Dismissed

Anupam Baishya v. State Chief Information Commissioner and 5 Ors.

Gauhati HC12 Feb 2019WP(C)/5021/2013

Case brief

AI extract

What is this about?

Petitioner challenged the State Information Commissioner's order denying copies of selected candidates' answer scripts while allowing inspection. The Court held that inspection fulfills the RTI mandate, distinguished a prior decision, and dismissed the writ petition.

What did the court decide?

Writ petition admitted for rule not made absolute; issue of information denied; no penalty granted.

Anupam Baishya Vs State Chief Information… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010010192013

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 5021/2013

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1:ANUPAM BAISHYA

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S/O- TARUN CH. BAISHYA, C/O- U.N. ENTERPRISE, VILL.- JYOTI NAGAR, PUB KAILASHPUR, P.O.- BAMUNIMAIDAN, P.S.- NOONMATI, DIST.KAMRUP, ASSAM.

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VERSUS

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1:STATE CHIEF INFORMATION COMMISSIONER and 5 ORS HOUSEFED COMPLEX, LAST GATE, DISPUR, GHY- 6.

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2:MOHAN CHANDRA MALAKAR STATE INFORMATION COMMISSIONER HOUSEFED COMPLEX LAST GATE DISPUR GHY- 6.

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3:SATYANANDA MISHRA CENTRAL CHIEF INFORMATION COMMISSIONER ROOM NO. 306 II FLOOR AUGUST KRANTI BHAVAN BHIKAJI CAMA PALACE NEW DELHI- 110666.

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4:ADDL. DIRECTOR GENERAL OF POLICE A ASSAM ULUBARI GHY- 7.

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5:ADDL. DIRECTOR GENERAL OF POLICE TAP ASSAM ULUBARI GHY- 7.

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6:ASSTT. INSPECTOR GENERAL OF POLICE T ASSAM ULUBARI GHY- 7

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Advocate for the Petitioner : MR.H GUPTA

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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Date : 12-02-2019

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Heard Mr. H Gupta, learned counsel for the petitioner; Mr. D Deka, learned counsel for respondent Nos.1, 2 and 3; and Mr. R Dhar, learned Government Advocate, Assam for respondent Nos.4, 5 and 6.

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By filing this petition under Article 226 of the Constitution of India, petitioner has sought for the following reliefs : -

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“ It is therefore prayed that your Lordships would be pleased to admit this petition, call for the records, issue rule calling upon the respondents to show cause as to why a direction should not be issued to allow the information sought for vide Sl. No.2 of the original RTI application dated 07.05.2012 raised/carried out in second appeal dated 06.08.2012 under Section 19 (3) of the Right to Information Act, 2005 before the State Chief Information Commissioner, Assam or at least direct the concerned authorities allowing inspection of the documents/information sought for at Sl. No.2 of the RTI application dated 07.05.2012 and secondly, why a direction should not be issued to the concerned authorities to impose penalty on the concerned authorities as per the provisions of the Right to Information Act, 2005 and/or compensation for delay in providing information vide RTI application dated 07.05.2012 under the RTI Act and delay of more than 1½ years in disposing of the second appeal dated 06.08.2012 under Section 19 (3) of the Right to Information Act, 2005 and

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upon perusal of the records and upon cause or causes shown if any, the Hon’ble Court may be pleased to make the said rule absolute.”

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After hearing learned counsel for the parties and on going through the materials on record, it is seen that basic grievance of the petitioner pertains to order dated 13.12.2013 passed by the State Information Commissioner, Assam in Appeal Case No.KP(M) 509/2012 (Shri Anupam Baishya Vs. Director General of Police, Assam).

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It appears that office of the Director General of Police, Assam had initiated a recruitment process for appointment to the post of Sub-Inspector of Police (AB) in the year 2009. Petitioner had responded to the said advertisement as a candidate belonging to the Scheduled Caste category; he was not selected. He, therefore, sought for the following information from the State Public Information Officer (SPIO) in the office of the Director General of Police, Assam: -

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Particulars of the eight candidates who were selected under the SC category;

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Copies of their answer scripts of written examination;

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Copies of answer scripts of the petitioner himself;

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Break-up of marks secured by the selected candidates in the written examination, physical test, viva-voce.

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Some information were furnished by the SPIO. Not satisfied therewith, petitioner submitted appeal before the first appellate authority which allowed inspection of answer scripts of the selected candidates as well as that of the petitioner.

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Petitioner wanted copies of the answer scripts of the selected candidates. So he preferred second appeal before the State Information Commission. After hearing the matter, the appeal of the petitioner was allowed by the State Information Commissioner vide his order dated 13.12.2013 in the following manner: -

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“ After careful examination of the available records and duly considering the submissions made by both the parties, the Commission decided to give the following directions:

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As clarified by the Hon’ble Supreme Court, vide order dated 09.08.2011 in Civil Appeal No.6454/2011, the answer scripts belonging to the applicant himself shall have to be provided to the applicant within 5 days from the date of receipt of this order.

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The event-wise break up of the marks allotted to all the 8 selected

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candidates in their physical test shall also be provided to the applicant within 5 days from the date of receipt of this order.

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As regards furnishing of the answer scripts belonging to the selected candidates, the Commission viewed that an answer script belonging to a candidate was the outcome of his personal efforts made to prepare for the examination, which reflected his analytical capability, understanding of the issues and own way of presenting his views. The Commission, therefore, considered the answer scripts as the intellectual properties of the individual candidates and hence the same were decided to be exempted from disclosure u/s 8 (1) (d) of the RTI Act. However, to maintain the transparency and also to remove the doubt of the applicant, the Commission felt that the applicant must be allowed to inspect the answer scripts to verify the summation of the marks awarded against each of the answers. As the answer scripts were already brought to the hearing, the Commission itself arranged the inspection of the answer scripts and verification of the marks by the appellant together with the learned counsel in presence of the Commission.”

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From the above, it is evident that State Information Commission directed furnishing of answer script of the petitioner to the petitioner; break-up of marks secured by all the eight selected candidates were directed to be furnished to the petitioner. In so far copies of answer scripts of the eight selected candidates were concerned, Commission permitted petitioner to inspect the answer scripts of the selected candidates which were produced by the office of the Director General of Police before the State Information Commission at the time of hearing.

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On a query by the Court, Mr. Gupta submits that petitioner had assailed selection of the eight selected candidates before this Court in WP(C) No.2197/2010 which was, however, dismissed vide judgment and order dated 02.05.2012.

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Right to information is a facet of the right to speech and expression as contained in Article 19 (1) (a) of the Constitution of India. Freedom of speech and expression includes right to acquire information and to disseminate the same. In People’s Union For Civil Liberties Vs. Union of India , (2004) 2 SCC 476 , Supreme Court has held that right to information is indisputably a fundamental right.

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The Right to Information Act, 2005 (2005 Act) is 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

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working of every public authority and deals with constitution of a Central Information Commission at the centre and State Information Commission at the state level.

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Right to information has been defined in Section 2 (j) of the 2005 Act to mean the right to information accessible under the 2005 Act which is held by or under the control of any public authority and includes the right to inspection of work, documents, records etc., including taking notes and extracts thereof.

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While Section 3 provides that subject to the provisions of the 2005 Act, all citizens shall have the right to information, Section 8 thereof deals with exemption from disclosure of information. Section 8 starts with a nonobstante clause which means that provisions of Section 8 would have overriding effect over other provisions of the 2005 Act. Certain categories of information as mentioned in Section 8 are thus exempted from disclosure.

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Section 11 deals with third party information. As per sub-section (1) of Section 11, if a request is made for disclosure of information relating to third party and which is treated as confidential, the third party has to be put on notice and submission of the third party shall be kept in view while taking a decision about disclosure of information pertaining to the third party.

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Viewed in the above context, the decision of State Information Commissioner dated 13.12.2013 cannot be faulted though reference to Section 8 (1) (d) of the 2005 Act appears to be somewhat misplaced. Notwithstanding the same, by permitting the petitioner to inspect answer scripts of the selected candidates, State Information Commission had permitted dissemination of information to the petitioner as sought for by him within the meaning of Section 2 (j) of the 2005 Act.

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At this stage, Mr. Gupta has placed reliance on a decision of this Court in the case of State of Manipur Vs. Chief Information Commissioner , reported in 2004 (4) GLT 93 to contend that this Court on an earlier occasion had directed furnishing of answer scripts of selected candidate to the unsuccessful candidate.

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The aforesaid decision has been carefully perused. In the considered opinion of the Court, the said decision was rendered in a different factual context; besides on going through the same, it is not discernible as to whether any binding ratio had been laid down in the said

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decision. It was a decision in the facts and circumstances of that particular case.

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That being the position, no infirmity is found in the impugned order dated 13.12.2013.

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Writ petition is accordingly dismissed.

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JUDGE

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