IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.04.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.18635 of 2009 and M.P.NO.1 OF 2009 The Tamil Nadu Dr.Ambedkar Law University, rep. By its Registrar, Dr.D.Gopal, Poompozhil, No.5, Dr.D.G.S.Dhinakaran Salai, Chennai-600 028. .. Petitioner Vs. 1.The Tamil Nadu State Information Commission, rep. By Asst. Registrar, No.378, Anna Salai, Teynampet, Chennai-600 018. 2.The State Public Information Officer, Tamil Nadu Dr.Ambedkar Law University, Poompozhil, No.5, Dr.D.G.S.Dhinakaran Salai, Chennai-600 028. 3.The Human Rights Legal Awareness Society, rep. By its President A.Ramesh Manikandan, No.5, Kalaignar Street, Dr.Ambedkar Puratchi Nagar, Perungudi, Chennai-600 096. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in Case No.39620/enquiry/2008 dated 18.8.2009 on the file of the first respondent and to quash the same as illegal, arbitrary and against the law with exemplary cost. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.A.Thiagarajan, SC for M/s.V.M.G.Ramakkannan For Respondents : Mr.G.R.Associates for R1 Mr.A.Arumugham, Spl.G.P. for R2 ORDER The Tamil Nadu Dr.Ambedkar Law University represented by its Registrar is the petitioner. They have come forward to challenge the order dated 18.8.2009 passed by the first respondent. 2.The short question arises for consideration is whether the direction issued by the Tamil Nadu State Information Commission, dated 18.8.2009 to the petitioner University directing them to furnish certain information to the applicant, is legally justified. 3.By the impugned, order dated 18.8.2009, the Information Commission directed the university to keep the documents to be perused by the representative of the third respondent, who had sought for certain information from the University, which was declined by them. By its direction, the University was directed to keep the file relating to question Nos.1 and 3 on 24.9.2008 and also to take Photostat copies of pages which the third respondent wanted. They were also directed to permit the third respondent to take Videograph of events while processing question No.4 and also to give information relating to question Nos.2,5 and 6 within one week. The writ petition was admitted on 11.9.2009 and an interim stay was granted. 4.It is the stand of the petitioner university that the third respondent has no locus standi to seek such information under Section 2(j)(i) of The Right to Information Act, 2005 (for short RTI Act). Since R-3 organisation seems to be concerned only with the human rights as the name indicates, they have no right to seek such information. The present attempt is an abuse of the process of law. Further contention was that the third respondent is posing themselves as law students. The information sought for by them is exempted under the purview of the Act. The information Commission had violated the procedure contemplated under Section 11 of the Act, especially when the information sought for relates to a third party (who are students of the university), any details regarding their work cannot be asked for. Such a direction is in violation of Section 11(4) of the RTI Act. It was further stated that the impugned order is a non speaking order. 5.It is seen from the records that the third respondent wanted to have answer sheets in respect of the examinations held during May, 2008 regarding exam papers concerning with Banking Law, Law of Evidence and International Law. They also wanted to have the procedure for evaluation of such papers and also to permit them to https://hcservices.ecourts.gov.in/hcservices/ peruse the Company Law (THT) answer sheets for December, 2007. They also wanted to find out whether there was any procedure in sending answer sheets to the houses of examiners as well as the names of valuation centre, in which answer sheets were corrected. 6.On receipt of such requisition, the Public Information Officer stated that information regarding personal information has no relation to any public activity and is exempted under Section 8 (1)(j). Thereafter, the third respondent approached the Information Commission (R1). The Information Commission gave directions, as noted above. 7.Mr.A.Thiagarajan, learned Senior Counsel appearing for the University contended that the information is fully protected and is exempted under Section 8(1)(j). If the stand of the University was that it was fully protected, then it should have passed an appropriate order stating the reasons for its refusal. On the contrary, the act provides for disclosure of information relating to a third party, if it is of the view that such disclosure is required in public interest which outweighs the importance of any possible harm or injury to the interest of such third party as per proviso to Section 11(1). Except taking a stand that such information is relates to personal information, there was no attempt made by them to find out whether any public interest is involved and the disclosure outweighs the other interest. 8.Therefore, it is the University Public Information Officer, who did not discharge his obligation in terms of Section 8(1)(j) read with proviso to Section 11 of the RTI Act. The learned Senior Counsel for the petitioner had circulated some orders passed by the Central Information Commission relating to disclosure of answer papers by UPSC and also to certain examinations conducted by the Government departments. In that context, the Central Information Commission held that a citizen cannot seek disclosure of evaluated answer sheets under RTI Act. Reliance was placed by the Central Information Commission on the judgment of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and another Vs. Paritosh Bhupeshkumar Sheth and others reported in (1984) 4 SCC 27 for the purpose of holding that there is no right for revaluation of answers or disclosure or inspection of answer books since examination Board has kept those records confidential. 9.The Central Information Commission also placed reliance upon the judgment of the Supreme Court in Fatehchand Himmatlal v. State of Maharashtra reported in (1977) 2 SCC 670, wherein the Supreme Court held that in the name of fairplay, a demand for disclosure and personal inspection of such paper cannot be ordered. 10.The learned Senior counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in President, Board of Secondary Education v. D. Suvankar reported in (2007) 1 SCC 603, wherein the Supreme Court in paragraph 5 held as follows: https://hcservices.ecourts.gov.in/hcservices/ "5. The Board is in appeal against the cost imposed. As observed by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth2, it is in the public interest that the results of public examinations when published should have some finality attached to them. If inspection, verification in the presence of the candidates and re-evaluation are to be allowed as of right, it may lead to gross and indefinite uncertainty, particularly in regard to the relative ranking, etc. of the candidates, besides leading to utter confusion on account of the enormity of the labour and time involved in the process. The court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It would be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to pragmatic one was to be propounded. In the above premises, it is to be considered how far the Board has assured a zero-defect system of evaluation, or a system which is almost foolproof. 11.However, in the very same case, the Supreme Court pointed out the danger of system of examination being not monitored properly leading to questioning the credibility of the system of valuation. In paragraph 8, the Supreme Court had observed as follows: "8. It has to be ensured that the examiners who make the evaluation of answer papers are really equipped for the job. The paramount consideration in such cases is the ability of the examiner. The Board has bounden duty to select such persons as examiners who have the capacity, capability to make evaluation and they should really be equipped for the job. Otherwise, the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment. It is true that evaluation of two persons cannot be equal on golden scales, but wide variation would affect credibility of the system of evaluation. If for the same answer one candidate gets higher marks than another that https://hcservices.ecourts.gov.in/hcservices/ would be arbitrary. As indicated above, the scope for interference in matters of evaluation of answer papers is very limited. For compelling reasons and apparent infirmity in evaluation, the court step in. Care should be taken to see that the examiners who have been appointed for a particular subject belong to the same faculty. It would be a mockery of the system of evaluation if a teacher belonging to Arts stream is asked to evaluate answer papers of Science stream. It may be that a teacher had Physics, Chemistry or Biology at the intermediate level, but at graduation stage he had special paper in Zoology. To ask such a teacher to evaluate Botany paper would not be proper. Similarly in the case of a teacher having Mathematics at intermediate level while he took his higher studies in Physics, or Chemistry, or Botany at the graduation level, evaluation of answer paper of Mathematics by him would not be proper. May be that he has working knowledge of the subject. But the evaluation should be done by an examiner who is well equipped in the subject. That would rule out the chance of variation or improper evaluation. Board authorities should ensure that anomalous situations as pointed out above do not occur. Additional steps should be taken for assessing the capacity of a teacher before he is appointed as an examiner. For this purpose, the Board may constitute a body of experts to interview the persons who intend to be appointed as examiners. This process is certainly time-consuming but it would further the ends for which the examinations are held. The Chief Examiner is supposed to act as a safety valve in the matter of proper assessment." (Emphasis added) 12.It is not clear as to how this judgment can have any assistance to the petitioner. In fact, in most of the Central Information Commission's orders which were referred to, the defence was based upon Section 8(1)(e), where examining authorities claimed that information was available with them are in a fiduciary relationship and the competent authority must be satisfied that larger public interest warrants disclosure of such information. Neither in the reply sent by the University nor in the affidavit filed in the writ petition any such defence is taken. 13.As to what is meant by the term "Fiduciary relationship", a Full Bench of the Delhi High Court headed by A.P.Shah, C.J. had an occasion to deal with the same in its decision in Secretary General, Supreme Court of India Vs. Subhash Chandra Agarwal reported in 2010 (1) CTC 241. The meaning of the term "Fiduciary https://hcservices.ecourts.gov.in/hcservices/ relationship" drawn from various authorities are dealt with in paragraphs 97,98 and 99 of the said judgment. The Full Bench of the Delhi High Court quoted these passages with the approval and the same read are as follows: "Fiduciary Relationship 97.As Waker defines it: "A 'fiduciary' is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect. He may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, Company promoters and directors, guardians, solicitors and clients and other similarly placed." [Oxford : Companion to Law, 1980 p.469] 98."A fiduciary relationship", as observed by Anantnarayanan, J., "may arise in the context of a jural relationship. Where confidence is reposed by one in another and that leads to a transaction in which there is a conflict of interest and duty in the person in whom such confidence is reposed, fiduciary relationship immediately springs into existence." [See Mrs.NeHie Wapshare v. Pierce Lasha & Co. Ltd., AIR 1960 Mad 410] 99.In Lyell v. Kennedy, 1889 (14) AC 437, the Court explained that whenever two persons stand in such a situation that confidence is necessarily reposed by one in the other, there arises a presumption as to fiduciary relationship which grows naturally out of that confidence. Such a confidential situation may arise from a contract or by some gratuitous undertaking, or it may be upon previous request or undertaken without any authority." 14.The Supreme Court vide its judgment in Secretary, W.B. Council of Higher Secondary Education v. Ayan Das reported in (2007) 8 SCC 242 in paragraph 10 observed as follows: "10. The courts normally should not direct the production of answer scripts to be inspected by the writ petitioners unless a case is made out to show that either some question has not been evaluated or that the evaluation has been done contrary to the norms fixed by the examining body. For example, in certain cases examining body can provide model answers to the questions. In such cases the examinees satisfy the court that model answer is different from what has been adopted by the Board. Then only can the court ask for the production of answer scripts to allow inspection of the answer scripts by the examinee. In Kanpur University v. https://hcservices.ecourts.gov.in/hcservices/ Samir Gupta2 it was held as follows: (SCC p.316, paras 16-17) “16. Shri Kacker, who appears on behalf of the University, contended that no challenge should be allowed to be made to the correctness of a key answer unless, on the face of it, it is wrong. We agree that the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct. The contention of the University is falsified in this case by a large number of acknowledged textbooks, which are commonly read by students in U.P. Those textbooks leave no room for doubt that the answer given by the students is correct and the key answer is incorrect. 17. Students who have passed their Intermediate Board Examination are eligible to appear for the entrance test for admission to the medical colleges in U.P. Certain books are prescribed for the Intermediate Board Examination and such knowledge of the subjects as the students have is derived from what is contained in those textbooks. Those textbooks support the case of the students fully. If this were a case of doubt, we would have unquestionably preferred the key answer. But if the matter is beyond the realm of doubt, it would be unfair to penalise the students for not giving an answer which accords with the key answer, that is to say, with an answer which is demonstrated to be wrong.” 15.A division bench of this court in N.Rajachandrasekaran Vs. Secretary to Government, Public (Special-A) Department, State of Tamil Nadu and others reported in 2009 (5) CTC 828 held that information regarding appointment and related particulars can be obtained if it is not exempted by Section 8. After setting out the query made by one of the petitioners in paragraph 2 of the said order, in paragraphs 8 and 9, the division bench answered as follows: "8. We may notice that "The Right to Information Act, 2005" was promulgated on 15th Feb., 2005 and published in the Gazette on 21st June, 2005 for setting out the practical regime https://hcservices.ecourts.gov.in/hcservices/ of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto. As democracy requires an informed citizenary and transparency of information, which are vital to its functioning and also to contain corruption to hold the Governments and their instrumentalities accountable to the governed; and revelation of information in actual practice is likely to conflict with other public interests, including efficient operations of the Governments, with a view to harmonise these conflicting interests, while preserving the paramountancy of the democratic ideal, the Parliament thought it expedient to provide for furnishing certain information to citizens, who desires to have it. 9. While request for obtaining information and disposal of request has been mentioned u/s 6 and 7 of the Right to Information Act, 2005, exemption from disclosure of information is prescribed u/s 8, which reads as follows :- "Extract of Section 8 omitted." Admittedly, the present case in hand do not fall within the purview of any of the exemption clause from disclosure of information." (Emphasis added) 16.Even earlier, another division bench in V.Neethi Durai and others Vs. Chairman, TNPSC and others in W.P.No.28236 of 2008 and batch cases, dated 16.12.2008, more or less dealt with a similar question and in paragraphs 5 to 7, it was observed as follows: "5. We do not accept such a submission, as it is evident that it is the TNPSC which reserved itself a right to get any answer book revalued, if in its opinion there was any sufficient/valid grounds to do so. If any candidate has any doubt that the answer book has not been properly evaluated and if there is a large variation in the marks of the candidate which he expected with the marks that what was actually awarded, such candidate at best can represent before the TNPSC and if sufficient and valid grounds are shown, it is always open for the TNPSC to get any answer https://hcservices.ecourts.gov.in/hcservices/ book revalued. 6. For example, if it is found that the candidates of a particular Examination Centre have been awarded such lesser marks that most of them failed, on the contrary, in another Examination Centre, almost all the candidates have been awarded with exceptionally higher marks, then, with respect to the very same subject, one may raise some doubt and if sufficient and valid grounds are made out, the TNPSC may enquire into the same and make revaluation of the answer books in general. 7. So far as the individual candidate is concerned, if strong and sufficient/valid grounds are not made out, on mere submission of a candidate that he performed well or he expected more marks, the question of revaluation does not arise." 17.Therefore, unless the petitioner University takes a definite stand on such issue, the order of the Commission cannot be found fault with. The university seems to be under a wrong notion that the information seeker like third respondent should establish their bonafides of seeking such information. But under Section 6 (2), such a requirement is not prescribed. On the contrary, Section 6(2) clearly says that an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him. Therefore, preliminary objection raised by the petitioner University does not stand to reason. 18.Once the question of bonafide of the requesitionist is overruled, then it has to be seen whether the information sought for is available with the public authority is the question to be answered. The right to information provided under Section 2(j) of the Act. Except blaming the Tamil Nadu Information Commission, the petitioner University despite being a Law university did not pass an appropriate order in the application seeking for the information sought for by the third respondent. As the stand of the petitioner university is bereft of any substantive defence, the Commission also gave its direction without deciding the lis between the parties. Though the information sought for by the third respondent cannot be ruled out on the ground of locus standi, but the order passed by the Commission is also bereft of reasons and did not take into account proper contentions. 19.Therefore, this court is constrained to set aside the order of the Commission. Accordingly, the impugned order stands set aside and the matter is remanded to the first respondent Commission for passing an appropriate order in accordance with law and in the light of the order in this writ petition and after due notice to both parties. Hence the writ petition will stand partly allowed https://hcservices.ecourts.gov.in/hcservices/ with the above directions. No costs. Consequently, connected miscellaneous petition stands closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Asst. Registrar, The Tamil Nadu State Information Commission, No.378, Anna Salai, Teynampet, Chennai-600 018. 2.The State Public Information Officer, Tamil Nadu Dr.Ambedkar Law University, Poompozhil, No.5, Dr.D.G.S.Dhinakaran Salai, Chennai-600 028. 1 cc to M/s. G.R. Associates, Sr. 22254 W.P.NO.18635 OF 2009 RV (CO) kk 13/4 https://hcservices.ecourts.gov.in/hcservices/