Central Information Commission
Mr.Manu Sabherwal vs Union Public Service Commission on 16 July, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000438 dated 30.3.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Manu Sabharwal
Respondent - Union Public Service Commission (UPSC)
Heard & Decision announced: 16.7.2010
Facts:
By an application of 1.9.08 Shri Manu Sabharwal of Old Connaught Place, Dehradun (Uttarakhand) applied to CPIO Shri Rameshwar Dayal, Dy. Secy. (Exam) seeking the following information :
1. "Copies of the National Defence Academy Entrance Examination - 1 Question Papers (1998-2008)
2. Copies of answer key to the National Defence Academy Entrance Examination 1 (199802998)
3. Copies of the National Defence Academy Entrance Examination II Question Papers (1998-2008)
4. Copies of answer key to the National Defence Academy Entrance Examination II (1998-2008)
5. Copies of the CDS Entrance Examination I Question papers (1998- 2008)
6. Copies of answer key to the CDS Entrance Examination I (1998- 2008)
7. Copies of the CDS Entrance Examination II Question Papers (1998-2008)
8. Copies of answer key to the CDS Entrance Examination II (1998-
2008)"
To this, Shri Manu Sabharwal received a response dated 3.10.08 from Shri Rameshwar Dayal informing him as follows:
"It is informed that the examinations held by UPSC are for the candidates and each candidate gets the question booklet at the end of the examination. There is neither separate compilation system nor a fixed subject wise and year wise storage arrangement presently as regards old question papers. However, the question papers of NDA (i) & (ii) and CDS (i) & (ii) for the year 2007 and 2008 are available with the Commission which is running into 750 pages. These can be sent to you on receipt of Rs. 1500/- (Rupees one thousand five hundred only) towards photo copying charges @ 1 Rs. 2/- per page. You are requested to deposit Rs. 1500/- with the Commission in the acceptable mode of payment i.e. IPO/Bank Draft drawn in favour of Accounts Officer, UPSC, New Delhi-110069.
As regards the answer keys of the NDA (i) & (ii) and CDS (i) & (ii) question papers, I am to state that the information sought by you forms part of Commission's crucial secrets and intellectual property under Section 8(1)(d) of RTI Act, 2005. The information requested by you is in the nature of secret documents under Sec. 8(2) of the RTI Act, 2005 and there being no public interest requiring its disclosure, it cannot be disclosed as the disclosure would harm the protected interests. I am to furnish state that the disclosure of this information shall irreparably undermine the integrity, strength and efficacy of the competitive public examination systems of paramount significance conducted by the UPSC."
Aggrieved, Shri Sabharwal moved an appeal dated 4.11.08 before Shri K. S. Bariar Jt. Secretary (E), UPSC pleading as follows:
"That the impugned decision of the Respondent clearly shows how he has not acted reasonably and diligently but has instead deliberately, blatantly and mischievously reduced the office of the Central Public Information Officer of the Union Public Service Commission to a farce and has refused the request of the Appellant on false, frivolous and fabricated grounds."
Upon this, JS Shri Bariar vide order dated 28.11.08 has ordered as follows:
"4. I note that the CPIO, UPSC has already agreed to make available to him photo copies of question papers of NDA Examination (i) & (ii) and CDS Examination (i) & (ii) of 2007 & 2008 in hard copy and has asked him to deposit the requisite charges in terms of the Sec. 5(b) of the RTI (Regulation of Fee and Cost) Rules, 2005. Since the question paper are not maintained in digital form in the Commission, it cannot be made available to him in CD or via e-mail. There is, therefore, no denial of information to this extent.
5. With regard to answer keys / model answers of these examinations, it is intimated that the Commission have already been contesting an SLP 23250/2008 in the Hon'ble Supreme Court relating to the Civil Services (Prel.) Examination which covers amongst others this issue also. The Hon'ble Supreme Court have issued notices in the 2 matter in view of the above, it appears appropriate if the request for such information / documents is made to the CPIO, UPSC after a decision in the matter is pronounced by the Hon'ble Supreme Court."
Appellant Shri Manu Sabharwal's prayer in his second appeal before us is as below:
"5. Because it is incumbent upon the Respondents to furnish the information sought by the Appellant in the form it is desired by the Appellant, except only for the reasons provided by law. The plea that the information is not maintained in digital form by Respondent No. 3 does not, in any way, absolve the Respondents from delivering the information in the form desired by the Appellant.
6. Because a photo copy in digital form is not the same thing as a "hard copy" which in usual parlance means a copy printed on a paper.
7. Because the learned Respondent No. 2 by this clever interpolation of the words "hard copy" sought to justify the unreasonable and unjust demand of Rs. 1500/- by Respondent No. 1 for furnishing a part of the information sought by the Appellant.
8. Because the learned Respondent No. 2 had found that the Respondent No. 1 had refused the request for supply of information pertaining to years 1998 to 2006 without any just or reasonable cause, yet he did not order the Respondent No. 1 to furnish the sought information."
Shri Manu Sabharwal has grounded this appeal on the following principal issues:
"13. Because the Appellant is not a party to the SLP No. 23250/2008 before the Supreme Court nor has he ever been a party to any of the proceedings in the lower fora which have led to or promoted the SLP.
14. Because from the impugned order itself, it is clear that the Hon'ble Supreme Court had not granted any interim relief to the Respondents in SLP No. 23250/2008 till the date of the impugned order by virtue of which the Respondents could have claimed exemption from providing the information sought to the Appellant. Thus, the Respondent No. 2 has 3 malafidely denied the request for information of the Appellant."
The appeal was heard on 16.7.2010 through videoconference. The following are present:
Appellant at NIC Studio, Dehradun Shri Manu Sabharwal Respondents at CIC chambers, New Delhi/ Shri Rameshwar Dayal, DS & CPIO Shri Naresh Kaushik, Advocate Shri Bhupinder Singh, U.S. Ld. Counsel for respondent Shri Naresh Kaushik submitted that the information sought by appellant had been offered on payment of fee. However, appellant Shri Sabharwal was seeking information in a form in which it is not maintained and converting it into this form would amount to creation of information. In this connection he referred to sub sec. (iv) of Sec. 2(j) which reads as follows:
2(j) (iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device1;
He, therefore, submitted that this form of information can only be asked where it is stored as such, which in this case it is not. On the question of appellant not being party to the SLP under which the Supreme Court had stayed the operation of the orders of this Commission on disclosure of cut off marks, Shri Kaushik submitted that it is a question of law that had been challenged before the Supreme Court of India and not a question of disclosure in a specific case. The decision of the SCI, the supreme court of record, will then become a decision on the application of the law itself and will, therefore, apply in all cases.1
Underlined by us to emphasise reference 4 On his part appellant Shri Sabharwal submitted that he has sought information on the last eleven years but he was provided information only on two years. He submitted that the information for the remaining nine years does exist in the UPSC but has not been catalogued. Moreover, in refusing the information the CPIO, UPSC has given no reason, pleading no exemption u/s 8(1) which renders the response invalid. Shri Sabharwal further submitted that providing the information in digital form will not amount to creation of information since examination papers are in any case in printout and not written handouts and for the process of printing, it would be necessary to send the papers to the press in digital form. On the latter point, Ld. Counsel for respondents argued that appellant Shri Sabharwal has nowhere raised this issue which he is now raising at the level of second appeal.
DECISION NOTICE It is correct that sec. 7(9) mandates that "An information shall ordinarily be provided in the form in which it is sought2." There are specific conditions laid down whereby the information could be denied in that form. In the present case, there are two issues before us -
1) Whether such information exists at all for all the years that Shri Sabharwal has requested?
2) Whether, if it exists, it can be provided in the requested form.
On Issue No. 1), CPIO Shri Rameshwar Dayal has argued that there is no separate compilation system for storage arrangements regarding old question papers. This amounts to some thing of a revelation of the maintenance of information by the UPSC, particularly in an age of information technology in which India can be proud to be world leader. Nonetheless, if the UPSC does not hold the information even if it was desirable that it should have so held, there will be nothing for the UPSC to provide.
2Underlined by us 5 On issue No. (2) above, however, if the information is held even in a form other than the form it is sought, clearly the mandate that it should be provided in the form in which it is sought would be infructuous if it is refused on that ground. Clearly, therefore, whereas under Sec. 2(j)(iv) information can be asked directly in the form in which it is stored, this does not debar a citizen from seeking the information, even if not held in that form, to be provided in that form unless it would violate the limitation set forth in sub sec. (9) of Sec. 7, when it can be provided in the form in which it is held. This would, of course, require the payment of additional charges for the purpose of that conversion which in the case of simply supplying a copy in the form of diskette, if held in that form, would be payable only for the prescribed cost of the diskette. In the present case the information sought and offered in written form will now be provided in digital form, as requested. Because this was refused at the time of the application and has, therefore, not been provided within the time limit mandated u/s 7(1), it will now be provided free of cost, as per sub sec. (6) of Sec. 7. There will, however, be no other cost.
On the question of a compilation system for question papers, the CPIO Shri Rameshwar Dayal, DS, UPSC is directed u/s 19(8)(a)(iii) & (iv) to undertake computerization of all question papers for their continued maintenance for number of years to be specified by the UPSC in terms of the likely projected requirements of candidates based on past experience. This exercise may commence forthwith and its commencement confirmed to this Commission through Jt. Registrar Shri Pankaj KP Shreyaskar by 9th July, 2010. However, since this information cannot be deemed to be held by the CPIO, at present, we concede that this cannot be provided to appellant Shri Sabharwal.
On the question of the state of disclosure of cut off marks, which would constitute the key to the examinations sought by appellant Shri Sabharwal, we hold that the orders of the Hon'ble Supreme Court of India in SLP No. 23250/2008 - UPSC vs. Central Information Commission & Ors. must be 6 respected in the present case. We have therefore not considered this an issue. Appellate Authority Shri K. S. Bariar Jt. Secretary (E) has already offered to consider such a request ,if made after decision in the matter is pronounced by the Apex Court. The appeal is thus allowed in part.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 16.7.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 16.7.2010 7