Kerala High Court
The Kerala Public Service Commission vs State Information Commission on 9 March, 2011
Equivalent citations: AIR 2011 KERALA 135, (2011) 2 KER LJ 404
Bench: Thottathil B.Radhakrishnan, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33718 of 2010(L)
1. THE KERALA PUBLIC SERVICE COMMISSION
... Petitioner
2. THE STATE PUBLIC INFORMATION OFFICER
3. APPELLATE AUTHORITY & ADDITIONAL
Vs
1. STATE INFORMATION COMMISSION,KERALA
... Respondent
2. ASHA BHASKAR
For Petitioner :SRI.P.C.SASIDHARAN, SC, KPSC
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/03/2011
O R D E R
Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).Nos.33718/2010-L, 5755/2007-I, 12297/2007-L, 3585/2008-B, 15363/2008-D, 15424/2008-J, 22386/2008-M, 6177/2010-V, 9250/2010-E, 25779/2010-V, 23839/2010-D, 32772/2010-V, 12032/2009-Y, 12160/2009-L, 34585/2007-P, 33620/2009-V, 35723/2008-C, 22398/2008-N, 15426/2008-J, 22230/2007-U, 6355/2010-T, 22231/2007-V, 3577/2008-A, 12312/2007-N, 23458/2008-P, 37772/2008-V, 11876/2009-D, 23539/2008-B, 11687/2009-E, 33616/2009-V, 11042/2010-E, 2207/2008-K, 10971/2010-V, 5978/2010-V, 35840/2008-N & 5622/2007-T = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of March, 2011.
Judgment "CR"
Thottathil B.Radhakrishnan, J.
1.These writ petitions raise the question of applicability of the Right to Information Act, 2005, hereinafter referred to as the "RTI Act" to the Kerala Public Service Commission, hereinafter, "PSC", for short. These matters are WPC33718/10 & con.cases -: 2 :- referred to the Division Bench noticing an apparent conflict between the decisions of this Court in Public Information Officer, University of Calicut and another v. State Information Commission[2010(1) KHC 2], for short, "UNICAL", and Treesa Irish v. Central Public Information Officer[2010(3) KLT 965], "TREESA", for short.
2.The PSC challenges different decisions of the State Information Commission, "SIC", for short, overruling its stand that information with the PSC cannot be accessed under the RTI Act and that the answer scripts, marks awarded, including interview marks and other details touching the process of examination and interview cannot be made available, except to the extent provisions are made for such access by the regulations and decisions of the PSC.
3.In support of the writ petitions, Adv. Alexander Thomas, the learned standing counsel for the PSC argued that the substantive source of the right to information is the constitutional provision in WPC33718/10 & con.cases -: 3 :- Article 19(1)(a) and hence, what is not available as part of that right cannot be treated as available under the RTI Act. He argued that RTI Act applies only to the extent of the concept of "information" as deducible from Article 19(1)(a) of the Constitution and not beyond. He, therefore, said that if a particular information would fall beyond the pale of Article 19(1)(a), the same would not be accessible under the RTI Act. Making reference to the decisions of this Court in Thalapalam Service Co-operative Bank Ltd. v. Union of India[2009(2) KLT 507] (Thalapalam I), Thalapalam Service Co-operative Bank Ltd. v. Union of India[2009(3) KLT 1001] (Thalapalam II) and S.N.College v. State of Kerala[2010(1) KLT 691](S.N.College), it was argued that it has been held in those cases that the concept of information under RTI Act is with reference to Article 19(1)(a) of the Constitution. He accordingly argued that beyond that, the provisions of the RTI Act cannot be extended. He said that this restrictive approach has to be applied since it has been held by the WPC33718/10 & con.cases -: 4 :- Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth[(1984)4 SCC 27], hereinafter, Paritosh, that in terms of the Constitution, there is no right to information, including as regards answer scripts. He said that the law laid by the Apex Court in that regard is also that if such right is recognized, it would lead to acceding to a further right to demand revaluation and such situation would necessarily lead to uncertainty, lack of finality and administrative inconvenience to the examining bodies. He also pointed out that even in terms of the Constitution, principles of secrecy and public interest immunity would stand to advise that information in relation to PSC, in particular, matters relating to examinations, ought not to be released as information, invoking the provisions of the RTI Act. He also made reference to Secy., W.B.Council of Higher Secondary Education v. Ayan Das[(2007)8 SCC 242], Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission[(2004)6 SCC 714], WPC33718/10 & con.cases -: 5 :- Board of Secondary Education v. Pravas Ranjan Panda[(2004) 13 SCC 383], H.P.Public Service Commission v Mukesh Thakur[(2010)6 SCC 759], Sidhik v. State of Kerala[2010(1) KLT 113] and the decision of the Apex Court in Kerala Public Service Commission v. Narayanan Kunchumbidukka [Civil Appeal No.461 of 2008][Ext.P6 in WP(C). 33718/2010], to argue that the said decisions categorically lay down that access to information in relation to examination materials is not permissible except to the extent where the examining body permits such access on the basis of regulations or decisions that it has taken for the management of affairs in relation to examinations. Adv. Alexander Thomas further argued that the Commission has a fiduciary role qua the society in public interest and it holds and acts in trust; in public interest; in a fiduciary capacity qua the public at large. He said that the term "fiduciary capacity" in Section 8 of the RTI Act needs to be so understood. He argued that information regarding examiners and others involved in the process has WPC33718/10 & con.cases -: 6 :- to be maintained in secrecy. Otherwise, it would lead to different situations which would be susceptible even to corruption. Dilating on the concept of fiduciary status, he argued that the restricted concept of fiduciary relations as understood in private law is not applicable and the concept of fiduciary relations in the context of public trust and public involvement should be a larger concept.
4.Adv. M.Ajay, the learned counsel for the SIC argued that the decisions rendered by this Court in Thalapalam I & II and S.N.College do not lay down any principle of restrictive approach in appreciating the concept of information for the purpose of the RTI Act. He said that this Court had only indicated in those decisions, the evolution of law in that regard. He further argued that the basic approach of the RTI Act is one that conceives maximum disclosure and minimum exemptions. This, he said, is discernible from the RTI Act as a whole and also on the basis of its Preamble and the Statement of Objects and WPC33718/10 & con.cases -: 7 :- Reasons. He made reference to the decisions of the Delhi High Court in ICAI v. Central Information Commissioner & another[W.P(C). No.8529 of 2009], Allahabad High Court in Public Information Officer v. State Information Commission, U.P. and others[W.P.No.3262 (MB) of 2008], Pritam Rooj v. University of Calcutta[AIR 2008 Cal.118], University of Calcutta v. Pritam Rooj[AIR 2009 Cal.97], The Tamil Nadu Public Service Commission v. The Tamil Nadu Information Commission[W.P.No.34630/2007 & connected cases], D.Parisuthanathan v. Public Information Officer/Registrar General, High Court, Madras [W.P.No.1285/2009 & connected cases], Tamil Nadu Road Development Company Limited v. Tamil Nadu Information Commissioner[W.A.No.811/2008 & M.P.No.1/2008] and Union Public Service Commission v. Shiv Shambhu[2008-ILR Delhi 17- 2016 :2008(TLS) 141374] and Secretary General, Supreme Court of India v. Subhash Chandra Agarwal[LPA 501/2009], to argue that the provision for information in terms of the RTI Act has to be understood on the basis of the WPC33718/10 & con.cases -: 8 :- definition of "information" in that Act. He further argued that the validity of the RTI Act not being under challenge, there is no reason to tinker with the specific definition given by the legislature to the term "information" in the RTI Act. He argued that the RTI Act is a self contained Code and it should be taken that the Parliament were aware of the laws as laid by the Apex Court while it made the RTI Act and if it intended to make any departure in the case of examinations etc., such departure or exception would have necessarily found expression in the Act itself. He pointed out that the fiduciary concept is not available as a plea for the PSC to deny information under the RTI Act and the fiduciary relationship as projected by the PSC, has no application because the intention of RTI Act is to provide information, with the ultimate goal to ensure purity and transparency in matters relating to governance and selection. He said that, by all means, PSC cannot but be treated as part of the process of governance of the State. WPC33718/10 & con.cases -: 9 :-
5.Section 3 of the RTI Act provides that, subject to the provisions of that Act, all citizens shall have the right to information. That right is defined in section 2(j) of the RTI Act. It is the right to information, accessible under that Act, which is held by or under the control of any public authority. It includes the right to access any information as stated in that provision. Every public authority stands with the obligations cast on it under section 4 of that Act. The PSC does not, and cannot, have the contention that it is not a "public authority" as defined in section 2 (h) of the RTI Act. The obligations in terms of section 4 of the Act are incurred by any authority or body or institution which would be a public authority in terms of section 2 (h) of that Act. Adverting to section 8 of that Act, it can be seen that there is no institutional exception or exemption from the applicability of the provisions of the Act. The exemption from disclosure of information provided for by section 8 of that Act is one based on the type or class of information. In the absence of WPC33718/10 & con.cases -: 10 :- any such exemption being granted to any class or type of information with any public authority, the obligations of that public authority in terms of the Act and the susceptibility of information with it, to access in terms of the provisions of the RTI Act cannot be avoided. Thus, PSC having been brought under the trappings of the RTI Act, it is not conferred with the immunity as an institution, from the obligations, liabilities and exposure of information held by or under its control, in terms of that Act. There is also no provision in section 8 of that Act classifying any information as eligible for exemption from disclosure.
6.Section 2 of the RTI Act is the dictionary of that legislation. It contains "Definitions". Clause (f) thereof says that "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 form and WPC33718/10 & con.cases -: 11 :- information relating to any private body which can be accessed by a public authority under any other law for the time being in force. The Honourable Supreme Court stated in Hariprasad Shivshanker Shukla v. A.D.Divelkar[AIR 1957 SC 121], that "There is no doubt that when the Act itself provides a dictionary for the words used, we must look into that dictionary first for an interpretation of the words used in the statute. We are not concerned with any presumed intention of the legislature; our task is to get at the intention as expressed in the statute." When the statutory provision defining a particular term says that the said term shall mean what is stated in that definition clause, it shall mean only that; nothing more, nothing less; for the purpose of the statute which carries that definition. When a statute says that a word or phrase shall "mean" -- not merely that it shall "include" -- certain things or acts, the definition is a hard- and-fast one, and no other meaning can be assigned to the expression than the one put down in definition. A definition is an explicit WPC33718/10 & con.cases -: 12 :- statement of the full connotation of a term. - See Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer[(1990) 3 SCC 682] and P. Kasilingam v. P.S.G.College of Technology[1995 Supp (2) SCC 348] rendered relying on Gough v. Gough[(1891) 2 QB 665: 65 LT 110]. As noticed in S.N.College, the Legislature has the power to define a word even artificially. When a statute says that a word or phrase shall "mean" a particular thing, certain things or acts, that definition is a hard-and-fast one and no other meaning can be assigned to the expression than is put down in that definition. That definition is an explicit statement of the full connotation of a term.
7.In CST v. Union Medical Agency[(1981) 1 SCC 51], the Apex Court stated that it is a well-settled principle that when a word or phrase has been defined in the interpretation clause, prima facie, that definition governs whenever that word or phrase is used in the body of the statute. But where the context makes the definition clause WPC33718/10 & con.cases -: 13 :- inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification
-- "unless there is anything repugnant in the subject or context", or "unless the context otherwise requires". Even in the absence of an express qualification to that effect, such a qualification is always implied. The meaning of a word or expression defined may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in definition section, namely "unless the context otherwise requires". In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no WPC33718/10 & con.cases -: 14 :- obscurity in the language of the section, there is no scope for the application of the rule ex visceribus actus. This rule is never allowed to alter the meaning of what is of itself clear and explicit. As observed in Pandey & Co. Builders (P) Ltd. v. State of Bihar[(2007) 1 SCC 467], in view of the provision "unless the context otherwise requires" in the definition clause, one may not stick to the definition, when the provision in the interpretation clause shall lead to anomalous and absurd results. Such course shall not be resorted to otherwise. The court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent.
8.The question of contextual construction of any particular provision of the RTI Act and the consequential excusing of the PSC from any such provision, by using the tool "unless the context otherwise requires" in the opening part of WPC33718/10 & con.cases -: 15 :- section 2 of that Act, do not arise. This is because, to a large extent, the plea of the PSC is that the RTI Act does not apply to all information held by it or under its control. The argument advanced is that there has to be a selective classification of the information held by it or under its control. The plea is that while information relating to its governance and administration may be available for access under the RTI Act, information, including materials relating to examinations, are not accessible information since they do not relate to governance or administration of PSC. The argument is not that the application of the definition of the term "information", as contained in the dictionary to the statute, interpreting any particular provision of the RTI Act, would lead to anomalous and absurd results. In its substance, the plea of PSC is that the definition of the term " information" in section 2 of the RTI Act should be understood differently; not in relation to the interpretation or application of any particular provision of that Act; but while WPC33718/10 & con.cases -: 16 :- applying the provisions of that Act to the PSC. Fundamentally, this contention of PSC does not stand. As already noticed, PSC cannot but fall under the definition of "public authority" in the RTI Act. Having regard to the format of the definition of that term in the RTI Act, there is no intelligible differentia discernible in the context of that Act, to cull out any differential treatment for the PSC or information held by it or under its control. On the face of the clear provisions of the RTI Act, as they now stand, there is no way for judicial intervention to refuse access to information by or under the control of PSC.
9.Be that as it may, we proceed to consider the submissions on behalf of the PSC that the concept of "information" in the RTI Act has to be restricted to such information as would be available in the realm of fundamental rights referable to Article 19(1)(a) of the Constitution, having regard to the views expressed in Thalapalam I & II and S.N.College. WPC33718/10 & con.cases -: 17 :- Those three judgments and TREESA trace the evolution of the concept of information, as a necessary concomitant of the fundamental right to freedom of expression as contained in Article 19 (1)(a) of the Constitution. Eligibility to access information, including the entitlement to have information for the purpose of meaningful fulfillment of the fundamental right to freedom of expression, is part of the core theme of those precedents rendered making reference to the legendary decisions of the Apex Court in State of Rajasthan v. Raj Narain[AIR 1975 SC 865] and S.P.Gupta v. Union of India[1981(Supp.)SCC 87]. Those precedents do not, in any manner, abridge the ever expanding horizons of the fundamental right to freedom of expression as enshrined in Article 19(1)(a). Nor do those judgments act as precedents for any proposition that the legislatures have to restrict the concept of "information" for the purpose of providing access, with the aid of a statutory instrument, in the form of the RTI Act. All that has been said in those judgments is that the ever WPC33718/10 & con.cases -: 18 :- available fundamental right to information as part of the fundamental right to freedom of speech and expression has found statutory recognition in the form of RTI Act, as a successor to the Freedom of Information Act, 2002. Those decisions are not precedents laying down any definition for the term "information" for the purpose of the RTI Act.
10.To make a statute, including by laying down a statutory definition, even artificial, for any particular term used in that statue, is the exclusive function of the legislature. If it does so, that cannot be abridged by any situational or explanatory reference made to the constitutional provisions, in any precedents laid by courts. When the legislature undertakes the process of making a piece of statute law, it has necessarily to be assumed that it is aware of the interpretations given by the courts, at least the Supreme Court and the High Courts, to the different terms or concepts that become subject of that legislation. When the legislature makes a WPC33718/10 & con.cases -: 19 :- statute, including by providing a specific definition for a term; may be, even artificial, deviating from the common and accepted meaning of that particular term; it has to be taken that the legislature has consciously, deliberately and after due consideration, put that provision, including the definition. Judicial determination can thereafter be only as regards the constitutionality of that provision.
11.In the absence of any way to challenge validity of the provisions of the RTI Act, it is impermissible for the PSC to contend that in the application of that Act to it, there has to be a restrictive understanding of the term "information", that too, ignoring the clear statutory provision defining the term; the legislature clearly stating that it means what it stated as the definition of the term "information" for the purpose of that Act.
12.Here, the law laid by the Apex Court in Paritosh was one expressing the confidence in the WPC33718/10 & con.cases -: 20 :- examination systems, holding the examiners and the institutions conducting the examinations in a pedestal higher than the right of the examinee or any other person to access information in that regard. In the absence of any permission then, like the RTI Act, holding the field, the Apex Court stated its views within the format of the Constitution to say, without the aid of any statute governing the field, that the right to information in relation to, and disclosure of answer scripts, may lead to request for revaluation and resultant choking off the systems which run the examinations. For one thing, after Paritosh was decided in 1984, and even followed subsequently, evolution of the thinking process of the legislators, academicians and civil society leaders and organizers had apparently pushed forward the larger salutary requirement that transparency has to outweigh all demands for secrecy, except of course, in relation to areas of national and other such interests which require continued secrecy and exemption from any law providing access to information. This WPC33718/10 & con.cases -: 21 :- evolution of the People's thinking found acceptance with the Legislature. This is how the RTI Act came into being, making a specific provision in the form of Section 8 granting exemptions from the provisions of the RTI Act. We, therefore, uphold the views in TREESA and agree with the Division Bench and the single Judge of the Calcutta High Court in Pritam Rooj pointing out the evolution of the society leading to the RTI Act and the requirement of the Universities to fall in line with the provisions contained in that Act. The constitutional values have to be identified and effectuated as "We, the People of India" marches. The concepts which had held field, even for fairly long, have later dwinkled with the exploring minds of the Indian people. As noted by Krishna Iyer, J. in Authorised Officer v. S.Naganatha Ayyar[(1979) 3 SCC 466], though the Judges are constitutional invigilators and statutory interpretors, they are also responsive and responsible to Part IV of the Constitution. The Judges have, with the passage of time, contributed to the process of evolution WPC33718/10 & con.cases -: 22 :- of the constitutional law to ultimately lead the society to affirmatively stand by the equality doctrine which is a seminal principle underlying the Constitution. To indicate an example of the process of evolution of thinking in Constitutional law, we may indicate the growth of law from A.K.Gopalan v. State of Madras [AIR 1950 SC 27], through Maneka Gandhi v. Union of India [(1978) 1 SCC 248] and Kehar Singh v. Union of India[(1989)1 SCC 204] and now State of West Bengal v. Committee for Protection of Democratic Rights[(2010)3 SCC 571]; showing a graphical expansion of the concept of right to life and personal liberty. The progression of the society is reflected also by the growth of statute law and judicial precedents which reflect the recognition of the priceless gems in the Constitution; the fundamental rights, Directive Principles of State Policy and other provisions which reflect the aspirations of the Nation. They are the constitutional values, which will run the national mechanism in terms of the Constitution. It is within the power of the Legislature to WPC33718/10 & con.cases -: 23 :- bring such legislations as are in conformity with the Constitution. Permissiveness in terms of the Constitution may be one matter. But, more importantly, the People are entitled to have the legislators to think and bring in laws as may be necessary to effectuate the aspirations of the people referable to the Directive Principles of State Policy. May be, a citizen may not have a right to a judicial order seeking enforcement of any provision in Part IV of the Constitution. But, that does not provide answer for legislative failure to give effect to the aspirations of the People in terms of Part IV of the Constitution. It is also the law that the legislatures which are the constitutional authorities to make the enactments can change the course of the settled positions of law except in exceptional circumstances and subject to such restrictions as have been judicially recognised. Therefore, the law laid in Paritosh is not persuasive of any proposition that the provisions of the RTI Act have to be interpreted in terms of the rights of citizens, particularly, the examinees, as laid WPC33718/10 & con.cases -: 24 :- down in that case. The views expressed in that regard in TREESA and of the learned single Judge and Division Bench of the Calcutta High Court in Pritam Rooj are apposite.
13.For the foregoing reasons, the argument extended by the PSC that the concept of "information" for the purpose of the RTI Act has to be restricted to such information as may fall within the concept of fundamental right to information as part of the fundamental right to freedom of speech and expression referable to Article 19 (1)
(a), is unsustainable in law and is hereby repelled.
14.Now, on to the plea of the PSC that it holds a fiduciary status. Three issues arise in this context. Firstly, the PSC claims that there is a fiduciary relationship between it and those being subjected to examination for the purpose of selection to public service. Secondly, it claims that there is a fiduciary relationship between it and the examiners and as a consequence, it is WPC33718/10 & con.cases -: 25 :- eligible to claim protection from disclosure, except with the sanction of the competent authority, as regards the identity of the examiners as also the materials that were subjected to the examination. Thirdly, rather, most importantly, it contends that the PSC holds a larger fiduciary public interest relationship with the society at large in relation to the maintenance of purity, transparency and the credibility of the procedure of selection to public service and therefore materials in relation to such selection procedures cannot be subjected to access as if they were information that would fall within the trappings of the RTI Act. We may hasten to add that the learned counsel for the PSC, in the course of his erudite submissions, made a clear distinction between information relatable to the PSC as regards its governance and those relatable to the examinations conducted by it. He said that in matters relating to governance, there may not be any privilege or protection that the PSC could claim; but that, matters relating to examination WPC33718/10 & con.cases -: 26 :- deserve to be taken out of the purview of the RTI Act.
15.In Centre of Earth Science Studies v. Anson Sebastian[2010 (2) KLT 233], the Division Bench of this Court held that S.8(1)(e) deals with information available with the person in his fiduciary relationship with another; that information under this head is nothing but information in trust, which, but for the relationship would not have been conveyed or known to the person concerned and that this applies to the relationship that exists between a patient and a Doctor, a lawyer and a client etc. The term "fiduciary relationship" is not defined in the RTI Act. The learned single Judge, in TREESA, therefore rightly held that in the absence of any statutory definition, the general accepted legal connotation of that term could be adopted for deciding the issue. Reliance placed in TREESA on the definition of "fiduciary relationship" as stated in Black's Law Dictionary, seventh edition, in Corpus Juris WPC33718/10 & con.cases -: 27 :- Secundum, the Dictionary of Law by L.B. Curzon, Stroud's Judicial Dictionary and the decision of this Court in Sunitha v. Ramesh[2010 (3) KLT 501] and the decisions in Secretary General, Supreme Court of India(supra), including the references made therein to different precedents and commentaries, are contextually apposite and applicable to the interpretation of the term "fiduciary relationship" in section 8 (1)(e) of the RTI Act.
16.What, if any, is the fiduciary relationship of the PSC qua the examinees? Performance audit of constitutional institutions would only strengthen the confidence of the citizenry in such institutions. The PSC is a constitutional institution. To stand above board, is one of its own prime requirements. There is nothing that should deter disclosure of the contents of the materials that the examinees provide as part of their performance in the competition for being selected to public service. The confidence that may be reposed by the examinees in the WPC33718/10 & con.cases -: 28 :- institution of the PSC does not inspire the acceptability of a fiduciary relationship that should kindle the exclusion of information in relation to the evaluation or other details relating to the examination. Once the evaluation is over and results are declared, no more secrecy is called for. Dissemination of such information would only add to the credibility of the PSC, in the constitutional conspectus in which it is placed. A particular examinee would therefore be entitled to access to information in relation to that person's answer scripts. As regards others, information in relation to answer scripts may fall within the pale of "third party information"
in terms of section 11 of the RTI Act. This only means that such information cannot be accessed except in conformity with the provisions contained in section 11. It does not, in any manner, provide for any immunity from access.
17.We shall now examine the next contention of PSC that there is a fiduciary relationship between it and the examiners and as a consequence, it is WPC33718/10 & con.cases -: 29 :- eligible to claim protection from disclosure, except with the sanction of the competent authority, as regards the identity of the examiners as also the materials that were subjected to the examination. We have already approved TREESA and the different precedents and commentaries relied on therein as regards the concept of fiduciary relationship. We are in full agreement with the law laid by the Division Bench of this Court in Centre of Earth Science Studies (supra), that S.8(1)(e) deals with information available with the person in his fiduciary relationship with another; that information under this head is nothing but information in trust, which, but for the relationship would not have been conveyed or known to the person concerned. What is it that the PSC holds in trust for the examiners? Nothing. At the best, it could be pointed out that the identity of the examiners has to be insulated from public gaze, having regard to issues relatable to vulnerability and exposure to corruption if the identities of the examiners are disclosed in advance. But, at any WPC33718/10 & con.cases -: 30 :- rate, such issues would go to oblivion after the conclusion of the evaluation of the answer scripts and the publication of the results. Therefore, it would not be in public interest to hold that there could be a continued secrecy even as regards the identity of the examiners. Access to such information, including as to the identity of the examiners, after the examination and evaluation processes are over, cannot be shied off under any law or avowed principle of privacy.
18.Proceeding to the next contention of the PSC that it holds a larger fiduciary public interest relationship to the society at large in relation to the maintenance of purity, transparency and the credibility of the procedure of selection to public service and therefore materials in relation to such selection procedures should not be subjected to access as if they were information that would fall within the trappings of the RTI Act, it needs to be stated emphatically that purity and transparency of every public establishment is ensured to the WPC33718/10 & con.cases -: 31 :- satisfaction of the citizenry only by providing access to materials as would instil confidence. The RTI Act is a unique legislation. A laudable object it proceeds to achieve is empowerment of the citizenry with information in relation to matters of governance and also as regards all matters which may be relevant as information in terms of the RTI Act. This process of access is statutorily provided by the legislature after making clear and specific exemptions and restrictions regarding information which it, in its wisdom, decided not to disseminate. The reference made to the Official Secrets Act and the provision that the RTI Act applies with an overriding effect on other laws makes it explicitly clear that the legislative intention is that no principle of secrecy other than which is recognized specifically in the RTI Act is taken up as a shield against access and dessimination of information by public authorities in terms of the RTI Act. Transparency will only add to the confidence of the people regarding the purity of the conduct of public WPC33718/10 & con.cases -: 32 :- authorities. The confidence that the public repose on the PSC would only be augmented by the disclosure of information. We do not find any reason why the PSC could say that the confidentiality in re it and the public at large would, in any manner, be affected by the disclosure of information in relation to examinations and materials in connection therewith. This argument also therefore fails.
19.Barring the eligibility of any candidate who would be eligible to notice and hearing prior to the disclosure of any third party information in terms of the RTI Act, we do not find any legal infirmity in TREESA. Except to that extent, the contrary view in UNICAL does not lay down the correct position of law. It is so declared.
20.An incidental issue also needs to be addressed. In exercise of authority under the relevant constitutional and statutory provisions, the PSC has laid down for itself, rules relating to destruction of its records. Having regard to the WPC33718/10 & con.cases -: 33 :- existence of the power to make such rules and because those rules cannot be treated as contrary to the provisions of the RTI Act and the objects sought to be achieved thereby, the PSC cannot be compelled to disclose information which it would have destroyed in accordance with the provisions of the rules enabling destruction of records. Therefore, there cannot also be any penalty for nondisclosure of information relating to destroyed records, provided they have been destroyed in accordance with the rules providing and enabling destruction of records by PSC.
21.One of the issues that arise for consideration is the plea of the PSC that it having made rules for issuance of copies and dissemination of information to candidates; it ought not to be compelled to issue such information, also under the provisions of the RTI Act. This argument appears to be quite appealing because public institutions like PSC meet their expenses from public funds. Necessarily, it has to be the WPC33718/10 & con.cases -: 34 :- endeavour of all concerned to ensure that expenditure from such funds is confined to actual requirements. At the same time, the mode and provision for access to information under the provisions of the rules made by the PSC, as also, the cost factor, if any, involved, may be relevant considerations to ultimately conclude as to whether there could be any exclusion of access to such information under the provisions of the RTI Act and the rules framed thereunder, on the premise that alternate, efficacious and cost-friendly modes of access to information are otherwise provided for by the statutory rules and other provisions that govern the working of the public authority from which, information could be sought under the RTI Act. But, as the law now stands, there is no scope for any judicial recognition of such a plea and a favourable decision on that issue through a judicial order. This is because Section 22 of the RTI Act provides that the provisions of that Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, WPC33718/10 & con.cases -: 35 :- 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than that Act. Such statutory provision having been made by the legislature, within its competence, it cannot be watered down or modified except by recourse to legislative procedures. We therefore do not find way to accept the contention of the PSC in this regard.
22.Another plea of PSC is nothing but a managerial issue. It is pointed out that the PSC has to incur the huge expenses and administrative difficulties, including the deployment of staff exclusively to deal with such requests and this would result in undue hardship and clogging of its administrative setup. Once a piece of law is in place, inconvenience is no excuse to exclude adherence to it. The bounden has to obey and abide by it. This plea of PSC also does not commend acceptance.
WPC33718/10 & con.cases -: 36 :- In the result, the decisions impugned by the PSC are upheld except to the extent they relate to information destroyed in terms of the provisions of the rules enabling destruction of records by PSC. The impugned orders and the orders sought to be enforced, through a couple of writ petitions by persons who have sought information, would stand regulated by what is stated herein. Further enforcement of those orders, including by invoking the penal provisions shall be only in strict conformity with what is stated herein. In view of the fact that the question of applicability of the RTI Act to PSC was being considered in this bunch of matters, orders imposing penalty, if any, are set aside and the PSC will have the statutory time, to comply with the directions of the SIC, running from today. The writ petitions are ordered accordingly. No costs.
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Thottathil B.Radhakrishnan, Judge.
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P.S.Gopinathan,
Sha/0303 Judge.
-true copy-