Central Information Commission
Divya Verma vs Department Of Posts on 12 February, 2021
Author: Uday Mahurkar
Bench: Uday Mahurkar
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीयअपीलसंख्या / Second Appeal No.:- CIC/POSTS/A/2019/600510-UM
Ms. Divya Verma,
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO,
O/o DIRECTORATE, ACAO (COMPUTER)
DEPARTMENT OF POSTS, DAK BHAWAN,
NEW DELHI - 110001
प्रनतवािीगण /Respondent
Date of Hearing : 11.02.2021
Date of Decision : 12.02.2021
Date of RTI application 18.10.2018
CPIO's response 15.11.2018
Date of the First Appeal 17.11.2018
First Appellate Authority's response 27.12.2018
Second Appeal dated 05.01.2019
ORDER
FACTS The Appellant vide her RTI application sought information on 04 points:
Page 1 of 8The CPIO, Deptt. of Posts, vide letter dated 15.11.2018 denied disclosure of information stating that the answer sheets cannot be revealed as per Hon'ble Supreme Court judgment pronounced in the matter of UPSC vs. Angesh Kumar, Feb 2018 and for point 02 & 03, that no such information is available with the CPIO and for point 04, that the arrangements are under process for communicating the marks. Dissatisfied with the reply received from the PIO, the Appellant filed a First Appeal. The FAA, vide order dated 27.12.2018 informed the appellant on point no. 3 that sending information on marks through SMS to all the candidates is already in process. Further, on Point nos. 1 & 2 the FAA, upheld the reply of CPIO. Thereafter, the Appellant filed a Second Appeal before the Commission with a request to provide correct and complete information.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Ms. Divya Verma through VC;
Respondent: Shree Ram, Director and Mr. Amit Tripathi, AO, Postal Accounts Wing in person;
The Appellant reiterated the contents of the RTI application and submitted that the information sought relating to her own answer sheets were wrongly denied by the CPIO / FAA. The Appellant further submitted that the judgment quoted by the CPIO (in the matter of UPSC vs. Angesh Kumar, in Civil Appeal No. (s) 6159-6162 of 2013) is applicable for Open Market competition and not for departmental examination. Moreover, the AAO is purely a LDCE Examination like PSS Grade B Exam, IPO Exam, etc. Furthermore, she submitted that in every departmental examination there is clear provision for providing photocopies of own answer sheet on chargeable basis. Therefore, the information sought pertaining to her own answer sheet should be furnished to her. With regard to Appellant's own answer sheet, the Respondent present during the hearing submitted that the competent authority has directed to file the appeal before Hon'ble High Court of Delhi against the decision of the Commission dated 04.12.2020 wherein direction was passed for disclosure of answer sheet in the case of Shri Srijith K Kamath. On being queried by the Commission regarding reasons for denial of Appellant's own answer sheet to her, no cogent response was offered by the Respondent and he again reiterated its written submission regarding filing of Appeal before the Hon'ble High Court. The Respondent further relied on its written submission.Page 2 of 8
The Commission was in receipt of a written submission from the Respondent dated 09.02.2021 wherein para-wise reply is furnished as under:
1. (a). As per the judgment of Hon'ble Supreme Court in the matter of UPSC vs. Angesh Kumar, in Civil Appeal No. (s) 6159-6162 of 2013 answer sheet cannot be revealed.
(b). Further, Hon'ble CIC has directed the CPIO in the case of Sh. Srijith K. Kamath to provide his answer sheet vide order dated 04.12.2020.
(c). The Competent Authority has directed to file the appeal before Hon'ble High Court of Delhi. The necessary instructions for filing the appeal have been sent to the Dept of Legal Affairs &Incharge (Lit). HC section High Court of Delhi vide their office letter dated 06.01.2021.
(d). The DoP is pursuing with litigation Cell of Hon'ble High Court of Delhi. The outcome of the case will be submitted to the Commission as and when the same is received.
2. The information sought relates to a third party information, hence cannot be provided.
3. Pursuant to the decision of Hon'ble CIC dated 24.11.2020, the information shall be disclosed only after completion of the whole process of LDCE. 2018 for AAO.
4. As regards the information sought on point no. 4 of the RTI Application relating to her own marks, the information sought was provided accordingly.
The Commission at the outset observed that the issue of access of his / her own answer sheet by a candidate had been long settled. The Hon'ble Supreme Court in the matter of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP (C) No. 7526/2009 decision dated 9th August, 2011 observed that every examinee will have the right to access his evaluated answer-books, by either inspecting them or taking certified copies thereof unless the same was exempted under Section 8 (1) (e) of the RTI Act, 2005. The relevant observations made in the judgment are as under:
"11. The definition of 'information' in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term 'record' is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the 'opinion' of the Page 3 of 8 examiner. Therefore the evaluated answer-book is also an 'information' under the RTI Act."
It was furthermore stated in Para 14 of the above-mentioned judgment "The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are 'information' held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub section (1) of section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act."
It was furthermore stated in Para 18 of the above mentioned judgment "In these cases, the High Court has rightly denied the prayer for reevaluation of answer- books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore the question whether reevaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them and entitles them to have access to the answer- books as 'information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye- laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following Page 4 of 8 the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof."
The aforesaid decision of the Hon'ble Supreme Court of India CBSE and Anr. V. Aditya Bandopadhyay was further relied in the decision pronounced on 16.08.2016 by the Hon'ble Supreme Court of India in Kumar Shanu and Anr. V. CBSE in I.A. No. 01/2016 in Contempt Petition No. 9837/2016 Civil Appeal NO.6454/2011.
The Commission also referred to several other decisions pertaining to disclosure of a candidate's own answer script. The Hon'ble High Court of Delhi in the matter of Treesha Irish vs. CPIO and Ors., WP (C) No. 6352 of 2006 dated 30.08.2010 while deciding that a candidate was entitled to his own answer sheet had held as under:
21...................... The valued answer paper, if at all, can be personal information relating to the candidate who has written the same. When the candidate applies for copy of the same, it cannot be denied to the candidate on the ground that it is personal information, insofar as, if that information would compromise anybody, it is the candidate himself/herself. The conduct of the examination for selection to the post of Last Grade officials is certainly a public activity and therefore the valuation of answer papers of that examination has relationship to a public activity of the department in the matter of selection to a higher post. A candidate writing an examination has a right to have his answer paper valued correctly and he has a right to know whether the same has been done properly and correctly. Both the public authority and the examiner have a public duty to get the valuation done correctly and properly, which is a public activity and duty. Therefore the supply of the copy of the answer paper, which is for enabling the candidate to ascertain whether the valuation of the answer paper has been done correctly and properly, has relationship to a public activity or interest.
23. There is no provision anywhere in the Act to the effect that information can be refused to be disclosed if no public interest is involved. Of course in a case of personal information, if it has no relationship with any public activity or interest, the information officer has discretion to refuse to disclose the same, if the larger public interest does not justify disclosure of such information. But on the ground of lack of public interest involved alone, the public information officer cannot refuse to disclose the information, without a finding first that the information is personal information having no relationship to any public activity or interest. I am at a loss to understand how disclosure of the valued answer paper would compromise the fairness and impartiality of the selection process. If at all, it would only enhance the fairness and impartiality of the selection process by holding out to Page 5 of 8 the candidates that anybody can ascertain the fairness and impartiality by examining the valued answer papers. In fact, an ideal situation would be to furnish a copy of the answer paper along with the mark lists of the candidates so that they can satisfy themselves that the answer papers have been valued properly and they secured the marks they deserved for the answers written by them. Therefore the reason given in Ext P3, by the 1st respondent, is patently unsustainable."
Moreover, the Hon'ble High Court of Delhi in the matter of SBI vs. Mohd. Sahjahan LPA 714/2010 dated 09.05.2017 had held as under:
11. In the case in hand, the examiner has returned the answer books to the SBI after completion of the examination. In the light of the principles laid down in Central Board of Secondary Education v Aditya Bandopadhyay the examining body (the SBI in this case) does not hold the evaluated answer sheets (in the written exam) or the assessment sheet of the interview in a fiduciary relationship, qua the examiner/member of the interview board.
Furthermore, in a recent decision in the matter of Mradul Mishra vs. Chairman, U.P. Public Service Commission and Ors., Civil Appeal No. 6723 of 2018 (Arising Out of SLP No. 33006 of 2017) dated 16.07.2018, the Hon'ble Supreme Court of India had while deciding the issue as to whether the Appellant is entitled to see the answer sheets of the examination in which he participated, held as under:
"14. In our opinion, permitting a candidate to inspect the answer sheet does not involve any public interest nor does it affect the efficient operation of the Government. There are issues of confidentiality and disclosure of sensitive information that may arise, but those have already been taken care of in the case of Aditya Bandopadhyay where it has categorically been held that the identity of the examiner cannot be disclosed for reasons of confidentiality.
15. That being the position, we have no doubt that the Appellant is entitled to inspect the answer sheets. Accordingly, we direct the Respondent - U.P. Public Service Commission to fix the date, time and place where the Appellant can come and inspect the answer sheet within four weeks."
The Commission also felt that issue under consideration involved Larger Public Interest affecting the fate of all the students / candidates who wish to obtain information regarding their own answer sheet/ marks obtained by them which would understandably have a bearing on their future career prospects which in turn would ostensibly affect their right to life and livelihood. Hence, allowing inspection of their own answer sheet to the students / candidates ought to be allowed as per the provisions of the RTI Act, 2005.
Page 6 of 8DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above pertaining to the right of a candidate to seek his / her own answer sheet/ marks obtained by him/ her, the Commission directs the First Appellate Authority, D/o Posts, to furnish a copy of her answer sheets to the Appellant as sought in the RTI application under point no. 01, within a period of 15 days from the date of receipt of this order. The action taken in this matter should be intimated to the Commission, as well. The Commission further observed that a suitable response has been furnished on points 02, 03 and 04 of the RTI application to the Appellant by the CPIO as per the provisions of the RTI Act, 2005 hence no intervention of the Commission is required on these three points.
The Commission further instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed with the above direction.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत एवं सत्यानपत प्रनत) (R. K. Rao) (आर.के . राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 12.02.2021 Page 7 of 8 Copy to:
1. ADG (PA Admin) and FAA, Department of Post, P A Wing, 4th Floor, Dak Bhawan, Sansad Marg, New Delhi - 110 001 Page 8 of 8