TMI Blog2010 (8) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... law posed in this writ petition is as to whether valued answer sheets of an examination returned to a public authority by the examiner entrusted with the task of valuation, is information exempted from disclosure under any of the provisions of the Right to Information Act, 2005 after the results of the examination are published. The question arises in the following set of facts : 2. The petitioner is a postman who appeared for the written examination for selection to the post of last grade officials in the Kerala Circle of the Postal Department of the Government of India on 24-4-2005. When results were published, the petitioner was informed that no one qualified in the examination from the Ernakulam Division. The petitioner applied for her mark list for the examination, which was supplied to 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 responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of that contention. According to the petitioner, since the evaluation of the answer papers is for selecting the best among the candidates appearing in the examination, the same is a public activity and the information sought for is not a personal information coming within the purview of Section 8(1)(j). It is further contended that absence of public interest simpliciter is not a ground for rejection of request for information under Sections 8 and 9 of the Act. 4. A common counter affidavit has been filed by the 1st respondent on behalf of all the respondents and the Assistant Solicitor General appears for all the respondents also. The same seeks to support the impugned orders under Sections 8(1)(e) and 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajasthan v. Raj Narain, AIR 1975 SC 865. The renowned judge Justice K.K. Mathew had, in his inimitable style, eloquently stated the law on the subject thus, in paragraph 74 thereof : In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public Act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the freedom of speech, though not Absolute, is a factor which should make one wary, when secrecy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces and the preservation of confidentiality of sensitive information; And Whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal; Now, Therefore, it is expedient to provide for furnishing certain information to citizens who desire to have it. Section 3 of the Act lays down that Subject to the provisions of this Act, all citizens shall have the right to information. Of course, the Act recognises certain exceptions on sound principles, commensurate with the declaration in the preamble itself. Those are contained in Sections 8 and 9 of the Act. But since supply of information to those who desire to have it is the rule, these 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a duty to act for or give advice on matters falling within the scope of the relationship, or (4) when there is a relationship that has traditionally been recognised as involving fiduciary duties, as with 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grant, holds it in a fiduciary capacity within Debtor 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 Medical or religious adviser, .husband and wife an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 not make such information public. According to him, unless the information sought can be excluded on the basis of one of the exemptions under Section 8 of the Act, the same cannot be denied merely on the classification of a document or on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Insurance Company, (20) Trustee de son tort, (21) Co-heir, (22) Benamidar. 102. The CJI cannot be a fiduciary vis-a-vis judges of the Supreme Court. The judges of the Supreme Court hold independent office. And there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. The declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition 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 other, except perhaps to keep the identity of the examiner confidential, which the public authority is free to do and in supplying copy of the answer paper that confidence is not breached. Except in the matter of disclosure of identity of the examiner, the public authority cannot unilaterally exercise any power or discretion so as to affect the examiner s legal or practical interests. The examiner is not peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power, except in the matter of disclosure of his identity. The public authority is also not obliged to protect any other interest of the examiner except his identity. The etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted 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 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 such contention which, accordingly, stands overruled. I am in respectful agreement with the conclusion reached by the Calcutta High Court in the above decision. 19. Therefore, I am of opinion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating 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. In the present case, without the information requested for the 2nd respondent would not be in a position to effectively pursue his claim for transfer in preference to others. On the other hand, the disclosure of such information would not cause unwarranted invasion of privacy of the other employees in any manner insofar as that information is not one which those employees can keep to themselves. If the 2nd respondent is to contest that the transfers made are in violation of his rights for preferential transfer, he necessarily should have the information which cannot be withheld from him by resort to S. 8(1)(j). More importantly, the proviso to the section qualifies the section by stating that information which cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 examiners at all, it may be observed that if the examiners action is made the subject of public scrutiny it might ensure assessments that are fairer, more reasonable and absolutely free from arbitrariness and defects. Every person discharging public functions must be accountable to the people and there is no reason as to why the examiners who also discharge public duty should not be accountable. This would indeed be a big step towards making all concerned associated with the examination process accountable to the examinees as well as the public authority. 58. There is another significant aspect which needs to be noted. As soon as information becomes accessible an informed decision could be made by a potential litigant, initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the opinion that this proviso adds to the rigour against the right to claim exemption and in fact takes the sheen out of the main Section, making it all the more difficult for the public authority to claim exemption from disclosure of information under any of the provisions of the main section. It does not require much racking of the brains to conclude that if a question is raised in the Parliament or the State Legislature regarding any irregularity or corruption in the valuation of the answer papers in this case, then certainly the answer papers cannot be denied to the Parliament and the State Legislature and therefore the respondents cannot deny the information to the petitioner as well, claiming exemption under Section 8(1)(j). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of answer papers under the Right to Information Act was not an issue at all. In fact all the three cases had its origin in 2004 and before i.e. prior to the enactment of the Right to Information Act, in 2005. Even otherwise, in view of Section 22 of the Act, the law on the point in issue in those decisions cannot affect the right under the Right to Information Act. Section 22 reads thus : 22. Act to have overriding effect. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923) and any other law for the time being in force or in any instrument having the effect by virtue of any law other than this Act. If even the Official Secrets Act cannot o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 record in question. That Section does not even confer any discretion on a public authority to withhold information, let alone any exemption from disclosure. It only gives discretion to the public authority to provide the information in a form other than the form in which the information is sought for, if the form in which it is sought for would disproportionately divert the resources of the public authority. In fact there is no provision in the Act to deny information on the ground that the supply of the information would disproportionately divert the resources of the public authority. Section 4 of the Act makes it compulsory on the part of a public authority to comply with the obligations prescribed therein including the obligation under sub section (1)(a), to maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied 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 unless the public authority has something to hide, they should not worry about those difficulties, which in any event are not likely to occur in the normal course. Therefore I do not find any merit in the contention of the learned Standing counsel for the PSC on that aspect also. 27. Next, the counsel points out that another learned single judge of this court has held in W.P. (C) No. 9445 of 2009 that there is a fiduciary relationship between a University and the examiner engaged by them for valuation of answer papers of students and the same has been followed by another learned single judge in a common judgment in W.P. (C) Nos. 33443/2007 6836/2009. I have gone through those decisions. First of all as I have already stated, Universities in Kerala have themselves started supplying copies of answer papers to candidates on request. Further, the finding in W.P. (C) No. 9445 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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