Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 823-854 of 2016, Judgment Date: Feb 04, 2016

                                                                ‘REPORTABLE’

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL Nos.823-854 OF 2016
             (Arising out of SLP (C ) Nos. 15919- 15950 of 2011)


Kerala Public Service Commission & Ors.                        …..Appellants


                                   Versus


The State Information Commission & Anr.                        ….Respondents



                                    With

CIVIL APPEAL NO.855 OF 2016
(Arising out of SLP (Civil) No.5433 of 2014)


Public Service Commission U.P.                                 …..Appellant


                                   Versus

    Raghvendra Singh                                          .. Respondent




                               J U D G M E N T
M.Y. EQBAL, J.

            Leave granted.

2.           In  these  two  appeals  the   short   question   which   needs
consideration is as to whether the Division Bench of the Kerala  High  Court
by impugned judgment has rightly held that the respondents are entitled  not
only to get information with regard to  the  scan  copies  of  their  answer
sheet, tabulation-sheet containing interview  marks  but  also  entitled  to
know the names of the examiners who have evaluated the answer sheet.
3.    The information sought for by  the  respondents  were  denied  by  the
State Public Information Officer and the Appellate Authority.  However,  the
State Information Commission allowed the second appeal and held  that  there
is no fiduciary relationship  in  case  of  answer  scripts.   Further,  the
interview marks cannot be considered  as  personal  information,  since  the
public authority had already decided to publish them.

4.     Both the High Courts of Kerala and Allahabad  have  taken  the  view,
following  the  earlier  decisions  of  this   Court   that   no   fiduciary
relationship  exists  between  the  appellants  and  the  respondents   and,
therefore, the information sought for have to be supplied to them.

5.  We have heard learned counsel for the parties and have gone through  the
impugned judgments passed by the Division Bench of the High Court of  Kerala
at Ernakulam and Allahabad.
6.    So far as the information sought for by the  respondents  with  regard
to the supply of scanned copies of his answer-sheet  of  the  written  test,
copy of the tabulation sheet and other information, we are  of  the  opinion
that the view taken in the impugned judgment with regard to  the  disclosure
of these information, do not suffer from error of law and the same is  fully
justified.  However,  the  view  of  the  Kerala  High  Court  is  that  the
information seekers are also entitled to get  the  disclosure  of  names  of
examiners who have evaluated the answer-sheet.
7.  The view taken by the  Kerala  High  Court  holding  that  no  fiduciary
relationship exists between  the  University  and  the  Commission  and  the
examiners appointed by them cannot be sustained in  law.   The  Kerala  High
Court while observing held:-
“16.What, if any ,  is  the  fiduciary  relationship  of  the  PSC  qua  the
examinees?  Performance audit  of  constitutional  institutions  would  only
strengthen the confidence of the citizenry in such  institutions.   The  PSC
is a constitutional institution.  To stand above board, is one  of  its  own
prime requirements.  There is nothing that  should deter disclosure  of  the
contents of the materials that  the  examinees  provide  as  part  of  their
performance in the competition for being selected to  public  service.   The
confidence that may be reposed by the examinees in the  institution  of  the
PSC does not inspire the acceptability  of  a  fiduciary  relationship  that
should kindle the exclusion of information in relation to the  evalution  or
other details relating to the examination.  Once the evaluation is over  and
results are declared, no more secrecy is called for.  Dissemination of  such
information  would  only  add  to  the  credibility  of  the  PSC,  in   the
constitutional conspectus in which it  is  placed.   A  particular  examinee
would therefore be entitled to access to information  in  relation  to  that
person’s answer scripts.  As regards  others,  information  in  relation  to
answer scripts may fall within the pale  of  “third  party  information”  in
terms of section 11 of the RTI Act.  This only means that  such  information
cannot be accessed except in conformity with  the  provisions  contained  in
section 11.  It does not, in any  manner,  provide  for  any  immunity  from
access.

17.   We shall now examine the next  contention  of  PSC  that  there  is  a
fiduciary relationship between it and the examiners and  as  a  consequence,
it is  eligible  to  claim  protection  from  disclosure,  except  with  the
sanction of the  competent   authority,  as  regards  the  identity  of  the
examiners as also the materials that were subjected to the examination.   We
have already approved  TREESA and the different precedents and  commentaries
relied on therein as regards the concept of fiduciary relationship.  We  are
in full agreement with the law laid by the Division Bench of this  Court  in
Centre of  Earth  Science  Studies  (supra),  that  S.8  (1)(e)  deals  with
information available with the person in  his  fiduciary  relationship  with
another; that information under this head  is  nothing  but  information  in
trust, which, but for the relationship  would  not  have  been  conveyed  or
known to the person concerned.  What  is it that the PSC holds in trust  for
the examiners? Nothing.  At the best, it  could  be  pointed  out  that  the
identity of the examiners has to  be  insulated  from  public  gaze,  having
regard to issues relatable to vulnerability and exposure  to  corruption  if
the identities of the examiners are  disclosed  in  advance.   But,  at  any
rate, such  issues  would  go  to  oblivion  after  the  conclusion  of  the
evaluation of the  answer  scripts  and  the  publication  of  the  results.
Therefore, it would not be in public interest  to hold that there  could  be
a continued secrecy even as regards the identity of the  examiners.   Access
to such information, including as to the identity of  the  examiners,  after
the examination and evaluation process are over, cannot be shied  off  under
any law or avowed principle of privacy.”


8.     We do not find any substance in the reasoning  given  by  the  Kerala
High Court on the question of disclosure of names of the examiners.
9.  In the present case, the PSC has taken upon  itself  in  appointing  the
examiners to evaluate the answer papers and as such, the PSC  and  examiners
stand in a principal-agent relationship. Here the PSC  in  the  shoes  of  a
Principal has entrusted the task of evaluating  the  answer  papers  to  the
Examiners. Consequently, Examiners in the position of agents  are  bound  to
evaluate the answer papers as per the instructions given by the  PSC.  As  a
result, a fiduciary relationship is established  between  the  PSC  and  the
Examiners. Therefore, any information shared between them is not  liable  to
be disclosed. Furthermore, the information seeker has no  role  to  play  in
this and we don’t see any logical reason as to how this will benefit him  or
the public at large.  We would like to point out that the disclosure of  the
identity of Examiners is in the least interest of  the  general  public  and
also any attempt to reveal the examiner’s identity will give  rise  to  dire
consequences. Therefore, in  our  considered  opinion  revealing  examiner’s
identity will only lead to confusion and public unrest. Hence,  we  are  not
inclined to agree with the decision of the Kerala High  Court  with  respect
to the second question.

10.   In the present case the request of the information  seeker  about  the
information of his answer sheets and details of the interview marks  can  be
and should be provided to him. It is not something which a public  authority
keeps it under a fiduciary capacity.  Even  disclosing  the  marks  and  the
answer sheets to the candidates will ensure that the  candidates  have  been
given marks according to their performance in the exam. This  practice  will
ensure a fair play in this competitive  environment,  where  candidate  puts
his time in preparing for the competitive exams, but,  the  request  of  the
information seeker about the details of the person who had  examined/checked
the paper cannot and shall not be provided to the information seeker as  the
relationship between the public authority i.e. Service  Commission  and  the
Examiners is totally  within  fiduciary  relationship.  The  Commission  has
reposed trust on the examiners that they will check  the  exam  papers  with
utmost care, honesty and impartially  and,  similarly,  the  Examiners  have
faith that they will not be facing any unfortunate  consequences  for  doing
their job properly. If we allow disclosing name of the  examiners  in  every
exam,  the  unsuccessful  candidates  may  try  to  take  revenge  from  the
examiners for  doing  their  job  properly.  This  may,  further,  create  a
situation  where  the  potential  candidates  in  the  next  similar   exam,
especially in the same state or in the same level will try  to  contact  the
disclosed  examiners  for  any  potential  gain  by  illegal  means  in  the
potential exam.
11.   We, therefore, allow these appeals in part  and  modify  the  judgment
only to the extent that the respondents-applicants are not entitled  to  the
disclosure of names of the examiners as sought for by them.

                                                              …………………………….J.
                                                                (M.Y. Eqbal)



                                                              …………………………….J.
                                                               (Arun Mishra)
New Delhi
February 4, 2016