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TMI Blog2018 (10) TMI 1749X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and whose answer books are evaluated by the examining body. The examining body may simply subject the candidate to a process of verification by an examination, to find out whether such person is suitable for a particular post, job or assignment. An examining body, if it is a public authority entrusted with public functions, is required to act fairly, reasonably, uniformly and consistently for public good and in public interest. Therefore, every examinee will have the right to access his evaluated answer books, by either inspecting them or take certified thereof, unless the evaluated answer books are found to be exempted under Section 8 (1)(e) of the RTI Act. Coming to the present case, an examination was conducted by the MPSC for appointment to various posts in the State of Manipur. There was an allegation against the MPSC for having committed many irregularities in the recruitment process. The matter was brought to this court by way of writ petitions and in one of the writ petitions, this court constituted a Committee to look into the matter and submit a report thereof. As per the report, there were many prima facie irregularities as regards the non-signing of the answer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government. [ 3.2] The respondent No.2 submitted an application dated 14-06-2017 under the provisions of the Right to Information Act, 2005 (hereinafter referred to as the RTI Act ) to the SPIO/ MPSC praying for furnishing scanned copies of the answer sheets along with the marks allotted to the eighty-two selected candidates in the said examination and to provide the mark tabulation sheets of all the candidates who appeared in the said examination. In reply to the said application, the SPIO/ MPSC informed the respondent No.2 that the information sought for by her, being a third party information, cannot be divulged as per Section 11 of the RTI Act. Being aggrieved by the said letter of the SPIO/ MPSC, the respondent No. 2 preferred an appeal dated 10-10-2017 under Section 19 of the RTI Act read with the High Courts order dated 04-10-2017 passed in writ petition being WP(C) No. 505 of 2017 to the appellate authority, MPSC for availing the said information. The First Appellate Authority, MPSC passed a speaking order dated 08-11-2017 stating that since the answer scripts of the recommended candidates fall under the Third Party Information, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition has been filed by the petitioner. [ 6] The RTI Act was enacted by the Parliament and as seen from the statement of Objects and Reasons, the purpose for which it was enacted, was to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. In the words of the Hon ble Supreme Court, the RTI Act was enacted to ensure smoother, greater and more effective access to information and to provide an effective framework for effectuating the right to information recognised under the Article 19 of the Constitution. Section 3 provides that all the citizens have the right to information held by or under the control of public authority except those which are exempted under Section 8 of the RTI Act from disclosure of information. The relevant provisions are reproduced herein below: Section 2(f) information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rally to reduce the same in writing. ( 2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. ( 3) Where an application is made to a public authority requesting for an information,- ( i) which is held by another public authority; or ( ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made. shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application. Section 8. Exemption from disclosure of information. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. ( 2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (/), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. ( 3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (/), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he third party. ( 4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision. 9 Right to Information .4ct, 2005 Section 22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act . [ 7] The short question that arises for consideration by this court, is as to whether the respondent No.2 is entitled to seek certified copies of the evaluated answer sheets/ scripts of the said selected candidates. It has been submitted by Shri M. Hemchandra, the learned Senior Advocate appearing for the petitioner that the Commission while considering the said appeal has failed to give opportunity of being heard to the 82 recommended candidates which is mandatory under Section 19(4) of the RTI Act, 2005 and therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the Calcutta High Court which was disposed of on 05-02-2009 holding that evaluated answer books of an examinee writing a public examination conducted by the statutory bodies like CBSE or any university or Board of Secondary Education being a document, manuscript record, and opinion fall within the definition of information as defined in Section 2(f) of the RTI Act and that the examining bodies were bound to provide inspection of evaluated answer books to the examinees. When the civil appeals came up before the Hon ble Supreme Court, four questions were formulated: ( i) Whether an examinee s right to information under the RTI Act includes a right to inspect his evaluated answer books in a public examination or taking certified copies thereof? ( ii) Whether the decision of this Court in Maharashtra State Board of Secondary and Higher Secondary Education and other cases referred to above, in any way affect or interfere with the right of an examinee seeking inspection of his answer books or seeking certified copies thereof? ( iii) Whether an ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and declaration of the result, the answer book is a document or record. When the answer book is evaluated by an examiner appointed by the examining body, the evaluated answer book becomes a record containing the opinion of the examiner. Therefore the evaluated answer book is also an information under the RTI Act. 24. Section 3 of the RTI Act provides that subject to the provisions of this Act all the citizens shall have the right to information. The term right to information is defined in Section 2(j) as the right to information accessible under the Act which is held by or under the control of any public authority. Having regard to Section 3, the citizens have the right to access to all the information held by or under the control of any public authority except those excluded or exempted under the Act. The object of the Act is to empower the citizens to fight against corruption and hold the Government and their instrumentalities accountable to the citizens, by providing them access to information regarding functioning of every public authority. 27. The examining bodies contend that the evaluated answer books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. 66. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information [that is, information other than those enumerated in Sections 4(1)(b) and (c) of the Act], equal importance and emphasis are given to other public interests (like confidentiality of sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge relying upon its decision in Arvind Kejriwal Vs. Central Public Information Officer and while observing that except in cases involving overriding public interest, the ACR record of an officer cannot be disclosed to any person other than the office himself/ herself, it remanded the matter to the CIC with the observation that if the CIC comes to a conclusion that larger public interest justifies the disclosure of the information sought for by the appellant, the CIC would follow the procedure prescribed under Section 11 of the Act. The appeal preferred against the learned Single Judge order was dismissed holding that the procedure under Section 11 is mandatory and has to be followed which includes giving of notice to the officer concerned whose ACR was sought for. The Hon ble Supreme Court examined the provisions of Section 8 and 11 of the RTI Act and also the observations made by the Kerala High Court in Centre of Earth Science Studies Vs. Anson Sebastian wherein it has been held that the confidential reports of the employees maintained by the employer cannot be treated as records pertaining to personal information of an employee and the High Court of Delhi in Arvind Kejriw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters . [ 9] From the above decisions and in particular, CBSE Vs. Aditya Bandopadhyay case, it is clear that the evaluated answer book is information within the meaning of information as defined in Section 2(i) of the RTI Act which refers to any material in any form which includes records, documents, opinions etc. As has been observed by the Hon ble Supreme Court, when a candidate participates in an examination and writes his answer in an answer book and submits to the examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not being held as a fiduciary? These issues are not involved in CBSE Vs. Aditya Bandopadhyay and therefore, the Hon ble Supreme Court has not dealt with them in its decision. However, the answers to these issues are not far to seek. As has been held by the Hon ble Supreme Court, Section 3 provides that subject to the provisions of this Act, all the citizens shall have the right to information which is held or under the control of any public authority except those excluded or exempted under the Act. It is an undeniable fact that the MPSC being an institution, ought to act fairly and reasonably. The examination is conducted by the MPSC in accordance with the constitutional mandate as enshrined in Article 16 of the Constitution of India, from time to time, as and when a requisition is received from the State Government. After the examination having been conducted successfully, the evaluated answer sheets are kept by it under lock and key as an institution in public interest for certain period as prescribed in law. After the examination is over; the result thereof is declared and recommendation thereof has been made, there is no legal relationship between the examinee and the MPSC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s awarded to all candidates except the handwritten record, the disclosure of which would inevitably disclose the identity of the members of the interview panel. In Lissing Parme Vs. Shri Taket Jerang , the Arunachal Pradesh Information Commission vide its decision taken on 27-05-2013 had followed the view of the High Court of Delhi expressed in its earlier decisions that the information submitted by an applicant seeking a public post and which information comprises the basis of his selection to that post, cannot be said to be in private domain or confidential. In fact, the decisions rendered by the High Court of Delhi and the Central Information Commission are not binding on this court except the persuasive value but their decisions appear to be correct and therefore, this court endorses their views. In R.K Jains case , the decision of which is relied upon by the counsel appearing for the petitioner, the information sought for are copies of all note-sheets and correspondence including the analysis of annual confidential report relating to an employee which were denied to the appellant. The Hon ble Supreme did not interfere with it for the reason that the information sought for ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sheets/ books containing the marks secured by the candidates, have become public documents and there is no question of they being declared as confidential nor have they been treated as confidential. As seen hereinabove, it has been held that such information are not even the personal information of the candidates under Section 8(1)(f) of the RTI Act. Therefore, this court is of the view that there is no infirmity in the decision of the Commission and moreover, while disposing of the appeal, the Commission has come to the conclusion that the public interest in disclosure of the information outweighs the need for protection of personal information and public interest justifies disclosure of the information as per Section 8(2) of the RTI Act. But assuming that it is a third party information, nothing prevented the MPSC from furnishing the information as sought for by the respondent No.2 by following the procedure prescribed under Section 11 and 19 of the RTI Act. Even a third Party information can be furnished provided it does not fall under any of the exemptions as enumerated in Section 8 of the RTI Act. The MPSC is not fair in its dealing with the matter and instead of furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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