Central Information Commission
Mansi Sharma vs University Of Delhi on 20 November, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/UODEL/A/2017/157969-BJ
Ms. Mansi Sharma
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO
University of Delhi
Delhi - 110007
... ितवादीगण /Respondent
Date of Hearing : 19.11.2018
Date of Decision : 20.11.2018
Date of RTI application 15.04.2017
CPIO's response 04.05.2017
Date of the First Appeal 22.05.2017
First Appellate Authority's response 05.07.2017
Date of diarised receipt of Appeal by the Commission 22.08.2017
ORDER
FACTS:
The Appellant vide her RTI application sought photocopies of her revaluated answer sheets and inspection of Part A and B of paper no. B-101 (Business Mathematics and Statistics) of B. Com (P) Part II Examination, 2016 for the roll number and registration number mentioned in the RTI application, etc. The CPIO vide its letter dated 04.05.2017 provided the input received from the Dean (Examination/ Asst. Controller of Examination (Revaluation). A reference was also made to the website of the University. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 05.07.2017 while upholding the reply of the CPIO stated that the Appellant could obtain the evaluated answer sheet by contacting the Assistant Controller of Examinations (Revaluations) in case it was available as per the record retention schedule on payment of requisite fees.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 6
Appellant: Ms. Mansi Sharma along with Mr. Sunil Sharma (Adv.) through VC; Respondent: Mrs. Meenakshi Sahay, Dy. Registrar /CPIO, Mr. Om Prakash, Assistant and Mr. Yogesh, Jr. Assistant;
The Appellant's representative reiterated the contents of the RTI application and stated that the desired information relating to inspection of her re-evaluated answer sheets and its photocopies were not provided, till date. While referring to the notification issued by the University regarding the time period for seeking photocopies of answer sheet and the fixation of charges of Rs. 750/- for supplying the copies of answer sheet, the Appellant submitted that as per Section 22 of the Act, the rules framed by the university were superseded by the provisions of the Act. In support of its contention, the Appellant's representative relied on the decision of the Commission in Mr Abner Ingty Watreingty Watre vs. University of Delhi dated 15.01.2016. In its reply, the Respondent re-iterated the reply of the CPIO/ FAA and stated that the Appellant did not approach the Assistant Controller of Examinations (Revaluations), till date, to seek the re- evaluated copies of the answer sheets, if available. It was also submitted that the decision relied upon by the Appellant, in University of Delhi Vs. Abner Ingty dated 15.01.2016 was challenged by the University in Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi in the matter of University of Delhi vs Abner Ignty, W.P (C) No. 1873/ 2016 dated 10.08.2017 had set aside the decision with the observation "the decision of the CIC cannot be sustained. The same is set aside and the matter is remanded to the CIC to consider afresh after the decision is rendered by the Supreme Court in the case of Paras Jain (supra)". It was submitted that the matter of Paras Jain had not attained its finality, as yet. On being queried regarding the recent decision of the Apex Court in the matter of Kumar Shanu and Anr. vs Central Board of Secondary Education in Contempt Petition (Civil) No. 1255/2018 in Civil Appeal No. 6454/2011 dated 29.10.2018, the Respondent argued that in the said matter the affidavit furnished by the CBSE stipulated that if re-verification/ revaluation/ re-totalling/ re-checking of the answer sheets/ scripts alongwith the photocopies thereof was sought, fee as per the CBSE Rules was charged. On being queried if the Appellant was willing to avail inspection of her revalued answer sheets, the Appellant's representative expressed reluctance and insisted on photocopies of answer sheet. The Commission was in receipt of a written submission from the Appellant dated 19.11.2018, wherein while reiterating the contents of her RTI application, it was stated that the CPIO acted like a post office and merely endorsed the report received from the Assistant Controller of Examinations (Revaluation) to provide copies of the revaluated answer sheet as per the procedure, if the script was not weeded out, whereas the Assistant Controller had already informed that the last date for obtaining photocopies of the scripts was over as per the established norms of the University of Delhi. The FAA also failed to read the appeal and routinely forwarded the report received from the Assistant Controller of Examinations and the impugned decision advised her to obtain the photocopies of answer sheet as per the procedure of the University in case the scripts were available as per the record retention schedule on payment of requisite fees. While relying on the decision of the Commission in Mr. Abner Ingty Watreingty Watre vs. University of Delhi dated 15.01.2016, it was submitted that as per Section 22 of Act, the RTI Act had an overriding effect. It was further submitted that the University Procedure decided by its executive council was not applicable to the applications made under the RTI Act in view of Section 22 as such neither the time limit of 75 days nor the charges of Rs. 750/- for Page 2 of 6 obtaining copies of answer sheet could be enforced against the Appellant. The University procedure was also illogical, inequitable and ante students community in as much as the time limit was made to run from the date of uploading the result on its website and not from the date of receipt of the result of revaluation by the student and the University in itself was not abiding by the time limit of 45 days for revaluation and further fixing Rs. 750/- as charges for supplying copies of answer sheet was very exorbitant, inequitable, unjust and negating the very purpose of transparency. In view of the above, the Appellant prayed for directing the Asst. Controller of Examinations (Revaluation), University of Delhi to preserve and protect her answer scripts of part A and B of paper no. B-101 and B. Com. Part II Examination, 2016, to provide copies of revalued answer sheets and award sheet to the Appellant at Rs. 2 per page, restrain/ prohibit the Asst. Controller of Examinations (Rev.) from charging Rs. 750/- as fee prescribed by the University as per order dated 03.05.2012 as it was contrary to Section 22 of the RTI Act and impose penalty on the CPIO/ FAA.
The Commission at the outset referred to the definition of right to information u/s Section 2(j) of the RTI Act, 2005 which is reproduced below:
" (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 the right to
(i) Inspection of work, documents, records"
The Commission further observed that the Hon'ble Supreme Court in the matter of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP(C) NO. 7526/2009 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 observation made in the judgement 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 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 Page 3 of 6 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 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.
The issue pending adjudication before the Hon'ble Supreme Court of India in the matter of ICSI vs. Paras Jain SLP (No) 12692/2014 was essentially pertaining to payment of charges as prescribed under the Act or as per the rules framed by the concerned institution. The issue of allowing inspection of answer sheet without availing the copies of the same thereof is admittedly an entirely distinct matter. The provisions of Rule 4 of the RTI Rules, 2012 provide for stipulating the fee for furnishing information as per which different fee is levied for obtaining hard copy of a document/ record vis a vis' the fee levied for seeking inspection of records. The relevant extract of the rules is mentioned as under:
"4. Fees for providing information.--Fee for providing information under sub-section (4) of Section 4 and sub-sections (I) and (5) of Section 7 of the Act shall be charged at the following rates, namely :--
(a) rupees two for each page in A-3 or smaller size paper;
(b) actual cost or price of a photocopy in large size paper;
(c) actual cost or price for samples or models;
(d) rupees fifty per diskette or floppy;
(e) price fixed for a publication or rupees two per page of photocopy for extracts from the publication;
(f) no fee for inspection of records for the first hour of inspection and a fee of rupees 5 for each subsequent hour or fraction thereof; and
(g) so much of postal charge involved in supply of information that exceeds fifty rupees."
Moreover, the Commission also observed that in a recent decision in CIC/UODEL/A/2017/140992-BJ+ CIC/UODEL/A/2017/603074-BJ dated 18.06.2018 it had held that the student was entitled to inspection of his/ her answer sheet. The said decision was also challenged before the Hon'ble High Court of Delhi in the matter of the University of Delhi Page 4 of 6 vs. Shri Mohit Kumar Gupta and Anr in W.P.(C) 9993/2018 dated 24.09.2018, wherein the Court while fixing the next date of hearing in the matter on 30.01.2019 held as under:
"It is clarified that this Court has not stayed the impugned order dated 18.06.2018 and inspection of the evaluated answer sheet shall be provided to the respondent no. 1 as directed. The question whether a student had any right to seek inspection of his/ her answer sheet will be considered on the next date."
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 involved Larger Public Interest affecting the fate of all the students who wish to obtain information regarding their answer sheet/ marks obtained by them 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 ought to be allowed as per the provisions of the RTI Act, 2005.
The Constitution Bench of the Hon'ble Supreme Court of India in the landmark judgement of Olga Tellis and Ors. vs. Bombay Municipal Corporation 1985 SCR Supl. (2) 51 dated 10.07.1985 while recognising right to livelihood as being facet of the right to life enshrined under Article 21 held as under:
"Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of Page 5 of 6 the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have tobe in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life."
DECISION Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to facilitate inspection of her own revalued answer sheet to the Appellant and furnishing copies in accordance with the extant guidelines as enunciated in the Apex Court judgment of Kumar Shanu and Anr. vs Central Board of Secondary Education in Contempt Petition (Civil) No. 1255/2018 in Civil Appeal No. 6454/2011 dated 29.10.2018 on a mutually convenient date and time within a period of 15 days from the date of receipt of this order.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 20.11.2018
Copy to:
1- The Secretary, D/o Higher Education, M/o HRD, 127-C, Shastri Bhawan, New Delhi - 110001 2- The Vice Chancellor, University of Delhi, North Campus, Delhi-110007 Page 6 of 6