Saturday, 21 July 2012



WP(C).No. 33718 of 2010(L)

                      ...  Petitioner


                       ...       Respondent


                For Petitioner  :SRI.P.C.SASIDHARAN, SC, KPSC

                For Respondent  :SRI.M.AJAY, SC, STATE INFORMATION COMMN

The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :09/03/2011

 O R D E R
            Thottathil B.Radhakrishnan


               P.S.Gopinathan, JJ.

  = = = = = = = = = = = = = = = = = = = = = = = =

     W.P.(C).Nos.33718/2010-L, 5755/2007-I,
     12297/2007-L, 3585/2008-B, 15363/2008-D,
     15424/2008-J, 22386/2008-M, 6177/2010-V,
     9250/2010-E, 25779/2010-V, 23839/2010-D,
    32772/2010-V, 12032/2009-Y, 12160/2009-L,
    34585/2007-P, 33620/2009-V, 35723/2008-C,
    22398/2008-N, 15426/2008-J, 22230/2007-U,
     6355/2010-T, 22231/2007-V, 3577/2008-A,
    12312/2007-N, 23458/2008-P, 37772/2008-V,
    11876/2009-D, 23539/2008-B, 11687/2009-E,
     33616/2009-V, 11042/2010-E, 2207/2008-K,
     10971/2010-V, 5978/2010-V, 35840/2008-N
                  & 5622/2007-T

  = = = = = = = = = = = = = = = = = = = = = = = =

       Dated this the 9th day of March, 2011.



  Thottathil B.Radhakrishnan, J.

1.These  writ  petitions  raise   the  question  of

 applicability of the Right to Information Act,

 2005, hereinafter referred to as the "RTI Act" to

 the    Kerala    Public     Service    Commission,

 hereinafter, "PSC", for short. These matters are

WPC33718/10 & con.cases     -: 2 :-

 referred      to     the Division    Bench noticing  an

 apparent conflict between the decisions of this

 Court in Public Information Officer, University

 of   Calicut and        another    v. State Information

 Commission[2010(1) KHC 2], for short, "UNICAL",

 and Treesa Irish v. Central Public Information

 Officer[2010(3) KLT 965], "TREESA", for short.

2.The PSC challenges different decisions of the

 State Information Commission, "SIC", for short,

 overruling its stand that information with the

 PSC cannot be accessed under the RTI Act and that

 the   answer       scripts,   marks  awarded, including

 interview marks and other details touching the

 process of examination and interview cannot be

 made available, except to the extent provisions

 are made for such access by the regulations and

 decisions of the PSC.

3.In support of the writ petitions, Adv. Alexander

 Thomas, the learned standing counsel for the PSC

 argued that the substantive source of the right

 to information is the constitutional provision in

WPC33718/10 & con.cases    -: 3 :-

 Article 19(1)(a) and hence, what is not available

 as part of that right cannot be treated as

 available under the RTI Act. He argued that RTI

 Act applies only to the extent of the concept of

 "information" as deducible from Article 19(1)(a)

 of    the     Constitution       and  not  beyond.  He,

 therefore, said that if a particular information

 would fall beyond the pale of Article 19(1)(a),

 the same would not be accessible under the RTI

 Act. Making reference to the decisions of this

 Court in Thalapalam Service Co-operative Bank

 Ltd.     v.     Union   of     India[2009(2) KLT   507]

 (Thalapalam I), Thalapalam Service Co-operative

 Bank Ltd. v. Union of India[2009(3) KLT 1001]

 (Thalapalam        II) and S.N.College     v. State  of

 Kerala[2010(1)        KLT  691](S.N.College),   it  was

 argued that it has been held in those cases that

 the concept of information under RTI Act is with

 reference         to   Article      19(1)(a)   of   the

 Constitution. He accordingly argued that beyond

 that, the provisions of the RTI Act cannot be

 extended.      He said that this restrictive approach

 has to be applied since it has been held by the

WPC33718/10 & con.cases     -: 4 :-

 Apex     Court      in  Maharashtra      State  Board   of

 Secondary      and    Higher      Secondary  Education  v.

 Paritosh      Bhupeshkumar        Sheth[(1984)4  SCC  27],

 hereinafter,        Paritosh,     that  in  terms  of  the

 Constitution, there is no right to information,

 including as regards answer scripts. He said that

 the law laid by the Apex Court in that regard is

 also that if such right is recognized, it would

 lead to acceding to a further right to demand

 revaluation and such situation would necessarily

 lead    to     uncertainty,       lack  of   finality  and

 administrative        inconvenience     to  the  examining

 bodies. He also pointed out that even in terms of

 the    Constitution,      principles      of  secrecy  and

 public interest immunity would stand to advise

 that     information      in      relation   to  PSC,   in

 particular,       matters    relating    to  examinations,

 ought not to be released as information, invoking

 the provisions of the RTI Act. He also made

 reference       to    Secy.,      W.B.Council  of   Higher

 Secondary      Education      v.    Ayan  Das[(2007)8 SCC

 242], Pramod Kumar Srivastava v. Chairman, Bihar

 Public     Service      Commission[(2004)6     SCC   714],

WPC33718/10 & con.cases      -: 5 :-

 Board of Secondary Education v. Pravas Ranjan

 Panda[(2004)        13 SCC     383], H.P.Public   Service

 Commission       v    Mukesh   Thakur[(2010)6   SCC 759],

 Sidhik v. State of Kerala[2010(1) KLT 113] and

 the decision of the Apex Court in Kerala Public

 Service Commission v. Narayanan Kunchumbidukka

 [Civil Appeal No.461 of 2008][Ext.P6 in WP(C).

 33718/2010], to argue that the said decisions

 categorically lay down that access to information

 in   relation       to   examination    materials is  not

 permissible        except   to     the extent  where  the

 examining body permits such access on the basis

 of regulations or decisions that it has taken for

 the    management        of    affairs   in  relation  to

 examinations.         Adv.    Alexander   Thomas   further

 argued that the Commission has a fiduciary role

 qua the society in public interest and it holds

 and acts in trust; in public interest; in a

 fiduciary capacity qua the public at large. He

 said    that      the   term     "fiduciary capacity"  in

 Section     8    of    the  RTI     Act needs  to  be  so

 understood. He argued that information regarding

 examiners and others involved in the process has

WPC33718/10 & con.cases    -: 6 :-

 to be maintained in secrecy. Otherwise, it would

 lead    to    different   situations    which  would be

 susceptible even to corruption. Dilating on the

 concept of fiduciary status, he argued that the

 restricted       concept of      fiduciary relations as

 understood in private law is not applicable and

 the concept of fiduciary relations in the context

 of public trust and public involvement should be

 a larger concept.

4.Adv. M.Ajay, the learned counsel for the SIC

 argued that the decisions rendered by this Court

 in Thalapalam I & II and S.N.College do not lay

 down any principle of restrictive approach in

 appreciating the concept of information for the

 purpose of the RTI Act. He said that this Court

 had    only     indicated    in   those  decisions, the

 evolution of law in that regard. He further

 argued that the basic approach of the RTI Act is

 one that conceives maximum disclosure and minimum

 exemptions. This, he said, is discernible from

 the RTI Act as a whole and also on the basis of

 its Preamble and the Statement of Objects and

WPC33718/10 & con.cases     -: 7 :-

 Reasons. He made reference to the decisions of

 the    Delhi      High   Court      in  ICAI  v.   Central

 Information          Commissioner      &   another[W.P(C).

 No.8529 of 2009], Allahabad High Court in Public

 Information         Officer       v.   State   Information

 Commission, U.P. and others[W.P.No.3262 (MB) of

 2008], Pritam Rooj v. University of Calcutta[AIR

 2008 Cal.118], University of Calcutta v. Pritam

 Rooj[AIR 2009 Cal.97], The Tamil Nadu Public

 Service Commission v. The Tamil Nadu Information

 Commission[W.P.No.34630/2007 & connected cases],

 D.Parisuthanathan           v.       Public    Information

 Officer/Registrar        General,     High  Court,  Madras

 [W.P.No.1285/2009 & connected cases], Tamil Nadu

 Road Development Company Limited v. Tamil Nadu

 Information           Commissioner[W.A.No.811/2008       &

 M.P.No.1/2008]          and      Union   Public    Service

 Commission v. Shiv Shambhu[2008-ILR Delhi 17-

 2016 :2008(TLS) 141374] and Secretary General,

 Supreme      Court     of  India     v.   Subhash  Chandra

 Agarwal[LPA         501/2009],      to  argue   that   the

 provision for information in terms of the RTI Act

 has   to     be    understood     on  the   basis of   the

WPC33718/10 & con.cases     -: 8 :-

 definition       of   "information"   in that Act. He

 further argued that the validity of the RTI Act

 not being under challenge, there is no reason to

 tinker with the specific definition given by the

 legislature to the term "information" in the RTI

 Act. He argued that the RTI Act is a self

 contained Code and it should be taken that the

 Parliament were aware of the laws as laid by the

 Apex Court while it made the RTI Act and if it

 intended to make any departure in the case of

 examinations etc., such departure or exception

 would have necessarily found expression in the

 Act itself. He pointed out that the fiduciary

 concept is not available as a plea for the PSC to

 deny    information     under     the RTI Act and the

 fiduciary relationship as projected by the PSC,

 has no application because the intention of RTI

 Act is to provide information, with the ultimate

 goal to ensure purity and transparency in matters

 relating to governance and selection. He said

 that, by all means, PSC cannot but be treated as

 part of the process of governance of the State.

WPC33718/10 & con.cases    -: 9 :-

5.Section 3 of the RTI Act provides that, subject

 to the provisions of that Act, all citizens shall

 have the right to information. That right is

 defined in section 2(j) of the RTI Act. It is the

 right to information, accessible under that Act,

 which is held by or under the control of any

 public authority. It includes the right to access

 any information as stated in that provision.

 Every      public      authority   stands with the

 obligations cast on it under section 4 of that

 Act. The PSC does not, and cannot, have the

 contention that it is not a "public authority" as

 defined in section 2 (h) of the RTI Act. The

 obligations in terms of section 4 of the Act are

 incurred by any authority or body or institution

 which would be a public authority in terms of

 section 2 (h) of that Act. Adverting to section 8

 of that Act, it can be seen that there is no

 institutional exception or exemption from the

 applicability of the provisions of the Act. The

 exemption from disclosure of information provided

 for by section 8 of that Act is one based on the

 type or class of information. In the absence of

WPC33718/10 & con.cases    -: 10 :-

 any such exemption being granted to any class or

 type of information with any public authority,

 the obligations of that public authority in terms

 of the Act and the susceptibility of information

 with it, to access in terms of the provisions of

 the RTI Act cannot be avoided. Thus, PSC having

 been brought under the trappings of the RTI Act,

 it is not conferred with the immunity as an

 institution, from the obligations, liabilities

 and exposure of information held by or under its

 control, in terms of that Act. There is also no

 provision in section 8 of that Act classifying

 any information as eligible for exemption from


6.Section 2 of the RTI Act is the dictionary of

 that    legislation.     It       contains  "Definitions".

 Clause (f) thereof says that "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

WPC33718/10 & con.cases   -: 11 :-

 information relating to any private body which

 can be accessed by a public authority under any

 other law for the time being in force. The

 Honourable Supreme Court stated in Hariprasad

 Shivshanker Shukla v. A.D.Divelkar[AIR 1957 SC

 121], that "There is no doubt that when the Act

 itself provides a dictionary for the words used,

 we must look into that dictionary first for an

 interpretation of the words used in the statute.

 We are not concerned with any presumed intention

 of the legislature; our task is to get at the

 intention as expressed in the statute." When the

 statutory provision defining a particular term

 says that the said term shall mean what is stated

 in that definition clause, it shall mean only

 that; nothing more, nothing less; for the purpose

 of the statute which carries that definition.

 When a statute says that a word or phrase shall

 "mean" -- not merely that it shall "include" --

 certain things or acts, the definition is a hard-

 and-fast      one,    and no     other meaning can be

 assigned to the expression than the one put down

 in   definition.       A definition    is  an explicit

WPC33718/10 & con.cases     -: 12 :-

 statement of the full connotation of a term. -

 See   Punjab       Land   Development   and  Reclamation

 Corpn. Ltd. v. Presiding Officer[(1990) 3 SCC

 682]    and    P.     Kasilingam    v. P.S.G.College  of

 Technology[1995         Supp    (2)  SCC 348]   rendered

 relying on Gough v. Gough[(1891) 2 QB 665: 65 LT

 110]. As noticed in S.N.College, the Legislature

 has the power to define a word even artificially.

 When a statute says that a word or phrase shall

 "mean" a particular thing, certain things or

 acts, that definition is a hard-and-fast one and

 no    other      meaning    can    be assigned  to   the

 expression than is put down in that definition.

 That definition is an explicit statement of the

 full connotation of a term.

7.In CST v. Union Medical Agency[(1981) 1 SCC 51],

 the Apex Court stated that it is a well-settled

 principle that when a word or phrase has been

 defined      in    the   interpretation   clause,  prima

 facie, that definition governs whenever that word

 or phrase is used in the body of the statute. But

 where the context makes the definition clause

WPC33718/10 & con.cases    -: 13 :-

 inapplicable, a defined word when used in the

 body of the statute may have to be given a

 meaning different from that contained in the

 interpretation clause; all definitions given in

 an interpretation clause are, therefore, normally

 enacted      subject    to    the   usual  qualification

 -- "unless there is anything repugnant in the

 subject     or     context",    or "unless the  context

 otherwise requires". Even in the absence of an

 express qualification to that effect, such a

 qualification is always implied. The meaning of a

 word    or    expression     defined  may  have  to  be

 departed      from    on  account   of  the subject  or

 context in which the word had been used and that

 will be giving effect to the opening sentence in

 definition section, namely "unless the context

 otherwise         requires".      In   view   of   this

 qualification, the court has not only to look at

 the words but also to look at the context, the

 collocation and the object of such words relating

 to such matter and interpret the meaning intended

 to be conveyed by the use of the words in a

 particular       section.    But   where  there  is  no

WPC33718/10 & con.cases   -: 14 :-

 obscurity in the language of the section, there

 is no scope for the application of the rule ex

 visceribus actus. This rule is never allowed to

 alter the meaning of what is of itself clear and

 explicit. As observed in Pandey & Co. Builders

 (P) Ltd. v. State of Bihar[(2007) 1 SCC 467],

 in view of the provision "unless the context

 otherwise requires" in the definition clause, one

 may   not     stick    to  the    definition, when the

 provision in the interpretation clause shall lead

 to anomalous and absurd results.            Such course

 shall not be resorted to otherwise.           The court

 cannot read anything into a statutory provision

 which is plain and unambiguous. A statute is an

 edict of the legislature. The language employed

 in a statute is the determinative factor of

 legislative intent.

8.The question of contextual construction of any

 particular provision of the RTI Act and the

 consequential excusing of the PSC from any such

 provision, by using the tool "unless the context

 otherwise      requires"    in   the  opening  part of

WPC33718/10 & con.cases    -: 15 :-

 section 2 of that Act, do not arise. This is

 because, to a large extent, the plea of the PSC

 is that the RTI Act does not apply to all

 information held by it or under its control. The

 argument advanced is that there has to be a

 selective classification of the information held

 by it or under its control. The plea is that

 while information relating to its governance and

 administration may be available for access under

 the RTI Act, information, including materials

 relating      to    examinations,    are  not  accessible

 information         since  they    do   not   relate  to

 governance or administration of PSC. The argument

 is not that the application of the definition of

 the   term     "information",      as  contained in  the

 dictionary       to   the   statute,   interpreting  any

 particular provision of the RTI Act, would lead

 to    anomalous       and    absurd   results.   In  its

 substance, the plea of PSC is that the definition

 of the term " information" in section 2 of the

 RTI Act should be understood differently; not in

 relation to the interpretation or application of

 any particular provision of that Act; but while

WPC33718/10 & con.cases    -: 16 :-

 applying the provisions of that Act to the PSC.

 Fundamentally, this contention of PSC does not

 stand. As already noticed, PSC cannot but fall

 under the definition of "public authority" in the

 RTI Act. Having regard to the format of the

 definition of that term in the RTI Act, there is

 no intelligible differentia discernible in the

 context of that Act, to cull out any differential

 treatment for the PSC or information held by it

 or under its control. On the face of the clear

 provisions of the RTI Act, as they now stand,

 there is no way for judicial intervention to

 refuse access to information by or under the

 control of PSC.

9.Be that as it may, we proceed to consider the

 submissions on behalf of the PSC that the concept

 of   "information"       in   the   RTI  Act has  to be

 restricted       to   such   information   as would  be

 available in the realm of fundamental rights

 referable        to    Article     19(1)(a)     of  the

 Constitution,         having     regard  to  the   views

 expressed in Thalapalam I & II and S.N.College.

WPC33718/10 & con.cases    -: 17 :-

 Those      three      judgments and TREESA      trace the

 evolution of the concept of information, as a

 necessary concomitant of the fundamental right to

 freedom of expression as contained in Article 19

 (1)(a) of the Constitution. Eligibility to access

 information, including the entitlement to have

 information        for   the      purpose  of   meaningful

 fulfillment of the fundamental right to freedom

 of expression, is part of the core theme of those

 precedents rendered          making      reference to the

 legendary decisions of the Apex Court in State of

 Rajasthan v. Raj Narain[AIR 1975 SC 865] and

 S.P.Gupta v. Union of India[1981(Supp.)SCC 87].

 Those precedents do not, in any manner, abridge

 the ever expanding horizons of the fundamental

 right to freedom of expression as enshrined in

 Article 19(1)(a). Nor do those judgments act as

 precedents        for    any      proposition   that   the

 legislatures have to restrict the concept of

 "information"         for  the     purpose  of   providing

 access, with the aid of a statutory instrument,

 in the form of the RTI Act. All that has been

 said    in     those    judgments     is  that  the  ever

WPC33718/10 & con.cases     -: 18 :-

 available fundamental right to information as

 part of the fundamental right to freedom of

 speech     and       expression     has found   statutory

 recognition        in  the    form   of  RTI  Act,  as  a

 successor to the Freedom of Information Act,

 2002. Those decisions are not precedents laying

 down any definition for the term "information"

 for the purpose of the RTI Act.

10.To make a statute, including by laying down a

 statutory definition, even artificial, for any

 particular term used in that statue, is the

 exclusive function of the legislature. If it does

 so, that cannot be abridged by any situational or

 explanatory reference made to the constitutional

 provisions, in any precedents laid by courts.

 When the legislature undertakes the process of

 making a piece of statute law, it has necessarily

 to    be    assumed      that      it is  aware  of   the

 interpretations given by the courts, at least the

 Supreme      Court    and   the     High Courts,  to  the

 different terms or concepts that become subject

 of that legislation. When the legislature makes a

WPC33718/10 & con.cases     -: 19 :-

 statute,      including      by    providing  a   specific

 definition for a term; may be, even artificial,

 deviating from the common and accepted meaning of

 that particular term; it has to be taken that the

 legislature       has    consciously,    deliberately and

 after    due     consideration,      put  that  provision,

 including the definition. Judicial determination

 can     thereafter        be     only   as   regards  the

 constitutionality of that provision.

11.In the absence of any way to challenge validity

 of   the     provisions      of    the  RTI  Act,  it  is

 impermissible for the PSC to contend that in the

 application of that Act to it, there has to be a

 restrictive           understanding     of    the    term

 "information",         that   too,   ignoring  the   clear

 statutory       provision      defining   the  term;  the

 legislature clearly stating that it means what it

 stated       as      the   definition     of   the   term

 "information" for the purpose of that Act.

12.Here,    the     law   laid     by the  Apex  Court  in

 Paritosh was one expressing the confidence in the

WPC33718/10 & con.cases    -: 20 :-

 examination systems, holding the examiners and

 the institutions conducting the examinations in a

 pedestal higher than the right of the examinee or

 any other person to access information in that

 regard. In the absence of any permission then,

 like the RTI Act, holding the field, the Apex

 Court stated its views within the format of the

 Constitution to say, without the aid of any

 statute governing the field, that the right to

 information in relation to, and disclosure of

 answer     scripts,      may      lead to   request for

 revaluation and resultant choking off the systems

 which run the examinations. For one thing, after

 Paritosh was decided in 1984, and even followed

 subsequently, evolution of the thinking process

 of    the     legislators,      academicians  and  civil

 society leaders and organizers had apparently

 pushed forward the larger salutary requirement

 that transparency has to outweigh all demands for

 secrecy, except of course, in relation to areas

 of   national        and other     such interests  which

 require continued secrecy and exemption from any

 law     providing      access     to  information.  This

WPC33718/10 & con.cases    -: 21 :-

 evolution        of   the    People's    thinking  found

 acceptance with the Legislature. This is how the

 RTI   Act     came    into   being,   making  a specific

 provision in the form of Section 8 granting

 exemptions from the provisions of the RTI Act.

 We, therefore, uphold the views in TREESA and

 agree with the Division Bench and the single

 Judge of the Calcutta High Court in Pritam Rooj

 pointing out the evolution of the society leading

 to   the    RTI     Act  and    the  requirement of the

 Universities to fall in line with the provisions

 contained in that Act. The constitutional values

 have to be identified and effectuated as "We, the

 People of India" marches. The concepts which had

 held field, even for fairly long, have later

 dwinkled with the exploring minds of the Indian

 people.      As     noted  by     Krishna  Iyer, J.   in

 Authorised Officer v. S.Naganatha Ayyar[(1979) 3

 SCC 466], though the Judges are constitutional

 invigilators and statutory interpretors, they are

 also responsive and responsible to Part IV of the

 Constitution. The Judges have, with the passage

 of time, contributed to the process of evolution

WPC33718/10 & con.cases    -: 22 :-

 of the constitutional law to ultimately lead the

 society to affirmatively stand by the equality

 doctrine which is a seminal principle underlying

 the Constitution. To indicate an example of the

 process        of     evolution     of    thinking  in

 Constitutional law, we may indicate the growth of

 law from A.K.Gopalan v. State of Madras [AIR 1950

 SC 27], through Maneka Gandhi v. Union of India

 [(1978) 1 SCC 248] and Kehar Singh v. Union of

 India[(1989)1 SCC 204] and now State of West

 Bengal v. Committee for Protection of Democratic

 Rights[(2010)3        SCC 571];    showing a  graphical

 expansion of the concept of right to life and

 personal liberty. The progression of the society

 is reflected also by the growth of statute law

 and     judicial      precedents    which  reflect the

 recognition        of  the     priceless gems   in the

 Constitution; the fundamental rights, Directive

 Principles of State Policy and other provisions

 which reflect the aspirations of the Nation. They

 are the constitutional values, which will run the

 national mechanism in terms of the Constitution.

 It is within the power of the Legislature to

WPC33718/10 & con.cases    -: 23 :-

 bring such legislations as are in conformity with

 the Constitution. Permissiveness in terms of the

 Constitution        may  be     one matter. But, more

 importantly, the People are entitled to have the

 legislators to think and bring in laws as may be

 necessary to effectuate the aspirations of the

 people referable to the Directive Principles of

 State Policy. May be, a citizen may not have a

 right to a judicial order seeking enforcement of

 any provision in Part IV of the Constitution.

 But, that does not provide answer for legislative

 failure to give effect to the aspirations of the

 People in terms of Part IV of the Constitution.

 It is also the law that the legislatures which

 are the constitutional authorities to make the

 enactments can change the course of the settled

 positions        of    law     except  in  exceptional

 circumstances and subject to such restrictions as

 have been judicially recognised. Therefore, the

 law laid in Paritosh is not persuasive of any

 proposition that the provisions of the RTI Act

 have to be interpreted in terms of the rights of

 citizens, particularly, the examinees, as laid

WPC33718/10 & con.cases     -: 24 :-

 down in that case. The views expressed in that

 regard in TREESA and of the learned single Judge

 and Division Bench of the Calcutta High Court in

 Pritam Rooj are apposite.

13.For the foregoing reasons, the argument extended

 by the PSC that the concept of "information" for

 the purpose of the RTI Act has to be restricted

 to   such     information      as    may fall within the

 concept of fundamental right to information as

 part of the fundamental right to freedom of

 speech and expression referable to Article 19 (1)

 (a),    is    unsustainable        in law and  is  hereby


14.Now, on to the plea of the PSC that it holds a

 fiduciary status. Three issues arise in this

 context. Firstly, the PSC claims that there is a

 fiduciary relationship between it and those being

 subjected      to     examination    for the  purpose of

 selection to public service. Secondly, it claims

 that there is a fiduciary relationship between it

 and the examiners and as a consequence, it is

WPC33718/10 & con.cases    -: 25 :-

 eligible to claim protection from disclosure,

 except     with      the  sanction    of  the  competent

 authority,       as   regards     the  identity  of the

 examiners       as    also   the   materials  that  were

 subjected to the examination. Thirdly, rather,

 most importantly, it contends that the PSC holds

 a larger fiduciary public interest relationship

 with the society at large in relation to the

 maintenance        of  purity,    transparency  and  the

 credibility of the procedure of selection to

 public     service      and     therefore  materials  in

 relation to such selection procedures cannot be

 subjected to access as if they were information

 that would fall within the trappings of the RTI

 Act. We may hasten to add that the learned

 counsel for the PSC, in the course of his erudite

 submissions, made a clear distinction between

 information relatable to the PSC as regards its

 governance         and    those     relatable   to   the

 examinations conducted by it. He said that in

 matters relating to governance, there may not be

 any privilege or protection that the PSC could

 claim; but that, matters relating to examination

WPC33718/10 & con.cases    -: 26 :-

 deserve to be taken out of the purview of the RTI


15.In Centre of Earth Science Studies v. Anson

 Sebastian[2010 (2) KLT           233], the Division Bench

 of this Court held that S.8(1)(e) deals with

 information available with the person in his

 fiduciary        relationship      with   another;  that

 information        under  this    head  is  nothing  but

 information        in   trust,    which,  but   for  the

 relationship would not have been conveyed or

 known to the person concerned and that this

 applies to the relationship that exists between a

 patient and a Doctor, a lawyer and a client etc.

 The term "fiduciary relationship" is not defined

 in the RTI Act. The learned single Judge, in

 TREESA, therefore         rightly    held   that in  the

 absence of any statutory definition, the general

 accepted legal connotation of that term could be

 adopted for deciding the issue. Reliance placed

 in    TREESA       on   the   definition   of "fiduciary

 relationship"         as  stated     in    Black's   Law

 Dictionary, seventh          edition,    in Corpus Juris

WPC33718/10 & con.cases    -: 27 :-

 Secundum, the Dictionary of Law by L.B. Curzon,

 Stroud's Judicial Dictionary and the decision of

 this Court in Sunitha v. Ramesh[2010 (3) KLT 501]

 and the decisions in Secretary General, Supreme

 Court of India(supra), including the references

 made     therein       to  different    precedents   and

 commentaries,         are   contextually    apposite and

 applicable to the interpretation of the term

 "fiduciary relationship" in section 8 (1)(e) of

 the RTI Act.

16.What, if any, is the fiduciary relationship of

 the PSC qua the examinees? Performance          audit of

 constitutional institutions would only strengthen

 the     confidence      of    the   citizenry  in   such

 institutions.         The  PSC     is a   constitutional

 institution. To stand above board, is one of its

 own prime requirements. There is nothing that

 should deter disclosure of the contents of the

 materials that the examinees provide as part of

 their performance in the competition for being

 selected to public service. The confidence that

 may    be     reposed    by      the examinees  in   the

WPC33718/10 & con.cases     -: 28 :-

 institution of the PSC does not inspire the

 acceptability of a fiduciary relationship that

 should kindle the exclusion of information in

 relation      to    the  evaluation    or other details

 relating to the examination. Once the evaluation

 is over and results are declared, no more secrecy

 is called for. Dissemination of such information

 would only add to the credibility of the PSC, in

 the constitutional conspectus in which it is

 placed.     A particular examinee would therefore be

 entitled to access to information in relation to

 that person's answer scripts. As regards others,

 information in relation to answer scripts may

 fall within the pale of "third party information"

 in terms of section 11 of the RTI Act. This only

 means that such information cannot be accessed

 except      in      conformity     with  the  provisions

 contained in section 11. It does not, in any

 manner, provide for any immunity from access.

17.We shall now examine the next contention of PSC

 that there is a fiduciary relationship between it

 and the examiners and as a consequence, it is

WPC33718/10 & con.cases    -: 29 :-

 eligible to claim protection from disclosure,

 except     with      the  sanction    of  the  competent

 authority,       as   regards     the  identity of  the

 examiners       as    also   the   materials  that were

 subjected to the examination. We have already

 approved TREESA and the different precedents and

 commentaries relied on therein as regards the

 concept of fiduciary relationship. We are in full

 agreement with the law laid by the Division Bench

 of this Court in Centre of Earth Science Studies

 (supra), that S.8(1)(e) deals with information

 available      with    the   person   in  his  fiduciary

 relationship with another; that information under

 this head is nothing but information in trust,

 which, but for the relationship would not have

 been conveyed or known to the person concerned.

 What is it that the PSC holds in trust for the

 examiners? Nothing. At the best, it could be

 pointed out that the identity of the examiners

 has to be insulated from            public gaze,  having

 regard to issues relatable to vulnerability and

 exposure to corruption if the identities of the

 examiners are disclosed in advance. But, at any

WPC33718/10 & con.cases    -: 30 :-

 rate, such issues would go to oblivion after the

 conclusion       of   the  evaluation    of  the   answer

 scripts     and     the  publication    of  the  results.

 Therefore, it would not be in public interest to

 hold that there could be a continued secrecy even

 as regards the identity of the examiners. Access

 to such information, including as to the identity

 of the examiners,           after the examination and

 evaluation processes are over, cannot be shied

 off under any law or avowed principle of privacy.

18.Proceeding to the next contention of the PSC

 that it holds a larger fiduciary public interest

 relationship to the society at large in relation

 to the maintenance of purity, transparency and

 the credibility of the procedure of selection to

 public     service      and     therefore  materials   in

 relation to such selection procedures should not

 be    subjected       to  access     as  if   they   were

 information that would fall within the trappings

 of    the     RTI     Act,   it   needs   to  be   stated

 emphatically        that  purity    and  transparency  of

 every public establishment is ensured to the

WPC33718/10 & con.cases    -: 31 :-

 satisfaction of the citizenry only by providing

 access to materials as would instil confidence.

 The RTI Act is a unique legislation. A laudable

 object it proceeds to achieve is empowerment of

 the citizenry with information in relation to

 matters of governance and also as regards all

 matters which may be relevant as information in

 terms of the RTI Act. This process of access is

 statutorily provided by the legislature after

 making      clear     and    specific    exemptions and

 restrictions regarding information which it, in

 its   wisdom,       decided   not   to disseminate. The

 reference made to the Official Secrets Act and

 the provision that the RTI Act applies with an

 overriding        effect  on      other laws   makes it

 explicitly clear that the legislative intention

 is that no principle of secrecy other than which

 is recognized specifically in the RTI Act is

 taken     up     as   a  shield     against  access and

 dessimination         of     information     by   public

 authorities in terms of the RTI Act. Transparency

 will only add to the confidence of the people

 regarding the purity of the conduct of public

WPC33718/10 & con.cases     -: 32 :-

 authorities.        The  confidence     that  the  public

 repose on the PSC would only be augmented by the

 disclosure of information. We do not find any

 reason     why       the  PSC      could  say  that   the

 confidentiality in re it and the public at large

 would,     in     any   manner,     be  affected by   the

 disclosure        of    information     in  relation   to

 examinations          and   materials     in   connection

 therewith. This argument also therefore fails.

19.Barring the eligibility of any candidate who

 would be eligible to notice and hearing prior to

 the disclosure of any third party information in

 terms of the RTI Act, we do not find any legal

 infirmity in TREESA. Except to that extent, the

 contrary view in UNICAL does not lay down the

 correct position of law. It is so declared.

20.An incidental issue also needs to be addressed.

 In exercise of authority             under the   relevant

 constitutional and statutory provisions, the PSC

 has laid down for         itself,      rules  relating to

 destruction of its records. Having regard to the

WPC33718/10 & con.cases    -: 33 :-

 existence of the power to make such rules            and

 because those rules cannot be treated as contrary

 to the provisions of the RTI Act and the objects

 sought to be achieved thereby, the PSC cannot be

 compelled to disclose information which it would

 have destroyed in accordance with the provisions

 of the rules enabling destruction of records.

 Therefore, there cannot also be any penalty for

 nondisclosure         of information      relating    to

 destroyed       records,     provided   they  have been

 destroyed in accordance            with    the     rules

 providing      and enabling destruction of records by


21.One of the issues that arise for consideration

 is the plea of the PSC that it having made rules

 for issuance of         copies     and  dissemination of

 information to candidates; it ought not to be

 compelled to issue such information, also under

 the provisions of the RTI Act.            This argument

 appears to be quite appealing           because   public

 institutions like PSC meet their expenses from

 public funds. Necessarily,            it  has to be the

WPC33718/10 & con.cases    -: 34 :-

 endeavour       of    all   concerned to    ensure that

 expenditure from such funds is confined to actual

 requirements.         At the same time, the mode and

 provision for access to information under the

 provisions of the rules made by the PSC, as also,

 the cost factor,         if any,     involved,  may  be

 relevant considerations to ultimately conclude as

 to whether there could be any exclusion of access

 to such information under the provisions of the

 RTI Act and the rules framed thereunder, on the

 premise       that      alternate,     efficacious  and

 cost-friendly modes of access to information are

 otherwise provided for by the statutory rules and

 other provisions that govern the working of the

 public authority from which, information could be

 sought under the RTI Act. But, as the law now

 stands,       there is no scope for any judicial

 recognition of         such    a   plea and a favourable

 decision on that issue through a judicial order.

 This is because Section 22           of   the  RTI  Act

 provides that the provisions of that Act shall

 have effect notwithstanding anything inconsistent

 therewith contained in the Official Secrets Act,

WPC33718/10 & con.cases    -: 35 :-

 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 that Act. Such

 statutory provision          having been made by the

 legislature, within its competence, it cannot be

 watered down or modified except by recourse to

 legislative procedures. We therefore do not find

 way to accept the contention of the PSC in this


22.Another plea of PSC is nothing but a managerial

 issue.     It is      pointed out that the PSC has to

 incur the         huge expenses     and administrative

 difficulties, including the deployment of staff

 exclusively to deal with such requests and this

 would result in undue hardship and clogging of

 its administrative setup. Once a piece of law is

 in place, inconvenience is no excuse to exclude

 adherence to it. The bounden has to obey and

 abide by it.           This plea of PSC also does not

 commend acceptance.

WPC33718/10 & con.cases    -: 36 :-

 In the result, the decisions impugned by the PSC

 are upheld except to the extent they relate to

 information destroyed in terms of the provisions

 of the rules enabling destruction of records by

 PSC. The impugned orders and the orders sought to

 be enforced, through a couple of writ petitions

 by persons who have sought information, would

 stand regulated by what is stated herein. Further

 enforcement        of  those      orders,  including   by

 invoking the penal provisions shall be only in

 strict conformity with what is stated herein. In

 view       of     the  fact      that  the  question  of

 applicability of the RTI Act to PSC was being

 considered in this bunch            of  matters,   orders

 imposing penalty, if any, are set aside and the

 PSC will have the statutory time, to comply with

 the directions of the SIC, running from today.

 The writ petitions are ordered accordingly. No


                             Thottathil B.Radhakrishnan,

 Sha/0303                                 Judge.
                  -true copy-

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