Central Information Commission
Mrvarun Sudan vs Ministry Of Law & Justice on 16 December, 2015
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/SA/C/2015/000102
Varun Sudan v. PIO, Bar Council of India
Important Dates and time taken:
RTI: 24.01.2015 SA: 12.03.2015 Hearing: 14.10.2015
Result: Complaint closed. Decision: 16122015
Observation : Disclosure of OMR sheet
Parties Present:
1. Complainant is not present. Mr. Awanish Kumar Pandey, Asstt. Sec. CPIO
represents Public Authority.
FACTS:
2. Complainant by his RTI application had sought attested photocopy of OMR sheet of roll no. 1501469. Having received no information, complainant approached the Commission. Proceedings Before the Commission:
3. The CPIO stated that complainant had filed application along with required fee for reevaluation of answer sheet, the agency which conducted the examination had re evaluated the answer sheet but found the he failed in examination. Even after the re evaluation his marks stood at 27 out of total 100, hence, declared failed. The CPIO also stated that they had denied copy of OMR sheet as per 2013 resolution of BCI. FAA in his order directed CPIO of BCI to contact the applicant and ask him to be present at re evaluation. Accordingly, BCI arranged for the visit of the appellant, but he did not turn up in the reevaluation.
Decision:
4. Disclosure of answer sheets/OMR sheet has become a norm in post Right to Information era. This was upheld by the Hon'ble Supreme Court of India in the case of CBSE Vs Aditya Bandopadhayay and Others (2011) 8 SCC 497. Subsequently various High Courts have also reiterated the same view. Central Information Commission in the case of S.K Pawar vs Railway Recruitment Board [CIC/AD/A/2010/001326/BS/4005] had observed as follows:
"It is seen that a Division Bench of the Calcutta High Court while dealing with a similar issue (viz. allowing inspection of the answer scripts to an examinee) vide decision dated 05/02/2009 in the matter of Aditya Bandopadhyay vs. CBSE & Ors (W.P. No. 18189 (W) of 2008) has held as under:
"We, however, consider the CIC to be perfectly justified in recommending to the examining bodies furnishing of assessed/evaluated answer scripts to the examinees upon publication of results so as to obviate any apprehension in their minds of unfair or arbitrary marking of the answers written by them. We hope and trust that the day is not far away when the WBBSE, the CBSE and the University shall accept such recommendation.
On a wholesome appreciation of the submissions advanced on behalf of the public authorities, there appears to be a frantic attempt on their part to shield the examiners. But should errant examiners be protected? The CBSE has even cited clause (e) of Section 8(1) as a ground for not allowing inspection of an answer script to any examinee............... The plea of fiduciary relationship, advanced by the CBSE has not impressed us. relationship is not to be equated with privacy and confidentiality............................ .............We have no hesitation to hold that even if there be any agreement between the public authority and the examiner that the assessment/evaluation made by the latter would be withheld on the ground that it is confidential and an assurance is given in this respect, the same cannot be used as a shield to counter a request from an examinee to have access to his assessed/evaluated answer scripts and the RTI Act would obviously override such assurance. Having regard to our understanding of the meaning of the word 'fiduciary', there is little scope to hold that the etchings/markings made on answer scripts by an examiner are held in trust by the public authority immune from disclosure under the RTI Act. We find no force in the contention which, accordingly, stands overruled."
The Supreme Court in Civil Appeal No. 6454 of 2011 vide order dated 09/08/2011 while affirming the abovesaid order has held as under: 27.
We, therefore, hold that an examining body does not hold the evaluated answerbooks in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answerbooks. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees."
In the light of the dicta aforesaid of the Supreme Court and which if applicable to the facts of the present case is binding on this Commission and we are not required to look into any other aspect of the matter or otherwise of the reasoning given by the respondent. Moreover, it is seen that this Commission has been consistently following the ratio of the above Apex Court decision while deciding subsequent matters (viz. (i) case no. CIC/SS/A/2011/000867 titled Shri A. Prakash vs. Department of Revenue & Disaster Management, Puducherry dated 07/09/2011; (ii) case no. CIC/DS/A/2011/904400/RM Shri Sreejith K.K, Andhra Pradesh vs. UGC, National Educational Testing Bureau, New Delhi dated 18/02/2013; (iii) decision dated 13/09/2013 in Mr. Jawahar Singh vs. CPIO & Asstt. Director General (DE), Department of Posts, New Delhi case no. CIC/BS/A/2012/001136 & (iv) decision dated 01/11/2013 in Ms. Geeta Rani Panda, Sambalpur vs. Navodaya Vidyalaya Samiti, Noida being case no. CIC/RM/A/2013/000643) and has been allowing the disclosure of OMR/answer sheet(s) to the candidates themselves who have sought such information from the examining bodies/public authority.
In view of the foregoing the PIO is directed to supply copy of the OMR answersheet(s) of the appellant to him within 15 days from the date of receipt of this order. However, those portions of the OMR answer sheet(s) which contain information regarding the examiners/ coordinators/ scrutinizers/head examiners or which may disclose their identity with reference to the signature or initials, may be removed, covered, or otherwise severed."
5. Hon'ble Delhi High Court in the case of Indian Institute of Technology v. Navin Talwar [(2011) ILR 3Delhi536], wherein while upholding the decision of Central Information Commission regarding disclosure of OMR sheet, had observed as follows :
"15. The right of a candidate, sitting for JEE or GATE, to obtain information under the RTI Act is a statutory one. It cannot be said to have been waived by such candidate only because of a clause in the information brochure for the JEE or GATE. In other words, a candidate does not lose his or her right under the RTI Act only because he or she has agreed to sit for JEE or GATE. The condition in the brochure that no photocopy of the ORS sheet will be provided is subject to the RTI Act. It cannot override the RTI Act."
6. Gujarat National Law University which conducted the CLAT 2014 started a good practice wherein every individual candidate would be provided their OMR sheets in their registered account for examination. This practise of GNLU helped the students verify their answers from the keys, thereby ensuring transparency on the part of University and satisfaction for the candidates. This practice was also followed by RM N. L. U. which was the organising CLAT 2015 admission test for national law schools in India. The relevant press release of GNLU is extracted below:
"Gujarat National Law University, as CLAT2014 Organising University has declared CLAT 2014 results which are available on clat.ac.in. Individual candidates can see their results along with a complete merit list by logging into their personal login account. 29,647 out of 33,491 registered UG and 2,025 out of registered PG candidates appeared for the examination in 21 cities which was held on 11 May 2014.
GNLU was required to withhold the results declared on 31 May 2014. Following the identification of mismatch between the barcode sticker on the front page and candidate sticker in the backpage in few cases, the GNLU immediately decided to conduct reconciliation of all OMR answer sheets (approx 32,000). The aim was to ensure full and complete verifiable accurate examination results based on the mammoth exercise of reconciliation of all details i.e. OMR answer sheets, question paper booklets, attendance registers, admit card details, etc., as soon as possible. GNLU deeply sympathizes with the anxiety in connection with the declaration of results.
NLSIU, Bangalore (Karnataka); NALSAR, Hyderabad (Andhra Pradesh); NLIU, Bhopal (Madhya Pradesh); WBNUJS, Kolkata (West Bengal); NLU, Jodhpur (Rajasthan); HNLU, Raipur (Chattisgarh); GNLU (Gandhinagar); RMLNLU, Lucknow (Uttar Pradesh); RGNUL, Patiala (Punjab); CNLU, Patna (Bihar); NUALS, Kochi (Kerala); NLUO, Cuttack (Odisha); NUSRL, Ranchi (Jharkhand); NLUJA, Guwahati (Assam) admit students in UG and PG courses on the basis of CLAT. Tamil Nadu National Law School (TNNLS Tiruchirappalli) and Damodaram Sanjivayya National Law University (DSNLU - Visakhapatnam) have been given provisional admission into CLAT2014, subject to fulfilment of certain conditions. In addition to above, several universities, institutions and colleges use CLAT results for admitting candidates into UG and PG courses. Furthermore, the CLAT results are also used for purposes of recruitment of law graduates by several corporations and institutions across the country.
GNLU, as the Organising University introduced the following new features in CLAT 2014.
1. Introduction of full and complete online registration, counselling and admission process to save money, efforts and time on part of students, parents, guardians and all stakeholders;
2. Individual webpage for all registered candidates;
3. Indirect creation of huge IT awareness as all required documents of candidates are now available in electronic form. The candidates now have electronic repository of their documents which would be helpful to them beyond CLAT 2014, thus, making best use of information technology;
4. Extension of timeline upon requests from parents and candidates in view of elections and rescheduling of board exams in various states which shortened the critical preparation period for us in conducting examination of the highest number of candidates in a smooth manner across 21 cities;
5. Publication of question paper with answer keys before the results and obtaining feedback from candidates and other stakeholders;
6. Availability of individual OMR answersheet in login account along with the question paper and the corresponding answer key; and
7. Option of physical verification of all relevant documents at CLAT Secretariat in Gandhinagar, in case, if required by the candidates.
Important Note: Candidates wishing to physically view their OMR answer sheets may fill in the form available on the CLAT website and can visit the CLAT 2014 Secretariat in Gandhinagar, along with their admit card and proof of identity, from Saturday, 7 June till Tuesday, 10 June 2014 from 1000 to 1700 hours. The commencement of online counselling and admission for the first 2500 meritcumpreference candidates will begin from Saturday, 7 June 2014.
On behalf of all participating NLUs, GNLU thanks everyone for their valuable suggestions, during last 8 months, in conducting the CLAT 2014."
7. Based on the above facts, circumstance, law and reasoning, the Commission directs the Bar Council of India, who is conducting the All India Bar Examination to be transparent by following the practise of the CLAT examination for National Law Universities as referred above. This practise will not only ensure fulfilling of the transparency requirement of Right to Information Act, but will also ensure that all the candidates are satisfied with information about their results besides preventing plethora of RTI requests which might take away quality time of the public authority. The information sought thus falls under category of information to be disclosed on their own under Section 4(1)(b) of RTI Act.
8. It is the legal and contractual duty of Bar Council of India, which charges substantially to inform the complete result to each and every candidate appearing the All India Bar Examination.
9. Exercising the power under section 19(8)(a)(iii)/(iv), the Commission directs the BCI to provide candidate wise OMR sheets to all the candidates and to make necessary changes to its practice of publishing results, accordingly, so that each candidate will get his detailed result including OMR sheet, question paper and corresponding answer key.
10. The BCI is, hereby, directed to file a compliance report with the Commission within 30 days from date of receipt of this order.
(M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (U. C. Joshi) Deputy Secretary Addresses of the parties:
1. The CPIO under RTI, Bar Council of India, 21, Rouse Avenue Institutional Area, New Delhi110002.
2. Shri Varun Sudan, Chamber No. 247 IInd Floor, Lawyers Chamber, Dist. Court, Ludhiana, Punjab.