Central Information Commission
Amit Kumar Srivastava vs Indira Gandhi National Open University ... on 16 July, 2018
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Appeal No.: -CIC/IGNOU/A/2017/131603-BJ
Appellant : Mr. Amit Kumar Srivastava
Respondent : CPIO,
IGNOU Regional Evaluation Centre,
Sector 5, Vrindavan Yojna,
Lucknow- 226029
Date of Hearing : 13.07.2018
Date of Decision : 16.07.2018
Date of RTI application 10.09.2016
CPIO's response 30.09.2016
Date of the First Appeal 04.10.2016
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 12.05.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 11 points regarding photocopy of his answer sheet for both semesters (June and December 2015), certified copy of voucher/receipt of payment given to the examiner who had calculated marks/total marks in exams held in June and December 2015, certified copy of action taken concerning his representation dated 14.06.2016, certified copy of noting and correspondence concerning his representation dated 14.06.2016, and other issues related thereto.
The CPIO, vide its letter dated 30.09.2016 provided a point-wise response to the Appellant. Dissatisfied with the reply, the Appellant approached the FAA. The FAA's order, if any is not on record of the commission. HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Amit Kumar Srivastava through VC;
Respondent: Dr. S. K. Pulist, Dy. Director, IGNOU, New Delhi; Mr. Gyan Prakash Kujur, Executive Assistant, IGNOU, New Delhi in person; and Dr. Ashwini Kumar, Dy. Director IGNOU, Lucknow, Mr. Vasi Ahmad, SO through VC;
The Appellant reiterated the contents of his RTI application and stated that complete and satisfactory information had not been received by him. In its reply, the Respondent stated that point wise information had been furnished to the Appellant vide letter dated 30.09.2016 as available on their record. With regard to point no. 09 & 10 of the RTI application regarding number of students who had appeared in the examination conducted in the month of June and December, 2015, status of passed/failed students etc. had also been provided vide its letter dated 10.07.2018. Further, it was submitted Page 1 of 6 that from query no. 02 to 05 regarding the certified copy of voucher/receipt of payment given to the examiner who had calculated marks/total marks in exams held in June and December 2015, were denied u/s 8 of the RTI Act, 2005 as the name of the examiner who had calculated the marks could not be disclosed, the disclosure of which could endanger the life or physical safety of the examiner.
The Commission was in receipt of a written submission from the Respondent dated 11.07.2018 wherein it was informed that they had provided information to the Appellant for his queries from points 02 to 10 of his RTI application dated 10.09.2016 vide their letters dated 30.09.2016 and 10.07.2018, respectively.
The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to Page 2 of 6 any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
With regard to point no. 01 of the RTI application, Commission 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 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 Page 3 of 6 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."
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.
With regard to denial of information regarding copy of voucher/receipt of payment given to the examiner who had calculated marks/total marks in exams held, the Commission observed that it was exempted from disclosure as per Section 8 (1) (g) of the RTI Act, 2005. In this context, a reference can be made to the judgement of the Hon'ble Supreme Court in the matter of Page 4 of 6 Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors (Civil Appeal No. 6454 of 2011) "28.........the information as to the names or particulars of the examiners/coordinators/scrutinisers/head examiners are therefore exempted from disclosure under Section 8 (1)(g) of RTI Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer-books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer-book which does not contain any information or signature of the examiners/co-ordinators/scrutinisers/head examiners, exempted from disclosure under Section 8 (1)(g) of RTI Act."
A reference can also be made to a recent decision of the Hon'ble High Court of Delhi in the matter of Mukesh Kumar vs. Chief Information Commission, CIC, W.P. (C) 10691/ 2016 dated 19.09.2017 wherein it was held as under:
"15. Insofar as handwritten marks awarded by interview panel is concerned, those obviously from a part of the working papers of the interview panel and cannot be disclosed; disclosure of such handwritten record would also inevitably disclose the identity of the members of the interview panel, which as stated above cannot be disclosed to the petitioner."
The Commission had also 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:
Page 5 of 67."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."
DECISION Keeping in view the facts of the case and the submissions made by both the parties and in the light of above judgments, the Commission directs the Respondent to provide information on point no. 01 in relation to his own answer script within a period of 15 days from the date of receipt of this order, free of cost. The Commission expressed concern over the lack of knowledge of the Respondent Public Authority in respect of the provisions of the RTI Act, 2005. The Commission therefore, 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) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Copy to:
1. The Vice Chancellor, IGNOU, Maidan Garhi, New Delhi-110068
2. The Registrar, IGNOU, Maidan Garhi, New Delhi-110068 Page 6 of 6