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Decision No. CIC/OK/A/2007/00961/SGAdjunct
Appeal No. CIC/OK/A/2007/00961
Appellant : Ms. Suja Rose John
c/o Mr. M.V. John
Lakshmi Bhavan, Desabhimani Road
Elamakkara, Kochi 682026
Respondent : Dr. (Mrs.) Sarla Rajput
Flat no. 2412
1st Floor, Pocket C-II, Vasant Kunj
New Delhi 110070
RTI application filed on : 07/10/2006
PIO replied : 14/11/2006
First Appeal filed on : 10/11/2006
Second Appeal filed on : 19/07/2007
Commission's first order : 15/12/2007
Commission's second penalty order : 23/06/2008
High Court's order : 02/07/2009
Information sought:
The Appellant filed a RTI Application dated 07/10/2006 wherein she sought the following
information regarding candidates of the National Talent Search Examination 2006 who appeared
for the Interview at SCERT, Thiruvanathanpuram during July-August 2006:
1. Name, Roll Number of candidates
2. Marks in MAT, SAT, interview and total marks for National level NTSE 2006
3. Rank of candidates
4. Final Selection of candidates
5. All India cut-off marks for General & Reserved categories of candidates
Reply of PIO's:
The PIO replied on 14/11/2006 stating that:
1. NCERT does not provide the complete list to any candidate, However, the result of the
candidates selected in the written examinations was uploaded on the NCERT website.
2. Marks obtained by candidates in written examination or interview shall not be disclosed.
3. No ranking is given in NTSE.
4. This list is available on NCERT website
5. This information cannot be disclosed
The Appellant approached the First Appellate Authority on 10/11/2006 and the Commission on
19/07/2007.
Order of the Commission:
The Commission (Dr. O.P Kejriwal) in its decision of 15/12/2007 directed the Respondents
(NCERT) to consider the RTI Application of the Appellant once again and to provide the
information sought unless it is prohibited by some provision of the RTI Act. The Commission
also imposed a penalty of Rs. 25,000/- on the PIO Dr. Sarla Rajput under Section 20(1) as it
considered the PIO's actions to amount to willful suppression of facts. The Commission noted
that-
"it was obvious that they were completely oblivious of the fact that there
was something in place now known as the Right to Information Act 2005. The
Respondents kept on insisting that since they were officials they were bound by
the rules contained in their published brochure. It is all the more surprising for,
now, the RTI-Act is more than two years old.
... The Commission was further surprised at the attitude of the
Respondents because in other cases, PIOs coming from NCERT have acted as per
the RTI Act."
The Commission issued a notice on 15/01/2008 asking the Dr. Sarla Rajput to explain why the
penalty should not be imposed on her and a hearing was scheduled on 20/02/2008.
Penalty Order of the Commission:
The Commission issued a penalty order on 23/06/2008. It considered the written submissions
sent by Dr. Sarla Rajput wherein she expressed ignorance of the latest law and stated that she
believed they were bound by their Departmental Rules and prayed for waiver of the penalty
order. The Commission concluded that there was no reasonable cause for denial of information.
The Commission did not find any force in the submission of the Respondent that she was
ignorant of the law as no specific legal knowledge is required to deal with the RTI cases. The
Commission decided to impose penalty of Rs. 25,000/-
Delhi High Court's Order dated 02/07/2009 in W.P. (C) 5204/2008:
Justice Sanjiv Khanna delivered the order in this matter. He observed that before the penalty was
imposed on Dr. Sarla Rajput a reasonable opportunity of hearing was not granted to her, i.e. the
petitioner in the matter. The Court noted that no notice was issued to the petitioner to explain her
stand and justify her position. Penalty is not automatic or mandatory when an appeal is allowed
by the Central Information Commissioner. The Petitioner had further submitted that she had
retired from services of NCERT on 31/01/2007 and she did not have any information about the
pendency of the appeal before the Commission. The Court held that there had been a clear
violation of the proviso to Section 20(1). Justice Khanna further held that the RTI Act did not
envisage a post decisional show cause notice. It has to be issued before a penalty order is passed
and before any final findings are recorded.
The Court remanded the matter back to the Commission to decide the question whether any
penalty should be imposed on Dr. Sarla Rajput. The Court clarified that it has not expressed any
opinion on merits.
Written Submissions received before Hearing:
Information was denied on Query No. 2 and 5 but not for malafide intentions. The National
Talent Search Scheme Rules framed by NCERT mandated that all information relating to the
holding of a public examination be treated as confidential to preserve the sanctity and
confidentiality of the examination system and infuse a sense of competitiveness amongst the
examinees.
The answering PIO referred the matter to the higher authority for guidance as the RTI Act was
then still at a nascent stage and there was a great deal of confusion over whether the national
competitive public examination system could be treated as confidential. She had put up the issue
for discussion with the Joint Director who is the FAA before sending her reply to the Appellant.
A collective decision was then taken at the institutional level that in view of the NTS rules and
the sanctity of the confidential marking system was inviolable and the marks obtained by the
individual candidates will not be disclosed.
The case of UPSC v. CIC W.P. (C) No. 17583/2006 in the Delhi High Court has been mentioned
wherein the direction of the Commission to disclose actual marks obtained by each candidate in
the Civil Services Preliminary Examination was finally upheld. The submission is that till then
the issue remained undecided.
All information relating to Query no. 2 and 5 has been provided.
Relevant Facts
emerging during Hearing held on 02/09/2009 in compliance of the High
Court’s order to review the penalty order:
The following were present
Appellant: Absent
Respondent: Mr. R.K. Singh, representing Dr. (Mrs.) Sarla Rajput and NCERT
He has brought written submissions and he states the following:
“About the time when the RTI Application was made the legal position as to whether marks
obtained by all the candidates in a public competitive examination would be disclosed was not
clear. The issue was already sub judice before the Hon’ble High Court and the legal position
came to be settled only in 2008. The PIO and the Respondent organization was labouring under a
bona fide mistake of law and it was for this reason that the PIO felt that the marks could not be
disclosed. There was no mala fides on the part of the PIO in refusing to disclose the information.
As a matter of fact the issue was taken up by the respondent organization and a decision at the
level of the Jt. Director, NCERT was taken that since the rules of the competitive examination
did not permit the disclosure of marks. Subsequently pursuant to the order of the Commission
dated 15 December 2007 the information with regard to marks obtained by the candidates was
supplied to the Appellant on 15 January 2008.”
It appears that the PIO made a bona fide error in deciding that the information could not be
provided since their rules stated this. Considering the level of ignorance of RTI Act in 2006 it
appears to be an error which a PIO could have committed with the best of intentions. The
Commission also considers the fact that the PIO did comply with the decision of the Commission
to give the information. Whereas it is true that the PIO had given no reasons under Section 8(1)
of the RTI Act for refusing to give the information, which was wrong, the Commission feels that
given the fact that this error was committed in 2006 the denial of information cannot be said to
be without reasonable cause. In an error of this nature would be unacceptable however in 2009.
In view of this it appears that the penalty order must rescinded.
Decision:
The Penalty Order of 23 June 2008 is rescinded.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
2 September 2009
(In any correspondence on this decision, mention the complete decision number.) ShG