A.P. Information Commission
(under Right To Information Act, 2005)
HACA Bhavan, Hyderabad – 500 004.
Phone Nos: 23230245/246 (O), 23230591/92 (F)
Appeal No:12618/CIC/2009,
Order dated 19-08-2011
Appellant
: Sri Kadiyam Sekhar Babu, H.No.15-1-
183, 1st Line, Nehru Nagar, Macherla 522
426, Guntur District
Respondents : 1) The Addl. Secretary/Public Information
Officer(U/RTI Act, 2005), A.P. Public
Service Commission, "Prathibha Bhavan",
M.J.Road, Opp: Gagan Vihar, Nampally,
Hyderabad 500103.
2) The Secretary, Appellate Authority
(U/RTI Act, 2005), A.P. Public Service
Commission, "Prathibha Bhavan",
M.J.Road, Opp: Gagan Vihar, Nampally,
Hyderabad 500103.
Order
Sri Kadiyam Sekhar Babu, H.No.15-1-183, 1st Line, Nehru Nagar, Macherla 522
426, Guntur District has filed 2nd appeal dated 04.12.2009 which was received by this
Commission on 17.12.2009 for not getting the information sought by him from the PIO and
appellate authority/ A.P. Public Service Commission, Hyderabad.
The brief facts of the case as per the appeal and other records received along with it
are that the appellant herein filed an application dated 02.09.2009 before the PIO seeking
the following information :
Photocopies of his answer sheets relating to Group-1 Mains Exam held in August
2008.
Since the appellant did not receive information from PIO, he filed 1st appeal dated
14.10.2009 before the appellate authority requesting to furnish the information.
The PIO/Addl. Secretary, APPSC through Memo No.646/RT-II/2/2009 dated
27.10.2009 informed the appellant that his request is rejected as it is not possible to give
copies of his answer sheets as per Central Information Commission order in Complaint
No.CIC/WB/C.2006/00223.
Aggrieved, the appellant preferred 2nd appeal before this Commission requesting
to arrange to furnish the information and to impose penalty U/s 20(1) of the Act.
Subsequently, the appellant has filed application dated 31.03.2010 which was
received by this Commission on 09.04.2010 stating that if the order passed by the CIC,
APIC on 28.01.2010 in Appeal No.4192/CIC/2009 filed by Dr. L. Srinivas Vs NTR Health
University is applicable to APPSC also, he requested to dispose of his appeal by taking it
as covered matter and pass orders directing the APPSC to furnish photo copies of his
answer sheets.
After examining the material papers available on record, the appeal was taken on
file and notices were sent to the parties concerned directing them to appear before this
Commission for hearing on 15.06.2011.
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The Prl. Secretary & appellate authority, APPSC through letter No.661/RTII/
2/2011 dt.24.05.2011 informed that through memo dt.27.10.2009 the appellant was
informed that his request is not feasible in view of the orders of CIC, New Delhi and the
Hon’ble APIC in Appeal No.1079/CIC/2007 dt.30.06.2008 gave a judgment stating that the
decision of the CIC in respect of UPPSC, this Commission holds that the same decision has
to be applied to the APPSC. The appellate authority further requested to exempt him from
personal appearance.
On 15.06.2011 the case was called. The appellant was absent. The
respondent/Addl. Secretary & PIO, APPSC was present. The appellate authority through
letter dated 24.05.2011 requested for exemption from personal appearance. The same was
granted.
The respondent informed that the request of the appellant was rejected basing on
the decision of CIC, New Delhi, which was upheld by the Hon’ble APIC in Case
No.1079/CIC/2007 dt. 30.06.2008 and the same is applicable to APPSC also.
The appellant filed written submissions dated 5.6.2010 requesting to arrange to
furnish copies of his answer sheets.
This Commission on perusing the material on record and upon hearing the
respondent is of the considered view that the contention of the respondent is not sustainable
in view of the decision of the Hon’ble Supreme Court in Civil Appeal No.6454 of 2011
dated 09.08.2011 in Central Board of Secondary Education & Another Vs Aditya
Bandopadhyay and others wherein the Hon’ble Supreme Court observed thus –
At para 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 second 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 each 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.
At para 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
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employment, as a part of his duties without any specific or special remuneration. In other
words the examining body is the ‘principal’ and the examiner is the agent entrusted with
the work, that is, 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 answerbook
is entrusted to the examiner for the purpose of evaluation, for the period the answerbook
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.
At para 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 available in respect of evaluated answer books, the examining
bodies will have to permit inspection sought by the examinees.
In view of the ratio laid down in the decision of the Hon’ble Supreme Court cited
supra, this Commission having considered the facts and circumstances of the instant case,
being similar in nature and therefore, the ratio can well be extended to the facts of the
present case and as such the appellant herein is also entitled to seek photo copies of answer
sheets from the respondents.
This Commission, therefore, directs the respondents to furnish certified copies of
the answer sheets sought by the appellant free of cost, within 30 days from the date of
receipt of this order under intimation to this Commission.
With the above direction, this appeal is closed.
Jannat Husain
Chief Information Commissioner
Authenticated by:
(Maha Prakash)
Deputy Registrar
Copy to: DS / SO / OC / SF
TAMIL NADU INFORMATION COMMISSION
No.2, Thiyagaraya Salai, Eldams Road Junction, Adjacent to Aalayamman
Temple, Teynampet, Chennai – 600018.
Telephone: 24357580
Case No.51844/B/Enquiry/2011
Date of Enquiry: 7/02/2012 (Chennai)
Present: Thiru. (Dr) R. Perumalsamy
State Information Commissioner.
Petitioner: Tmt. T. Geetha,
17/67. I Floor.
Swamynathapuram. Kanniyakumari.
Public Authority: The Public Information Officer,
Tamil Nadu Public Service Commission,
No.1 Greams Road, Chennai-6.
*****
The Petitioner Tmt. T. Geetha was represented by her Advocate Thiru V.
Purushothaman and the Public Authority was represented by the Public
Information Officer Tmt. R. Geetha, Under Secretary, Tamil Nadu Public Service
Commission, Chennai 6 for today's enquiry.
The Petitioner sent a petition dated 27.09.2011addressed to the Public
Information Officer, Tamil Nadu Public Service Commission, Chennai - 6 under
section 6(1) of the Right to Information Act, 2005 to furnish the copies of the main
written examination answer sheets along with the marks awarded by the
examiners with Register No. 603611 for the TNPSC Group 1 Services Main
Examination (2000-01) The Public Information Officer, sent a reply dated
21.10.2011 to the petitioner by Speed post on 30.11.2011. Not satisfied with
the reply given by the Public Information Officer, the Petitioner filed the first
appeal u/s 19(1) of the Right to Information Act, 2005 to the Appellate Authority
on 8.11.2011 and the 2nd appeal to the Commission on 19.12.2011. On the basis
of the petitioner’s 2nd appeal to Commission, the case was taken up for enquiry
on 7.2.2012.
During the enquiry the Public Information Officer has stated that since the
case is being heard in the Hon'ble Supreme Court, the answer sheets for the
year 2000-2001 cannot be given. The Public Information Officer has relied upon
Section 8(1)(b) according to which there shall be no obligation to give any citizen
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. But
the Public Information Officer has not furnished a copy of the Court Order in this
regard. The Public Information Officer has also not furnished even the case
number pending in the Supreme Court. In the absence of such details, the
contention of the Public Information Officer is not agreeable. Further it is
pertinent to point out that the provisions of the Right to Information Act will
prevail over the provisions of the bye-laws / rules of the examining bodies. The
petitioner contended that she is not a party in the said case stated to be pending
before the Hon'ble Supreme Court.
Now the issue before the Commission is to consider whether the
exemption under section 8(1)(e) is applicable in this case. In relation to existence
of 8(1)(e), the Hon'ble Supreme Court in the case of "Central Board of
Secondary Education and another vs. Aditya Bandopadhyay and Others" has
given a ruling that the exemption under section 8(1)(e) will not operate a bar for
the very person who wrote the answer book, seeking inspection or disclosure of
it. Based on the above ruling and also the petitioner is not a party in the said
case stated to have been pending before the Hon'ble Supreme Court, the
Commission orders as follows:
The Public Information Officer is directed to furnish the copies of Answer
Sheets along with the marks to the petitioner at free of cost within a period of
one month from the date of receipt of this order and report to the Commission.
State Information Commission
Orders approved on this the 17 th day of
March 2012
Under the orders of the Commission
Assistant Registrar
Case No.51844/B/Enquiry/2011
Tmt. T. Geetha,
17/67. I Floor.
Swamynathapuram. Kanniyakumari.
Case No.51844/B/Enquiry/2011
The Public Information Officer,
Tamil Nadu Public Service Commission,
No.1 Greams Road, Chennai-6.
Copy to FOC/Judgment File/Scan
MANO/PS/19.03.2012
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