Rajasthan High Court - Jaipur
R P S C Ajmer vs Jagdish Narain Panddey &Anr on 19 April, 2012
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
**
Civil Writ Petition No.13740/2008
RPSC Versus Jagdish Narain Pandey
/Reportable/
Date of Order ::: 19/04/2012
Hon'ble Mr. Justice Ajay Rastogi
Ms Shikha Parnami, for Mr. SN Kumawat, for petitioner.
Mr. Mahendra Gaur, for respondent-1 Instant petition is directed against order dt.13/06/2008 (Ann.6) passed by Chief Information Commissioner, Rajasthan, Jaipur on application filed by respondent-1 whereby the petitioner (RPSC) has been directed to provide relevant information desired by respondent-1 being under obligation to furnish as contemplated under Right to Information Act, 2005 (RTI Act).
Petitioner (Public Service Commission) being constitutional functionary created by Govt.of Rajasthan U/Art.315 & 316 is discharging its functions as per powers conferred U/Art.320 of Constitution of India and is indeed a public authority being covered U/s 2(h) of RTI Act.
Ms Monica Sharma daughter-in-law of Respondent-1 participated in the process of selection held on January 15, 2008 for the post of Lecturer (Geography) College Education and after having remained unsuccessful, an application was filed by him in the Office of Public Information Officer of petitioner (RPSC) on 06/02/2008 demanding certain informations with reference to process of selection held by RPSC for the post in question. It is relevant to quote six informations desired by respondent-1 ad infra:
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2.??????? ?????? ?? ??? ????? ????? ?????????? ?? ??????????? ???? ?????? ??? ???? ??? ? ????????? ????????? ???? ??
3.??????? ?????? ?? ??? ????? ?????????? ?? ???? ?? ??? ??? ??? ???????? ??????? ?? ?????? ????? ?
4.??????? ??????? ?????? ?? ????? ?????????? ??? ????? ??????? ?????? ??? ??????? ?? ????? ??????? ???? ????? ??? ??.??.?? ???? ?? ?
5.??????????? ???? ?????? ??? ???? ??????? ?????? ?? ????? ?????????? ?? ?????? ??????? ??? ?????? ??? ??? ??? ????????? ????? ?????? ???? ??? ???? ?? ????? ?????? ?????? ??? ????? ?????????? ???? ?
6.????? ?????? ??????? ?? ??? ? ?? ?? ????? ??? ?"
These informations were not furnished by Public Information Officer within thirty days; hence appeal U/s 19 & 20 of RTI Act was preferred by respondent-1 before the appellate authority. From the material on record, the informations at S.No.1 & 6 were made available to respondent-1 vide letter dt.26/03/2008 and as regards informations at S.No.2 to 4, it was informed that these are third party's information and in the absence of third party's consent, that cannot be made available and as regards information-S.No.5 it being confidential cannot be made available; and accordingly appeal preferred by respondent-1 came to be dismissed against which respondent-1 preferred further appeal before the Chief Information Commissioner and the objection raised by the petitioner (RPSC) before the appellate authority was that information desired by respondent-1 under the Rules of Public Service Commission, cannot be made available; however, Chief Information Commissioner taking note of the submissions made, observed in para 6 of order dt.13/06/2008 that what is being demanded by respondent-1 under S.No.2, 3 & 5, there is no legal bar which may deprive respondent-1 in getting the information under RTI Act; however, observed that regarding information at S.No.4, if such information is not being consolidated & maintained, and information of individual applicant has to be examined, that could be denied U/s 7(9) of RTI Act. It was further observed that even if there is any Rule or Regulation of the Public Service Commission not to provide such information, that may not have binding force in view of S.22 of RTI Act having over-riding effect; accordingly the Chief Information Commissioner directed the petitioner (PSC) to make the desired informations available within 21 days vide order dt.13/06/2008.
It is relevant to record that petitioner (PSC) filed instant writ petition on 02/12/2008 after lapse of four months and there was no interim protection granted by the Court, and four years having rolled by after passing of order dt.13/06/2008 still in compliance thereof, the desired informations was not furnished to the respondent-1. It was not expected from the constitutional functionary like petitioner (PSC) to sit over the matter despite the directions to be complied within 21 days while the writ petition was filed after four months and mere filing of the writ petition will not absolve the public authority (PSC) from disobeying orders of RTI authority, unless interim protection being granted by the Court.
Main thrust of Counsel for petitioner is that as regards informations other than S.No.1 & 6 desired by respondent-1 in his application dt. 06/02/2008, petitioner (PSC) was granted exemption from disclosing of such information as provided U/s 8(1)(d) of RTI Act. Counsel further submits that the informations desired by respondent-1 were not related to him in his individual capacity & third party's information could not be made available in view of exemption granted under RTI Act and no error was committed by the petitioner while withholding information desired by respondent-1 and scope of S.8(1)(d) of RTI Act has not been examined by the appellate authority. In support, Counsel placed reliance on the judgment dt.07/12/2011 passed by Co-ordinate Bench in RPSC Vs. Ms Pooja Meena (CWP-2461/2011).
While supporting the order of appellate authority, Counsel for respondents submits that no error has been committed by the authority in passing the order impugned, and in absence of there being any apparent perversity, it does not warrant any interference by this Court.
This Court has considered rival contentions of the parties and with their assistance, examined the material on record. Before examining the controversy raised, it would be necessary to first look into the statement of objects & reasons, the Preamble and relevant provisions of the RTI Act, 2005, which has been legislated by Parliament in order to ensure smoother, greater & more effective access to information and provide an effective framework for effectuating the right to information recognized U/Art.19 of the Constitution and taking note thereof, the Preamble of RTI Act declares the object sought to be achieved ad infra:
"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of every public authority the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
Whereas the Constitution of India has established democratic Republic;
And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal."
Chapter II contains provisions of the right to information & obligations of public authorities under Sections 3 to 11. S.3 provides for the right to information and S.4 deals with obligations of public authorities. Apart from other provisions, S.8 deals with exemption from disclosure of information and its sub-Section (1)(d) being relevant is quoted ad infra:
"8. Exemption from disclosure of information - (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(d) information including commercial confidence trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
Scope of the right to information has been examined by Apex Court in recent judgment in CBSE Vs. Aditya Bandhopadhyay (2011(8) SCC 497), and the issue came up for consideration was as to whether an examinee's right to information under RTI Act includes a right to inspect his evaluated answer books in a public examination or taking certified copies thereof.
Taking note of provisions of RTI Act and S.8(1)(e) in particular which provides in the context of information available to the person in his fiduciary relationship with examinees and/or examiner unless competent authority is satisfied that larger public interest warrants disclosure of such information, the Apex Court observed that answer books not being information available to an examining body in its fiduciary relationship, the exemption U/s 8(1)(e) is not available to the examining bodies; as no other exemption U/s 8 is available in respect of the evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.
The question further arose for consideration before Apex Court while applicant who appeared in Chartered Accountants' final examination conducted by Institute of Chartered Accountants of India held in November, 2007 and its result was declared in January, 2008 wherein examinee was not declared successful; hence submitted application seeking information under RTI Act, 2005 and that matter also came up for consideration before Apex Court in ICAI Vs. Shauynak H. Satya (2011(8) SCC 781) wherein scope of exemption U/s 8(1)(e) of RTI Act came to be examined.
The Apex Court held that in view of S.22 of RTI Act, provisions contained therein will prevail over the provisions of the bye-laws/Rules of the examining bodies in regard to examinations and as a result, unless public authority is able to demonstrate that the information demanded falls under the exempted category of information as provided in any of clauses of S.8(1) of RTI Act, the public authority is under obligation to provide access to the informations desired by the person.
Information to which RTI Act applies has been extensively examined by Apex Court in latter decision in ICAI Vs. Shaunak H.Satya (supra) in paras 23 & 24 ad infra:
23. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under section 4(1) (b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure.
24. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about account-ability. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability & containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the govt., optimum use of limited fiscal resources & preservation of confidentiality of sensitive information, on the other hand. While sections 3 & 4 seek to achieve the first objective, sections 8, 9, 10 & 11 seek to achieve the second objective.
However, Section 8 exempts certain information from being disclosed but should not be fettered on the right to information; and among ten categories of exemption from disclosure U/s , six categories described in Cls.(a), (b), (c), (f), (g) & (h) carry absolute exemption. The Apex Court in para 26 of the decision in ICAI Vs. Shaunak H.Satya (supra) observed ad infra:
26. Among the ten categories of information which are exempted from disclosure under section 8 of the RTI Act, six categories which are described in clauses (a), (b), (c), (f), (g) & (h) carry absolute exemption. Information enumerated in clauses (d), (e) and (j) on the other hand get only conditional exemption, that is the exemption is subject to the overriding power of the competent authority under the RTI Act in larger public interest, to direct disclosure of such information. The information referred to in clause (i)relates to an exemption for a specific period, with an obligation to make the said information public after such period. The information relating to intellectual property & the information available to persons in their fiduciary relationship referred to in clauses (d) & (e) of section 8(1) do not enjoy absolute exemption. Though exempted, if the competent authority under the Act is satisfied that larger public interest warrants disclosure of such information will have to be disclosed. It is needless to say that the competent authority will have to record reasons for holding that an exempted information should be disclosed in larger public interest.
The Apex Court further observed that public authority has to change its mind sets and tune them to the new regime of disclosure of information and should realise that the present era is of transparency and previous practices of unwarranted secrecy have no longer a place in larger public interest.
Object of accountability & prevention of corruption could be possible only through transparency in the working of the public authority. However still while the Parliament in its wisdom has exempted certain categories of information from disclosure & organizations from the applicability of the RTI Act. But such of examining bodies have not been exempted and as the examination processes have not been exempted, it is expected from the examining bodies to change their old traditions and comply with provisions of RTI Act.
In the instant case, respondent-1 desired information regarding female candidates (General) seeking disclosure of their names, educational qualifications having been called for interview, besides a list of female candidates (General) alongwith their names & educational qualifications having been selected; but at the same time, further informations seeking disclosure of such candidates out of afore desired female candidates (General) who were holding Gold medals and qualifications of Ph.D., B.Ed. & SLATE; and that apart, the marks secured by such female candidates (supra) in written examination & interview.
However, it is relevant to observe that process of selection regarding which information was sought by respondent-1 was based on interview; however, for short listing, written examination, must have been held by PSC. Taking note of information desired by respondent-1, the authority under RTI observed that instead of names & address, roll number could be made available, which will not disclose identity of such of third party/applicant's information who had participated in the process of selection and whose names finds place in the order of merit, that is the way by which third party identification could be withheld and was not required to be made available to the respondent-1; however, under provisions of RTI Act, even third party information can also be made available but after due compliance of S.11 of RTI Act. However, in the instant case, since names & address of applicants who were finally selected in the process held by the PSC were not required to be made available and the identity of third party was not to be disclosed, it was not required to comply with S.11 of RTI Act.
As regards individual details of such female candidates in general category holding Gold medals and qualification of Ph.D., B.Ed., & SLATE, the authority made it clear that if such information being not consolidated & maintained but has to be made available from the Forms of individual applicants, that can certainly be denied in view of S.7(9) of the RTI Act. However, contention advanced by the petitioner about their Regulations which restricts them from making such information available to the private party,it is made clear that in view of S.22 of RTI Act, which has a over-riding effect over such bye-laws framed by the Commission and unless such desired information stands exempted U/s 8, public authorities are under obligation to provide desired information to the person. In the facts of instant case, S.8(1)(d), of which protection has been raised by the petitioner, has no application.
As regards judgment in RPSC Vs. Miss Pooja Meena (CWP-2461/2011 decided by Co-ordinate Bench on 07/12/2011) cited by Counsel for petitioner, with due respect, the view has been expressed by Co-ordinate Bench in given facts where order of Chief Information Commissioner appears to be mechanical and will be no assistance; however, looking to the object of RTI Act, public authority is under legal obligation to disclose/provide information as desired by person unless exempted U/s 8 of RTI Act and right to seek information is not dependent upon latter developments or delay if any to defeat his right to seek information available under RTI Act.
Before parting with the order, this Court would like to record and also observed by Apex Court that the time has come when the public authority has to change their mind sets in regard to maintaining transparency & accountability which is the basic tenet & prime object with which RTI Act has been enacted, to fight against corruption and bring transparency in obligation of discharge of duties of public authorities whose legal obligation is to disclose information as desired by the person and who is not supposed to disclose his locus or interest, unless exempted under the RTI Act. However, this Court can take judicial notice that even after the RTI Act having come into force since 21/06/2005; but still public authorities are not prepared in providing/ disclosing information which a person/citizen has a right to claim under RTI Act and orders of the Information Officer & appellate authority are consistently coming up being assailed by public authorities.
In the light of what has been observed (supra), this Court finds no apparent manifest error being committed warranting interference in the order impugned. Consequently, writ petition fails and is hereby dismissed and the petitioner is directed to provide information in terms of order of the Commissioner RTI within fifteen days positively. No costs.
(Ajay Rastogi), J.
K.Khatri/p15//1/ 13740CW2008RsrApr19RTI.do