IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15814 of 2009 THE JOINT REGISTRAR (JUDICIAL)-CUM-PUBLIC INFORMATION OFFICER, HIGH COURT OF JUDICATURE AT PATNA. . . . . . . PETITIONER. VERSUS 1. THE STATE INFORMATION COMMISSION THROUGH ITS COMMISSIONER, 4TH FLOOR, INFORMATION BUILDING, BAILEY ROAD, PATNA. 2. THE COMMISSIONER, STATE INFORMATION COMMISSION, 4TH FLOOR, INFORMATION BUILDING BAILEY ROAD, PATNA. 3. THE DEPUTY SECRETARY-CUM-JOINT REGISTRAR, STATE INFORMATION COMMISSION, INFORMATION BUILDING, BAILEY ROAD, PATNA. 4. MANOJ KUMAR, ADVOCATE SON OF LATE RAM KISHUN GURU, LALA BABU ROAD, NEW GODOWN, P.S.- GAYA, DISTRICT- GAYA. . . . . . . . RESPONDENTS. For the Petitioner :Mr. Chittaranjan Sinha, Sr. Advocate, :Mr. Anish Kumar, Advocate, For respondent nos. 1 to 3 :Mr. Lalit Kishore, Sr. Advocate :Mrs. Binita Singh, Advocate For respondent no.4 :Mr. Mahendra Thakur, Advocate ----------- 10/ 28.07.2010 Heard. In the instant writ application, the petitioner prays for quashing the order dated 28.07.2009, passed in Case No. 13745 / 2008-09 by the Respondent no.-2 (Commissioner, State Information Commission, hereinafter referred to as Commissioner, S.I.C.), whereby he was directed to furnish a copy of general letter appointing the agency which conducted the examination for the post of Additional District & Sessions Judge on 14.07.2002. The issue involved in this case is: (i) Whether the name of agency which conducted the examination of Judicial services can be withheld under exemption clause of Section 8(1)(j) of the Right to Information Act, 2005? Before I deal with the issue involved in this application, it would be necessary to notice the facts of the case in brief. - 2 - One Manoj Kumar, respondent no.4, filed an application under the provision of the Right to Information Act, 2005 (hereinafter referred to as R.T.I. Act) before the Public Information Officer-cum- Joint Registrar (Judl.), Patna High Court, Patna [hereinafter referred to as P.I.O. –cum- Joint Registrar (Judl.)] on 07.06.2008, for supply of marks obtained by him in the examination, conducted for the appointment to the post of Additional District & Sessions Judge, in the year, 2002. He also sought information about the newspaper, in which the result was published. A copy of the application dated 07.06.2008 preferred before the P.I.O. –cum- Joint Registrar (Judl.), Patna High Court, Patna, by respondent no.4 is appended as Annexure-1. The petitioner vide letter dated 09.07.2008 informed respondent no.-4 that the result was not published in the newspaper and the names of the successful candidates were recommended to the State Government vide Court‟s letter no. 1734, dated 10.03.2003. It was further stated in the information that the marks of candidates are not available in the office, as the examination was conducted by a private agency. A copy of supply of information, dated 09.07.2008 is appended as Annexure-2. The respondent no.-4 again filed an application under R.T.I. Act, 2005 before P.I.O. –cum- Joint Registrar (Judl.), Patna High Court, Patna on 21.07.2008 seeking information to supply the name of private agency by whom the examination for the post of Additional District & Sessions Judge was conducted on 14.07.2002. The petitioner vide its letter dated 08.08.2008 rejected the request of - 3 - respondent no.-4 on the ground that the names of evaluators cannot be disclosed in view of Section 8 (1) (j) of the R.T.I. Act, 2005. A photo copy of rejection order dated 08.08.2008 is appended as Annexure-4. The respondent no.-4 preferred an appeal against the order dated 08.08.2008 before the Registrar (Admn.)-cum- Appellate Authority, Patna High Court, Patna on 02.09.2008, who after hearing the parties dismissed the appeal bearing no. 13/2008 on 19.09.2008, on the ground that the disclosure of name of the agency, which conducted the examination, will lead to disclosure of the name of evaluators of the examination, which may not be disclosed under Section 8(1)(j) of the R.T.I. Act, 2005. The respondent no.-4 thereafter preferred an appeal bearing case no. 13745 / 2008-09 before State Information Commission (S.I.C.) against the order dated 19.09.2008, passed by Registrar (Admn.), Patna High Court, Patna. The respondent no.-2, Commissioner, State Information Commission (S.I.C.) vide order dated 28.07.2009, directed the P.I.O. –cum- Joint Registrar (Judl.), Patna High Court, Patna to furnish to respondent no.-4, a copy of the general letter appointing the agency, which conducted the examination of Additional District & Sessions Judge in 2002 within two weeks of the receipt of the order. The respondent no.-2 took the view that the information sought regarding the agency which conducted examination is not personal information as the conduct of an examination is a public activity. On this basis he observed that the disclosure of the name of the agency would not cause unwarranted - 4 - invasion into privacy of an individual. The respondent no.-2 further observed that the information sought is also such which cannot be denied to the Parliament or a State Legislature and hence it cannot be denied to any person. The order dated 28.07.2009 passed by respondent no.2 directing disclosure of name of agency that conducted the examination for the post of the Additional District & Sessions Judge, is impugned in the instant writ application. Mr. Chitranjan Sinha, learned senior counsel appearing for petitioner submits that the impugned order directing disclosure of the name of the examination conducting agency is in the teeth of exemption provided under Section 8 (1)(j) of R.T.I. Act. He further contends that disclosure of the name of the agency, which conducted the examination, would lead to disclosure of name of individual examinee, which would not be in larger public interest. Such disclosure would destroy the confidentiality and purity of the examination processes itself and would cause unwarranted invasion in privacy of the examiners. In support of his contentions learned counsel relied upon decisions in case of Saiyed Hussain Abbas Rizwi Vs. State Information Commission through the Registrar, Patna & Ors, reported in A.I.R. 2010 Pat. 57 and in case of Vijay Prakash Vs. Union of India & Ors, reported in AIR 2010 Delhi 7. He submits that respondent no.-4 was more interested in knowing the name of the agency, than the marks secured by him in the - 5 - examination. He further submits that if respondent no.-4 was really interested in knowing the marks secured by him of judicial service examination, he could have approached the authorities earlier, as the examination was conducted in the year, 2002. Mr. Lalit Kishore, learned senior counsel for respondent no.-2, submits that impugned order is just and proper. He submits that information sought is one which is connected with public activity and is not personal and larger public interest requires its disclosure. Counsel for respondent no.-4 submits that the information sought is connected with public activity and would not cause invasion in the privacy of individual. He submits that he is not asking the name of examiners, but the agency which conducted the examination. Furthermore, disclosure of name of agency conducting examination is not saved under Section 8 (1)(j) of R.T.I. Act. On 30.06.2010, respondent no.4 submitted that he would be satisfied if a copy of the marks obtained by him in the concerned examination of Additional District & Sessions Judge, conducted in the year, 2002 is supplied and he limits the prayer to that extent only. When this Court enquired from Mr. Chitranjan Sinha, learned Sr. counsel, appearing for the High Court regarding supply of copy of the marks obtained by him, he sought time to seek instructions in the matter. On 21.07.2010, Mr. Sinha, submitted that on query, the agency which conducted the examination informed that it had already deleted the marks obtained by the candidates. The agency further informed that where coding is not applied, results are - 6 - preserved for a year, and where coding is applied such results are deleted earlier. In the instant case, coding was applied, as such agency has deleted data‟s of result of examination conducted in 2002, soon thereafter. Learned counsel even produced the concerned file to show that agency has expressed its in ability to furnish the marks, as it had already deleted the same from its record. The petitioner submits that it is now impossible for even the agency to supply the marks obtained by the candidates, as the same have been deleted. The reply of petitioner provided premises to respondent no.- 4 to retract from his earlier submissions, whereby he had limited his prayer to supply of copy of marks obtained by him in the examination. Now he insists that this writ application be decided on its own merit. Right to Information Act, 2005 was enacted 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 term information also defined in Section 2(f) of the Right to Information Act, 2005, is quoted hereinbelow: “2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;” Under Section 6 of the R.T.I. Act:- Any person can make a - 7 - request in writing to obtain any information under this Act. The R.T.I. Act casts an obligation to supply all such information save and except those which are exempted from disclosure in under Section 8 of the Act. The case of the petitioner is that in view of Section 8(1)(j) of the R.T.I. Act, it would not be obligatory upon it to supply the name of agency which conducted the examination. Section 8 (1)(j) of R.T.I. Act, 2005 is quoted herein below for easy reference: “8(1)(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” From bare perusal of the Section, it would appear that personal information, which would be having no relationship with public activity or interest, or which would cause unwarranted invasion of the privacy of the individual, need not be supplied. It further provides that information which could not be denied to Parliament or a State Legislature cannot be denied to an individual also. Thus such personal information which makes an inroad in privacy of an individual or is not in public interest need not be - 8 - disclosed. One such issue whether disclosure of name and address of interview panelist of Bihar Public Service Commission examination is saved under Section 8(1) (j) of R.T.I. Act fell for consideration in case of Saiyed Hussain Abbas Rizwi Vs. State Information Commission through the Registrar, Patna & Ors, reported in A.I.R. 2010 Pat. 57. The learned Judge after hearing the parties held that though information relating to marks and merit list can be supplied, but the names and addresses of interview panelist may not be disclosed in order to maintain purity of process of selection. This Court further observed that along with transparency, secrecy is equally important, as selection is on the basis of marks that is awarded in view of members at the interview. Furthermore, if information regarding the identity is disclosed, the secrecy and authenticity of process itself may be jeopardized, apart from the same being an unwarranted invasion into the privacy of the individual. This Court further observed that such restriction imposed upon divulging the name of the panelist, has a larger public interest behind it, in order to maintain purity of process of selection. In case of Vijay Prakash Vs. Union of India & Ors, reported in AIR 2010 Delhi 7, the Delhi High Court observed that disclosure of service records of a public servant sought by her husband so as to establish his case in a matrimonial suit is not permissible, as Right to Privacy of a public servant is of the same order of private individual and such disclosure does not involved public element. Now it is to be seen whether the petitioner can withhold the - 9 - supply of name of agency which conducted the examination of Additional District & Sessions Judge in the year, 2002. It would appear from bare perusal of Section 8(1)(j) of the RTI Act that information which is personal in nature and the disclosure of which will have no relationship with any public activity or interest, need not be disclosed. It is also not obligatory to disclose such personal information which would cause unwarranted invasion of the privacy of an individual, unless and until the public interest demands the disclosure. The exemptions, however, is subject to the proviso that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person, seeking such instruction. The Webster‟s third new international dictionary defines the following as follows: Examination:- An examination is an act or process of examining or the state of being examined which includes search, investigation, scrutiny or a series of exercise designed to examine the progress or test qualification. Examiner:- One that examines or a person who is charged with conducting of examination. The term Agency means a person/body or things through which power is exerted or an end is achieved. It is also defined as an establishment engaged in doing business for others. In common parlance, the process of an examination involves the preparation of question papers by examiners, coding and - 10 - uncoding of papers by examination conducting agency, marking of centres by the agency where examination is held. The examination conducting body / agency also decides the name of evaluators / examiners / invigilators and others who will jointly complete the cycle of examination. The agency which conducts the examination on behalf of any institution / organization has its own fiduciary relationship with that institution and the same is based on the touchstone of secrecy and utmost confidentiality. Any leakage or divulgence of any information, would embarrass the whole examination process and would further cause unwarranted invasion into its privacy. The process of examination can never satisfy everyone particularly those who have not succeeded in the examination. If the information sought relating to disclosure of the agency conducting examination is furnished, then the applicant asking for such information may drag the agency into frivolous litigation and in future no agency would like to take the job of conducting the examination. The High Court in order to maintain both transparency and confidentiality entrusted the work of conducting the examination of Additional District & Sessions Judge to an agency. The disclosure of the name of the agency in essence would lead to the disclosure of the name of the examiners, the persons employed in the agency and those who are directly, or indirectly involved in the process of examination. Such informations would cause an inroad into the privacy of not only the examiners, but also evaluators, invigilators, tabulators, - 11 - superintendent etc., who are integral part of examination conducting agency and may pose danger to their lives. If such disclosure is permitted to the public, then no agency would even like to conduct the examination at all. The Hon‟ble Apex Court in case of Kharak Singh Vs. State of U.P., reported in A.I.R. 1963 SC 1295 and District Registrar and Collector, Hyderabad and Another Vs. Canara Bank & Others, reported in (2005) 1 SCC 496 has recognized Right to Privacy as implied in Right to life and personal liberty under Article 21 and Right to freedom of expressions and speech under Article 19(1)(a) of the Constitution. The term examination conducting agency has a wider meaning in the contractual back ground and any restrictive meaning would prejudice the purity of examination process. The respondent no.2 erred in overlooking this aspect that the examiners / evaluators and the examination conducting agency are not two distinct entities, rather they are part of the examination conducting agency, and if once their names are made known, then serious consequences may follow including eroding of confidentiality and purity of examination process, which will not be in public interest. The respondent no.2 failed to appreciate that conduct of examination is not a mere public activity rather it is sacrosanct process, based on touchstone of confidentiality and purity, and disclosure of name of agency is saved under purview of exemption and safeguards provided under Section 8(1)(j) of the R.T.I. Act. The entitlement of an - 12 - examinee under Section 6 of the Act would be to marks obtained, and not the names of examination conducting agency or the examiner. Neither the Parliament nor the State Government has enacted any law whereby it has made obligatory to disclose the name of the agency conducting the examination. The respondent no.2 while allowing the application of respondent no.-4 did not specify, as to how disclosure of the name of agency would foster the cause of public interest. The mere use of the term „public interest‟ will not make it public interest, unless cause is shown. Such interest of public has to be real and is to be judged on the objective basis. In the back drop of the aforesaid discussions, I am of the view that it is not obligatory for the petitioner, namely Joint Registrar (Judicial)-Cum-Public Information Officer, High Court Of Judicature at Patna to disclose the name of the agency, which has conducted Additional District & Sessions Judge examination in the year, 2002 in view of exemption provided under Section 8(1)(j) of the R.T.I. Act, 2005. The respondent no.2 erred in holding that the protection under Section 8(1)(j) of the R.T.I. Act, 2005 was not available to the petitioner and it was obligatory upon it to supply the name of the agency which conducted the examination. In the result, this application is allowed and the impugned order dated order dated 28.07.2009, passed in Case No. 13745 / 2008- 09 is set aside. A.F.R. Uday/ (Samarendra Pratap Singh, J.) - 13 -