Allow Inspection of Answer Sheets to Examinee Under RTI Act: CIC to Delhi University

Mr. Mohit Kumar Gupta Vs CPIO, University of Delhi (Central Information Commission)

Central Information Commission instructs University of Delhi to allow inspection of his own answer sheet to the Appellant Mr. Mohit Kumar Gupta as sought in the RTI application within a period of 15 days from the date of receipt of this order.

FULL TEXT OF THE CENTRAL INFORMATION COMMISSION ORDER IS AS FOLLOWS:-

FACTS:

The Appellant vide his RTI application sought information on 05 points regarding Gender Champions nominated or appointed by the University of Delhi in compliance of letter dated 03.08.2016 sent by Secretary, UGC to Vice Chancellor, Delhi University and UGC (Promotion in Equity in Higher Education Institutions) Regulations, 2012, , answer scripts for his Semester IV Examinations of L.L.B, name of the Ombudsman appointed or nominated by JNU in accordance with the UGC (Grievance Redressal Regulations, 2012) and issues related thereto.

The Section Officer, vide its letter dated 01.09.2016 provided a point-wise response to the Appellant. Dissatisfied by the response, the Appellant approached the FAA. The FAA vide its order dated 29.05.20 17 while upholding the reply of the CPIO stated that the Appellant could obtain his evaluated answer script by contacting the Asst. Controller of Examination in case it was available as per the record retention schedule on payment of requisite fees.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Mohit Kumar Gupta alongwith Ms. Shashi (Adv.) and Mr. Narvinder Thakran;

Respondent: Mrs. Meenakshi Sahay, Dy. Registrar /CPIO; Mr. Yogesh, Jr. Assistant; and Mr. Hem Chand Pandey, AR(Exam);

The Appellant reiterated the contents of his RTI application and stated that complete and satisfactory information had not been received by him. He contested the response of the CPIO/FAA and questioned the manner in which the replies had been furnished avoiding the relevant issues raised by him. He specifically highlighted the provision 2(f) and 2(j) of the RTI Act, 2005 and on issue no. 05 objected to the decision of the CPIO to emphasize on the procedure involved in providing photocopy of the evaluated answer sheet to the students. It was categorically stated that he was aware of the matter pending adjudication before Hon’ble Supreme Court in the case of ICSI Vs. Paras Jain; SLP (C) No. 12692/2014 with regard to the fee imposed for seeking a copy of the evaluated answer sheets. Nonetheless, he made a fine distinction between inspection and receiving a certified copy of his evaluated answer sheet. While the former was stated to be his fundamental right in the light of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP(C) No. 7526/2009 and that he should have been permitted to inspect his answer sheet, he agreed to await the decision of the Court in the latter case. In its response the Respondent referred to the decisions of the CIC in several similar matters as stated below:-

In its written submission submitted during the hearing the Respondent also stated as under:

“Besides one of the CIC decision, in University of Delhi Vs. Abner Ingty numbered CIC/ SA/ C/20 15/901116 dated 15.01.2016, wherein the process of the University was turned down, was challenged by the University in Hon’ble Court. The High Court has set aside the decision with the observation “the decision of the CIC cannot be sustained. The same is set aside and the matter is remanded to the CIC to consider afresh after the decision is rendered by the Supreme Court in the case of Paras Jain (supra)” in W.P. (C) 1873/2016 & CM Nos. 8014/2016, 25545/2016 & 25546/2016 dated 10.08.2017.”

In addition it was informed that a suitable reply had been given by the CPIO on 19.09.2016 wherein inter-alia the web address of the University was intimated to the Appellant.

The Commission observed that essentially the issue required to be decided in the present instance was whether inspection of answer scripts could be allowed to the Appellant in his own case. During the hearing, the Respondent in support of their contention referred to the decision of the Hon’ble High Court of Delhi in the matter of University of Delhi vs. Abner Ignity W.P. (C) 1873/2016 dated 10.08.2017 and the matter of ICSI Vs. Paras Jain; SLP (C) No. 12692/20 14 which was pending adjudication before the Hon’ble Supreme Court. The Respondent also apprehended that allowing inspection of files would render their own mechanism of providing certified copy of answer scripts as per the fee prescribed in their regulations as meaningless since the candidates would certainly opt for inspection of records as per the provisions of the RTI Act, 2005/ RTI Rules, 2012. Furthermore, it was also apprehended that allowing inspection of records would make the process cumbersome since they would be required to maintain two separate mechanism i.e., one for providing hard copy as per their own regulation and another for inspection of answer sheet as per the RTI Act, 2005 and that the candidates could misuse the inspection process to take digital images of their answer scripts. On being queried by the Commission, on whether the issue regarding providing inspection of answer sheet under RTI Act, 2005 was also pending adjudication before the Hon’ble Courts, the Respondent feigned ignorance and re-iterated that providing inspection of answer sheet would render their existing mechanism of providing hard copies as per their existing guidelines redundant.

The Commission at the outset referred to the definition of right to information u/s Section 2(j) of the RTI Act, 2005 which is reproduced below:

“ (j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to

(i) Inspection of work, documents, records”

The Commission observed that the Hon’ble Supreme Court in the matter of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP(C) NO. 7526/2009 observed that every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof unless the same was exempted under Section 8 (1) (e) of the RTI Act, 2005. The relevant observation made in the judgement are as under:

“11. The definition of ‘information’ in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term ‘record’ is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the ‘opinion’ of the examiner. Therefore the evaluated answer-book is also an ‘information’ under the RTI Act.”

It was furthermore stated in para 14 of the above mentioned judgement

“The examining bodies contend that the evaluated answer-books are exempted from disclosure under section 8(1)(e) of the RTI Act, as they are ‘information’ held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub section (1) of section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under section 8(1)(e) of the RTI Act.”

The aforesaid decision of the Hon’ble Supreme Court of India CBSE and Anr. V. Aditya Band opad hyay was further relied in the judgment pronounced on 16.08.2016 by the Hon’ble Supreme Court of India in Kumar Shanu and Anr. V. CBSE in I.A. No. 01/2016 in Contempt Petition No. 9837/2016 Civil Appeal NO.6454/2011.

Moreover, the Hon’ble High Court of Delhi in the matter of SBI vs. Mohd. Sahjahan LPA 714/2010 dated 09.05.2017 had held as under:

11. In the case in hand, the examiner has returned the answer books to the SBI after completion of the examination. In the light of the principles laid down in Central Board of Secondary Education v Aditya Bandopadhyay the examining body (the SBI in this case) does not hold the evaluated answer sheets (in the written exam) or the assessment sheet of the interview in a fiduciary relationship, qua the examiner/member of the interview board.

The issue pending adjudication before the Hon’ble Supreme Court of India in the matter of ICSI vs. Paras Jain SLP (No) 12692/2014 was essentially pertaining to payment of charges as prescribed under the Act or as per the rules framed by the concerned institution. The issue of allowing inspection of answer sheet without availing the copies of the same thereof is admittedly an entirely distinct matter. The provisions of Rule 4 of the RTI Rules, 2012 provide for stipulating the fee for furnishing information as per which different fee is levied for obtaining hard copy of a document/ record vis a vis’ the fee levied for seeking inspection of records. The relevant extract of the rules is mentioned as under:

“4. Fees for providing information.—Fee for providing information under sub-section (4) of Section 4 and sub-sections (I) and (5) of Section 7 of the Act shall be charged at the following rates, namely :—

(a) rupees two for each page in A-3 or smaller size paper;

(b) actual cost or price of a photocopy in large size paper;

(c) actual cost or price for samples or models;

(d) rupees fifty per diskette or floppy;

(e) price fixed for a publication or rupees two per page of photocopy for extracts from the publication;

(f) no fee for inspection of records for the first hour of inspection and a fee of rupees 5 for each subsequent hour or fraction thereof; and

(g) so much of postal charge involved in supply of information that exceeds fifty rupees.”

Moreover, the Commission felt that issue under consideration involved Larger Public Interest affecting the fate of all the students who wish to obtain information regarding their answer sheet/ marks obtained by them which would understandably have a bearing on their future career prospects which in turn would ostensibly affect their right to life and livelihood. Hence allowing inspection of their own answer sheet to the students ought to be allowed as per the provisions of the RTI Act, 2005. Moreover, contention of the Respondent that allowing inspection of answer sheet would cause hardship to the public authority in terms of maintaining two parallel systems for providing information, holds no merit in view of the fact that timely access to information is the essence of the provisions of the RTI Act, 2005 and denial of information on such grounds could prejudice a student’s future career prospects and right to his/ her livelihood.

The Constitution Bench of the Hon’ble Supreme Court of India in the landmark judgement of Olga Tellis and Ors. vs. Bombay Municipal Corporation 1985 SCR Supl. (2) 51 dated 10.07.1985 while recognising right to livelihood as being facet of the right to life enshrined under Article 21 held as under:

“Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have tobe in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.”

As regards providing timely response to the information seeker, the Commission referred to the decision of the Hon’ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:

“14 The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an “openness culture” among state agencies, and a wider section of “public authorities” whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy.”

As regards the apprehension of the Respondent regarding misuse of inspection offered to students by way of taking digital photographs/ images of their answer script, the Commission felt that the same could be dealt with by the Respondent Public Authority appropriately. Therefore, the information seeker should possess the right to inspect the documents as per the provisions of the RTI Act, 2005 as per the dicta of the Hon’ble Supreme Court in the judgement of CBSE and Anr. v. Aditya Bandopadhyay and Ors. SLP(C) NO. 7526/2009.

DECISION

Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to allow inspection of his own answer sheet to the Appellant as sought in the RTI application within a period of 15 days from the date of receipt of this order.

The Appeals stand disposed with the above direction.