 9 and 24) in regard to information held by the public authorities.
Having regard to the scheme of the RTI Act, the right of the citizens to access any information held by or under the control of any public authority, should be read in harmony with the exclusions/exemptions in the RTI Act.
In respectful consideration of the above cited decision I am of the view that the evaluated answer book is also an information under the RTI Act as it becomes documents or records containing the opinion of the examiner in terms of Section 2(f) of RTI Act but in the present case the Council origin being established by the University of Cambridge legal with the assistance of the interested Board for Indian by Societies Registration Act No. XXI of 1860 does not fall within the definition clause of 2(h)(d)(ii) of RTI Act and cannot be said to be a public body in possession of a document or record and as it is not at par with the Central Board of Secondary Education and is not a State instrumentality within the meaning of Article 12 of the Constitution. The submissions of learned Counsel for the petitioner based on the observation made in paragraph 11 of the Hon'ble Supreme Court in case of Dr. Janet Jeyapaul Vs. SRM University & Ors reportable judgment dated 15th December, 2015 passed in Civil Appeal No. 14553 of 2015 that one cannot now perhaps dispute that "imparting education to students at large" is a "public function" and, therefore, if anybody or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amendable to writ jurisdiction of the High Court under Article 226 of the Constitution. There is no denial to such proposition held by the Hon'ble Supreme Court but I have taken into consideration the object of the Right to Information Act as held in CBSE Vs. Aditya Bondyopadhyay (supra) case since the CBSE Board is a public body duly constituted by the Central Government under the Ministry of Human Resources Development. Therefore, on account of its constitution and functioning the respondent no. 2 Council is not covered by the definition of public authority under Section 2(h) of the RTI Act.
Therefore, the facts situation of the instant case is distinguishable from the cited decision in case of Central Board of Secondary Education (supra).
Learned Counsel for the respondent no. 2 has relied on a decision in case of A. Pavitra Vs. Union of India reported in 2015(3) ALJ 697 wherein it has been held that the Council for the Indian School Certificate Examinations is under no obligation to provide the answer scripts to the petitioners, in respect of examination conducted by the said Council.
Learned Counsel has also invited by attention to various regulations of the ICSE examination with regard to evaluation of answer scripts enquiries concerning examination results, therefore, for profitable understanding the regulations being G & H of Chapter-II of the said Regulation of ICSE which are reproduced as under--
G. Evaluation of answer scripts:
1. The evaluation of answer scripts and of the other work done by candidates during the examination is within the domestic jurisdiction of the Council and, therefore, no candidate, outside person or authority has jurisdiction to check/scrutinise the answer scripts or other work done by any candidate.
2. The marking of answer scripts and of the other work done by candidates during the examination by the Council or its examiners and the results of such marking shall be final and legally binding on all candidates. The Chief Executive and Secretary of the Council will not, except in his absolute discretion, enter into correspondence about results with candidates or their parents or guardians or the person claiming to act in loco parentis.
The Council does not undertake to re-evaluate the answer booklets after the issue of the results.
H. Enquiries concerning examination results:
1. All enquires concerning examination results on behalf of the school candidates must be made to the Chief Executive and Secretary of the Council by the Head of the School concerned only and must reach the Council's office, not later than the specified date. Schools are asked to bear in mind that a large number of answer scripts are re-marked by Chief Examiners before the award.
Enquiries should be restricted only to results which are significantly below the standard suggested by the candidate's school work in the subject.
2. The accuracy of a subject grade awarded will be checked on request, in one or more subjects, provided that the Head of the School forwards the application. Such applications must be made in the proforma prescribed by the Council and must be received at the Council's office not later than one month after the declaration of results. Schools will be required to pay the charges for each recheck as prescribed by the Council from time to time The recheck will be restricted to checking whether:
- all the answers have been marked;
- there has been a mistake in the totalling of marks for each question in the subject and transferring the marks correctly into the first cover page of the answer booklet;
- the continuation sheets attached to the answer booklet, as mentioned by the candidate, are intact. No other re-evaluation of the answer script or other work done by the candidate as part of the examination will be carried out.
(i) No candidate, person or organization shall be entitled to claim re-evaluation or disclosure or inspection of the answer scripts or copies of it and other documents as these are treated as most confidential by the Council.
(ii) The recheck will be carried out by a competent person appointed by the Chief Executive and Secretary of the Council.
(iii) On rechecking the scripts, if it is found that there is an error, the marks will be revised accordingly.
(iv) The communication regarding the revision of marks, if any, shall be sent to the Head of the School.
(v) The Council will not be responsible for any loss or damage or any inconvenience caused to the candidate, consequent to the revision of marks and no claims in this regard shall be entertained.
(vi) The Council shall revise the Statement of Marks and Pass Certificate in respect of such candidates whose results have changed and after the previous Statement of Marks and Pass Certificates have been returned by the Head of the School.
The decision of the Chief Executive and Secretary of the Council on the result of the scrutiny and recheck shall be final.
3. If the Head of a School considers that the results in any one subject are significantly below reasonable expectation, the Chief Executive and Secretary of the Council may ask the examiners for special notes on the main weaknesses shown by the work of a few selected candidates from the school. It is necessary to limit such notes to one subject per school on any one occasion of examination and to restrict the enquiry to the work of not more than six candidates whose work is significantly below the standard as suggested by the candidates school work in the subject. Applications for special notes must be received in the Council's office not later than one month after the declaration of results. Charges commensurate with the work involved will have to be paid to the Council by the school. Bearing in mind the said regulations and in view of the definition clause under section 2(a) of RTI Act, 2005 'appropriate Government' means in relation to a public authority which is established, constituted, owned controlled or substantially financed by funds provided directly and indirectly by the Central Government or the Union territory administration or by the State Government and further that the Council is established under the Societies Registration Act, 1860 is not under the control of the Ministry of Human Resource Development.
It would appear from annexure-"P-1" being the statement of marks that fairly very good marks have been obtained by the petitioner no. 2 in ISCE Examination for the year 2016.
In the context above, the respondent no. 2 'the Council' is not a public authority within the meaning of Section 2(h) of the said Act and also considering the petitioner no. 2 being the successful candidate in the examination 2016 having obtained very good marks, I do not find reasons to quash the Memorandum No. CISCE/RTI/16 dated June 24, 2016 issued by respondent no. 2 as not being devoid of any merit.
Ergo, the writ application is dismissed, however, without any order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)