DISCLOSURE OF INFORMATION ABOUT EXAMINERS UNDER RTI ACT, 2005

[Mr. M. GOVINDARAJAN]

The duty of examining bodies is to subject the candidates who have completed a course of study or a period of training in accordance with its curricula, to a process of verification/examination/testing of their knowledge, ability or skill, or to ascertain whether they can be said to have successfully completed or passed the course of study or training. Other specialized examining bodies may simply subject the candidates to a process of verification by an examination, to find out whether such a person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with the public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest.

The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non commercial function. It is not possible to divide this function as partly statutory and partly administrative.

When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its services to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-à-vis other examinees.   The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.

The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of mark sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration nor convert the examinee into a consumer. It cannot, therefore, be said that the examining body is in a fiduciary relationship either with reference to the examinee who participates in the examination and whose answer books are evaluated by the examining body.

The examining body entrusts the answer books to an examiner for evaluation and pays the examiner for his expert service. The work of evaluation and marking the answer book is an assignment given by the examining body to the examiner which he discharges for a consideration. Sometimes, an examiner may assess answer books, in the course of his employment as a part of his duties without any specific or special remuneration. In other words, the examining body is the ‘principal’ and the examiner is the ‘agent’ entrusted with the work, that is, the evaluation of answer books. Therefore, the examining body is not in the position of fiduciary with reference to the examiner. Therefore the information relating to the examiner gets exemption under Section 8 of the Right to Information Act. This concept is upheld by the Supreme Court in the following two cases:

In ‘Central Board of Secondary Education V. Aditya Bandopadhyay’ – 2011 (8) TMI 538 - SUPREME COURT OF INDIA it was observed that when an examining body engages the services of an examiner to evaluate the answer books, the examining body expects the examiner not to disclose the information regarding evaluation to anyone other than the examining body. Similarly the examiner also expects that his name and particulars would not be disclosed to the candidates whose answer books are evaluated by him. In the event of such information being made known, a disgruntled examinee who is not satisfied with the evaluation of the answer books, may act to the prejudice of the examiner by attempting to endanger his physical safety. Further, any apprehension on the part of the examiner that there may be danger to his physical safety, if his identity becomes known to the examinees, may come in the way of effective discharge of his duties. The above applies not only to the examiner, but also to the scrutinizer, co-ordinator and head examiner who deal with the answer book.

The answer book usually contains not only the signature and code number of the examiner, but also the signatures and code number of the scrutiniser/co-ordinator/head examiner. The information as to the names or particulars of the examiners/co-ordinators/scrutinisers/head examiners are, therefore, the Supreme Court held exempted from disclosure under Section 8(1)(g) of the Right to Information Act, on the ground that if such information is disclosed, it may endanger their physical safety. Therefore, if the examinees are to be given access to evaluated answer books either by permitting inspection or by granting certified copies, such access will have to be given only to that part of the answer book which does not contain any information or signature of the examiners/co-ordinators/scrutinisers/head examiners, exempted from disclosure under section 8(1)(g) of the RTI Act. Those portions of the answer books which contain information regarding the examiners/co-ordinators/scrutinsers/head examiners or which may disclose their identity with reference to signature or initials, shall have to be removed, covered, or otherwise severed from the non-exempted part of the answer books, under section10 of the RTI Act.

In ‘Bihar Public Service Commission V. Saiyed Hussain Abbas Rizwi and another’ – 2012 (12) TMI 577 - SUPREME COURT the Bihar Public Service Commission published an advertisement calling for the post of ‘State Examiner of Questioned Documents’ in police laboratory in Crime Investigation Department, Patna. For this purpose written examination would be conducted, if adequate number of applications were received otherwise it would be decided on an interview. Since required number of applications were not received the Commission exercised the option to select the candidate for appointment to the said post on the basis of viva voce test alone. The process of selection was completed and the Commission recommended the panel of selected candidates to the State of Bihar.

One, Saiyed Hussain Abbas Rizwi claiming to be a public spirited citizen, filed an application before the Commission under the RTI Act, 2005 seeking information in relation to the selection of the above post by the Commission. The details required by the petitioner includes the names, designation and addresses of the subject experts present in the interview Board, names and addresses of the candidates who appeared, the interview statement with certified photocopies of the marks of all the candidates, criteria for selection of the candidates, tabulated statement containing average marks allotted to the candidates from matriculation to M.Sc., during the selection process with the signatures of the members/officers and certified copy of the merit list. Since the said information was not furnished the petitioner filed an appeal before State Information Commission. At that time the Bihar Public Service Commission has furnished the information, nearly to all the queries of the petitioner.   It also stated that no written test had been conducted and the name, designation and addresses of the members of the interview board could not be furnished as they were not required to be supplied in accordance with the provisions of section 8(1)(g) of the Act.

Challenging the above decision the petitioner filed a writ petition before the High Court. The Single bench of High Court dismissed the petition.   He went on appeal to the Division Bench. The Division Bench took the view that the provisions of Section8(1)(j) were not attracted in the facts of the case in hand inasmuch as this provision had application in respect of law enforcement agency and for security purpose. Since no such consideration arose with respect to the affairs of the Commission and its function was in public domain, reliance on the said provision for denying the information sought for was not tenable in law.

Against the order of High Court the Public Service Commission approached the Supreme Court. The Commission contended that disclosure of the names of the interview board would endanger the life of the members and such disclosure would also cause unwarranted invasion of the privacy of the interviewers.   Further it was contended that this information related to third party interest. For these reasons, they were entitled to the exemption contemplated under Section 8(1) (j) and were not liable to disclose the required information. It was also contended that the Commission was entitled to exemption under Section 8(1)(e) and 8(1)(g) read together.

The Supreme Court held that the interviewers hold the position of an ‘agent’ to the Public Service Commission. This relationship per se is not relatable to any of the exemption clauses but there are some clauses of exemption, the foundation of which is not a particular relation like fiduciary relationship. Clause 8(1)(g) came into play with any kind relationship. It requires that where the disclosure of information would endanger the life of physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes, the information need not be provided.   The Supreme Court analyzed the consequences that the interviewers or the members of the interview boards would be exposed to in the event their names and addresses or individual marks given by them are directed to be disclosed. Firstly, the members of the Board are likely to be exposed to danger to their lives or physical safety. Secondly, it will hamper effective performance and discharge of their duties as examiners. Therefore the Supreme Court allowed the appeal and set aside the order of High Court.