Central Information Commission
Rupesh Kumar Bhardwaj vs Department Of Posts on 25 March, 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/2019/602460-UM
Mr. Rupesh Kumar Bhardwaj
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO,
O/O Directorate, ACAO (Computer),
Department Of Posts, Dak Bhawan,
Ashoka Road, New Delhi 110001
प्रनतवािीगण /Respondent
Date of Hearing : 16.03.2021
Date of Decision : 24.03.2021
Date of RTI application 03.10.2018
CPIO's response 31.10.2018
Date of the First Appeal 22.11.2018
First Appellate Authority's response 08.01.2019
Date of diarized receipt of Appeal by the Commission Nil
ORDER
FACTS The Appellant vide his RTI application sought information on 04 points, as under:-
1. Please supply the answer key of each paper and each question for paper 1 to 6.Page 1 of 8
2. Please supply the copy of answer sheet for paper 1 to 6 of undersigned with marks obtained in each question.
3. Please supply the marks obtained in each paper by the undersigned.
4. Procedure for revaluation of the answer sheet.
The CPIO vide letter dated 31.10.2018, informed the Appellant that on points No. 01 and 04no such information is available with this office, hence cannot be supplied, on point No. 02, answer sheets cannot be revealed as per Hon'ble Supreme Court judgment pronounced in the matter of UPSC vs. Angesh Kumar and on point No. 03 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 08.01.2019, 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: Mr. Rupesh Kumar Bhardwaj, in person;
Respondent: Mr. Shree Ram, Director (PA-Admn) & CPIO, through AC.
The Appellant while reiterating the contents of the RTI showed his dissatisfaction and stated that complete and clear information be provided to him. The Respondent present during the hearing gave no cogent response and reiterated the contents of the written submission. On being queried by the Commission whether the Selection process had been completed by the Department, to which the Respondent replied in affirmative and also submitted that selected candidates have also joined the office.
The Commission was in receipt of a written submission by the Respondent dated 12.03.2021, wherein it is submitted that 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. The marks of the candidate were furnished therein and for query No. 4 it was stated that no such information is available with this office, hence cannot be supplied.
The Commission was in receipt of a written submission by the Appellant dated 16.03.2021, wherein it is stated by the Appellant that the result has already been declared by the Dept. Vide Letter No. 301(08) PA Admn. III/2012 to 2014 dated 01.10.2018 and that the successful candidates had already joined as AAO, hence it is clear that the whole process of LDCE 2018 of AAO had already got over.
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 Page 2 of 8 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 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 Page 3 of 8 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 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 Page 4 of 8 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.
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 Page 5 of 8 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."
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 Page 6 of 8 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. 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;
The Commission also takes note of many pending Second Appeals related to the AAO (LDCE- 2018) Exam, wherein Candidates/ Appellants had pointed out that the DE Section, Ministry of Communications, Government of India, vide F. No. A-34013/05/2016, dated 21.06.2017, declared the circle-wise result, wherein selected candidates' Name, Category, Roll Number, Marks secured in each paper, etc; were published by the Respondent.
It has also been brought to the notice of the Commission that as per Para No. 2 of the Notification No. Rectt/ PO & RMS Acctt/ Exam/2018, (a similar kind of Departmental Exam) dated 01.11.2018, for the result of PO & RMS Account Examination conducted by the Department of Posts, it was stated that "Photocopies of Answer Sheets of Paper-I and Paper- II with answer Key will be supplied to the candidates on submission of Application under RTI Act, 2005".
Further, with regard to disclosure of the Candidates own answer sheet, the Candidates had brought to the notice of the Commission by referring to "No. A-34013/01/2009-DE" dated 05.10.2010" in respect of result of the Departmental Examination conducted for the posts of Inspector within the Department of Posts wherein at Para 8 (a) it is mentioned as under:-
"(a) Candidates, who wish to have the copies of Answer Papers supplied, are required to pay a fee of Rs. 25/- per paper with key + Rs. 10 towards fee for application under the RTI Act in the Post Office accounts and submit their application through the Circle Office concerned along with the receipt for payment of fee in original..."Page 7 of 8
The Commission takes serious note of the fact that while Answer Sheets were furnished by the Department of Post in one internal exam, these are being denied to the candidates in another internal exam i.e LDCE, AAO Exam-2018 by the same Department, without any justified reasoning.
DECISION:
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 Respondent, to furnish a copy of his answer sheets to the Appellant as sought in the RTI Application under query no. 2, within a period of 15 days from the date of receipt of this order under the intimation of this Commission.
The Commission observe that since the whole process of the LDCE- AAO, 2018 is completed on the part of the Respondent the decision of the CIC dated 24.11.2020 does not bar them to furnish the information with respect to the query No. 1, hence the Commission further directs the Respondent to furnish information to the Appellant as per their extant guidelines within the abovementioned stipulated time. No further intervention by this Commission is required in the matter.
The Appeal stands disposed off accordingly.
(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: 24.03.2021 Page 8 of 8