TMI Blog2009 (2) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ned single Judge of this Court allowing W.P. No. 22176 (W) of 2007 is the subject-matter of challenge. The facts giving rise to the writ petition is that the petitioner, Pritam Rooj (hereafter Pritam) had taken the B.Sc. Part II (Three Year Honours) Examination, 2007 conducted by the University. Although Pritam was successful in clearing the examination, he was dissatisfied with the marks awarded to him in respect of Papers V and VI. He obtained 28 and 36 marks respectively out of a maximum 100. In terms of the regulations framed by the University, he applied for review of his answer scripts in respect of the aforesaid two papers. On revaluation, his marks in Paper V increased by 4 marks while there was no change in Paper VI. On or about 14-8-2007, he had made an application under the Right to Information Act, 2005 (hereafter the RTI Act) seeking inspection of his answer scripts. That application was turned down by the Registrar of the University, who is also its Public Information Officer in terms of the RTI Act, by a letter dated 17-9-2007 which reads as follows: In response to your above application I am to inform you that it has been decided that henceforth no inspection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ripts. By an order dated 26-7-2007, the Deputy Secretary (Examination) of the WBBSE being its Public Information Officer turned down the request. An appeal was preferred there against which was allowed on 7-9-2007 by the Appellate Authority being the Joint Secretary, School Education Department, Government of West Bengal. The Appellate Authority directed the Public Information Officer of the WBBSE to allow inspection of the scripts as applied for by the petitioner vide his application dated 22-6-2007 within 10 days of receipt of such order after realizing fees as per provisions of Rule 4 of the West Bengal Right to Information Rules, 2006. In the result, the order impugned dated 26-7-2007 was set aside. 5. The order of the Appellate Authority was not complied with by the WBBSE which resulted in filing of the writ petition claiming an order on the WBBSE to grant inspection of the answer scripts to the petitioner and to his son written by him in respect of English, Physical Science and History papers in compliance with the appellate order together with a direction for re-examination of such scripts. 6. The aforesaid order of the appellate authority dated 7-9-2007 is the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation' would have to be an information accessible under the RTI Act, and if such an information is accessible under the RTI Act, then only the incidental/explanatory/inclusive part of Section 2(j) would come into operation. According to him, right to information under the RTI Act is confined to public domain and answer scripts written by an examinee is relatable to private/personal information which is not guaranteed as incidental to the right of freedom of speech protected by Article 19(1)(a) of the Constitution. Article 19(2) of the Constitution empowers imposition of reasonable restrictions on the right conferred by Article 19(1)(a) by law and the WBBSE having framed regulations in terms of power conferred by the West Bengal Board of Secondary Education Act, 1963(here after the 1963 Act) having the force of law, which denies the examinees access to scripts by the examinees on construing answer scripts to be 'information' as defined in the RTI Act would offend Regulation 14(4) of the West Bengal Board of Secondary (Examination) Regulations, 2001 (hereafter the said Regulations). Since the said Regulations have not been subjected to challenge by any of the examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term 'information' under the RTI Act should be interpreted to mean information which can be widely published under Section 4(2) and could be disseminated under Section 4(3) of the RTI Act. 13. He further contended that legislative intent of a statute cannot be interpreted to lead to any absurdity and/or impracticability and hence having regard to the decisions of the Apex Court reported in AIR1986SC137 American Home Products Corporation v. Mac Laboratories Pvt. Ltd .; [1986]1SCR383 Girdhari Lal v. Balbir Nath Mathur and AIR2004SC2303 Lalit Mohan Pandey v. Puran Singh the RTI Act ought to be interpreted in a manner that the term 'information' defined therein does not include answer scripts of examinees taking a public examination within its ambit. He urged the Court to interpret the provisions of the RTI Act in a reasonable and rational manner to obviate any absurdity and/or impracticability arising out of working of the provisions of the RTI Act. 14. He strenuously urged the Court to hold that the definition of 'information', 'records' and 'right to information' appearing in Section 2(f), (i) and (j) respectively of the RTI Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of opening answer scripts of students to inspection which is; also not the object of the RTI Act. 17. He referred to the decision reported in [1985]1SCR29 Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth, etc . for the propositions that finality ought to be attached to the results of public examinations, that an examinee has no right to inspect his answer script, that principles of natural justice have no application in such cases and that any drawbacks in the policy incorporated in rules/regulations framed by examining bodies would not render the same ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one and not really intended to effectuate the purposes of the Act. He also relied on the decision reported in 2007 (1) SCC 603 President, Board of Secondary Education, Orissa v. D. Suvankar for the proposition that interference of Courts in academic matters is limited and it called for only if there be compelling circumstances or apparent infirmity In evaluation. 18. On the basis of the above submissions, he appealed to the Court to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TI Act, such point was not argued on its behalf which clearly shows that it is itself not sure under which specific provision access to answer scripts may be withheld. 21. He then referred to the decisions reported in AIR 1980 SC 515 Indian Express Newspapers (Bombay) Private Ltd. v. Union of India ; [1995]1SCR1036 Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal ; [2002] 3SCR696 Union of India v. Association for Democratic Reforms ; AIR2004SC1442 People's Union for Civil Liberties v. Union of India; AIR2003Delhi103 Ozair Husain v. Union of India; AIR2005Bom145 F.A. Picture International v. Central Board of Film Certification, Mumbai to drive home the point that Right to Information has always been considered an integral part of the right guaranteed under Article 19(1)(a) of the Constitution. 22. While praying for dismissal of the writ petition filed by the WBBSE, he prayed for relief as claimed in the writ petition filed by the concerned examinee's father. 23. Mr. Chatterjee, learned Counsel, representing Pritam contended that the RTI Act is meant to serve twofold purposes, viz. (i) effectuating the right t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhupesh Kumarsheth (supra) was sought to be distinguished by him by contending that the said decision was delivered while construing a particular regulation of the Maharashtra Secondary Education Board which expressly prohibited inspection of answer scripts by an examinee. He further contended that a special statute having been enacted to meet the changing problems of modern times, interpretation thereof ought to be made in a fresh manner free from the hang over of precedents delivered while considering old enactments. Reference in this connection was made to the decision reported in [1974]2SCR655 Katikara Chintamani Dora v. Guatreddi Annamanaidu . 26. To counter the argument of Mr. Mitra and Dr. Chakraborty that upholding an examinee's claim to have inspection of his answer scripts would amount to opening a floodgate of applications causing serious problem and prejudice to the public authority, he contended that such an argument is one of desperation and that only because there is a possibility of opening the floodgates for litigation, a mandatory right of a citizen cannot be permitted to be taken away. Reference in this connection was made to the decision, reported in AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble Apex Court of the country from time to time. According to him, while conducting public examinations, the WBBSE is obliged to bear in mind two primary objects of public interest, viz. (i) holding of examinations annually without any delay and (ii) finality of such examinations. If the examinees are allowed access to the answer scripts written by them by way of inspection or otherwise in terms of the RTI Act which would not serve any public interest, the WBBSE would be failing in its duty to achieve the interest of a vast majority of the society and, therefore, to harmonize and/or balance the conflicting Interests, the private interest of an individual must yield to the larger public interest or else the entire system would come to a grinding halt. 33. He contended that the WBBSE owes no public duty to grant inspection of scripts to the examinees by allowing access thereto. He reiterated that while definition of the word 'information' under the RTI Act is very wide, 'right to information, is narrowed down having regard to the provisions of the RTI Act and information of the nature mentioned in Section 4 of the RTI Act is only accessible. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave a right to know every public act, everything that is done in a public way, by their public functionaires. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of 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 US 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 to justify their acts is the chief safeguard against oppression and corruption: XX XX XX To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of official business and it must be further a secrecy which has remained or would have remained invoidable but for the compulsory disclosure. In ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of Government-an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open Government where there is full access to information in regard to the functioning of the Government. 666. ***The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The: approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves ah important aspect of public interest.**** 39. In Secy. Ministry of Information Broadcasting, Govt. of India (supra), the Apex Court while considering the several points of law formulated and mentioned in para 2 of its decision ruled as follows: 43. We may now summa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is derived from the concept of 'freedom of speech and expression'. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MPs or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular Government and to assist the discovery of truth and strengthening the capacity of an individual in participating in the decision making process. The decision making process of a voter would include his right to know about public functionaries Who are required to be elected by him. ************** 46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be, stated that: *************** 5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International covenant on Civil and Political Rights, which is as under: (1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression: this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haying broken new ground and having added a fresh, liberal dimension to the need for Increased disclosure in matters relating to public affairs. In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of Government disclosure of information must be the ordinary rule while secrecy must be an exception justifiable only when it is demanded by the requirement of public interest. The Court held that the disclosure of documents relating to the affairs of State involves two competing dimensions of public interest, namely, the right of the citizen to obtain disclosure of information, which competes with the right of the State to protect the information relating to its crucial affairs. It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved in each individual case. It is important to note that it Was conceded that there are certain classes of documents which are necessarily required to be protected e. g. Cabinet minutes, documents concerning this national safety, documents which affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Information which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and the patient. (ix) Information about scientific discoveries. 42. Authorities are therefore to abundance holding that right to receive information or the right of being informed is implicit in Article 19(1)(a) of the Constitution subject only to reasonable restrictions permitted to be imposed by Article 19(2) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or to relation to contempt of Court, defamation or incitement to an offence. 43. The Parliament had enacted the Freedom of Information Act, 2002. However, it was considered weak and to ensure greater and more effective access-to information, the need was felt to make it more progressive, participatory and meaningful. Accordingly, it was decided to repeal the 2002 Act and legislation was proposed to provide an effective framework for effectuating the right of Information recognized under Article 19 of the Constitution. It was thereafter that the RTI Act c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'information'. How it would be relevant for a decision, on the proceedings at hand would be discussed at an appropriate stage. 47. We would now turn our attention to the second issue. There can be no doubt that education is one of the great sources of empowerment, if not the greatest. It is man's thirst for knowledge that a concerted effort to acquire it is noticeable in all spheres of work. School, colleges and universities are centres of advancement of learning. The knowledge a student acquires while he is taught in school, college or university is the foundation for making him equipped in his struggle for survival in this competitive world. Inroads that he makes in unknown territory are based on his conviction acquired from knowledge. Acquisition of knowledge at a particular level in the present system of schooling has to be reflected in answers written by the student while taking public examination. Fair and proper evaluation/assessment of the answer written by the student by the examiners entrusted by the examining body would largely shape his career. Nowadays, unless one is a topper or a ranker, the gates for acquiring more knowledge or securing opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RTI Act and information other than those encompassed by Section 4 need not be furnished to a citizen on request. 50. Having regard to the provisions of Sub-sections (2) to (4) of Section 4 of the RTI Act, we are of the firm view that the mandate of Sub-section (1) including its various clauses is relatable to the functioning of the public authority in general for discharging its public duties, information in respect whereof ought to be disseminated suo motu as far as practicable and possible within the resources of such authority for facilitating its access to the public. Section 8(1) of the RTI Act provides an exhaustive exemption list and Section 4 thereof cannot be construed to be an additional provision indirectly empowering public authorities to claim exemption from disclosing information to an information seekar. The argument advanced lacks substance and thus is rejected. 51. The next contention of Mr. Mitra that inspection of answer scripts by an examinee is contrary to the provisions of Regulation 14(4) of the said Regulations which debars inspection of answer scripts by an examinee is now taken up for consideration. 52. Section 22 of the RTI Act lays down that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the RTI Act. The contention is misconceived as has rightly been held by the learned Judge. According to His Lordship, in the broader perspective, if a document submitted takes on any marking it becomes a new document and that notwithstanding the principle of severability contained in Section 10 of the said Act, the answered paper with or without examiners' etchings thereon is not information exempted any of the limbs of Section 8(1). 56. We share the same view. It is quite common on the part of some of the examiners while assessing the merits of answers written by examinees taking a public examination to indicate in the margin deficiency in the answers or redundancy of material comprising the answer. Endorsement in the answer scripts may also reveal what the examiner expected of the examine and how such expectation not having been fulfilled led to the marks that have actually been awarded. These, in our considered view, are opinions expressed by the examiners while assessing or evaluating an answer script. The provision in Section 2(f) would contemplate an opinion to be part and parcel of 'information' and the right to have such 'information', if not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public authorities and its functionaries and thereby the quality of governance, most likely, would improve. 59. Submissions made by Mr. Mitra that since regulations framed by the University and the WBBSE entitle an examinee to ask for review/reassessment and/or scrutiny of his answer scripts access thereto under the RTI Act would not serve any fruitful purpose is again without merit. It is common knowledge that while the entire answer script is reevaluated on merits in case of review, scrutiny is limited only to ascertain whether marks have been awarded for each question answered and whether there is any totalling error or not. However, in terms of Regulation 14(2) of the said Regulations, review/re-examination cannot be asked for by an examinee successful in the examination. However, they are entitled only to apply for scrutiny. Even if there be apparent error in assessment that cannot be rectified on scrutiny in terms of the said Regulations, an examinee would not have any remedy and is likely to suffer for the rest of his life. In terms of regulations of the University, whether one be a successful or unsuccessful candidate, he cannot apply for review/re-examination of all i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no substance in his petition. It was not shown by him how the assessment of his answer books was defective, arbitrary or partial. The Court proceeded to observe that students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that not they, but the examiners who are to be blamed. 62. In West Bengal Board of Examination for Admission to Engineering, Medical and Technological Degree Colleges and Ors. v. Dr. Jitendra Lal Banerjee and Ors . reported in AIR1984Cal52 it was observed in paragraph 18 as follows: In our opinion, there is much substance in the above contentions of the appellants. A writ petitioner is required to give all particulars and the basis of the allegations in support of the prayer for the issuance of the Rule. A mere allegation without any material in support of the same will not entitle a writ petitioner to ask for any assistance from this Court, for, otherwise, any unsuccessful candidate in any examination may, file a writ petition alleging that the answer scripts have not been properly assessed by the examiners or that grace marks have been given to a selected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner that it does not produce absurd results and lead to palpable injustice is now taken up for consideration. None can possibly dispute the principles of interpretation of statutes called in aid in the decisions of the Apex Court relied on by him. The Courts have been reminded to ascertain the intention of the legislature arid then strive to promote and advance the object and purpose of the enactment. 66. It is well recognised that while the letter of the law is the body, the sense and reason of the law is the soul and that it is not the words of the law but the spirit and internal sense of it that makes the law meaningful. While one can appreciate the contention of Mr. Mitra that an Act of Parliament cannot be construed to reduce it to rank absurdity, it is equally true that such meaning has to be given to the law as will carry out its object. Amplification of people's right to claim disclosure of information from a public authority and its corresponding obligation to respond and disclose information sans some which are exempt to make it more accountable are the pillars on which the RTI Act is structured to effectuate transparent governance. What Parliament in its wisdom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ]1SCR543 . Therein, it was observed as follows: A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. 69. The said observation has been relied on by the Apex Court in its subsequent decision in Life Insurance Corporation of India v. Mrs. Asha Ram Chandra Ambekar reported in (1994)IILLJ173SC while holding that it is true there may be pitiable situations but on that score, the statutory provision cannot be put aside. 70. We are afraid, the distress to which the examining bodies may be put to by reason of acceptance of the arguments of the information seekers and negation of their arguments must continue till such time the Parliament in its wisdom comes to their rescue. 71. It would appear from the judgment and order under appeal before us that the University had heavily relied on a decision of the Central Information Commission (hereafter the CIC) dated 24-4-2007 while considering a similar issue. Considering that public examination conducted by institutions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erized. Howsoever fool proof the in-house procedure as claimed by the examining bodies might be, that cannot be a guarantee simply because 'to err is human'. Rules/regulations framed by such bodies denying access can hardly be called in aid in view of the overriding and pervasive character of the RTI Act. Inconvenience or unworkability, unfortunately, are not recognized grounds on which refusal could be based. It is preposterous to assume that Parliament was not aware of the ground reality while enacting the RTI Act. That apart, the CIC seems to have proceeded oblivious of the settled law that a decision is an authority for what it decides and not what can logically be deduced therefrom The Apex Court in its decision reported in [2002]1SCR621 The State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr . has cautioned that disposal of cases by blindly relying on a decision is not proper and that reliance on decisions ought not to be placed without discussing as to how the factual situation at hand fits in with the factual situation of the decision on which reliance is placed. The decision in Paritosh Bhupesh Kumarsheth (supra) is pre-RTI Act, having been delivere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nothing in this respect has been placed 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 and thus void. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while deciding the writ petition of Pritam proceeded on the basis of certain concessions purportedly made by him which were actually not made and, therefore, we should set aside the judgment on this point. We have considered the grounds of appeal and do not find a single ground to this effect. The contention has been raised to be rejected. 82. A few words before we conclude our discussion on the second issue supra. We would not be unjustified in taking judicial notice of the Courts of Writ now-a-days being flooded with innumerable cases filed by aggrieved parties--particularly students of schools, colleges, universities and other academic institutions, as also participants of various selection examinations conducted by the appropriate bodies for recruitment to public service alleging wrong, improper or unfair marking and gross negligence in the assessment Of their written performances which, according to them, ultimately hamper their academic and career progress substantially. Since marginal difference in marks decides placement of candidates in the merit list, the anxiety of the examinees/candidates can well be appreciated. However, success rate of such petitions is not very h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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