Central Information Commission
Rajan Srivastava vs University Of Allahabad on 10 September, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/UOALD/A/2017/141939-BJ
Mr. Rajan Srivastava,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Central University of Allahabad,
Senate House, Allahabad 211002
... ितवादीगण /Respondent
Date of Hearing : 07.09.2018
Date of Decision : 10.09.2018
Date of RTI application 18.01.2017
CPIO's response Not on record
Date of the First Appeal 17.03.2017
First Appellate Authority's response Not on record
Date of diarised receipt of Appeal by the Commission 20.06.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the marks secured by one Ms. Shipra Srivastava in BA Part 1, Part 2 and Part 3 examination.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Rajan Srivastava through VC;
Respondent: Dr. Shailendra Kumar Mishra, CPIO/Asst. Professor through VC;
The Appellant reiterated the contents of his RTI application and stated that no reply was received till the date of receipt of the notice of hearing for the instant hearing. While referring to the reply dated 30.08.2018, the Appellant submitted that in the said communication he had been wrongly Page 1 of 6 intimated that the information was provided only to the office/ institution seeking the information after payment of Rs. 500/- per candidate and that as per the provisions of the RTI Act, 2005 he was entitled to the know the marks secured by a candidate in the examination. In its reply, the Respondent while elaborating on the Administrative constraints stated that the said RTI application was filed online and was never received by their office. Furthermore, online applications could only be accessed through the email id and password of the Nodal CPIO i.e. the Registrar and that none of the Registrars appointed during the last 02 years had provided him access to the e-mail id and password resulting in protracted delay in replying to the RTI applications/ First Appeal. It was also submitted that subsequent to receipt of the notice of hearing, they had provided a response to the Appellant dated 30.08.2018 informing him that as per the procedure devised by the Executive Council, information was provided only to the office/ institution seeking information on payment of a Bank Draft of Rs. 500/- per candidate in favour of the Controller of Examination, University of Allahabad, Payable at Allahabad. The Commission was in receipt of a written submission from the Respondent dated 30.08.2018, wherein it was stated that he came to know about the matter on 29.08.2018. While stating that they had no facility to access online application, it was stated that the same were received by the Nodal Officer who had been assigned email address and password and undertaken training by DoPT but inspite of repeated requests both verbal and in writing neither any Online application was forwarded nor e-mail id and password was shared till date. Another point was that in almost two years time the University of Allahabad had seen several changes at higher level and that in roughly every 4-5 months time a new Registrar assumes office. One such Registrar/ FAA Col. Hitesh Lav tried to streamline the situation but since then a Senior Professor had taken charge of Registrar/ FAA alongwith other portfolios of Director Admissions, Controller of Examination and Head in his department as well. For timely disposal of RTI, all the related CPIOs of the Constituent Colleges, department, sections and units were requested to provide their email IDs but very few of them could provide their emails and those who had done so hardly access their email and respond. Moreover, there was no manpower and a meagre infrastructure in the office to review the progress of almost 1700 RTI applications received per year. Of the 1700 applications, 1200 were related with inspection of examination answer sheets. While disposing such RTI applications a huge and tedious process was followed right from forwarding these applications to concerned custodians to communicating with various heads of departments, concerned officials as well as each and every applicant and coordinate between all of them before and during the copy inspection. This had become a routine activity in the University as examination were being held regularly throughout the year. He expressed infrastructural and administrative constraints in providing information as also the inaccessibility of online RTI applications. It was alleged that the FAA failed to provide any cooperation and exhibited several limitations experienced by him.
The Commission at the outset referred to the decision of 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 a personal information relating to the candidate who has written the same. When the candidate applies for copy Page 2 of 6 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 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."
The Commission in this context also refers to several decisions pertaining to disclosure of a candidate's own answer script. The Hon'ble Supreme Court of India in the decision of CBSE v. Aditya Bandopadhyay and Ors. SLP(C) NO. 7526/2009 had observed the following in para 11:
"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 examiner. Therefore the evaluated answer-book is also an 'information' under the RTI Act."Page 3 of 6
It was furthermore stated in para 14 of the above mentioned judgement "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."
The aforesaid decision of the Hon'ble Supreme Court of India CBSE and Anr. V. Aditya Bandopadhyay was further relied in the judgment 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. Moreover, the Commission felt that issues of Larger Public Interest affecting selection of meritorious candidates through a fair and transparent selection process were raised by the Appellant during the course of hearing, hence disclosure of information was warranted.
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.
The Commission however observed that the Respondent in the present instance was charging a fee of Rs. 500/- for verification of academic credentials whereas the Appellant desired that provisions of RTI Act, 2005 ought to prevail over the rules/ regulations framed by the Institute. The Commission noted that similar issues relating to the matter of charging fees on answer scripts as per rules of university/ institute vis a vis' the rules under the RTI Act, 2005 was pending final adjudication before the Hon'ble Supreme in ICSI v. Paras Jain, SLP (C) No. 12692/2014 wherein the Hon'ble Court vide its order dated 09/05/2014 had stayed the judgment of Hon'ble High Court of Delhi in LPA. 275/2014 dated 26/04/2014. In its hearing dated 10.05.2018, the Hon'ble Supreme Court directed to list the matter on 16.05.2018. The judgment of the Hon'ble Supreme Court, as and when pronounced, shall be complied with accordingly.
Furthermore, the High Court of Delhi in a similar the matter of University of Delhi vs. Abner Ignity W.P. (C) 1873/2016 dated 10.08.2017 had set aside the decision of the Commission with the observation Page 4 of 6 "the decision of the CIC cannot be sustained. The same is set aside and the matter is remanded to the CIC to consider afresh after the decision is rendered by the Supreme Court in the case of Paras Jain (supra)" in W.P. (C) 1873/2016 & CM Nos. 8014/2016, 25545/2016 & 25546/2016 dated 10.08.2017"
Moreover, in the instant matter, it was observed that no reply was furnished to the Appellant within the time frame provided under the RTI Act, 2005. The Commission referred to the judgement of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"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 reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is 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."
During the hearing and in its written submission the Respondent cited various administrative lacunae and constraints for implementation of the RTI Act, 2005 which require urgent deliberation and rectification. The Commission was appalled to learn about the manner in which the hearings before it were handled by the Respondent Public Authority which indicated that there was complete negligence and laxity in the Public Authority in dealing with the RTI matters. It was abundantly clear that such matters were being ignored and set aside without application of mind which reflected disrespect towards the RTI Act, 2005 itself. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
Page 5 of 6DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Vice Chancellor to re-examine the matter and furnish information to the Appellant within a period of 15 days from the date of receipt of this order under the provisions of the RTI Act, 2005.
With regard to the written submission of the CPIO, the Commission instructs the Vice Chancellor to relook at the delivery mechanism in vogue in respect of the implementation of the RTI Act, 2005 and initiate corrective measures to remedy the same forthwith. It is advised that a copy of this order should be placed before the next meeting of the Executive Council for its perusal by all the Members failing which action under Section 20(1) of the RTI Act, 2005 could be initiated.
The Commission also 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 accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 10.09.2018
Copy to:-
1. The Secretary, D/o Higher Education, M/o HRD, 127-C, Shastri Bhawan, New Delhi - 110001
2. The Vice Chancellor, Central University of Allahabad, Senate House, Allahabad 211002 Page 6 of 6