Soumik Mitra vs Union Of India And Ors
2011 Latest Caselaw 3906 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 11th August, 2011
+                            W.P.(C) 5779/2011

         SOUMIK MITRA                                           ..... Petitioner
                     Through:             Mr. Raj Panjwani, Sr. Adv. with Mr.
                                          Aditya Shamlal, Adv.
                                      versus
         UNION OF INDIA AND ORS                 ..... Respondents
                      Through: Ms. Sweety Manchanda, CGSC for
                               R-1.
                               Mr. Atul Kumar, Adv. for R-3to6.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may         Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?              Yes

3.       Whether the judgment should be reported             Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 19th August, 2010 of the

Central Information Commission (CIC) disposing of the appeal preferred

by the petitioner in terms of the order on the same date in another appeal

preferred by one Mr. Amitawa Choudhary.

2. The petitioner had appeared in the Senior School Certificate

Examination held by the respondent CBSE, first in the year 2008 and being

unsuccessful therein, again in the year 2009. Being dissatisfied with his

result of the examination taken in the year 2009 also, he in accordance

with the Bye-Laws of the examination, applied for re-checking. The

respondent CBSE vide its letter dated 22nd June, 2009 to petitioner

intimated that upon re-checking, no mistake had been detected. The

petitioner being still dissatisfied preferred W.P. 12593(W) of 2009 before

the Calcutta High Court. It is the case of the petitioner that the Calcutta

High Court called for the answer scripts and which were produced before

the Court and the Court came to the conclusion that the same were genuine

and accordingly dismissed the writ petition vide order dated 28th August,

2009.

3. The petitioner thereafter on 7th October, 2009 applied under the RTI

Act, 2005 for the answer sheets to be supplied to him. The PIO, Allahabad

vide order dated 31st October, 2009, relying upon Rule 61(iv) of the

Examination Bye-Laws prohibiting disclosure of answer sheets refused to

provide the same.

4. The petitioner preferred an appeal to the First Appellate Authority,

Allahabad under the Act and which was also rejected on 25 th November,

2009.

5. Aggrieved therefrom the petitioner on 4th March, 2010 preferred the

second appeal to the CIC impugning the order whereon, this petition has

been filed.

6. The CIC has held that in accordance with the decision dated 4 th

November, 2009 of Full Bench of the CIC in Rakesh Kumar Singh vs.

PIO, Lok Sabha Secretariat copies of the answer sheet were not required

to be provided under the RTI Act, including by the CBSE. It was

accordingly held that there was no error in the orders of the PIO and the

First Appellate Authority. The CIC nevertheless on the plea that the replies

furnished by the PIO, Allahabad of the CBSE were sketchy, issued a

direction to the CBSE to place a credible system under which the

applications are examined and disposed of in conformity with the

provision of the RTI Act.

7. It is the case of the petitioner himself in this petition that

representative of the respondent CBSE during the hearing before the CIC

had stated that the answer sheets of the petitioner have been destroyed. The

senior counsel for the petitioner has contended that since the CIC has

disposed of the appeal preferred by the petitioner by merely adopting the

order in the case of Mr. Amitawa Choudhary, it has failed to record the

said fact also. The petitioner has in the present writ petition claimed the

following reliefs:-

"a) A writ, order or direction in the nature of certiorari for quashing the impugned order dated 19-08-2010, passed by Smt. Deepak Sandhu, Learned Information Commissioner at the CIC.

b) Call for the tapes of the video conference held at the CIC, dated 19-08-2010, in connection with the petitioners case.

c) Call for a record of destruction, if any, which has recorded the destruction of the petitioners answer scripts.

d) To initiate proceedings under Section 20 of the RTI Act, for the imposition of penalty against those officer who were responsible for the destruction of the answer sheets of the petitioner."

8. The senior counsel for the petitioner at the outset has stated that the

Apex Court in a recent decision reported in the newspapers has held that

answer sheets are to be provided to the examinees. He states that the

judgment dated 9th August, 2011 in Central Board of Secondary

Education v. Aditya Bandopadhyay MANU/SC/0932/2011 has not been

uploaded as yet and is hence not available.

9. It has however been put to the senior counsel for the petitioner as to

what purpose the aforesaid judgment of the Apex Court would serve, since

it is the case of the petitioner himself that the answer sheets have been

destroyed. The senior counsel states that the respondent CBSE has not

stated so on affidavit till now and seeks a direction to the respondent CBSE

to file an affidavit in this regard.

10. The counsel for the respondent CBSE has with reference to Rule 62

of the Examination Bye-Laws of the CBSE providing for destruction of the

answer sheets within three months of the declaration of the result and

which in the present case was declared in May, 2009 states that he has

instructions that the answer sheets have been so destroyed.

11. Thus the possibility of directing production or giving inspection of

the answer sheets, as Supreme Court has held "permissible", does not exist

now.

12. The senior counsel has however urged that the petitioner in his

application to the PIO as well as in the first appeal and in the second

appeal has been seeking a direction for preservation of the answer sheets

and contends that thus, destruction of the answer sheets is in violation of

Section 20 of the RTI Act and the CIC has erred in not taking action

thereunder, neither of imposition of penalty nor for prosecution of the

concerned official, and the petitioner is entitled to the said relief.

13. The petitioner in the present case was before the Calcutta High

Court with respect to his result and which Court immediately called for the

answer sheets and recorded its satisfaction that all questions answered by

the petitioner had been duly assessed and there was no totaling error. The

petitioner, neither from the Calcutta High Court nor from any other Court,

sought the relief of restraining the respondent CBSE from destroying the

answer sheets. The question which arises is, whether the authorities under

the RTI Act, on the request of the petitioner for preservation of the answer

sheets were required to or competent to pass any orders for such

preservation.

14. The senior counsel for petitioner, except, for drawing attention to

Section 25 of RTI Act dealing with mandatory report and which admittedly

does not empower such authorities to order the preservation, has not been

able to show any provision in the Act in this regard. However attention is

invited to an order passed by the PIO referring to another order of the CIC

where such direction for preservation was given. However, without the Act

empowering the authorities in this regard, I am unable to hold that the

remedy if any of the petitioner seeking preservation of the answer sheets

was before the authorities under the RTI Act. The request made to them

was thus of no consequence and no error can be found with the non-

issuance of direction of preservation by the said authorities.

15. The senior counsel for the petitioner has next contended that the

Division Bench of the Calcutta High Court as far back as in the year 2009

had held that the examinees are entitled to the inspection of the answer

sheet and contends that the CIC erred in not following the same. However

the senior counsel fairly admits that neither the petitioner in the appeal

before the CIC nor during the hearing cited the said judgment of the

Calcutta High Court.

16. Once it is found that the authorities under the RTI Act were not

empowered to make any order on the request of the petitioner for

preservation, it cannot be said that they are liable for any action for not

acceding thereto.

17. Reference to Section 20 of the RTI Act providing for imposition of

penalty and prosecution for destruction also has to be seen in the light of

other applicable rules. Once the Examination Bye-Laws of the CBSE

permitted the CBSE to destroy the answer sheets within three months of

the declaration of the result, destruction in accordance with the said Bye-

Laws cannot be said to invite penalties under Section 20 of the RTI Act.

18. There is thus no merit in the petition; the same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 11, 2011 pp