Central Information Commission
Sabyasachi Mukherjee vs Ministry Of Human Resource Development on 3 January, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/MOHRD/C/2020/678733
CIC/MOHRD/A/2020/681154
Sabyasachi Mukherjee ....िशकायतकता /Complainant
......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Tata Institute of Social
Sciences, RTI Cell, V.N. Purav
Marg, Deonar, Mumbai-4000888 ... ितवादीगण /Respondent
Date of Hearing : 12/10/2021
Date of Decision : 30/12/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from complaint:
RTI application filed on : 08/06/2020
CPIO replied on : 07/08/2020
First appeal filed on : 20/07/2020
First Appellate Authority's order : NA
2nd Appeal/Complaint dated : 20/07/2020 & 09/08/2020
Information sought:
The Complainant/Appellant filed an online RTI application dated 08.06.2019 seeking the following information:
1. "Provide the question papers and answer keys of Tata institute of Social Sciences National Entrance Test 2016, 2017, 2018, 2019, 2020.1
2. Provide the question paper arid answer key of Tata Institute of Social Sciences Management Aptitude Test 2020."
Having not received any response from the CPIO, the complainant/appellant filed a First Appeal dated 20.07.2020 as well as direct complaint to the Commission on the same date.
Subsequently, the CPIO replied to the FA on 07.08.2020 denying the information under Section 8(1)(e) of the RTI Act.
FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied with the non-receipt of information, complainant/appellant approached the Commission with the instant Complaint.
Relevant Facts emerging during Hearing:
The following were present:-
Complainant/Appellant: Present through audio conference. Respondent: Mustafa Momin, Assistant Registrar (Academic) and PIO present through audio conference.
The PIO submitted that the information was denied to the Complainant/Appellant on 07.08.2020 under Section 8(1)(e) of the RTI Act and relied on their written submissions sent prior to the hearing, relevant extracts of which is reproduced hereunder:
"(a) The information sought by the Appellant pertains to question papers and answer keys for the TISSNET and TISSMAT examinations, for certain years. The Tata Institute of Social Science (TISS) is a Higher Education Institute, which functions under the aegis of the University Grants Commission (UGC) and the Ministry of Education (MoE). It has, over the years, created a niche identity for itself based on the high quality of education it imparts in various fields of social sciences. The repute and esteem that the Institute has built up for itself is in large part to the efforts of its shareholders, including its students, who are carefully selected through the entrance examinations, which it conducts. This selection process is central to the functioning of the Institute and its future as an Institute of excellence.2
(b) The Institute submits that the TISSNET and TISSMAT examinations are based on question banks prepared specifically for this purpose, and the overall pool of questions is limited. In this regard, reference may be had to established jurisprudence laid down by the Hon'ble Delhi High Court in Ministry of Railways v. K.G.Arun Kumar, (W. P.(C) No. 2173 of 2013) , wherein the Bench observed that:
'The controversy whether an examining body can be asked to disclose the question papers in circumstances, where the number of questions are limited and are repeated, has been considered by this court in National Insurance Co.Ltd v Shri MSF Beig .· WP(C) No.27212012 decided on 20.11.2014 and it has been held that in such cases, the examining body cannot be compelled to disclose the question papers.'
(c) The Institute also submits that the question banks are prepared by persons with whom it holds a fiduciary relationship to ensure that the same is not widely disbursed or published. With respect to Section 8(1)(e) of the Right to Information Act, 2005, the Hon'ble Supreme Court in Institute of Chartered Accountants of India v. Shaunak H. Satya, (Civil Appeal No. 7571 of 2011) discussed the contours of the provision as follows....
(d) In the aforementioned case, the Hon'ble Supreme Court noted that the Chief Information Commissioner (CIC) in that case had rightly held that information sought under queries pertaining to "instructions issued to the examiners, and moderators oral as well as written if any" and "model answers if any given to the examiners & moderators if any" were exempted under Section 8(1)(e) and that there was no larger public interest requiring denial of statutory exemption regarding such information.
4. In view of the foregoing, it would not be appropriate for the Institute to publish the question bank/question papers/answer keys, which are held by it in a fiduciary capacity with the makers of the same, unless a larger public interest can be established. It is specifically noted that the Appellant's request for question papers and answer keys of TISSNET examination for various years as also TISSMAT examination for 2020 appears to have no larger public interest involved. The Appellant has not made such a public interest evident in this appeal either, despite the same having been cited as cause for rejection of the request for information by the PIO.
5. Further, TISS is also guided by the understanding that in case of sharing of question papers, the possibility of the examinations not resulting in the selection of the best candidate cannot be ruled out. The knowledge of the question papers of all the previous years with correct answers and their prototype may nullify the purpose and objective of conducting entrance exams and lead to selection of students with good memory, rather than 3 analytical minds. In case the question papers and keys are revealed to the general public, the TISSNET/TISSMAT will lose its purpose of screening of the graduates for unique applied social science programmes at TISS and which would clearly lead to dilution and compromise of the exacting minimum standards of social science education.
6. The Institute is also concerned that the Information seeker may be acting at the Instance of a coaching Institute or a publisher and acting with the motive of making commercial gains from such information or other possible unknown reasons. In such an instance, there is a high chance that the TISS examinations would be compromised. In turn, the educational standards of TISS may also be compromised.
7. In view of the foregoing, the Institute submits that the limited question bank for the specialty subjects of TISS, alongwith concerns regarding dilution of quality of our entrance examinations to various fields of social sciences higher education, have prevented TISS from sharing its question papers and answer keys for past years' papers. Further, TISS also has legitimate concerns regarding the commercial use of the question bank, which cannot be avoided if the same are provided in response to specific RTI applications which make the information available only to the applicant for possible gains where no larger public interest may be served."
The Appellant/Complainant also relied on his detailed rebuttal sent in writing prior to the hearing, extracts of which is also reproduced hereunder:
"a) Point no- 3(b) of the submission made by the TISS authority states about the limited question pool of the examination and hence they don't want to disclose the question paper. It is true that if an examination has a limited question bank then it will be problematic to disclose the same. But this point can't be a point of consideration in the instance case. In the official website of the TISS; the syllabus section of the TISSNET states that the syllabus is "indicative and not restrictive". I am giving the screenshot and link below.
(Link: https://admissions.tiss.eduiview/6/admissions/ma- admissions/tissnet/) Where an examination hasn't it syllabus specified; how the question pool can be limited? It's just a feeble argument to not disclose the information. It is also to be noted that the authority didn't mention this point in the RTI reply.
b) Point number 3(c) of the submission states about the fiduciary relationship. The authority has stated the judgment of the Hon'ble Supreme Court of India in case of The Institute of Chartered Accountants of India vs Shaunak H.Satya & Ors, Civil Appeal Number 7571 of 2011.
4Now, it is important to note that in the aforementioned case; instructions and model answer were given to the examiners and moderators and hence; the examiners and moderators worked as the agent of the Institute of Chartered Accountants of India.
Here, TISSNET is a computer-based test and all the questions are of the MCQ types. It is not clear that to whom the answers were supplied in a computer-based test. If the papers are valuated electronically by machine; then there can be no fiduciary relationship.
Moreover, in the instance case; there is no question of model answers arises as the questions are of MCQ types.
Most importantly; in the above-mentioned case there was no question of revealing question papers. Rather the point of argument was about the revelation of model answers. Here the question is also being kept secret and the authority is trying to take the defence of fiduciary relationship. The question papers were published at the time of examination. It is important to note that after revelation of a specific information; the authority is trying to take the defence of fiduciary relationship under section 8(1)(e) of the RTI act.
c) In the case of Central Board of Secondary Education & Anr. V. Aditya Bandopadhyay & Ors. CIVIL APPEAL NO.6454 OF 2011; the Hon'ble Supreme Court discussed the concept of "fiduciary relationship". It says, "The term fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and expected not to disclose the thing or information to any third party. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner vis-à-vis another partner and an employer vis-à-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee 5 furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee's conduct or acts are found to be prejudicial to the employer."
It is clear that in a fiduciary relationship the fiduciary has to act in confidence and for the benefit and advantage of the beneficiary. In the instant case; may be some other party has made it; but it is not at all clear how the TISS is working under fiduciary relationship and also how the TISS is working for the "benefit" of that person who has made the question papers.
d) The Hon'ble Supreme Court of India stated in the case of The Institute of Chartered Accountants of India v Shounak H Satya and Ors., AIR 2011 SC 3336:
"It is obvious that the appellant examining body is not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. But the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination would not harm the competitive position of third party once the examination is held. ...therefore Section 8(1)(d) does not bar or prohibit the disclosure of question papers, model answers (solution to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party."
e) In the case of Ms. Shweta Upadhayay v. PIO, G6SIP University, CIC/SA/A/2014/001157 the Hon'ble Commission stated, "After examination is conducted, the question paper and the key for the same is 'information held' by the University. No provision of RTI Act exempts it from disclosure. There is no public interest in keeping question paper and key as secret and confidential which is neither secret nor confidential. Even if assumed that it is protected under some provision of Section 8(1), it has to be disclosed under Section 8(2) which facilitates disclosure on finding public interest in disclosure compared to absence of public interest in protecting the information. Section 8(2) of RTI Act, 2005 says: Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with subsection (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. There is public interest in disclosure of question paper which outweighs the so called 'protected interest if any in keeping the question paper secret and confidential."
6f) In point no 5 of the submission; it said that the revelation of question paper may nullify the purpose and objectives of the examination and students who have better memory will do well in the examination rather than a student with analytical mind.
In this regard, it I would like to mention the case of Mr. Manu Singla v. Mr. J.L. Pahwa and others; (CIc/SG/A/2008/00367). Commission while allowing the appeal directed the respondent to provide the information to the appellant free of cost before 25 April 2009 holding that the question papers and model answers are not covered under Section 8(1)(a) of the Right to Information Act, 2005....
A writ petition was also filled in front of the Hon'ble Delhi High Court to decide whether the Commission was justified in its order. The writ petition number was 9506/2009. While dismissing the petition court observed:
"in the considered view of this Court, for an organization like the CSIR to fight shy of providing copies or the previous years question papers is understandable. Given the enormous scientific talent that the CSIR is host to, setting a different question paper for every year can hardly be a challenging task. Providing previous years question papers for any competitive entrance exam is not an unheard of practice. The apprehensions expressed by the CSIR for not providing such previous question papers appear to be unfounded. As observed by the CIC, the people setting papers need to challenge and improve themselves. The disclosure of previous question papers is not covered by any of the exceptions outlined under Section 8(1)(a) of the RTI Act. It cannot be said to impact on the security, strategic, scientific or economic interests of the State."
g) The TISS authority has also stated in point 6 of the submission that probably I am acting at the instance of a coaching institute or a publisher and acting with the motive of making commercial gains from the information.
The learned TISS authority has probably forgotten that as per section 6/2) of the Right To Information Act, 2005; an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
h) The TISS authority has also said that the information may be used for commercial purpose if it is specifically given to me. I would like to say that l will have no problem if the TISS authority uploads these question papers and answer keys on their website. It will be very helpful for the people who wants to give the examination and will probably help them to 7 not go to any coaching centre. Here would again like to mention the order by the Hon'ble CIC in the case of Ms. Shweta Upadhayay v. PIO, GGSIP University, CIC/SA/A/2014/001157. It said, "Therefore, the Commission holds that all examinees of entrance examination have a fundamental right to know or right to information of question paper they have answered along with the key by next day of holding of examination on their official website so that they can verify their answers and assess their merit. Such a disclosure also would help the students seeking to take entrance examination next year to have model and key to guide them. It will reduce the dependence on the private coaching centres which exorbitantly charge the students that result in denial of chances of education on the grounds of economic conditions of students or their parent. If a student who cannot afford a coaching, but intelligent enough to prepare by himself from previous questions and key, why should he be denied his right to admission or right to education which is part of his right to life? The University being a public institution funded by public money, should not forget its responsibility towards the youth of this country to get them educated. Entrance examination should not become a battle raising levels of frustration leading to heavy pressures, depression and suicides. During these days of open book examinations, where the application levels of students are examined rather than their memory, an intelligent open examination is preferred to outdated methods of secrecy of examination papers."
Decision The Commission heard the parties at length and has closely scrutinized the facts on record and observes that the primary issue for determination is the tenability of a limited question bank argument vis-à-vis the reliance placed upon the Hon'ble Delhi High Court judgments in the matter of Ministry of Railways v. K.G.Arun Kumar, (W. P.(C) No. 2173 of 2013) as opposed to the judgment in the matter of DG, CSIR, & Ors. Vs. Monu Singla (W. P.(C) No. 9506 of 2009). The arguments put forth by way of placing reliance on the Aditya Bandhyopadhyay or the Shaunak Satya dicta do not have a direct bearing on the facts of the instant case as the issue of limited question bank has not been under consideration in either of these cases.
Here, it is relevant to quote an observation of a coordinate bench of this Commission in the matter of Mohd Misbahuddin vs Ministry of Railways decided on 18.01.2018 with reference to an identical controversy regarding the applicability of the Arun Kumar judgment of the Hon'ble Delhi High Court juxtaposed to the Apex Court judgments in Aditya Bandhopadhyay and Shaunak Satya matters, as under:
8"The Commission find that the contention of the appellant is not maintainable, as the Hon'ble Delhi High Court decision was specifically related to issue of disclosure of question paper related to the aptitude test.....the Commission is of the opinion that the Hon'ble Delhi High Court's decision is binding on this Commission and the appellant is at liberty to approach appropriate forum to challenge the Hon'ble Delhi High Court's order."
It is also pertinent to note that by way of precedential value, the judgment of the Hon'ble Delhi High Court in the matter of Ministry of Railways v. K.G.Arun Kumar, (W. P.(C) No. 2173 of 2013) finds applicability here than the earlier judgment of year 2010 in the matter of DG, CSIR, & Ors. Vs. Monu Singla (W. P.(C) No. 9506 of 2009) cited by the Appellant.
The relevant facts and decision in the Arun Kumar judgment is reproduced hereunder for emphasis and clarity:
"...The learned counsel for the petitioner contended that psychological tests are designed to test the mental aptitude for safety category staff necessary for safety on the Indian Railways. It was further submitted that the aptitude tests, question papers and the OMR sheets are reused in different examinations conducted by Railway Recruitment Board and a disclosure of the aptitude question papers would effectively destroy the ability of the petitioner to use the aptitude question papers in future examinations. It is further submitted that it takes several years to design an aptitude test and the petitioner would be prejudiced if the respondent is provided such information.
It was further contended by the learned counsel for the petitioner that even the copies of the question papers of the written examinations ought not be provided since the number of questions were limited and the same are also used in different tests. The controversy whether an examining body can be asked to disclose the question papers in circumstances where the number of questions are limited and are repeated, has been considered by this court in National Insurance Co. Ltd. v. Shri MSF Beig: W.P.(C) No.272/2012 decided on 20.11.2014 and it has been held that in such cases, the examining body cannot be compelled to disclose the question papers.
Accordingly, the present writ petition is allowed and the CIC's order directing the petitioner to provide copy of question papers or provide OMR sheets is rejected...."9
Now, taking reference of the judgment of the same Court in National Insurance Co. Ltd. v. Shri MSF Beig, (W.P.(C) No.272/2012), the following relevant portion is extracted:
"7. The exam conducted by NIA is essentially an exam for evaluating the candidates for promotion and to test their proficiency of the knowledge of the industry and the work involved.
8. I am inclined to accept that since the promotional exam is in a nature of trade test, the questions would be limited. In these circumstances, a disclosure of question papers along with the answer key (model answers) would inevitably place the entire question bank in public domain and thus, effectively reduce the efficacy of the tests."
The Commission here also finds it expedient to refer to a decision of the division bench of the Hon'ble Delhi High Court in the matter of All India Institute of Medical Sciences vs. Vikrant Bhuria, (LPA 487/2011) dated 28.05.2012 wherein the issue of disclosure of question papers finding its source from a limited question bank vis-à-vis the right to information was determined in a detailed manner as under:
"16.................................. if question papers are so disclosed, the possibility of the examination not resulting in the selection of the best candidate cannot be ruled out. It is pleaded that knowledge of the 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. It is also pleaded that setting up of such question papers besides intellectual efforts also entails expenditure. The possibility of appellant,in a given year cutting the said expenditure by picking up questions from its question bank is thus plausible and which factor was considered by the Supreme Court also in the judgment aforesaid.
17. We also need to remind ourselves of the line of the judgments of which reference may only be made to State of Tamil Nadu Vs. K. Shyam Sunder AIR 2011 SC 3470, The Bihar School Examination Board Vs. Subhas Chandra Sinha (1970) 1 SCC 648, The University of Mysore Vs. C. D. Govinda Rao AIR 1965 SC 491, Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh kumar Sheth (1984) 4 SCC 27 holding that the Courts should not interfere with such decisions of the academic authorities who are experts in their field. Once the experts of the appellant have taken a view that the disclosure of the question papers would compromise the selection process, we cannot lightly 10 interfere therewith. Reference in this regard may also be made to the recent dicta in Sanchit Bansal Vs. The Joint Admission Board (JAB) (2012) 1 SCC 157 observing that the process of evaluation and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and Courts will not interfere in such processes. (Emphasis Supplied)
18. We have in our judgment dated 24.05.2012 in LPA No.1090/2011 titled Central Board of Secondary Education Vs. Sh. Anil Kumar Kathpal, relying on the Institute of Chartered Accountants of India Vs. Shaunak H. Satya (2011) 8 SCC 781 held that in achieving the objective of transparency and accountability of the RTI Act, other equally important public interests including preservation of confidentiality of sensitive information are not to be ignored or sacrificed and that it has to be ensured that revelation of information in actual practice, does not harm or adversely affect other public interests including of preservation of confidentiality of sensitive information. Thus, disclosure of, marks which though existed, but were replaced by grades, was not allowed. Purposive, not literal interpretation of the RTI Act was advocated."
Following the aforesaid decision, the same Court in All India Institute of Medical Sciences vs. Prakash Singh, W.P.(C) 8916/2011, decided on 06.12.2012, set aside the decision of CIC to disclose the question papers and answer keys pertaining to the MBBS Entrance Examination. The relevant extract of the said decision is quoted below:-
"I am of the view that while, undoubtedly, the examination qua which information was being sought in All India Institute of Medical Sciences v. Vikrant Bhuria case pertains to a super specialty course, where seats were limited, that by itself did not form the basis of the conclusion reached by the Division Bench. The view taken by the Division Bench is based on the fact that there is limited number of questions available to the petitioner, and that if, this information is put out in public domain then, it would be difficult for the petitioners to select candidates on the basis of their analytical ability. In other words, the examinee may perhaps take to the rote route to qualify the examination.
The Division Bench has also observed that they would be loathe to interfere in areas where academicians, being experts, have expressed a view, to the effect that, disclosure of question papers and keys would compromise the selection process."11
Adverting to the catena of judgments as above, the Commission is of the considered opinion that the submissions of the CPIO in the instant case holds ground. Although, the maintainability of Section 8(1)(e) of the RTI Act has not been particularly examined in the facts of the instant case but ascribing a liberal interpretation by way of assuming a fiduciary liability existing between TISS authorities and the paper setters, invocation of Section 8(1)(e) of the RTI Act does not appear to be extraneous or out of place.
Having observed as above, no relief can be ordered in the matter.
However, the Commission deems the argument of the CPIO in hypothesising and questioning the intent of the Appellant/Complainant in seeking the information for commercial purposes as unwarranted and in violation of the provisions of the RTI Act. The CPIO is advised accordingly for future to desist from casting such aspersions on the RTI applicants in the future.
The Complaint & Appeal is disposed of accordingly.
Saroj Punhani(सरोजपुनहािन) Information Commissioner (सू सूचनाआयु ) Authenticated true copy (अिभ मािणतस"यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ,उप-पंजीयक दनांक / Date 12