IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.34630 of 2007, 6518 and 10327 of 2008, 4113, 18049 and 21109 of 2009 and M.P.NOs.1 of 2007, 1 and 1 of 2008, 1,1 and 1 of 2009 The Tamil Nadu Public Service Commission, rep. by its Secretary, Omanthoorar Government Estate, Chennai-600 002 ... Petitioner in all the petitions Vs. 1.The Tamil Nadu Information Commission, rep. By its Registrar, Kamadhenu Super Market, First Floor, Old No.278, New No.373, Anna Salai, Teynampet, Chennai-600 018. .. 1st respondent in all the petitions 2.J.Mohanraj .. 2nd respondent in W.P.No.34630 of 2007 V.Anbalagan .. 2nd respondent in W.P.No.6518 of 2008 M.Perumal .. 2nd respondent in W.P.No.10327 of 2008 P.Kozhandavelu .. 2nd respondent in W.P.No.4113 of 2009 Dr.K.Sivasankari .. 2nd respondent in W.P.No.18049 of 2009 P.Mohanmuniyandi .. 2nd respondent in W.P.No.21109 of 2009 W.P.Nos.34630 of 2007, 6518 and 10327 of 2008, 4113, 18049 and 21109 of 2009 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in respect of the impugned order issued by the first respondent dated 16.7.2007 in case Nos.3430 and 3431/Enquiry/2007, impugned order dated 9/12.11.2007 in case No.15446/Enquiry/2007, https://hcservices.ecourts.gov.in/hcservices/ impugned order dated 9.1.2008 in case No.24260/Enquiry/2007, impugned order dated 23.12.2008 in Case No.12713/Enquiry/2008, impugned order dated 20.5.2009 in Case No.4014/Enquiry/2009 and the impugned order dated 14.7.2009 in case No.33375/Enquiry/2008 and to quash the same as void, unlawful, unjust and unconstitutional. For Petitioner : Mr.G.Masilamani, SC for Mr.R.Sureshkumar and Mr.K.Surendranath For Respondents : Mr.G.Rajagopal, SC for M/s.G.R.Associates for R1 in all the writ petitions Mr.V.R.Rajasekaran for R2 in WP.10327/08 Mr.S.Kumaradevan for R2 in WP.6518/08 Mr.V.Chandrakantan for R2 in WP.21109/09 Ms.R.Meenal for R2 in WP.18049/09 Mr.R.Malaichamy for R2 in WP.4113/09. - - - - COMMON ORDER In all the six writ petitions, the petitioner is the Tamil Nadu Public Service Commission (for short TNPSC) represented by its Secretary. The challenge made in these writ petitions are the orders passed by the first respondent Tamil Nadu Information Commission represented by its Registrar. 2.The contesting second respondents had sought for certain information from the petitioner TNPSC. When the same was not forthcoming, they approached the Information Commissioner and the Commission, after notice to the TNPSC, granted directions to the TNPSC to divulge information sought for by the contesting respondents. 3.In these writ petitions, notice was ordered to the respondents. Pending notice, an interim stay was granted. The following table will show the number of writ petitions, name of information seeker/contesting respondent and whether any interim order granted and the date of the interim order: Sl.No . W.P.No. Name of information seeker Interim order granted and date of interim order 1 34630 of 2007 J.Mohanraj Interim stay, dated 06.11.2007 2 6518 of 2008 V.Anbalagan Interim stay, dated 14.3.2008 https://hcservices.ecourts.gov.in/hcservices/ Sl.No . W.P.No. Name of information seeker Interim order granted and date of interim order 3 10327 of 2008 M.Perumal Interim stay, dated 24.4.2008 4 4113 of 2009 P.Kozhandavelu Interim stay, dated 23.3.2009 5 18049 of 2009 Dr.K.Sivasankari Interim stay, dated 10.9.2009 6 21109 of 2009 P.Mohanmuniyandi Interim stay, dated 15.10.2009 4.The following table will show the writ petition number, date of order of the Tamil Nadu Information Commission and the nature of information directed to be divulged: Sl.No . W.P.No. Date of the impugned order Nature of information directed to be divulged 1 34630 of 2007 16.07.20 07 To provide information sought for by the petitioner. 2 6518 of 2008 12/11/07 To provide answer keys 3 10327 of 2008 30/1/2008 To provide copies of answer sheet and answer key 4 4113 of 2009 23.12.2008 To provide information regarding the action taken in representations, dated 15.2.2008, 13.11.2007 and 11.12.2007. 5 18049 of 2009 4/6/09 Answer key, master key and OMT answer sheets and marks awarded 6 21109 of 2009 14.07.2009 Answer key, etc. 5.Mr.G.Masilamani, learned Senior Counsel leading Mr.R.Sureshkumar and Mr.K.Surendranath, counsel appearing for TNPSC contended that the orders of the Tamil Nadu Information Commission (first respondent) in all the writ petitions are illegal and contrary to the provisions of the Right to Information Act, 2005 (for short RTI Act) and that the TNPSC is a constitutionally created mechanism in terms of Article 315 of the Constitution. 6.Before going into the issues raised in these writ petitions, it is necessary to decide the status of the writ petitioner. The TNPSC like any other State Public Service Commission, is established in terms of Article 315 of the Constitution. Under Article 320(1), it shall be the duty of the State Public Service Commission to conduct examinations for appointment to the service of the State. Further, under Article 320 https://hcservices.ecourts.gov.in/hcservices/ (3), the TNPSC can also be consulted on all matters relating to the method of recruitment in civil services and for civil posts. It is also entitled to be consulted by the State Government. It is the duty of the TNPSC to advise on any matters referred to them. The members of the TNPSC enjoy certain constitutional safeguards in the matter of removal as provided under Article 317 of the Constitution. Though the Supreme Court has held in several matters that the word "shall" found under Article 320(3) is not mandatory, it is only directory. But, however it is the duty of the Public Service Commission to present annually to the Governor of the State a Report of work done by the Service commission including a memorandum of the reasons given by the State Government for not accepting its advise and the same shall be placed before the State legislature concerned. Therefore, the TNPSC is undoubtedly a "public authority" in terms of Section 2(h) of the RTI Act. Therefore, there is no question arise in the present case about the applicability of the RTI Act to the writ petitioner. 7.The learned Senior Counsel appearing for the petitioner attempted to suggest that in case of examinations conducted by the TNPSC, both oral and written, marks are available and are also published. After oral interview, a select list made by the TNPSC is also put out in the website. However, after publication of results, the key answers kept by the TNPSC as well as the answer sheets are not provided to any candidate as a matter of policy. The TNPSC is not bound to disclose the information sought for in this regard. He also referred to the manual on the RTI Act prepared by the TNPSC and stated that the Commission though has decided to share certain types of information, having regard to Section 8 of the RTI Act, it has decided that 27 items will not be available in public domain as found in the manual. "7. Information exempted under Section 8:- ----------------------------------------------- Having regard to the nature of the functions of the Commission there shall be no obligation to give any citizen, any information on the items listed below under Section 8 as disclosure thereof would harm the interest and competitive position of other candidates or third parties unless the competent authority, depending upon the facts of the case, is satisfied that larger public interest warrants the disclosure of such information:- Information relating to all departmental tests and competitive examinations under direct recruitment that could not be shared. 1. Names and address of question paper Setters, Moderators, Printers of Question papers, Evaluators of answer books, Experts and Departmental Representatives who assist the https://hcservices.ecourts.gov.in/hcservices/ interview, composition of interview boards. 2. Assessment of merit of the candidates, Written/Oral Test marks until the finalization of the final selection results. 3. Answer sheets/marks sheets of the candidates. 4. Answer sheets and marks sheets of other candidates. Selection List/Reserve List. 5. Details regarding payment mode to question paper Setters, Printers, Examiners, Experts, Departmental Representatives or any person or organization who assist the Commission in examination work. 6. Names and address of the Chief Invigilators/Invigilators of the Examination Hall. 7. Details of Scanning & Checking of OMR Answer sheets. 8. Scheme of Valuation and Model Answers. 9. Instructions to Examiners/Moderators. 10.Details of answer books evaluated by Examiners and marks awarded by them. 11. Application and enclosure of other candidates, Nominal Rolls, Memo of Admission (Hall Ticket) of other candidates, seating arrangement etc. 12. All details of out-sourcing. 13. Interview Statements & Proceedings. 14. Agenda and Minutes of Commission's meetings proceedings. 15. Office Orders and Commission's Proceedings etc.. 16. Commission's correspondence with outside agencies. 17. Copy of notes in respect of appointment of personnel for doing confidential works. 18. Information which would harm the competitive position of other candidates/ their parties, unless the competent authority is satisfied that https://hcservices.ecourts.gov.in/hcservices/ the larger public interest warrants the disclosure of such information. 19. Information expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court. 20. Information received in confidence from any other State Public Service Commissions/ Union Public Service Commission or any other organizations/institutions or any department of the Government. 21. Information, disclosure of which would endanger the life or Physical safety of any person or identify the source of information or assistance given in confidence for conducting any investigation/inquiry. 22. Information, which would impede the process of investigation or apprehension or prosecution of offenders. 23. Matters relating to disciplinary cases of the Staff and Officers of the Tamil Nadu State and Subordinate service. 24. Personal Information which has no relation to any public activity or interest or the disclosure of which would cause un-warranted invasion of privacy of an individual unless the 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. 25. Information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interest of the State, relation with foreign State or lead to incitement of an offence. 26. Information, the disclosure of which would cause a breach of privilege of parliament or the State Legislature. 27. Provided that those matters which come under the exemptions specified in Section 8(1) of the Act shall not be disclosed." 8.Therefore, when they received certain applications from the contesting respondents, they had duly informed them about their https://hcservices.ecourts.gov.in/hcservices/ inability to provide such information. On such rejection, even the appellate authority appointed under the Act has also negatived such information. Thereafter, when TNPSC was issued notice by the Information Commission, in response sent to the Information Commission, the TNPSC, by letter, dated 28.9.2007 to one Perumal, stated as follows: "I am directed to invite attention to the references cited and to say that as the process of conduct of examination is indeed a confidential activity undertaken by various examination bodies and disclosure of answer sheets would not save any public interest and therefore disclosure is based u/s 8(1)(d) of the Act, and thus decision is upheld by the Central Information Commission, New Delhi. Under the same analogy, the Tamil Nadu Public Service Commission is not in a position to disclose the answer sheets. Hence the request of the Information Seeker in this regard, cannot be complied with. 2.Also, I am to say further that as regards providing of answer keys to the test booklets, the Information Seeker is informed that the issue pertains to the core activities of the Commission similar to that of the UPSC. In a similar case, the UPSC had filed a LPA in the Hon'ble High Court of Delhi on this and related issues against the decision by the Central Information Commission in the matter and the operation of the decision by the CIC, had been stayed by the Hon'ble High Court. Therefore, a decision in the matter will be taken by the Tamil Nadu Public Service Commission after final orders are passed in the matter. Hence, necessary reply to the Information Seeker will be sent to him, after a final decision in the matter is taken." 9.Notwithstanding the stand taken by the TNPSC, the first respondent Commission had now stated in most of the impugned orders and they are as follows: "At the enquiry the petitioner confirms the facts stated above and the Public Authority has stated that they are awaiting the decision to be taken in the dispute between the UPSC and the CIC and the decision of the Delhi High Court. As such they have not carried out the orders of the Commission, stating they have not received the Delhi High Court judgment. The issue here is the jurisdiction of various Commissions' and Courts'. Territorial and legal jurisdiction of CIC/UPSC and the Delhi High https://hcservices.ecourts.gov.in/hcservices/ Court do not coincide with that of the TNIC and TNPSC. Since the Act does not provide for any over riding decision by the CIC on that of the SIC nor the judgment of the Delhi High Court would be binding on TNIC, the argument made by the Service Commission appears to be misplaced, since the RTI Act is very clear in what is exempted and what cannot be exempted. The purpose of the Act is total transparency in the Government except for the items specifically exempted. The TNIC is unable to appreciate the stand taken by the Tamil Nadu Public Service Commission. The TNIC has repeatedly stated in a number of judgements given earlier and has pointed out that while constitutional bodies have their independence which cannot be encroached upon, other statutory bodies also have roles which cannot be abdicated, and the role of each of the constitutional bodies has to be respected by other constitutional bodies with regard their particular role only. As such the TNIC would insist that the information muse be given and non compliance will have to be taken as a defiance of the orders of the Commission and the Registrar is authorized to file an appropriate petition before the Hon'ble High Court as warranted." 10.The learned Senior Counsel emphasised that the matter is covered by the exemption provided under Section 8(1) of the Act and more particularly Sections 8(1)(d), 8(1)(e) and 8(1)(j), which is as follows: "8.Exemption from disclosure of information.- (1)Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, - ..... (d)information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e)information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; .... (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 https://hcservices.ecourts.gov.in/hcservices/ 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." 11.Therfore, the information sought for by the contesting respondents, there was no larger public interest warranting such disclosure. In W.P.No.4113 of 2009, they are not bound to disclose the order as the information related to a third party and Section 8 squarely applies. Apart from the said submission, the learned Senior Counsel further submitted that such disclosure will lead to opening a Pandora's box, which will only scuttle all TNPSC's work. He also further submitted that they did not have enough manpower to deal with ever increasing applications seeking for information. 12.Per contra, Mr.G.Rajagopal, learned Standing Counsel for the Information Commission submitted that so long as TNPSC is a "public authority", information kept with them are available in public domain. The right of information is a part of the fundamental right protected by Article 19(1)(a) of the Constitution. Like any other authority, they are also accountable. The promotion of transparency and accountability is the object behind the RTI Act, which is set out in the preamble to the Act. Under Section 6(2), an applicant seeking for a request for information, shall not be required to give any reason for requesting information. He need not give any other personal details except those that may be necessary for contacting him. Therefore, the question of going into the bonafide of the contesting respondents may not arise. So long as the information sought for by them is not exempted under Sections 8, 9 or 24, a public authority is bound to provide information. If the information involved a third party and they are keeping the information that information can be disclosed, if public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. 13.The learned counsel for some of the contesting respondents submitted that since the public information officer and the appellate authority nominated by the TNPSC had negatived the queries made by them and that the Information Commission has now overruled their objections, the order under the RTI Act has become final and the TNPSC cannot be said to be the "aggrieved person" in challenging the order of the Information Commission. Therefore, the writ petitions at the instance of the TNPSC are not maintainable. 14.In the light of the rival contentions, the issues raised are set out and the findings thereon is given below: 14.1. Whether TNPSC can maintain such a writ petition? Merely because a public authority under Section 5 designates an https://hcservices.ecourts.gov.in/hcservices/ information Officer, it does not mean that their right to question the orders passed by the Commission directing the Information officer or the appellate authority designated by them under Section 19 to furnish information, their power gets denuded. In fact it is for convenient sake, the information officers are notified by each public authority. Ultimately, the information is provided only by the public authority through the mechanism of an information officer or the appellate authority, as the case may be. Even if theirs order are questioned or to be negatived by the Information commission, certainly a public authority (in the present case TNPSC) is entitled to question the order of the information commission. Since the information commission is a statutory functionary, the decision of the Commission must be informed of reasons. Therefore, judicial review is permissible against the order of the information commission. If the order passed by the information commission is contrary to the RTI Act, the aggrieved public authority can question such information. Therefore, the objection in this regard by the contesting respondents has to be rejected. 14.2.Whether entertainment of such request for information will open Pandora's box and on that ground any restriction can be made on disclosure of such information? With reference to the argument that it will open Pandora's box for many persons seeking such information, thereby making the work of the TNPSC go out of gear also cannot be accepted. Similar argument made in desperation was rejected by the Supreme Court vide its judgment in N. Kannadasan v. Ajoy Khose reported in (2009) 7 SCC 1. The Supreme Court in paragraph 127 of its judgment observed as follows: "127. Mr Venugopal would submit that such an interpretation would open a floodgate. We do not think so. We even wish no occasion like the present one arises in future before the superior courts for their consideration. Even otherwise, the floodgate argument does not appeal to us. In Coal India Ltd. v. Saroj Kumar Mishra37 this Court held: (SCC p.632, para 19) “19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties. (See Zee Telefilms Ltd. v. Union of India38 and Guruvayoor Devaswom Managing Committee v. C.K. Rajan39.)” 14.3.Whether the argument that the TNPSC does not have wherewithal, i.e. enough staff to cope up with ever increasing query and they are already saddled with heavy work of conducting examinations for https://hcservices.ecourts.gov.in/hcservices/ larger number of applicants in various Government services, can be accepted. Lack of human resources can never be pleaded as a ground to defeat the purpose of RTI Act. This court earlier in a judgment in Public Information Officer/ Deputy Commissioner of Archives and Historical Research, Tamil Nadu Archives Vs. State Chief Information Commissioner and others in W.P.No.20372 of 2009, dated 7.1.2010, in paragraph 13 observed as follows: "13.The other objections that they are maintaining a large number of documents in respect of 45 departments and they are short of human resources cannot be raised to whittle down the citizens' right to seek information. It is for them to write to the Government to provide for additional staff depending upon the volume of requests that may be forthcoming pursuant to the RTI Act. It is purely an internal matter between the petitioner archives and the State Government. The right to information having been guaranteed by the law of Parliament, the administrative difficulties in providing information cannot be raised. Such pleas will defeat the very right of citizens to have access to information. Hence the objections raised by the petitioner cannot be countenanced by this court. The writ petition lacks in merit." 14.4:Whether the TNPSC can take cover under the provisions regarding exemptions provided under the RTI Act: None of the exemptions found in Sections 9 and 24 are pleaded in this case. Arguments based upon Section 8(1)(d) has no relevance since the said sub section deals only with the information based upon commercial confidence, trade secrets or intellectual properties. In this case, no such question arises. Similarly the argument based upon exemption under Section 8(1)(e), i.e. the information is available to the Commission was in fiduciary relationship and there are no larger public interest warranting disclosure of such information also cannot be accepted. Merely because in the manual prepared by the TNPSC, they have made such reservation claiming to be fall under Section 8, that will not deter the respondent Information Commission to direct them to disclose the information. The exemption claim should be in terms of RTI Act and not otherwise. The petitioner TNPSC is only conducting examinations for candidates, who are seeking public employment. Article 16 of the Constitution deals with the employment or appointment to any office under the State and also guarantees non discrimination in respect of employment or office under the State and also provides for reservation for certain class of employment as well as reservation in promotions. These are all vital information which a citizen is entitled to get, since after selection if a person gets appointed to public office, the https://hcservices.ecourts.gov.in/hcservices/ authority under which he holds office can also be questioned in an appropriate legal forum. 15.It must be noted that Article 16 is a spread of Article 14. Therefore, non arbitrariness is held to be a part of Article 16 by the Supreme Court vide its decision in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress reported in 1991 Supp (1) SCC 600. 16.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 a decision in Secretary General, Supreme Court of India Vs. Subhash Chandra Agarwal reported in 2010 (1) CTC 241. The meaning of the term "Fiduciary 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,