IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2794 of 2008 ---------- BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY,BAILEY ROAD,PATNA-- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, INFORMATION AND PUBLIC RELATION DEPARTMENT GOVT. OF BIHAR, PATNA 2. THE STATE INFORMATION COMMISSION THROUGH ITS SECRETARTM 4TH FLOOR, SOODHANA BHAWAN, BAILEY ROAD, PATNA. 3. PAWAN KUMAR JHA,C/O SHRI P.K.JHA, SANTA COLONY NEAR NAKA-2,HAAIPUR,DIST. VAISHALI--RESPONDENTS ----------- FOR THE PETITIONER;Mr.P.K.SHAHI,SR.ADVOCATE & MR.S.PANDEY,ADVOCATE FOR THE RESPONDENT-2 MR.LALIT KISHORE,SR.ADVOCATE & BINITA SINGH,ADVOCATE FOR RESPONDENT: 3 MR.RAJENDRA PD. SINGH, SR.ADVOCATE --------- 5 22.10.2008 Petitioner is a constitutional body who is seeking quashing of the order dated 5.11.2007 passed in Case No. 1271/ 2007-08 by the State Information Commission of Bihar whereby and whereunder the petitioner has been directed to provide information sought for by respondent no.3 to reveal the question wise marks of 46th Combined Competitive Examination conducted by the petitioner. Petitioner further wants quashing of the order dated 7.1.2008 passed in Case No. 3995/2007-08 which is the order in review application, rejecting their prayer and further directing them to take follow up action of providing information to respondent no.3. The impugned orders are therefore contained in annexures 13 and 15 to the writ application. The 46th Combined Competitive Examination was held by the petitioner for which an advertisement was published - 2 - on 8.2.2004. Respondent no.3, namely, Pawan Kumar Jha who appeared in the said examination being not satisfied with the result of the examination had filed an application before the Deputy Secretary of Bihar Public Service Commission ( in short BPSC) for re-totaling of marks obtained by him in the mains examination. This application was received by BPSC on 13.2.2007. Subsequently he also decided to invoke the jurisdiction under Right to Information Act, 2005 by filing an application before the Public Information Officer of the Personnel and Administrative Reforms Department, Government of Bihar. He wanted specific information as to the marks he had secured in each question in Chemistry Paper No. 1 and 2. He sought similar information with regard to Hindi Language and Literature as well as General Science. The application of respondent no.3 was forwarded by the Personnel and Administrative Reforms Department to the petitioner, namely, BPSC. When no information came respondent no. 3 filed an appeal before the appellate authority. But nothing substantive came out of the same. When the required information did not emerge from the concerned authority, respondent no.3 filed an appeal on 4.6.2007 before the State Information Commission under section 19 of the Right to Information Act. State Information Commission took cognizance of the matter and directed the petitioner to file appropriate reply and also furnish the information demanded by respondent no. 3. Petitioner vide letter dated 18.7.2007 informed respondent no. 3 that no candidate - 3 - offering Chemistry as optional paper has been finally selected and the question of revealing marks question wise in optional or compulsory paper was considered but in view of the order dated 6.2.2007/ 23.4.2007 and the opinion extracted in paragraph 39 of the order passed by the Central Information Commission there was no occasion to provide break up of the marks as demanded by respondent no.3. Petitioner also filed their reply before the State Information Commission. They took a stand that the information which could be granted to respondent no. 3 has already been furnished to him. In deliberation held by the State Information Commission they were not satisfied by the stand taken by the petitioner. Therefore, they directed the petitioner to take a decision with regard to furnishing question wise marks to respondent no. 3. Petitioner took a categorical stand that as per the rules and the terms of the advertisement of examination there is provision of re- totaling of marks only and there is no provision for furnishing question wise marks for all the papers, compulsory or optional, of the examinee who sat in the examination. They also state that there is no provision for re-evaluation of answer book but only re- totaling as stand upheld by the Hon’ble Supreme Court in a matter which travelled from Patna High Court. The judgment dated 6.8.2004 passed in Civil Appeal No. 5046 of 2004 has been brought on record as annexure-10 to the writ application. The BPSC in terms of the rules or procedure considered the matter in a meeting held on 31.8.2007 where they - 4 - examined the claim of respondent no.3 and the direction issued by the State Information Commission. They came to a considered opinion that re-totaling of marks is the only relief and information which could be provided in terms of rules and procedure of 1996. Since revealing of question wise marks has never been envisaged or laid down, they were not bound to disclose the information demanded in this regard. The State Information Commission was categorically told that the petitioner was not in a position to furnish question wise marks as they have never made any provision in this regard. The State Information Commission was of the opinion that since the issue raised for consideration had wide ranging effect the matter needed adjudication by Full Bench of the Commission. The matter thereafter came to be heard on 1.11.2007 and an order dated 5.11.2007 was passed directing the petitioner to provide to respondent no. 3 the information demanded under the Act within four weeks of passing of the order. Since the order did not satisfy the petitioner they decided to file review application. The review application was taken up, heard and vide order dated 7.1.2008 the same was dismissed with a direction to take follow up action to the earlier order dated 5.11.2007 passed by the State Information Commission. It is in this background the present writ application challenging the two orders in question has been filed. Learned Senior counsel appearing on behalf of the petitioner submits that BPSC conducts examinations in terms of the scheme of thing and from very inception there are no rules - 5 - based on which they are duty bound to disclose question wise marks of evaluated answer sheet, if demanded by any candidate. His contention is that the entire confidentiality of the examination procedure as well as the practical side of maintaining such details would make the entire issue unworkable. In terms of the procedure as well as the advertisement there is provision only of re-totaling of marks and that information has already been furnished to respondent no.3. His further contention is that there is no requirement to furnish such details even under Right to Information Act, 2005. Stand has been taken that Hon’ble Supreme Court has been consistent in its opinion that there is no occasion for reassessment of answer script and the recent decision rendered by the apex court in the case of Secretary West Bengal Council of Higher Secondary Education vrs. Ayan Das and others reported in (2007) 8 SCC 242 has been relied on. The emphasis has been placed on paragraph-5 of Suvankar case (2007) 1 SCC 603 which has been extracted by the apex court laying down the law on the issue. A plain reading of the above judgment would show that right to information cannot be expanded and stretched to such limit wherein information not even envisaged or provided for by the petitioner is required to be furnished as directed by the State Information Commission. Para: 13. In savankar case it was enter alia observed as follows: (SCC PP 606-07, para 5) “5. The Board is in appeal against the cost - 6 - imposed. As observed by this Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh kumar Sheth, 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 their 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.” The State Information Commission has appeared and filed their counter affidavit. Counter affidavit has also been filed on behalf of respondent no. 3. Their submission is basically in support of the impugned orders passed by the Information Commission. The Stand is that the order passed is legally and statutorily correct and it is within the ambit of Right to Information Act, 2005. The question for consideration before the Court is whether the impugned orders passed by the State Information Commission is within the powers and the ambit of the Right to Information Act, 2005 or not? The Court has therefore to examine the parameters and the substantive provisions of the Act. - 7 - The preamble of the Act states as under: An Act to provide for setting out the practical regime 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. It is stated further more that: Democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed; The Prime Minister of India, while piloting the Bill for its passage before Parliament in his address on 11th May, 2005 stated as under: I believe that the passage of this Bill will see the dawn of a new era in our processes of governance, an era of performance and efficiency, an era which will ensure that benefits of growth flow to all sections of our people, an era which will eliminate the scourge of corruption, an era which will bring the common man’s concern to the heart of all processes of governance, an era which will truly fulfill the hopes of the founding fathers of our Republic. Evidently the major objective of the Act are: (i)greater transparency in functioning of public authorities, (ii)improvement of accountability and performance of the Government, (iii) promotion of partnership between citizens and the Government in decision making process; and (iv) reduction in corruption of the Government departments. All the above parameters are critical elements of good governance. The Act categorically lays down under section 3 that subject to the provisions of this Act, all the citizens “shall” have right to information. Section 4 creates obligation upon every public authority who are envisaged under the said section. The ambit as well as reading of sections leads ones to believe that the - 8 - emphasis of the legislation is more on the public authority to furnish information rather than withhold them. The exemption or escape for a public authority is limited in its ambit to the exemption which has been given against disclosure under section 8 of the Act. Section 22 of the Act states that the Act shall have over riding effect. Section 22: 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 effect by virtue of any law other than this Act” It is not the debate that the petitioner is a “Public Authority” within the meaning of section 2 (h) of the Information Act. In otherwords, the petitioner do not have any special status or exemption provided under the Act which can take them out of the rigor and responsibility assigned under Right to Information Act. Learned Senior counsel appearing on behalf of the State Information Commission submits that the Information Act being the special Act therefore section 22 of the Act will always have over riding effect over other provisions of law or rules. Merely because the Public Service Commission did not provide provisions for furnishing question wise marks it did not mean that they are precluded or exempted for furnishing the same if demand is made by a citizen under the Act. His contention is that even the stand taken by the petitioner that there will be hardship and inconvenience caused to them if such information has to be furnished looking at the large number of examinees who appeared - 9 - in various examinations year after year because as early as in the year, 1950 the Constitution Bench of the Hon’ble Supreme Court in the case of Commissioner of Agricultural Income Tax vrs. Keshab Chandra Mandal reported in AIR 1950 (87) SC 265 had this to say in paragraph 20 of the judgment as under : “There is an argument based on hardship or inconvenience. Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute or the rules.” The stand therefore on behalf of the State Information Commission is that the direction issued to the petitioner to furnish the information is within the ambit and power of the Information Commission provided under Right to Information Act. Respondent no. 3 is not seeking re-evaluation of his answer book nor he is seeking furnishing of answer book, he only wants break up of the marks which has been given to the answers given by him in the said examination. Submission is also made that in the light of the statutory provisions the petitioner will have to come out of the colonial mind set and gear up to meet the challenges created under the new law of the land. Learned counsel appearing on behalf of the private respondent no.3 submits that his hands has been forced in demanding such informant from the constitutional body in question because they have not performed their duties and functions in an honest and fair manner. There are many instances where wrong doing by the BPSC has come into public domain and - 10 - many of the examinations held by them had been put through judicial scrutiny and the allegation made has come true. It is one of the few Public Service Commissions where a large number of Chairmen and Members had even gone to jail for their unfair or dishonest conduct. The respondent no.3 in this background armed with the right conferred upon him as a citizen of the country under Right to Information Act has decided to assert and claim information and the petitioner is duty bound to furnish such information. The respondent no.3 is not asking for re-evaluation of answer sheets in question but only would like to have the break up of the marks, question wise to the optional and compulsory subjects which the respondent no.3 had opted for in the said examination. The matter therefore has to be judged in view of the above rival submissions whether the impugned decisions rendered by the State Information Commission falls foul of any of the provisions of any law and more so under Right to Information Act, 2005. On reading of section 2(h) coupled with sections 3, 4, 8 and 22 of the Act the Court has some difficulty in accepting the stand of the petitioner that they are not duty bound to furnish the information demanded by respondent no.3. Even a reading of the impugned orders would show that the State Information Commission has not transgressed its power in coming to the conclusion and directing the petitioner to furnish the information demanded by respondent no.3. The counsel appearing for the - 11 - petitioner has failed to demonstrate as to which provision or exemption provided for under section 8 of the Act protects them from the rigors of the impugned orders. The preamble of the Act read with the Prime Minister’s statement to the House at the time of passage of the bill, compels the Court to come to one conclusion that the petitioner have no option but to gear up to new challenges and demand of an empowered citizen under specially created enactment by the Parliament of India. The Act has been put into effect with the object of open governance and a participative government which only shall fulfill the needs or assurance of the people as envisaged under the constitution of India. Information and knowledge is critical for realizing human aspiration. A knowledgeable society can only assert themselves and demand express quality of life and assertion of right fundamental or otherwise under the new era. The Court has a duty under the law to hold in favour of a citizen which will only help in furtherance of the object of the Information Act. An interpretation has to be given which fulfills the object and right conferred upon the citizens under section 3 of the Act and not to dilute or mar it in any other manner. In totality, therefore this writ application is misplaced and the petitioner has not made out a case for interference against the impugned orders under challenge. This writ application is accordingly dismissed. RPS (Ajay Kumar Tripathi,J.)