Central Information Commission
Gyaneshwar Mani vs Central Board Of Direct Taxes on 25 September, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
िशकायत सं या / Complaint No.:- CIC/CBODT/C/2017/145403-BJ
Mr. Gyaneshwar Mani,
.... िशकायतकता
/Complainant
VERSUS
बनाम
CPIO,
Central Board of Direct Taxes, RTI Cell,
O/o Addl. DG (Exam), 5th Floor,
Mayur Bhawan, Connaught Circus, New Delhi-110001
... ितवादीगण /Respondent
Date of Hearing : 24.09.2018
Date of Decision : 25.09.2018
Date of filing of RTI application 17.03.2017
CPIO's response Not on record
Date of filing the First appeal Nil
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission 04.07.2017
ORDER
FACTS:
The Complainant vide his RTI application sought information regarding the copy of the Paper 4 of his Answer Book of ITO Exam (Normal Pattern) 2016.
Dissatisfied due to non-receipt of any response from the CPIO, the Complainant approached the FAA. The reply of the CPIO/ FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Absent;
Respondent: Mr. R. P. Mahato, ITO / CPIO; and Mr. Jagbir Singh, AO;Page 1 of 5
The Complainant remained absent during the hearing. Ms. Pranali Shinde, Network Engineer NIC studio at Thane confirmed the absence of the Complainant. The Respondent explained that a suitable reply had been sent to the Complainant vide their letter dated 28.06.2017 and the Applicant was advised to inspect the answersheet. Thereafter, the First Appeal was also dealt with appropriately.
The Commission was in receipt of a written submission from the Respondent, O/o the ADG (Exam and OL), New Delhi dated 17.09.2018 wherein it was stated that the FAA had not received the First Appeal, till date. However, on receipt of the notice of hearing, the FAA had passed an order on 14.09.2018 and also sent a copy of the answer sheet of Paper-IV ITO Exam, 2016 as sought by the Applicant. Thus, it was prayed that the information sought by the Complainant be treated as furnished and the CPIO/ FAA be exempted from the appearance before the Commission.
The Commission was also in receipt of another written submission from the Respondent, (Dy. DIT (Exam-cum-FAA), Directorate of Examination, New Delhi) dated 14.09.2018 wherein it was stated that on receipt of the RTI application on transfer u/s 6 (3), the CPIO had passed an order in accordance with the direction of the authorities on 28.06.2017 and requested the applicant to come directly to inspect his answer sheet. But neither did he come to inspect his answer sheet nor he filed the First Appeal as per the record of their office but filed the Second Appeal before the Commission. Although, he did not file the first appeal, nor complied with the request of the CPIO, his answer sheet of Paper IV for ITO Exam (Normal pattern), 2016 had been sent to him on 14.09.2018.
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 Page 2 of 5 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 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."
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."Page 3 of 5
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.
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 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 Page 4 of 5 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 Complainant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION Keeping in view the facts of the case and the submissions made by the Respondent and in the absence of the Complainant, no further intervention of the Commission is required in the matter.
The Complaint 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: 25.09.2018
Page 5 of 5