Central Information Commission
Mrwinston Samuel S vs Jawaharlal Institute Of Post Graduate ... on 20 July, 2015
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
F.No.CIC/YA/A/2014/002130
F.No.CIC/YA/A/2014/002885
Date of Hearing : 14.07.2015
Date of Decision : 20.07.2015
Appellant : Shri S. Winston Samuel
Puducherry
Respondent : Shri Sivabalan, CPIO
JIPMER, Pondicherry
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from complaint/appeal:
RTI application filed on : 18.06.2014
PIO replied on : No reply & 07.07.2014
First Appeal filed on : 01.07.2014 & 10.07.2014
First Appellate Authority (FAA) order on : No order passed & 16.08.2014
Complaint/ Second Appeal received on : 05.08.2014 & 28.10.2014
As the RTI applications in both the above mentioned appeals are identical, the cases are being
heard and decided together.
Information sought:
The appellant sought copy of answer sheet, question paper and key of MBBS entrance exam held on 08.06.2014, given by his daughter. Relevant facts emerging during hearing:
Both parties are present and heard. The appellant filed RTI application on 18.06.2014, seeking the above information. CPIO, JIPMER vide reply dated 07.07.2014 provided 35 pages of information to the appellant. The FAA in his order upheld the reply of the CPIO.
The appellant stated that his daughter had given the MBBS entrance exam and in order to know the correct answers, he wanted the question paper, answer sheet and key of that exam but the same has not been provided to him till date. The respondent stated that as per the decision of the Academic Committee, JIPMER, they do not disclose the above information and thus, the information was denied to the appellant. He further stated that details of candidates, data report etc. was provided to the appellant. The respondent further referred to a decision of the Hon'ble Delhi High Court in LPA No. 487/2011, wherein the court had denied disclosure of such information.
Decision:
After hearing the parties and on perusal of record, the Commission notes that no information has been given to the appellant till date. The information was, initially, denied referring to the decision of the Academic Committee, JIPMER and not under the provisions of the RTI Act. The FAA, too, upheld the PIO's stand.
The purpose of the RTI Act is that disclosure of information shall be the norm while exemption shall be the exception. Therefore, in case of such inconsistency between the University Rules and the RTI Act, it is the latter which will prevail due to its overriding effect as per Section 22 of the RTI Act. Section 22 of the RTI Act reads as - "22. Act to have overriding effect - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
The Hon'ble Supreme Court in Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors., held, "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 rules/byelaws of the examining body governing the examinations."
In the instant case, the respondent authority has failed to demonstrate that the information sought by the appellant falls under the exempted category as specified u/s 8 of the RTI Act.
During the hearing, the respondent has, for the first time, referred to the Delhi High Court's decision in AIIMS v. Vikrant Bhuria [LPA No. 487/2011], but has not given any justification as to why information sought by the appellant should not be disclosed. The High Court, while considering the Supreme Court's judgement in ICAI v. Shaunak H. Satya & Ors. [Civil Appeal 7571/2011], observed:-
"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 new 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 Supreme Court, in the Shaunak H. Satya case, held:-
"12. ...But the position will be different once the examination is held. Disclosure of the question papers, model answers and instructions in regard to any particular examination, would not harm the competitive position of any third party once the examination is held. In fact the question papers are disclosed to everyone at the time of examination."
In view of the above, it is clear that ratio of the Delhi High Court's decision does not apply in the instant case. The appellant, herein, has sought for the question paper of JIPMER-MBBS Entrance Examination, held on 08.06.2014, which is not similar to the super-speciality entrance examination, discussed by the Delhi High Court in the above decision. The Commission, therefore, directs CPIO to provide the question paper, the answer sheet of the appellant along with the relevant answer key, to the appellant, within three weeks of the receipt of this order, with intimation to the Commission.
The Commission notes with serious concern that both the PIO & FAA failed to act as per provisions of the RTI Act. The public authority is cautioned not to deal with RTI applications in a casual manner and to take due cognizance of provisions of the Act. The Commission also finds that the FAA did not provide an opportunity of being heard to both the parties. The FAA, being a quasi judicial body, should have given an opportunity of being heard to the appellant and then, gone into aspects like whether information can be provided or not, etc. The FAA should have exercised his quasi judicial power, which he did not exercise. The Commission, therefore, cautions the FAA to strictly follow provisions of the RTI Act while disposing of appeals and pass a speaking order after taking due cognizance of merits of each case.
President, JIPMER is directed to take note of the manner in which the CPIO/FAA have dealt with RTI application/first appeal. The Deputy Registrar of this Bench is directed to mark a copy of this order to President, JIPMER, within one week of this order, for necessary action.
The appeals are disposed of accordingly.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(B.D. Harit) Deputy Secretary & Deputy Registrar Copy to:-
Public Information Officer under RTI First Appellate Authority under RTI Nodal Officer - RTI Cell, Dean (Academic Matters), JIPMER, JIPMER, Dhanvantri Nagar, Dhanvantri Nagar, Gorimedu, Puducherry605006. Gorimedu, Puducherry605006. Shri Winston Samuel S. F/o. Ahila Jasmin W., Sheet Metal Maker, Central Workshop, JIPMER, Puducherry-605006.