Mr. S M Arora vs Supreme Court Of India on 24 September, 2010

                    CENTRAL INFORMATION COMMISSION
                Appeal No. CIC/WB/A/2009/000536 dated 30.4.2009
                  Right to Information Act 2005 - Section 19


Appellant        -       Shri Kamdev Paswan
Respondent           -   Staff Selection Commission
                         Department of Personnel & Training (DoPT)

                              Appeal Heard: 21.7.2010
                           Decision announced: 23.7.2010


Facts

:

By an application of 29.1.08, Shri Kamdev Paswan of Doranda, Ranchi,
applied to the CPIO, SSC seeking the following information:

“(1) Since I had opted for the post Inspector (Income Tax) as
Second preference and the Inspector of Posts as fifth
preference, as to under what circumstances I have not been
appointed as Inspector (Income Tax).

(2) The actual marks obtained by me in the main examination
and interview separately. Besides this marks obtained by the
candidates appointed for the Post of Inspector (Income Tax)
in main examination and interview separately and their
preference number for the Post of Inspector (Income Tax).”

To this, Shri Kamdev Paswan received a response dated 12.2.08 from
CPIO Shri V. K. Aggarwal, Under Secretary informing him, as follows:

“You (roll number 2073998) category SC, had secured total 336
marks in Assistant Stream, 348 marks in CBI Stream in the written
part and 51 marks in Interview in Scheme ‘A’ and # marks in
Scheme ‘B’ of Combined Graduate Level Exam 2005. # Absent in
appear-II of Section ‘B’.’

Shri Paswan then moved a second application dated 7.3.08 in which he
expanded on his request as follows:

“(1) While I had opted the Inspector (Income Tax) as the Second
preference and the Inspector of Posts as fifth preference, as
to under what circumstances I have not been appointed as
Inspector (Income Tax), (As the marks obtained by the last

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candidate for both Inspector (Income Tax) and Inspector of
Posts for the SC category is 399).

(2) Name of the each SC candidate who have obtained 399
marks and have been selected for Inspector (Income Tax)
and Inspector of Posts separately, along with their
preferences.”

He further sought amplification by designing a proforma (i) & (ii), both
covering the following:

S. Ro Name of each candidate of SC Marks Preferenc
No ll category who have obtained 399 obtained es opted
. No marks and have been selected for by them by them
. the post of Inspector (Income Tax)

To this, Shri Kamdev Paswan received no response prompting him to
move an appeal on 15.5.08 before Shri L. Vishwanathan, Director, SSC pleading
that “after passing of two months I haven’t got the information in this regard as I
would like to kindly remind that the information regarding RTI must be submitted
within thirty days.” He also moved an appeal before Secretary, Central
Information Commission on 9.7.08 and an appeal before the Central Information
Commission on 25.7.08. That appeal, admitted as CIC/WB/A/2008/001238 was
disposed of on 25.9.08 with the directions to the First Appellate Authority to
consider the appeal. Appellant Shri Kamdev Paswan was also advised that
should he be dissatisfied with the ruling of the first Appellate Authority, he might
then move a second appeal before us u/s 19(3).

In the meantime, however, it was seen that by the order of 16.10.08
Appellate Authority, SSC, Ms. Gayatri Sharma has passed the following order:

“2. It is not possible to supply the report in the proforma devised
by you as a Public Authority can supply information in the
form as held by the Public Authority.

3. Names of candidates scoring 399 marks in mains and
Interview are not communicated.

4. As a matter of policy, marks in mains and Interview are not
communicated.

5. As regards, why you have not been recommended for
Inspector of Income Tax, it is informed that more than one

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candidate scored 399 marks. This tie was broken on the
basis of marks obtained in written part of the Combined
Graduate Level Exam 2005. Since, the marks obtained by
the last selected candidate in written part were more than
the marks obtained by you in written part of the said Exam,
you were not recommended for the post of Inspector of
Income Tax.”

It is against this order that appellant Shri Paswan has moved his second
appeal with the following prayer:

“As to point no. 3 in Annexure-7, names of candidates scoring
399 marks was not sought. Neither information regarding
marks obtained by the candidates appointed for the post of
Inspector (Income Tax) in main Examination and Interview
separately nor their preference number for the post of
Inspector (Income Tax) in SC category was sought after me.
This is not third party information as my selection depends
upon their marks and preferences opted by them. As this
information is relating to me and knowing their marks and
preferences is essential.

As far as third party information is concerned, the onus to
prove that a denial of a request was justified shall be on the
Central public Information Officer or State Public Information
Officer, as the case may be who denied the request, as per
section 19(5) of the RTI Act. And, the order must be a
reasoned order.

As to point no. 4 in Annexure-7, there is no word in the Right
to Information Act, 2005 ‘as a matter of policy’. If information,
life of an information seeker depends, it must be furnished to
the applicant under RTI Act, 2005.

As to point no. 5 in Annexure-7, it is informed that more than
one candidate scored 399 marks and the tie was broken on the
basis of marks obtained in written part of the examination.
But there is not any mentioning of preference number. Is
there not any importance of preference number/ this
information is also vague, as per knowledge the final selection
in any department by SSC depends upon the preferences
chosen by the candidates.”

The appeal was heard by videoconference on 21.7.10. The following are
present:

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Appellant at NIC Studio, Ranchi
Shri Kamdev Paswan
Respondents at CIC Studio, New Delhi.

Shri P. C. Tandon, US
Ms. Usha Malhotra, S.O.

The issues before us are two:

1. Disclosure of marks of contesting candidates.

2. Indication of preferences

On the points at Sr. No. 3 & 4 of the order of appellate authority,
respondent Ms. Usha Malhotra submitted that the Commission is treating the
marks of individuals as private information and although results of examinations
are published, mark sheets only of the concerned candidates are provided to
such candidates. This information is also accessible on the website of the SSC.
There is, however, no publication of general mark sheets.

On point No. 5, however, Ms. Malhotra clarified that the tiebreaker is only
resolved among those who have given a first preference for a particular service
and have secured identical marks. The marks obtained by appellant Shri
Kamdev Paswan have been conveyed to him in the initial response of 12.2.08 to
his RTI application. Upon this, appellant Shri Paswan contested the basis of
making such decision, upon which he was informed that the quality of decision
making was not at issue, but only the disclosure of information sought, which in
our view, has been provided in full with regard to this question.

DECISION NOTICE

In his application of 7.3.’08, appellant Shri Paswan has specifically asked,
“Name of the each SC candidate who have obtained 399 marks and have been
selected for Inspector (Income Tax)” Yet in his prayer he has contended “As to
point no. 3 in Annexure-7, names of candidates scoring 399 marks was not
sought.” The question is sought to be answered with points 3 and 4 by appellate

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authority Ms Gayatri Sharma. We have examined the issue of whether marks
obtained in a public examination of successful candidates can be deemed to be
private information held in confidence for a third party and refused, therefore,
under sec. 11(1) read with Sec. 8(1)(j). In F. No.CIC/MA/A/2006/00308 Pramod
Kumar Gupta vs. Canara Bank, P&D Wing decided on 28.8.’06, we have held
as follows:

“CPIO and the appellate authority have erred in interpretation of the
provisions of the Act and its effective implementation in true spirit of
total transparency in functioning of the public bodies. The outcomes
of the examination process should be put in public domain so that
the affected persons can have access to it. While the answer
sheets are not to be disclosed for reasons already given in several
decisions of the Commission, mark sheets and model answers to
the set questions, if prepared, should be disclosed after the entire
process is complete.”

Again, in YB Sharma vs. Staff Selection Commission
(CIC/WB/C/2007/00705), we have in a more detailed examination held as follows
in our decision of 30.06.’09:

In citing our Decision cited in the orders of appellate authority Shri
L. Vishwanathan has stated that “Central Information Commission
vide their decision dated 30.4.2007 has stated that no details of
conducting of examination could be given” We find that in this
Decision in complaint No. CIC/WB/C/2007/0011 Sujit Pal vs. SSC
we have simply reiterated our Full Bench Decision in the clubbed
Complaint No. CIC/WB/C/2006/00223, Appeal Nos.
CIC/WB/A/2006/00469 & 00394 and Appeal Nos.

CIC/OK/A/2006/00266, 00058,00066 & 00315 dated 25.2.2007,
which primarily upholds the right of examination authorities to
withhold copies of answer sheets. It is, therefore, incorrect for Shri
L. Vishwanathan, Dy. Secretary, SSC to hold that we have in any
case held that any details of the examination process notably the
identity of an Examination Board and disclosability of mark sheets
cannot be disclosed, other than what we have specifically stated.
On the other hand, we have in our decisions repeatedly held that
the law demands disclosure of mark sheets, which in this case
have not been provided. Mark sheets are a matter of public
information and cannot be construed as third party, since these are
not expected to be held in confidence, nor is this personal
information by any definition of the term, which would render it
exempt under sub sec. (j) of Sec. 8(1)1. In the same manner, the
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Underlined by us for emphasis

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number and names of candidates who appeared for interview in a
public examination cannot be treated as confidential information
since this is a consequence of the results of the written
examination.”

Since appellant has now clarified that it is not the names of the candidates
that he seeks, however, CPIO SSC will provide to him the marks obtained by the
successful candidates in the examination, within ten working days of the date of
receipt of this Decision Notice. This disposes of Issue No 1.

On issue No 2. respondents have clarified in the hearing that that the
tiebreaker is only resolved among those who have given a first preference for a
particular service and have secured identical marks. Therefore the post of
Inspector of Income Tax was first preference of all contenders, thus answering
the second part of the second question of Shri Kamdev Paswan. This disposes of
Issue No. 2

Reserved in the hearing, this decision is announced in open chamber on
23.7.’10. Notice of this decision be given free of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
23.7.2010

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
23.7.2010

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