CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000438 dated 30.3.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Manu Sabharwal
Respondent - Union Public Service Commission (UPSC)
Heard & Decision announced: 16.7.2010
Facts
:
By an application of 1.9.08 Shri Manu Sabharwal of Old Connaught Place,
Dehradun (Uttarakhand) applied to CPIO Shri Rameshwar Dayal, Dy. Secy.
(Exam) seeking the following information :
1. “Copies of the National Defence Academy Entrance Examination –
1 Question Papers (1998-2008)
2. Copies of answer key to the National Defence Academy Entrance
Examination 1 (199802998)
3. Copies of the National Defence Academy Entrance Examination II
Question Papers (1998-2008)
4. Copies of answer key to the National Defence Academy Entrance
Examination II (1998-2008)
5. Copies of the CDS Entrance Examination I Question papers (1998-
2008)
6. Copies of answer key to the CDS Entrance Examination I (1998-
2008)
7. Copies of the CDS Entrance Examination II Question Papers
(1998-2008)
8. Copies of answer key to the CDS Entrance Examination II (1998-
2008)”
To this, Shri Manu Sabharwal received a response dated 3.10.08 from
Shri Rameshwar Dayal informing him as follows:
“It is informed that the examinations held by UPSC are for the
candidates and each candidate gets the question booklet at the end
of the examination. There is neither separate compilation system
nor a fixed subject wise and year wise storage arrangement
presently as regards old question papers. However, the question
papers of NDA (i) & (ii) and CDS (i) & (ii) for the year 2007 and
2008 are available with the Commission which is running into 750
pages. These can be sent to you on receipt of Rs. 1500/- (Rupees
one thousand five hundred only) towards photo copying charges @1
Rs. 2/- per page. You are requested to deposit Rs. 1500/- with the
Commission in the acceptable mode of payment i.e. IPO/Bank Draft
drawn in favour of Accounts Officer, UPSC, New Delhi-110069.
As regards the answer keys of the NDA (i) & (ii) and CDS (i) & (ii)
question papers, I am to state that the information sought by you
forms part of Commission’s crucial secrets and intellectual property
under Section 8(1)(d) of RTI Act, 2005. The information requested
by you is in the nature of secret documents under Sec. 8(2) of the
RTI Act, 2005 and there being no public interest requiring its
disclosure, it cannot be disclosed as the disclosure would harm the
protected interests. I am to furnish state that the disclosure of this
information shall irreparably undermine the integrity, strength and
efficacy of the competitive public examination systems of
paramount significance conducted by the UPSC.”
Aggrieved, Shri Sabharwal moved an appeal dated 4.11.08 before Shri K.
S. Bariar Jt. Secretary (E), UPSC pleading as follows:
“That the impugned decision of the Respondent clearly shows how
he has not acted reasonably and diligently but has instead
deliberately, blatantly and mischievously reduced the office of the
Central Public Information Officer of the Union Public Service
Commission to a farce and has refused the request of the Appellant
on false, frivolous and fabricated grounds.”
Upon this, JS Shri Bariar vide order dated 28.11.08 has ordered as
follows:
“4. I note that the CPIO, UPSC has already agreed to make
available to him photo copies of question papers of NDA
Examination (i) & (ii) and CDS Examination (i) & (ii) of 2007
& 2008 in hard copy and has asked him to deposit the
requisite charges in terms of the Sec. 5(b) of the RTI
(Regulation of Fee and Cost) Rules, 2005. Since the
question paper are not maintained in digital form in the
Commission, it cannot be made available to him in CD or via
e-mail. There is, therefore, no denial of information to this
extent.
5. With regard to answer keys / model answers of these
examinations, it is intimated that the Commission have
already been contesting an SLP 23250/2008 in the Hon’ble
Supreme Court relating to the Civil Services (Prel.)
Examination which covers amongst others this issue also.
The Hon’ble Supreme Court have issued notices in the2
matter in view of the above, it appears appropriate if the
request for such information / documents is made to the
CPIO, UPSC after a decision in the matter is pronounced by
the Hon’ble Supreme Court.”
Appellant Shri Manu Sabharwal’s prayer in his second appeal before us is
as below:
“5. Because it is incumbent upon the Respondents to
furnish the information sought by the Appellant in the
form it is desired by the Appellant, except only for the
reasons provided by law. The plea that the information
is not maintained in digital form by Respondent No. 3
does not, in any way, absolve the Respondents from
delivering the information in the form desired by the
Appellant.
6. Because a photo copy in digital form is not the same
thing as a “hard copy” which in usual parlance means a
copy printed on a paper.
7. Because the learned Respondent No. 2 by this clever
interpolation of the words “hard copy” sought to justify
the unreasonable and unjust demand of Rs. 1500/- by
Respondent No. 1 for furnishing a part of the
information sought by the Appellant.
8. Because the learned Respondent No. 2 had found that
the Respondent No. 1 had refused the request for
supply of information pertaining to years 1998 to 2006
without any just or reasonable cause, yet he did not
order the Respondent No. 1 to furnish the sought
information.”
Shri Manu Sabharwal has grounded this appeal on the following principal
issues:
“13. Because the Appellant is not a party to the SLP No.
23250/2008 before the Supreme Court nor has he ever been
a party to any of the proceedings in the lower fora which
have led to or promoted the SLP.
14. Because from the impugned order itself, it is clear that the
Hon’ble Supreme Court had not granted any interim relief to
the Respondents in SLP No. 23250/2008 till the date of the
impugned order by virtue of which the Respondents could
have claimed exemption from providing the information
sought to the Appellant. Thus, the Respondent No. 2 has3
malafidely denied the request for information of the
Appellant.”
The appeal was heard on 16.7.2010 through videoconference. The
following are present:
Appellant at NIC Studio, Dehradun
Shri Manu Sabharwal
Respondents at CIC chambers, New Delhi/
Shri Rameshwar Dayal, DS & CPIO
Shri Naresh Kaushik, Advocate
Shri Bhupinder Singh, U.S.
Ld. Counsel for respondent Shri Naresh Kaushik submitted that the
information sought by appellant had been offered on payment of fee. However,
appellant Shri Sabharwal was seeking information in a form in which it is not
maintained and converting it into this form would amount to creation of
information. In this connection he referred to sub sec. (iv) of Sec. 2(j) which
reads as follows:
2(j) (iv)
Obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printouts
where such information is stored in a computer or in any other
device1;
He, therefore, submitted that this form of information can only be asked
where it is stored as such, which in this case it is not. On the question of
appellant not being party to the SLP under which the Supreme Court had stayed
the operation of the orders of this Commission on disclosure of cut off marks,
Shri Kaushik submitted that it is a question of law that had been challenged
before the Supreme Court of India and not a question of disclosure in a specific
case. The decision of the SCI, the supreme court of record, will then become a
decision on the application of the law itself and will, therefore, apply in all cases.
1
Underlined by us to emphasise reference
4
On his part appellant Shri Sabharwal submitted that he has sought
information on the last eleven years but he was provided information only on two
years. He submitted that the information for the remaining nine years does exist
in the UPSC but has not been catalogued. Moreover, in refusing the information
the CPIO, UPSC has given no reason, pleading no exemption u/s 8(1) which
renders the response invalid. Shri Sabharwal further submitted that providing the
information in digital form will not amount to creation of information since
examination papers are in any case in printout and not written handouts and for
the process of printing, it would be necessary to send the papers to the press in
digital form. On the latter point, Ld. Counsel for respondents argued that
appellant Shri Sabharwal has nowhere raised this issue which he is now raising
at the level of second appeal.
DECISION NOTICE
It is correct that sec. 7(9) mandates that “An information shall ordinarily be
provided in the form in which it is sought2.” There are specific conditions laid
down whereby the information could be denied in that form. In the present case,
there are two issues before us –
1) Whether such information exists at all for all the years that Shri
Sabharwal has requested?
2) Whether, if it exists, it can be provided in the requested form.
On Issue No. 1), CPIO Shri Rameshwar Dayal has argued that there is no
separate compilation system for storage arrangements regarding old question
papers. This amounts to some thing of a revelation of the maintenance of
information by the UPSC, particularly in an age of information technology in
which India can be proud to be world leader. Nonetheless, if the UPSC does not
hold the information even if it was desirable that it should have so held, there will
be nothing for the UPSC to provide.
2
Underlined by us
5
On issue No. (2) above, however, if the information is held even in a form
other than the form it is sought, clearly the mandate that it should be provided in
the form in which it is sought would be infructuous if it is refused on that ground.
Clearly, therefore, whereas under Sec. 2(j)(iv) information can be asked directly
in the form in which it is stored, this does not debar a citizen from seeking the
information, even if not held in that form, to be provided in that form unless it
would violate the limitation set forth in sub sec. (9) of Sec. 7, when it can be
provided in the form in which it is held. This would, of course, require the
payment of additional charges for the purpose of that conversion which in the
case of simply supplying a copy in the form of diskette, if held in that form, would
be payable only for the prescribed cost of the diskette. In the present case the
information sought and offered in written form will now be provided in digital form,
as requested. Because this was refused at the time of the application and has,
therefore, not been provided within the time limit mandated u/s 7(1), it will now be
provided free of cost, as per sub sec. (6) of Sec. 7. There will, however, be no
other cost.
On the question of a compilation system for question papers, the CPIO
Shri Rameshwar Dayal, DS, UPSC is directed u/s 19(8)(a)(iii) & (iv) to undertake
computerization of all question papers for their continued maintenance for
number of years to be specified by the UPSC in terms of the likely projected
requirements of candidates based on past experience. This exercise may
commence forthwith and its commencement confirmed to this Commission
through Jt. Registrar Shri Pankaj KP Shreyaskar by 9th July, 2010. However,
since this information cannot be deemed to be held by the CPIO, at present, we
concede that this cannot be provided to appellant Shri Sabharwal.
On the question of the state of disclosure of cut off marks, which would
constitute the key to the examinations sought by appellant Shri Sabharwal, we
hold that the orders of the Hon’ble Supreme Court of India in SLP No.
23250/2008 – UPSC vs. Central Information Commission & Ors. must be
6
respected in the present case. We have therefore not considered this an issue.
Appellate Authority Shri K. S. Bariar Jt. Secretary (E) has already offered to
consider such a request ,if made after decision in the matter is pronounced by
the Apex Court. The appeal is thus allowed in part.
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
16.7.2010
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
16.7.2010
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