DOCUMENTS REQUIRED IN WRIT PETITION FOR ANSWERSHEET.

1). ANNEXURE P-I (COLLY)

•      RTI application of petitioner.

2).ANNEXURE P-II (COLLY)

• UPSC'S reply to some candidates of CSM-2011 denying their answersheet under 8(1)(d) of RTI act,2005:

•     RTI application Saurabh Kumar:-

• UPSC's reply to it dated 6/9/2011

•   Next rti reply by UPSC to Saurabh Kumar dated 15/11/2011        

•  UPSC'S  RTI reply to Shri. Ashish Gupta  denying answersheets Under Section 8(1)(d) of RTI act,2005.

3) ANNEXURE P-III (colly):-

   

• Dr. Prashant Chakkarwar RTI application prior aditya bandopadhyay:-

• Dr.Prashant Chakkarwar rti reply prior aditya bandopadhyay:-

• RTI reply to Shri Ashish Gupta prior bandopadhyay:-

4) CBSE vs Aditya Bandopadhyay judgment:-

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO.6454  OF 2011

[Arising out of SLP [C] No.7526/2009]

Central Board of Secondary Education & Anr. … Appellants

Vs.

Aditya Bandopadhyay & Ors. … Respondents

With

CA No. 6456 of 2011 (@ SLP (C) No.9755 of 2009)

CA Nos.6457-6458 of 2011 (@ SLP (C) Nos.11162-11163 of 2009)

CA No.6461 of 2011 (@ SLP (C) No.11670 of 2009)

CA Nos.6462 of 2011 (@ SLP (C) No.13673 of 2009)

CA Nos.6464 of 2011 (@ SLP (C) No.17409 of 2009)

CA Nos. 6459 of 2011 (@ SLP (C) No.9776 of 2010)

CA Nos.6465-6468 of 2011 (@ SLP (C) Nos.30858-30861 of 2009)

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted. For convenience, we will refer to the facts of the first

case.

2. The first respondent appeared for the Secondary School Examination,

2008 conducted by the Central Board of Secondary Education (for short‘CBSE’ or the ‘appellant’). When he got the mark sheet he was disappointed

with his marks. He thought that he had done well in the examination but his

answer-books were not properly valued and that improper valuation had

resulted in low marks. Therefore he made an application for inspection and

re-evaluation of his answer-books. CBSE rejected the said request by letter

dated 12.7.2008. The reasons for rejection were:

(i) The information sought was exempted under Section 8(1)(e) of RTI

Act since CBSE shared fiduciary relationship with its evaluators and

maintain confidentiality of both manner and method of evaluation.

(ii) The Examination Bye-laws of the Board provided that no candidate

shall claim or is entitled to re-evaluation of his answers or disclosure

or inspection of answer book(s) or other documents.

(iii) The larger public interest does not warrant the disclosure of such

information sought.

(iv) The Central Information Commission, by its order dated 23.4.2007 in

appeal no. ICPB/A-3/CIC/2006 dated 10.2.2006 had ruled out such

disclosure.”

3. Feeling aggrieved the first respondent filed W.P. No.18189(W)/2008

before the Calcutta High Court and sought the following reliefs : (a) for a

declaration that the action of CBSE in excluding the provision of reevaluation of answer-sheets, in regard to the examinations held by it was

illegal, unreasonable and violative of the provisions of the Constitution of

2India; (b) for a direction to CBSE to appoint an independent examiner for reevaluating his answer-books and issue a fresh marks card on the basis of reevaluation; (c) for a direction to CBSE to produce his answer-books in

regard to the 2008 Secondary School Examination so that they could be

properly reviewed and fresh marks card can be issued with re-evaluation

marks; (d) for quashing the communication of CBSE dated 12.7.2008 and

for a direction to produce the answer-books into court for inspection by the

first respondent. The respondent contended that section 8(1)(e) of Right to

Information Act, 2005 (‘RTI Act’ for short) relied upon by CBSE was not

applicable and relied upon the provisions of the RTI Act to claim inspection.

4. CBSE resisted the petition. It contended that as per its Bye-laws, reevaluation and inspection of answer-books were impermissible and what

was permissible was only verification of marks. They relied upon the CBSE

Examination Bye-law No.61, relevant portions of which are extracted

below:

“61. Verification of marks obtained by a Candidate in a subject

(i) A candidate who has appeared at an examination conducted by the

Board may apply to the concerned Regional Officer of the Board for

verification of marks in any particular subject. The verification will be

restricted to checking whether all the answer's have been evaluated and

that there has been no mistake in the totalling of marks for each question

in that subject and that the marks have been transferred correctly on the

title page of the answer book and to the award list and whether the

3supplementary answer book(s) attached with the answer book mentioned

by the candidate are intact. No revaluation of the answer book or

supplementary answer book(s) shall be done.

(ii) Such an application must be made by the candidate within 21 days

from the date of the declaration of result for Main Examination and 15

days for Compartment Examination.

(iii) All such applications must be accompanied by payment of fee as

prescribed by the Board from time to time.

(iv) No candidate shall claim, or be entitled to, revaluation of his/her

answers or disclosure or inspection of the answer book(s) or other

documents.

xxxx

(vi) In no case the verification of marks shall be done in the presence of

the candidate or anyone else on his/her behalf, nor will the answer books

be shown to him/her or his/her representative.

(vii) Verification of marks obtained by a candidate will be done by the

officials appointed by or with the approval of the Chairman.

(viii) The marks, on verification will be revised upward or downward, as

per the actual marks obtained by the candidate in his/her answer book.

xxxx

62. Maintenance of Answer Books

The answer books shall be maintained for a period of three months and

shall thereafter be disposed of in the manner as decided by the Chairman

from time to time.”

(emphasis supplied)

CBSE submitted that 12 to 13 lakhs candidates from about 9000 affiliated

schools across the country appear in class X and class XII examinations

conducted by it and this generates as many as 60 to 65 lakhs of answerbooks; that as per Examination Bye-law No.62, it maintains the answer

4books only for a period of three months after which they are disposed of. It

was submitted that if candidates were to be permitted to seek re-evaluation

of answer books or inspection thereof, it will create confusion and chaos,

subjecting its elaborate system of examinations to delay and disarray. It was

stated that apart from class X and class XII examinations, CBSE also

conducts several other examinations (including the All India Pre-Medical

Test, All India Engineering Entrance Examination and Jawahar Navodaya

Vidyalaya’s Selection Test). If CBSE was required to re-evaluate the

answer-books or grant inspection of answer-books or grant certified copies

thereof, it would interfere with its effective and efficient functioning, and

will also require huge additional staff and infrastructure. It was submitted

that the entire examination system and evaluation by CBSE is done in a

scientific and systemic manner designed to ensure and safeguard the high

academic standards and at each level utmost care was taken to achieve the

object of excellence, keeping in view the interests of the students. CBSE

referred to the following elaborate procedure for evaluation adopted by it :

“The examination papers are set by the teachers with at least 20 years of

teaching experience and proven integrity. Paper setters are normally

appointed from amongst academicians recommended by then Committee

of courses of the Board. Every paper setter is asked to set more than one

set of question papers which are moderated by a team of moderators who

are appointed from the academicians of the University or from amongst

the Senior Principals. The function of the moderation team is to ensure

correctness and consistency of different sets of question papers with the

curriculum and to assess the difficulty level to cater to the students of

5different schools in different categories. After assessing the papers from

every point of view, the team of moderators gives a declaration whether

the whole syllabus is covered by a set of question papers, whether the

distribution of difficulty level of all the sets is parallel and various other

aspects to ensure uniform standard. The Board also issues detailed

instructions for the guidance of the moderators in order to ensure uniform

criteria for assessment.

The evaluation system on the whole is well organized and fool-proof. All

the candidates are examined through question papers set by the same

paper setters. Their answer books are marked with fictitious roll numbers

so as to conceal their identity. The work of allotment of fictitious roll

number is carried out by a team working under a Chief Secrecy Officer

having full autonomy. The Chief Secrecy Officer and his team of

assistants are academicians drawn from the Universities and other

autonomous educational bodies not connected with the Board. The Chief

Secrecy Officer himself is usually a person of the rank of a University

professor. No official of the Board at the Central or Regional level is

associated with him in performance of the task assigned to him. The codes

of fictitious roll numbers and their sequences are generated by the Chief

Secrecy Officer himself on the basis of mathematical formula which

randomize the real roll numbers and are known only to him and his team.

This ensures complete secrecy about the identification of the answer book

so much so, that even the Chairman, of the Board and the Controller of

Examination of the Board do not have any information regarding the

fictitious roll numbers granted by the Chief Secrecy Officer and their real

counterpart numbers.

At the evaluation stage, the Board ensures complete fairness and

uniformity by providing a marking scheme which is uniformity applicable

to all the examiners in order to eliminate the chances of subjectivity.

These marking schemes are jointly prepared at the Headquarters of the

Board in Delhi by the Subject Experts of all the regions. The main purpose

of the marking scheme is to maintain uniformity in the evaluation of the

answer books.

The evaluation of the answer books in all major subjects including

mathematics, science subjects is done in centralized “on the spot”

evaluation centers where the examiners get answer book in interrupted

serial orders. Also, the answer books are jumbled together as a result of

which the examiners, say in Bangalore may be marking the answer book

of a candidate who had his examination in Pondicherry, Goa, Andaman

and Nicobar islands, Kerala, Andhra Pradesh, Tamil Nadu or Karnataka

itself but he has no way of knowing exactly which answer book he is

examining. The answer books having been marked with fictitious roll

numbers give no clue to any examiner about the state or territory it

6belongs to. It cannot give any clue about the candidate’s school or centre

of examination. The examiner cannot have any inclination to do any

favour to a candidate because he is unable to decodify his roll number or

to know as to which school, place or state or territory he belongs to. 

The examiners check all the questions in the papers thoroughly under the

supervision of head examiner and award marks to the sub parts

individually not collectively. They take full precautions and due attention

is given while assessing an answer book to do justice to the candidate. Reevaluation is administratively impossible to be allowed in a Board where

lakhs of students take examination in multiple subjects.

There are strict instructions to the additional head examiners not to allow

any shoddy work in evaluation and not to issue more than 20-25 answer

books for evaluation to an examiner on a single day. The examiners are

practicing teachers who guard the interest of the candidates. There is no

ground to believe that they do unjust marking and deny the candidates

their due. It is true that in some cases totaling errors have been detected at

the stage of scrutiny or verification of marks. In order to minimize such

errors and to further strengthen and to improve its system, from 1993

checking of totals and other aspects of the answers has been trebled in

order to detect and eliminate all lurking errors.

The results of all the candidates are reviewed by the Results Committee

functioning at the Head Quarters. The Regional Officers are not the

number of this Committee. This Committee reviews the results of all the

regions and in case it decides to standardize the results in view of the

results shown by the regions over the previous years, it adopts a uniform

policy for the candidates of all the regions. No special policy is adopted

for any region, unless there are some special reasons. This practice of

awarding standardized marks in order to moderate the overall results is a

practice common to most of the Boards of Secondary Education. The

exact number of marks awarded for the purpose of standardization in

different subjects varies from year to year. The system is extremely

impersonalized and has no room for collusion infringement. It is in a word

a scientific system.”

CBSE submitted that the procedure evolved and adopted by it ensures

fairness and accuracy in evaluation of answer-books and made the entire

process as foolproof as possible and therefore denial of re-evaluation or

7inspection or grant of copies cannot be considered to be denial of fair play or

unreasonable restriction on the rights of the students.

5. A Division Bench of the High Court heard and disposed of the said

writ petition along with the connected writ petitions (relied by West Bengal

Board of Secondary Education and others) by a common judgment dated

5.2.2009. The High Court held that the evaluated answer-books of an

examinee writing a public examination conducted by statutory bodies like

CBSE or any University or Board of Secondary Education, being a

‘document, manuscript record, and opinion’ fell within the definition of

“information” as defined in section 2(f) of the RTI Act. It held that the

provisions of the RTI Act should be interpreted in a manner which would

lead towards dissemination of information rather than withholding the same;

and in view of the right to information, the examining bodies were bound to

provide inspection of evaluated answer books to the examinees.

Consequently it directed CBSE to grant inspection of the answer books to

the examinees who sought information. The High Court however rejected

the prayer made by the examinees for re-evaluation of the answer-books, as

that was not a relief that was available under RTI Act. RTI Act only

provided a right to access information, but not for any consequential reliefs.

8Feeling aggrieved by the direction to grant inspection, CBSE has filed this

appeal by special leave.

6. Before us the CBSE contended that the High Court erred in (i)

directing CBSE to permit inspection of the evaluated answer books, as that

would amount to requiring CBSE to disobey its Examination Bye-law 61(4),

which provided that no candidate shall claim or be entitled to re-evaluation

of answer books or disclosure/inspection of answer books; (ii) holding that

Bye-law 61(4) was not binding upon the examinees, in view of the

overriding effect of the provisions of the RTI Act, even though the validity

of that bye-law had not been challenged; (iii) not following the decisions of

this court in Maharashtra State Board of Secondary Education vs. Paritosh

B. Sheth [1984 (4) SCC 27], Parmod Kumar Srivastava vs. Chairman, Bihar

PAC [2004 (6) SCC 714], Board of Secondary Education vs. Pavan Ranjan

P [2004 (13) SCC 383], Board of Secondary Education vs. S [2007 (1) SCC

603] and Secretary, West Bengal Council of Higher Secondary Education

vs. I Dass [2007 (8) SCC 242]; and (iv) holding that the examinee had a

right to inspect his answer book under section 3 of the RTI Act and the

examining bodies like CBSE were not exempted from disclosure of

information under section 8(1)(e) of the RTI Act. The appellants contended

that they were holding the “information” (in this case, the evaluated answer

9books) in a fiduciary relationship and therefore exempted under section

8(1)(e) of the RTI Act. 

7. The examinees and the Central Information Commission contended

that the object of the RTI Act is to ensure maximum disclosure of

information and minimum exemptions from disclosure; that an examining

body does not hold the evaluated answer books, in any fiduciary relationship

either with the student or the examiner; and that the information sought by

any examinee by way of inspection of his answer books, will not fall under

any of the exempted categories of information enumerated in section 8 of the

RTI Act. It was submitted that an examining body being a public authority

holding the ‘information’, that is, the evaluated answer-books, and the

inspection of answer-books sought by the examinee being exercise of ‘right

to information’ as defined under the Act, the examinee as a citizen has the

right to inspect the answer-books and take certified copies thereof. It was

also submitted that having regard to section 22 of the RTI Act, the

provisions of the said Act will have effect notwithstanding anything

inconsistent in any law and will prevail over any rule, regulation or bye law

of the examining body barring or prohibiting inspection of answer books.

108. On the contentions urged, the following questions arise for our

consideration :

(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 decisions of this court in Maharashtra State Board of

Secondary Education [1984 (4) SCC 27] 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 examining body holds the evaluated answer books “in a

fiduciary relationship” and consequently has no obligation to give

inspection of the evaluated answer books under section 8 (1)(e) of

RTI Act?

(iv) If the examinee is entitled to inspection of the evaluated answer books

or seek certified copies thereof, whether such right is subject to any

limitations, conditions or safeguards?            

Relevant Legal Provisions

9. To consider these questions, it is necessary to refer to the statement of

objects and reasons, the preamble and the relevant provisions of the RTI

11Act. RTI Act was enacted in order to ensure smoother, greater and more

effective access to information and provide an effective framework for

effectuating the right of information recognized under article 19 of the

Constitution. The preamble to the Act declares the object sought to be

achieved by the RTI Act thus:

“An Act 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, in order to promote transparency and accountability

in the working of every public authority, the constitution of a Central

Information Commission and State Information Commissions and for

matters connected therewith or incidental thereto.

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 governed;

And whereas revelation of information in actual practice is likely to

conflict with other public interests including efficient operations of the

Governments, 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.”

Chapter II of the Act containing sections 3 to 11 deals with right to

information and obligations of public authorities. Section 3 provides for

right to information and reads thus: “Subject to the provisions of this Act,

all citizens shall have the right to information.” This section makes it clear

12that the RTI Act gives a right to a citizen to only access information, but not

seek any consequential relief based on such information. Section 4 deals

with obligations of public authorities to maintain the records in the manner

provided and publish and disseminate the information in the manner

provided. Section 6 deals with requests for obtaining information. It

provides that applicant making a request for information shall not be

required to give any reason for requesting the information or any personal

details except those that may be necessary for contacting him. Section 8

deals with exemption from disclosure of information and is extracted in its

entirety:

“8. Exemption from disclosure of information -- (1) Notwithstanding

anything contained in this Act, there shall be no obligation to give any

citizen,-

(a) information, disclosure of which would

prejudicially affect the sovereignty and integrity of India, the security,

strategic, scientific or economic interests of the State, relation with foreign

State or lead to incitement of an offence;

(b)  information which has been expressly forbidden to

be published by any court of law or tribunal or the disclosure of which

may constitute contempt of court;

(c) information, the disclosure of which would cause a

breach of privilege of Parliament or the State Legislature;

(d)  information including commercial confidence, trade

secrets or intellectual property, the disclosure of which would harm the

competitive position of a third party, unless the competent authority is

satisfied that larger public interest warrants the disclosure of such

information;

13(e) 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;

(f)  information received in confidence from foreign

Government;

(g)  information, the disclosure of which would

endanger the life or physical safety of any person or identify the source of

information or assistance given in confidence for law enforcement or

security purposes;

(h)  information which would impede the process of

investigation or apprehension or prosecution of offenders;

(i) cabinet papers including records of deliberations of

the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof,

and the material on the basis of which the decisions were taken shall be

made public after the decision has been taken, and the matter is complete,

or over:

Provided further that those matters which come under the exemptions

specified in this section shall not be disclosed;

(j) 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:

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 (1), 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 (1), any information relating to any occurrence, event or

matter which has taken place, occurred or happened twenty years before

14the date on which any request is made under secton 6 shall be provided to

any person making a request under that section:

Provided that where any question arises as to the date from which the said

period of twenty years has to be computed, the decision of the Central

Government shall be final, subject to the usual appeals provided for in this

Act.”

(emphasis supplied)

Section 9 provides that without prejudice to the provisions of section 8, a

request for information may be rejected if such a request for providing

access would involve an infringement of copyright. Section 10 deals with

severability of exempted information and sub-section (1) thereof is extracted

below:

“(1) Where a request for access to information is rejected on the ground

that it is in relation to information which is exempt from disclosure, then,

notwithstanding anything contained in this Act, access may be provided to

that part of the record which does not contain any information which is

exempt from disclosure under this Act and which can reasonably be

severed from any part that contains exempt information.”

Section 11 deals with third party information and sub-section (1) thereof is

extracted below:

“(1) Where a Central Public Information Officer or a State Public

Information Officer, as the case may be, intends to disclose any

information or record, or part thereof on a request made under this Act,

which relates to or has been supplied by a third party and has been treated

as confidential by that third party, the Central Public Information Officer

or State Public Information Officer, as the case may be, shall, within five

days from the receipt of the request, give a written notice to such third

party of the request and of the fact that the Central Public Information

Officer or State Public Information Officer, as the case may be, intends to

15disclose the information or record, or part thereof, and invite the third

party to make a submission in writing or orally, regarding whether the

information should be disclosed, and such submission of the third party

shall be kept in view while taking a decision about disclosure of

information:

Provided that except in the case of trade or commercial secrets protected

by law, disclosure may be allowed if the public interest in disclosure

outweighs in importance any possible harm or injury to the interests of

such third party.”

The definitions of information, public authority, record and right to

information in clauses (f), (h), (i) and (j) of section 2 of the RTI Act are

extracted below:

“(f) "information" means any material in any form, including records,

documents, memos, e-mails, opinions, advices, press releases, circulars,

orders, logbooks, contracts, reports, papers, samples, models, data material

held in any electronic form and information relating to any private body

which can be accessed by a public authority under any other law for the

time being in force;

(h) "public authority" means any authority or body or institution of selfgovernment 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 includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government;

16(i) "record" includes-

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a document;

(c) any reproduction of image or images embodied in such microfilm

(whether enlarged or not); and

(d) any other material produced by a computer or any other device;

(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 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;

Section 22 provides for the Act to have overriding effect and is extracted

below:  

“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.”

10. It will also be useful to refer to a few decisions of this Court which

considered the importance and scope of the right to information. In State of

Uttar Pradesh v. Raj Narain - (1975) 4 SCC 428, this Court observed:

17“In a government of responsibility like ours, where all the agents of the

public must be responsible for their conduct, there can but few secrets.

The people of this country have a right to know every public act,

everything, that is done in a public way, by their public functionaries.

They are entitled to know the particulars of every public transaction in all

its bearing. The right to know, which is derived from the concept of

freedom of speech, though not absolute, is a factor which should make one

wary, when secrecy is claimed for transactions which can, at any rate,

have no repercussion on public security.”

(emphasis supplied)

In Dinesh Trivedi v. Union of India – (1997) 4 SCC 306, this Court held:

“In modern constitutional democracies, it is axiomatic that citizens have a

right to know about the affairs of the Government which, having been

elected by them, seeks to formulate sound policies of governance aimed at

their welfare. However, like all other rights, even this right has recognised

limitations; it is, by no means, absolute. ………………Implicit in this

assertion is the proposition that in transaction which have serious

repercussions on public security, secrecy can legitimately be claimed

because it would then be in the public interest that such matters are not

publicly disclosed or disseminated.

To ensure the continued participation of the people in the democratic

process, they must be kept informed of the vital decisions taken by the

Government and the basis thereof. Democracy, therefore, expects

openness and openness is a concomitant of a free society. Sunlight is the

best disinfectant. But it is equally important to be alive to the dangers that

lie ahead. It is important to realise that undue popular pressure brought to

bear on decision-makers is Government can have frightening side-effects.

If every action taken by the political or executive functionary is

transformed into a public controversy and made subject to an enquiry to

soothe popular sentiments, it will undoubtedly have a chilling effect on the

independence of the decision-maker who may find it safer not to take any

decision. It will paralyse the entire system and bring it to a grinding halt.

So we have two conflicting situations almost enigmatic and we think the

answer is to maintain a fine balance which would serve public interest.”

In People’s Union for Civil Liberties v. Union of India - (2004) 2 SCC 476,

this Court held that right of information is a facet of the freedom of “speech

18and expression” as contained in Article 19(1)(a) of the Constitution of India

and such a right is subject to any reasonable restriction in the interest of the

security of the state and subject to exemptions and exceptions.

Re : Question (i)

11. The definition of ‘information’ in section 2(f) of the RTI Act refers to

any material in any form which includes records, documents, opinions,

papers among several other enumerated items. The term ‘record’ is defined

in section 2(i) of the said Act as including any document, manuscript or file

among others. When a candidate participates in an examination and writes

his answers in an answer-book and submits it to the examining body for

evaluation 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.

12. Section 3 of RTI Act provides that subject to the provisions of this

Act all citizens shall have the right to information. The term ‘right to

information’ is defined in section 2(j) as the right to information accessible

19under 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

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. Certain

safeguards have been built into the Act so that the revelation of information

will not conflict with other public interests which include efficient operation

of the governments, optimum use of limited fiscal resources and

preservation of confidential and sensitive information. The RTI Act provides

access to information held by or under the control of public authorities and

not in regard to information held by any private person. The Act provides

the following exclusions by way of exemptions and exceptions (under

sections 8, 9 and 24) in regard to information held by public authorities:

(i) Exclusion of the Act in entirety under section 24 to intelligence and

security organizations specified in the Second Schedule even though

they may be “public authorities”, (except in regard to information

with reference to allegations of corruption and human rights

violations).

20(ii) Exemption of the several categories of information enumerated in

section 8(1) of the Act which no public authority is under an

obligation to give to any citizen, notwithstanding anything contained

in the Act [however, in regard to the information exempted under

clauses (d) and (e), the competent authority, and in regard to the

information excluded under clause (j), Central Public Information

Officer/State Public Information Officer/the Appellate Authority, may

direct disclosure of information, if larger public interest warrants or

justifies the disclosure].

(iii) If any request for providing access to information involves an

infringement of a copyright subsisting in a person other than the State,

the Central/State Public Information Officer may reject the request

under section 9 of RTI Act.

Having regard to the scheme of the RTI Act, the right of the citizens to

access any information held or under the control of any public authority,

should be read in harmony with the exclusions/exemptions in the Act.

13. The examining bodies (Universities, Examination Boards, CBSC etc.)

are neither security nor intelligence organisations and therefore the

exemption under section 24 will not apply to them. The disclosure of

information with reference to answer-books does not also involve

infringement of any copyright and therefore section 9 will not apply.

21Resultantly, unless the examining bodies are able to demonstrate that the

evaluated answer-books fall under any of the categories of exempted

‘information’ enumerated in clauses (a) to (j) of sub-section (1) section 8,

they will be bound to provide access to the information and any applicant

can either inspect the document/record, take notes, extracts or obtain

certified copies thereof.

14. The examining bodies contend that the evaluated answer-books are

exempted from disclosure under section 8(1)(e) of the RTI Act, as they are

‘information’ held in its fiduciary relationship. They fairly conceded that

evaluated answer-books will not fall under any other exemptions in subsection (1) of section 8. Every examinee will have the right to access his

evaluated answer-books, by either inspecting them or take certified copies

thereof, unless the evaluated answer-books are found to be exempted under

section 8(1)(e) of the RTI Act.

Re : Question (ii)

15. In Maharashtra State Board, this Court was considering whether

denial of re-evaluation of answer-books or denial of disclosure by way of

inspection of answer books, to an examinee, under Rule 104(1) and (3) of

22the Maharashtra Secondary and Higher Secondary Board Rules, 1977 was

violative of principles of natural justice and violative of Articles 14 and 19

of the Constitution of India. Rule 104(1) provided that no re-evaluation of

the answer books shall be done and on an application of any candidate

verification will be restricted to checking whether all the answers have been

examined and that there is no mistake in the totalling of marks for each

question in that subject and transferring marks correctly on the first cover

page of the answer book. Rule 104(3) provided that no candidate shall claim

or be entitled to re-evaluation of his answer-books or inspection of answerbooks as they were treated as confidential. This Court while upholding the

validity of Rule 104(3) held as under :

“…. the “process of evaluation of answer papers or of subsequent

verification of marks” under Clause (3) of Regulation 104 does not attract

the principles of natural justice since no decision making process which

brings about adverse civil consequences to the examinees in involved. 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."

So long as the body entrusted with the task of framing the rules or

regulations acts within the scope of the authority conferred on it, in the

sense that the rules or regulations made by it have a rational nexus with

the object and purpose of the statute, the court should not concern itself

with the wisdom or efficaciousness of such rules or regulations…. The

Legislature and its delegate are the sole repositories of the power to decide

what policy should be pursued in relation to matters covered by the Act …

23and there is no scope for interference by the Court unless the particular

provision impugned before it can be said to suffer from any legal

infirmity, in the sense of its being wholly beyond the scope of the

regulation making power or its being inconsistent with any of the

provisions of the parent enactment or in violation of any of the limitations

imposed by the Constitution.

It was perfectly within the competence of the Board, rather it was its plain

duty, to apply its mind and decide as a matter of policy relating to the

conduct of the examination as to whether disclosure and inspection of the

answer books should be allowed to the candidates, whether and to what

extent verification of the result should be permitted after the results have

already been announced and whether any right to claim revaluation of the

answer books should be recognised or provided for. All these are

undoubtedly matters which have an intimate nexus with the objects and

purposes of the enactment and are, therefore, with in the ambit of the

general power to make regulations….”

This Court held that Regulation 104(3) cannot be held to be unreasonable

merely because in certain stray instances, errors or irregularities had gone

unnoticed even after verification of the concerned answer books according

to the existing procedure and it was only after further scrutiny made either

on orders of the court or in the wake of contentions raised in the petitions

filed before a court, that such errors or irregularities were ultimately

discovered. This court reiterated the view that “the test of reasonableness is

not applied in vacuum but in the context of life’s realities” and concluded

that realistically and practically, providing all the candidates inspection of

their answer books or re-evaluation of the answer books in the presence of

the candidates would not be feasible. Dealing with the contention that every

24student is entitled to fair play in examination and receive marks matching his

performance, this court held :

“What constitutes fair play depends upon the facts and circumstances

relating to each particular given situation. If it is found that every possible

precaution has been taken and all necessary safeguards provided to ensure

that the answer books inclusive of supplements are kept in safe custody so

as to eliminate the danger of their being tampered with and that the

evaluation is done by the examiners applying uniform standards with

checks and crosschecks at different stages and that measures for detection

of malpractice, etc. have also been effectively adopted, in such cases it

will not be correct on the part of the Courts to strike down, the provision

prohibiting revaluation on the ground that it violates the rules of fair play.

It appears that the procedure evolved by the Board for ensuring fairness

and accuracy in evaluation of the answer books has made the system as

fool proof as can be possible and is entirely satisfactory. The Board is a

very responsible body. The candidates have taken the examination with

full awareness of the provisions contained in the Regulations and in the

declaration made in the form of application for admission to the

examination they have solemnly stated that they fully agree to abide by the

regulations issued by the Board. In the circumstances, when we find that

all safeguards against errors and malpractices have been provided for,

there cannot be said to be any denial of fair play to the examinees by

reason of the prohibition against asking for revaluation…. “

This Court concluded that if inspection and verification in the presence of

the candidates, or revaluation, have to be allowed as of right, it may lead to

gross and indefinite uncertainty, particularly in regard to the relative ranking

etc. of the candidate, besides leading to utter confusion on account of the

enormity of the labour and time involved in the process. This court

concluded :

25“… 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. 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.”

16. The above principles laid down in Maharashtra State Board have

been followed and reiterated in several decisions of this Court, some of

which are referred to in para (6) above. But the principles laid down in

decisions such as Maharashtra State Board depend upon the provisions of

the rules and regulations of the examining body. If the rules and regulations

of the examining body provide for re-evaluation, inspection or disclosure of

the answer-books, then none of the principles in Maharashtra State Board or

other decisions following it, will apply or be relevant. There has been a

gradual change in trend with several examining bodies permitting inspection

and disclosure of the answer-books.

17. It is thus now well settled that a provision barring inspection or

disclosure of the answer-books or re-evaluation of the answer-books and

restricting the remedy of the candidates only to re-totalling is valid and

binding on the examinee. In the case of CBSE, the provisions barring re-

26evaluation and inspection contained in Bye-law No.61, are akin to Rule 104

considered in Maharashtra State Board. As a consequence if an examination

is governed only by the rules and regulations of the examining body which

bar inspection, disclosure or re-evaluation, the examinee will be entitled

only for re-totalling by checking whether all the answers have been

evaluated and further checking whether there is no mistake in totaling of

marks for each question and marks have been transferred correctly to the

title (abstract) page. The position may however be different, if there is a

superior statutory right entitling the examinee, as a citizen to seek access to

the answer books, as information.

18. In these cases, the High Court has rightly denied the prayer for reevaluation of answer-books sought by the candidates in view of the bar

contained in the rules and regulations of the examining bodies. It is also not

a relief available under the RTI Act. Therefore the question whether reevaluation should be permitted or not, does not arise for our consideration.

What arises for consideration is the question whether the examinee is

entitled to inspect his evaluated answer-books or take certified copies

thereof. This right is claimed by the students, not with reference to the rules

or bye-laws of examining bodies, but under the RTI Act which enables them

27and entitles them to have access to the answer-books as ‘information’ and

inspect them and take certified copies thereof. Section 22 of RTI Act

provides that the provisions of the said Act will have effect, notwithstanding

anything inconsistent therewith contained in any other law for the time being

in force. Therefore the provisions of the RTI Act will prevail over the

provisions of the bye-laws/rules of the examining bodies in regard to

examinations. As a result, unless the examining body is able to demonstrate

that the answer-books fall under the exempted category of information

described in clause (e) of section 8(1) of RTI Act, the examining body will

be bound to provide access to an examinee to inspect and take copies of his

evaluated answer-books, even if such inspection or taking copies is barred

under the rules/bye-laws of the examining body governing the examinations.

Therefore, the decision of this Court in Maharashtra State Board (supra)

and the subsequent decisions following the same, will not affect or interfere

with the right of the examinee seeking inspection of answer-books or taking

certified copies thereof.

Re : Question (iii)

19. Section 8(1) enumerates the categories of information which are

exempted from disclosure under the provisions of the RTI Act. The

28examining bodies rely upon clause (e) of section 8(1) which provides that

there shall be no obligation on any public authority to give any citizen,

information available to it in its fiduciary relationship. This exemption is

subject to the condition that if the competent authority (as defined in section

2(e) of RTI Act) is satisfied that the larger public interest warrants the

disclosure of such information, the information will have to be disclosed.

Therefore the question is whether the examining body holds the evaluated

answer-books in its fiduciary relationship.

20. The term ‘fiduciary’ and ‘fiduciary relationship’ refer to different

capacities and relationship, involving a common duty or obligation.

20.1) Black’s Law Dictionary (7

th

Edition, Page 640) defines ‘fiduciary

relationship’ thus:

“A relationship in which one person is under a duty to act for the benefit

of the other on matters within the scope of the relationship. Fiduciary

relationships – such as trustee-beneficiary, guardian-ward, agent-principal,

and attorney-client – require the highest duty of care. Fiduciary

relationships usually arise in one of four situations : (1) when one person

places trust in the faithful integrity of another, who as a result gains

superiority or influence over the first, (2) when one person assumes

control and responsibility over another, (3) when one person has a duty to

act for or give advice to another on matters falling within the scope of the

relationship, or (4) when there is a specific relationship that has

traditionally been recognized as involving fiduciary duties, as with a

lawyer and a client or a stockbroker and a customer.”

2920.2) The American Restatements (Trusts and Agency) define ‘fiduciary’ as

one whose intention is to act for the benefit of another as to matters relevant

to the relation between them. The Corpus Juris Secundum (Vol. 36A page

381) attempts to define fiduciary thus :

“A general definition of the word which is sufficiently comprehensive to

embrace all cases cannot well be given. The term is derived from the civil,

or Roman, law. It connotes the idea of trust or confidence, contemplates

good faith, rather than legal obligation, as the basis of the transaction,

refers to the integrity, the fidelity, of the party trusted, rather than his

credit or ability, and has been held to apply to all persons who occupy a

position of peculiar confidence toward others, and to include those

informal relations which exist whenever one party trusts and relies on

another, as well as technical fiduciary relations.

The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for

another, a trustee, a person holding the character of a trustee, or a

character analogous to that of a trustee, with respect to the trust and

confidence involved in it and the scrupulous good faith and candor which

it requires; a person having the duty, created by his undertaking, to act

primarily for another’s benefit in matters connected with such

undertaking. Also more specifically, in a statute, a guardian, trustee,

executor, administrator, receiver, conservator, or any person acting in any

fiduciary capacity for any person, trust, or estate. Some examples of what,

in particular connections, the term has been held to include and not to

include are set out in the note.”

20.3) Words and Phrases, Permanent Edition (Vol. 16A, Page 41) defines

‘fiducial relation’ thus :

“There is a technical distinction between a ‘fiducial relation’ which is

more correctly applicable to legal relationships between parties, such as

guardian and ward, administrator and heirs, and other similar

relationships, and ‘confidential relation’ which includes the legal

relationships, and also every other relationship wherein confidence is

rightly reposed and is exercised.

Generally, the term ‘fiduciary’ applies to any person who occupies a

position of peculiar confidence towards another. It refers to integrity and

30fidelity. It contemplates fair dealing and good faith, rather than legal

obligation, as the basis of the transaction. The term includes those

informal relations which exist whenever one party trusts and relies upon

another, as well as technical fiduciary relations.”

20.4) In Bristol and West Building Society vs. Mothew [1998 Ch. 1] the term

fiduciary was defined thus :

“A fiduciary is someone who has undertaken to act for and on behalf of

another in a particular matter in circumstances which give rise to a

relationship of trust and confidence. The distinguishing obligation of a

fiduciary is the obligation of loyalty….. A fiduciary must act in good faith;

he must not make a profit out of his trust; he must not place himself in a

position where his duty and his interest may conflict; he may not act for

his own benefit or the benefit of a third person without the informed

consent of his principal.” 

20.5) In Wolf vs. Superior Court [2003 (107) California Appeals, 4

th

25] the

California Court of Appeals defined fiduciary relationship as under :

“any relationship existing between the parties to the transaction where one

of the parties is duty bound to act with utmost good faith for the benefit of

the other party. Such a relationship ordinarily arises where confidence is

reposed by one person in the integrity of another, and in such a relation the

party in whom the confidence is reposed, if he voluntarily accepts or

assumes to accept the confidence, can take no advantage from his acts

relating to the interests of the other party without the latter’s knowledge

and consent.” 

21. The term ‘fiduciary’ refers to a person having a duty to act for the

benefit of another, showing good faith and condour, where such other person

reposes trust and special confidence in the person owing or discharging the

duty. The term ‘fiduciary relationship’ is used to describe a situation or

31transaction where one person (beneficiary) places complete confidence in

another person (fiduciary) in regard to his affairs, business or transaction/s.

The term also refers to a person who holds a thing in trust for another

(beneficiary). The fiduciary is expected to act in confidence and for the

benefit and advantage of the beneficiary, and use good faith and fairness in

dealing with the beneficiary or the things belonging to the beneficiary. If the

beneficiary has entrusted anything to the fiduciary, to hold the thing in trust

or to execute certain acts in regard to or with reference to the entrusted thing,

the fiduciary has to act in confidence and expected not to disclose the thing

or information to any third party. There are also certain relationships where

both the parties have to act in a fiduciary capacity treating the other as the

beneficiary. Examples of these are : a partner vis-à-vis another partner and

an employer vis-à-vis employee. An employee who comes into possession

of business or trade secrets or confidential information relating to the

employer in the course of his employment, is expected to act as a fiduciary

and cannot disclose it to others. Similarly, if on the request of the employer

or official superior or the head of a department, an employee furnishes his

personal details and information, to be retained in confidence, the employer,

the official superior or departmental head is expected to hold such personal

information in confidence as a fiduciary, to be made use of or disclosed only

32if the employee’s conduct or acts are found to be prejudicial to the employer.

22. In a philosophical and very wide sense, examining bodies can be said

to act in a fiduciary capacity, with reference to students who participate in an

examination, as a government does while governing its citizens or as the

present generation does with reference to the future generation while

preserving the environment. But the words ‘information available to a

person in his fiduciary relationship’ are used in section 8(1)(e) of RTI Act in

its normal and well recognized sense, that is to refer to persons who act in a

fiduciary capacity, with reference to a specific beneficiary or beneficiaries

who are to be expected to be protected or benefited by the actions of the

fiduciary – a trustee with reference to the beneficiary of the trust, a guardian

with reference to a minor/physically/infirm/mentally challenged, a parent

with reference to a child, a lawyer or a chartered accountant with reference

to a client, a doctor or nurse with reference to a patient, an agent with

reference to a principal, a partner with reference to another partner, a

director of a company with reference to a share-holder, an executor with

reference to a legatee, a receiver with reference to the parties to a lis, an

employer with reference to the confidential information relating to the

employee, and an employee with reference to business dealings/transaction

of the employer. We do not find that kind of fiduciary relationship between

33the examining body and the examinee, with reference to the evaluated

answer-books, that come into the custody of the examining body.

23. 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 candidates 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. This Court has explained the role of an examining body in regard to

the process of holding examination in the context of examining whether it

amounts to ‘service’ to a consumer, in Bihar School Examination Board vs.

Suresh Prasad Sinha – (2009) 8 SCC 483, in the following manner:

“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

34student who participates in the examination conducted by the Board, hires

or avails 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-avis 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 secondary education 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-books

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.

24. We may next consider whether an examining body would be entitled

to claim exemption under section 8(1)(e) of the RTI Act, even assuming that

it is in a fiduciary relationship with the examinee. That section provides that

notwithstanding anything contained in the Act, there shall 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

35held in fiduciary relationship, to third parties. There is no question of the

fiduciary withholding information relating to the beneficiary, from the

beneficiary himself. One of the duties of the fiduciary is to make thorough

disclosure of all relevant facts of all transactions between them to the

beneficiary, in a fiduciary relationship. By that logic, the examining body, if

it is in a fiduciary relationship with an examinee, will be liable to make a full

disclosure of the evaluated answer-books to the examinee and at the same

time, owe a duty to the examinee not to disclose the answer-books to anyone

else. If A entrusts a document or an article to B to be processed, on

completion of processing, B is not expected to give the document or article

to anyone else but is bound to give the same to A who entrusted the

document or article to B for processing. Therefore, if a relationship of

fiduciary and beneficiary is assumed between the examining body and the

examinee with reference to the answer-book, section 8(1)(e) would operate

as an exemption to prevent access to any third party and will not operate as a

bar for the very person who wrote the answer-book, seeking inspection or

disclosure of it.

25. An evaluated answer book of an examinee is a combination of two

different ‘informations’. The first is the answers written by the examinee and

36second is the marks/assessment by the examiner. When an examinee seeks

inspection of his evaluated answer-books or seeks a certified copy of the

evaluated answer-book, the information sought by him is not really the

answers he has written in the answer-books (which he already knows), nor

the total marks assigned for the answers (which has been declared). What he

really seeks is the information relating to the break-up of marks, that is, the

specific marks assigned to each of his answers. When an examinee seeks

‘information’ by inspection/certified copies of his answer-books, he knows

the contents thereof being the author thereof. When an examinee is

permitted to examine an answer-book or obtain a certified copy, the

examining body is not really giving him some information which is held by

it in trust or confidence, but is only giving him an opportunity to read what

he had written at the time of examination or to have a copy of his answers.

Therefore, in furnishing the copy of an answer-book, there is no question of

breach of confidentiality, privacy, secrecy or trust. The real issue therefore is

not in regard to the answer-book but in regard to the marks awarded on

evaluation of the answer-book. Even here the total marks given to the

examinee in regard to his answer-book are already declared and known to

the examinee. What the examinee actually wants to know is the break-up of

marks given to him, that is how many marks were given by the examiner to

37each of his answers so that he can assess how is performance has been

evaluated and whether the evaluation is proper as per his hopes and

expectations. Therefore, the test for finding out whether the information is

exempted or not, is not in regard to the answer book but in regard to the

evaluation by the examiner.

26. This takes us to the crucial issue of evaluation by the examiner. The

examining body engages or employs hundreds of examiners to do the

evaluation of thousands of answer books. The question is whether the

information relating to the ‘evaluation’ (that is assigning of marks) is held

by the examining body in a fiduciary relationship. The examining bodies

contend that even if fiduciary relationship does not exist with reference to

the examinee, it exists with reference to the examiner who evaluates the

answer-books. On a careful examination we find that this contention has no

merit. 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

38remuneration. In other words the examining body is the ‘principal’ and the

examiner is the agent entrusted with the work, that is, evaluation of answerbooks. Therefore, the examining body is not in the position of a fiduciary

with reference to the examiner. On the other hand, when an answer-book is

entrusted to the examiner for the purpose of evaluation, for the period the

answer-book is in his custody and to the extent of the discharge of his

functions relating to evaluation, the examiner is in the position of a fiduciary

with reference to the examining body and he is barred from disclosing the

contents of the answer-book or the result of evaluation of the answer-book to

anyone other than the examining body. Once the examiner has evaluated the

answer books, he ceases to have any interest in the evaluation done by him.

He does not have any copy-right or proprietary right, or confidentiality right

in regard to the evaluation. Therefore it cannot be said that the examining

body holds the evaluated answer books in a fiduciary relationship, qua the

examiner.

27. We, therefore, hold that an examining body does not hold the

evaluated answer-books in a fiduciary relationship. Not being information

available to an examining body in its fiduciary relationship, the exemption

under section 8(1)(e) is not available to the examining bodies with reference

to evaluated answer-books. As no other exemption under section 8 is

39available in respect of evaluated answer books, the examining bodies will

have to permit inspection sought by the examinees.

Re : Question (iv)

28. 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

scrutiniser, 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/coordinator/head examiner. The information as to the names or particulars of

the examiners/co-ordinators/scrutinisers/head examiners are therefore

40exempted from disclosure under section 8(1)(g) of RTI 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 answerbooks 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/coordinators/scrutinisers/head examiners, exempted from disclosure under

section 8(1)(g) of RTI Act. Those portions of the answer-books which

contain information regarding the examiners/co-ordinators/scrutinisers/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 section 10 of RTI Act.

29. The right to access information does not extend beyond the period

during which the examining body is expected to retain the answer-books. In

the case of CBSE, the answer-books are required to be maintained for a

period of three months and thereafter they are liable to be disposed

of/destroyed. Some other examining bodies are required to keep the answerbooks for a period of six months. The fact that right to information is

available in regard to answer-books does not mean that answer-books will

have to be maintained for any longer period than required under the rules

41and regulations of the public authority. The obligation under the RTI Act is

to make available or give access to existing information or information

which is expected to be preserved or maintained. If the rules and regulations

governing the functioning of the respective public authority require

preservation of the information for only a limited period, the applicant for

information will be entitled to such information only if he seeks the

information when it is available with the public authority. For example, with

reference to answer-books, if an examinee makes an application to CBSE for

inspection or grant of certified copies beyond three months (or six months or

such other period prescribed for preservation of the records in regard to

other examining bodies) from the date of declaration of results, the

application could be rejected on the ground that such information is not

available. The power of the Information Commission under section 19(8) of

the RTI Act to require a public authority to take any such steps as may be

necessary to secure compliance with the provision of the Act, does not

include a power to direct the public authority to preserve the information, for

any period larger than what is provided under the rules and regulations of the

public authority.

30. On behalf of the respondents/examinees, it was contended that having

regard to sub-section (3) of section 8 of RTI Act, there is an implied duty on

42the part of every public authority to maintain the information for a minimum

period of twenty years and make it available whenever an application was

made in that behalf. This contention is based on a complete misreading and

misunderstanding of section 8(3). The said sub-section nowhere provides

that records or information have to be maintained for a period of twenty

years. The period for which any particular records or information has to be

maintained would depend upon the relevant statutory rule or regulation of

the public authority relating to the preservation of records. Section 8(3)

provides that information relating to any occurrence, event or matters which

has taken place and 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. This means that where any information required to be

maintained and preserved for a period beyond twenty years under the rules

of the public authority, is exempted from disclosure under any of the

provisions of section 8(1) of RTI Act, then, notwithstanding such

exemption, access to such information shall have to be provided by

disclosure thereof, after a period of twenty years except where they relate to

information falling under clauses (a), (c) and (i) of section 8(1). In other

words, section 8(3) provides that any protection against disclosure that may

be available, under clauses (b), (d) to (h) and (j) of section 8(1) will cease to

43be available after twenty years in regard to records which are required to be

preserved for more than twenty years. Where any record or information is

required to be destroyed under the rules and regulations of a public authority

prior to twenty years, section 8(3) will not prevent destruction in accordance

with the Rules. Section 8(3) of RTI Act is not therefore a provision requiring

all ‘information’ to be preserved and maintained for twenty years or more,

nor does it override any rules or regulations governing the period for which

the record, document or information is required to be preserved by any

public authority.                  

31. The effect of the provisions and scheme of the RTI Act is to divide

‘information’ into the three categories. They are :  

(i) Information which promotes transparency and accountability in

the working of every public authority, disclosure of which may

also help in containing or discouraging corruption (enumerated in

clauses (b) and (c) of section 4(1) of RTI Act).

(ii) Other information held by public authority (that is all information

other than those falling under clauses (b) and (c) of section 4(1) of

RTI Act).

(iii) Information which is not held by or under the control of any

public authority and which cannot be accessed by a public

authority under any law for the time being in force.

Information under the third category does not fall within the scope of RTI

Act. Section 3 of RTI Act gives every citizen, the right to ‘information’ held

44by or under the control of a public authority, which falls either under the first

or second category. In regard to the information falling under the first

category, there is also a special responsibility upon public authorities to suo

moto publish and disseminate such information so that they will be easily

and readily accessible to the public without any need to access them by

having recourse to section 6 of RTI Act. There is no such obligation to

publish and disseminate the other information which falls under the second

category.

32. The information falling under the first category, enumerated in

sections 4(1)(b) & (c) of RTI Act are extracted below :

“4. Obligations of public authorities.-(1) Every public authority shall--

(a)   xxxxxx

(b)  publish within one

hundred and twenty days from the enactment of this Act,--

(i) the particulars of its organisation, functions and duties;

(ii) the powers and duties of its officers and employees;

(iii) the procedure followed in the decision making

process, including channels of supervision and

accountability;

(iv) the norms set by it for the discharge of its functions;

(v) the rules, regulations, instructions, manuals and records,

held by it or under its control or used by its employees for

discharging its functions;

(vi) a statement of the categories of documents that are held

by it or under its control;

45(vii) the particulars of any arrangement that exists for

consultation with, or representation by, the members of the

public in relation to the formulation of its policy or

implementation thereof;

(viii) a statement of the boards, councils, committees and

other bodies consisting of two or more persons constituted

as its part or for the purpose of its advice, and as to whether

meetings of those boards, councils, committees and other

bodies are open to the public, or the minutes of such

meetings are accessible for public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each of its

officers and employees, including the system of

compensation as provided in its regulations;

(xi) the budget allocated to each of its agency, indicating

the particulars of all plans, proposed expenditures and

reports on disbursements made;

(xii) the manner of execution of subsidy programmes,

including the amounts allocated and the details of

beneficiaries of such programmes;

(xiii) particulars of recipients of concessions, permits or

authorisations granted by it;

(xiv) details in respect of the information, available to or

held by it, reduced in an electronic form;

(xv) the particulars of facilities available to citizens for

obtaining information, including the working hours of a

library or reading room, if maintained for public use;

(xvi) the names, designations and other particulars of the

Public Information Officers;

(xvii) such other information as may be prescribed; and

thereafter update these publications every year;

 (c) publish all relevant facts

while formulating important policies or announcing the decisions

which affect public;

(emphasis supplied)

46Sub-sections (2), (3) and (4) of section 4 relating to dissemination of

information enumerated in sections 4(1)(b) & (c) are extracted below:

“(2)  It shall be a constant endeavour of every public

authority to take steps in accordance with the requirements of clause (b) of

sub-section (1) to provide as much information suo motu to the public

at regular intervals through various means of communications,

including internet, so that the public have minimum resort to the use

of this Act to obtain information.

(3)  For the purposes of sub-section (1), every

information shall be disseminated widely and in such form and

manner which is easily accessible to the public.

(4)  All materials shall be disseminated taking into

consideration the cost effectiveness, local language and the most effective

method of communication in that local area and the information should be

easily accessible, to the extent possible in electronic format with the

Central Public Information Officer or State Public Information Officer, as

the case may be, available free or at such cost of the medium or the print

cost price as may be prescribed.

Explanation.--For the purposes of sub-sections (3) and (4), "disseminated"

means making known or communicated the information to the public

through notice boards, newspapers, public announcements, media

broadcasts, the internet or any other means, including inspection of offices

of any public authority.”

(emphasis supplied)

33. Some High Courts have held that section 8 of RTI Act is in the nature

of an exception to section 3 which empowers the citizens with the right to

information, which is a derivative from the freedom of speech; and that

therefore section 8 should be construed strictly, literally and narrowly. This

may not be the correct approach. The Act seeks to bring about a balance

between two conflicting interests, as harmony between them is essential for

preserving democracy. One is to bring about transparency and accountability

by providing access to information under the control of public authorities.

47The other is to ensure that the revelation of information, in actual practice,

does not conflict with other public interests which include efficient operation

of the governments, optimum use of limited fiscal resources and

preservation of confidentiality of sensitive information. The preamble to the

Act specifically states that the object of the Act is to harmonise these two

conflicting interests. While sections 3 and 4 seek to achieve the first

objective, sections 8, 9, 10 and 11 seek to achieve the second objective.

Therefore when section 8 exempts certain information from being disclosed,

it should not be considered to be a fetter on the right to information, but as

an equally important provision protecting other public interests essential for

the fulfilment and preservation of democratic ideals.

34. When trying to ensure that the right to information does not conflict

with several other public interests (which includes efficient operations of the

governments, preservation of confidentiality of sensitive information,

optimum use of limited fiscal resources, etc.), it is difficult to visualise and

enumerate all types of information which require to be exempted from

disclosure in public interest. The legislature has however made an attempt to

do so. The enumeration of exemptions is more exhaustive than the

enumeration of exemptions attempted in the earlier Act that is section 8 of

Freedom to Information Act, 2002. The Courts and Information

48Commissions enforcing the provisions of RTI Act have to adopt a purposive

construction, involving a reasonable and balanced approach which

harmonises the two objects of the Act, while interpreting section 8 and the

other provisions of the Act.

35. At this juncture, it is necessary to clear some misconceptions about

the RTI Act. The RTI Act provides access to all information that is

available and existing. This is clear from a combined reading of section 3

and the definitions of ‘information’ and ‘right to information’ under clauses

(f) and (j) of section 2 of the Act. If a public authority has any information in

the form of data or analysed data, or abstracts, or statistics, an applicant may

access such information, subject to the exemptions in section 8 of the Act.

But where the information sought is not a part of the record of a public

authority, and where such information is not required to be maintained under

any law or the rules or regulations of the public authority, the Act does not

cast an obligation upon the public authority, to collect or collate such nonavailable information and then furnish it to an applicant. A public authority

is also not required to furnish information which require drawing of

inferences and/or making of assumptions. It is also not required to provide

‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any

‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’

49in the definition of ‘information’ in section 2(f) of the Act, only refers to

such material available in the records of the public authority. Many public

authorities have, as a public relation exercise, provide advice, guidance and

opinion to the citizens. But that is purely voluntary and should not be

confused with any obligation under the RTI Act.

36.  Section 19(8) of RTI Act has entrusted the Central/State Information

Commissions, with the power to require any public authority to take any

such steps as may be necessary to secure the compliance with the provisions

of the Act. Apart from the generality of the said power, clause (a) of section

19(8) refers to six specific powers, to implement the provision of the Act.

Sub-clause (i) empowers a Commission to require the public authority to

provide access to information if so requested in a particular ‘form’ (that is

either as a document, micro film, compact disc, pendrive, etc.). This is to

secure compliance with section 7(9) of the Act. Sub-clause (ii) empowers a

Commission to require the public authority to appoint a Central Public

Information Officer or State Public Information Officer. This is to secure

compliance with section 5 of the Act. Sub-clause (iii) empowers the

Commission to require a public authority to publish certain information or

categories of information. This is to secure compliance with section 4(1) and

(2) of RTI Act. Sub-clause (iv) empowers a Commission to require a public

50authority to make necessary changes to its practices relating to the

maintenance, management and destruction of the records. This is to secure

compliance with clause (a) of section 4(1) of the Act. Sub-clause (v)

empowers a Commission to require the public authority to increase the

training for its officials on the right to information. This is to secure

compliance with sections 5, 6 and 7 of the Act. Sub-clause (vi) empowers a

Commission to require the public authority to provide annual reports in

regard to the compliance with clause (b) of section 4(1). This is to ensure

compliance with the provisions of clause (b) of section 4(1) of the Act. The

power under section 19(8) of the Act however does not extend to requiring a

public authority to take any steps which are not required or contemplated to

secure compliance with the provisions of the Act or to issue directions

beyond the provisions of the Act. The power under section 19(8) of the Act

is intended to be used by the Commissions to ensure compliance with the

Act, in particular ensure that every public authority maintains its records

duly catalogued and indexed in the manner and in the form which facilitates

the right to information and ensure that the records are computerized, as

required under clause (a) of section 4(1) of the Act; and to ensure that the

information enumerated in clauses (b) and (c) of sections 4(1) of the Act are

published and disseminated, and are periodically updated as provided in sub-

51sections (3) and (4) of section 4 of the Act. If the ‘information’ enumerated

in clause (b) of section 4(1) of the Act are effectively disseminated (by

publications in print and on websites and other effective means), apart from

providing transparency and accountability, citizens will be able to access

relevant information and avoid unnecessary applications for information

under the Act.

37. 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 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 section 4(1)(b) and (c) of the Act), equal importance

and emphasis are given to other public interests (like confidentiality of

sensitive information, fidelity and fiduciary relationships, efficient operation

of governments, etc.). Indiscriminate and impractical demands or directions

under RTI Act for disclosure of all and sundry information (unrelated to

transparency and accountability in the functioning of public authorities and

52eradication of corruption) would be counter-productive as it will adversely

affect the efficiency of the administration and result in the executive getting

bogged down with the non-productive work of collecting and furnishing

information. The Act should not be allowed to be misused or abused, to

become a tool to obstruct the national development and integration, or to

destroy the peace, tranquility and harmony among its citizens. Nor should it

be converted into a tool of oppression or intimidation of honest officials

striving to do their duty. The nation does not want a scenario where 75% of

the staff of public authorities spends 75% of their time in collecting and

furnishing information to applicants instead of discharging their regular

duties. The threat of penalties under the RTI Act and the pressure of the

authorities under the RTI Act should not lead to employees of a public

authorities prioritising ‘information furnishing’, at the cost of their normal

and regular duties.

Conclusion

38. In view of the foregoing, the order of the High Court directing the

examining bodies to permit examinees to have inspection of their answer

books is affirmed, subject to the clarifications regarding the scope of the RTI

53Act and the safeguards and conditions subject to which ‘information’ should

be furnished. The appeals are disposed of accordingly.

……………………….J

[R. V. Raveendran]

……………………….J

[A. K. Patnaik]

New Delhi;

August 9, 2011.

5)Central Information Commission's decision dated 23/4/2007 , which UPSC used to quote for denying xerox of answersheet under RTI act , prior Aditya Bandopadhyay judgment:-(this decision of CIC is overruled by aditya bandopadhyay judgment)

CENTRAL INFORMATION COMMISSION

Block IV, 5th Floor, Old JNU Campus

New Delhi 110067

Complaint No. CIC/WB/C2006/00223;

Appeal Nos. CIC/WB/A/2006/00469; & 00394 ;

Appeal Nos. CIC/OK/A/2006/00266/00058/00066/00315

Complainant/Appellants:

1. Shri Rakesh Kumar Singh, House No.36, Gali No.3,Shiv Mandir Gali,

Maujpur, Delhi-110053.

2. Shri Krishna Kumar Dwivedi, C/o Executive Engineer (E&M) WC-1, 12/4,

Varun Niketan, Pitampura, New Delhi—110088.

3. Shri Rakesh Kumar Gupta, 157, Cariappa Marg, Sainik Farms, New Delhi-

110062.

4. Shri Munna Lal, ELF-II, Ticket No.73039/21, Diesel Kaarkhana, North

West Railway, Ajmer (Rajasthan).

5. Shri Abdul Rafique, L-24A, Staff Line, Railway Colony, Ajmer.

6. Shri B.L. Gupta, Window No.15, Badminton Hall, DDA, Vikas Sadan, INA

Colony, New Delhi-110023.

Respondents:

1. Shri Harish Chander, Assistant Director, Lok Sabha Secretariat,

Information Cell, Parliament House Annexe, New Delhi-110001.

2. Shri S.N. Srivastava, Public Information Officer, Delhi Jal Board,

Varunalaya Complex, Phase-II, Karol Bagh, New Delhi-110005.

3. Shri Gyanendra Srivastava (Member-Admn.), Appellate Authority, Delhi

Jal Board, Varunalaya Complex, Phase-II, Karol Bagh, New Delhi-110005.

4. Shri S.M. Johry, Senior Personal Officer, Diesel Loco Workshop, North

West Railway, Ajmer (Rajasthan).

5. Smt. Rama Sharma, Public Information Officer, Central Board of

Secondary Education, Shiksha Kendra-2, Community Centre, Preet Vihar,

Delhi-110092..

2

6. Shri R.K. Sharma & Shri Sunil Sharma, Director & Commissioner

respectively, DDA, Vikas Sadan, New Delhi

Date of Hearing: 06.02.2007

Date of Decision: 23.04.2007

FACTS:

By an application of 30.6.2006, Shri Rakesh Kumar Singh of Shiv Mandir

Gali, Maujpur, Delhi, applied to Assistant Director, Lok Sabha Secretariat, Shri

Harish Chandra for information regarding marks secured by him in the

examination of (a) Junior Clerk (b) Personal Assistant and (c) Executive

Assistant together with related questions. He received a response on 25.7.2006

to all questions raised except one in which he has asked for the true copy of his

answer sheets. To this, he received the response that “this cannot be given as no

public interest would be served by giving the same”. Holding that there is no

exemption clause in section 8(1) which supports the above argument and

arguing that there would be no fiduciary relationship involved in disclosing this

information, as has been held by this Commission in earlier cases, as in this

matter answer sheets are evaluated only by computers, Shri Rakesh Kumar

Singh vide his complaint of 29.8.06 has pleaded that this information be provided

to him. The matter was heard on 27.11.2006. Appellant has cited decisions of

other State Government Commissions in this regard. Since the issue raised

impinged on a number of decisions announced by this Commission in several

cases and similar cases before State Information Commissions, the matter was

referred to the full bench of the Commission for a final decision on the complaint

3

of Shri Rakesh Kumar Singh vide Decision notice Dated 13.12.2006 in

Complaint Case No.CIC/WB/C2006/00223.

2. In Appeal No.CIC/WB/A/2006/00469 (Shri Krishna Kumar Dwivedi

vs. Delhi Jal Board), the issue concerning disclosure of answer sheets came up

at the time of hearing. In this case, the applicant wanted to see the answer sheet

and accordingly moved an application under the Right to Information Act (RTI),

2005. In this case, the 1st appellate authority held that the request by the

appellant, Shri Dwivedi to see the answer sheet is administratively inappropriate.

Since the issue raised was identical with the case mentioned in the preceding

paragraph which was already listed to be heard by a Full Bench of the

Commission, this case was also clubbed for hearing by the Full Bench.

3. It further came to the notice of the Commission that the issue concerning

disclosure of evaluated answer sheet is also a subject matter of some other

appeals pending before this Commission for decision. It was decided that the

following cases be heard together and accordingly all these cases were listed for

hearing on 6.2.2007 by the Full Bench. A brief description of these cases is given

below.

4. In Rakesh Kumar Gupta Vs. CBSE (CIC/OK/A/2006/00266), the PIO

informed the appellant that there was no provision in the examination Bye-Laws

of the CBSE to show the answer sheet either to the candidate or to her

representative. The First Appellate Authority upheld the decision of the PIO. On

behalf of the public authority, it was submitted before the Commission that on

4

verification of the marks obtained by the candidate, it was observed that there

was no mistake in the marks awarded. However, the disclosure of information

was claimed to be exempted under Section 8(1)(e) of the Right to Information

Act.

5. Appeal Nos. CIC/OK/A/2006/00058 & 00066 were filed against Diesel

Loco Workshop of the North West Railways where the two appellants wanted to

have photo copies of their answer sheets as well as answer sheets of two of their

colleagues who had appeared in the written/selection test for the post of Junior

Engineer-II. In this case, the respondents have pleaded that the disclosure of

the evaluated answer sheet would amount to violation of a fiduciary relationship

because the examiners had an explicit understanding with the department that

the results of the answer sheets, which they had evaluated would not be

disclosed as also their identity. The respondents also pleaded that if the identity

of the examiners is disclosed, then all such examiners would hesitate to take up

an assignment of this kind.

6. In the above case, one of the applicants, Shri Munna Lal also wanted to

see the records pertaining to the selection for the post of Junior Engineer-II. The

respondents in this case stated that service records of only those qualified in the

written examination were examined and marks were awarded on the basis of

their performance and experience and since the applicant did not qualify in the

written examination, there was, therefore, no question of disclosure of marks

5

awarded to him on the basis of service records. This issue was also referred to

the Full Bench by the Information Commissioner, Dr. O.P. Kejariwal.

7. In Anurag Tomar Vs. CBSE, (CIC/OK/A/2006/00315), the appellant

sought certified photo copies of his answer sheets of the CBSE examination and

he was informed that as per the Examination Bye-Laws of the Board, photo

copies of the answer sheet of the candidates could not be supplied. The

respondents also pleaded in this case that the authority conducting the

examination and the examiner evaluating the answer sheets, stand in fiduciary

relationship with each other and as such, the disclosure of the information is

exempted under Section 8(1)(e) of the RTI Act.

8. Similarly, the applicant, Shri B.L. Gupta was denied the photo copies of

the papers and inspection of the answer sheet in a departmental examination

held by the Delhi Development Authority (CIC/WB/A/2006/00394) In this case

also, the respondents have argued that there exists a fiduciary relationship

between the DDA and the examiner in respect of the answer sheet evaluated by

them and as such, disclosure of the information is exempted under Section

8(1)(e) of the RTI Act.

9. As notified all the above cases were heard on 6.2.2007. The following

attended:

Complainant/ Appellants -

(1) Shri Abdul Rafique

6

(2) Shri Munna Lal

(3) Shri B.L. Gupta

(4) Shri Rakesh Kumar Gupta

(5) Shri K.K. Dwivedi

(6) Shri Rakesh Kumar Singh

Respondents –

(1) Shri Kamal Kumar Jain, Chief Office Supdt., DSL Loco Workshop,

N.W. Rly, Ajmer.

(2) Shri Harish Chander, Asst. Director, Lok Sabha Secretariat.

(3) Shri S.C. Kaliraman, Under Secretary, Lok Sabha Sectt.

(4) Shri M.C. Singal, Director (Pers.) II, D.D.A.

(5) Shri G.C. Sharma, Asstt. Director (P) III, D.D.A.

(6) Shri G. Srivastava, Member (AD), Delhi Jal Board.

(7) Shri S.N. Srivastava, Secretary, Delhi Jal Board.

(8) Shri V.S. Rawat, Director (A&P), Delhi Jal Board.

(9) Shri Mohan Piwani, A.O., Delhi Jal board.

(10) Shri Vineet Joshi, Secretary & Appellate Authority RTI, CBSE

(11) Shri M.C. Sharma, Controller with Exam., CSBE

(12) Mrs. Rama Sharma, PRO (PIO), CBSE.

10. Opening the arguments, Mr. R.K. Singh submitted that the objective of the

RTI Act is to bring in transparency in the working of every public authority and it

is in public interest that all relevant information must be made available to a

7

citizen seeking information under the RTI Act. He submitted that once the

process of examination is over, every thing concerning the examination must

come in public domain. Citing the decision of the Hon’ble Apex Court in The

President, Board of Secondary Education, Orissa & another vs. D. Suvankar &

another, he submitted that the award of the marks by an examiner has to be fair,

and no element of chance or luck should be introduced. An examination is a

stepping-stone in career advancement of a student. Absence of a provision for

revaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer

script.

11. He also submitted that there can be no relationship between an owner and

beneficiary and since the examiner is not a beneficiary, there can be no fiduciary

relationship between the examiner and the University or the Board. In this

context, he cited the decision of the Karnataka Information Commission in

KIC/196/APPL/2586 wherein the Karnataka Information Commission (KIC) has

observed as follows:-

“As may be seen, section 8(1)(e) exempts disclosure of information

available to a person in his fiduciary relationship. According to

Oxford dictionary, the word “fiduciary” means “involving trust,

especially with regard to relationship between a trustee and a

beneficiary”. The fiduciary relationship for the purposes of this

section would imply that the person holding the information is not

the owner of the information but holds it in trust for someone else

who is the owner and the beneficiary. In this case, it therefore

needs to be examined whether this type of relationship exists

between the authority conducting the examination and the

examiners as recognized by CIC and pleaded by the Respondent.

The relationship between the authority conducting the examination

and the examiners is governed by the terms and conditions of

appointment of the examiners. It is wrong to say that confidentiality

should be maintained by both, of the manner and method of

evaluation. Firstly, this Commission finds it difficult to endorse the

8

general statement that the manner and method of evaluation

should be kept confidential. In this Commission’s view, general

instructions regarding the manner and method of evaluation must

be consistent and should be made know in advance to the

candidates, so that they are aware as to how their answers would

be evaluated. As regards “key” or “model” answers, these should

also be made public after the entire process of selection is over.

Secondly, while examiners are bound by the secrecy clause in their

order of appointment, there can be no such obligation on the part of

the authority conducting the examination. There is no agreement

between the examiners and the authority conducting the

examination that the information regarding evaluation and award of

marks is being held by the authority conducting the examination in

trust and on behalf of the examiners. In fact, the examiner has been

assigned a task and thereafter his responsibility censes. He has no

authority thereafter to claim that the answer books evaluated by

him and marks awarded by him should be treated as confidential

and that copies of the same should not be made available. In fact

such a provision, if it was made, would be a complete antithesis of

the fairness in evaluation system. This Commissioner therefore is

of the view that in the fiduciary relationship between the Authority

conducting the examination and the examiners, while the Authority

is the owner/beneficiary of the information, the examiner is the

trustee and not the other way round. The examiners have to hold

the answer-scripts and the marks awarded by them as confidential,

in trust for the authority conducting the examination, since they are

not the owners of the information. But there is no such obligation on

the authority, which in this case owns the information.”

12. The complainant Shri RK Singh accordingly submitted that fiduciary

relationship could be there only between an owner and a beneficiary and that

since the examiner is not a beneficiary there can be no such fiduciary

relationship.

13. Taking the arguments further, complainant Shri Singh submitted that the

disclosure of answer sheets is not protected under Section 8(1)(j). Citing again

the aforesaid decision of the KIC, the appellant submitted that opening up of the

9

evaluation process including making evaluated answer sheets available to any

one who wishes to see them is necessary as a confidence building measure and

reviving the faith of citizens in these august institutions. Once the evaluated

answer sheets are made freely available, examiners who are entrusted with the

task of evaluation will be more careful and objective in their assessment.

14. In this connection, the appellant also cited the decision of the SIC Punjab

in CC No.60/06 and he highlighted the following observations of the Punjab SIC:

“Fiduciary relationship is a relationship of the nature of a trust and

is based on confidence reposed by or on behalf of the beneficiary in

the person holding a dominant position qua the beneficiary. It is

often said that the term `fiduciary relationship’ is easier to illustrate

than to define with precision. Some of the well known examples of

a fiduciary relationship are the relationship between a lawyer and a

client, medical practitioner and patient, guardian and ward, teacher

and student, banker and customer, husband and wife. Like a

trustee, a person having information in a fiduciary capacity holds it

for the benefit of the cestui que trust. The holder of information,

therefore, is required to treat it as confidential so as to protect the

interest of the beneficiary. It is in this context that the exemption

incorporated in clause (e) of Section 8(1) RTI Act is to be

understood. Clause (e) has been enacted with a view to protect the

interests of the beneficiary by statutorily exempting from disclosure

the information relating to them in the hands of persons standing in

a fiduciary relationship. Clause (e) does not debar the beneficiary

of the trust from seeking information from the trustees that is the

persons holding the information in fiduciary capacity. The plea of

the respondent based on Clause (e) of Section 8(1) of RTI Act,

2005 is thus rejected.”

15. The appellant also cited the decision of the Hon’ble Apex Court dated

30.6.2006 passed in `President, Board of Secondary Education, Orissa & anr.

Vs. D. Suvankar & anr.’ wherein the Hon’ble Apex Court had directed CBSE to

provide answer sheet and has ordered production of answer sheet for showing it

10

to the concerned candidate. Replying the arguments submitted by Mr. Singh,

representatives from the Lok Sabha Secretariat submitted that the points raised

by the appellant do not tally with the facts of the case as in the instant case the

candidate has appeared for 3 examinations out of which only one has OMR

sheets. He further submitted that the examiner who sets the OMR question

papers also gives the answer sheet and as such he has his copyright thereon. It

was also submitted that there is no public interest involved in disclosure of either

the OMR questions papers or the evaluated answer sheet. The department also

cited two decisions of the Delhi High Court, one in the Writ Petition (C) No.5586

decided on 22.5.2006 (Amit Vs. UPSC) and the other in Writ Petition 17835 of

2005 (Dr. Ram Kumar Goyal vs. U.P.S.C) where no disclosure was allowed.

Similarly, Allahabad Bench of the Central Administrative Tribunal dismissed the

OA filed by one Ram Kirpal Singh on the ground that the information asked for

was merely personal. However, Mr. Tiwari appearing on behalf of the Lok Sabha

Secretariat did not give any specific answer as to how disclosure of the evaluated

answer sheet is going to be detrimental either to the system or to the public

interest. In fact, when Information Commissioner Shri A.N. Tiwari asked as to

whether such a disclosure would result in collapsing of the system, Mr. Tiwari

assertively replied in the negative. Dr. O.P. Kejariwal expressed his

apprehension that the disclosure of the evaluated answer sheet and disclosure of

the identity of the examiners might pose a danger to the life and safety of the

examiner and in such a situation no one would like to be an examiner in case he

is apprehensive of the disclosure of his identity. Shri RK Gupta at this stage

11

submitted that they did not want to know the identity of the examiner. In fact,

they can disclose the evaluated answer sheet by withholding the name of the

examiner. In this connection, he cited the example of a news item that reported

an instance of children examining answer sheets. Disclosure, in his view, will

prevent an abuse of this sort. The respondent representing the CBSE stated that

the disclosure of the identity of the examiner will lead to increase in both fear and

favor. He submitted that under CBSE, there are about 9000 schools and about

12 lakh examinees appearing each year in 5 subjects and as such, there are

about 60 lakh answer sheets. With limited manpower at its command, it will be

almost impossible to do this exercise of disclosure of evaluated answer sheet.

CBSE also submitted that under the Rules, they have a system of re-evaluation

and re-verification and as such, chances of any discrepancy are quite remote.

The system, in fact, secures fair play. The CBSE while evaluating answer sheets

also applies the moderation techniques which further ensures an evenly

balanced evaluation and fairness.

17. Applicant Shri Munna Lal, presenting his case submitted that he wanted to

see the report of the Selection Board regarding allocation of bonus marks to

some of the candidates. It was submitted on behalf of the Railways that there is a

system of selection both for the initial selection and for the promotion. They also

submitted that the proceedings of the Departmental Promotion Committee, a

copy of which was requested by the applicant herein, cannot be given as there

exists a fiduciary relationship between the Board and the public authority and as

such any proceedings that have been submitted by the Board to the public

authority in confidence is exempt from disclosure under Section 8(1)(e). It was

further submitted that now the Railways only conduct a written examination and

12

the system of holding a viva has been abolished. Since the applicant did not

qualify in the written examination, his case was not placed before the Selection

Board.

18. Shri Rafique also submitted that there was no fiduciary relationship

between the Selection Board and the public authority and as such all such

proceedings and the answer sheets of any written examination have to be

disclosed under the Right to Information Act,2005.

19. Shri B.L. Gupta presenting his case submitted that after the answer sheets

have been evaluated and marks have been awarded, the process is over and as

such an examinee is entitled to see and check as to whether the answer sheets

have been evaluated or not and if evaluated whether they have been rightly

evaluated. Unless the marks are made available, it is impossible to ascertain the

same.

20. The D.D.A., on the other hand, submitted that the examination process

can never satisfy everyone. If there is no confidentiality attached to the system,

then there will be no end to the process. At this stage, the Chief Information

Commissioner asked whether once the examination was completed, can answer

sheets be not returned or given back to the examinees? The DDA submitted that

this will result in disclosure of the identity of the examiner and will expose them to

an unavoidable threat. The CIC suggested that probably the department can

devise a system whereby the detachable sheets containing confidential

particulars concerning the identity of the examiner can be kept and this

detachable sheet can be retained and cannot be given to the examinees.

21. Shri K.K. Diwedi emphasized that the Right to Information Act, 2005 has

been enacted with a view to bringing in transparency and after this enactment

every student has a right to see the answer sheets after evaluation. There is no

legal bar if an examinee is allowed to see his own answer scripts. He also

13

submitted that there is no question of applying either Section 8(1)(e) or 8(1)(j) of

the Right to Information Act.

22. Delhi Jal Board, who are the respondents in this case, submitted that

there has to be some confidentiality in the whole process. While there is nothing

wrong in having a system of re-valuation or re-checking, but in the name of

transparency one cannot allow a system to collapse. The system of examination

as adopted is a time tested one and it is working quite well. If the answer sheets

are disclosed and if the identity of the examiners become known, serious

consequences will follow. In this connection, he cited some cases where

examiners were threatened.

23. ISSUES:

(i) Whether the disclosure of the evaluated answer sheets is

exempted under Section 8(1)(e)?

(ii) Whether the disclosure of the evaluated answer sheets is

exempted under Section 8(1)(g)?

(iii) What relief, if any, can be granted to the appellants in these

cases?

DECISION NOTICE

24. The Right to Information Act was enacted with a view to conferring a right

to access information under the control 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.

14

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 selfgovernment

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.

15

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 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. Shahbudeen 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,

16

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 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 a

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,

17

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 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

18

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 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

19

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:

“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 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

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.

23

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 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

24

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 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.

42. However, insofar as the departmental examinees are concerned or the

proceedings of Departmental Promotion Committees are concerned, the

Commission tends to take a different view. In such cases, the numbers of

examinees are limited and it is necessary that neutrality and fairness are

maintained to the best possible extent. Disclosure of proceedings or disclosure of

the answer sheets not only of the examinees but also of the other candidates

25

may bring in fairness and neutrality and will make the system more transparent

and accountable. The Commission, moreover finds that the proceedings of the

Departmental Promotion Committees or its Minutes are not covered by any of the

exemptions provided for under Section 8(1) and, therefore, such proceedings

and minutes are to be disclosed. If a written examination is held for the purpose

of selection or promotion, the concerned candidate may ask for a copy of the

evaluated answer sheet from the authority conducting such test/examination.

The right to get an evaluated answer sheet does not, however, extend to

claiming inspection of or getting a copy of the evaluated answer sheets

concerning other persons in which case, if the concerned CPIO decides to

disclose the information, he will have to follow the procedure laid down under

Section 11 of the Right to Information Act.

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. 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.

44. All the appeals are disposed of in the above terms.

Copies of the decision be sent to all concerned free of cost.

Announced this the 23rd day of April, 2007

(Wajahat Habibullah) (Padma Balasubramaniam)

26

Chief Information Commissioner Information Commissioner

(M.M. Ansari) (O.K. Kejariwal)

Information Commissioner Information Commissioner

(Sri A. N Tiwari)

Information Commissioner

6) WP (C) 218/2011 of High Court of Delhi:- in point 7 says that "This Court finds that with the law having been settled by this Court, as

  affirmed by the Supreme Court, there is no need to relegate the Petitioners to
  the process under the RTI Act. Such a course will needlessly delay matters."

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  43
  W.P. (C) 218/2011


  ANGESH KUMAR AND ORS .....
  Petitioners
  Through Mr. Yakesh Anand with
  Mr. Murari Kumar, Advocate


versus


  UNION PUBLIC SERVICE COMMISSION
  AND ANR .....
  Respondents
  Through Mr. Naresh Kaushik with
  Ms. Aditi Gupta, Advocate for R-1/UPSC.
  Mr. B.V. Niren, Advocate for UOI.


  CORAM: JUSTICE S. MURALIDHAR

   O R D E R
   13.01.2011

  CM APPL No. 394/2011

  Exemption allowed subject to all just exceptions.

  The application is disposed of.


  WP (Civil) No. 218/2011

  1. This writ petition has been filed by twelve Petitioners who were unsuccessful
  in the Civil Services (Preliminary) Examination, 2010 (?Prelims 2010?) seeking a
  direction to Respondent No. 1, Union Public Service Commission (?UPSC?), to
  disclose the details of marks (raw and scaled) obtained by them and the
  successful candidates in the said examination.

  2. Earlier, the UPSC had filed Special Leave Petition (Civil) No. 23250 of 2008
  challenging the decision dated 17th April 2007 of the learned Single Judge of
  this Court in Writ Petition (Civil) No. 17583 of 2006 (UPSC v. Central
  Information Commission) and the judgment dated 3rd September 2008 passed by the
  Division Bench in LPA No. 313 of 2007 (UPSC v. Shiv Shambu) which upheld the
  decision of the Central Information Commission (?CIC?) in which the following
  directions were issued in relation to the candidates who sat for the Prelims
  2006 examination:


  ?(i) The UPSC shall, within two weeks from the date of this order,
  disclose the marks assigned to each of the Applicants for the Civil Services
  Preliminary Examination 2006 in General Studies and in Option Papers; and

  (ii) The UPSC, within two weeks from the date of this order, shall also
  disclose the cut-off marks fixed in respect of the General Studies paper and in
  respect of each of the Option Papers and if no such cut-off marks are there, it
  shall disclose the subject-wise marks assigned to short-listed candidates; and

  (iii) The UPSC shall examine and consider under Section 8 (1) (d) of the
  RTI Act the disclosure of the scaling system as it involves larger public
  interest in providing a level playing field for all aspirants and shall place
  the matter before the Competent Authority within one month from the date of this
  order. This will also cover the issue of disclosure of model answers, which we
  recommend should in any case be made public from time to time. In doing so, it
  shall duty take into account the provisions of Section 9 of the RTI Act.?

  3. The above SLP has since been dismissed by the Supreme Court on 18th November
  2010 in view of the statement by the UPSC before that Court that the UPSC had
  decided to adopt a changed format for the Civil Services Examination to be held
  in 2011.

  4. Meanwhile, the Petitioners herein filed Writ Petition (Civil) No. 6939 of
  2010 in this Court seeking directions to the UPSC to disclose, inter alia, the
  details of marks (raw and scaled) awarded to them in the Prelims 2010. In view
  of the stay granted by the Supreme Court in SLP (Civil) No. 23250 of 2008, the
  said writ petition was dismissed by this Court on 8th October 2010. Thereafter,
  the Petitioners challenged the said order dated 8th October 2010 before the
  Supreme Court in SLP (C) No. 32443 of 2010, which was disposed of on 3rd
  December 2010 by the following order:
  ?The issue raised in this SLP was earlier decided by the Delhi High Court
  against the Respondent, the Union Public Service Commission (vide judgment and
  order dated 17th April 2007 passed by a single Judge of the Delhi High Court in
  Writ Petition (Civil) No. 17583 of 2006 and affirmed by the Division Bench of
  the High Court by judgment and order dated 3rd September 2008 in LPA No. 313 of
  2007).

  In the case of the Petitioners the Delhi High Court refrained from passing any
  order observing that the Union Public Service Commission had filed SLP (C) No.
  23250 of 2008 against its order dated 3rd September 2008 in LPA No. 313 of 2007
  and in that SLP this Court had granted stay against the operation of its
  judgment.

  During the pendency of the earlier case [SLP (C) No. 23250 of 2008) the UPSC
  changed the format of its examination for the Central Services. Hence, when the
  earlier SLP came for hearing this Court dismissed it observing that there was no
  need for any adjudication by this Court in the matter since the UPSC had changed
  the pattern of its examination.

  That being the position the order passed by the Delhi High Court in the earlier
  case holds the field and the case of the present Petitioner will also be
  governed by that order.

  This SLP is disposed of with the aforesaid observations and directions.?

  5. Consequent to the above order, the present writ petition has been filed for a
  direction to the UPSC to disclose to the Petitioners the following information


  sought by them in a letter dated 21st December 2010 addressed to the Chairman,
  UPSC:
  ?(1) Copy of the cut-off marks list for optional subjects and General studies.
  (2) Separate cut-off marks for every subject and for General study by different
  categories such as General, OBC, SC and ST including copies of relevant
  documents.
  (3) Details of the marks (raw and scaled) awarded to the following candidates in
  the Civil Services (Prelims) Examination 2010.
  (4) The model answers solution for each series of every subject and General
  Studies.
  (5) Sealing methodology applied to scale the raw marks of every subject.
  (6) The complete result of all qualified candidates of Civil Services (Prelims)
  Examination 2010 with their roll number, raw and scales marks.?

  6. Appearing on advance notice for the UPSC, Mr. Naresh Kaushik, learned counsel
  first submitted that the said letter dated 21st December 2010 has been addressed
  to the Chairman, UPSC and not to its Central Public Information Officer
  (?CPIO?). This Court rejects the said objection as being highly technical. The
  said letter addressed by the Petitioners to the Chairman, UPSC shall be treated
  by the UPSC as an application under the Right to Information Act, 2005 (?RTI
  Act?).


  7. Mr. Kaushik then submitted that the Petitioners ought to first approach the
  CPIO who would then proceed to deal with it in light of the judgments of this
  Court. This Court finds that with the law having been settled by this Court, as
  affirmed by the Supreme Court, there is no need to relegate the Petitioners to
  the process under the RTI Act. Such a course will needlessly delay matters.

  8. Mr. Kaushik stated that with reference to the information at Serial No. 3,
  while the scaled marks awarded to the Petitioners in the Prelims 2010 would be
  disclosed, the raw marks were not available and therefore, could not be
  disclosed. As regards the information at Serial No. 4, he submitted that model
  answers were available only for some of the questions. As regards, the
  information sought at Serial No. 6, i.e., the complete result of all the
  qualified candidates, he submitted that this did not form part of the queries
  raised earlier for the Prelims 2006.

  9. The above submissions have been considered. This Court is of the view that if
  the raw marks are not available with the UPSC, they need not be disclosed to the
  Petitioners. As regards the results of the qualified candidates, no prejudice
  whatsoever would be caused to any of those qualified candidates or to the UPSC
  if the complete results of the qualified candidates with their roll numbers are
  disclosed. Further, it would be in public interest to do so. Consequently, there
  is no merit in the objection raised by learned counsel for the UPSC in this
  regard. As regards the information sought at Serial No. 4 (regarding model
  answers), this aspect already stands covered by the earlier judgments of this
  Court. Obviously, only those model answers as are available with the UPSC need
  be disclosed to the Petitioners.

  10. Consequently, the said letter dated 21st December, 2010 of the Petitioners
  will now be processed by the UPSC in light of the judgments of this Court, and
  the information sought will be provided to the Petitioners within fifteen days
  from today.

  11. No further directions are called for in this petition and it is disposed of
  as such.



  12. Order be given dasti to learned counsel for the parties.



  S. MURALIDHAR,
   J.
  JANUARY 13, 2011
  rk
  Writ Petition (Civil) No. 218/2011 Page 1 of 6

7) OLD RECORD RETENTION SCHEDULE OF UPSC REGARDING ANSWERSHEET:--

8) New Record Retention Schedule of UPSC regarding answersheets:-

CHANGED RETENTION SCHEDULE FROM 31ST JANUARY 2012 regarding answersheets:-
CONFIDENTIAL BRANCH



Category of Record

Approved Retention Period

1) Files that contain general orders of the Commission on policy matters.

Permanent

2) *Court / CAT case files

10 years

3) *Disciplinary cases of debarment

10 years

4) Copies of Notifications of various examinations

5 years

5) **Correspondence with the AGCR and the State Bank of India

5 years

6) Files containing OM circulars and office orders

5 years

7) Stamp Accounts Register

5 years

8) **Grant of T.A. Advance

3 years

9) **Counterfoils of cheques

3 years

10) Miscellaneous orders / circular files

3 years

11) **Postage Stamp Account Register
3 years

12) Visitors� Register maintained at the entrances of the Confidential Branch

2 years

13) Telegram Register

2 years

14) Answer books / Answer sheets of candidates (except those pertaining to pending* court cases / penalty cases / complaint cases)

Six months from the conclusion of the written examination or 45 days from the start of display of mark sheets on the Commission�s website, whichever is later.

15) Answer Books / Answer Sheets pertaining to court cases

Till pendency of the ongoing court case (if intimated during the normal retention period) plus any additional period as directed by a Court of Law / Tribunal or until 1 year from the conclusion of the examination or 60 days after start of display of marksheets on the Commission�s website, whichever is later.

16) Answer Books / Answer Sheets pertaining to complaint cases

Three months after the complaint is examined and disposed of or until 1 year from the conclusion of the examination or 60 days after start of display of marksheets on the Commission�s website, whichever is later.

17) Answer Books / Answer Sheets pertaining to penalty cases

Three months after penalty is imposed or 1 year from the conclusion of the examination or 60 days after start of display of marksheets on the Commission�s website, whichever is later.

18) Miscellaneous and routine circulars and inquiries

1 year

19) *Absentee statement

1 year from the date of conclusion of examination.

20) Weekly Arrear statement

1 year

21) Casual leave account

1 year

22) Periodical reports / returns

1 year

23) Copies of indents for forms and stationery

1 year

24) Miscellaneous Circulars / papers

1 year

25) Attendance Register

1 year

26) Despatch advice from Supervisors regarding despatch of answer books / answer sheets to the Commission

6 months

27) Arrangement of accommodation for official visitors

6 months

28) Office copies of speed post booking slips

6 months

29) Postal Receipts of telegrams, registered insured articles, etc.

6 months 

9) RTI reply by UPSC stating that the present record retention schedule for answersheets has been changed from 31/1/2012:-

10) High Court of Delhi Order challenging the logic of UPSC to count record retention period for answersheet  from conclusion of examination , instead directs UPSC to count the retention period from date of declaration of result:-

IN THE HIGH COURT OF DELHI AT NEW DELHI

   01.05.2006


  Present: Mr. Abhay Kumar with Mr. Sandeep Kumar, Advocates for
  the Petitioner.
  Ms. Jyoti Singh with Mr. Ankur Chibber, Advocates for the
  Respondent.


   WP (C) No.2467/2006

  It has been explained by learned counsel for the Respondent that the
  records are maintained upto a period of one year from the date of the Main
  Examinations under the Record Retention Schedule. A copy of the Record
  Retention Schedule be supplied to learned counsel for the Petitioner within
  thirty days from today. In the present case the Main Examinations were held
  between 15.10.2004 and 9.11.2004 The Results were declared on 15.3.2005. The
  Petitioner thereafter appeared in the Interviews on 28.4.2005. He was declared
  as successful in May, 2005.
  If the Petitioner was dissatisfied with any of the the marks obtained by
  him he ought to have made a complaint immediately, keeping in view the fact that
  these Examinations are held annually. What the Petitioner states is that he
  read a Report in the Newspaper about Court Orders where the Respondents had been
  asked to bring the Answer Books of a candidate to Court. Clearly, the
  Petition is an after-thought. In view of the unequivocal statement of the
  Respondent
  WP (C) No.2467/2006 Page 1 of
  2
  that Petitioner's Answer Books have been destroyed, no relief can be granted to
  him.
  However, prima facie, there seems to be no logic in calculating one
  year's time for destruction of Answer Books from the date on which a person
  appears in the written Examination. Grievances, so far as the marking is
  concerned, would arise only when the Results are declared. Record Retention
  Schedule, inasmuch as it stipulates that Records shall be kept for one year,
  can only be fairly and logically interpreted to commence from the date when the
  Results are declared.
  With these observations the Writ Petition is dismissed.




  VIKRAMAJIT SEN, J



  May 01, 2006
  tp

11) NO MEETING WAS HELD FOR CHANGING RECORD RETENTION SCHEDULE FOR ANSWERSHEETS:-

   UPSC has changed its retention period for answersheet from 1 yr from conclusion of examination,  or 60 days from display of marksheet, whichever is later  to 6 month from conclusion of examination or 45 days from display of marksheet, whichever is later from 31/1/2012, such a important decision wherein student's fundamental right of judicial review has been enchroched ,is taken without conducting a meeting.

• Ashish Gupta RTI application to UPSC in this regard.:-

To                                                                               10/4/2012

Central information officer

Union public service commission

Sir,

It is requested that satisfactory information may kindly be provided on the following points:

1.     the retention period of the answer sheets has been reduced to 6 months from 1 year by Commission the retention  schedule of the cases pending  in courts pertaining to confidential branch has also been changed.

a)     You please tell me, to change the schedule when the meeting was held by the commission and who were present?

b)    Please provide me a copy of order passed in the meeting.

c)     What were the reasons to change the retention schedule by commission?

d)    Whether any direction has been passed by court to the commission regarding the retention schedule of answer sheets? If yes, what were those?

                                                                        Applicant

                                                                        Ashish Gupta

                                                                        B-33/1, Gali no.5

                                                                        Mandawali,Unchepar

                                                                        Delhi-92

• UPSC's reply to it saying that no meeting was held prior to change in retention schedule.:-

UPSC itself in another RTI said that such change in retention schedule is done by resolution of commission. copy of rti reply given below ( but, in present case UPSC , itself has not followed its rule and changed its retention schedule hurriedly without any resolution of commission, to minimise impact of aditya bandopadhyay decision, as after destruction of answersheet they can easily say that , they can not provide you the certified copy of answersheet as they are not available.)

According to Public Record act ,1993, any govt agency including UPSC has to take approval of National Archives of India and follow 7 step procedure.(given in detail in following link:-

http://nationalarchives.nic.in/ShowContent.aspx?uid1=2&uid2=8&uid3=0&uid4=0 http://nationalarchives.nic.in/writereaddata/html_en_files/html/RecordRetention_Fac.html http://nationalarchives.nic.in/writereaddata/html_en_files/html/RecordRetention_Sub.html   )

But , RTI reply of National Archives of India , says that UPSC has not taken their approval before changing their record retention schedule on 31/1/2012. Hence it should be quashed as the procedure mentioned in Public Record act,1993 is not followed , which also reflects malafide intention of UPSC.

National Archives of India's Reply :-

To,

The Chief Public Information Officer/ Director General of Archives,

National Archives of India, Janpath,

New Delhi 110001

Subject: - Application form for seeking information under Right to Information Act, 2005.

A. Name of Applicant-

B. Address: -

D. Particulars of Information required:-

1- Please provide the details of the process and procedures used in preparation of record retention

schedule by a public authority and its revision after 5years.

2-Sir/Madam,Union Public Service Commission(UPSC) changed its record retention schedule for

answersheets which came into effect from January 31,2012.I would like to know following in this context-

(i)-What steps under the rules were supposed to be taken by UPSC’s RCA,for such revision?

(ii) Whether UPSC has followed the Step number 7 along with other steps in doing such revision means

whether NAI has vetted the same revision,as required under step7 or not?

(iii) Please provide a photocopy of the revised retention schedule with respect to answer-sheets,which

might have been forwarded by UPSC to NAI as required under step7.

(iv)Please provide the details and photocopy of communications between UPSC and NAI in this regard?

(v) Please give the details of the process followed by NAI after receiving revised retention schedule from

UPSC ,including name and designation of the officer appointed to vet the revised retention schedule?

(vi)Give me a photocopy of the study-report conducted by NAI officer as required under step 7?

(vii)Whether NAI vetted the basis/logic of this change/revision in retention schedule of answersheets or

not.If yes,then please provide me the details including comments/file-notings,if any?

(viii)Whether or not NAI took into consideration the logic used in retention of Answer books

of departmental examinations/tests as available in the following document http://darpg.nic.in/

darpgwebsite_cms/Document/file/RRS_WC.pdf,while vetting the UPSC’s answer-sheets retention

schedule?Please give the reasons/file notings of the NAI’s actions in this regard.

3- If any of the above information cannot be provided, wholly or partially, then please cite the detailed and

clear reasons and detailed rules which enable UPSC to do so.

Postal Order no ………….. Dated ………….. For Rs 10/- favouring you towards payment of fee is

enclosed herewith. I am ready to deposit the balance fee, if any, with the authorised person.

I don’t belong to BPL category.

Place:-

Date: …

Signature of the Applicant

(……..)

Amit Gupta

My address for Correspondence:-

Shri Amit Gupta, B-33, galli no: 5, Mandawali, Unchepar, New Delhi-92.

I.D No………….….

Date:

'