Central Information Commission
Mohd Misbahuddin vs Ministry Of Railways on 18 January, 2018
क य सूचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगानाथ माग
Baba Gangnath Marg,
मु नरका, नई द ल -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email: [email protected]
File No.: CIC/MORLY/A/2017/140366
In the matter of:
Mohd Misbahuddin
...Appellant
VS
PIO and Jr Scientific Officer, Research
Designs and Standards Organisation
Manaknagar, Lucknow, U.P- 226011
...Respondent
Dates
RTI application : 19.12.2016
CPIO reply : 05.01.2017
First Appeal : Not Mentioned
FAA Order : 10.03.2017
Second Appeal : 23.05.2017
Date of hearing : 29.12.2017
Facts:
The appellant vide RTI application dated 19.12.2016 sought information on 2 points: copy of the letter issued by R.D.S.O directing examination conducting agency to not disclose copy of question paper, answer key and answer sheets and copy of his answer sheet, question paper and answer key. The CPIO replied on 05.01.2017. The appellant was not satisfied with the CPIO's reply and filed first appeal. The First Appellate Authority (FAA) disposed of the first appeal on 10.03.2017. Aggrieved with the non-supply of the desired 1 information, the appellant filed second appeal u/s 19 of the RTI Act before the Central Information Commission on 23.05.2017.
Grounds for Second Appeal The CPIO did not provide the desired information.
Order
Appellant : Present with Advocate,
Shri Nishant Kumar Srivastava
Respondent : Shri Manish Kumar,
Junior Scientific Officer cum APIO,
Research Designs and Standards Organisation
(RDSO), Manaknagar, Lucknow,
During the hearing the respondent APIO submitted that they had provided the requisite reply vide their letter dated 05.01.2017. He further submitted that as per the Hon'ble Delhi High Court order dated 21.11.2014 in the matter of Ministry of Railways vs K.G.Arun Kumar, {WP(C) 2173/2013}; question paper related to limited question bank, answer key and answer sheet is not disclosable. The reply furnished to the appellant is just and proper and hence the case might be dismissed.
The appellant submitted that he was not satisfied with the reply received from the respondent. He further submitted that the Hon'ble Supreme Court in CBSE & Anr Vs. Aditya Bandopadhyay and others (2011) 8 SCC 497 held the following:
"27. We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under section 8(1)(e) is not available to the examining bodies with reference to evaluated answer-books. As no other exemption under section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees."
He further argued that the FAA order is very terse and not a speaking order. That the CPIO's reliance on the order dated 21.11.2014 passed by the Hon'ble Delhi High Court is untenable as the judgment and order dated 2 21.11.2014 is per incuriam in view of the law laid down by the Hon'ble Supreme Court in the case of Central Board of Secondary Education & another Vs Aditya Bandopadhyay and others (2011)8 SCC 497 and in the case of Institute of Chartered Accountants of India Vs Shaunak H. Satya and others (2011) 8 SCC 781. Moreover the information sought by the applicant under the Right to Information Act, 2005 does not fall under any exclusions by way of exemptions and exceptions as provided u/s 8, 9 and 24 of the Right to Information Act, 2005.
Per contra the respondent PIO submitted that CBSE Vs Aditya Bandopadhya ruling still holds the ground, however different yardstick is necessary in so far as the present case in which the information sought was related to aptitude test. He submitted that it was aptitude test and CBSE Vs Aditya Bandopadhya judgment is relating to knowledge based test. He further clarified that distinction between knowledge based and aptitude test is that in aptitude test Questions are developed and normalised. Moreover, he also submitted that the Hon'ble Delhi High Court order dated 21.11.2014 in the matter of Ministry of Railways vs K.G.Arun Kumar, {WP(C) 2173/2013} is binding as it was not overturned.
The Commission have heard the rival contentions, perused the material on record and considered factual matrix of the case in the light of the applicable legal position.
Based on the submission of the parties and on perusal of record, it was seen that in para 1 of the RTI application, the appellant had sought copy of the letter issued by R.D.S.O directing exam conducting agency to not disclose copy of question paper, answer key and answer sheets. The CPIO did not provide any categorical reply in respect of para 1 of the RTI application. In the instant case, contentions of the CPIO do not satisfy the grounds of denial of information in as much as, information sought in para 1 of the RTI application is concerned.
Be that as it may, since no desired information was provided to the appellant in respect of para 1 of the RTI application, the respondent CPIO is 3 directed to provide reply complete in all respects to the appellant as available on record in the form of certified true copies of the documents sought e.g. note sheet, letter, correspondence, e-mail etc.(legible copies), free of charge u/s 7(6) of the RTI Act within 15 days of the receipt of the order. For this purpose, CPIO/PIO, can take assistance of any other office/department u/s 5(4) of the RTI Act.
The respondent CPIO is further directed to send a report containing the copy of the revised reply and the date of despatch of the same to the RTI appellant within 07 days thereafter to the Commission for record.
In so far as point no. 2 of the RTI application is concerned, the appellant contention that the Hon'ble Delhi High Court decision dated 21.11.2014 is per incuriam in view of the law laid down by the Hon'ble Supreme Court in the case of Central Board of Secondary Education & another Vs Aditya Bandopadhyay and others (2011)8 SCC 497 and in the case of Institute of Chartered Accountants of India Vs Shaunak H. Satya and others (2011) 8 SCC
781. The Commission find that the contention of the appellant is not maintainable, as the Hon'ble Delhi High Court decision was specifically related to issue of disclosure of question paper related to the aptitude test. The appellant's further contention that the information sought by the applicant under the Right to Information Act, 2005 does not fall under any exemptions and exceptions as provided u/s 8, 9 and 24 of the Right to Information Act, 2005, the Commission is of the opinion that the Hon'ble Delhi High Court's decision is binding on this Commission and the appellant is at liberty to approach appropriate forum to challenge the Hon'ble Delhi High Court's order.
It was also observed that the point no. 2, of the RTI application i.e. the copy of the OMR sheet, copy of the question booklet and copy of the answer key related to limited question bank is not disclosable as per the Hon'ble Delhi High Court's order in the case of All India Institute of Medical....vs Vikrant Bhuria dated 28.05.2012, wherein it was held as follows:
4"16.................................. if question papers are so disclosed, the possibility of the examination not resulting in the selection of the best candidate cannot be ruled out. It is pleaded that knowledge of the question papers of all the previous years with correct answers may lead to selection of a student with good memory rather than an analytical mind. It is also pleaded that setting up of such question papers besides intellectual efforts also entails expenditure. The possibility of appellant,in a given year cutting the said expenditure by picking up questions from its question bank is thus plausible and which factor was considered by the Supreme Court also in the judgment aforesaid.
17. We also need to remind ourselves of the line of the judgments of which reference may only be made to State of Tamil Nadu Vs. K. Shyam Sunder AIR 2011 SC 3470, The Bihar School Examination Board Vs. Subhas Chandra Sinha (1970) 1 SCC 648, The University of Mysore Vs. C. D. Govinda Rao AIR 1965 SC 491, Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh kumar Sheth (1984) 4 SCC 27 holding that the Courts should not interfere with such decisions of the academic authorities who are experts in their field. Once the experts of the appellant have taken a view that the disclosure of the question papers would compromise the selection process, we cannot lightly interfere therewith. Reference in this regard may also be made to the recent dicta in Sanchit Bansal Vs. The Joint Admission Board (JAB) (2012) 1 SCC 157 observing that the process of evaluation and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and Courts will not interfere in such processes.
18. We have in our judgment dated 24.05.2012 in LPA No.1090/2011 titled Central Board of Secondary Education Vs. Sh. Anil Kumar Kathpal, relying on the Institute of Chartered Accountants of India Vs. Shaunak H. Satya (2011) 8 SCC 781 held that in achieving the objective of transparency and accountability of the RTI Act, other equally important public interests including preservation of confidentiality of sensitive information are not to be ignored or sacrificed and that it has to be ensured that revelation of information in actual practice, does not harm or adversely affect other public interests including of preservation of confidentiality of sensitive information. Thus, disclosure of, marks which though existed, but were replaced by grades, was not allowed. Purposive, not literal interpretation of the RTI Act was advocated."5
The decision dated 21.11.2014 of the Delhi High Court in the case of Ministry of Railways vs K.G. Arun Kumar [W.P.(C) 2173/2013 and CM 4120/2013] is extracted below:
"The petitioner impugns an order dated 18.10.2012 passed by the Central Information Commission (hereafter CIC), inter alia, directing that the respondent be permitted to inspect the answer sheets and also be provided the question papers with respect to the tests undertaken by the respondent.
The controversy to be addressed is whether the petitioner is entitled to withhold the question papers of the written test as well as answer sheets and question papers of aptitude test taken by respondent.
Briefly stated the facts are that the respondent had undertaken an aptitude test and written examination for being selected to the post of Assistant Station Master (ASM) with the petitioner. The written examination was held on 13.06.2010 and the petitioner was selected for aptitude test which was conducted on 03.02.2011. According to the petitioner, he had faired well and thus, ought to have been selected. However, the petitioner was not among the final candidates selected for the appointment. Thereafter, the respondent filed applications under Right to Information Act, 2005 (hereafter the Act) seeking information relating to the written examination as well as the aptitude test. By an application dated 09.06.2011, the petitioner sought information including the following information:-
(i) Copies of answer sheets and question of Aptitude test of mine and other 37 candidates who were all selected as per the final list, with the key used for evaluation.
(ii) Copies of answer sheets and question papers of written test of mine and other 37 candidates who were all selected as per the final list, with the key used for evaluation.
In response to the aforesaid application dated 09.06.2011, the Assistant Public Information Officer (hereafter APIO) sent a response on 21.06.2011 permitting the respondent to inspect his answer sheets of the written examination but denied the answer sheets and the question papers of the aptitude test.
Aggrieved by the denial of information by APIO, respondent filed an appeal before the First Appellate Authority (hereafter FAA) which was rejected on 07.07.2011. Thereafter, the respondent 6 preferred a second appeal before the CIC. The said appeal was disposed of by the order dated 18.10.2012.
The learned counsel for the petitioner contended that psychological tests are designed to test the mental aptitude for safety category staff necessary for safety on the Indian Railways. It was further submitted that the aptitude tests, question papers and the OMR sheets are reused in different examinations conducted by Railway Recruitment Board and a disclosure of the aptitude question papers would effectively destroy the ability of the petitioner to use the aptitude question papers in future examinations. It is further submitted that it takes several years to design an aptitude test and the petitioner would be prejudiced if the respondent is provided such information.
It was further contended by the learned counsel for the petitioner that even the copies of the question papers of the written examinations ought not be provided since the number of questions were limited and the same are also used in different tests. The controversy whether an examining body can be asked to disclose the question papers in circumstances where the number of questions are limited and are repeated, has been considered by this court in National Insurance Co. Ltd. v. Shri MSF Beig: W.P.(C) No.272/2012 decided on 20.11.2014 and it has been held that in such cases, the examining body cannot be compelled to disclose the question papers.
Accordingly, the present writ petition is allowed and the CIC's order directing the petitioner to provide copy of question papers or provide OMR sheets is rejected. However, the petitioner would be entitled to inspect his answer sheets for the written examination which the learned counsel for the respondent states has already been provided to the respondent."
In light of the above decision, and based on the CPIO's submission that the question paper, answer key and answer sheet related to the aptitude test and that the question papers source their origin from a limited question bank the disclosure of which can jeopardise the pattern of questions asked in the said aptitude test, the Commission finds it appropriate to direct the PIO to state on affidavit that the information sought by the applicant is part of a limited question bank the disclosure of which may compromise the basic integrity of the concerned question bank. The same affidavit is to be submitted to the Commission within 10 days from the receipt of this order and a copy thereof is 7 to be endorsed to the appellant for information. The CPIO is however, directed to permit the appellant to inspect the copy of his own corrected aptitude test answer sheet and answer key for the above stated examination, on a mutually decided date and time duly intimated to the Appellant in writing within 15 days from the date of receipt of this order .
Keeping in view the submission of the PIO and the Delhi High Court decision, the Commission understands the sensitivity of the matter and is hereby instructing the PIO to ensure the appellant while inspecting his answer-sheet and answer key does not take photograph or obtain hard/soft copy of the same. The appellant is also advised to follow the above instructions while inspecting his answersheet and copy of answer key.
With the above direction, the appeal is disposed of.
Copies of the order be sent to the concerned parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar 8