Central Information Commission
Neeraj Salodkar vs Securities And Exchange Board Of India ... on 28 December, 2022
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: - CIC/SEBIE/A/2021/632646
In the matter of
Neeraj Salodkar
... Appellant
VS
Central Public Information Officer
Securities and Exchange Board of India
SEBI Bhawan, Plot No. C4-A, G-Block,
Bandra Kurla Complex, Bandra (E)
Mumbai - 400 051
...Respondent
RTI application filed on : 24/03/2021 CPIO replied on : 19/04/2021 First appeal filed on : 19/04/2021 First Appellate Authority order : 18/05/2021 Second Appeal dated : 26/07/2021 Date of Hearing : 27/12/2022 Date of Decision : 27/12/2022 The following were present: Appellant: Present over VC
Respondent: Santosh Kumar Sharma, CGM and CPIO alongwith Pramila Sridhar, CPIO, present over phone (Due to VC unavailability in Bandra East) Information Sought:
The appellant has sought the following information:
1. Provide a copy of the question paper of the SEBI Grade A (Legal stream) Examination held on 27/02/2021. (No, they are not aware of teh questions)
2. Provide a copy of the model answer key for the said examination.
(nobody provides) 1
3. Provide a copy of the answers given by the candidate with Roll No. 1621001267 and registration No. 1870117054. (answer scripts are not available) Grounds for filing Second Appeal:
The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant in his second appeal submitted that the examination was completely online. Moreover, the question paper, the answer key and even the score card were not shared with the candidates. He also informed that the results were declared on 18th March 2021.
He sought a copy of the information sought by him in the original application and also declaration of IBPS as a Public Authority under the Right to Information Act, 2005.
He relied on a decision in Sh. Krishan Kumar Gupta v. Central Public Information Officer, IBPS [Complaint no. CIC/MP/C/2016/00219], wherein it was held that "it is clear from the record and the statement made by the complainant that the respondent has conducted examination on behalf of the Allahabad Bank, therefore, Allahabad Bank is also the custodian of records" and "the Deputy Registrar is directed to send a complete file to the CPIO Allahabad H.O, who in turn should reply to the appellant on his RTI application dated 23.06.2016, within 30 days from the date of receipt of this order. The CPIO, Allahabad Bank H.O., if necessary, may take assistance from the respondent."
He pointed out that in the above case; on 29.09.2017 the CIC in its decision stated that even though the IBPS is not a Public Authority within the framework of the Right to Information Act, 2005, the bank which conducted the examination through the IBPS is the custodian of the information. The Allahabad Bank was held to be the custodian of information and was directed to furnish the information.
He further submitted that the above facts apply directly to the appeal at hand. IBPS conducted the examination for SEBI and so, using the ratio decidendi of 2 the above judgement of the CIC, SEBI becomes the custodian of the information and must be compelled to furnish the information.
He further relied on a decision in Priyanka Tyagi v. Reserve Bank of India Appeal no. CIC/MP/A/2014/002534, 29/09/2017 the following was held by the CIC:
"(f) "information" means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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."
In view of this, it is essential that Banks/Insurance Companies should provide information after getting records from IBPS. Where recruitment is being done for several Banks, a nodal Bank should be appointed which should receive all records from IBPS and reply to RTI applications and grievances etc. This measure is necessary to restore the confidence of the public in the recruitment/promotion process of the banks, insurance companies. Wide publicity to this arrangement should be given to enable candidates/employees/public to lodge RTI applications." Also, the following was also said:
"The Commission is of the view that public authorities like Public Sector Banks, Public Sector Insurance Companies etc. should evolve a system to ensure accountability and transparency in the recruitment of fresh candidates and promotion of employees. The Commission is of the view that the IBPS is working as an outsourced agent for the public authorities viz Banks etc. The present situation is that IBPS is not a public authority. The Banks, Insurance Companies etc. in the public sector are public authorities. In pursuance of the RTI Act, 2005, these public authorities are fully responsible as per the RTI Act, 2005 to maintain transparency and accountability in fresh recruitments and promotions. However, today neither Bank/Insurance Cos., nor IBPS is providing this information. The Commission is of the view that since IBPS is not a public authority, Banks 3 and Insurance Companies should be answerable to the candidates/employees/public for providing information on recruitment/promotion process. They should also address grievances in the matters. The Commission is receiving large number of appeals/complaints and grievances with regard to recruitment/promotion process followed by IBPS."
He summed up stating that for the sake of transparency, it is imperative that SEBI furnishes a copy of the following: a) The question paper; b) The answer key; c) The score card He also stated that all this should be published for the sake of transparency and fairness. The present situation in the IBPS mandates that the candidates get nothing after giving the examination. He argued that delegation of an important work from the government to the private sector does not shirk off the duty of the government to remain fair and transparent. In case the IAS and UPSC examinations are delegated to a private organization, the UPSC still has the responsibility of being transparent and fair. The Public Authority must remain responsible for the actions, even though the same may be delegated to a private authority.
He relied in Central Board of Secondary Education and another v. Aditya Bandopadhyay and others (2011) 8 SCC 497, wherein the following was held:
"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 further held that "Having regard to Section 3, the citizens have the right to access to all the information held by or under the control of any public authority except those excluded or exempted under the Act. The object of the Act is to empower the citizens to fight against corruption and hold the Government and their instrumentalities accountable to the citizens, by providing them access to information regarding functioning of every public authority."
4He further relied on the decision in Cyril Michael and others v. Institute of Banking Personnel Selection (IBPS) [CIC/SM/A/2010/000873], where in the year 2012 the IBPS was declared to be a public authority. He also stated that the decision of the CIC was set aside by the CIC itself in Ashwani Kumar Avasthi v. IBPS [CIC/DS/A/2011/000802] on 09.01.2012. It was held that the IBPS is not a public authority under the RTI Act, 2005.
Observations:
At the outset it was noted that in Ashwani Kumar Avasthi v. IBPS [CIC/DS/A/2011/000802] on 09.01.2012, it was held as follows by the CIC:
2. The second issue is whether RTI Act, 2005 is applicable to the IBPS, Mumbai (Institute of Banking Personnel Selection). The IBPS has been permitted by the Department of Financial Services, Ministry of Finance, Government of India vide letter no. 10/30/1/2010IR dated 20 September 2010 to conduct Common Recruitment Programme for selection of both Clerks and Officers in Public Sector Banks. This means that the Government of India, vide this letter, has delegated monopoly power for recruitment in Public Sector Banks to the IBPS, Mum bai probably at the behest of the Public Sector Banks as such a proposal was sent to the Ministry by the Indian Appeal: No. CIC/DS/A/2011/000802 Banks Association Mumbai vide letter no. HR & IR/MV/Govt./S/1120 Dated 21.08.2010 IBPS is an autonomous body registered as a Public Trust under the Bombay Public Trust Act of 1950 and as a Scientific and Industrial Research Organization by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. Further, the Governing Board of IBPS consists of nominees from Reserve Bank of India, Ministry of Finance (Government of India), National Institute of Bank Management, representatives of Public Sector Banks, and Insurance Sector. The matters related to policy and affairs of the Institute are vested in the Governing Board.
This leads us to conclude that IBPS is an organization which is controlled by the Government as well as agencies and instrumentalities of the State falling under the heading "other authorities" within the meaning of Article 12 of the Constitution of India.
5In Kishan Kumar Gupta v. IBPS [CIC/MP/C/2016/000219], the Chief Information Commissioner (CIC) held that the IBPS had conducted the examination on behalf of the Allahabad Bank; therefore, Allahabad bank is the custodian of the information. It was directed by the CIC to furnish the information about the results of the examination to the complainant.
Primarily, the issue at hand is whether the information sought by the appellant can be provided by SEBI. As far as the appellant's prayer for declaring IBPS as a public authority is concerned, the same is not being adjudicated by this bench as the RTI application was not filed with IBPS.
Be that as it may, it was found pertinent to discuss the legal position, at the present juncture and the Commission noted that the Supreme Court of India in the matter of Rajbir Surajbhan Singh vs The Chairman, IBPS on 29 April, 2019 had held as under:
15. This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression "public duty". As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article 226 of the Constitution of India.
The above judgment was relied upon by the Kerala High Court in the case of Lathika.D vs IBPS, WP(C).No.18508 OF 2019(K) in its decision dated 24 January, 2020 as follows:
"The Apex Court has in the judgment in Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, Mumbai [2019 SCC OnLine SC 631] has held that the Writ Petition is not maintainable as against the 1st respondent under Article 226 of the Constitution of India. In the light of the same the petitioner does not deserve any relief from this Court under Article 226 of the Constitution of India."
On 16.12.2022 in WP(C).No.17635 OF 2020(D), the Kerala HC again relied on the following:
6"In Rajbir Surajbhan Singh v. Institute of Banking Personnel Selection:
(2019) 14 SCC 189 it was held in para.14 as follows:
"14. The respondent - Institute has been set up for the purpose of conducting recruitment for appointment to various posts in Public Sector Banks and other financial institutions. Applying the tests mentioned above, we are of the opinion that the High Court is right in holding that the Writ Petition is not maintainable against the Respondent. Conducting recruitment tests for appointment in banking and other financial institutions, is not a public duty. The Respondent is not a creature of a statute and there are no statutory duties or obligations imposed on the Respondent.
15. It is true that the Governor of Reserve Bank of India and the Chairmen of certain public sector banks along with the Joint Secretary, Banking Division, Ministry of Finance are members of the governing body of the respondent Institute. There is no dispute that the respondent is not constituted under a statute. It is also not disputed that the respondent does not receive any funds from the Government. The respondent is not controlled by the Government. The letter dated 20.9.2010 produced by the appellant along with the rejoinder-affidavit does not show deep and pervasive control by the Government of India. The question is whether the Council of Scientific and Industrial Research fell under "other authorities" within the meaning of Article 12 was referred to a seven-Judge Bench of this Court. (See Pradeep Kumar Biswas v. Indian Institute of Chemical Biology)."
In the matter of Priyanka Vs. The Director, Institute of Banking Personnel Selection (IBPS) & Ors. WP(C) No. 11 of 2019 decision dated 27.02.2020, the Meghalaya High Court held -
"that prayer that the respondent be directed to appoint the petitioner in the vacant posts of Office Assistant in the Meghalaya Rural Bank by operating the reserve list, it was held that the Court need not go into other aspects of the matter to decide this matter because the Supreme Court in Rajbir Surajbhan Singh Vs. The Chairman, Institute of Banking Personnel Selection, Mumbai has authoritatively held that the IBPS is not a State under Article 12 of the Constitution of India, therefore, the writ petition under Article 226 of the Constitution of India would not 7 be maintainable - the respondent-IBPS holds the recruitment for large number of Banks throughout the country, therefore, it has to be one- time exercise - When the candidates are selected on merit to different Banks, even if some of the candidates do not join, it is difficult to undertake another exercise for operating the reserve list, which is possible, only if the recruitment is held by a single recruitment agency for one employer or the employer itself."
Coming back to the question regarding the copy of the question paper of the SEBI Grade A (Legal stream) Examination held on 27.02.2021, is concerned, the SEBI was asked to take assistance from IBPS and examine whether the same being a limited question bank cannot be provided, or can be provided to which the CPIO submitted that they are not aware of the same. In respect of the model answer key, it was stated that no such answer key is available. Regarding the question whether the answer key was uploaded on the website after the examination by IBPS, no concrete answer could be given by the CPIO.
And as far as copy of the answers given by the candidate with Roll No. 1621001267 and registration No. 1870117054 are concerned, the CPIO should check whether candidates were allowed to access the answer sheets by IBPS in the portal for a limited time, if not, the same should be intimated to the appellant.
It was checked from the SEBI website and found that the List of roll numbers shortlisted were uploaded on their website. Moreover, in case IBPS is the agency conducting the examination the same was nowhere mentioned in the advertisement issued by SEBI. For instance, RRB conducting examination through IBPS issues notification also in the name IBPS CRP RRBs. Be that as it may, when the advertisement is issued by SEBI, results are declared on the SEBI website, the SEBI cannot brush aside its responsibility by stating that they are not maintaining such information or are not required to collect information. The outsourcing of a work is justified however, the same does not absolve the public authority from its responsibility of being transparent. The Delhi High Court in the matter of Registrar of Companies & Ors vs Dharmendra Kumar Garg & Anr on 1 June, 2012 held as follows:
831. In the context of the object of the RTI Act, and the various provisions thereof, in my view, the said expression ―held by or under the control of any public authority used in section 2(j) of the RTI Act deserves a wider and a more meaningful interpretaHon. The expression ―Hold is defined in the Black's Law dictionary, 6th Edition, inter alia, in the same way as ―to keep i.e. to retain, to maintain possession of, or authority over.
32. The expression ―held is also defined in the Shorter Oxford DicHonary, inter alia, as ―prevent from getting away; keep fast, grasp, have a grip on. It is also defined, inter alia, as ―not let go; keep, retain".
33. The expression ―control is defined in the Advanced Law Lexicon by P.N. Ramanatha Aiyar 3rd Edition Reprint 2009 and it reads as follows:
"(As a verb) To restrain; to check; to regulate; to govern; to keep under check; to hold in restraint; to dominate; to rule and direct; to counteract; to exercise a directing, restraining or governing influence over; to govern with reference thereto; to subject to authority; to have under command, and authority over, to have authority over the particular matter. (Ame. Cyc)"
34. From the above, it appears that the expression ―held by or ―under the control of any public authority, in relaHon to ―informaHon, means that information which is held by the public authority under its control to the exclusion of others. It cannot mean that information which the public authority has already ―let go‖, i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfilment of the prescribed conditions. This is so, because in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority ―holds or ―controls the same. There is no exclusivity in such holding or control. In fact, the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information. It is not this kind of information, which appears to fall within the meaning of the expression ―right to information, as the information in relation to which the ―right to 9 information is specifically conferred by the RTI Act is that information which "is held by or under the control of any public authority". The Delhi High Court in the matter of Election Commission Of India vs Central Information Commission & ... on 4 November, 2009 held as under:
The words "held by" in section 2(j) in the context of the RTI Act will include not only information under the legal control of the public authority but also all information which is otherwise available with them. The public authority should have dominion over the information or semblance of the right to the material which constitutes information. The words "held by or under the control of an public authority" are to be given a broad and wide meaning but at the same time cannot include information to which access is denied to a public authority itself under any other statutory enactment. If there is a prohibition or bar under an enactment and the public authority is disabled and prevented access to material or information, the bar or prohibition is not undone or erased by the RTI Act. Similarly, if there is a pre-condition before a public authority can access information under any other enactment, the said pre-condition should be satisfied. Right to information from a public authority requires the public authoritys corresponding right to access the said information. If there is an absolute or complete bar on the public authoritys right to access information then such information cannot be supplied and if there is a partial bar or pre-condition, then the pre- condition should be satisfied before information is furnished.
23. Thus, to word it differently, material/details to which the public authority has access must be furnished, subject to the exemptions under the RTI Act. However, if the public authority is denied access or cannot have access to due to any limitation or restriction under a WPC statute, the material does not constitute „information‟ under the RTI Act. Once statutory precondition for access by the public authority to material/details is satisfied, the material/details are "information" within the meaning of section 2(f) and a citizen has a right to access "information". The requirement is that the public authority should have right to access information which is "held by or under the control of any public authority".10
24. Any other interpretation of the foregoing sections of the RTI Act, will lead to incongruous and unacceptable results, with a statutory protection or prohibition in another enactment being nullified by filing an application under the RTI Act. The legislature has therefore in Section 2 (f) of the RTI Act, carefully used the words "accessed by a public authority under any other law" before a right to information accrues and information is "held by or under the control of any public authority."
Where a public authority is disabled till satisfaction of certain conditions or is prohibited from having access to any information, the provisions of the third enactment continue to apply and are not re-written or over- written by the RTI Act.
25. When information is accessible to a public authority and is held or under its control, then the information must be furnished to the information seeker under the RTI Act, even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act that restricts or prohibits access to information to public. Prohibition or conditions which prevent a citizen from having access to information in view of the non obstante clause in Section 22 of the RTI Act do not apply. Restriction on rights of citizens is erased. However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 22 of the RTI Act is a key which unlocks prohibitions/limitations in any prior enactment on right of a citizen to access information accessible to a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of public authority to access information.
In the matter of Cen.Pub.Information ... vs Subhash Chandra Agarwal on 13 November, 2019 the Supreme Court held as under:
"11. Both the terms ―public authority and ―informaHon have been broadly defined. Section 2(j) which defines the ―right to informaHon stipulates that the information accessible under the RTI Act is held by or under the control of any ―public authority, which is defined in Section 2(h) of the RTI Act. Section 3 of the Act confers on all citizens the 11 substantive right to seek information covered within the ambit of the Act, subject to its provisions."
Therefore, in light of the above discussion, the CPIO SEBI shall take assistance from IBPS as they have control over the information sought and provide a revised reply on all the three points.
Decision:
The CPIO's plea that IBPS is following their own rules and they have no responsibility to procure information was recorded. However, in the spirit of transparency, the CPIO was directed to coordinate with IBPS and then provide a revised reply on all the three points suitably addressing the queries raised by the appellant, within 7 days from the date of receipt of the order.The SEBI is also advised to devise a system of more transparency in providing information after various exams are held and co-ordinate with IBPS for the same to avoid unnecessary individual RTI applications on this matter in future. This advice is given in the interest of transparency in conducting exams and for the benefit of the examinees with regard to information being sought on this subject matter .Suo moto disclosure of maximum information on SEBI's website will go a long way in addressing the examinee's grievances.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सूचना आयु!त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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