Central Information Commission
Rajat Kumar Mehra vs Institute Of Chartered Accoutant Of ... on 8 October, 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/ICAOI/A/2017/151601
Rajat Kumar Mehra ... अपीलकता /Appellant
VERSUS
बनाम
CPIO, The Institute of Chartered ... ितवादीगण /Respondents
Accountants of India, ICAI Bhawan,
New Delhi.
Relevant dates emerging from the appeal:
RTI : 09.04.2017 FA : 09.06.2017 SA : 21.07.2017
CPIO : 08.05.2017 FAO : 07.07.2017 Hearing : 28.09.2018
ORDER
1. The appellant filed an application under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officer (CPIO), The Institute of Chartered Accountants of India (ICAI) seeking inspection of (i) Question paper of HCL series given to him in Information Systems Audit-Assessment Test (ISA- AT) Examination held at BHU, Varanasi on 24.12.2017, (ii) the answer keys to the above said question paper, (iii) the records where his actual marks were recorded Page 1 of 8 for declaration of result on 17.01.2017, and (iv) the records wherein his marks were scaled.
2. The appellant filed a second appeal before the Commission on the grounds that the reply given to him by the CPIO is misleading and evasive. Moreover, the CPIO has wrongly denied the inspection of question paper put to him and the model answer key under Sections 8(1)(d) & (e) of the RTI Act. The plea taken by the CPIO of question bank being limited is not tenable. Further, the CPIO failed to explain how Section 8(1)(j) of the RTI Act is applicable to seeking inspection of his actual marks. The appellant requested the Commission to direct the respondent to allow him to inspect the documents sought for by him in his RTI application, to impose penalty upon the respondent, to take necessary action against the erring officials and to award him compensation.
Hearing:
3. The appellant Shri Rajat Kumar Mehra and the respondent Shri Dinesh Kumar Mishra, Asstt. Secretary & CPIO, Ms. Seema Gerotra, Jt. Director & FAA, Shri Rajiv Seth, Jt. Secretary (Exams), ICAI, New Delhi were present in person.
4. The appellant submitted that the respondent did not provide the inspection of his question paper, relevant answer key, records pertaining to the actual marks secured by him and the records relating to scaling of his marks. Moreover, the CPIO had wrongly denied the inspection under Sections 8(1)(d), (e) and (j) of the RTI Act as he had only sought inspection of his own question paper, model answer key and the actual marks secured by him. Further, the plea of the respondent regarding limited question bank is not tenable as there is actually no limitation on Page 2 of 8 the number of questions that can be asked in ISA-AT examination. The appellant stated that with respect to point no. 3 of the RTI application, the respondent has stated that the marks of the candidate based on the correct answers given by him are awarded in the system only which also contains raw marks and scaling records of other candidates, hence, the inspection cannot be allowed under Section 8(1)(j) of the RTI Act. However, the Institute is bound to provide the actual marks secured by him as per the Hon'ble Supreme Court's judgment dated 04.02.2016 in Kerala Public Service Commission vs. State Information Commission & Anr. (Civil Appeal Nos. 823-854 of 2016) which has observed:
"10. .... Even disclosing the marks and the answer sheets to the candidates will ensure that the candidates have been given marks according to their performance in the exam. This practice will ensure a fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams ...."
Hence, the information sought for should be provided to him.
5. The respondent submitted that point-wise information as per the available records has been provided to the appellant vide letter dated 08.05.2017. The respondent reiterated that with respect to point nos. 1 and 2 of the RTI application, the appellant has been already informed in the reply (dated 30.3.2017) to his similar RTI application (dated 06.03.2017) seeking the copies of his question paper and model answer key that the ISA-AT is a specialized examination and the question bank for the same is set by experts and hence, is limited. Further, it is also the intellectual property of the Institute. Hence, the copies of the question paper cannot be disclosed to the appellant as it is exempt under Section 8(1)(d) of the Page 3 of 8 RTI Act. The Commission vide its order dated 24.07.2013 in Vandana Gupta vs ICAI (File No. CIC/SS/A/2013/002663) has upheld the above said view. Moreover, the model answer key is issued by the Examining Body to the Examiner which is available to them in their fiduciary relationship. The said position has also been reiterated and affirmed by the Apex Court in ICAI vs. Shaunak H. Satya (Civil Appeal No. 7571 of 2011 vide judgment dated 02.09.2011). The respondent further stated that providing inspection of the model answer key to the appellant would inevitably lead to the disclosure of the 'raw marks' awarded to him by the Institute which cannot be allowed. Hence, the disclosure of the Model answers/key is exempt under Section 8(1)(e) of the RTI Act. The respondent added that vide point no. 4 of the RTI application, the appellant has been informed that the scaling of marks has been done through the system only based on the topper's marks. Hence, no inspection can be provided to the appellant of the records relating to his actual marks and scaling of marks as these are awarded in the system only which also contains raw marks and scaling records of other candidates, hence, the inspection cannot be allowed under Section 8(1)(j) of the RTI Act.
Decision:
6. The Commission, after hearing the submissions of both the parties and perusing the records, observes that the respondent submitted that the ISA-AT is a specialized examination and the question bank for the same is set by experts and hence, is limited. Hence, the inspection of the question paper of the appellant sought vide point no. 1 of the RTI application cannot be provided to him. In this regard, the Division Bench of the Hon'ble Delhi High Court in All India Institute Page 4 of 8 of Medical Sciences vs. Vikrant Bhuria (LPA 487/2011, dated 28.05.2012) had observed as follows:
"15. ....There are few seats, often limited to one only, in such super- speciality courses and the examinees are highly qualified, post graduates in the field of medicine. Though the respondent, as aforesaid, has paid tributes to the faculty of the appellant and credited them with the ingenuity to churn out now questions year after year but we cannot ignore the statement in the memorandum of this appeal supported by the affidavit of the Sub-Dean (Examinations) of the appellant to the effect that the number of multiple choice questions which can be framed for a competitive examination for admission to a super-speciality course dealing with one organ only of the human body, are limited. This plea is duly supported by the prohibition on the examinees from copying or carrying out from the examination hall the question papers or any part thereof. We have no reason to reject such expert view."
7. The Commission further observes that the appellant has sought inspection of model answer/key to his question paper on point no. 2 of the RTI application. However, the respondent has submitted that providing inspection of the model answer key to the appellant would inevitably lead to the disclosure of the 'raw marks' awarded to him by the Institute which cannot be allowed. The Commission also notes that providing inspection of records relating to actual marks of the appellant and the scaling of his marks as sought vide point nos. 3 and 4 of the RTI application would also lead to disclosure of raw marks as the marks based on the number of correct answer found in the scanned answer sheet are awarded in the Page 5 of 8 system only. In this regard, the Commission observes that the Hon'ble Supreme Court in its judgment dated 20.02.2018 in Union Public Service Commission vs Angesh Kumar [Civil Appeal No(s). 6159-6162 of 2013] has held as under:
"(10) ....Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters."
In this context, the Commission also notes that the Hon'ble Supreme Court in the case of Sanjay Singh vs UPPSC (W.P. No. 165/2005) dated 09.01.2007 has observed:
"20. We cannot accept the contention of the petitioner that the words "marks awarded" or "marks obtained in the written papers" refers only to the actual marks awarded by the examiner. 'Valuation' is a process which does not end on marks being awarded by an Examiner. Award of marks by the Examiner is only one stage of the process of valuation. Moderation when employed by the examining authority, becomes part of the process of valuation and the marks awarded on moderation become the final marks of the candidate........"Page 6 of 8
In view of the above, the raw marks do not subsist at the end of the evaluation process and it is only the marks that are awarded at the end of the evaluation process that are relevant.
Further, in the case of Institute of Chartered Accountants of India vs. Shaunak H Satya & Ors. (Civil Appeal No. 7571 of 2011, judgment dated 2.9.2011), the Supreme Court held as under:
"16. The instructions and solutions to questions communicated by the examining body to the examiners, head examiners and moderators are information available to such persons in their fiduciary relationship and therefore exempted from disclosure under section 8(1)(e) of the Act and there is no larger public interest requiring denial of the statutory exemption regarding such information; the competent authorities under the RTI Act have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources."
8. In view of the above, inspection as sought by the appellant vide point nos. 1 to 4 of the RTI application cannot be allowed to the appellant. Hence, no further intervention of the Commission is required in the matter.
9. With the above observations, the appeal is disposed of.
Page 7 of 810. Copy of the decision be provided free of cost to the parties.
Sudhir Bhargava (सुधीर भाग व) Information Commissioner (सूचना आयु ) दनांक / Date 05.10.2018 Authenticated true copy (अिभ मािणत स यािपत ित) S. S. Rohilla (एस. एस. रोिह ला) Dy. Registrar (उप-पंजीयक) 011-26105682 / [email protected] Addresses of the parties:
1. The Central Public Information Officer (CPIO), The Institute of Chartered Accountants of India ICAI Bhawan, Indraprastha Marg, New Delhi- 110002.
2. Shri Rajat Kumar Mehra Page 8 of 8