Central Information Commission
B Vinay Reddy vs Institute Of Chartered Accoutant Of ... on 24 June, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच
ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/ICAOI/C/2019/653030
In the matter of:
B Vinay Reddy
... Complainant
VS
Central Public Information Officer
Institute of Chartered Accountants of India
ICAI Bhawan,
Indraprastha New Delhi - 110002
...Respondent
RTI application filed on : 14/08/2019 CPIO replied on : 13/09/2019 First appeal filed on : 30/09/2019 First Appellate Authority order : Not on record Complaint dated : 05/10/2019 Date of Hearing : 23/06/2021 Date of Decision : 23/06/2021 The following were present:
Complainant: Shri Paras Jain, representative of the complainant, heard over phone Respondent: Sh. Alok Malhotra, DS & CPIO, heard over phone.
Information Sought:
The Complainant has sought the following information related to CA examination:
1. Provide the Multiple Choice Question (MCQ) Papers of all the subjects at CA Final (new) and CA Final (old) level.
2. Provide the answers to Multiple Choice Question (MCQ) Papers of all the subjects at CA Final (new) and CA Final (old) level.
3. Provide the Multiple Choice Question (MCQ) Papers of all the subjects at CA IPCC and Intermediate level.1
4. Provide the answers to Multiple Choice Question (MCQ) Papers of all the subjects at CA IPCC and Intermediate level.
Grounds for filing Complaint The CPIO has not provided the desired information u/s 8(1)(d) of the RTI Act.
Submissions made by Complainant and Respondent during Hearing:
The representative of the complainant submitted that he is not satisfied with the reply of the CPIO as no information was provided to him and the same is not exempted u/s 8 or 9 of the RTI Act. He also submitted that the shelter taken by the CPIO that they have a limited power bank and the information cannot be disclosed is not proper as per the judgment passed by the Delhi High Court in LPA No. 543/2014 passed in the matter of Master Rajat Mann Vs Guru Gobind Singh Indraprastha University. The relevant paras are extracted below:
"12. As far as rule/policy of the respondent no.1 University of not allowing the examinees to take away the question papers from the examination hall is concerned, the Supreme Court in Shaunak H. Satya supra has held that question papers may not be disclosable before the examination is held but the position will be different once the examination has been held. However, the contention of the respondent no.1 University is that the question papers are not disclosable at all, not even after the result of the examination has been declared. The reason given therefore is of the number of multiple choice questions which can be asked being limited and exhausting themselves if not in one year, in two or three years and the necessity of repeating the said questions and the disclosure and publication thereof prejudicing the following years‟ examination. It is thus not a question of the question papers being not disclosable till the declaration of the result of the examination only.
13. Such a reason undoubtedly prevailed with the Division Bench of this Court in Vikrant Bhuria aforesaid where also the plea of AIIMS was that knowledge of question papers of all the previous years with correct answers may lead to selection of a student with good memory rather than an analytical mind and that setting up of such question papers besides intellectual efforts also entailed expenditure and the possibility of AIIMS, in a given year cutting the said expenditure by picking up questions from its question bank. However, what distinguishes the present situation from Vikrant Bhuria is that Vikrant Bhuria who had sought information was not the examinee himself and the possibility of his acting at the instance of a coaching institution or a publisher and acting with the motive of making commercial gain from the information could not be ruled out. Also, the examination with which Vikrant Bhuria was concerned, was to a super specialty course in medicine and with respect whereto it was pleaded that the questions available were limited. On the contrary here we are 2 concerned with the examinee himself and examination to the admission to the MBBS course. The candidates appearing for the MBBS entrance examination are students who have appeared in or have passed the Class XIIth examination held by the CBSE or other boards of examination. It can safely be argued that they cannot be tested beyond the curriculum prescribed for Class XIIth. To our knowledge, no secrecy is maintained with respect to Class XIIth board examination question papers which the examinees are allowed to carry away with them after the examination. Of course Class XIIth board examination does not comprise only of multiple choice questions and also comprises of subjective questions. However we have wondered that when there is no such fear as is expressed with respect to the Class XIIth board examination and when question papers therefor can be set year after year, why the same cannot be done for the MBBS entrance examination. The course content for the MBBS entrance examination and the possible questions even if of multiple choice variety cannot fall in a narrow domain, as in an examination for a super specialty course in medicine. No explanation in this regard has been given in the counter affidavit of the respondent no.1 University or was given at the time of hearing. We do not even know whether the matter has been considered by the experts of the respondent no.1 University in this light. We find it very hard to believe that the stock of questions even of multiple choice for testing the merit for admission to MBBS is limited. The same does not speak very well of the innovative powers of the setters of the said question papers."
The CPIO submitted that an appropriate reply was given to the complainant on 13.09.2019. He also reiterated the contents of his written submissions dated 16.06.2021.
Observations:
From a perusal of the relevant case records, it is noted that the CPIO in his reply dated 13.09.2019 had denied the information while stating that the since they have limited question banks, the information cannot be provided. Thereafter the FAA in his order had claimed exemption u/s 8(1)(d) of the RTI Act while explaining that MCQs are framed by the experts of the subject and the Institute has a limited question bank. The FAA had also relied on the judgments passed by the Hon'ble Delhi High Court in LPA No. 487/2011 28.05.2012, AIIMS vs Vikrant Bhuria and CIC's order passed in File No. CIC/SS/A/2013/002663 dated 24.07.2013. The relevant paras of the judgment passed by the Hon'ble Delhi High Court are extracted below:
"15. We are satisfied that the nature of the examination, subject matter of this appeal, is materially different from the examination considered by the Supreme Court in the judgment supra. There are few seats, often limited to one only, in 3 such super-speciality courses and the examinees are highly qualified, post graduates in the field of medicine. Though the respondent, as aforesaid, has paid tributes to the faculty of the appellant and credited them with the ingenuity to churn out now questions year after year but we cannot ignore the statement in the memorandum of this appeal supported by the affidavit of the Sub-Dean (Examinations) of the appellant to the effect that the number of multiple choice questions which can be framed for a competitive examination for admission to a super-speciality course dealing with one organ only of the human body, are limited. This plea is duly supported by the prohibition on the examinees from copying or carrying out from the examination hall the question papers or any part thereof. We have no reason to reject such expert view."
The Commission's order dated 27.02.2017 in case no. CIC/SH/A/2016/001485/MP (Pradeep Kumar, Pune vs ASRB) is also relevant and reads as follows:
5. Having considered the submissions of the respondents and perused the available documents in file, the Commission observes that the question paper of Agricultural Biotechnology Examination cannot be provided in view of the Hon'ble High Court of Delhi judgment dated 28.5.2012 in LPA No. 487/2011 in the matter of AIIMS Vs. Vikrant Bhuria directs. However, the Commission directs the CPIO to provide to the appellant his OMR sheet within ten days of the receipt of the order of the Commission. The appeal is disposed of."
Considering the submissions of both the parties and the judgments relied upon by them, it is noted that the stand taken by both the sides is justified. However, as observed by the Hon'ble Delhi High Court in LPA No.543/2014 which was quoted by the representative of the appellant, every case is to be decided separately based upon its own facts. In the present case, the question is whether the CPIO had wilfully obstructed the information and is liable for penalty or not. However, the Commission notes that the CPIO was also right in denying the desired information as pointed out by the FAA that while doing so, they were guided by the principles laid down by the Hon'ble High Court in the matter of AIIMS vs Vikrant Bhuria and an order of the CIC. Therefore, it cannot be concluded that there was any malafide intention on the part of the concerned PIOs or the respondent organisation to obstruct free flow of information and the imposition of any penalty, as prayed for by the complainant, does not seem to be justified.
4At this point, the Commission took note of the ruling of the Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on: 01.06.2012) wherein it was held as under :
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to fulfill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Decision:
In view of the above, the complaint is devoid of merit as no malafide intention on the part of the CPIO could be established.
The complaint is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू नाआयु त) 5 Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date 6