हाई कोर्ट के जज जी.एस. संधावालिया
ने प्रत्याशी से सूचना के अधिकार के अंतर्गत उत्तर पुस्तिका व मेरिट लिस्ट छुपाने के
मामले में अम्बाला कैंट स्थित आर्मी भर्ती कार्यालय को भर्ती प्रक्रिया में शामिल
हुए प्रत्याशी को भर्ती परीक्षा से सम्बंधित उत्तर पुस्तिका व मेरिट लिस्ट उपलब्ध
कराने के आदेश दिए हैं ।
गाँव कुलतारण जिला कैथल के एक बेरोजगार प्रत्याशी कुलदीप सिंह ने अपने वकील प्रदीप
रापडिया के माध्यम से हाई कोर्ट में दायर की गयी याचिका में कहा गया था कि जब
आर्मी में भर्ती होने के लिए ली गयी लिखित
परीक्षा के अधिकतर सवालों के जवाब सही देने के बाद भी वह आर्मी में भर्ती नहीं हो
सका तो उसने सूचना के अधिकार अंतर्गत भर्ती से सम्बन्धित उत्तर पुस्तिका व मेरिट
लिस्ट की मांग की । लेकिन
अम्बाला
कैंट स्थित आर्मी भारती कार्यालय के सूचना अधिकारी ने उसे ये ये कहते हुए सूचना
देने से मना कर दिया कि ये सूचना आर्मी की ‘व्यापारिक गोपनीयता व बौधिक सम्पदा से
समबन्धित’ होने के कारण आवेदक को नहीं दी जा सकती । याचिकर्ता का कहना कहना है कि वो जानना चाहता है कि
आखिर लिखित परीक्षा में उससे कहाँ चुक हुई, जिसके कारन वह आर्मी में भारती होने के अपने बचपन के सपने पुरे होने से
वंचित रह गया ।
याचिकर्ता के वकील प्रदीप रापडिया ने बहस से
दौरान कहा कि उत्तर पुस्तिका व मेरिट लिस्ट को लोगों प्रदान करने के दरवाज़े खुलने
से सरकारी नौकरियों में व्याप्त भ्रस्टाचार, भाई-भतीजावाद पर अंकुश लगेगा और लोगों
का सरकार की कार्यप्रणाली में विश्वास बढेगा । बहस सुनने के बाद हाई कोर्ट ने आर्मी
भारती कार्यालय को 30 दिन के अन्दर उत्तर
पुस्तिका व मेरिट लिस्ट उपलब्ध कराने के आदेश दिए हैं ।
SEE COMPLETE JUDGMENT
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP
No.14715 of 2015
Decided on :04.10.2016
Kuldeep
Singh ... Petitioner
Versus
The
Central Information Commission and others ... Respondents
CORAM :
HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present : Mr. Pardeep Kumar Rapria,
Advocate for
the petitioner.
Mr.
Pankaj Jain, Advocate
for
respondents No.2 to 4..
G.S. Sandhawalia, J. (Oral)
The petitioner seeks direction to provide
the
complete information sought vide application dated 27.10.2014 (Annexure P-1) and to impose penalty etc. under the Right to Information Act, 2005 (for short
'RTI Act').
The information which the petitioner
is seeking vide the
abovesaid application is on account of
the
fact that he had appeared in the
written test for the post of clerk conducted by the Army Recruiting Office
by the Zonal Recruiting Office, Ambala Cantt, Ambala (Haryana). The information which is sought vide the abovesaid application reads as under:-
“1 Please
provide the certified copy of the Answer Sheet of the
undersigned.
2
Please provide the Model Answer Key, relating to the aforesaid answer sheet.
3
Please provide the certified copy of the complete Merit List, in reference to
the
selection of the aforesaid
trade.”
It is a matter of record that on 31.10.2014 (Annexure P-2), the evaluated answer sheet was denied on account of the fact that the Central
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Information Commission had decided at that point of
time that the
photocopy is not liable to be provided. It is not disputed
that the answer
key has
already been provided to the petitioner vide
communication dated
27.01.2015 (Annexure R-2/1)
and
thus there
is
no dispute regarding the
said demand.
Regarding the certified copy
of
the complete merit list, the information still remains
to
be provided.
The Apex Court in 'Central Board of Secondary Education and another Vs. Aditya Bandopadhyay and others' 2011 (11) SCR 1028
has held that the supply
of
answer books do not fall under the category
of exemption under Clause 8 (1) (e) of
the RTI Act. The relevant part of the
judgment reads as
under:-
“Therefore the question whether re- evaluation should be permitted or not, does not arise for our consideration. What arises
for consideration is the question whether the examinee is entitled
to
inspect his evaluated answer-books or take certified copies thereof. This right is claimed by the students, not with reference to
the
rules or bye-laws of examining bodies, but under the RTI Act
which enables
them
and
entitles them to
have access
to the
answer-books as `information' and inspect them and take certified copies thereof. Section 22 of RTI Act provides that the provisions
of the said Act will have effect, notwithstanding anything
inconsistent therewith contained
in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. As a result, unless the examining body
is
able to demonstrate that the answer-books
fall under the exempted category
of information described
in clause (e) of section 8 (1) of RTI Act, the examining body will be bound to
provide access to an examinee to inspect and take copies of his evaluated answer-books, even if such inspection or taking copies
is barred under the
rules/bye-laws
of the examining body
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governing the examinations. Therefore, the decision of this Court
in
Maharashtra State Board (supra) and the subsequent decisions
following the same, will not affect or
interfere with the right of the examinee seeking inspection of answer-books or taking certified copies thereof.
XXXXXXXX
“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)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.”
Counsel is
well
justified
to rely
upon the
subsequent judgment passed in 'Kerala Public Service Commission and others Vs. State Information Commission and another' 2016 (1) SCT 597.
In the
said case also the Apex Court held that the candidates are entitled with
regard to the
scanned copies of
the
answer sheet, tabulation-sheet
containing interview marks.
However, the name of the
examiner was not to be revealed. The relevant part of the judgment
reads as under:-
“10. In
the present case
the request of the information seeker about the information of his answer sheets and details of the
interview marks can be and should be provided to him. It is not
something which
a public authority keeps
it
under a fiduciary capacity. Even disclosing the marks and the answer sheets to the
candidates will ensure that the candidates have been given marks according to their performance
in the exam. This practice will
ensure a fair play in this competitive environment, where candidate puts his time in preparing
for the competitive exams,
but,
the request of the information seeker
about the details of the
person who had examined/checked the paper cannot and shall not
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be provided to the information seeker as the relationship between
the
public authority i.e. Service Commission and the Examiners is
totally within fiduciary relationship.
The Commission has reposed trust on the examiners that they will check the exam papers with
utmost care, honesty and impartially
and, similarly, the
Examiners have faith that they will not be facing any
unfortunate
consequences for doing their job properly. If we allow disclosing
name of the examiners in every exam, the unsuccessful
candidates
may
try to take revenge
from the examiners for doing their job
properly. This may, further, create a situation where the potential candidates in the next similar exam, especially in the same state
or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in
the
potential exam.”
Keeping in view the above the information which is sought at Sr. No.1 is necessarily to be provided, in view of the settled principle of
law.
Regarding the information sought at Sr.
No.3, the certified
copy
of the merit list in reference to the selection to the clerks has been
asked for.
The information was sought to be
denied on the ground that it could
not be
provided
under Section 8 (1)
(d) vide
order
dated
31.10.2014
(Annexure P-3).
A
perusal of the abovesaid Section 8 (1) (d) would go on to show that it pertains to information including commercial
confidence, trade secrets or intellectual property etc. which is not the case
in the
present
circumstances. Therefore,
the
information has been
wrongly denied without any valid justification.
The
factum of the pendency of the second appeal before the
respondent-commission need not detain this court. It is a matter
of record
that the petitioner has been fighting for his right since the last two years
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and the information has been denied on technicalities.
It is to be noticed
that the information is being sought on account of the
fact that the petitioner had not made the cut in
the
recruitment process and, therefore, any further
delay in the facts and circumstances
would seriously prejudice him as such and he might become
overage for
further selection.
It is in such circumstances, this Court does not feel that
pendency
of the second appeal before the respondent No.1 would be
sufficient ground to deny necessary
relief to the petitioner in the peculiar facts and circumstances. Accordingly, the necessary information be supplied to the petitioner
within a period of 30 days from the receipt of the certified copy of this
order.
With
the above
observations, the writ petition stands disposed of.
(G.S. SANDHAWALIA)
OCTOBER 04, 2016 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable:
Yes/No
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