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TMI Blog2012 (5) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... be served afresh but no steps were taken by the appellant. When the matter came up before us on 1 st March, 2012, being of the view that the matter was fully covered by the judgment of the Supreme Court in The Institute of Chartered Accountants of India v. Shaunak H. Satya (2011) 8 SCC 781, the counsel for the appellant was asked to satisfy this Court as to the merit of this appeal. The counsel for the appellant sought adjournment from time to time and in these circumstances on 30th March, 2012 orders were reserved in the appeal with liberty to the counsel for the appellant to file written arguments. Written arguments dated 11 th April, 2012 have been filed by the appellant and which have been considered by us. 2. The respondent in his application dated 5th April, 2010 had sought the following information from the Information Officer of the appellant. 1. Certified copies of original questions papers of all Mch super- speciality entrance exam conducted from 2005-2010. 2. Certified copies of correct answers of all respective questions asked in Mch super-speciality entrance exam conducted from 2005-2010. 3. The Information Officer of the appellant vide reply dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not attracted. It was further observed that there was no fiduciary relationship between the experts who helped to develop the question bank and the appellant and thus Section 8(1) (e) also could not be attracted. 8. The appellant in its written submissions before us urges: i. that the subject matter of this appeal is not covered by the judgment of the Supreme Court in Shaunak H. Satya (supra) as the facts and circumstances are completely different; ii. that the entrance examination for super-speciality courses was introduced by the appellant only in the year 2005; iii. that at the level of super-speciality examinations, there can be very limited questions, which are developed gradually; that such question papers are not in public domain; that a declaration is also taken from the examinee appearing in the said examination that they will not copy the questions from the question papers or carry the same; iv. per contra, in Shaunak H. Satya (supra) the Institute of Chartered Accountants (ICA) was voluntarily publishing the suggested answers of the question papers in the form of a paper book and offering it for sale every year after examination and it was owing to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision and the authority which exercised the said power to revise the marks ; ii. that the CIC in that case had upheld the order refusing disclosure observing that the disclosure would seriously and irretrievably compromise the entire examination process and the instructions issued by the Examination Conducting Public Authority to its examiners are strictly confidential; iii. it was also observed that the book annually prepared and sold by the ICA was providing solutions‟ to the questions and not model answers‟; iv. however the High Court in that case had directed disclosure for the reason of the suggested answers being published and sold in open market by the ICA itself and there being thus no confidentiality with respect thereto. It was also held that the confidentiality disappeared when the result of the examination was declared. 10. The Supreme Court, on the aforesaid finding, held- i. that though the question papers were intellectual property of the ICA but the exemption under Section 8(1)(d) is available only in regard to intellectual property disclosure of which would harm the competitive position of any third party; ii. that what may be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not at this stage deem it appropriate to remand the matter to the Single Judge. 12. We are conscious that though notice of this appeal was issued to the respondent but the respondent remains unserved. We have wondered whether to again list this appeal for service of the respondent, to consider the aforesaid arguments of the appellant and the response if any of the respondent thereto but have decided against the said course, finding the respondent to be a resident of Indore, having participated in the hearing before the CIC also through audio conferencing and also for the reason that inspite of the order of the learned Single Judge having remained stayed for the last nearly two years, the respondent has not made any effort to join these proceedings. We have in the circumstances opted to decipher the contentions of the respondent from the memoranda of the first and the second appeals on record and from his contention in the audio conferencing, as recorded in the order of the CIC. 13. The respondent in the memorandum of first appeal, while admitting the question papers and model answers to be intellectual property of appellant, had pleaded that publication thereof was in lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after year but we cannot ignore the statement in the memorandum of this appeal supported by the affidavit of the Sub-Dean (Examinations) of the appellant to the effect that the number of multiple choice questions which can be framed for a competitive examination for admission to a super-speciality course dealing with one organ only of the human body, are limited. This plea is duly supported by the prohibition on the examinees from copying or carrying out from the examination hall the question papers or any part thereof. We have no reason to reject such expert view. 16. The Sub-Dean of Examinations of the appellant in the Memorandum of this appeal has further pleaded that if question papers are so disclosed, the possibility of the examination not resulting in the selection of the best candidate cannot be ruled out. It is pleaded that knowledge of the question papers of all the previous years with correct answers may lead to selection of a student with good memory rather than an analytical mind. It is also pleaded that setting up of such question papers besides intellectual efforts also entails expenditure. The possibility of appellant, in a given year cutting the said expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciary relationship also held that the RTI Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy i.e. of transparency and accountability on one hand and public interest on the other hand. It was further held that when Section 8 exempts certain information, it should not be considered to be a fetter on the Right to Information, but an equally important provision protecting other public interests essential for fulfillment and preservation of democratic ideas. The Supreme Court further observed that it is difficult to visualize and enumerate all types of information which require to be exempted from disclosure in public interest and the legislature has in Section 8 however made an attempt to do so. It was thus held that while interpreting the said exemptions a purposive construction involving a reasonable and balanced approach ought to be adopted. It was yet further held that indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information, unrelated to transparency and accountability would be counter productive and the RTI Act should not be allowed to be misused or abused. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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