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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..

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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

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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

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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

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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

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(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

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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

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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

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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

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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

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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

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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

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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.

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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 self-

government 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.

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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,

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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,

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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

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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

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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

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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

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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

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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.

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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

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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

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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)

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Chief Information Commissioner Information Commissioner

(M.M. Ansari) (O.K. Kejariwal) Information Commissioner Information Commissioner

(Sri A. N Tiwari)

Information Commissioner