Mr.Major Singh vs Union Public Service Commission on 11 June, 2010

Central Information Commission
Mr.Major Singh vs Union Public Service Commission on 11 June, 2010
                   CENTRAL INFORMATION COMMISSION
               Appeal No. CIC/WB/A/2009/000403 dated 27.3.2009
                 Right to Information Act 2005 - Section 19

Appellant:           Shri Major Singh
Respondent:          Union Public Service Commission (UPSC)
                        Decision announced 11.6.'10


FACTS

By an application of 27-8-2008 Shri Major Singh of Vijaynagar, Indore
applied to CPIO Shri Ashok Mehta, Dy. Secretary, UPSC seeking the following
information:

“(a) Particulars (name, qualifications & experience) of
(eligible) applicants for appointment to 7 posts of
Principal (Female) reserved for SC in response to UPSC
special advertisement No. 52/2006.

(b) Criteria adopted for short-listing the candidates
summoned for interview by UPSC to the 7 posts at (a)
above.

(c) List of candidates summoned for interview by UPSC for

(a) above.

(d) Criteria adopted by UPSC for short listing the SC
candidates summoned for interview for 1 post of Principal
(directorate of Education), Delhi reserved for SC (female)
candidate in August, 2006.’

To this, Shri Major Singh received a response on 24-9-2008 answering
question nos. 2 and 4 in some detail, but replying of 1 and 3 as follows:-

“Item No. 1: The particulars of eligible applicants cannot be
disclosed as the disclosure do not serve any public
interest and is exempted under section 8 (1) (e) of RTI
Act, 2005.

Item No. 3: Thirty-Five candidates were summoned for interview
against 7 posts reserved for SC (female) candidates. We
cannot provide the list of candidates as it does not serve
any public interest, hence exempted under section 8 (1)

(e) of RTI Act, 2005.”

Aggrieved with this response Shri Major Singh moved an appeal before
Shri Nuruddin Ansari, Jt. Secretary, (R-II) on 21.10.2008 pleading as follows:-

“It may be seen that the information at (a) & (c) above pertains
exclusively for S. C. Candidates. The screening of the eligible
S. C. Candidates and ensuring the criteria applied for short-
listing the candidates selected for interview by UPSC is in public

1
interest. There is no reason to deny access to this information
by quoting section 8 (1) (e) of RTI Act.”

Upon this, Shri Nuruddin Ansari, Jt. Secretary (R-II) allowed the appeal in
part by his order of 11.11.2008 as follows:-

“The personal details of the candidates are held by the
Commission in a fiduciary capacity and constitute third party
information and disclosure of the same is exempted under
section 8 (1) (e) and (j) of the RTI Act. The CPIO has rightly
declined to share the personal details of eligible candidates’. As
regards item (C), in my opinion, the list of names of candidates’
summoned for interview could have been provided to the
appellant, which may be provided.’

In compliance with this order CPIO Shri Ashok Mehta, Dy. Secretary,
UPSC provided the following information on 17.11.2008 to Shri Major Singh as
follows:

“A list of 35 candidates who were called for interview for 7 posts
of Principal reserved for SC (female) candidates in the matter of
recruitment to 53 posts of Principal in Govt. Senior Secondary
School under Directorate of Education, GNCT of Delhi, is sent
herewith.”

Attached with this letter was an annexure listing 35 names with Roll
Number. This has brought Shri Major Singh before us in second appeal on the
single question remaining from his initial application, thus pleading as follows:-

“Pray to quash order No. F7/39/2008-R.III dated 11th
November, 2008 of Shri Nuruddin Ansari, Joint Secretary,
Union Public Service Commission, Dholpur House,
Shahjahan Road, New Delhi-110 069 and direct to provide
the information for Sl. No. (a) of the petition (reproduced
below) dated 2s1t October, 2008:

‘(a) Particulars (name, qualifications & experience) of
(eligible) applicants for appointment to 7 posts of
Principal (Female) reserved for SC in response to
UPSC special advertisement No. 52/2006.”

The appeal was heard on 11-6-2010. The following are present.

Appellant
Shri Major Singh
Respondents
Shri Kamal Bhagat, JS (R-II)
Shri P. P. Haldar, DS (R.V)

2
Respondent Shri P. P. Haldar submitted that they had no difficulty in
providing the names of candidates who appeared in the examination but
providing the experience also would amount to invasion of privacy and
transgressing a fiduciary relationship.

DECISION NOTICE

On the question of ‘fiduciary relationship’ we have a definitive ruling of
the High Court of Delhi In his judgment in WP(C) 228/2009, CPO Supreme
Court of India vs. SC Agrawal & Anr. Hon’ble Ravindra Bhat J has
discussed the concept of fiduciary relationship in some detail. The HC ruling
in this case is as follows:

54. The petitioners argue that assuming that asset declarations,
in terms of the 1997 constitute “information” under the Act, yet
they cannot be disclosed – or even particulars about whether,
and who made such declarations, cannot be disclosed – as it
would entail breach of a fiduciary duty by the CJI. The
petitioners rely on Section 8 (1) (f) to submit that a public
authority is under no obligation to furnish “information available
to a person in his fiduciary relationship”. The petitioners
emphasize that the 1997 Resolution crucially states that:

“The declaration made by the Judges or the Chief
Justice, as the case may be, shall be confidential.”
The respondent, and interveners, counter the submission and
say that CJI does not stand in the position of a fiduciary to the
judges of the Supreme Court, who occupy high Constitutional
office; they enjoy the same judicial powers, and immunities and
that the CJI cannot exercise any kind of control over them. In
these circumstances, there is no “fiduciary” relationship, least of
all in relation to making the asset declarations available to the
CJI, who holds it because of his status as CJI. It is argued that a
fiduciary relationship is created, where one person depends, on,
or entrusts his affairs to 55. It is necessary to first discern what a
fiduciary relationship is, since the term has not been defined in
the Act. In Bristol & West Building Society v. Mathew [1998] Ch
1, the term “fiduciary”, was described as under:

“A fiduciary is someone who has undertaken to act for
and on behalf of another in a particular matter in
circumstances which give rise to a relationship of trust
and confidence.”

Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC
212 and Needle Industries (India) Ltd v. Needle Industries
(Newey) India Holding Ltd
: 1981 (3) SCC 333 establish that
Directors of a company owe fiduciary duties to its shareholders.

In P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68,
the Supreme Court held that an agent and power of attorney

3
holder can be said to owe a fiduciary relationship to the
principal.

56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of
Baroda
2008 (13) SCALE 160) the Supreme Court had to
decide whether a transaction resulted in a fiduciary relationship.
Money was sought to be recovered by the plaintiff, from a bank,
who had moved the court for auction of goods imported, and
retained the proceeds; the trail court overruled the objection to
maintainability, stating that the bank held the surplus (of the
proceeds) in a fiduciary capacity. The High Court upset the trial
court’s findings, ruling that the bank did not act in a fiduciary
capacity. The Supreme Court affirmed the High Court’s findings.
The court noticed Section 88 of the Trusts Act, which reads as
follows:

“Section 88. Advantage gained by fiduciary. – Where a
trustee, executor, partner, agent, director of a company,
legal advisor, or other person bound in a fiduciary
character to protect the interests of another person, by
availing himself of his character, gains for himself any
pecuniary advantage, or where any person so are, or
may be, adverse to those of such other person and
thereby gains for himself a pecuniary advantage, he must
hold for the benefit of such other person the advantage
so gained.”

Affirming the High Court’s findings that the bank did not owe a
fiduciary responsibility to the appellant, it was held by the
Supreme Court, that:

“9. An analysis of this Section would show that the Bank,
to whom the money had been entrusted, was not in the
capacity set out in the provision itself. The question of
any fiduciary relationship therefore arising between the
two must therefore be ruled out. It bears reiteration that
there is no evidence to show that any trust had been
created with respect to the suit money.”

The following kinds of relationships may broadly be categorized
as “fiduciary”:

• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882)
• Legal guardians / wards (Section 20, Guardians and
Wards Act, 1890)
• Lawyer/client;

• Executors and administrators / legatees and heirs
• Board of directors / company
• Liquidator/company
• Receivers, trustees in bankruptcy and assignees in
insolvency / creditors
• Doctor/patient
• Parent/child:

57. The Advanced Law Lexicon, 3rd Edition, 2005, defines
fiduciary relationship as

4
“a relationship in which one person is under a duty to act
for the benefit of the other on the matters within the
scope of the relationship….Fiduciary relationship usually
arise in one of the four situations (1) when one person
places trust in the faithful integrity of another, who is a
result gains superiority or influence over the first, (2)
when one person assumes control and responsibility over
another, (3) when one person has a duty to act or give
advice to another on matters falling within the scope of
the relationship, or (4) when there is specific relationship
that has traditionally be recognized as involving fiduciary
duties, as with a lawyer and a client, or a stockbroker and
a customer”

58. From the above discussion, it may be seen that a fiduciary
relationship is one whereby a person places complete
confidence in another in regard to a particular transaction or his
general affairs or business. The relationship need not be
“formally” or “legally” ordained, or established, like in the case of
a written trust; but can be one of moral or personal
responsibility, due to the better or superior knowledge or
training, or superior status of the fiduciary as compared to the
one whose affairs he handles…….The content of such provision
may include certain kind of relationships of public officials, such
as doctor-patient relations; teacher-pupil relationships, in
government schools and colleges; agents of governments; even
attorneys and lawyers who appear and advise public authorities
covered by the Act. ”

On the question of invasion of privacy the relevant clause of the RTI
Act reads as follows: –

Section 8 (1) (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.’

From the above it will be clear that the relationship of a candidate for an
examination with the examining authority is not a fiduciary relationship, although
that of a pupil and teacher might be. Besides section 8 (1) (j) is specific in that it
exempts from disclosure any information ‘which has no relationship to any
public activity or interest1, or which would cause unwarranted invasion of the
privacy of the individual’. In this case what is sought is information provided to
1
Underlined by us to emphasise the implication

5
a public organisation for appearance in a public examination. The public
organisation itself goes by the name of the Union Public Service2 Commission.

Under the circumstance this information can on account be treated as personal
or held in confidence, which would warrant invasion of section 11 (1). For these
reasons the appeal is allowed.

CPIO, Shri P. P. Haldar, Dy. Secretary (R.V) will now provide the
information sought at point (a) to the RTI application of 27.8.2008 to appellant
Shri Major Singh within fifteen working days of the date of receipt of this
decision notice. We notice, however, that the CPIO has been punctilious in
giving timely information to the appellant Shri Major Singh in matters that he
considered accessible. There will, therefore be no cost.

Announced in the hearing. Notice of this decision be given free of cost
to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
11-6-2010

Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO
of this Commission.

(Pankaj K.P. Shreyaskar)
Joint Registrar
11-6-2010

2
Underlined by us to emphasise the objective of the public authority.

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