All India Institute Of Medical ... vs Vikrant Bhuria
2012 Latest Caselaw 3538 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 28th May, 2012

+                        LPA No.487/2011

ALL INDIA INSTITUTE OF MEDICAL SCIENCES       ..... Appellant
                  Through: Mr. Sahil S. Chauhan, Adv for Mr.
                           Mehmood Pracha, Adv.

                                    Versus
VIKRANT BHURIA                                              ..... Respondent
                         Through:      None.

CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 22 nd December, 2010

of the learned Single Judge dismissing in limine WP(C) No. 8558/2010

preferred by the appellant. The said writ petition was preferred impugning

the decision dated 12th November, 2010 of the Central Information

Commission (CIC) directing the appellant to furnish to the respondent the

information sought by the respondent. Notice of this appeal and of the

application for condonation of 106 days delay in filing this appeal was

issued vide order dated 26th May, 2011 and the operation of the order dated

22nd December, 2010 of the learned Single Judge was also stayed. The

respondent remained unserved with the report that "a lady at the address of

the respondent refused to accept the notice on the ground that the respondent

was working at "Jabwa" and she had no knowledge of the notice". The

respondent was directed to be served afresh but no steps were taken by the

appellant. When the matter came up before us on 1 st March, 2012, being of

the view that the matter was fully covered by the judgment of the Supreme

Court in The Institute of Chartered Accountants of India v. Shaunak H.

Satya (2011) 8 SCC 781, the counsel for the appellant was asked to satisfy

this Court as to the merit of this appeal. The counsel for the appellant

sought adjournment from time to time and in these circumstances on 30th

March, 2012 orders were reserved in the appeal with liberty to the counsel

for the appellant to file written arguments. Written arguments dated 11 th

April, 2012 have been filed by the appellant and which have been considered

by us.

2. The respondent in his application dated 5th April, 2010 had sought the

following information from the Information Officer of the appellant.

"1. Certified copies of original questions papers of all Mch super-

speciality entrance exam conducted from 2005-2010.

2. Certified copies of correct answers of all respective questions asked in Mch super-speciality entrance exam conducted from 2005-2010."

3. The Information Officer of the appellant vide reply dated 21st April,

2010 refused to supply the information sought on the ground that the

"questions and their answers are prepared and edited by AIIMS, thus the

product remains „intellectual property‟ of AIIMS. Since these questions are

part of the question bank and likely to be used again, the supply of question

booklet would be against larger public interest". The provisions of Section 8

(1) (d) and 8(1) (e) of the Right to Information Act, 2005 were also invoked.

4. The respondent preferred an appeal to the First Appellate Authority.

The First Appellate Authority sought the comments of the appellant AIIMS.

AIIMS, besides reiterating what was replied by its Information Officer

added that the information asked was a part of confidential documents which

compromises the process of selection and thus could not be disclosed.

Though the order of the First Appellate Authority is not found in the paper

book, but it appears that the appeal was dismissed as the respondent

preferred a second appeal to the CIC.

5. It was the contention of the appellant before the CIC that there are

limited number of questions available with regard to super-speciality

subjects in the question bank and that the disclosure of such questions would

only encourage the students appearing for the exam to simply memorize the

answers for the exam, thereby adversely affecting the selection of good

candidates for super-speciality courses. It was thus argued that the question

papers of the entrance examination for super-speciality courses could not be

made public.

6. CIC vide its order dated 12th November, 2010 (supra), noticing the

admission of the appellant that the question papers could not be termed as

„intellectual property‟ and observing that the appellant had been unable to

invoke any exemption sub-clause of Section 8(1) of the Act to deny

information and further holding that the refusal of information was not

tenable under the Act, allowed the appeal of the respondent and directed the

appellant to provide complete information to the respondent.

7. The learned Single Judge, as aforesaid dismissed the writ petition of

the appellant challenging the aforesaid order of CIC in limine observing that

the appellant had not been able to show how the disclosure of the entrance

exam question papers would adversely affect the competitive position of any

third party and thus Section 8(1)(d) was not attracted. It was further

observed that there was no fiduciary relationship between the experts who

helped to develop the question bank and the appellant and thus Section 8(1)

(e) also could not be attracted.

8. The appellant in its written submissions before us urges:

i. that the subject matter of this appeal is not covered by the

judgment of the Supreme Court in Shaunak H. Satya (supra) as

the facts and circumstances are completely different;

ii. that the entrance examination for super-speciality courses was

introduced by the appellant only in the year 2005;

iii. that at the level of super-speciality examinations, there can be

very limited questions, which are developed gradually; that

such question papers are not in public domain; that a

declaration is also taken from the examinee appearing in the

said examination that they will not copy the questions from the

question papers or carry the same;

iv. per contra, in Shaunak H. Satya (supra) the Institute of

Chartered Accountants (ICA) was voluntarily publishing the

suggested answers of the question papers in the form of a paper

book and offering it for sale every year after examination and it

was owing to the said peculiar fact that it was held that

disclosure thereof would not harm the competitive position of

any third party;

v. that the information seeker in Shaunak H. Satya (supra) was a

candidate who had failed in examination and who was raising a

question of corruption and accountability in the checking of

question papers; per contra the respondent herein is neither a

candidate nor has appeared in any of the super-speciality

courses examination conducted by the appellant;

vi. that the appellant consults the subject experts, designs the

question papers and takes model answers in respect of each

question papers; such question papers prepared by experts in a

particular manner for the appellant are original literary work

and copyright in respect thereof vests in the appellant;

vii that the examinees taking the said examination are informed by

a stipulation to the said effect on the admit card itself that civil

and criminal proceedings will be instituted if found taking or

attempting to take any part of the question booklets;

viii. that copyright of appellant is protected under Section 8(1)(d);

ix. that Section 9 of the Act also requires the Information Officer

to reject a request for information, access whereto would

involve an infringement of copyright subsisting in a person

other than a State;

x. that the appellant also gives a declaration to the paper setters to

protect their literary work - reliance in this regard is placed on

Section 57 of the Copyright Act, 1957;

xi. that at the stage of super-speciality, there can be very limited

questions which can be framed and if the question papers of all

the examinations conducted from 2005-2010 are disclosed, then

all possible questions which can be asked would be in public

domain and that would affect the competitive position of

students taking the examinations.

9. We have minutely considered the judgment of the Apex Court in

Shaunak H. Satya (supra) in the light of the contentions aforesaid of the

appellant and find -

i. that the information seeker therein was an unsuccessful examinee

of the examination qua which information was sought;

ii. that the ICA had pleaded confidentiality and invoked Section

8(1)(e) of the Act for denying the information as to "number of

times the marks of any candidate or class of candidates had been

revised, the criteria used for the same, the quantum of such

revision and the authority which exercised the said power to revise

the marks";

ii. that the CIC in that case had upheld the order refusing disclosure

observing that the disclosure would seriously and irretrievably

compromise the entire examination process and the instructions

issued by the Examination Conducting Public Authority to its

examiners are strictly confidential;

iii. it was also observed that the book annually prepared and sold by

the ICA was providing „solutions‟ to the questions and not „model

answers‟;

iv. however the High Court in that case had directed disclosure for the

reason of the suggested answers being published and sold in open

market by the ICA itself and there being thus no confidentiality

with respect thereto. It was also held that the confidentiality

disappeared when the result of the examination was declared.

10. The Supreme Court, on the aforesaid finding, held-

i. that though the question papers were intellectual property of

the ICA but the exemption under Section 8(1)(d) is available

only in regard to intellectual property disclosure of which

would harm the competitive position of any third party;

ii. that what may be exempted from disclosure at one point of

time may cease to be exempted at a later point of time;

iii. that though the question papers and the solutions/model

answers and instructions cannot be disclosed before the

examination but the disclosure, after the examination is held

would not harm the competitive position of any third party

inasmuch as the question paper is disclosed „to everyone‟ at

the time of examination and the ICA was itself publishing the

suggested answers in the form of a book for sale every year,

after the examination;

iv. the word "State" used in Section 9 of the Act refers to the

Central Government or the State Government, Parliament or

Legislature of a State or any local or other authority as

described under Gazette of the Constitution;

v. use of the expression "State" instead of "public authority"

showed that State includes even non-government

organizations financed directly or indirectly by funds

provided by the appropriate Government;

vi. ICA being a „State‟ was not entitled to claim protection

against disclosure under Section 9.

vii. furnishing of information by an examining body, in response

to a query under RTI Act, may not be termed as an

infringement of copyright. The instructions and solutions to

questions communicated by the examining body to the

examiners, head examiners and moderators are information

available to such persons in their fiduciary relationship and

therefore exempted from disclosure under section 8(1)(d) of

the Act and there is no larger public interest requiring denial

of the statutory exemption regarding such information;

viii. the competent authorities under the RTI Act have to maintain

a proper balance so that while achieving transparency, the

demand for information does not reach unmanageable

proportions affecting other public interests, which include

efficient operation of public authorities and government,

preservation of confidentiality of sensitive information and

optimum use of limited fiscal resources.

11. The dissection aforesaid of the judgment Shaunak H. Satya in the

light of the arguments of the appellant noted above does show that the

learned Single Judge has not dealt therewith. We have satisfied ourselves

from perusal of the writ record that, at least in the writ petition, the same

grounds were taken, whether orally urged or not. The same do require

consideration and we do not at this stage deem it appropriate to remand the

matter to the Single Judge.

12. We are conscious that though notice of this appeal was issued to the

respondent but the respondent remains unserved. We have wondered

whether to again list this appeal for service of the respondent, to consider the

aforesaid arguments of the appellant and the response if any of the

respondent thereto but have decided against the said course, finding the

respondent to be a resident of Indore, having participated in the hearing

before the CIC also through audio conferencing and also for the reason that

inspite of the order of the learned Single Judge having remained stayed for

the last nearly two years, the respondent has not made any effort to join

these proceedings. We have in the circumstances opted to decipher the

contentions of the respondent from the memoranda of the first and the

second appeals on record and from his contention in the audio conferencing,

as recorded in the order of the CIC.

13. The respondent in the memorandum of first appeal, while admitting

the question papers and model answers to be intellectual property of

appellant, had pleaded that publication thereof was in larger public interest

as the aspiring students would be able to prepare and understand the pattern

of questions asked in super-speciality entrance examination in future. It was

also pleaded that question papers of most of the other examinations held

were available to the students and generally only 10-20% of the questions

were repeated. It was also his case that with the galloping advancement in

medical science, the average student is not able to understand what to study

and follow and preparation for the examination would be facilitated for the

prospective examinees if the question papers are made public. In the

memorandum of the second appeal it was also pleaded that when the best

faculty was available to the appellant, if did not need to depend on old

question papers. During the hearing via audio conferencing before the CIC,

the respondent had contended that the question papers could not be termed

as intellectual property and it was in larger public interest to provide the

questions to the aspiring students who will be able to understand the pattern

in which the questions are framed.

14. We tend to agree with the counsel for the appellant that the judgment

of the Apex Court in Shaunak H. Satya (supra) cannot be blindly applied to

the facts of the present case. The judgment of the Apex Court was in the

backdrop of the question papers in that case being available to the examinees

during the examination and being also sold together with suggested answers

after the examination. Per contra in the present case, the question papers

comprises only of multiple choice questions and are such which cannot be

carried out from the examination hall by the examinees and in which

examination there is an express prohibition against copying or carrying out

of the question papers. Thus the reasoning given by the Supreme Court does

not apply to the facts of the present case.

15. We are satisfied that the nature of the examination, subject matter of

this appeal, is materially different from the examination considered by the

Supreme Court in the judgment supra. There are few seats, often limited to

one only, in such super-speciality courses and the examinees are highly

qualified, post graduates in the field of medicine. Though the respondent, as

aforesaid, has paid tributes to the faculty of the appellant and credited them

with the ingenuity to churn out now questions year after year but we cannot

ignore the statement in the memorandum of this appeal supported by the

affidavit of the Sub-Dean (Examinations) of the appellant to the effect that

the number of multiple choice questions which can be framed for a

competitive examination for admission to a super-speciality course dealing

with one organ only of the human body, are limited. This plea is duly

supported by the prohibition on the examinees from copying or carrying out

from the examination hall the question papers or any part thereof. We have

no reason to reject such expert view.

16. The Sub-Dean of Examinations of the appellant in the Memorandum

of this appeal has further pleaded that if question papers are so disclosed, the

possibility of the examination not resulting in the selection of the best

candidate cannot be ruled out. It is pleaded that knowledge of the question

papers of all the previous years with correct answers may lead to selection of

a student with good memory rather than an analytical mind. It is also

pleaded that setting up of such question papers besides intellectual efforts

also entails expenditure. The possibility of appellant, in a given year cutting

the said expenditure by picking up questions from its question bank is thus

plausible and which factor was considered by the Supreme Court also in the

judgment aforesaid.

17. We also need to remind ourselves of the line of the judgments of

which reference may only be made to State of Tamil Nadu Vs. K. Shyam

Sunder AIR 2011 SC 3470, The Bihar School Examination Board Vs.

Subhas Chandra Sinha (1970) 1 SCC 648, The University of Mysore Vs.

C. D. Govinda Rao AIR 1965 SC 491, Maharashtra State Board of

Secondary and Higher Secondary Education Vs. Paritosh Bhupeshkumar

Sheth (1984) 4 SCC 27 holding that the Courts should not interfere with

such decisions of the academic authorities who are experts in their field.

Once the experts of the appellant have taken a view that the disclosure of the

question papers would compromise the selection process, we cannot lightly

interfere therewith. Reference in this regard may also be made to the recent

dicta in Sanchit Bansal Vs. The Joint Admission Board (JAB) (2012) 1

SCC 157 observing that the process of evaluation and selection of candidates

for admission with reference to their performance, the process of achieving

the objective of selecting candidates who will be better equipped to suit the

specialized courses, are all technical matters in academic field and Courts

will not interfere in such processes.

18. We have in our judgment dated 24.05.2012 in LPA No.1090/2011

titled Central Board of Secondary Education Vs. Sh. Anil Kumar Kathpal,

relying on the Institute of Chartered Accountants of India Vs. Shaunak H.

Satya (2011) 8 SCC 781 held that in achieving the objective of transparency

and accountability of the RTI Act, other equally important public interests

including preservation of confidentiality of sensitive information are not to

be ignored or sacrificed and that it has to be ensured that revelation of

information in actual practice, does not harm or adversely affect other public

interests including of preservation of confidentiality of sensitive information.

Thus, disclosure of, marks which though existed, but were replaced by

grades, was not allowed. Purposive, not literal interpretation of the RTI Act

was advocated.

19. We may further add that even in Central Board of Secondary

Education Vs. Aditya Bandopadhyay (2011) 8 SCC 497 that Apex Court

though holding that an examining body does not hold evaluated answer

books in fiduciary relationship also held that the RTI Act seeks to bring

about a balance between two conflicting interests, as harmony between them

is essential for preserving democracy i.e. of transparency and accountability

on one hand and public interest on the other hand. It was further held that

when Section 8 exempts certain information, it should not be considered to

be a fetter on the Right to Information, but an equally important provision

protecting other public interests essential for fulfillment and preservation of

democratic ideas. The Supreme Court further observed that it is difficult to

visualize and enumerate all types of information which require to be

exempted from disclosure in public interest and the legislature has in Section

8 however made an attempt to do so. It was thus held that while interpreting

the said exemptions a purposive construction involving a reasonable and

balanced approach ought to be adopted. It was yet further held that

indiscriminate and impractical demands under RTI Act for disclosure of all

and sundry information, unrelated to transparency and accountability would

be counter productive and the RTI Act should not be allowed to be misused

or abused.

20. The information seeker as aforesaid is not the examinee himself. The

possibility of the information seeker being himself or having acted at the

instance of a coaching institute or a publisher and acting with the motive of

making commercial gains from such information also cannot be ruled out.

The said fact also distinguishes the present from the context in which

Shaunak H. Satya (supra) was decided. There are no questions of

transparency and accountability in the present case.

21. When we apply the tests aforesaid to the factual scenario as urged by

the appellants and noted above, the conclusion is irresistible that it is not in

public interest that the information sought be divulged and the information

sought is such which on a purposive construction of Section 8 is exempt

from disclosure.

22. We therefore allow this appeal and set aside the orders of the CIC

directing the appellant to disclose the information and the order of the

learned Single Judge dismissing the writ petition preferred by the appellant.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE MAY 28, 2012 „M‟