Indian Institute Of Technology, ... vs Navin Talwar
2011 Latest Caselaw 710 Del

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         IN THE HIGH COURT OF DELHI AT NEW DELHI

#37
                  W.P. (C) 747 of 2011 & CM APPL 1568/2011


         INDIAN INSTITUTE OF TECHNOLOGY,
         DELHI                                 ..... Petitioner
                       Through: Mr. Arjun Mitra, Advocate

                                   versus

         NAVIN TALWAR                                ..... Respondent
                     Through: None.

                          And
#39

                  W.P. (C) 751 of 2011 & CM APPL 1598/2011


         INDIAN INSTITUTE OF TECHNOLOGY,
         DELHI                                      ..... Petitioner
                       Through: Mr. Arjun Mitra, Advocate

                                   versus

         SUSHIL KOHLI                                      ..... Respondent
                                   Through: None.


         CORAM: JUSTICE S.MURALIDHAR

         1. Whether Reporters of local papers may be
               allowed to see the judgment?                       No
         2. To be referred to the Reporter or not?                Yes
         3. Whether the judgment should be reported in Digest?    Yes

                                     ORDER

07.02.2011

1. The Petitioner Indian Institute of Technology („IIT‟), Delhi is aggrieved

by orders dated 23rd November 2010 and 23rd December 2010 passed by the

Central Information Commission („CIC‟) in the complaints of Mr. Navin

Talwar [the Respondent in Writ Petition (Civil) No. 747 of 2011) and Mr.

Sushil Kohli [the Respondent in Writ Petition (Civil) No. 751 of 2011),

respectively.

2. The issue involved in both these petitions is more or less similar. Mr.

Navin Talwar sat for the Joint Entrance Examination 2010 („JEE 2010‟). Mr.

Sushil Kohli‟s daughter, Ms. Sakshi Kohli, sat for the Graduate Aptitude

Test in Engineering 2010 („GATE 2010‟). The scheme of the examination is

that the candidates are given two question papers, containing multiple

choices for the correct answers, the correct answers are to be darkened by a

pencil in the Optical Response Sheet („ORS‟) which is supplied to the

candidates. The candidate has to darken the bubbles corresponding to the

correct answer in an ORS against the relevant question number.

3. The JEE 2010 was conducted on 11th April 2010 in 1026 centres across

India and 4.72 lakh candidates appeared. The answer key was placed on the

internet website of the IIT on 3rd June 2010 while the individual marks of the

candidates were posted on 5th June 2010. Counseling of the successful

candidates took place from 9th to 12th June 2010. The GATE 2010 was

conducted on 14th February 2010 and the results were announced on 15th

March 2010.

4. In the information brochure, for the JEE, one of the terms and conditions

reads as under:

"X. Results of JEE-2010

1. Performance in JEE-2010

The answer paper of JEE-2010 is a machine-gradable Optical Response Sheet (ORS). These sheets are scrutinized and graded

with extreme care after the examination. There is no provision for re-grading and re-totalling. No photocopies of the machine- gradable sheets will be made available. No correspondence in this regard will be entertained.

Candidates will get to know their All India Ranks („AIR‟)/Category ranks through our website/SMS/VRS on May 26, 2010.

Candidates can view their performance in JEE-2010 from JEE websites from June 3, 2010."

A similar clause is contained in Clause 3.5.1 (d) of the brochure for GATE.

5. It is stated that despite the above condition, Mr. Navin Talwar [the

Respondent in W.P. (Civil) No. 747 of 2011] and Mr. Sushil Kohli (father)

[the Respondent in W.P. (Civil) No. 751 of 2011] filed applications under

the Right to Information Act, 2005 („RTI Act‟) with the Public Information

Officer („PIO‟), IIT seeking the photocopies of the respective ORSs and for

the subject-wise marks of each of the candidates.

6. The PIO of IIT responded by stating that the marks obtained by the

candidates were available on the internet and there was no provision for

providing a photocopy of the ORS. Thereafter, the Respondents filed appeals

before the CIC. After perusing the response of the PIO, IIT, the CIC passed

the following order in the appeal filed by Mr. Navin Talwar:

"3. Upon perusal of the documents of the case, the Commission finds that the response of the Public Authority is not found acceptable by the Complainant. Hence, despite the information provided by the letter dated 15 th June 2010, the Complainant approached this Commission. The Commission

suggests the Complainant to seek inspection of the relevant records and directs Indian Institute of Technology, Delhi to cooperate with the Complainant in the inspection of the file/s. It is also directed that the Respondent shall submit a duly notarised affidavit on a Non-judicial stamp paper stating the inability to furnish the copy of ORS. The Complainant is at liberty to approach the appropriate Grievance Redressal Forum or seek legal remedy."

7. As regards the case of Mr. Sushil Kohli the Commission found that the

defence of the IIT was that "the information sought is exempted under

Section 8 (1) (e) since GATE Committee shares fiduciary relationship with

its evaluators and maintains confidentiality of both the manner and method

of evaluation." It was further contended before the CIC that "the evaluation

of the ORS is carried out by a computerized process using scanning

machines." The decision rendered on 23rd December 2010 in the appeal filed

by Mr. Sushil Kohli reads as under:

"2. During the hearing, the Respondent stated that they have to inform the NCB, MHRD before handing over the marks to the Appellant and that the process would take more than a month. The Commission in consultation with the Appellant agreed to give additional time to the PIO for providing the information and accordingly directs the PIO to provide the marks sheet to the Appellant within 45 days from the date of hearing to the Appellant."

8. This Court has heard the submissions of Mr. Arjun Mitra, learned counsel

appearing for the Petitioner IIT. It is first submitted that as regards Mr.

Navin Talwar‟s case, severe prejudice has been caused to the Petitioner

because the decision of the CIC has been rendered without affording the IIT

an opportunity of being heard.

9. This Court is not impressed with the above submission. The defence the

Petitioner may have had, if a notice had been issued to it by the CIC, has

been considered by this Court in the present proceedings. This Court finds,

for the reasons explained hereinafter, that there is no legal justification for

the Petitioner‟s refusal to provide each of the Respondents a photocopy of

the concerned ORS.

10. It is next submitted that under Section 8 (1) (e) of the RTI Act, there is a

fiduciary relationship that the Petitioner shares with the evaluators and

therefore a photocopy of the ORS cannot be disclosed. Reliance is placed on

the decision by the Full Bench of the CIC rendered on 23rd April 2007 in

Rakesh Kumar Singh v. Harish Chander.

11. In the first place given the fact that admittedly the evaluation of the ORS

is carried out through a computerized process and not manually, the question

of there being a fiduciary relationship between the IIT and the evaluators

does not arise. Secondly, a perusal of the decision of the CIC in Rakesh

Kumar Singh v. Harish Chander shows that a distinction was drawn by the

CIC between the OMR sheets and conventional answer sheets. The

evaluation of the ORS is done by a computerized process. The non-ORS

answer sheets are evaluated by physical marking. It was observed in para 41

that where OMR (or ORS) sheets are used, as in the present cases, the

disclosure of evaluated answer sheets was "unlikely to render the system

unworkable and as such the evaluated answer sheets in such cases will be

disclosed and made available under the Right to Information Act unless the

providing of such answer sheets would involve an infringement of copyright

as provided for under Section 9 of the Right to Information Act."

12. Irrespective of the decision dated 23rd April 2007 of the CIC in Rakesh

Kumar Singh v. Harish Chander, which in any event is not binding on this

Court, it is obvious that the evaluation of the ORS/ORM sheets is through a

computerized process and no prejudice can be caused to the IIT by providing

a candidate a photocopy of the concerned ORS. This is not information

being sought by a third party but by the candidate himself or herself. The

disclosure of such photocopy of the ORS will not compromise the identity of

the evaluator, since the evaluation is done through a computerized process.

There is no question of defence under Section 8 (1) (e) of the RTI Act being

invoked by the IIT to deny copy of such OMR sheets/ORS to the candidate.

13. It is then urged by Mr. Mitra that if the impugned orders of the CIC are

sustained it would open a "floodgate" of such applications by other

candidates as a result of which the entire JEE and GATE system would

"collapse". The above apprehension is exaggerated. If IIT is confident that

both the JEE and GATE are fool proof, it should have no difficulty

providing a candidate a copy of his or her ORS. It enhances transparency. It

appears unlikely that the each and every candidate would want photocopies

of the ORS.

14. It is then submitted that evaluation done of the ORS by the Petitioner is

final and no request can be entertained for re-evaluation of marks. Reliance

is placed on the order dated 2nd July 2010 passed by the learned Single Judge

of this Court in Writ Petition (Civil) No. 3807 of 2010 [Adha Srujana v.

Union of India]. This Court finds that the question as far as the present case

is concerned is not about the request of the Respondents for re-evaluation or

re-totalling of the marks obtained by them in the JEE 2010 or GATE 2010.

Notwithstanding the disclosure of the ORS to the Respondent, IIT would be

within its rights to decline a request from either of them for re-evaluation or

re-totalling in terms of the conditions already set out in the information

brochure. The decision dated 2nd July 2010 by this Court in W.P. (C) No.

3807 of 2010 has no application to the present case.

15. The right of a candidate, sitting for JEE or GATE, to obtain information

under the RTI Act is a statutory one. It cannot be said to have been waived

by such candidate only because of a clause in the information brochure for

the JEE or GATE. In other words, a candidate does not lose his or her right

under the RTI Act only because he or she has agreed to sit for JEE or GATE.

The condition in the brochure that no photocopy of the ORS sheet will be

provided, is subject to the RTI Act. It cannot override the RTI Act.

16. For the above reasons, this Court finds no reason to interfere with the

impugned orders dated 23rd November 2010 and 23rd December 2010 passed

by the CIC.

17. The writ petitions and the pending applications are dismissed.

S. MURALIDHAR, J FEBRUARY 07, 2011 rk