Central Information Commission
Shishir Raj vs Indian Council Of Agricultural ... on 28 January, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
Decision no.: CIC/ICARH/A/2018/636862/02719
File no.: CIC/ICARH/A/2018/636862
In the matter of:
Shishir Raj
... Appellant
VS
Principal Scientist & CPIO - Education Divn.
Indian Council of Agricultural Research (ICAR)
Krishi Anusandhan Bhawan-II, Pusa, New Delhi - 110 012
...Respondent
RTI application filed on : 12/09/2018 CPIO replied on : 15/10/2018 First appeal filed on : 29/10/2018 First Appellate Authority order : 27/11/2018 Second Appeal dated : 12/12/2018 Date of Hearing : 27/01/2020 Date of Decision : 27/01/2020 The following were present:
Appellant: Shri Rajiv Bairagi, Representative, present over VC Respondent: Dr. Neeraj Rana, Principal Scientist and CPIO, present in person alongwith Dr. M.K Agnihotri, ADG (HRD) Information Sought:
The appellant (Roll No. 4300637 and Form No. 1089461) appeared for the ICAR-AIEEA-UG-2018 Examination held on 19/08/2018. He has sought a copy of the test booklet and answer key for the said examination.
Grounds for Second Appeal The CPIO did not provide the desired information.1
Submissions made by Appellant and Respondent during Hearing:
The appellant submitted that he had filed the RTI application within 10 days from the declaration of result. He further pointed out that the FAA also had passed a non speaking order. He pressed for a copy of the test booklet and answer key for the said examination. Furthermore, he claimed that on grounds of limited question bank , the denial of question booklet is not justified.
The CPIO submitted that to maintain transparency and accountability in the entrance examination, there was already a provision of a question complaint portal and if Mr. Shishir Raj had any issue related to the questions in the question booklet, as stated by him in his RTI appeal that he wanted the question booklet as it had mistakes, he could have lodged his complaint on the Question Complaint Portal which was opened from 19.08.2018 to 22.08.2018 (midnight). The complaints related to questions were referred to subject matter specialists to take a view about their correctness before declaration of results.
It had already been notified at clause 7.8 in the Information Bulletin that the candidate may be allowed to inspect his/her own OMR answer sheet along with answer key or given a copy thereof if such representation or request is submitted by the candidate in his/her own handwriting and signature within 10 days from the date of declaration of result on ICAR website alone with a copy of e-admit card, hard copy of online application form and demand draft of Rs 500/- drawn in favour of "Secretary, ICAR Education Division Revolving Fund" payable at New Delhi. Since around 1.07 lakh candidates had applied to appear in the examinations (UG,PG and Ph,D.), it is a very time consuming process to locate the OMR sheets of each candidate and also involves manpower in the process. Accordingly, a fee of Rs 500/- was kept for this purpose. This provision was notified well in time through Information Bulletin which was made available in the public domain.
Mr. Shishir Raj did not comply with the provisions contained in the Information Bulletin to pay the prescribed fee of Rs 500/- to get his OMR sheet along with answer key as mentioned at Sr. No. 2 above but filed an RTI application on 12.09.2018 (result declared on 07.09.2018) which was received in the office of the respondents on 17.09.2018 which was replied to accordingly.
The decision not to provide the question booklet was in line with the Hon'ble High Court of Delhi judgment dated 28.05.2012 (LPA No. 487/2011 28.05.2012, AIIMS vs Vikrant Bhuria) and CIC/SH/A/2016/001261/MP (Roma Satti, Jammu vs ASRB, dated 28.02.2017) and CIC/SH/A/2016/001485/MP (Pradeep Kumar, Pune vs ASRB, dated 27.02.2017.
2File no.: CIC/ICARH/A/2018/636862 On a query by the Commission, the CPIO submitted that as per record retention schedule the copy of answer sheet and answer key were weeded out.
Observations:
Based on a perusal of the record, it was noted that the CPIO replied that " the Council had decided not to disclose the question booklet and answer key relating to AIEEA-UG, AIEEA-PG and AICE-JRF/SRF (PGS), moreover he took the plea that there is limited scope of generating multiple choice questions, and therefore there is limited question bank available. The decision not to provide the question booklet was in accordance with the Hon'ble High Court of Delhi judgment dated 28.05.2012 (LPA No. 487/2011 28.05.2012, AIIMS vs Vikrant Bhuria) and CIC/SH/A/2016/001261/MP (Roma Satti, Jammu vs ASRB, dated 28.02.2017) and CIC/SH/A/2016/001485/MP (Pradeep Kumar, Pune vs ASRB, dated 27.02.2017. Furthermore, in the reply, the CPIO stated that as per rule the candidate can obtain a copy of his answer key and OMR sheet within 10 days from the date of declaration of result.
The Delhi High Court order dated 28.05.2012 in LPA No. 487/2011 28.05.2012, AIIMS vs Vikrant Bhuria reads as follows:
"15. We are satisfied that the nature of the examination, subject matter of this appeal, is materially different from the examination considered by the Supreme Court in the judgment supra. 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."
The Commission's order dated 27.02.2017 in case no. CIC/SH/A/2016/001485/MP (Pradeep Kumar, Pune vs ASRB) reads as follows:
35. Having considered the submissions of the respondents and perused the available documents in file, the Commission observes that the question paper of CIC/SH/A/2016/001485/MP Agricultural Biotechnology Examination cannot be provided in view of the Hon'ble High Court of Delhi judgment dated 28.5.2012 in LPA No. 487/2011 in the matter of AIIMS Vs. Vikrant Bhuriadirects. However, the Commission directs the CPIO to provide to the appellant his OMR sheet within ten days of the receipt of the order of the Commission. The appeal is disposed of.
The Commission observes on perusal of the facts on record that the Appellant is questioning the merits of the reply provided by the CPIO in terms of its administrative appropriateness. The CPIO's claim that Mr. Shishir Raj did not comply with the provision contained in the Information Bulletin to pay the prescribed fee of Rs 500/- to get his OMR sheet along with answer key as mentioned at Sr. No. 2 above but filed an RTI application on 12.09.2018 (result declared on 07.09.2018) is proper.
It is relevant to mention here that the appellant could have obtained the copy of the answer sheet and answer key after payment of the prescribed fees. However, the non provision of question booklet was amply justified by the CPIO. In respect of the appellant's plea that under the RTI Act, information sought should have been given as per the rates prescribed under the RTI Act was examined.
In the case of Institute of Companies Secretaries of India (ICSI) vs. Paras Jain [decided on 11.04.2019 in Civil Appeal No.5665 of 2014], the Apex Court held that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant and appellant has the liberty to chose either of the two mechanisms. The relevant para of the order reads as follows:
"10. Thus it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant.
11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its daytoday concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as reevaluation, retotaling of answer scripts.4
File no.: CIC/ICARH/A/2018/636862
12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines."
Decision:
In view of the above decision, it is pertinent to mention here that the decision of the Supreme Court was passed on April 2019 and the reply provided by the CPIO in October 2018. Hence, there is no infirmity in the reply. Moreover, as the information sought is now weeded out, the Commission unfortunately is not in a position to provide any relief in this particular case. The CPIO is directed to note that post the decision of the Apex court in April 2019, two options were provided to the information seekers by the Apex Court. An information seeker can submit an application under the provisions of the Right to Information Act, 2005 by paying the necessary prescribed fees and in the event of filing any such application under the Right to Information Act, 2005, the procedures contemplated under the Act alone must be followed and the Regulations of the public authority cannot be followed. In the event of filing any application under the guidelines issued by the public authority, then the respondent is at liberty to follow the procedures as contemplated by them. The CPIO is directed to provide the copy of the relevant weeding out policy to the appellant through which the copy of answer key and OMR sheets were weeded out, within 7 days from the date of receipt of the order. A compliance report to this effect shall be submitted thereafter to the Commission by the CPIO.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) 5 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 6