LPA No.579 of 2011 (O&M) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARAYANA AT CHANDIGARH LPA No.579 of 2011 (O&M) Date of Decision: March 25, 2011 The Haryana Public Service Commission and another ….Appellants Versus The State Information Commissioner, Haryana and others. ….Respondents CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE ARVIND KUMAR Present: M/s Tejinder Singh Dhindsa and H.N.Mehtani, Advocates for the appellants. HEMANT GUPTA, J.(Oral) The Haryana Public Service Commission (for short “the Commission”) is in appeal against the order passed by the learned Single Judge of this Court 10.01.2011 wherein the writ petition filed by the Commission against the order 23.02.2010 passed by the State Information Commissioner, Haryana was dismissed. Respondents No.2 to 4 herein, are the candidates of Haryana Civil Services (Executive Branch) and Allied Service Examination, 2009. Such candidates have sought information in respect of answer booklets of the subjects of General Knowledge and Zoology as well as model key of the said subjects/ answer booklets. The State Public Information Officer of the appellant has declined to disclose the said information being confidential but the learned State Information Commission has allowed the information to be disclosed in public domain. - 1- LPA No.579 of 2011 (O&M) The appellants challenged the said order of the State Information Commission before the learned Single Judge of this Court. The said writ petition stands dismissed. Having remained unsuccessful before the learned Single Judge, the appellants are in the present letters patent appeal. Learned counsel for the appellants vehemently argued that the information sought was restricted to the subject of General Knowledge and Zoology by respondents herein for their answer sheets whereas the Commission has issued general direction in respect of the giving information to all the candidates and directing the Commission to place the model key pubic by displaying the same on the Commission/Government of Haryana Website, which was not even prayed for. Thus, it is contended that the State Information Commissioner has exceeded its jurisdiction by directing the appellant to disclose the information which was not even sought by the applicants. We have heard learned counsel for the appellants at length but we find no merit in the present appeal. Though, the information sought by the candidates was in respect of their answer sheets but information in respect of answer key is of general in nature. The directions issued by the State Information Commissioner shall avoid multiple cases/requests of similar kind as well cases arising out of similar situation in respect of other examinations. Such direction serves salutary purpose and purpose of statute that such information should be in public domain. The implementation of such directions will cut short delay and expense not only by the present appellant but by all the candidates and would larger public good. Disclosure of such information will also bring transparency in the functioning of the public institutions. - 2- LPA No.579 of 2011 (O&M) Somewhat similar question came up for consideration before the Division Bench of Calcutta High Court in a judgment reported as University of Calcutta & others Vs. Pritam Rooj, AIR 2009 Calcutta 97, wherein the Court explained the scope of the provisions of the Act and also the disclosure of information in respect of answer-scripts. It held to the following effect: “44. The RTI Act has been enacted by the Parliament, while repealing the 2002 Act, for setting out the practical regime of right to information with a view to creating environment of transparency and sharing of information and provide every Indian citizen the basic constitutional and democratic right to gain access to certain information that may be held by public authorities. It primarily seeks to encourage and enhance transparency and accountability while intending to curb corruption. It is well known that corruption thrives on secrecy. Transparency may lead to its undiluted form, would be an essential tool to prevent corruption. ….. xxx xxx 54. We have no doubt in our mind that each and every step in a process of examination conducted by the University, the WBBSE and the CBSE are in public domain. In terms of rules / regulations framed by them, answer scripts, either written or not written, cannot be taken out of the examination hall by an examinee. Once the process of writing the examination is over and the answer script is handed over by an examinee to the invigilator for onward transmission thereof to the examiner for assessment / evaluation, the answer scripts become the property of the public authority and information in respect thereof, if sought for, cannot be denied on the specious ground that the examinee having answered the questions he knows better than anyone else what has been written on the answer scripts and, therefore, seeking of information in respect thereof would not be within the public domain. Public law element is omni- present in all stages of the process and access to answer scripts thus cannot be denied on the ground as urged. 55. The University sought to contend before the learned Judge that an answer written by an examinee on the answer script is not information and, therefore, he has no right to claim access to his answer script since it does not amount to a request seeking information that is accessible under the RTI Act. The contention is misconceived as has rightly been held by the learned Judge. According to His Lordship, ‘in the broader - 3- LPA No.579 of 2011 (O&M) 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”. 56. We share the same view. ……. xxx xxx 67. We are of the clear view that construing the provisions of the RTI Act, not in tune with the interests of the information seekers in the present case, would render a beneficial statute ineffective. The Court has to adopt that interpretation which is just, reasonable and sensible. Allowing the RTI Act to have its full play thereby promoting the idea of goods and transparent governance even if results in inconvenience to some and has the possibility of rendering a system in vogue unworkable, the inconvenience or hardship caused thereby has to yield to the larger public interest which is sought to be guaranteed by its operation. While the examining bodies do have the responsibility of completing the examinations on time, they must adapt themselves to the fluctuating needs of society rather than cling on to archaic procedure. This is necessary for instilling confidence in the minds of people whom they govern of being able to deliver according to the necessities of changing life.” Learned counsel for the appellants further argued that in terms of Section 8(1)(e) of the Act, the information relating to fiduciary relationship between the parties is exempt from disclosure. Thus such information cannot be disclosed. The plea of fiduciary relationship as raised in the present appeal was also raised before the Calcutta High Court. It was held that fiduciary relationship is not to be equated with privacy and confidentiality. It is one where a party stands in a relationship of trust to another party and is generally obliged to protect the interest of the other party. The Court held to the following effect: “77. …..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 - 4- LPA No.579 of 2011 (O&M) 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 by an examiner are held in trust by the public authority immune from disclosure under the RTI Act. We find no force in the contention which, accordingly, stands overruled.” We do not find any merit in the said argument inter-alia for the reasons recorded by Calcutta High Court in the above judgment.. The candidates have attempted multiple choice answers in OMR (Optical Mark Recognition) format. In a fiduciary relation one person, in a position of vulnerability, justifiably reposes confidence, good faith, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests. A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. An attempt by a candidate in such OMR sheets does not creates fiduciary relationship. For the reasons recorded above, we entirely agree with the view taken by the Calcutta High Court and find no merit in the present appeal. Dismissed. (HEMANT GUPTA) JUDGE 25.03.2011 (ARVIND KUMAR) Vcgarg/vimal JUDGE - 5-