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TMI Blog2010 (8) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... her only after she filed O.A. No. 741/2005 before the Central Administrative Tribunal, Ernakulam Bench. From Ext. PI mark list, the petitioner learnt that she failed to obtain minimum marks in one of the three papers, she having scored only 37 marks for that paper. She scored 45 and 70 marks for papers I and II respectively. She therefore submitted Ext. P2 application before the 1st respondent Central Public Information Officer of the Kerala Postal Circle, under Section 6 of the Right to Information Act, for a copy of the evaluated answer paper of paper III of the examination, in which she was shown as failed. She remitted the required fee for the same. By Ext. P3 dated 8-11-2005, the 1st respondent rejected her request, on the ground that no public interest is involved in the case. The petitioner filed Ext. P4 appeal before the 2nd respondent-Appellate Authority under the Right to Information Act, which was rejected by Ext. P5 order dated 30-11-2005, holding that disclosure of such nature will compromise the fairness and impartiality of the selection process and such disclosure does not justify the larger public interest. The petitioner filed Ext. P6 second appeal before the 3rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 8(1)(j) of the Act. 5. A reply affidavit has been filed by the petitioner to refute the contentions in the counter affidavit, in which the propriety of the 3rd respondent, an independent statutory authority, being represented by the 1st respondent and filing of a common counter affidavit along with the other respondents, has been questioned by the petitioner. 6. I have heard counsel on both sides. The Standing Counsel for the Public Service Commission, who incidentally appeared before me for admission of a writ petition on the same day when this case was argued, in which the same question was in issue, on being informed about the hearing of this case, submitted that a decision in this writ petition would affect the Public Service Commission, since similar requests for copies of answer papers of tests conducted by the PSC have been rejected by the PSC, in respect of which writ petitions are also pending and therefore, he also may be allowed to advance arguments on the question of law involved. The Standing Counsel for the State Information Commission appearing in that case against the Public Service Commission, has stated that the State Commission has taken a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claimed for transactions which can, at any rate, have no repercussion on public security, see New York Times Co. v. United States (1971) 29 Law Ed. 822 = 403 U.S. 713. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self interest or bureaucratic routine. The responsibility of officials to explain and justify their acts is the chief safeguard against oppression and corruption." In the case of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87 (para 65), the Supreme Court again emphasised the need of openness in the government in the following words : "65. The demand for openness in the government is based principally on two reasons. It is now widely accepted that democracy does not consist merely in people exercising their franchise once in five years to choose their rulers and once the vote is cast, then retiring in passivity and not taking any interest in the government. Today it is common ground that democracy has a more positive content and its orchestration has to be continuous and pervasive. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exceptions have to be construed strictly to the letter. 9. Since the respondents seek to justify refusal of the information requested for by the petitioner, claiming exemption under Section 8(1)(e) and 8(1)(j), I shall extract those provisions for easy reference : 8. Exemption from disclosure of information. - (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, - (a) xx xx xx xx xx xx xx (b) xx xx xx xx xx xx xx (c) xx xx xx xx xx xx xx (d) xx xx xx xx xx xx xx (e) 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; (f) xx xx xx xx xx xx xx (g) xx xx xx xx xx xx xx (h) xx & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a lawyer and a client or a stockbroker and a customer. 12. The Corpus Juris Secundum gives the following meaning for the expression, which is stated to be based on various decisions on the subject : "The term "fiduciary relation" has reference to any relationship of blood, business, friendship, or association in which the parties repose special trust and confidence in each other and are in a position to have and exercise, influence over each other, and implies a condition of superiority of one of the parties over the other; but in relation with undue influence, it does not necessarily imply acts which the law deems fraudulent. ...................................................................................................................................................................................................... When it exists. What constitutes a fiduciary relationship is often a subject of controversy. The relationship may exist under a great variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1869 ..............; so, of the debt due from an executor who is indebted to his testators estate which he is able to pay but will not............; so...of moneys in the hands of a of a receiver............., or agent.........., or manager.........., or moneys due on an account from the London agent of a country solicitor................, or proceeds of sale in the hands of an auctioneer..............., or moneys in the compromise of an action have been ordered to be held on certain trusts..............of partnership moneys received by a partner.............[Note. The period to be looked to is that of the act done..............] Wharton's Law Lexicon refers to the expression "fiduciary" and explains the same in the following words : "One who holds anything in trust. See Trust" In Bouvier's Law Dictionary, "fiduciary relationship" is defined in the following words : "What constitutes fiduciary relation is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor or administrator, director of a corporation or society...... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars about whether, and who made such declaration, cannot be disclosed - as it would entail breach of a fiduciary duty by the CJI. He relies on Section 8(1)(e) to submit that a public authority is under no obligation to furnish "information available to a person in his fiduciary relationship". He argues that the voluntary information given by the judges is not information in the public domain. He emphasises that the resolution crucially states : "The declaration made by the judges or the Chief Justice, as the case may be, shall be confidential". 96. On the other hand, Mr. Prashant Bhushan argues that a fiduciary relationship is one that is based on trust and good faith, rather than on any legal obligation. The purpose for disclosing a statement of assets to the CJI is to foster transparency within the judiciary and is essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice. Where the judges of the Supreme Court act in their official capacity in compliance with a formal Resolution, it cannot be said that the CJI acts as a fiduciary of the judges and that he must, therefore, act in the interests of the judges and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other persons bound in fiduciary capacity. Kinds of persons bound by fiduciary character are enumerated in Mr. M. Gandhi's book on "Equity, Trusts and Specific Relief" (2nd ed., Eastern Book Company) "(1) Trustee, (2) Director of a company, (3) Partner, (4) Agent, (5) Executor, (6) Legal Adviser, (7) Manager of a joint family, (8) Parent and child, (9) Religious, medical and other advisers, (10) Guardian and ward, (11) Licensees appointed on remuneration to purchase stocks on behalf of government, (12) Confidential transactions wherein confidence is reposed, and which are indicated by (a) Undue influence (b) control over property, (c) Cases of unjust enrichment, (d) Confidential information, (e) Commitment of job, (13) Tenant for life, (14) Co-owner, (15) Mortgagee, (16) Other qualified owners of property, (17) De facto guardian, (18) Receiver, (19) & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts, such a relationship exists between a public authority and an examiner engaged for the purpose of evaluating the answer papers of an examination conducted by that public authority. If such a relationship exists in that transaction, as to who, among the three entities involved viz. the public authority, the examiner and the candidate, is the fiduciary, and who is the beneficiary itself is not ascertainable with any amount of certainty. Before valuation it is the examiner, who is the dominant party, being in a position to exercise some discretion or power in the sense that he is the person to award marks to the candidate at his discretion and is in a position to influence the public authority in the matter of deciding as to who the public authority should select for appointment or declare as having passed the examination. Here the examiner is not requested to supply any information and therefore the question of his obligation as a fiduciary does not require to be considered. After evaluation, return of the valued answer papers to the public authority and publication of the results of the examination, neither of them is in a position to exercise any discretion or power on the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced by the CBSE has not impressed us. Fiduciary relationship is not to be equated with privacy and confidentiality. It is one where a party stands in a relationship of trust to another party and is generally obliged to protect the interest of the other party. While entrusting the examiner with the work of assessment/evaluation of an answer script there is no agreement between the examiner and the public authority that the work performed by the examiner shall be kept close to the chest of the public authority and shall be immune from scrutiny/inspection by anyone. At least something in this respect has been placed (sic before) us. Since the RTI Act has been enacted to promote transparency and accountability in the working of every public authority and for containing corruption, even if there be such a clause in the agreement between the examiner and the public authority the same would be contrary to public (sic interest) and void. We have no hesitation to hold that even of 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second respondent relates to personal information pertaining to the employees of the Bank, disclosure of which has no relationship with any public activity or interest of the Bank or its employees and it would cause unwarranted invasion of the privacy of the employees, details of whose transfers are requested for by the 2nd respondent. I am of opinion that if this contention on the basis of S. 8(1)(j) is accepted, it would in fact run counter to the very object of the Right to Information Act itself. In this connection I may extract the preamble to the Right to Information Act. xx xx xx xx xx xx xx xx xx In fact, if that contention is accepted, then information relating to any person in respect of his illegal activities, especially corruption or misconduct could be withheld on the basis of the said section which is not what is contemplated by the Right to Information Act. I am of opinion that the information mentioned in S. 8(1)(j) is personal information which are so intimately private in nature that the disclosure of the same would not benefit any other person, but would result in the invasion of the privacy of that person. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation of the answer paper has been done correctly and properly, has relationship to a public activity or interest. In this connection I may quote with approval certain paragraphs of the decision of the Division Bench of the Calcutta High Court in Pritam Rooj's case (supra) on this point. "57. Quite apart, there is no merit in the submission that giving the examinees access to their answer paper would not serve any public interest. Disclosure of assessed/evaluated answer scripts would definitely be conducive to improvement of quality of assessment/evaluation. Examiners appointed by the WBBSE or the University are not their employees. They are beyond the disciplinary control of the public authorities. If there be any incident warranting penal action, it is open to the public authority not to engage the errant examiner again, but their accountability to the respective public body in case of improper or unfair or negligent marking or provision for disciplining them has not been shown. The examiners while assessing scripts are in the position of Judges of the merits of the answers written. There is however limited scope for judging their performance. Without demeaning the examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 : AIR SCW 4609; Arunima Barua v. Union of India & ors. would be entirely frustrated. For the reasons aforesaid, there is no reason as to why the provisions of the RTI Act should not be interpreted in a manner which would lean towards dissemination of information rather than withholding the same so as to provide scope to the examinees to place materials before the Court in support of allegations made in their petitions to avoid in limine dismissal." Further, it may be noted that some of the Universities in Kerala have themselves adopted the practice of supplying copies of answer papers to candidates who request for the same. The same would also go to show that at least those Universities have accepted the fact that there is no fiduciary relationship between the University and the examiner to prevent supply of copies of the answer papers to candidates and conduct of examinations and valuation of answer papers are public activities. 22. Here, it is to be noted that Section 8 is qualified by a proviso which reads as follows : "............provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person." I am o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Sheth and Others, (1984) 4 SCC 27, President, Board of Secondary Education, Orissa and Another v. D. Suvankar and another (2007) 1 SCC 603 and Secy. W.B. Council of Higher Secondary Education v. Ayandas and others (2007) 8 SCC 242, the Supreme Court has frowned upon the practice of Courts summoning answer scripts for re-evaluation and directing re-assessment and in view of that general law declared by the Supreme Court, the public authority cannot be compelled to issue copies of answer papers, which would violate that general law. I am of opinion that as explained in paragraph 64 of the decision of the Calcutta High Court in Pritam Rooj's case (supra), those decisions themselves are reasons for taking the view that in order to enable the candidates to place proof before the courts to show the illegality/irregularity in the valuation of the answer papers, supply of copies of the answer papers is essential, failing which they would not be able to drive home their contentions effectively, before the courts and the cases are likely to be dismissed on the ground of lack of sufficient material to prove their cases. Further, in those decisions, the right of a candidate to get copies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tricted by any concern for the immediate hardship and inconvenience. The umbra of exemptions must be kept confined to the specific provisions in that regard and no penumbra of a further body of exceptions may be conjured up by any strained device of construction. In a constitutional democracy, every limb and digit of governance is ultimately answerable to the governed." 25. The Standing Counsel for the Public Service Commission also raises a contention that if all the candidates apply for copies of answer papers, it would disproportionately divert the resources of the public authority and therefore disclosure of the same is exempt under Section 7(9) of the Act. I am of the opinion that the said contention is misconceived. That Section reads thus : "7. Disposal of request ........................................................................................ ........................................................................................ (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest, the authority will have to depute additional manpower to collect and supply the information etc. are not reasons available to the public authority to deny information to a citizen who applies for the same. The public authority can only insist on reasonable fees for supply of the information as per rules prescribed for the same. As such, the flood gate theory sought to be pressed into service by the Standing Counsel for the Public Service Commission is not a defence against supply of information under the Right to Information Act. 26. Even otherwise it is idle for a public authority to assume that if answer papers are held to be information which the authority is liable to disclose, all the candidates who have written the examination would apply for copies of answer papers and it would be difficult to supply the information to all. Only those candidates dissatisfied with the results would apply for copies of the answer papers, which would be a small fraction of the total number, if the valuation is fair and proper and if the valuation is largely unfair and improper, then it is in public interest that the truth should come out, whatever be the difficulties. Therefore unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. That judgment does not examine the issue in the perspective in which I have done. Further as I have held, it is in the larger public interest to disclose the information in order to ensure proper valuation of answer papers by the examiners as has been realised by the Universities by adopting the practice of issuing copies of answer papers to those who applies for the same. Therefore the said judgment can be held to be rendered per incurium since the same is contrary to the legal principles involved as elucidated above and the learned judge was ill-informed about the law applicable. The other two writ petitions were for direction to the PSC to produce the answer papers of the petitioners and to get the answer papers valued by an expert and in those decisions it was not necessary to decide the question as to whether the PSC was bound to supply the copies of the answer scripts on request. In that judgment also there is no discussion on the legal issues involved and there is only a passing reference to the earlier judgment. Those decisions can be held to be authority for what they actually decided. As such I am not satisfied that those decisions are precedents which I should either ..... X X X X Extracts X X X X X X X X Extracts X X X X
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