TaxTMI 
TaxTMI 
2009 (2) TMI 876
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....e University) and its officers, judgment and order dated 28-3-2008 passed by a learned single Judge of this Court allowing W.P. No. 22176 (W) of 2007 is the subject-matter of challenge. The facts giving rise to the writ petition is that the petitioner, Pritam Rooj (hereafter Pritam) had taken the B.Sc. Part II (Three Year Honours) Examination, 2007 conducted by the University. Although Pritam was successful in clearing the examination, he was dissatisfied with the marks awarded to him in respect of Papers V and VI. He obtained 28 and 36 marks respectively out of a maximum 100. In terms of the regulations framed by the University, he applied for review of his answer scripts in respect of the aforesaid two papers. On revaluation, his marks in Paper V increased by 4 marks while there was no change in Paper VI. On or about 14-8-2007, he had made an application under the Right to Information Act, 2005 (hereafter the RTI Act) seeking inspection of his answer scripts. That application was turned down by the Registrar of the University, who is also its Public Information Officer in terms of the RTI Act, by a letter dated 17-9-2007 which reads as follows: In response to your above ....
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....then filed an application under Section 6 of the RTI Act on 22-6-2007 seeking inspection of answer scripts. By an order dated 26-7-2007, the Deputy Secretary (Examination) of the WBBSE being its Public Information Officer turned down the request. An appeal was preferred there against which was allowed on 7-9-2007 by the Appellate Authority being the Joint Secretary, School Education Department, Government of West Bengal. The Appellate Authority directed the Public Information Officer of the WBBSE to allow inspection of the scripts as applied for by the petitioner vide his application dated 22-6-2007 within 10 days of receipt of such order after realizing fees as per provisions of Rule 4 of the West Bengal Right to Information Rules, 2006. In the result, the order impugned dated 26-7-2007 was set aside. 5. The order of the Appellate Authority was not complied with by the WBBSE which resulted in filing of the writ petition claiming an order on the WBBSE to grant inspection of the answer scripts to the petitioner and to his son written by him in respect of English, Physical Science and History papers in compliance with the appellate order together with a direction for re-examinatio....
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....definition of 'information' under Section 2(f) is restricted by the provision contained in Section 2(j) in the manner that 'information' would have to be an information accessible under the RTI Act, and if such an information is accessible under the RTI Act, then only the incidental/explanatory/inclusive part of Section 2(j) would come into operation. According to him, right to information under the RTI Act is confined to public domain and answer scripts written by an examinee is relatable to private/personal information which is not guaranteed as incidental to the right of freedom of speech protected by Article 19(1)(a) of the Constitution. Article 19(2) of the Constitution empowers imposition of reasonable restrictions on the right conferred by Article 19(1)(a) by law and the WBBSE having framed regulations in terms of power conferred by the West Bengal Board of Secondary Education Act, 1963(here after the 1963 Act) having the force of law, which denies the examinees access to scripts by the examinees on construing answer scripts to be 'information' as defined in the RTI Act would offend Regulation 14(4) of the West Bengal Board of Secondary (Examination) ....
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....on and, therefore, answer scripts do not come within the ambit of the term 'information' under the RTI Act. According to him, the term 'information' under the RTI Act should be interpreted to mean information which can be widely published under Section 4(2) and could be disseminated under Section 4(3) of the RTI Act. 13. He further contended that legislative intent of a statute cannot be interpreted to lead to any absurdity and/or impracticability and hence having regard to the decisions of the Apex Court reported in AIR1986SC137 American Home Products Corporation v. Mac Laboratories Pvt. Ltd.; [1986]1SCR383 Girdhari Lal v. Balbir Nath Mathur and AIR2004SC2303 Lalit Mohan Pandey v. Puran Singh the RTI Act ought to be interpreted in a manner that the term 'information' defined therein does not include answer scripts of examinees taking a public examination within its ambit. He urged the Court to interpret the provisions of the RTI Act in a reasonable and rational manner to obviate any absurdity and/or impracticability arising out of working of the provisions of the RTI Act. 14. He strenuously urged the Court to hold that the definition of 'informati....
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....espect of each of the questions answered by them without giving access to the entire answer scripts and that would obviate the need of opening answer scripts of students to inspection which is; also not the object of the RTI Act. 17. He referred to the decision reported in [1985]1SCR29 Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumarsheth, etc. for the propositions that finality ought to be attached to the results of public examinations, that an examinee has no right to inspect his answer script, that principles of natural justice have no application in such cases and that any drawbacks in the policy incorporated in rules/regulations framed by examining bodies would not render the same ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one and not really intended to effectuate the purposes of the Act. He also relied on the decision reported in 2007 (1) SCC 603 President, Board of Secondary Education, Orissa v. D. Suvankar for the proposition that interference of Courts in academic matters is limited and it called for only if there be compelling ....
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.... of 2008 to contend that although the WBBSE has claimed exemption in terms of provisions contained in Section 8(1) of the RTI Act, such point was not argued on its behalf which clearly shows that it is itself not sure under which specific provision access to answer scripts may be withheld. 21. He then referred to the decisions reported in AIR 1980 SC 515 Indian Express Newspapers (Bombay) Private Ltd. v. Union of India; [1995]1SCR1036 Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal; [2002]3SCR696 Union of India v. Association for Democratic Reforms; AIR2004SC1442 People's Union for Civil Liberties v. Union of India; AIR2003Delhi103 Ozair Husain v. Union of India; AIR2005Bom145 F.A. Picture International v. Central Board of Film Certification, Mumbai to drive home the point that Right to Information has always been considered an integral part of the right guaranteed under Article 19(1)(a) of the Constitution. 22. While praying for dismissal of the writ petition filed by the WBBSE, he prayed for relief as claimed in the writ petition filed by the concerned examinee's father. 23. Mr. Chatterjee, learned Counsel, rep....
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.... cannot be deprived of such right to have Inspection and to take notes therefrom. 25. The decision in Paritosh Bhupesh Kumarsheth (supra) was sought to be distinguished by him by contending that the said decision was delivered while construing a particular regulation of the Maharashtra Secondary Education Board which expressly prohibited inspection of answer scripts by an examinee. He further contended that a special statute having been enacted to meet the changing problems of modern times, interpretation thereof ought to be made in a fresh manner free from the hang over of precedents delivered while considering old enactments. Reference in this connection was made to the decision reported in [1974]2SCR655 Katikara Chintamani Dora v. Guatreddi Annamanaidu. 26. To counter the argument of Mr. Mitra and Dr. Chakraborty that upholding an examinee's claim to have inspection of his answer scripts would amount to opening a floodgate of applications causing serious problem and prejudice to the public authority, he contended that such an argument is one of desperation and that only because there is a possibility of opening the floodgates for litigation, a mandatory right of a citi....
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....sically adds nothing new to the well recognized right of information fostered under the aforesaid judgments of the Hon'ble Apex Court of the country from time to time. According to him, while conducting public examinations, the WBBSE is obliged to bear in mind two primary objects of public interest, viz. (i) holding of examinations annually without any delay and (ii) finality of such examinations. If the examinees are allowed access to the answer scripts written by them by way of inspection or otherwise in terms of the RTI Act which would not serve any public interest, the WBBSE would be failing in its duty to achieve the interest of a vast majority of the society and, therefore, to harmonize and/or balance the conflicting Interests, the private interest of an individual must yield to the larger public interest or else the entire system would come to a grinding halt. 33. He contended that the WBBSE owes no public duty to grant inspection of scripts to the examinees by allowing access thereto. He reiterated that while definition of the word 'information' under the RTI Act is very wide, 'right to information, is narrowed down having regard to the provisions of the ....
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....ll the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaires. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security, see New York Times Co. v. United States (1971) 29 Law Ed 822 : 403 US 713. To cover with veil of secrecy, the common, routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption: XX XX XX To justify a privilege, secrecy must be indispensable to induce freedom of official communication or efficiency in the transaction of officia....
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....only cast intelligent and rational votes but should also exercise sound judgment on the conduct of the Government and the merits of public policies, so that democracy does not remain merely a sporadic exercise in voting but becomes a continuous process of Government-an attitude and habit of mind. But this important role people can fulfil in a democracy only if it is an open Government where there is full access to information in regard to the functioning of the Government. 666. ***The concept of an open Government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The: approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves ah important aspect of public interest.**** 39. In Secy. Ministry of Information & Broadcasting, Govt. of India (supr....
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....lections. While deciding the issue, the Apex Court held as follows: 30. Now we would refer to various decisions of this Court dealing with citizens' right to know, which is derived from the concept of 'freedom of speech and expression'. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MPs or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular Government and to assist the discovery of truth and strengthening the capacity of an individual in participating in the decision making process. The decision making process of a voter would include his right to know about public functionaries Who are required to be elected by him. ************** 46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be, stated that: *************** 5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International c....
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....; ********** 53. In Dinesh Trivedi this Court held: (SCC p. 314, paras 18-19) 18. The case of S.P. Gupta v. Union of India [1982]2SCR365 decided by a seven Judge Constitution Bench of this Court is generally considered as haying broken new ground and having added a fresh, liberal dimension to the need for Increased disclosure in matters relating to public affairs. In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of Government disclosure of information must be the ordinary rule while secrecy must be an exception justifiable only when it is demanded by the requirement of public interest. The Court held that the disclosure of documents relating to the affairs of State involves two competing dimensions of public interest, namely, the right of the citizen to obtain disclosure of information, which competes with the right of the State to protect the information relating to its crucial affairs. It was further held that, in deciding whether or not to disclose the contents of a particular document, a Judge must balance the competing interests and make his final decision depending upon the particular facts involved i....
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....i) Information, which, if disclosed; would violate the privacy of the individual. (vii) Information of an economic nature (including trade secrets) which, if disclosed, would confer an unfair advantage on some person or concern, or, subject some person or Government to an unfair disadvantage. (viii) Information which is subject to a claim of legal professional privilege, e.g. communication between a legal adviser and the client; between a physician and the patient. (ix) Information about scientific discoveries. 42. Authorities are therefore to abundance holding that right to receive information or the right of being informed is implicit in Article 19(1)(a) of the Constitution subject only to reasonable restrictions permitted to be imposed by Article 19(2) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or to relation to contempt of Court, defamation or incitement to an offence. 43. The Parliament had enacted the Freedom of Information Act, 2002. However, it was considered weak and to ensure greater and more effective access-to informatio....
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....justifiable reason to construe Section 2(f) of the RTI Act in a constricted sense. Apart from it being a material and thus comprehended within the exhaustive aspect of the definition, an assessed/evaluated answer script is also a document, a paper, and a record. Also, an opinion is comprehended within the definition of 'information'. How it would be relevant for a decision, on the proceedings at hand would be discussed at an appropriate stage. 47. We would now turn our attention to the second issue. There can be no doubt that education is one of the great sources of empowerment, if not the greatest. It is man's thirst for knowledge that a concerted effort to acquire it is noticeable in all spheres of work. School, colleges and universities are centres of advancement of learning. The knowledge a student acquires while he is taught in school, college or university is the foundation for making him equipped in his struggle for survival in this competitive world. Inroads that he makes in unknown territory are based on his conviction acquired from knowledge. Acquisition of knowledge at a particular level in the present system of schooling has to be reflected in answers wri....
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....mentioned in Section 4 need be supplied to citizens on request. Hence, I do not find any merit in the contentions of the petitioner in the regard. 49. We are in entire agreement with the learned Judge that the RTI Act does not contemplate that information as defined in Section 2(f) is confined to those mentioned in Section 4 of the RTI Act and information other than those encompassed by Section 4 need not be furnished to a citizen on request. 50. Having regard to the provisions of Sub-sections (2) to (4) of Section 4 of the RTI Act, we are of the firm view that the mandate of Sub-section (1) including its various clauses is relatable to the functioning of the public authority in general for discharging its public duties, information in respect whereof ought to be disseminated suo motu as far as practicable and possible within the resources of such authority for facilitating its access to the public. Section 8(1) of the RTI Act provides an exhaustive exemption list and Section 4 thereof cannot be construed to be an additional provision indirectly empowering public authorities to claim exemption from disclosing information to an information seekar. The argument advanced lacks s....
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.... 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 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(1). 56. We share the same view. It is quite common on the part of some of the examiners while assessing the merits of answers written by examinees taking a public examination to indicate in the margin deficiency in the answers or redundancy of material comprising the answer. Endorsement in the answer scripts may also reveal what the examiner expected of the examine and how such expectation not having been fulfilled ....
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....dissatisfied with the marks awarded to him, before he takes a plunge to legal recourse. The time, money and effort which are necessarily associated with litigations could be lessened/avoided once greater transparency is assured. Similarly, greater transparency would mean correct, timely and legally sound decisions on the part of the public authorities and its functionaries and thereby the quality of governance, most likely, would improve. 59. Submissions made by Mr. Mitra that since regulations framed by the University and the WBBSE entitle an examinee to ask for review/reassessment and/or scrutiny of his answer scripts access thereto under the RTI Act would not serve any fruitful purpose is again without merit. It is common knowledge that while the entire answer script is reevaluated on merits in case of review, scrutiny is limited only to ascertain whether marks have been awarded for each question answered and whether there is any totalling error or not. However, in terms of Regulation 14(2) of the said Regulations, review/re-examination cannot be asked for by an examinee successful in the examination. However, they are entitled only to apply for scrutiny. Even if there be app....
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....ourt feeling aggrieved by the marks awarded in his favour by the concerned examiner. 61. In Arun D. Desai v. High Court of Bombay reported in 1984(2)SCALE128 the examine had challenged the result of his second L.L.B. Examination on the ground that it is 'defective, arbitrary and partial'. The Apex Court held that there was no substance in his petition. It was not shown by him how the assessment of his answer books was defective, arbitrary or partial. The Court proceeded to observe that students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that not they, but the examiners who are to be blamed. 62. In West Bengal Board of Examination for Admission to Engineering, Medical and Technological Degree Colleges and Ors. v. Dr. Jitendra Lal Banerjee and Ors. reported in AIR1984Cal52 it was observed in paragraph 18 as follows: In our opinion, there is much substance in the above contentions of the appellants. A writ petitioner is required to give all particulars and the basis of the allegations in support of the prayer for the issuance of the Rule. A mere allegation withou....
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....n a manner which would lean towards dissemination of information rather than withholding the same so as to provide scope to the examinees to place materials before the Court in support of allegations made in their petitions to avoid in limine dismissal. 65. The final contention raised by Mr. Mitra that a statute should be read in a manner that it does not produce absurd results and lead to palpable injustice is now taken up for consideration. None can possibly dispute the principles of interpretation of statutes called in aid in the decisions of the Apex Court relied on by him. The Courts have been reminded to ascertain the intention of the legislature arid then strive to promote and advance the object and purpose of the enactment. 66. It is well recognised that while the letter of the law is the body, the sense and reason of the law is the soul and that it is not the words of the law but the spirit and internal sense of it that makes the law meaningful. While one can appreciate the contention of Mr. Mitra that an Act of Parliament cannot be construed to reduce it to rank absurdity, it is equally true that such meaning has to be given to the law as will carry out its object. ....
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....than cling on to archaic procedures. 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. 68. All said and done, one cannot lose sight of the Apex Court decision in Martin Burn Limited v. Corporation of Calcutta reported in [1966]1SCR543 . Therein, it was observed as follows: A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. 69. The said observation has been relied on by the Apex Court in its subsequent decision in Life Insurance Corporation of India v. Mrs. Asha Ram Chandra Ambekar reported in (1994)IILLJ173SC while holding that "it is true there may be pitiable situations but on that score, the statutory provision cannot be put aside." 70. We are afraid, the distress to which the examining bodies may be put to by reason of acceptance of the arguments of the information seekers and negation of their arguments must continue till such time the Parliament ....
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....n within the meaning of the RTI Act, accessibility thereof can be denied to the information seeker only on grounds traceable in the RTI Act and not otherwise. It is not the claim of the examining bodies that in the process of assessment/evaluation of answer scripts of the nature before us, there is no manual work and everything is computerized. Howsoever fool proof the in-house procedure as claimed by the examining bodies might be, that cannot be a guarantee simply because 'to err is human'. Rules/regulations framed by such bodies denying access can hardly be called in aid in view of the overriding and pervasive character of the RTI Act. Inconvenience or unworkability, unfortunately, are not recognized grounds on which refusal could be based. It is preposterous to assume that Parliament was not aware of the ground reality while enacting the RTI Act. That apart, the CIC seems to have proceeded oblivious of the settled law that a decision is an authority for what it decides and not what can logically be deduced therefrom The Apex Court in its decision reported in [2002]1SCR621 The State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. has cautioned that disposal ....
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...., advanced by the CBSE has not impressed us. 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. While entrusting an examiner with the work of assessment/evaluation of an answer script there is no agreement between the examiner and the public authority that the work performed by the examiner shall be kept close to the chest of the public authority and shall be immune from scrutiny/inspection by anyone. At least nothing in this respect has been placed us. Since the RTI Act has been enacted to promote transparency and accountability in the working of every public authority and for containing corruption, even if there be such a clause in the agreement between the examiner and the public authority the same would be contrary to public and thus void. 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 ground that it is confidential and an assurance is given in this respect, the same canno....
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....SE and the CBSE each year for twenty years would work out immense hardship and palpable injustice to them and a meek and mute submission to the plainness of the language has to be avoided to prevent unworkable and undesirable results. 81. That takes us to the last point, i.e. the argument advanced by Dr. Chakraborty that the learned Judge while deciding the writ petition of Pritam proceeded on the basis of certain concessions purportedly made by him which were actually not made and, therefore, we should set aside the judgment on this point. We have considered the grounds of appeal and do not find a single ground to this effect. The contention has been raised to be rejected. 82. A few words before we conclude our discussion on the second issue supra. We would not be unjustified in taking judicial notice of the Courts of Writ now-a-days being flooded with innumerable cases filed by aggrieved parties--particularly students of schools, colleges, universities and other academic institutions, as also participants of various selection examinations conducted by the appropriate bodies for recruitment to public service alleging wrong, improper or unfair marking and gross negligence in ....