Master Rajat Mann vs Guru Gobind Singh Indraprastha ...
2015 Latest Caselaw 3703 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 7th May, 2015

+             LPA No.543/2014 & CM No.13601/2014 (for stay).

       MASTER RAJAT MANN                                ..... Appellant
                   Through:          Dr. Jeet Singh Mann, father of the
                                     appellpant.
                                  Versus
    GURU GOBIND SINGH INDRAPRASTHA
    UNIVERSITY & ORS.                         ..... Respondents
                  Through: Mr. Vaibhav Kalra, Adv.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the order dated 6th August, 2014 of the

learned Single Judge of this Court of dismissal of W.P.(C) No.4940/2014

preferred by the appellant.

2. The appellant had appeared in the Common Entrance Test held by the

respondent no.1 University for admission of its MBBS course to the year 2014-

15 and after successfully qualifying Stage-I of the examination, appeared in

Stage-II and was ranked at No.3631 with 75 out of 150 marks in Botany and 63

out of 150 marks in the subject of Zoology. Being not satisfied with the marks

awarded to him in the said two subjects, he applied under the Right to

Information Act, 2005 (RTI Act) for the copies of the Optical Mark Reader

(OMR) answer sheets, question paper and answer keys. (We may record that

the respondent no.1 University has a practice of taking back the question papers

from the examinees before they leave the examination hall). The respondent

no.1 University however in response allowed only inspection of the OMR

answer sheet and did not provide to the appellant the question paper or the

answer key stating that there was no provision therefor. Aggrieved therefrom,

the writ petition from which this appeal arises was filed impugning the

regulations of the respondent no.1 University permitting only inspection of

answer sheets and prohibiting the supply of question papers and answer keys.

3. The said writ petition was dismissed by the learned Single Judge in

limine holding that the remedy if any of the appellant was before the Central

Information Commission (CIC) and not by filing the writ petition.

4. This appeal came up before us first on 22nd August, 2014 when being of

the view that the dismissal by the learned Single Judge of the writ petition on

the ground of the remedy of the appellant being before the CIC and not by way

of a writ petition was erroneous since the appellant had in the writ petition

challenged the vires of the regulations of the respondent permitting only

inspection of the answer sheets and prohibiting furnishing of question papers

and answer keys, the appeal was entertained. The counsel for the respondent

no.1 University appearing on advance notice on that date however stated that

the appellant had since been furnished a copy of the answer sheet; he however

could not give any specific reason as to why the question papers and answer

keys sought by the appellant could not be furnished. It was further felt by us on

that date that providing the answer sheets alone, without furnishing the question

paper and the answer key, serves no purpose.

5. The respondent no.1 University has filed a reply inter alia stating:-

(i) that the appellant has already been provided the copy of his OMR

answer sheets and has also been shown the answer keys during

inspection to enable him to verify the correct answers and

calculate the final score - thus the purpose for which the appellant

had approached the respondent no.1 University has been duly met;

(ii) that the respondent no.1 University‟s policy decision for not

providing the question paper is not under challenge and thus the

appellant is not entitled to raise grievance in that respect;

(iii) that the respondent no.1 University in the brochure, published of

admission process itself had provided that the examinees will have

to handover their OMR answer sheet along with the question paper

before leaving the examination hall; thus the appellant was well

aware about the practice and rule of the respondent no.1

University;

(iv) that as per the admission brochure, the examinees were not even

allowed to note down the questions from the question paper;

(v) that the respondent no.1 University has been following the

practice/policy of not handing over/providing the question papers

since the very beginning, with an objective to ensure that the

pattern, style and type of questions which are limited are not

known to the aspiring future candidates prior to the examination -

this is done to streamline the selection process so as to give

admission to the more meritorious students;

(vi) the said practice of not allowing the examinees to carry the

question booklet post examination is a uniform policy adopted by

the respondent no.1 University with respect to all

programmes/courses in which it conducts entrance examinations;

the rationale behind adopting the said policy is to evaluate the

examinees on the basis of their conceptual and analytical ability

and to distinguish them from those examinees who have

exceptionally good memory and can answer the questions on the

basis of their memory rather than applying their minds in the true

sense;

(vii) this Court ought not to interfere with the said decision of the

University in the academic matters and selection process; reliance

in this regard is placed on All India Council for Technical

Education Vs. Surinder Kumar Dhawan (2009) 11 SCC 726,

Director of Film Festivals Vs. Gaurav Ashwin Jain (2007) 4 SCC

737 and on Sanchit Bansal Vs. Joint Admission Board (2012) 1

SCC 157;

(viii) this Court also in judgment dated 28th May, 2012 in LPA

No.487/2011 titled All India Institute of Medical Sciences Vs.

Vikrant Bhuria upheld the contention of AIIMS that in case the

question papers are released, the same will lead to a situation

where the students with good memory and who can memorize the

previous years‟ questions will be selected rather than the one with

an analytical mind since the number of questions are limited and

the same will frustrate the whole purpose of selecting the

meritorious candidates;

(ix) the respondent no.1 University is also exempted from releasing the

question papers to the students in terms of Section 8(1)(j) of the

RTI Act as the disclosure of information would prejudice the

admission process of the University;

(x) the examinees are already aware of the questions and are now

being provided with the copy of the answer keys as well as the

answer sheets to evaluate their marks at the time of inspection; no

purpose would be served by providing them with a copy of the

question paper after the examination is over; and,

(xi) if the question papers are also released, the same will be utilized

by the coaching institutes and other private bodies who will sell

the same for earning profit at the cost of those paper setters who

use their intellect pool to set the question paper and further share

the same with the University, causing great prejudice.

6. Though the appellant has filed a rejoinder but need is not felt to refer

thereto. We heard the father of the appellant and Mr. Vaibhav Kalra, Advocate

appearing for the respondent no.1 University.

7. The father of the appellant relied on:-

(a) judgment dated 13th July, 2012 of the Division Bench of this Court

in LPA No.229/2011 titled Union Public Service Commission Vs.

Angesh Kumar holding that there can be no secrecy or

confidentiality about the raw marks and the method of

scaling/actualization adopted by an examiner and that the objective

of RTI Act is transparency and accountability. It was further held

that examinee is entitled to satisfy himself/herself as to the fairness

and transparency of the examination and the selection procedure

and to maintain such fairness and transparency, disclosure of raw

marks, cut off marks and scaling method adopted is a must;

(b) judgment dated 2nd September, 2013 of Single Judge of this Court

in W.P.(C) No.4953/2013 titled Raj Kumar Jha Vs. University of

Delhi, on a conspectus several dicta of the Supreme Court holding,

that it would be unfair to penalize the students for not giving an

answer which accords with the key answer when the key answer is

demonstrated to be wrong and that the student community could

not be made to suffer on account of errors committed by the

University;

(c) Alka Matoria Vs. Maharaja Ganga Singh University AIR 2013

Raj. 126 (DB), following the dicta of the Supreme Court holding

that the provisions of the RTI Act will prevail over the provisions

of the bye-laws/rules of examining bodies and that unless the

examining body was able to demonstrate that answer book fell

under the exempted category of information within the meaning of

Section 8(1)(e) of the RTI Act, the examining body will be bound

to provide access to an examinee to inspect and take copies of his

evaluated answer book;

(d) Union of India Vs. Anita Singh AIR 2014 Delhi 23 holding that

the expression "personal information" in Section 8(1)(j) of the Act

refers to the information personal to a third party held by the

public authority and not information relating to the information

seeker himself or the public authority;

(e) The Institute of Chartered Accountants of India Vs. Shaunak H.

Satya (2011) 8 SCC 781 laying down that though the question

papers, solutions/model answers and instructions in regard to any

particular examination may not be disclosable before the

examination is held but the position will be different once the

examination is held in as much as the disclosure of question

papers, model answers and instructions in regard to any particular

examination would not harm the competitive position of any third

party once the examination is held. It was further held that

examining body should change their old mindsets and tune them to

a new regime of disclosure of maximum information; and,

(f) Central Board of Secondary Education Vs. Aditya

Bandopadhyay (2011) 8 SCC 497 laying down that the provisions

of the RTI Act will prevail over the provisions of the bye-

laws/rules of the examining bodies in regard to examinations and

unless the examining body is able to demonstrate that the answer

books fall under any of the exempted categories of information

described in Clauses (a) to (j) of Section 8(1) of the RTI Act, the

examining body will be bound to provide access to an examinee to

inspect and take copies of his evaluated answer books, even if such

inspection or taking copies is barred under the rules/bye-laws of

the examining body governing the examinations.

8. Per contra Mr. Vaibhav Kalra, Advocate for the respondent no.1

University argued:-

(i) that the respondent no.1 University has now started giving

inspection of the OMR answer sheets and the answer key;

(ii) that the entrance examination comprises of multiple choice

questions of which there is not much choice and which are limited

in number;

(iii) that if the examinees are allowed to carry away the question papers

from the examination hall, the said question papers would be

published and the aspirants for the next year‟s examination would

be in the know thereof;

(iv) that the questions in the next year‟s entrance examination are

likely to be the same, thereby reducing the efficacy of the

examination; and,

(v) if not so, the questions will exhaust themselves over a period of

two/three years and once the question papers of two/three years are

published, the questions in the future examination would be out of

those only and which would be to the knowledge of the students

taking examinations thereafter. Reliance was placed on Nirav

Deepak Jobanputra Vs. State of Maharashtra

MANU/MH/0510/2002 where the refusal to supply question paper

on the ground of secrecy was upheld observing that the students do

not have a right to demand the question paper and they do not have

right to be part of the evaluation systems of their performance or to

verify the correctness of the evaluation made by the examiners and

certain amount of secrecy and confidentiality will have to be

maintained, particularly considering that almost 83000 students

were appearing annually in that examination and on Vikrant

Bhuria aforesaid.

9. The question for adjudication boils down to, (i) validity of the rule of the

respondent no.1 University of not allowing the students to take away the

question paper from the examination hall; (ii) validity of the refusal of the

respondent no.1 University to supply copy of the said question paper under the

RTI Act even after the result of the examination has been declared; and, (iii)

validity of the refusal of the respondent no.1 University to supply copies of the

OMR answer sheets and answer key under the RTI Act even after the result of

the examination has been declared, though permitting inspection thereof.

10. We have considered the rival contentions.

11. As far as the reliance by the counsel for the respondent no.1 University

on the judgment of the Division Bench of the Bombay High Court in Nirav

Deepak Jobanputra supra is concerned, the same relates to the pre

RTI era and is clearly not in sync with the subsequent judgments cited by the

father of the appellant. Reliance thereon is thus misconceived.

12. As far as rule/policy of the respondent no.1 University of not allowing

the examinees to take away the question papers from the examination hall is

concerned, the Supreme Court in Shaunak H. Satya supra has held that

question papers may not be disclosable before the examination is held but the

position will be different once the examination has been held. However the

contention of the respondent no.1 University is that the question papers are not

disclosable at all, not even after the result of the examination has been declared.

The reason given therefor is of the number of multiple choice questions which

can be asked being limited and exhausting themselves if not in one year, in two

or three years and the necessity of repeating the said questions and the

disclosure and publication thereof prejudicing the following years‟

examination. It is thus not a question of the question papers being not

disclosable till the declaration of the result of the examination only.

13. Such a reason undoubtedly prevailed with the Division Bench of this

Court in Vikrant Bhuria aforesaid where also the plea of AIIMS was that

knowledge of 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 and that setting up of such question papers besides intellectual efforts also

entailed expenditure and the possibility of AIIMS, in a given year cutting the

said expenditure by picking up questions from its question bank. However what

distinguishes the present situation from Vikrant Bhuria is that Vikrant Bhuria

who had sought information was not the examinee himself and the possibility

of his acting at the instance of a coaching institution or a publisher and acting

with the motive of making commercial gain from the information could not be

ruled out. Also, the examination with which Vikrant Bhuria was concerned,

was to a super specialty course in medicine and with respect whereto it was

pleaded that the questions available were limited.

14. On the contrary here we are concerned with the examinee himself and

examination to the admission to the MBBS course. The candidates appearing

for the MBBS entrance examination are students who have appeared in or have

passed the Class XIIth examination held by the CBSE or other boards of

examination. It can safely be argued that they cannot be tested beyond the

curriculum prescribed for Class XIIth. To our knowledge, no secrecy is

maintained with respect to Class XIIth board examination question papers

which the examinees are allowed to carry away with them after the

examination. Of course Class XIIth board examination does not comprise only

of multiple choice questions and also comprises of subjective questions.

However we have wondered that when there is no such fear as is expressed

with respect to the Class XIIth board examination and when question papers

therefor can be set year after year, why the same cannot be done for the MBBS

entrance examination. The course content for the MBBS entrance examination

and the possible questions even if of multiple choice variety cannot fall in a

narrow domain, as in an examination for a super specialty course in medicine.

No explanation in this regard has been given in the counter affidavit of the

respondent no.1 University or was given at the time of hearing. We do not even

know whether the matter has been considered by the experts of the respondent

no.1 University in this light. We find it very hard to believe that the stock of

questions even of multiple choice for testing the merit for admission to MBBS

is limited. The same does not speak very well of the innovative powers of the

setters of the said question papers.

15. We find the fear expressed to be not a considered decision for another

reason. Though the University may prohibit its question papers setters of the

said examination from publishing the same but cannot possibly prohibit the

other teachers of the subjects in which the examination is held from, of their

own acumen and intellect, frame and publish the model question papers. We do

not think that the respondent no.1 University can prohibit its question papers

setters also from beside setting the question papers, framing and publishing

model question papers. If it is to be believed that stock of multiple choice of

question is limited, then it will follow that the model question papers set up by

other teachers/professors would also be the same as set by the question paper

setter. If it were to be so, the questions which the respondent no.1 University is

seeking to keep secret would no longer remain secret.

16. In today‟s day and time we have model question papers for nearly each

and every examination and though we were not addressed on this part but are

sure there must be for the subject examination also. Not only so there are

specialized coaching classes for each and every entrance examination with

some of them having a very good success rate. Such coaching classes would

certainly be coaching on the likely multiple choice questions in the entrance

exam.

17. All this throws a lot of dust on the plea of secrecy taken by the

respondent no.1 University.

18. As far as we are aware, there is no such restriction in the examinations

held for entrance to the engineering colleges. We have also wondered that when

the question paper setters of the said examination can year after year come up

with new and different multiple choice questions to test the skill and merit of

the examinees, what is the difference in the medical entrance examination.

19. We had during the hearing enquired from the counsel for the respondent

No.1 University whether the Delhi University, also conducting the MBBS

course, is also following the same policy. No answer was forthcoming.

Similarly the position prevalent in other Universities also could not be stated /

informed.

20. The father of the appellant during the hearing handed over to us the

question papers of All India Pre-Medical Test held for admission to MBBS and

also comprising of multiple choice questions and the question paper of IIT JEE

(Main) and IIT JEE (Advanced) again comprising of multiple choice questions

as well as the Notification of the CBSE about the display of images of OMR

answer sheets on the website.

21. We are of the opinion that if the other Universities also holding entrance

examination to the MBBS course comprising of multiple choice questions are

not preventing their students from carrying away the question papers from the

examination hall or are providing copies of the answer key and the answer

sheets then there is no reason for the respondent no.1 University to take a

different stand, particularly when no reason therefor is given. The very fact that

different Universities holding separate examination to entrance to their MBBS

course are able to come up with different question papers year after year belies

the contention of the respondent no.1 University of the stock of questions being

limited. We may also take note of the fact that most of the students appearing

for the entrance examination to the MBBS course in the respondent no.1

University would also be appearing in the entrance examination held by Delhi

University as well as by other Universities outside Delhi and which

examinations would be held on different dates, some before the entrance

examination of the respondent no.1 University and some after. If the choice of

questions is limited, we fail to see as to how secrecy can be maintained after

other Universities have held their examinations.

22. It appears to be a case of the respondent no.1 University having not

changed its mindset and kept it in tune with the new regime under the RTI Act.

23. We ourselves are not experts in the matters with respect to which we

have raised our doubts aforesaid. The only purport thereof is to make the

respondent no.1 University think anew and from all perspectives. The

respondent no.1 University, in our view, by taking a plea of the stock of

multiple choice questions being limited is affronting the innovativeness and

intellect of its question paper setters.

24. What we have observed hereinabove applies equally to the refusal of the

respondent no.1 University to give copies of the OMR answer sheets of the

examination and the answer key though giving inspection thereof, in as much

as the reason for not supplying copies of answer sheets and answer key is the

same i.e. to not thereby make the question paper public.

25. We may add, giving inspection of a document is not the same as

furnishing a copy thereof. Though the RTI Act in Section 2(j), while defining

"right to information" includes besides taking copies, also a right to inspect but

Section 6(1) requires a person seeking information to specify the information

sought and Section 7(9) requires the information sought to be "ordinarily .....

provided in the form in which it is sought unless it would disproportionately

divert the resources of the public authority or would be detrimental to the safety

or preservation of the record in question." It thus follows that if the

information seeker, in exercise of right of information, has sought information

by furnishing copies of information, the Act mandates (Section 7(9) uses the

word "shall") furnishing of information in the form of copy of the information /

document and the public authority cannot say that it will furnish such

information by offering inspection thereof. The only grounds on which the

public authority can say so is, either where supply of information by furnishing

copies would entail diversion of resources or where furnishing of copies would

be detrimental to the safety or preservation of the information / document. The

respondent No.1 University has refused to supply copies of OMR answer sheets

of the appellant himself and the answer key, not on the grounds of the same

entailing diversion of resources but on the ground of the same in turn revealing

the contents of the question paper. The same cannot be a ground of

preservation of the OMR answer sheet or answer key. It can perhaps fall under

the ground of "safety" but with which we have dealt above.

26. Under the RTI Act no information sought can be refused unless the same

falls in one of the Clauses of Section 8(1) thereof. The respondent no.1

University has pegged its case under Clause (j) of sub Section (1) of Section 8

which exempts from disclosure of information which relates to personal

information and the disclosure of which has no relationship to any public

activity or interest or which would cause unwarranted invasion of the privacy

of the individual. In our opinion the issue whether the question papers/ answer

sheets/answer keys fall in the said exemption is no longer res integra in terms

of the judgments in Shaunak H. Satya (supra) holding that furnishing of

information by an examining body, in response to a query under the RTI Act

may not be termed as an infringement of copyright. Though this Court in

Vikrant Bhuria distinguished Shaunak H. Satya, but in the facts of that case,

as noticed above and which are not applicable to the present case.

27. However the matter being academic in nature and with respect whereto

the settled principle of law is that the decision should be left to the experts in

the field of education, we, instead of quashing the aforesaid rules/polices of the

respondent no.1 University, deem it appropriate to direct the respondent no.1

University to take a decision on all the said aspects, in the light of observations

herein, within a period of three months herefrom.

28. The father of the appellant had informed us that the appellant as per his

rank was admitted to B.Sc. Medical Sciences course. He argued that if the

appellant, on the question paper being made available and comparing it with his

OMR answer sheets and the answer key finds any error resulting in improving

his rank, may get admission in some better course. He however did not state

that in the inspection taken by him of the appellant‟s OMR answer sheet and

answer key any error was found. In the circumstances, we are of the view that

no other relief personal to the petitioner can be granted in the present case.

29. We accordingly, allow this appeal in terms of above by directing the

respondent No.1 University to review its policy / rules / regulations qua

question papers, answer key and OMR answer sheets of the student concerned,

especially in the light of our observations in this judgment and to take a

decision vis-à-vis the furnishing of copies of question papers, answer key and

OMR answer sheet, of the MBBS entrance examination, of the information

seeker under the RTI Act, within a period of three months herefrom.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE MAY 7, 2015/„pp‟