In the High Court of Punjab and Haryana at Chandigarh. C.W.P. No.9427 of 2008 Date of Decision:27-05-2008 Haryana Public Service Commission, Chandigarh. .....Petitioner State Information Commission and another ....Respondents Coram : HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA **** Present : Mr. H.N. Mehtani, Advocate for the petitioner. **** M.M. KUMAR, J. This petition filed under Article 226 of the constitution challenges order dated 2.4.2008(Annexure P-7 allowing the application filed by Sh. Dalip Singh Gill-respondent No. 2 seeking C.W.P. No.9427 of 2008 {2} two types of information from the petitioner. The State Information from the petitioner. The State Information Commission, Haryana, has allowed the application by directing the petitioner -Haryana Public Service Commission (for brevity ‘the HPSC’) to furnish the following information:- “(a) Criteria adopted by the Commission for selection of Assistant Engineer (Electrical) in the year 2004 for 145 posts plus 21 posts. (b) How many marks were allotted for academic qualifications, experience and interview during selection process.” 2. It is appropriate to mention that the daughter of the applicant-respondent No. 2 has filed C.W.P.No. 7760 of 2007 apparently challenging selection and appointment of some persons on the post of Assistant Engineer (Electrical). He has sought information for use of prosecuting the writ petition. The operative part of the order issuing direction to the petitioner to supply two types of information , referred to above, read thus:- “After perusing the case in its totality and listening to the arguments from both sides, the State Information Commission is of the opinion is that the information being asked for is of general nature. It has no element of confidentiality. It is not related to any individual or C.W.P. No.9427 of 2008 {3} person does not invade privacy. The information being asked for has not relationship or bearing on the ongoing court case C.,W.P.No. 7760 of 2007 Meghna Gill v. State of Haryana. The other C.W.P. cited by the respondents are also not related to the case under discussion. They are in any case pre 2005when the R.T.I. Act had not come into effect. All such cases in the future are likely to be viewed in different perspective, keeping into consideration the spirit of the RTI Act. Hence, the State Information Commissioner is of the opinion that the stance adopted by the Haryana Public Service Commission with regard to supply of information needs to be adjusted in tune with the spirit of RTI Act to enhance and enjoy public confidence. Keeping in view the above, the following orders are passed:- (a) Haryana Public Service Commission will provide information to the appellant on two accounts that he has requested vide his letter dated 29th May, 2007 by 30th April, 2008. (b) Compliance report will be submitted to the State Information Commission by 5th May 2008.” 3. Mr. H.N.Mehtani,. learned counsel for the petitioner- C.W.P. No.9427 of 2008 {4} HPSC has argued that the information sought by the applicant- respondent No. 2 is highly confidential and no useful purpose would be served if it is revealed to the applicant-respondent No. 2. the petitioner has placed reliance on an order dated 21.5.2007 passed by the learned Judges of LPA Bench of Delhi High Court in LPA No. 313 of 2007 (P-15 titled as UPSA vs. Central Information Commission) and has argued that the LPA Bench has stayed the directions of the learned Single Judge asking the UPSC to disclose the cut off marks kept for optional subject as well as General Study of the Civil Services (Preliminary Examination) 2006. Hon’ble Single Bench of the Delhi High Court vide judgment dated 17.4.2007 has issued direction modifying the order passed by the Central Information Commissioner and the aforementioned order passed by the Single Judge has been stayed by the LPA Bench on 21.5.2007. He has also submitted that in a number of case this Court as well as Hon’ble the Supreme Court has rejected such type of prayer made by the candidates or their relations. He has placed reliance on the order dated 7.11.2003 passed by a Division Bench of this Court in C.W.P.No. 8197 of 2003 (Annexure P-13) and order dated 4.11.2003 passed by a Division Bench of this Court in C.W.P.No. 19961 of 2002 (Annexure P-12). 4. We have bestowed our thoughtful consideration on the C.W.P. No.9427 of 2008 {5} submission made by learned counsel for the petitioner. However, we have not been able to persuade ourselves to accept the submission made by Mr. Mehtani. It is well settled that right to know and access to information is part of fundamental right under Article 19(1)(a) of the Constitution. The afore-mentioned view has been reiterated by a Constitution Bench of the Supreme Court in the case of M.Nagaraj v. Union of India (2006) 8 SCC 212. The right to information has been read into the fundamental right guaranteed by Article 19(1)(A) and 19(2) which deals with freedom of speech and expressions. Similar view has been expressed by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties v. Union of India (2004) 2 SCC 476. In para 48 of the judgment the Supreme Court has observed as under: “ In keeping with the spirit of the Universal Declaration of 1948, the preamble of the Constitution of India embodies a solemn resolve of its people to secure, inter alia, to its citizens, liberty of thought and expression. In pursuance of this supreme objective, Article 19(1)(a) guarantees to the citizens, the right to “freedom of speech and expression” as one of the fundamental rights listed in Part III of the Constitution. These rights have been advisedly set out in broad terms leaving scope for their expansion and adaptation, through interpretation, to the changing needs and evolving notions of a free society.” C.W.P. No.9427 of 2008 {6} 5. The facts of this case has to be examined in the backdrop of the aforesaid observations of Hon'ble the Supreme Court. In the present case, the applicant- respondent no.2 have sought information about the criterion adopted by HPSC for selection of Assistant Engineers (Electrical) in the year 2004 for 145 posts plus 21 posts. Further information has been sought as to how many marks were allocated for academic qualifications, experience and interview during the selection process. It is well settled that selection criterion for every selection has to be laid down by the appointing authority before the commencement of selection process for a public service. The afore-mentioned proposition has been laid down in the case of Secretary A.P. Public Service Commission v. V.B Swapana (2005) 4 SCC 154 and Maharashtra SRTC v. Rajinder Bhimrao Mandave ( 2001) 10 SCC 51. It is equally well settled that no change could be made in the the selection criteria after the announcement of selection process and in any case subsequent change would not apply to the selection process unless there is an express provision made by the legislation to apply such change retrospectively. If the information with regard to selection criterion and marks allocated for academic qualification, experience and interview during the selection process is not disclosed to the candidate then their legitimate right to compete in the selection process is likely to be effected adversely. C.W.P. No.9427 of 2008 {7} The criterion for selection and marks allocated to various heads are in public domain and for the benefit of each and every candidate. The taxpayers who are contributing to the public service are also entitled to know as to how the selection of public servant is being made. The disclosure of such information is unlikely to cause any embarrassment to any private individual as it obviously does not relate to private affairs of individual nature. The information sought does not require the disclosure of marks obtained by a particular individual. The candidates who are to take exam either by appearing in the written test or in viva voce are widely interested and affected by the disclosure of the information as their prospectus of selection are likely to improve or mar by the selection criterion. We are further of the view that the transparency of recruitment process by the agencies like Public Service Commission is the hallmark to avoid any whisper. It is well said that sun light is the best antiseptic and secrecy breeds corruption. If there is openness in the processes of selection it promotes equality, objectivity and impartiality. 6. The judgment of the Division Bench of this Court on which reliance has been placed by the learned counsel for the HPSC- petitioner would not be attracted because it pertains to the period prior to the enactment of Right to Information Act, 2005(for brevity ‘the Act’). It is appropriate to read Section 8 of the Act C.W.P. No.9427 of 2008 {8} which provides for the exemption from disclosure of information and the same reads thus:- “8(1)Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:- (a) information, disclosure of which should prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (C) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (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; (f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in C.W.P. No.9427 of 2008 {9} confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberation of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (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. (2) Notwithstanding anything in the Official Secrets Act,1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in C.W.P. No.9427 of 2008 {10} disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c ) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. 7. A perusal of the aforementioned Sections shows that there is absolute bar on six out of ten exceptions namely clauses (a), (b), (c), (f), (g) and (h). The Central or State Public Information officer has been left with no option except to refuse to divulge information in respect of subjects covered by those six clauses. For the rest of the subjects covered by clauses (d), (e), (h) & (i) of Section 8 of the Act, the information officers have to record findings by assessing the comparative weight between the public interest and the secrecy. If public interest outweighs private interest then information has to be divulged. Otherwise the officer could record refusal to divulge. It only prohibits furnishing of information which relates to an individual and the disclosure of which has no relationship to any public activity or interest or it C.W.P. No.9427 of 2008 {11} would cause unwarranted invasion of the privacy of the individual unless the CPIO or SPIO unless the appellate authority is satisfied that the larger public interest justifies the disclosure of such information. The other prohibition has been incorporated by Section 11 of the Act from disclosing the information given by third party. There is thus, no impediment in the disclosure of information of the nature which has been directed to be furnished by the State Information Commission-respondent No. 1. 8. The reliance of Mr. H.N. Mehtani, learned counsel for the petitioner on the order dated 21.5.2007 passed in LPA No. 313 of 2007 (Annexure P-15) would not come to the rescue of the petitioner-HPSC because firstly, it is merely an interim order and the details of the judgment delivered by learned Single Judge has not been placed before us. The interim order staying the operation of the order of the learned Single Judge also is equally incomplete. The averments in para 15 of the petitioner that the learned Single Judge has issued directions to disclose the cut off marks for the optional subject as well as general studies Civil Services (Preliminary Examination) 2006 conducted the Union Public Service Commission is stated to have been stayed. We do not have the benefit of reading the reasoning adopted by the learned Single Judge for favouring disclosure of the information nor we have the advantage of reading any details of interim orders because there C.W.P. No.9427 of 2008 {12} are no details available. In such a situation no opinion could be expressed either way. Therefore, no reliance could be placed on such an incomplete order. 9. In view of the above, the writ petition fails and the same is dismissed. (M.M.Kumar) Judge (Sabina) Judge 27.5.2008 paramjit