Central Information Commission
Anton Baruah vs Oil India Limited (Oil) on 4 August, 2023
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/OILTD/A/2022/624118
CIC/OILTD/A/2022/623345
CIC/OILTD/A/2022/624620
CIC/OILTD/A/2022/623225
Shri Bivash Gogoi ... अपीलकता/Appellant
Shri Angshuman Baruah
Shri Surjya Doley
Shri Anton Baruah
VERSUS/बनाम
PIO, ... ितवादीगण /Respondent
Oil India Limited, Noida
Date of Hearing : 01.08.2023
Date of Decision : 03.08.2023
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
Since the issues raised in these matters are the same, the above mentioned
cases are clubbed together for hearing and disposal.
Case RTI Filed CPIO reply First appeal FAO 2 nd Appeal
No. on received on
624118 09.02.2022 - 18.03.2022 19.04.2022 23.04.2022
623345 09.02.2022 - 11.03.2022 19.04.2022 24.04.2022
624620 09.02.2022 - 19.03.2022 19.04.2022 30.04.2022
623225 09.02.2022 - 18.03.2022 19.04.2022 23.04.2022
Information soughtand background of the case:
(1) CIC/OILTD/A/2022/624118 The Appellant filed an RTI application dated 09.02.2022 seeking information on the following points regarding the post of Junior Assistant-clerk cum Operator:-
1. Release the Answer key with question.
2. I have got 83 marks still not selected, but I have to get 3-4 marks more.
3. I have heard many students got by my giving money to higher authority for getting this job.Page 1 of 10
4. Many students including me have studied for this exam day and night but deserved candidates are not getting selected.
Having not received any information from the CPIO, the Appellant filed a First Appeal dated 18.03.2022. The FAA/RCE, Oil India Limited, vide order dated 19.04.2022 replied as under:-
In reference to your appeal dated 18.03.2022, regarding non-receipt of reply within 30 days, we hereby inform you that we are in receipt of a large number of applications in respect of the recruitment drive conducted and the logistics of providing a suitable reply to each application is taking a significant amount of time. We assure you that we are working on providing a suitable reply to you and request you to allow us time to formulate the same. However, please note that the instant appeal shall not preclude the Applicant from preferring another appeal u/s 19(1) in case not satisfied with the reply provided.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was received from the CPIO and Executive Director FHQ Affairs, Oil India Ltd vide letter dated 27.07.2023, the relevant extracts of which are as under:
"5. It is humbly submitted that recruitment exam was conducted through an outsourced Agency/Third party hence, the disclosure of copy of Question Booklet, involves the commercial confidence and intellectual property of a third party, which would likely to harm competitive position of the concerned third party, thus comes under exemption as provided u/s 8(1)(d) of the Act. The confidentiality of the Question Booklet shall remain even after completion of the recruitment process, as disclosure would have similar effect in future recruitment process for the same job.
7. The Appellant has further sought fresh information regarding normalization of score which was not sought in the RTI Application and hence such request cannot be considered at this stage. Besides, there was no provision for normalization of score in the advertisement.
8. That with respect to delay in submitting the reply, it is humbly submitted that an unprecedented situation had arisen whereby huge number of RTI applications nearing to 650 RTIs were received during the month of February, 2022. As a result, it took us longer than expected to carefully review each application and provide a suitable response within our limited resources and manpower. Besides, owing to a major malware attack in the OIL's server in the month of April, 2022 ongoing activities were hampered and resulted in in access to the IT services. An emergency was also declared on 10.04.2022. As a result of this attack, our entire network infrastructure was compromised, including our email and document management systems. Finally, the system and services were restored on 31.05.2022 and the emergency was lifted. All these factors combined together posed a challenge to maintain the time frame of RTI reply. The Page 2 of 10 same was intimated to the appellant while replying to the first appeal and requested some time from the appellant in the meanwhile we formulate the reply.
8. In view of the aforesaid facts, the Respondent begs to pray before this Commission that the Appeal is not sustainable in law and facts and as such is liable to be dismissed."
(2) CIC/OILTD/A/2022/623345 The Appellant filed an RTI application dated 09.02.2022 seeking information on following points.
1) I require my answer key for the post JAC12021 which I attempted on 11th December, 2021 Time: (2PM to 4PM) along the correct answer and the ones I attempted.
2) Has normalization been applied properly for fair competition?
3) A list of the provisionally selected along with their names and marks.
4) Will there be a doubt clearing session if any discrepancies are found as a form of fair treatment?
Having not received any information from the CPIO, the Appellant filed a First Appeal dated 11.03.2022. The FAA/RCE Oil India Limited,vide order dated 19.04.2022 stated as under:-
In reference to your appeal dated 11.03.2022, regarding non-receipt of reply, we hereby inform you that we are in receipt of a large number of applications in respect of the recruitment drive conducted and the logistics of providing a suitable reply to each application is taking a significant amount of time. We assure you that we are working on providing a suitable reply to you and request you to allow us time to formulate the same. However, please note that the instant appeal shall not preclude the Applicant from preferring another appeal u/s 19(1) in case not satisfied with the reply provided.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was received from the CPIO and Executive Director FHQ Affairs, Oil India Ltd vide letter dated 26.07.2023 the relevant extracts of which are as under:
"6. That, with regard to the issue of normalization and doubt clearing session, the queries were interrogative in nature and do not come under the definition of "information" as defined in Section 2(f) of the RTI Act, 2005. This is in line with the DC order passed in the Shri G. Senthil Kumar v. Directorate of Health 8s Family Welfare Services in F.No. CIC/SS/A/2013/000838-YA, wherein it was held as under "The public authority is not bound to answer queries like whether he would be considered for the post since he has crossed the age limit or whether he Page 3 of 10 will be granted any age relaxation and whether his merit will be considered or not. Interrogative queries viz. 'How/ Why/ When" do not come under the ambit of RTI Act."
7. It is humbly submitted that recruitment exam was conducted through an outsourced Agency/Third party hence, the disclosure of copy of Question Booklet, involves the commercial confidence and intellectual property of a third party, which would likely to harm competitive position of the concerned third party, thus comes under exemption as provided u/s 8(1)(d) of the Act. The confidentiality of the Question Booklet shall remain even after completion of the recruitment process, as disclosure would have similar effect in future recruitment process for the same job.
8. That, with respect to delay in submitting the reply, it is humbly submitted that an unprecedented situation had arisen whereby huge number of RTI applications nearing to 650 RTIs were received during the month of February, 2022. As a result, it took us longer than expected to carefully review each application and provide a suitable response within our limited resources and manpower. Besides, owing to a major malware attack in the OIL's server in the month of April, 2022 ongoing activities were hampered and resulted in in access to the IT services. An emergency was also declared on 10.04.2022. As a result of this attack, our entire network infrastructure was compromised, including our email and document management systems. Finally, the system and services were restored on 31.05.2022 and the emergency was lifted. All these factors combined together posed a challenge to maintain the time frame of RTI reply. The same was intimated to the appellant while replying to the first appeal and requested some time from the appellant in the meanwhile we formulate the reply."
(3) CIC/OILTD/A/2022/624620 The Appellant filed an RTI application dated 09.02.2022 seeking information regarding Junior Assistant Clerk cum Computer Operator as under:-
"I am requesting you to release the answer keys along with the questions in it because i am the one who have given the exam and i am sure that I should get above 80. But now I got less than 70 which is not at all possible plus many students have got their marks less than they were expecting so i feel like there is something underground going on like money laundering and all and i have also heard that big professionals like ministers, union leaders and all they have also gave money in order to get jobs to their relatives sons or daughters. Plus cut off system is also not acceptable how can they give cut off in this system like for general 85, obc 84, sc 83, st 82 and ews 81 which i think is not all acceptable. So i urge you to please do a strict investigation regarding this oil assistant junior clerk cum computer operator exam."
Having not received any information from the CPIO, the Appellant filed a First Appeal dated 19.03.2022. The FAA/RCE, Oil India Limited, vide order dated 19.04.2022 stated as under:-
- In reference to your appeal dated 19.03.2022, regarding non-receipt of reply within 30 days, we hereby inform you that we are in receipt of a large Page 4 of 10 number of applications in respect of the recruitment drive conducted and the logistics of providing a suitable reply to each application is taking a significant amount of time. We assure you that we are working on providing a suitable reply to you and request you to allow us time to formulate the same. However, please note that the instant appeal shall not preclude the Applicant from preferring another appeal u/s 19(1) in case not satisfied with the reply provided.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was received from the CPIO and Executive Director FHQ Affairs, Oil India Ltd vide letter dated 26.07.2023, the relevant extracts of which are as under:
4. However, not being satisfied by the Reply of the Appellate Authority, the Appellant preferred the present appeal requiring the verified copy of answer script and answer key. Moreover, the appellant wants to know whether the scores were normalized.
5. It is humbly submitted that recruitment exam was conducted through an outsourced Agency/Third party hence the disclosure of copy of Question Booklet, involves the commercial confidence and intellectual property of a third party, which would likely to harm competitive position of the concerned third party, thus comes under exemption as provided u/s 8(1)(d) of the Act.
The confidentiality of the Question Booklet shall remain even after completion of the recruitment process, as disclosure would have similar effect in future recruitment process for the same job.
6. That, further the applicant in his application has expressed his dissatisfaction with the marks obtained by him and requested for investigation regarding the said examination. In this regard, it is humbly submitted that query is in the nature of grievance instead of information request and the same do not fall under the definition of Information" as per section 2(f) of the RTI Act, 2005.
7. That, the Appellant has further sought for fresh information in the second appeal regarding normalization of score which was not sought in the RTI Application and hence such request cannot be considered at this stage.
8. That, with respect to delay in submitting the reply, it is humbly submitted that an unprecedented situation had arisen whereby huge number of RTI applications nearing to 650 RTIs were received during the month of February, 2022. As a result, it took us longer than expected to carefully review each application and provide a suitable response within our limited resources and manpower. Besides, owing to a major malware attack in the OIL's server in the month of April, 2022 ongoing activities were hampered and resulted in in access to the IT services. An emergency was also declared on 10.04.2022. As a result of this attack, our entire network infrastructure was compromised, including our email and document Page 5 of 10 management systems. Finally, the system and services were restored on 31.05.2022 and the emergency was lifted. All these factors combined together posed a challenge to maintain the time frame of RTI reply. The same was intimated to the appellant while replying to the first appeal and requested some time from the appellant in the meanwhile we formulate the reply.
(4) CIC/OILTD/A/2022/623225 The Appellant filed an RTI application dated 09.02.2022 seeking information on following points related to the examination for the post of Junior Assistant Clerk Cum Computer Operator, held by Oil India Ltd. and the result of which was declared on 08/02/2022.
1) Were the scores normalised?
2) Copy of my answer sheet which contains :(i) The questions. (ii) Answers marked by me. (iii) The correct answer of all the questions.
Having not received any information from the CPIO, the Appellant filed a First Appeal dated 18.03.2022. The FAA/RCE Oil India Limited, vide order dated 19.04.2022 stated as under:-
- In reference to your appeal dated 18.03.2022, regarding non-receipt of reply within 30 days, we hereby inform you that we are in receipt of a large number of applications in respect of the recruitment drive conducted and the logistics of providing a suitable reply to each application is taking a significant amount of time. We assure you that we are working on providing a suitable reply to you and request you to allow us time to formulate the same. However, please note that the instant appeal shall not preclude the Applicant from preferring another appeal u/s 19(1) in case not satisfied with the reply provided.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was received from the CPIO and Executive Director FHQ Affairs, Oil India Ltd vide letter dated 26.07.2023 the relevant extracts of which are as under:
"4. However, not being satisfied by the Reply of the Appellate Authority, the Appellant preferred the present appeal requiring the verified copy of answer script and answer key. Moreover, the appellant wants to know whether the scores were normalized.
5. It is humbly submitted that recruitment exam was conducted through an outsourced Agency/Third party hence the disclosure of copy of Question Booklet, involves the commercial confidence and intellectual property of a third party, which would likely to harm competitive position of the concerned third party, thus comes under exemption as provided u/s 8(1)(d) of the Act. The confidentiality of the Question Booklet shall remain even after Page 6 of 10 completion of the recruitment process, as disclosure would have similar effect in future recruitment process for the same job.
6. That, with respect to delay in submitting the reply, it is humbly submitted that an unprecedented situation had arisen whereby huge number of RTI applications nearing to 650 RTIs were received during the month of February, 2022. As a result, it took us longer than expected to carefully review each application and provide a suitable response within our limited resources and manpower. Besides, owing to a major malware attack in the OIL's server in the month of April, 2022 ongoing activities were hampered and resulted in in access to the IT services. An emergency was also declared on 10.04.2022. As a result of this attack, our entire network infrastructure was compromised, including our email and document management systems. Finally, the system and services were restored on 31.05.2022 and the emergency was lifted. All these factors combined together posed a challenge to maintain the time frame of RTI reply. The same was intimated to the appellant while replying to the first appeal and requested some time from the appellant in the meanwhile we formulate the reply."
Facts emerging during the hearing Shri Angshuman Baruah participated in the hearing through video conference. The remaining Appellants were absent despite prior intimation. Shri Baruah stated that he was one of the unsuccessful candidates who had participated in the examination conducted for the post of Junior Assistant-clerk cum Operator in 2021 and that vide his RTI application he was seeking his own answer sheet; details of normalisation process adopted for the examination; list of provisionally selected along with their names and marks and details of doubt clearing session, if any conducted. However, satisfactory information was not yet provided, till date.
The Respondent represented by Shri Pallav Barman, CPIO and Executive Director; Shri Ronodeep Das, Chief Manager; Smt Satvika Varday, Sr Officer Legal and Shri Alphonsa Daimari, Sr Officer Contracts participated in the hearing through video conference. Smt Varday stated that the exam held was a computer based test conducted by an outsourced agency which was also entrusted with the responsibility of preparing the question paper and model answer key. She referred to the written submission of the CPIO and Executive Director dated 26.07.2023 and stated that disclosure of copy of Question Booklet, involves the commercial confidence and intellectual property of a third party, which would likely cause harm to the competitive position of the concerned third party, thus falling under the exemption as provided u/s 8(1)(d) of the Act. The confidentiality of the Question Booklet shall remain even after completion of the recruitment process, as disclosure would have similar effect in future recruitment process for the same job as the question bank is limited. On being queried, if a candidate was granted access to his/ her own answer sheet, the Respondent replied in the negative. However, it was stated that the list off provisionally selected candidates with marks obtained by them was provided to Shri Angshuman Baruah.
Page 7 of 10Decision In the light of the facts of the case and the submissions made by both the parties, the Commission observes that exemption u/s 8 (1) (d) of the Act has been incorrectly applied to deny the answer key/ question paper to the information seekers. The legal position on the said issue has been settled by the Hon'ble Supreme Court in ICAI vs. Shaunak H. Satya (2011) 8 SCC 781 dated 02.09.2011. The Hon'ble Supreme Court while answering the question "Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under section 8(1)(d) of the RTI Act?" held as under:
12. Information can be sought under the RTI Act at different stages or different points of time. What is exempted from disclosure at one point of time may cease to be exempted at a later point of time, depending upon the nature of exemption. For example, any information which is exempted from disclosure under section 8, is liable to be disclosed if the application is made in regard to the occurrence or event which took place or occurred or happened twenty years prior to the date of the request, vide section 8(3) of the RTI Act. In other words, information which was exempted from disclosure, if an application is made within twenty years of the occurrence, may not be exempted if the application is made after twenty years.
Similarly, if information relating to the intellectual property, that is the question papers, solutions/model answers and instructions, in regard to any particular examination conducted by the appellant cannot be disclosed before the examination is held, as it would harm the competitive position of innumerable third parties who are taking the said examination. Therefore it is obvious that the appellant examining body is not liable to give to any citizen any information relating to question papers, solutions/model answers and instructions relating to a particular examination before the date of such examination. 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. The appellant voluntarily publishes the "suggested answers" in regard to the question papers in the form of a book for sale every year, after the examination. Therefore section 8(1)(d) of the RTI Act does not bar or prohibit the disclosure of question papers, model answers (solutions to questions) and instructions if any given to the examiners and moderators after the examination and after the evaluation of answer scripts is completed, as at that stage they will not harm the competitive position of any third party. We therefore reject the contention of the appellant that if an information is exempt at any given point of time, it continues to be exempt for all time to come.
Page 8 of 10The Commission on several instances has previously allowed disclosure of own answer sheet/ OMR sheet to the candidate himself. In one such instance in Jagdish Maurya vs PIO, RTI Cell, DSSSB, Delhi CIC/DSSSB/A/2018/147194 and CIC/DSSSB/A/2018/147113 decided on 07.02.2020 the Respondent cited their internal board policy to deny answer sheet/ OMR sheet to a candidate. The Commission while analysing the judgement of the Hon'ble Supreme Court relied b y the Respondent in UPSC vs. Angesh Kumar & Ors in C.A. Nos. 6159-6162 of 2013 decision dated 20.02.2018 held as under:
"Perusal of the above decision clearly establishes that the decision above is specifically aimed at "marks in Civil Services Exam" and it has been mentioned in the order categorically that situation of exams of other academic bodies may stand on different footing. Thus facts of UPSC vs. Angesh Kumar (supra) case do not provide a blanket cover to deny marksheet/answersheet by all examining authorities and the above decision is distinguishable to the facts of the case at hand and ratio of the Angesh Kumar case cannot be applied to the instant case mutatis mutandis for difference of factual matrix. Since merely citing a decision is not sufficient unless they are factually akin, hence the reliance placed by the PIO on the Apex Court decision, for denial of information, is set aside since he has not been able to justify the denial of information and how the facts of the above case [Angesh Kumar] is applicable in this case.
The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information, which relates to securing transparency and accountability in the working of public authorities. The Commission therefore holds that candidates have a right to seek a copy of their own OMR sheet. It will not only contribute to transparency but also facilitate the candidates in assessing their own performance.
In the light of the foregoing, the Commission hereby directs the PIO to provide Copy of Appellant‟s OMR- answer Sheet as sought by him, in compliance with the FAA's order dated 11.09.2018, within 3 weeks from the date of receipt of this order.
Compliance report with respect to the above directions shall be submitted by the PIO/DSSSB- Sh. Devendra Kumar Sharma, before the Commission by 10.03.2020, including proof of service of the requisite information/OMR sheet to the appellant. It is made clear that non-adherence of these directions shall attract penal action as per law."
The Commission also does not find the argument of the Respondent regarding denial of question paper due to existence of a limited question bank as compelling. In AIIMS v. Vikrant Bhuria, LPA No. 487/2011 dated 28.05.2012, the Hon'ble High Court of Delhi had denied disclosure of question papers and answers of all Mch Super Speciality entrance examinations conducted from 2005- 12 on the ground that 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. The Court also ruled that the number of multiple choice Page 9 of 10 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. However, the factual matrix of the said case cannot be equated with the present case which pertains to examination for a clerical post of Junior Assistant- clerk cum Operator for which 120 posts were created across all categories.
In the light of the above analysis, the Commission directs Shri Pallav Barman, CPIO and Executive Director to facilitate inspection of answer sheet/ question booklet and modal answer key to all the Appellants on a mutually convenient date and time and submit a compliance report to the Commission by 30.09.2023. With the above direction, the instant Second Appeal stands disposed off accordingly.
Y. K. Sinha ( वाई. के . िस हा) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) S. K. Chitkara (एस. के . िचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 10 of 10