Central Information Commission
Varun Garg vs University Of Delhi on 3 September, 2019
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
Decision no.: CIC/UODEL/A/2018/135006/01520
File no.: CIC/UODEL/A/2018/135006
In the matter of:
Varun Garg
... Appellant
VS
Central Public Information Officer,
University of Delhi Administrative Block,
Delhi-110007
... Respondent
RTI application filed on : 01/11/2017 CPIO replied on : 21/11/2017 First appeal filed on : 15/12/2017 First Appellate Authority order : Not on record Second Appeal dated : 15/05/2018 Date of Hearing : 15/07/2019, 25/07/2019 Date of Decision : 15/07/2019, 30/08/2019 The following were present: Appellant: Present in person alongwith Shashi
Respondent: Smt Meenakshi Sahay, Deputy Registrar and CPIO, present in person Information Sought:
The appellant has sought a copy of his evaluated answer sheet bearing Roll No 144731 of May, 2017 examination of paper no: LB 603, Subject: environment law L.LB course final year.
Grounds for Second Appeal The CPIO did not provide the desired information.1
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that he is not satisfied with the reply of the CPIO as the CPIO in her reply dated 21.11.2017 had informed the appellant about the process for getting a copy of the evaluated answer script and the requisite fee for getting a copy thereof as per there Notification No. CE/2Oll/193 wherein a charge of Rs 750/- is demanded from any applicant who wants to get a copy of his/her answer sheet. He further submitted that despite the fact that there are numerous Supreme Court judgments and CIC orders regarding this issue of demanding huge fees from the applicants for getting a copy of the evaluated answer script, the respondent authority by demanding an exorbitant fee has violated the principles laid down by such higher authorities and in such a case, maximum penalty u/s 20 of the RTI Act may be levied on the concerned CPIO and also the appellant may be adequately compensated for mental agony and harassment caused to him.
To substantiate his contentions, he cited a judgment of the Hon'ble Supreme Court in the case of CBSE Vs Aditya Bandhopadyay & Ors, Civil Appeal No. 6454/2011. The relevant para is reproduced below:
"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."
He also referred to the case Kumar Shanu & Anr Vs YSK Seshu Kumar, Chairman CBSE, Contempt Petition No. 9837/2016, wherein the following observations were made, "we dispose of this contempt petition by directing that the Central Board of Secondary Education(for short, 'the CBSE') shall scrupulously observe 2 File no.: CIC/UODEL/A/2018/135006 the directions of this Court in Civil Appeal No. 6454 of 2011 and the Rules framed under the Right to Information Act, 2005."
He further quoted the order passed by this Commission in File No. CIC/SA/C/2015/90116 dated 15.01.2016 wherein the following observations were made, "20.Similarly, as stated above access has to be given to students' answer scripts after declaration of results. Instead, the Delhi University is prescribing a time limit that until 60 days are exhausted, he cannot apply and after 75th day also he will be disqualified to seek copy of answer sheet. As per RTI Act and judgment of Hon'ble Supreme Court, after declaration of Results, the students are entitled to access the answer sheets also without any further limits. The only requirement is answer books should have been held by public authority. A student examinee cannot ask for a copy after the answer book was removed according to their record retention policy. Hence, imposing time limits such as, denying the RTI applications until 60 days after and beyond 75 days after declaration of results is also denial of RTI as they conflict with RTI Act.
31. Commission finds merit in contention of the student appellant that prescribing unreasonable cost and time constraint will in fact amount to complete denial of information to the students on grounds of their economic status, which is in violation of Article 14, 15 and 16 of the Constitution of India. No citizen shall be discriminated on the basis of his access to resources or any criteria including poverty as per his fundamental report to equality. It is very sad that educational institution like university is not mindful of the basic fact and they are going on denying information to the students, by imposing high cost, which means if you cannot afford, you cannot access. Thus, charging of Rs 750 per answer sheet will amount to breach of sections 3, 6 and 7 of the RTI Act.
Further, he reproduced the observation made by the Commission in File No. CIC/UODEL/A/2017/603074-BJ dated 18.06.2018 which is reproduced as under:
"Moreover, contention of the respondent that allowing inspection of answer sheet would cause hardship to the public authority in terms of maintaining two parallel systems for providing information, holds no merit 3 in view of the fact that timely access to information is the essence of the provisions of the RTI Act, 2005 and denial of information on such grounds could prejudice a student's future career prospects and right to his/her livelihood."
The CPIO submitted that after receipt of the relevant input from the Dean Examination/OSD Examination/ Assistant Controller of Examinations (Revaluation), an appropriate reply had been provided to the appellant on 21.11.2017. She further submitted that as per the Notification No. CE/2011/193 dated 1st November 2011 and duly approved by E.C vide Resolution No. 08(3) dated 03/05/2012, the appellant was advised to pay the requisite fee to get a copy of his evaluated answer sheet. She also stated that since the similar issue involving the matter of charging fees on answer scripts was pending decision before the Hon'ble Apex Court in the matter of Institute of Companies Secretaries of India Vs. Paras Jain C.A. No. 5665 of 2014, during its pendency, the concerned Section while following their existing rules directed the appellant to pay the relevant fees of Rs 750/- for getting the desired information.
She also stated that after receipt of the hearing notice from the Commission, the matter was once again examined and it was submitted that the desired information i.e. copy of the evaluated answer sheet of the appellant has not been weeded out so far and is still available with the examination Section and if the appellant so desires, he can get a copy of the same from the concerned section.
At this point, the appellant submitted that he does not want the desired information after such a long delay as its purpose has been defeated. She further submitted that since the matter of ICSI Vs Paras Jain has attained finality in the Apex Court, they are now following the principle laid down in the matter and are providing copies of answer sheets as per the Rules framed under the RTI Act. She also relied on various orders passed by the Commission where the procedure adopted by the University for providing answer script to the students was upheld. Some of such decisions are mentioned as under:
CIC/RM/A/2012000573 dated 02.05.2013.
CIC/DS/A/2012/000619/RM dated 26.04.2013.
CIC/RM/A/2012/000676 dated 14.05.2013.
CIC/RM/A/2012/000470/LS dated 10.05.2013.
CIC/RM/A/2012/000013/LS dated 13.05.2013.
CIC/RM/A/2012/000543/LS dated 24.06.2013.4
File no.: CIC/UODEL/A/2018/135006 CIC/RM/A/2014/004525/MP dated 22.05.2017.
Observations:
From a perusal of the relevant case records, it is noted that the right of candidate to access his own answer sheet by paying reasonable fee for his/her copy has been discussed in a plethora of cases wherein the Commission had upheld the right of students/candidates to access his/her own answer sheet by paying a charge of Rs 2/- per page under the RTI Act and has directed all the Universities/institutions to follow the RTI Act in relation to fee structure for providing the information. After the Hon'ble Supreme Court's decision dated 09.08.2011 in the case of CBSE vs. Aditya Bandopadhyay (Civil Appeal No. 6454 of 2011), specifically directing the Board to allow the examinee to inspect his answer books and having regard to the fact that the appellant had filed the RTI application seeking a copy of his evaluated answer script at the time when it was validly held by the public authority, the CPIO has flouted the Apex Court's decision which had attained finality and was binding on the University as well, without any reasonable justification and the plea of the CPIO that another similar matter was pending before the same Court cannot be sustained. The relevant para of the judgment has been already quoted by the appellant in the preceding paras.
Moreover in a recent matter before the Apex Court in Kumar Shanu and Anr. vs CBSE in Contempt Petition (Civil) No. 1255/2018 in Civil Appeal No. 6454/2011 dated 29.10.2018, the CBSE in its affidavit dated 24.10.2018 had stated that "for furnishing photocopies of the answer sheets fee as per the provisions of the Right to Information Act, 2005 and Rules is being charged whereas if re-verification/ re-valuation/ re-totalling/ re-checking of the answer sheets/ scripts alongwith the photocopies thereof is sought fee as per the CBSE Regulations is charged."
The Commission also notes the fact that the Delhi University has its separate set of Rules under RTI Act which does not seem to be followed in this case. In its own Manual No. 17, as per Section 4(1)(b)(xvii) on page 26, it is stated:
"For providing the information under sub-section (1) of section 7, the fee shall be charged by way of cash against proper receipt or by demand draft 5 or bankers cheque or Indian Postal Order payable to the Registrar, University of Delhi at the following rates:-
(a) rupees two for each page (in A4 or A3 size paper) created or copied;
(b) actual charges or cost price of a copy in larger size paper;
(c) actual cost or price for samples or models; and
(d) for inspection of records, no fee for the first hour; and a fee of rupees five for each subsequent hour (or fraction thereof.)........"
The above Rules of the University are in conformity with the RTI(Regulation of Fee and Cost)Rules, 2005, but the respondent authority in the instant case has not applied these Rules. It appears that there is no definite Rule followed by them as in some cases they follow RTI rules by charging Rs 2 per page for providing a copy of answer sheets and in some cases they charge an amount of Rs 750/- per answer book from a student.
At his point, the Commission quotes verbatim the observation made by a coordinate Bench in the matter of Abne Ingty Vs University Of Delhi, File No. CIC/SA/C/2015/11056 dated 15.01.2016, wherein it has been held:
18. Imposing time and cost constraints over and above the norms prescribed by RTI Act and Rules and charging Rs 750 per paper, which far more than Rs 2 for copy per page (as prescribed) will impose economic burden on a student. It is an additional burden on student, who has already paid an examination fee to the University, which sufficiently must have been calculated to meet the expenditure to conduct examination including the cost of evaluation. This is a huge amount over and above the fee collected, for recounting and re−evaluation. After paying tuition fee, admission fee, examination fee, the student is asked to pay Rs 3750 for copies of answer scripts in five papers. It is not end of the problem. He has to pay Rs 300 per paper for re−checking and Rs 500 per paper for re−evaluation. As per RTI Act this Commission has no power to interfere with the general fee structure of the University, but RTI Act has given power and authority to the Commission to prevent denial of access to his own answer sheet by public authority through this way of imposing unreasonable cost and time constraints. Charging so high a fee/cost will not only deny the accessibility, but also immunize the public authority from being accountable to students. The resultant situation is: If a student cannot pay Rs 750, the Delhi University will become not accountable for its evaluation! This is against objective and scheme of RTI Act.6
File no.: CIC/UODEL/A/2018/135006
19. Evaluated answer−book is 'information' as defined under RTI Act and as explained by Hon'ble Supreme Court of India. In a petition under RTI, the students can seek only for a certified copy of their own answer sheet, but cannot demand re−evaluation etc, for which one has to necessarily approach university authorities, pay fee whatever prescribed and follow the prescribed procedure. University need not give access to answer sheets before declaration of results.
It is also brought to the notice of the CPIO that the issue of charging fees on answer scripts had been settled way before and time and again it has been laid down that when an applicant seeks a copy of his answer sheet under the provisions of the RTI Act, the concerned authority has to follow the Rules made thereunder and charge accordingly. The Commission on this point also relies on a recent observation made by the Hon'ble Supreme Court in the case of ISCI Vs Paras Jain, C.A. No. 5665/2014, dated 11.04.2019 which is relied by the CPIO herself. The relevant para is extracted below:
"Be that as it may, Guideline No. 3 of the Appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the Appellant, then the Appellant is at liberty to charge the candidates as per its guidelines."
With regard to the Orders of the Commission which have been referred to by the CPIO during the hearing, it is noted in most of these cases, the appellant has remained absent and hence the order was passed based on the submissions of the respondent only and secondly, the desired information had been already provided to the appellant and hence the facts in those cases and the present case are totally different and cannot be applied in this matter.
Interim Decision:
7In view of the above observations and the judicial dicta passed in various judgments as mentioned, the Commission agrees with the contention of the appellant that the CPIO has not only flouted the provisions of the RTI Act but has also disregarded the various judgements of the Hon'ble Apex Court and also of the Commission. The Commission accordingly directs the CPIO & the then deemed PIO who had replied to the above mentioned RTI application to show cause why maximum penalty should not be imposed against them for demanding unreasonably high charges for the copy of the answer-sheet in breach of the RTI Rules and also Delhi University Manual which does not allow him to charge more than Rs 2 per page. The Commission directs the CPIO & the then deemed PIO to appear before the bench on 25.07.2019 at 01.45 pm to show cause as to why action should not be initiated against her under Section 20(1) and (2) of the RTI Act. The CPIO is also directed to send a copy of all supporting documents upon which she chooses to rely during the hearing. The said documents be sent to the Commission atleast two days prior to the hearing via link-paper. The CPIO shall serve a copy of this order on the deemed PIOs to direct their presence before the bench as well.
The case is accordingly adjourned.
Final Hearing : 25/07/2019 The following were present:
Respondent: Smt Meenakshi Sahay, Deputy Registrar and CPIO Shri Rajiv Saini and Shri Hem Chand Pandey, all present in person.
Submissions made by the Respondent during Hearing:
In response to the show-cause notice issued by the Commission, the CPIO during the hearing and also in her written submissions dated 30.07.2019 submitted the chain of events as under:
1. That The Original Application no. 2116/2017 dated 10.10.2017, received in the Information Section of the University on 03.11.2017, was decided by the CPIO on 21.11.2017 based on the input provided by the deemed PIO.
2. In the response indicated above, the relevant information in the form of the details of the policy of suo-moto declaration of Evaluated Answer Scripts by 8 File no.: CIC/UODEL/A/2018/135006 the University and the process for obtaining the same by the appellant was provided. He was also provided the opportunity to obtain his evaluated answer script by contacting the Assistant Registrar (Revaluation) of the University, the concerned deemed PIO in this matter. Accordingly, the CPIO or the deemed PIO provided the relevant information and did not deny, the appellant, access to his Evaluated Answer Script. This response was in compliance to the judgement of the Hon'ble Supreme Court in the case of CBSE Vs Aditya Bandopadhyay & Ors, Civil Appeal No.6454/2011.
3. That the appellant, however, did not avail the opportunity to obtain his Evaluated Answer Script in pursuance of this decision.
4. The appellant then preferred First Appeal on 29.12.2017, which was decided and communicated to the Appellant on 23.02.2018, wherein the First Appellant Authority clearly and unequivocally mentioned in his decision that the CPIO has decided the matter "as per the only procedure of the University for obtaining answer scripts". He was again provided the opportunity to obtain his Evaluated Answer Script through this procedure only. The decision of the First Appellate Authority clearly indicates that the University does not have any separate mechanism to disclose Evaluated Answer Script to the students as and when demanded by them.
5. The First Appellate Authority, while deciding the matter under reference vividly referred to as many as 07 decisions of this Commission only, which clearly and unequivocally, upheld the decisions taken by the University from time to time. Therefore, it is again submitted that adequate opportunity was provided to the appellant to obtain his evaluated answer script but he did not avail the opportunity on his own volition.
6. By the time, the Second Appeal was heard, the decision in Institute of Companies Secretaries of India Versus Paras Jain (Civil Appeal No. 5665/2014) dated 11.04.2019 was pronounced by the Hon'ble Supreme Court. The Hon'ble Supreme Court, in this case, was considering the matter as to whether the public authorities could prescribe the fees for providing answer scripts or not. Since the matter was settled by this judgement, during the submissions on 15.07.2019, the CPIO submitted that the University had now started providing the Evaluated Answer Scripts as per the fee applicable under RTI in case the appellant applies for the same under RTI. Accordingly, it was further submitted 9 that the appellant could accordingly be provided the copy of his Evaluated Answer Script now.
7. She further submitted that there are plethora of judgements in this respect to indicate that the evaluated answer scripts can be provided only to the examinee and is personal to the examinee concerned and therefore, covered by section 8(1)(j) of the RTI Act vis-à-vis any other person. Therefore, the answer script could be provided only to the appellant after due verification, it could not have been sent through post in view of the sensitivity and confidentiality attached to the document.
Further, in order to indicate that the action of the deemed PIO and CPIO were bonafide and in accordance with the prevalent norms as set out by the Court decisions, the policy of the University and the decisions of the Hon'ble Central Information Commission, the following submissions were made:
She submitted that the fact that a show-cause notice was issued to officers of the University, who by virtue of their appointment are required to follow the executive orders of the appointing authority, fails to acknowledge the subservient stature of the officers vis-à-vis the public authority, which is the appointing authority of these officers. To substantiate his fact, she relied on the dicta in the oft quoted decision of the United States Supreme Court in Taylor vs. Taylor (1875) 1 Ch.D 426, wherein it has been held:
"It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all."
Accordingly, the CPIO and the deemed PIOs were only carrying out the process in the manner it was prescribed by their appointing authority. She again relied on the judgement of the Hon'ble Supreme Court in the case of CBSE Vs Aditya Bandopadhyay & Ors, Civil Appeal No.6454/2011, whereby for the first time right to access the Evaluated Answer Scripts was provided to the examinees.
She reiterated Para 34 of the above quoted judgment to indicate that the University's policy of suo-moto disclosure of Evaluated Answer Script was in consonance with the interpretation of the Courts. The relevant para is reproduced below:
10File no.: CIC/UODEL/A/2018/135006 "34. ...the expression held by or under the control of any public authority, in relation to information, means that information which is held by the public authority under its control to the exclusion of others. It cannot mean that information which the public authority has already let go, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfilment of the prescribed conditions. This is so, because in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority holds or controls the same. In fact, the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information."
Further, she quoted several orders of the Commission to substantiate that the CPIO and the deemed PIOs acted in a bonafide manner in consonance with the court decisions and their interpretations by the Hon'ble Commission that set the level playing ground for the concerned officers of the University in this respect. The orders are mentioned as under:
In decision no. CIC/RM/A/2012/000573 dated 02.05.2013, it has been held that information, in respect of which there is a statutory mechanism evolved (independent of the RTI Act) which obliges the Public Authority to share with the same with the citizenry by following the prescribed procedures, and upon fulfilment of the prescribed conditions, cannot be said to be information which 'is held by or under the control of any Public Authority'.
In another decision no. CIC/DS/A/2012/000619/RM dated 26.04.2013, the Hon'ble Information Commissioner has categorically mentioned that Delhi University framed rules in compliance of the judgment of the Hon'ble Supreme Court of India in Aditya Bandopadhyay's case and upheld the Delhi University Notification as a procedure of obtaining copy of evaluated answer script from the University.11
Accordingly, it was humbly submitted that while responding to the instant Original Application, the reliance was on the mode of dissemination as per Section 4, as interpreted in the decisions quoted above, with the presumption that the information was not 'held' by the public authority under its control to the exclusion of others and had already been 'let go' and therefore the fee as prescribed in Manual 17 (referred in the instant interim decision), which is the same prescribed as per the RTI (Regulation of Fee and Cost) Rules, shall not apply. The fee prescribed under Manual 17 was understood to apply only to the information 'held' by the public authority under its control to the exclusion of others.
Further, she stated that in the decision in Appeal No. CIC/UODEL/A/2017/111788/MP and Appeal No. CIC/UODEL/A/2017/170496/MP, the Ld. Information Commissioner acknowledged that the issue of charging of fees by public authority as per its regulations was also under consideration of the Supreme Court. To quote the relevant para:
5. On hearing both the parties and perusing the available records, the Commission observes that the matter regarding whether or not Section 22 of the RTI Act, 2005, overrides the University's bye-
laws/rules/regulations involves the issue, "whether executive instruction, issued in violation of the statutory rules under the RTI Act, 2005 could override the statutory rule". In this context, the Commission noted that similar issues involving the matter of charging fees on answer scripts as per executive instruction has been pending before the Division Bench of Hon'ble Supreme Court of India in the case of ICSI v. Paras Jain, SLP (C)No. 12692/2014. The Hon'ble court, vide order dated 09.05.2014, had stayed the judgment of Hon'ble High Court of Delhi in LPA. 275/2014 dated 26.04.2014wherein, the demand of the respondents from the petitioner to pay a fee of Rs. 500/-per subject/answer book copy was held not to be sustainable and the High Court declared that the appellant shall be charged fee as per Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005, for obtaining the copy of answer sheets. The full bench of this Commission in the case of ShriJugal Kishorevs.
University of Delhi (File No. CIC/RM/A/2012/000512/LS,CIC/RM/A/2012/000540/LS, decision dated 12 File no.: CIC/UODEL/A/2018/135006 29.05.2014) is also of the view that no decision can be given by this Commission until the matter in question is decided by the Hon'ble Court. In view of the above, it is in the interest of justice to adjourn the matter till the relevant principle i.e., whether the public authority is entitled to fix charges for supplying copies of answer sheets sought for by RTI seekers, is finally settled by the Hon'ble Apex Court. Thus, as far as the points 1 to 5 of the appellant's RTI application is concerned, he is at liberty to agitate the matter before the Commission again after final pronouncement of judgment by the Hon'ble Supreme Court of India in this regard, if he so desires.
It was also submitted that the University in compliance with the decision of the Supreme Court in Paras Jain Vs. Institute Of Companies had started providing answer scripts under RTI, if the appellant sought the script under the RTI Act. She humbly prayed that all these facts may be taken into consideration to ascertain that there was no malafide on the part of the deemed PIO and the CPIO to deny the sought for information to the appellant.
The deemed PIO, Shri Rajiv Saini, Assistant Registrar, Revaluation & Shri Hem Chand Pandey in their submissions also submitted that under the response to the RTI query, the CPIO was informed that as per the extant rule of the University, the student can obtain the photocopy of his/her answer scripts between 61st to 75th day of uploading of result on university website. As the Assistant Registrar is bound to follow the rules and regulations of the University and to work within the defined boundaries of such rules, he was not supposed to exceed his powers and act against the dictates of the Executive Council, the top Executive decision making body of the University. The Assistant Registrar(Revaluation) was not instructed by his superior officers to supply the copy of the Answer script of the applicant under the provisions of the RTI Act. He also brought it to the notice of the Commission that it has never been at the disposal of the Assistant Registrar(Revaluation) to decide the fee to be charged for supplying copy of the Answer Script. He would have supplied the copy of the Answer Script under the provisions of the RTI Act, had he been given the instructions in this regard by his superiors. Hence, he never intended to block the supply of the desired information to the applicant.
13Observation:
Considering the submissions, both oral & written of the CPIO & the deemed PIO's, it is noted that although the action of the CPIO & the deemed PIO not to provide a copy of the answer sheet to the appellant and rather directing him to follow the University Rules for obtaining the same, is clearly against the provisions of the RTI Act. However, it was submitted that it is the complete prerogative of the higher authorities to decide the fee to be charged for supplying copy of the Answer Script. They had clearly followed the instructions of their higher authorities to provide a copy of the answer sheet only as per the University prescribed procedure as the PIO's role was limited to following the instructions of such authorities. The PIOs also explained that since in several cases, the Commission itself had upheld the University Rules for providing a copy of the answer sheet, they were under the impression that their action is as per the mandated provisions of the RTI Act and also in consonance with the various decisions of the Commission.
The Commission in the present case is unable to attribute any malafide intent on the part of the CPIO to justify imposition of penalty on her. At 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 14 File no.: CIC/UODEL/A/2018/135006 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."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely. ......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
However it is a fact that without application of mind, the CPIO had merely forwarded the reply of the deemed PIOs to the appellant rather than reconsidering the fact that under the RTI Act she was supposed to provide information to the appellant as per the Act only and not to direct the appellant to follow some other University Rules. She could have discussed the matter with the deemed PIOs and also with the higher authorities of the University, even if she had the slightest doubt regarding the issue under consideration. It is brought to the notice of the CPIO that under the RTI Act, a CPIO/PIO is not merely supposed to act as a post office, where her duty is reduced to forwarding of the RTI applications only and sending replies in a routine manner without application of mind .. There must at all times be an application of mind and a close scrutiny of the application alongwith the reply received 15 from any other officer/CPIO to ensure that a proper reply as per the RTI Act is being provided in each and every case.
In this regard, reliance is placed on the judgment of the Hon'ble High Court of Delhi in J.P. Agrawal vs. Union of India (UOI) and Ors, W.P. (C) 7232/2009, wherein following observation has been made:
7. Section 4 of the Act obliges every public authority to publish inter alia the particulars of facilities available to citizens for obtaining information and the names, designations and other particulars of the PIOs. Section 5 requires the public authorities to designate PIO to provide information to persons requesting for information under the Act. Such PIOs, under Section 5(2) of the Act are to receive applications for information and under Section 5(3) of the Act are to deal with request from persons seeking information and render reasonable assistance to the information seekers. The Act having required the PIOs to "deal with" the request for information and to "render reasonable assistance" to the information seekers, cannot be said to have intended the PIOs to be merely Post Offices as the petitioner would contend. The expression "deal with", in Karen Lambert Vs. London Borough of Southwark (2003) EWHC 2121 (Admin) was held to include everything right from receipt of the application till the issue of decision thereon. Under Section 6(1) and 7(1) of the RTI Act, it is the PIO to whom the application is submitted and it is he who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information, the PIO is expected to recommend a remedial action to be taken. The RTI Act makes the PIO the pivot for enforcing the implementation of the Act.
8. Even otherwise, the very requirement of designation of a PIO entails vesting the responsibility for providing information on the said PIO. As has been noticed above, penalty has been imposed on the petitioner not for the reason of delay which the petitioner is attributing to respondent no.4 but for the reason of the petitioner having acted merely as a Post Office, pushing the application for information received, to the respondent no.4 and forwarding the reply received from the respondent no.4 to the information seeker, without himself "dealing" with the application and/or 16 File no.: CIC/UODEL/A/2018/135006 "rendering any assistance" to the information seeker. The CIC has found that the information furnished by the respondent no.4 and/or his department and/or his administrative unit was not what was sought and that the petitioner as PIO, without applying his mind merely forwarded the same to the information seeker. Again, as aforesaid the petitioner has not been able to urge any ground on this aspect. The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure. A responsible officer cannot escape his responsibility by saying that he depends on the work of his subordinates. The PIO has to apply his own mind independently and take the appropriate decision and cannot blindly approve / forward what his subordinates have done.
9. This Court in Mujibur Rehman Vs. Central Information Commission MANU/DE/0542/2009 held that information seekers are to be furnished what they ask for and are not to be driven away through filibustering tactics and it is to ensure a culture of information disclosure that penalty provisions have been provided in the RTI Act. The Act has conferred the duty to ensure compliance on the PIO. This Court in Vivek Mittal Vs. B.P. Srivastava MANU/DE/4315/2009 held that a PIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information; that the Act as framed casts obligation upon the PIO to ensure that the provisions of the Act are fully complied. Even otherwise, the settled position in law is that an officer entrusted with the duty is not to act mechanically. The Supreme Court as far back as in Secretary, Haila Kandi Bar Association Vs. State of Assam 1995 Supp. (3) SCC 736 reminded the high ranking officers generally, not to mechanically forward the information collected through subordinates. The RTI Act has placed confidence in the objectivity of a person appointed as the PIO and when the PIO mechanically forwards the report of his subordinates, he betrays a casual approach shaking the confidence placed in him and duties the probative value of his position and the report.
The explanation by the deemed PIOs is also accepted to the extent that they are not the authority to decide the fee to be charged for supplying a copy of the Answer Script. Had he been given the instructions in this regard by his 17 superiors, he would have followed them without any question as was done by him earlier also. Hence, there was no malafide intention on his part to block the supply of the desired information to the applicant.
Decision:
Based on the above observations and court decisions, the Commission is unable to attribute any malafide intent on the conduct of the CPIO & the deemed PIOs, in not providing the desired information to the appellant and is therefore taking a lenient view in the matter. The information not supplied was for reasons that there were several CIC orders in which the Rules for providing a copy of the University Rules has been upheld. Hence, the show cause proceedings initiated against her are dropped.
However, it is once again brought to the notice of the respondent authority that this issue has attained finality now in the matter of Paras Jain Vs Institute of Companies, dated 15.07.2019 wherein the Hon'ble Supreme Court has made following observation, "Be that as it may, Guideline No. 3 of the Appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the Appellant, then the Appellant is at liberty to charge the candidates as per its guidelines."
The CPIO is directed to remain extremely careful while handling RTI applications and in case such a lapse is again repeated, the Commission will be constrained to impose penalty under Section 20 of the RTI Act.
The show-cause proceeding is accordingly closed.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) 18 File no.: CIC/UODEL/A/2018/135006 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 19