Central Information Commission
Shri Keshav Kaushik vs High Court Of Punjab & Haryana, ... on 21 November, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01415 dated 29.8.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Keshav Kaushik
Respondent - High Court of Punjab & Haryana, Chandigarh
Date of Hearing 17.11.2008
Date of Decision 21.11.2008
Facts:
By an application of 23.5.08 Shri Kaushik sought the following information from CPIO of High Court of Punjab & Haryana at Chandigarh:
"1. Kindly supply the Photo copy of my evaluated answer sheet no. 1148, paper V for General Knowledge carrying 25 multiple choice questions written by me on 22.2.2008 from 2 PM to 3 PM for Haryana Superior Judicial Examination.
2. Kindly supply the Photo copy of my evaluated answer sheet for paper II, Law (Subsidiary Subject) bearing answer sheet no. 5148 dated 23.2.2008 written by me in the morning session from 9 PM to 12 noon for Haryana Superior Judicial Examination.
3. Kindly supply the Photo copy of my evaluated answer sheet for paper I, Law (Core subject) bearing answer sheet no. 6148 dated 23.2.2008 written by me in the evening session from 2 PM to 5 PM for Haryana Superior Judicial Examination.
4. Kindly supply the Photo copy of my evaluated answer sheet for paper III, English Essay on legal topic bearing answer sheet no. 5148 dated 24.2.2008 written by me in the morning session from 9 AM to 12 noon for Haryana Superior Judicial Examination.
5. Kindly supply the Photo copy of my evaluated answer sheet for paper IV, Hindi Essay on a Social Topic bearing answer sheet no. 7049 dated 24.2.2008 written by me in the evening session from 2PM to 5PM for Haryana Superior Judicial Examination.
6. Information regarding the 14 General vacancies/ posts to be filled for the post of Assistant District Sessions Judge in the State of Haryana pursuant to the notification dated 18.5.2007 and how many candidates were taken from the bar against the 1 vacancies/ notification dated 18.5.2007 and how many posts remain vacant category-wise in Haryana Superior Judicial Recruitment.
7. Kindly provide information as to under what provision of law the General Pool vacancies from the bar were filled up by the candidates of Fast, Track Courts and whether any written examination/ interview or selection process was conducted in respect of the recruitment/ appointment of Fast Track Courts Judges i.e. Additional District Sessions Judges in the Fast Track Courts in the State of Haryana."
The PIO in his reply dated 31.5.2008 refused to provide the information desired by the appellant relying upon Rule 4 of RTI Rules framed by the High Court in accordance with Section 28 of the RTI Act as follows:
"The requisite information cannot be supplied, as it falls under clause C of rule 4 framed by the Hon'ble Punjab & Haryana High Court Under Section 28 of the Right to Information Act, 2005 called as "High Court of Punjab & Haryana (Right to Information) Rules, 2007 which is reproduced below:
(C) Any Information affecting the confidentiality of any examination/ selection process:
(I) conducted by the Punjab and Haryana High Court including for Punjab/ Haryana Civil Services (Judicial Branch) and Punjab/ Haryana Superior Judicial Services."
Thereafter appellant filed his 1st appeal before the Registrar (Admn) HC of P&H on 12.6.08. In deciding the appeal on 16.8.08, the first appellate authority Shri AS Narang held that PIO has rightly refused to part with the information as the information sought by the appellant could affect the confidentiality of the examination/ selection process, as follows:
"The appellant has placed reliance on the judgment of Hon'ble Calcutta High Court in Pritam Rooj vs. University of Calcutta, AIR 2008 Calcutta 118. As far as the information sough for at Point No. 1 to 5 are concerned, I am of the considered opinion that the PIO rightly refused to part with the information, as the information sought for by the appellant affected the confidentiality of the examination/ selection process. In so far as the judgment rendered by the Hon'ble Calcutta High Court in Pritam Rooj's case (supra) is concerned, the same is not applicable to the facts of the case in hand. In the present case there are direct rules 2 framed by the High Court of Punjab and Haryana (Right to Information) rules, 2007 which prohibit parting with this information. PIO is a creature of the Statute and is bound by the rules. This Authority is also a creature of the Statute and is also bound by the same. In view of the facts and circumstances explained above, I am of the considered view the appeal filed by the appellant is liable to be dismissed."
The appellant then filed second appeal before the Commission on 27.6.08 which was decided by the Commission on 7.7.'08 directing the Registrar (Admn) of High Court of Punjab & Haryana to dispose of the appeal within 15 working days but advising appellant Shri Kaushik that were he to be dissatisfied with the response in 1st appeal he would be free to move a second appeal u/s 19 sub-section (3) before us.
Now the appellant has filed a fresh appeal u/s 19 (3) on 28.8.2008 in which he has sought the following relief:-
"This Hon'ble Commission may graciously be pleased to direct the concerned Authority of Punjab & Haryana High Court at Chandigarh to provide the information sought by the appellant in his first application no. 212/APIO dated 24.5.2008 and in appeal no. RTI/AA/80 dated 2.7.2008 in the interest of justice.
And this Hon'ble Commission may further graciously be pleased to impose the penalty on the APIO/CPIO for not providing the information and not deciding the appeal within the statutory period."
The PIO and the first appellate authority had taken the plea of exemption under Rule 4 of Punjab & Haryana High Court RTI rules framed as competent authority u/s 28 of the RTI Act.
It is true that the competent authorities defined in sub-sections to Sec. 2 sub-section (e) have been accorded with the power of making rules u/s 28 ibid. But the purpose or rationale behind such power was to facilitate the process of providing information to the information seeker. But in the present situation Rule 4 of the High Court of Punjab & Haryana (Right to Information) Rules, 2007 appears to have operated as a hindrance in providing information to the applicant.
3So as far as Rule 4 is concerned, it cannot stop the Commission from directing the concerned authority to provide information to applicant if we find the refusal in contradiction to the Act and therefore it is required that we exercise our discretion in determining whether the supply of duplicate evaluated copies of answer sheets is against the law.
The appeal was heard on 7.11.08. The following are present:
Appellant
1. Shri Keshav Kaushik Respondents at NIC Studio, Chandigarh.
1. Shri A. S. Narang, First Appellate Authority & Registrar of Admn. P&H High Court, Chandigarh
2. Shri Rajender Singh, PIO & Jt. Registrar, P&H High Court, Chandigarh Shri A. S. Narang, Registrar (Admn) P&H High Court submitted that they have received the notice of hearing only at 12.30 hrs. the same day and had no time to prepare a response. Appellant Shri Kaushik on the other hand submitted that he is already in Writ before the High Court which is to be heard on 11.11.08 for which he needs the information sought. Upon this Registrar (Admn) submitted that he will support appellant's plea for adjournment before the Hon'ble Justices hearing arguments in appellant's case on 11.11.08. On these grounds it was agreed by both parties that the next hearing before us would be by video conference on 17.11.08 at 4.00 p.m. However, in the context of the present appeal, this Commission brought to the notice of Registrar (Admn) High Court of P&H our decision in Appeal No. CIC/WB/A/2007/00124 Narendra Yadav vs. High Court of Delhi announced on 13.12.07. In that case appellant's prayer was for disclosure of marks sheet together with cut off marks in DJS mains and written examination, as follows:
"Hon'ble The Chief Justice directed that the matter be placed before a Committee consisting of the Hon'ble Ms. Gita Mittal J., Sh. A.K. Sikri, J. and Shri Mukul Mudgal, J. In their submission of Oct 30, 2007, the Hon'ble Justices recommended as follows:4
"The Committee has been consistently directing disclosure of marks and other non confidential information to the candidates of Delhi Judicial Service Examination, Delhi High Judicial Service Examination and other examinations conducted by this Court. Precedents in the form of information supplied by the Public Information Officer of this Court pursuant to the directions of the Committee may kindly be seen at Flag 'X'.
The confidentiality clause in Rule 5 (c) of Delhi High Court (Right to Information) Rules, 2006 cannot be invoked to decline disclosure of marks obtained by a candidate in an examination. On the other hand, a candidate is entitled to know the marks obtained in an examination.
We are of the opinion that the information sought by the appellant ought to be supplied to him under intimation to the Central Information Commission."
While allowing the adjournment in the present case Shri A. S. Narang, Registrar (Admn), P&H High Court was advised to keep the above recommendations of the Hon'ble Justices of the Delhi High Court in mind when presenting his arguments before us.
The appeal was the heard by videoconference on 17.11.2008. The following are present:
Appellant Shri Keshav Kaushik Respondents at NIC studio, Chandigarh Shri A. S. Narang, Registrar.
Dr. Balram Gupta, Sr. Advocate Shri Rajiv Raina, Advocate.
Learned Counsel for respondents Dr. Balram Gupta submitted his reply to the appeal notice beginning with preliminary objections as follows:
"1. That this Hon'ble Commission has got no jurisdiction to entertain and try the present appeal, as the subject matter for which information was sought pertains to the State of Haryana. Hence the appeal is liable to be dismissed.
2. That a Civil Writ Petition bearing No. 9157 of 2008 filed by the appellant is pending in the Hon'ble High Court, wherein the Hon'ble Division Bench of this Court has directed the respondents to keep the record ready for perusal of the Court and the case is pending for hearing on 2.12.2008."5
In his arguments before us learned counsel submitted that the question concerns the selection of Additional District Judges in the State of Haryana who are appointed and paid by the State Government. For this reason, he submitted that this was outside the jurisdiction of C.I.C. It was, however, admitted that only the High Court of Punjab & Haryana held the information sought by appellant.
On the second preliminary objection, he submitted that since a Writ Petition was pending before the Hon'ble Division Bench of the High Court of Punjab & Haryana, scheduled for hearing on 2.12.08 on a similar subject, a decision of this Commission could amount to a statutory authority seeking to decide a matter pending decision before a constitutional authority. The recourse for appellant would be a Writ of Certiorari before the Hon'ble High Court in order to obtain the information sought.
Upon this appellant Shri Keshav Kaushik submitted that it is the Central Information Commission, which exercises jurisdiction in areas concerning High Courts, which are Constitutional Authorities. Moreover, he submitted that he had exercised his right under the Right to Information Act in moving a second appeal under that Act before this Commission. The Writ Petition before the Hon'ble High Court of Punjab & Haryana seeks a different remedy for which he agreed he required information sought under the Right to Information Act to strengthen his plea before that Court.
On the merits of this appeal Dr. Balram Gupta, learned Counsel for respondents submitted that appellant has asked for five answer books. However, he is not entitled to these u/s 8(1) (e). He also cited the High Court Rule 4 (c) and decision of the Hon'ble Supreme Court of India in the following two cases:
"2008 (1) SLR page 397, Para 7: The Courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some 6 question has not been evaluated or that the evaluation has been done contrary to the norm as fixed by the examining body.
AIR 1984 SC page 1543: In our opinion, the High Court was perfectly right in taking this view and in holding that the "process of evaluation of answer papers or of subsequent verification of marks"
under d. (3) of Regn. 104 does not attract the principles of natural justice since, no decision making process which brings about adverse evil consequence to the examinees is involved. The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be allowed to participate on the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books, and determining whether there has been a proper and fair valuation of the answer by the examiners."
Learned counsel Shri Balram Gupta also cited decisions of this Commission in certain appeals in which in his opinion, this Commission has held the same view.
On the questions 6 & 7, however, learned Counsel for respondent admitted that information was admissible and they were ready to supply the same to appellant. Written arguments of respondents were received through internet during the hearing, and have been quoted from above. A copy was handed over to appellant Shri Keshav Kaushik, who in turn submitted copies of both judicial orders cited by learned counsel for respondents, i.e. UOI & Ors vs. Vinod Kumar &Ors; AIR 2008 SC 5 and Maharashtra State Board of SHSE and another vs. Paritosh Bhupesh Kurmar Seth etc; AIR 1984 SC 1543 REASONS & DECISION To enable us to decide whether we proceed with deciding the merits of the case, we have first examined the preliminary objections. On the first preliminary objection it stands conceded by respondents that the information sought is held only by the High Court of Punjab & Haryana. Even though, therefore, the information may concern a matter that is the responsibility of the State Govt., we are here concerned with the access to the information by appellant Shri Keshav Kaushik. Sec. 2(j) of the RTI Act is clear:
7Sec. 2(j) - "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority 1 and includes the right to--
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
It is, therefore, the public authority that holds the information, which is liable to be accessed under the RTI Act, in this case clearly the High Court of Punjab & Haryana.
On issue No. 2 what has been sought by appellant from this Commission is an administrative remedy, whereas what he is seeking in Writ Petition in the High Court is a judicial remedy. It has been the practice with superior Courts while addressing administrative issues to advise petitioners to first seek administrative remedy before agitating the matter before the superior Court. In this case, therefore, the appellant Shri Kaushik is within his right to seek the remedy sought by him under the R.T.I. Act so that he may place this before the Hon'ble High Court for its consideration in disposing of his writ petition. Similarly a writ of certiorari is a writ seeking administrative remedy. On both preliminary objections, therefore, we find that the stand taken by the respondents, although most ably argued, is untenable.
On the merits of the case the following is the decision of the Full Bench in respect to access of answer sheets in our decisions dated 23.4.2007 in File No. CIC/WB/C/2006/00223 - Shri Rakesh Kumar Singh and Ors. vs. Lok Sabha Sectt. and Ors. :-
"24. The Right to Information Act was enacted with a view to conferring a right to access information under the control 1 Underlined by us for emphasis 8 of public authorities on all citizens. The Act recognizes that an informed citizenry and transparency of information are pre-requisite to a democracy and these are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The Act was enacted in order to promote transparency and accountability in the working of the Government and their instrumentalities.
25. However, the definition of the "public authority" as incorporated in the Act widens its ambit and scope even beyond the preamble when it defines a public authority to mean and include any authority or body or institution of self government established or constituted -
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and also includes.
(i) any body owned, controlled or substantially financed
(ii) non-Government organizations substantially financed, directly or indirectly by the funds provided by the appropriate governments.
26. Thus, a University and educational institution under control and substantially financed directly or indirectly by the government is a "public authority" under the Right to Information Act, even though the functioning of an educational institution or University may not be directly related to governance as such, the transparency wherein is the key objective of the Right to Information Act.
27. The Act further recognizes that revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Government, optimum use of fiscal resources and the preservation of the confidentiality and accordingly it aims at harmonizing these conflicting interests while preserving the paramountcy of the democratic ideals. To secure these objectives, the Act provides for specified categories of information which cannot be disclosed and as such these are exempted under various provisions of the Act, primarily Sec 8.
28. It is the contention of the appellants that disclosure of evaluated answer sheets is not exempt under any of the subsections of Section 8(1). The respondents including the 9 Central Board of Secondary Education have taken the plea that the evaluated answer sheets are exempted from disclosure under Section 8(1)(e) as there is a fiduciary relationship between the University/Board and the examiner and as such disclosure of the evaluated answer sheets will result in breach of this relationship. The appellants do not agree with this contention of the respondents and in support of their views, they have cited the decision of the Karnataka Information Commission wherein it has been held that there is no fiduciary relationship between the examiner and the University or the Board conducting the examination.
29. This Commission in a number of cases has, however, held that the fiduciary relationship between the examiner and the authority conducting examination exists and therefore, the disclosure of the information is exempt under Section 8(1)(e). In Ms. Treesa Irish Vs. Kerala Postal Circle case (ICPB/A- 2/COC/2006), it has been observed that when the answer papers are evaluated, the authority conducting the examination and the examiners evaluating the answer sheets stand in a fiduciary relationship between each other.
Such a relationship warrants maintenance of confidentiality by both of the manner and method of evaluation. That is the reason why while mark sheets are made available as a matter of course, copies of the evaluated answer papers are not made available to the candidates. The aforesaid decision was cited with approval in another case decided by Mrs. Padma Balasubramanian in Shri J. Shahabudeen Vs. Director of Postal Services (ICPB/22/2006). The exemption under Section 8(1)(j) has also been applied by this Commission in case of disclosure of evaluated answer sheets in a complaint case decided on 22.9.2006 in Dr. (Mrs.) Archana S. Gawada Vs. Employees State Insurance Corporation and Others (Complaint No.PBA/06/103). However, a different view was taken in Smt. Bhudevi Vs. North Central Railway, Jhansi where the appellant had some doubt as to whether the paper examined was actually the paper which she had submitted, the Commission had ordered that the complainant be shown the answer sheets which she had written in the said examination. (CIC/OK/C/2006/00079 dated 13.12.2006).
30. Presently, the respondents have taken the plea that disclosure of the evaluated answer sheets is exempted under Section 8(1)(e) as disclosure of the identity of the examiner may endanger the life and physical safety of the examiner and as such the disclosure of the evaluated answer sheets is exempted under Section 8(1)(g) of the Right to Information Act. It is submitted on behalf of the appellants that they have requested for inspection/copies of the evaluated answer sheets and they are not interested in knowing the identity of the examiners. It is also contended 10 that if the authority conducting the examination so desires, it can apply the severability clause enshrined in Section 10 of the Act and withhold the name of the examiner from being disclosed. In this context, the appellants also cited the following observation of the State Information Commission, West Bengal in Shri Utsab Dutta Vs. SPIO, University of Calcutta -
"Here the Commission feels that the words 'Information', the disclosure of which would endanger the life or physical safety of any person...' is relevant, though such a possibility of identifying the examiners and scrutinizers by seeing the signature or handwriting on a mere inspection of the answer script is very remote. The Commission further feels that though such possibility is remote, when the University takes care not to disclose the identify of the examinees, it can very well evolve and apply similar or more full proof method of not disclosing the identity of the examiners and scrutinizers."
31. The word "fiduciary" is derived from the Latin fiducia meaning "trust", a person (including a juristic person such as Government, University or bank) who has the power and obligation to act for another under circumstances which require total trust, good faith and honesty. The most common example of such a relationship is the trustee of a trust, but fiduciaries can include business advisers, attorneys, guardians, administrators, directors of a company, public servants in relation to a Government and senior managers of a firm/company etc. The fiduciary relationship can also be one of moral or personal responsibility due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling. In short, it is a relationship wherein one person places complete confidence in another in regard to a particular transaction or one's general affairs of business. The Black's Law Dictionary also describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another." The meaning of the fiduciary relationship may, therefore, include the relationship between the authority conducting the examination and the examiner who are acting as its appointees for the purpose of evaluating the answer sheets. We do not tend to agree with the decision of the Karnataka Information Commission wherein it has been held that in a fiduciary relationship such as between the examiner and the University, there are obligations only on the part of examiner and that the authority conducting the examination being not a trustee has no obligations. Any relationship including a fiduciary relationship is bound to have mutual rights and obligations. Thus, in the case before us where there is fiduciary relationship between the examiner and the authority 11 conducting the examination, the obligations are mutual. This relationship does not end once the evaluation of the answer sheets is complete. The concerned authority has to take care that by disclosing identity of the examiner, there is no possibility of an eventual harm to the examiner. Thus, even while disclosing the evaluated answer sheets the authority conducting the examination is obliged to ensure that the name and identity of the examiner is not disclosed. The authorities conducting the examination can, therefore, take recourse to the exemptions provided for under Section 8(1)(j). But applicability of Section 8(1)(j) per-se will not exclude disclosure unless the disclosure is also justified under Section 8(1)(e). The fiduciary relationship between the examiner and the authority conducting the examination is personal and it can extend only insofar as the disclosure of the identity of the examiner is concerned, but it cannot be stretched beyond that point and as such neither Section 8(1)(e) nor Section 8(1)(j) exempts disclosure of the evaluated answer sheets if the authority concerned ensures that the name and identity of the examiners, invigilators, scrutinizers and any other person involved with the process is kept confidential.
32. In so far as application of Section 8(1)(j) to deny disclosure on the ground that personal information which has no public interest is concerned, it is necessary to explain the scope and ambit of this sub section. Section 8(1)(j) reads as under:
"information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information "
.
This Section has to be read as a whole. If that were done, it would be apparent that that "personal information" does not mean information relating to the information seeker, but about a third party. That is why, in the Section, it is stated "unwarranted invasion of the privacy of the individual". If one were to seek information about himself or his own case, the question of invasion of privacy of his own self does not arise. If one were to ask information about a third party and if it were to invade the privacy of the individual, the information seeker can be denied the information on the ground that disclosure would invade the privacy of a third party. Therefore, when a citizen seeks information about his own case and as long as the information sought is not exempt in terms of other provisions of Section 8 of RTI Act, this Section 12 cannot be applied to deny the information. Thus, denial for inspection/verification of his own answer sheets by a citizen applying the provisions of Section 8(1)(j) is not sustainable
33. It has been submitted before us at the time of hearing by the CBSE that they have above 9000 schools and there are about 12 lakh examinees each of them appearing in 5 subjects. Thus, there are at least 6 million answer sheets. The examination being a process where no one may feel satisfied with the end result, there will be a general demand of disclosure of the answer sheets and it will give rise to a situation impossible to manage. He also submitted that if the disclosure is allowed, it will lead to a situation where no finality will ever come by. The points raised by the CBSE are not without merit and they need serious consideration. After all it is a matter of common knowledge that the parents and the students are never satisfied with their assessment. Every University and Board has a mechanism for re-evaluation which can be made use of by those who have genuine apprehensions about the fairness of the system. The disclosure, therefore, of the evaluated answer sheets may be taken recourse in rare cases but it cannot have an en- bono application, unless the University or the Board as the case may be introduces a system where the giving back of the evaluated answer sheets becomes or is made a regular practice, which this Commission hereby recommends.
33. Assuming, as contended by the appellants that Section 8(1) (e) cannot be applied in denying the disclosure of the evaluated answer sheets, we would like to examine the matter from another angle, keeping in mind the larger public interest purpose and ambit of RTI Act. The Act is founded on public interest and that is why, even where there are specific exemptions in certain matters, the CPIO has been given the discretion to disclose the same to different authorities if public interest so warrants.
34. The Supreme Court has examined the issue of public interest in the matter of allowing candidates to inspect their answer books or the revaluation of the answer papers in the presence of the candidates, in Maharashtra State Board of Secondary and Higher Education Vs. Paritosh Bhupeshkumar Sheth &anr.(AIR 1984 SC 1543). In that case, the Rules framed by the said Board provided "No candidate shall claim or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other 20 documents as these are treated by the Divisional Board as most confidential".
The constitutional validity of the above rule was challenged as being in violation of the principles of natural justice. The Court held:
13"The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners."
The Court, further observing that the constitutional validity of a rule, among other aspects has to be tested to see whether it infringes any of the fundamental rights or other restrictions or limitations imposed by the Constitution, held that the said rule did not infringe any of the fundamental rights. The Court further noting, that the procedure evolved by the Board for ensuring fairness and accuracy in evaluation of the answer sheets had made the system as fool-proof as can be possible , observed as follows:
"The High Court has relied upon the fact that the University of Bombay and some other Universities have recently made provisions permitting candidates to demand revaluation. In our opinion, this has little relevance for the purpose of deciding about the legal validity of the impugned regulations framed by the Board. We do not know under what circumstances the University of Bombay has decided to recognize a right in the examinees to demand a revaluation. As far as the Board is concerned it has set out in the counter- affidavit the enormity of the task with which it is already faced, namely, of completing twice during each year the process of evaluation and release of results of some 3 lakhs of candidates appearing for the S.S.C. and H.S.C. examinations to be held in an interval of only a few months from one another. If the candidates are all to be given inspection of their answer books or 21 the revaluation of the answer papers is to be done in the presence of the candidates, the process is bound to be extremely time consuming and if such a request is made by even about ten per cent of the candidates, who will be 30,000 in number, it would involve several thousands of man hours and is bound to throw the entire system out of gear. Further, it is in the public interest that the results of Public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and revaluation are to be allowed as of right, It may lead to gross and indefinite uncertainty, particularly in 14 regard to the relative ranking etc. of the candidates, beside leading to utter confusion on account of the enormity of the labour and time involved in the process."
35. Pointing out the Constitution Bench decision in Fatehchand Himmatlal Vs. State of Maharashtra (AIR 1977 SC 1825), that the test of reasonableness is not applied in a vacuum but in the context of life's realities, the Hon'ble Apex Court further observed:
"If the principle laid down by the High Court is to be regarded as correct, its applicability cannot be restricted to examinations conducted by School Educational Boards alone but would extend even to all competitive examinations conducted by the Union and State Public Service Commissions. The resultant legal position emerging from the High Court Judgment is that every candidate who has appeared for any such examination and who is dissatisfied with his results would, as an inherent part of his right to the 'fair play' be entitled to demand a disclosure and personal inspection of his answer scripts and would have a further right to ask for revaluation of his answer papers. The inevitable consequence would be that there will be no certainty at all regarding the results of the competitive examination for an indefinite period of time until all such requests have been complied with and the results of the verification and revaluation have been brought into account". -------- " It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the 22 result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case."
36. However, it has been argued before us that the aforesaid decision of the Hon'ble Apex Court is prior to the enactment of the Right to Information Act under which every information under the control of a public authority is liable to be disclosed unless it is exempted from disclosure under any of the provisions of this Act. As recently as in 2006, that is after the RTI Act came into effect, the 15 Supreme Court has again affirmed the said decision in the President, Board of Secondary Education, Orissa V D.Suvankar ( Civil Appeal No 4926 of 2006- Judgment dated 14.11.2006) stating --
"it is in the public interest that the results of Public Examinations, when published should have some finality attached to them. If inspection, verification in the presence of candidates and revaluation is to be allowed as a matter of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking etc. of the candidates, besides leading to utter confusion on account of enormity of the labour and time involved in the process The court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day to day working of educational institutions and the departments controlling them."
37. A reading of the above two judgments of the Hon'ble Supreme Court will reveal that both judgments are based on larger public interest, which is also the foundation of RTI Act. However, in coming to the above conclusions, the Court has taken into consideration the facts that the rules of the Board do not provide for inspection of the evaluated answer sheets, that a large number of candidates are involved, that the examiners are appointed with care, that there is an inbuilt system of ensuring fair and correct evaluation with proper checks and balances
38. There are various types of examinations conducted by public authorities which could be either public or limited examinations. Examinations are conducted for various purposes viz. (i) for admission to educational institutions,
(ii) for selection and appointment to a public office, (iii) for promotion to higher classes in educational institutions or in employment etc. There are institutions like UPSC, Staff Selection Commission, CBSE etc, the main function of which is only to conduct examinations. Many public authorities, as those in the present appeals like Jal Board, Railways, Lok Saba Secretariat, DDA, whose main function is not of conducting examinations, do so either to recruit fresh candidates for jobs or for promotion of existing staff. Thus these public authorities conduct both public as well as departmental examinations.
39. In regard to public examinations conducted by institutions established by the Constitution like UPSC or institutions established by any enactment by the Parliament or Rules made thereunder like CBSE, Staff Selection Commission, Universities., etc, the function 16 of which is mainly to conduct examinations and which have an established system as fool-proof as that can be, and which, by their own rules or regulations prohibit disclosure of evaluated answer sheets or where the disclosure of evaluated answer sheets would result in rendering the system unworkable in practice and on the basis of the rationale followed by the Supreme Court in the above two cases, we would like to put at rest the matter of disclosure of answer sheets. We therefore decide that in such cases, a citizen cannot seek disclosure of the evaluated answer sheets under the RTI Act, 2005.
40. Insofar as examinations conducted by other public authorities, the main function of which is not of conducting examinations, but only for filling up of posts either by promotion or by recruitment, be it limited or public, the rationale of the judgments of the Supreme Court may not be applicable in their totality, as in arriving at their conclusions, the above judgments took into consideration various facts like the large number of candidates, the method and criteria of selection of examiners, existence of a fool-proof system with proper checks and balances etc. Therefore, in respect of these examinations, the disclosure of the answer sheets shall be the general rule 2 but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice. If that be so, the disclosure of the evaluated answer sheets could be denied but not otherwise. However, while doing so the concerned authority should ensure that the name and identity of the examiner, supervisor or any other person associated with the process of examination is in no way disclosed so as to endanger the life or physical safety of such person. If it is not possible to do so in such cases, the authority concerned may decline the disclosure of the evaluated answer sheets u/s 8 (1) (g).
41. In some of the cases before us, it was argued that there is no question of revealing the identity of an examiner when it is a computer based examination and OMR sheets are issued as in such cases, the assessment is done by the computer. Although the use of this technique is resorted to only where there are large numbers of examinees appearing, the disclosure of evaluated answer sheets in such cases is unlikely to render the system unworkable and as such the evaluated answer sheets in such cases will be disclosed and made available under the Right to Information Act unless the providing of such answer sheets would involve an infringement of copyright as provided for under Section 9 of the Right to Information Act. The same analogy which is applicable in most examinations will mutatis mutandis apply in case of an examination conducted with optical marking system.
2Emphasis now added for ease of reference 17 XXXX
43. Before us are appeals in relation to examinations conducted by CBSE, Lok Sabha Secretariat, Jal Board, DDA and North Western Railways. Insofar as CBSE is concerned, we have held that denial of disclosure has been correctly done. In respect of the other public authorities, we are of the view that each public authority conducting examinations shall disclose the evaluated answer sheets to the applicants subject to the guidelines set forth in the preceding paragraphs. 3 The other cases are remanded back to the concerned Information Commissioner for issuing appropriate directions taking into consideration the broader principles laid down and indicated in the preceding paragraphs."
In the present case we would categories the examinations conducted by the High Court of Punjab & Haryana at the same level as those of Lok Sabha Secretariat, Jal Board, D.D.A. and Northern-Western Railways. At any rate even with regard to those examinations which we have held exempt from such disclosures, we have the decision of the High Court of Calcutta in which Shri Sanjib Banerjee J of the High Court in Writ Petition No. 22176 of 2007 (reported in AIR 2000 Calcutta 118.. This order has been relied upon by appellant Shri Kaushik in his 1st appeal, a plea that was rejected on 16.8.08, by the first appellate authority Shri AS Narang on the grounds that, "PIO is a creature of the Statute and is bound by the rules. This Authority is also a creature of the Statute and is also bound by the same" We have therefore examined this order by which the High Court of Calcutta has held as follows:
xxxx "48. And then there is the Central Information Commission's judgment of April 23, 2004. In addressing a question, whether answer scripts should be furnished following a request to obtain information made under the said Act, the Commission framed two main questions. The first was as to whether the disclosure of evaluated answer scripts was exempted under Section 8(1)(e) of the said Act, and the second as to whether such disclosure was exempted under Section 8(1)(e) of the Act. Section 8(1)(e) exempts the disclosure of any information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Section 8(1)(e) exempts the disclosure of any information which would endanger the life 3
-ibid-18
or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.
49.In dealing with such questions, the Commission noticed the argument made on behalf of the public authorities before it that an examining body is obliged to not disclose the identity of the examiners as such disclosure would be in breach of the fiduciary duty said to be owed by the examining body to the examiners. The connected argument was also noticed, that upon the identity of the examiners being revealed their lives and physical safety may be at risk. It is not necessary to go into the reasons as to why the Commission found that neither Section 8(1)(e) nor Section 8(1)(g) exempted disclosure of the evaluated answer scripts as the Commission held that only the disclosure as to the identity of the examiners was exempted. It is the argument as to the unworkability of the right to inspect answer scripts that ultimately weighed with the Commission. In the words of the Commission.
"... it is matter of common knowledge that the parents and the students are never satisfied with their assessment. Every University and Board has a mechanism for re-evaluation which can be made use of by those who have genuine apprehensions about the fairness of the system. The disclosure, therefore, of the evaluated answer sheets may be taken recourse in rare cases but it cannot have an en-bono application, unless the University or the Board as the case may be introduces a system where the giving back of the evaluated answer sheets becomes or is made a regular practice, which this Commission hereby recommends."
50. The Commission thereafter noticed the Paritosh Bhupeshkumar Sheth case, a Constitution Bench judgment in Fateh Chand Himmatlal v. State of Maharashtra reported as (1977) 2 SCC 670: (AIR 1977 SC 1825) and the Suvankar case to conclude that the Supreme Court pronouncements negating an examinee's right to demand disclosure and personal inspection of his answer script, were based on larger public interest which the Commission also found to be the basis of the said Act. The Commission thereafter proceeded to make a distinction between public examinations conducted by institutions established by the Constitution or by any enactment like the Union Public Service Commission or Universities or the Central Board of Secondary Education and examinations conducted by other public authorities whose principal function is not of conducting examinations but who hold examinations for filling up posts either by promotion or by recruitment. The 19 commission held that for public authorities designed to conduct examinations, a citizen cannot seek disclosure of the evaluated answer script under the said Act. But for other public authorities incidentally conducting examinations, "the disclosure of the answer sheets shall be the general rule but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice". The Commission added a rider to the case of public authorities incidentally conducting examinations : the identity of the examiner, supervisor or other person associated with the process of examination should not be disclosed so as to endanger their lives or physical safety, and if it was not possible to make over the information without concealing the identities of the connected persons, the public authority could decline the disclosure of the evaluated answer scripts under Section 8(1)(g) of the said Act. In case of departmental examinees, the Commission took a view that disclosure of proceedings and disclosure of answer scripts, not only of the examinees but also of the other candidates, was necessary to bring in fairness and neutrality for the system to be more transparent and accountable.
51.In effect, the Commission discovered an exemption not expressly provided for in the statute to deny information despite accepting that the words used in the said Act could not be read to be a bar to the right asserted thereunder, But more on the Commission's opinion later.
52. In its long title the said Act proclaims to set about a personal regime of right to information for citizens. The preamble opens with a reference to the Constitution having established a democratic republic and the need, therefore, for an informed citizenry. The preamble reveals that the legislature was mindful of the likely conflict between revelation of information and efficient operation of the Governments: of optimum use of resources: and, most significantly, the need to preserve the paramount virtue of the democratic ideal:
"Whereas the Constitution of India has established Democratic Republic;
And whereas democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the government;
And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, 20 optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information:
And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal:
Now, therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it."
53. If it is the preamble that has to be looked into for the reason for, or the spirit of, the statute as a key to open the minds of the makers of the Act and the mischief they intended to redress, the makers appear to have been alive to the likely difficulties of the executive to live up to the Act.
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66. Right to information jure gentium has to be understood on the commission's opinion that is the evidence of what the law is, on the basis of how courts have interpreted the right under Article 19 of the Constitution. As the said Act is of rent vintage, the principle of contemporane exposition is not available for the opinion of the Central Information Commission, to the extent of its understanding that there is no express bar in the said Act to answer scripts being otherwise made available, to be relied upon. Yet such Commission is a body that deals with matters under the said Act and reads the words of the statute on a regular basis to direct or refuse the disclosure of information. The Commission answered the two questions directly raised on the provisions of the said Act against the public authorities and yet found the hardship factor call it inconvenience or unworkability which is not expressly included in the statue as a ground for exemption to be standing in the way of the answer scripts being made available to their authors. But though the examinees failed before the Central Information Commission there is a pious wish recorded in the order for their benefit recommending making over of answer scripts to examinees upon a regular procedure being set down in that regard.
67. On a plain reading of the right amplified under the aid Act the question that it ought to stimulate upon a request being received is not why, but why not. If information has to be supplied unless it is exempted the reason for refusal has to be found in Section 8 or not at all. 4 4 Emphasis ours 21
68. Since three of the ten clauses of Section 8 (1) of the said Act have already been referred to the other seven may be seen. Clause (a) of sub-section (1) of Section 8 deals with information that would compromise the sovereignty or integrity of the country and like matter; clause (c ) covers such matters which would cause a breach of privilege of the Parliament or the State Legislatures; clause (d) protects information of commercial nature and trade secrets and their ilk; clause (f) prevents information being disseminated if it is received in confidence from any foreign government; clause
(h) bars access to such information which would impede the process of investigation or apprehension or prosecution of offenders; clause (i) forbids records and papers relating to deliberations of ministers and officers of the executive being made available, subject to a proviso and, clause (j) prohibits disclosure of personal information unless there is an element of public interest involved. The proviso at the foot of clause
(j) appears to cover the entirety of section 8 (1) notwithstanding the view taken by the Division Bench of the Bombay High Court. The manner in which the exceptions to the rule have been carved out in section 8 and the proviso which appears to govern all the cases covered by Section 8 (1) of the said Act makes the exemption section exhaustive.
69. Construction of a statue on the grounds of hardship or inconvenience or in justice or absurdity or anomaly arises if the statute presents a choice. The said Act does not appear to present one. For the rule of mischief to come into play there have to be material words that are capable of bearing two or more constructions. The rule of purposive construction or the mischief rule as enunciated in the Heydon case has been accepted by the Supreme Court in the case of Bengal Immunity Co. Ltd. v. State of Bihar reported at 1955 (2) SCR 603; (AIR 1955 SC 661) "23 It is a sound rule of construction of a statue firmly established in England as for back as 1584 when Heydon's case (3 Co. rep 7a; 76Er 637) was decided that -
"......for the sure and true interpretation of all statues in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st What was the common law before the making of the Act, 2nd What was the mischief and defect for which the common law did not provide.
3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth., and 4th The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and 22 evasions for continuance of the mischief and proprivato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bona publico."
70. Even if the Heydon questions were to arise in the present case the answers to them would not permit the disclosure of answer scripts being resisted. There is no discernible change of law attempted by the said Act. It has fuelled the burgeoning aspiration of a people for transparent governance. If there is any mischief that the said Act seeks to address. It is to make the right guaranteed by the Constitution more explicit. The remedy that the Parliament has prescribed is to cure the malaise of clandestine, cloak and dagger functioning of any public authority. The true reason of the remedy is to ensure a level playing field.
71. If then there is hardship in its implementation or in the fructification of the aspirations recognized therein it is not for the Court to rein in the desirable curiosity that the Act has unleashed but for other measures to be adopted to pave the way for its operation. If the Central Information Commission could have recognized the spirit of the Act to have recommended the return of answer scripts to examinees, that there is an immediate hardship or harsh consequence is of no relevance.
72. The Act provides a right to receive information and the consequence of the making over of such information is immaterial in the matter of construction of its provisions. As to whether an examinee would use the information received on inspection of his answer script to undo the finality of the process of examination is not an argument that can be considered to curb the operation of the state. The Act begins with a citizen's right to obtain information and ends with the information being made available to him or his request being justly rejected on the grounds recognized by the Act what happens before and what may be the consequence of the information being made available or rightfully denied is a matter beyond the operation of the Act.
73. The University's first challenge (and it is, indeed the University's challenge as the onus is on the rejection being required to be justified) that what an examinee seeks in asking for inspection of his answer script is not information at all cannot be accepted. In the stricter sense if such answer script answers to the description of information. Whether such information is of the examinee's creation counts for little. In the broader perspective, if a document submitted takes on any marking it becomes a new document. The University's offer of making the marks allotted to each individual question available to all candidates is fair and 23 laudable but not if it comes with the rider that the answer scripts should then be exempted from being divulged. Notwithstanding the principle of severability contained in Section 10 of the said Act the answered paper with or without an examiner's etchings thereon is not information exempted under any of the limbs of Section 8.
74. As a matter of principle, if answer scripts cannot be opened up for inspection it should hold good for all or even most cases. Since the said Act permits a request for third party information, subject to the consideration as to desirability in every case, a third party answer script may, theoretically be sought and obtained. The University's first argument would then not hold good for a third party answer script would be information beyond the knowledge of its seeker.
75. There is an understandable attempt on the University's part to not so much as protect the self and property of the examiner, but to keep the examiner's identity concealed. The argument made on behalf of the public authorities before the Central Information Commission has, thankfully, not been put forward in this case. This University has not cited the fiduciary duty that it may owe to its examiners or the need to keep answer scripts out of bounds for examinees so that the examiners are not threatened. A ground founded on apprehended lawlessness may not stultify the natural operation of a statue, but in the University's eagerness here to no divulge the identity of its examiners there is a desirable and worthy motive- to ensure impartiality in the process. But a procedure may be evolved such that the identity of the examiner is not apparent on the face of the evaluated answer script. The severability could be applied by the coversheet that is left blank by an examinee or later attached by the University to be detached from the answer script made over to the examinee following a request under section 6 of the Act. It will require an effort on the public authority's part and for a system to be put in place but the lack of effort or the failure in any workable system being devised will not tell upon the impact of the wide words of the Act or its ubiquitous operation.
76. Whether or not an examiner puts his pen to the answer script that he proceeds to evaluate would not rob the answer script of retaining its virtue as information within the meaning of the said Act even if it is made available for inspection in the same form as it was received from the examinee. The etchings on an answer script may be additional information for a seeker but the answer script all along remains a document liable to be sought and obtained following a request under section 6 of the Act. That the etchings may be pointless or that they may be arbitrary or 24 whimsical in the absence of any guidelines, makes little difference.
77. Education is more than just reading prescribed texts and taking examinations in a given format, it is more than a garnering of degrees, certificates and diplomas. Any real education requires the amassing of knowledge that may or may not be in the prescription for an examination. An educated human being may also strive to create a new body of knowledge that is outside the purview of prescriptions. There can be no education if limits are imposed on the amount and type of knowledge an individual may gather or create. A democracy can only be functional in all its aspects extents and senses when there is an informed citizenry.
78. The right to information is the most basic empowerment of the individual- the right of an individual to the source of any knowledge required for him to educate him self in any are he may choose.
79. An examining authority may not tell a student that he must learn how to answer questions in the format the examining authority desires, yet leave the examinee uninformed of the manner of evaluation. The examining authority cannot be exacting in its demand for transparency and clarity in answers to its questions, and yet remain in scriptable and veiled in its methods of evaluation. An examining authority has every right to judge the student's knowledge and expression of that knowledge, but it cannot take away the examinee's right to know the methodology of and the criteria for its evaluation. But again this is straying into the zone of the consequence of information of the subject kind being made available.
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81. If inspection of answer scripts is denied to the examinee, the spirit of the Constitutional right to expression and information may be lost 5 . The knowledge builder's the University's bid to perpetuate the draconian, elitist, one sided right to know and judge and rule without being open to question or accountable to the examinee cannot be encouraged. For a system to foster meaningful proliferation of knowledge it must itself be crystal clear to this core.
82. In the University's zeal to limit the scope of the request for information under the said At, one may get a whiff of its inertia; its innate resistance to change, almost a sublime refusal to perceive or acknowledge how all around it has 5 Emphasis added 25 moved along. History and tradition may be cherished and preserved. But evolution cannot be impeded as it is a means for survival. If there is no infrastructure to receive the change, the need to change cannot be negated, it is possible that public authorities as the university do not desire accountability as it is a demanding taskmaster and it is difficult to shrug off old habits. It is equally likely that while public examining bodies make an ostensible show of concern for the examiners, there is a realization that a more open scrutiny of evaluated answer script will require more care and caution than the low remuneration- and that is a notorious fact- to examiners can command.
83. Access to answer scripts may have the desirable side effect of ensuring that there is no loss of any of the papers. It is not unknown for answer scripts of Board and other examinations to have been found in dishonourable places that they should never have reached, and the awareness, that there may potentially be a request for furnishing every answer script may result in its better preservation. In a sense, he despair that has driver many a student to take his life in recent times may be addressed if students have access to their evaluated answer scripts.
84. The University's final shield is, formally, the Court. It seeks to tuck the answer scripts behind the apparently insurmountable wall of Supreme Court judgments. Apart from the fact that Section 8 (1) (b) of the said Act has to be read in the light of the overriding effect of the said Act sanctioned under Section 22, the argument on such score is as much a show of desperation as the floodgate theory.
85. There are two parts to Section 8(1) (b) of the Act:
information that has been expressly forbidden to be published by any Court of Law or Tribunal or the disclosure of which may constitute contempt of Court. It is a disjunctive "or" after the word "tribunal". It is trite that an act may not be expressly forbidden by a Court and yet its commission would amount to contempt of Court. In the first limb of the clause, the expression "expressly forbidden" operates on the word "information". It necessarily implies that, that which is sought by way of a request has to be a matter that is expressly forbidden to be made available. The judicial embargo has to be explicit and a general observation may not be cited as a bar. An express prohibition has to be more specific than what the University brings by way of Supreme Court judgments, even if its best arguable case is taken. It does not appear that the University here has stressed much on the second arm of the clause. Even the latest Ayan Das case has not altogether forbidden answer scripts being offered for inspection by a Court to an examinee. The Suvankar case spoke of the ills of court - sanction 26 interventions in the process of evaluation that may rob it of its timely finality. The Suvankar case deals with the consequence of information being furnished and cannot be seen as an impediment to the information in the form of answer scripts being made available. It is a matter that comes into play, as noticed above, in the zone beyond where the said Act operates.
86. The Supreme Court's reference in the Paritosh Bhupeshkumar Sheth case to the audi alteram partelm rule not operating in the twilight zone of expectations has to be read in the background of the immediate lis and the more general rule that was laid down. The challenge in that case was to two clauses of one of the regulations of the Secondary and Higher Secondary Council that barred reassessment and prohibited inspection of answ4erscripts. The restrictions were found to be reasonable. The matter was not considered in the light of the enactment which is the subject matter of the present proceedings, even if it is accepted that the said Act only elucidates on the right originally guaranteed by the Constitution. There is no evil in a right born in the Constitution being enlarged by subsequent legislation nor any doubt as to the legislative competence to do so. If the right already existed under the Constitution, Parliament may widen its sweep and operation. A privilege granted under Part III of the Constitution can be legitimately magnified in keeping with the Constitutional vision in Part IV, abreast with the changing times when the said Act's avowed purpose is to bring about transparency and curb corruption.
87. Judicial discipline demands deference to precedents not only of the hierarchical superior but also of a forum of coordinate jurisdiction but it does not command a fawning obeisance in the deification of any precedent. As society progresses and aspirations rise, it shakes off the shackles that it invented in its infancy or adolescence. Marvels of yesterday become relics of today. If the Central Information Commission can rightfully aspire for a day when answer scripts would accompany the mark sheets, that there is no facility therefore today would not lead to the natural words and import of the said Act to be constricted by any concern for the immediate hardship and inconvenience. The umbra of exemptions must be kept confined to the specific provisions in that regard and no penumbra of a further body of exceptions may be conjured up by any strained devise of construction. In a constitutional democracy, every limb and digit of governance is ultimately answerable to the government." 6 6 Emphasis added 27 We had already in our interim order of 7.11.'08 conveyed the decision of the High Court of Delhi in reviewing the application of rule 5 (c) of the Delhi High Court Right to Information Rules 2006.the Decision of the High Court of Calcutta read together with the instructions of the High Court of Delhi and the Decision in Full Bench of this Commission, leads to the inevitable conclusion that in this case, the answer scripts are disclosable to the author. The Registrar High Court of Punjab & Haryana is now directed to provide the information sought to appellant Shri Keshav Kaushik within ten working days of the date of issue of this decision notice including questions 6 & 7 already agreed to. It is also recommended to the High Court of Punjab & Haryana u/s 19(8) (a) that they may consider a similar review as that undertaken by the High Court of Delhi of its rule 5, of rule 4 of the High Court of Punjab & Haryana (Right to Information) Rules, 2007 The appeal is thus allowed. There will be no costs. Reserved in the hearing, this decision was announced in open chamber on 21.11.2008. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 21.11.2008 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.
(Pankaj Shreyaskar) Joint Registrar 21.11.2008 28