Appellant sought his OMR answer-sheet - PIO: it is highly confidential document and disclosure would harm the competitive position - CIC: answer sheets are disclosable to the candidates themselves, portions containing names of examiners may be severed
Relevant facts of the matter:
The appellant filed an application with the CPIO under the Right to Information Act, 2005 and requested to supply a certified copy of list of the selected candidates and marks obtained by the appellant. In reply, the authorities gave requisite information to the appellant and it was informed that the answer-sheet of the appellant could not be evaluated as he has not bubbled his roll number in the answer-sheet. The appellant then requested vide RTI application dated 30/03/2010 for supply of copy of his OMR answer-sheet. The FAA vide order dated 08/06/2006 denied the above request on the ground that the same is highly confidential document and disclosure of which would harm the competitive position. Being dissatisfied with the above, the appellant came to the Information Commission in a Second Appeal under Section 19(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. of the RTI Act. When the reliefs claimed by the appellant were denied, he filed W.P.(C) No. 6558/2010. The said writ petition was disposed of by the High Court vide order dated 18/11/2010 with a direction to respondent authorities to examine the case of the appellant and pass appropriate order in accordance with law. On receipt of the copy of the above order, the Information Commission decided the appeal of the appellant and vide its order dated 12/11/2010 denied the disclosure of copy of OMR answer-sheet to the appellant relying on full bench decision of Central Information Commission in Complaint case no. CIC/WB/C/2006/00223. Thereafter, the appellant filed another writ petition i.e. W.P.(C) No. 2239/2011 with the High Court of Chhatisgarh and challenged the validity of the said order passed by the Central Information Commission, New Delhi on 12/11/2010 and prayed for supply of his OMR answersheet. The Writ Court held that the order dated 12/11/2010, passed by the Central Information Commission, was based on the full bench decision referred to above and there was no irregularity or illegality in the said order. The writ Court, therefore, vide its order dated 03/05/2011 dismissed the writ petition.
Facts leading to this hearing:
The appellant filed a Writ Appeal no. 348/2011 before the Division Bench of High Court of Chhatisgarh against the order dated 03/05/2011 of the Writ Court. During the hearing of Writ Appeal the counsel of appellant mentioned the judgment pronounced by the Supreme Court in Central Board of Secondary Education & Another v/s Aditya Bandopadhyay & others (2011)8SCC497. The Division Bench allowed the Writ Appeal and set aside the Commission’s order dated 12/11/2010 and also the order passed by the Writ Court and remitted the matter to the Commission to decide afresh in light of the above decision rendered by the Supreme Court in accordance with the law.
Relevant Facts emerging during Hearing held on 08/10/2013:
The following were present Appellant: Mr. S.K. Pawar Respondent: Absent The appellant stated that the issue of access to the evaluated answer sheet(s) of an examinee to him has been settled by the Hon’ble Supreme Court in the matter of CBSE & Anr. Vs Aditya Bandopadhayay and Others (2011)8SCC497 and accordingly copy of his OMR sheet should be provided. The CPIO is not present for making his submissions.
Interim Decision notice dated 08/10/2013:
The Commission has noted that none appeared on behalf of the respondents. As the CPIO is not available, it is decided to give him one more opportunity for attending the hearing. The matter is adjourned for 26/11/2013 at 03.00 PM with a direction that the FAA/Chairman, Railway Recruitment Board, Allahabad should ensure that the CPIO appears before the Commission in person along with his written submissions, if any, in the matter at the next hearing without fail.
Relevant Facts emerging during Hearing on 26/11/2013:
The following were present
Appellant: Mr. S.K. Pawar through VC
Respondent: Mr. Sanjeev Mathur FAA Shri Sanjeev Mathur, FAA, who appeared before the Commission contended that the OMR sheet of candidates are treated as confidential documents and have not been disclosed by them any time in the past. The appellant reiterated his earlier stand stating that access to evaluated answer sheet(s) of an examinee to him/her has been allowed by the Hon’ble Supreme Court in the matter of CBSE & Anr. Vs Aditya Bandopadhayay and Others (2011) 8SCC497 and accordingly copy of his OMR sheet cannot be withheld.
Decision Notice: It is seen that a Division Bench of the Calcutta High Court while dealing with a similar issue (viz. allowing inspection of the answer scripts to an examinee) vide decision dated 05/02/2009 in the matter of Aditya Bandopadhyay vs. CBSE & Ors (W.P. No. 18189 (W) of 2008) has held as under: “We, however, consider the CIC to be perfectly justified in recommending to the examining bodies furnishing of assessed/evaluated answer scripts to the examinees upon publication of results so as to obviate any apprehension in their minds of unfair or arbitrary marking of the answers written by them. We hope and trust that the day is not far away when the WBBSE, the CBSE and the University shall accept such recommendation. On a wholesome appreciation of the submissions advanced on behalf of the public authorities, there appears to be a frantic attempt on their part to shield the examiners. But should errant examiners be protected? The CBSE has even cited clause (e) of Section 8(1) as a ground for not allowing inspection of an answer script to any examinee…………… The plea of fiduciary relationship, advanced by the CBSE has not impressed us. Fiduciary relationship is not to be equated with privacy and confidentiality………………………. ………….We have no hesitation to hold that even if there be any agreement between the public authority and the examiner that the assessment/evaluation made by the latter would be withheld on the ground that it is confidential and an assurance is given in this respect, the same cannot be used as a shield to counter a request from an examinee to have access to his assessed/evaluated answer scripts and the RTI Act would obviously override such assurance. Having regard to our understanding of the meaning of the word 'fiduciary', there is little scope to hold that the etchings/markings made on answer scripts by an examiner are held in trust by the public authority immune from disclosure under the RTI Act. We find no force in the contention which, accordingly, stands overruled.” The Supreme Court in Civil Appeal No. 6454 of 2011 vide order dated 09/08/2011 while affirming the abovesaid order has held as under: 27. We, therefore, hold that an examining body does not hold the evaluated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; is not available to the examining bodies with reference to evaluated answer-books. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.” In the light of the dicta aforesaid of the Supreme Court and which if applicable to the facts of the present case is binding on this Commission and we are not required to look into any other aspect of the matter or otherwise of the reasoning given by the respondent. Moreover, it is seen that this Commission has been consistently following the ratio of the above Apex Court decision while deciding subsequent matters (viz. (i) case no. CIC/SS/A/2011/000867 titled Shri A Prakash vs. Department of Revenue & Disaster Page 3 of 4 Management, Puducherry dated 07/09/2011; (ii) case no. CIC/DS/A/2011/904400/RM Shri Sreejith K.K, Andhra Pradesh vs. UGC, National Educational Testing Bureau, New Delhi dated 18/02/2013; (iii) decision dated 13/09/2013 in Mr. Jawahar Singh vs. CPIO & Asstt. Director General (DE), Department of Posts, New Delhi case no. CIC/BS/A/2012/001136 & (iv) decision dated 01/11/2013 in Ms. Geeta Rani Panda, Sambalpur vs. Navodaya Vidyalaya Samiti, Noida being case no. CIC/RM/A/2013/000643) and has been allowing the disclosure of OMR/answer sheet(s) to the candidates themselves who have sought such information from the examining bodies/public authority. In view of the foregoing the PIO is directed to supply copy of the OMR answer-sheet(s) of the appellant to him within 15 days from the date of receipt of this order. However, those portions of the OMR answer sheet(s) which contain information regarding the examiners/ coordinators/ scrutinizers/head examiners or which may disclose their identity with reference to the signature or initials, may be removed, covered, or otherwise severed. The appeal is disposed of accordingly.
Citation: S.K. Pawar v. Railway Recruitment Board in File No. CIC/AD/A/2010/001326/BS/4005