Central Information Commission
Muralidhara An vs Department Of Posts on 17 February, 2021
Author: Uday Mahurkar
Bench: Uday Mahurkar
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग,मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.:- CIC/POSTS/A/2019/601074.-UM
Mr. Muralidhara AN
....अपीलकर्ता/Appellant
VERSUS
बनतम
CPIO
Director (B&A) Postal Accounts Wing,
Department of Posts, Dak Bhawan,
New Delhi - 110001
प्रनतवािीगण /Respondent
Date of Hearing : 15.02.2021
Date of Decision : 17.02.2021
Date of RTI application 08.10.2018
CPIO's response 06.11.2018
Date of the First Appeal 17.11.2018
First Appellate Authority's response 24.12.2018
Date of diarized receipt of Appeal by the Commission 16.01.2019
ORDER
FACTS The Appellant vide his RTI application sought information on 04 points in respect of AAO cadre of IP & TFS under AAO RR-2018 held from 5th to 8th July, 2018 which are as under:-
1. Copy of his answer script paper I to VI.
2. Marks list of all the candidates appeared with their Roll No.
3. Copy of Key answers Paper I to VI.Page 1 of 10
4. List of selected candidates with their date of Entry into service, length of service, education qualification & initial post at the entry time.
The CPIO, vide letter dated 06.11.2018, provided a point-wise response to the Appellant wherein for point no. 01, the answer sheet was denied referring to the decision of the Hon'ble Supreme Court in the matter of UPSC vs. Angesh Kumar. Dissatisfied with the reply of the CPIO, the Appellant approached the FAA. The FAA, vide order dated 24.12.2018, concurred with the reply of the CPIO. Thereafter, the Appellant filed a Second Appeal before the Commission with a request to provide the requested information.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Murlidhara A N, through VC;
Respondent: Mr. Shree Ram, Director along with Mr. Amit Tripathi, AO, in person.
The Appellant reiterated the contents of his RTI Application and submitted that the information sought were related to his own answer sheets which were wrongly denied by the CPIO / FAA. The Appellant further submitted that in every departmental examination there is clear provision for providing photocopies of own answer sheet. Therefore, the information sought pertaining to his own answer sheet should be furnished to him. With regard to Appellant's own answer sheet, the Respondent present during the hearing submitted that the competent authority has directed to file the appeal before Hon'ble High Court of Delhi against the decision of the Commission dated 04.12.2020 wherein direction was passed for disclosure of answer sheet in the case of Shri Srijith K Kamath. On being queried by the Commission regarding reasons for denial of Appellant's own answer sheet to him, no cogent response was offered by the Respondent who further reiterated his earlier submission regarding filing of Appeal before the Delhi High Court. Furthermore, the Appellant while referring to the Official Notification vide no. 3-37/2016-DE/PACE/AAO Examination/459, dated 19.04.2018, submitted that with regard to display of result it is mentioned at para 14 (page 12 of 24) that "only those candidates who secure qualifying marks in all the papers will be considered for preparation of merit list. The merit list along with marks obtained by all candidates will be displayed on www.indiapost.gov.in. The individual mark sheets will not be sent to applicants". In reply to which the Respondent submitted that he is not in a position to Page 2 of 10 comment on the same and have to refer to the concerned person in the Department. The Respondent after verifying the same with his colleague, submitted that the merit list / list of selected candidates has not been uploaded on their official website, as per information.
Furthermore, for point no. 3 of the RTI Application, the Respondent submitted that the matter is sub-judice before the appropriate court and hence, the standard answer key for the requested subjects cannot be furnished.
The Commission was in receipt of a written submission from the Respondent dated 12.02.2021 wherein para-wise reply is furnished as under:
1. (a). As per the judgement of Hon'ble Supreme Court in the matter of UPSC vs. Angesh Kumar, in Civil Appeal No. (s) 6159-6162 of 2013 answer sheet cannot be revealed.
(b). Further, Hon'ble CIC has directed the CPIO in the case of Sh. Srijith K. Kamath to provide his answer sheet vide order dated 04.12.2020.
(c). The Competent Authority has directed to file the appeal before Hon'ble High Court of Delhi. The necessary instructions for filing the appeal have been sent to the Dept of Legal Affairs & Incharge (Lit). HC section High Court of Delhi vide their office letter dated 06.01.2021.
(d). The DoP is pursuing with litigation Cell of Hon'ble High Court of Delhi. The outcome of the case will be submitted to the Commission as and when the same is received.
2. The information sought relates to a third-party information, hence cannot be provided.
3. Pursuant to the decision of Hon'ble CIC dated 24.11.2020, the information shall be disclosed only after completion of the whole process of LDCE. 2018 for AAO.
4. No such information is available with this CPIO in a compilation/ material form, hence cannot be supplied.
The Commission was in receipt of an email from the Respondent dated 16.02.2021 after completion of hearing wherein it was submitted as under:-
"With due respect your kind attention is invited to the hearing held, in your court in the matter stated above, held yesterday at 12.20 hrs. The appellant requested your good self to direct the CPIO to upload the result of Limited Departmental Competitive Examination for promotion to AAO declared on 1-10-2018 as mentioned in the notification issued for the examination. The result of successful candidates was uploaded on the website www.indiapost.gov.in under the link Employees corner on 01-10-2018 .This can be confirmed even today. The statement of the appellant was wrong in the light of availability of result on the specified website. This is for your kind information and necessary action."
The Commission at the outset observed that the issue to access of his / her own answer sheet by a candidate had been long settled. The Hon'ble Supreme Court in the matter of CBSE and Anr. v.
Page 3 of 10Aditya Bandopadhyay and Ors. SLP (C) No. 7526/2009 decision dated 9th August, 2011 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 observations made in the judgment 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 judgment "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."
It was furthermore stated in Para 18 of the above mentioned judgment "In these cases, the High Court has rightly denied the prayer for reevaluation of answer- books sought by the candidates in view of the bar contained in the rules and regulations of the examining bodies. It is also not a relief available under the RTI Act. Therefore the question whether reevaluation should be permitted or not, does not arise for our consideration. What arises for consideration is the question whether the examinee is entitled to inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to the rules or bye-laws of examining bodies, but under the RTI Act which enables them and entitles them to have access to the answer- books as 'information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye- laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body is able to demonstrate that the answer-books fall under the exempted category of information described in clause (e) of section 8(1) of RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies is barred under the Page 4 of 10 rules/bye-laws of the examining body governing the examinations. Therefore, the decision of this Court in Maharashtra State Board (supra) and the subsequent decisions following the same, will not affect or interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof."
The aforesaid decision of the Hon'ble Supreme Court of India CBSE and Anr. V. Aditya Bandopadhyay was further relied in the decision 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.
The Commission also referred to several other decisions pertaining to disclosure of a candidate's own answer script. 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 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 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 Page 5 of 10 they deserved for the answers written by them. Therefore the reason given in Ext P3, by the 1st respondent, is patently unsustainable."
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.
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 / candidates who wish to obtain information regarding their own 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 / candidates ought to be allowed as per the provisions of the RTI Act, 2005.
The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain such as selected candidates list / merit list etc., should be the rule and Page 6 of 10 members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo-motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision ofGeneral Manager Finance Air India Ltd &Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the 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. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of Page 7 of 10 independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
The Hon'ble High Court of Bombay in the matter of Sayyed Education Society v. State of Maharashtra, WP 1305/2011 dated 12.02.2014 had held that public authorities are under a statutory obligation to maintain records and disseminate as per the provisions of the Section 4 of the RTI Act, 2005. The High Court in this respect, held as under:
"Needless to state that as observed by the Hon'ble Apex Court in paragraph No. 14 in the case of CBSE and Another (supra), Public Authorities are under an obligation to maintain records and disseminate the information in the manner provided under Section 4 of the RTI act. The submission of the petitioner that it is an onerous task to supply documents, therefore is required to be rejected. The Law mandates preserving of documents, supplying copies thereof to the applicant, in our view, cannot be said to be an onerous task."
Above all the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 had held as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."Page 8 of 10
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above pertaining to the right of a candidate to seek his / her own answer sheet/ marks obtained by him/ her, the Commission directs the First Appellate Authority, D/o Posts, to furnish a copy of his own answer sheets to the Appellant as sought in the RTI Application under point no. 1, within a period of 15 days from the date of receipt of this order under the intimation of this Commission.
The Commission further directs that with regard to point no. 2 of the RTI application and in the light of the notification No. 3-37/2016-DE/PACE/AAO Examination/459, dated 19.04.2018, Para 14 (page 12 of 24), the Merit List of all the qualifying candidates be published in the Official Website of the Respondent within 30 days from the date of receipt of this order in accordance with the provisions of Section 4(1) (b) of the RTI Act, 2005. The action taken in this matter should be intimated to the Commission as well. The Commission further observes that the information sought on part of the information on point 02 such as "marks list of all the candidates appeared" as also on points 3 and 4 of the RTI Application, a suitable reply has been furnished by the Respondent hence, no intervention of the Commission is required in these points.
The Commission further 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 with the above direction.
(Uday Mahurkar) (उिय माहूरकर) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत एवं सत्यानपत प्रनत) (R. K. Rao) (आर.के . राव) (Dy. Registrar) (उप-पंजीयक) 011-26182598 / [email protected] दिनांक / Date: 17.02.2021 Page 9 of 10 Copy to:
1. ADG (PA Admin) and FAA, Department of Post, P A Wing, 4th Floor, Dak Bhawan, Sansad Marg, New Delhi - 110 001 Page 10 of 10