Central Information Commission
Ashok Kumar Mishra vs Department Of Posts on 28 April, 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
नितीय अपील संख्या / Second Appeal No.:- CIC/POSTS/A/2019/112714-UM
Mr. Ashok Kumar Mishra
....अपीलकर्ता/Appellant
VERSUS
बनतम
CPIO,
O/o ACAO (Computer), Department of Posts,
PA Wing 4th Floor, DakBhawan, Sansad Marg,
New Delhi - 110001
प्रनतवािीगण /Respondent
Date of Hearing : 26.04.2021
Date of Decision : 26.04.2021
Date of RTI application 03.10.2018
CPIO's response 02.11.2018
Date of the First Appeal 01.12.2018
First Appellate Authority's response 03.01.2019
Date of diarized receipt of Appeal by the Commission 20.03.2019
ORDER
FACTS The Appellant vide his RTI application sought information on 04 points:-
1. Provide photo copies of answer sheets of all papers i.e. (Paper 1 to 6) and obtained marks in each paper.
2. Provide photocopies of the answer sheets of all paper i.e. (Paper 1 to 6) of merit list serial 73 Page 1 of 7
3. In the merit list serial No. 604 Aradhana Kumari, Father Name Ashok Kumar Suman DOB 15.08.1992 has been declared successful. In this regard please inform her date of entry in the service with initial cadre.
4. In serial 879 Shri Randhir Kumar father name Shri Bijendra Choudahary DOB 05.08.1991 in this regard inform the date entry in the service with initial cadre.
The CPIO, vide letter dated 02.11.2018, denied the Answer sheet by referring the decision of the Hon'ble Supreme Court in the matter of UPSC vs. Angesh Kumar. Further, on points 03 and 04 stated that no such information is available with them.Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA, vide order dated 03.01.2019, upheld the reply of the CPIO. Thereafter, the Appellant filed a Second Appeal before the Commission with a request to provide information.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Shree Ram, CPIO through Audio Conferencing;
The Appellant remained absent during the hearing. In its reply, the Respondent submitted that an updated response was provided to the Appellant vide letter dated 23.04.2021. The Respondent further relied on its written submission which is taken on record.
The Commission at the outset observed that the Respondent has been citing a decision of the Apex Court, which is neither applicable nor relevant to the examination held by them. Perusal of the decision reveals that the scope of the Apex Court decision in Angesh Kumar's case specifically deals with the Competitive exams. The Hon'ble Supreme Court in the matter of UPSC vs. Angesh Kumar & Ors in Civil Appeal No. (s) 6159-6162 of 2013 decided on 20.02.2018 had observed that as following:
"........we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact Page 2 of 7 situation. If rules or practice so require, certainly such rule or practice can be enforced."
The aforesaid decision of the Hon'ble Supreme Court is thus limited to the Competitive Exams which do not cover the Departmental Exams per-se held by the Public Authorities nor is applicable to situations where it is prima-facie made out that larger public interest is involved. Moreover, the Commission sees this as a serious case wherein multiple Second Appeals related to the said exam are being heard by the Commission on regular basis.
The Commission further observes that the issue to access his/ her own answer sheet by a candidate had been long settled by the Hon'ble Supreme Court in the matter of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP (C) No. 7526/2009 decision dated 9thAugust, 2011, wherein it was 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 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 Page 3 of 7 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 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.
Page 4 of 7The 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 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."Page 5 of 7
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 involves Larger Public Interest affecting the fate of all the students / candidates who wish to obtain information regarding their own answer sheet 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.
It is noted by the Commission that similar subject matter has been dealt with in the following matters:
Appeal No.:- CIC/POSTS/A/2019/103296-UM; Appeal No.:- CIC/POSTS/A/2019/103297-UM; Appeal No.:- CIC/POSTS/A/2019/103298.-UM; Appeal No.:- CIC/POSTS/A/2019/103299-UM. Appeal No.:- CIC/POSTS/A/2019/103300-UM; Appeal No.:- CIC/POSTS/A/2019/103301-UM; Appeal No.:- CIC/POSTS/A/2019/103302.-UM; Appeal No.:- CIC/POSTS/A/2019/103303-UM.Page 6 of 7
Appeal No.:- CIC/POSTS/A/2019/103304-UM; Appeal No.:- CIC/POSTS/A/2019/103305-UM; Appeal No.:- CIC/POSTS/A/2019/103306.-UM; Appeal No.:- CIC/POSTS/A/2019/103307-UM. Appeal No.:- CIC/POSTS/A/2019/103308-UM; Appeal No.:- CIC/POSTS/A/2019/103309-UM; Appeal No.:- CIC/POSTS/A/2019/103310.-UM; Appeal No.:- CIC/POSTS/A/2019/103311-UM. Appeal No.:- CIC/POSTS/A/2019/103312-UM; Appeal No.:- CIC/POSTS/A/2019/103313-UM; etc. DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and in the light of the decisions cited above pertaining to the right of a candidate to seek his own answer sheet, the Commission directs the Respondent, to furnish a copy of his own answer sheets to the Appellant as sought in the RTI Application, within a period of 15 days from the date of receipt of this order under the intimation of this Commission. As regards the copy of other candidates' answer sheets sought by the Appellant as it relates to third party information, no intervention by the Commission is required in the matter.
The Appeal stands disposed accordingly.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित एवं सत्यापित प्रतत) (R. K. Rao) (आर.के. राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 26.04.2021 Page 7 of 7