Patna High Court
The Chairman vs Bhavya Kumari on 3 August, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.112 of 2019
In
Civil Writ Jurisdiction Case No.8387 of 2018
======================================================
1. The Chairman, Bihar School Examination Board, Patna.
2. The Secretary, Bihar School Examination Board, Patna
3. Director, Bihar School Examination Board, Patna
4. Examination Controller, Bihar School Examination Board, Patna
... ... Petitioners
Versus
1. Bhavya Kumari D/o Sri Ram Prakash Singh through her Natural
Guardian/father namely Ram Prakash Singh son of Late Ramotar Singh,
resident of Mohalla-Sahjanand Nagar, Sita Sharan, Begusarai, P.S. Muffasil,
District Begusarai
2. The State of Bihar
3. Principal Secretary cum Secretary to Government, Human Resources
Development Department, Govt. of Bihar, New Secretariat Building, Bailey
Road, Patna
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner (BSEB) : Mr. Satyabir Bharti, Advocate
Mr. Ratan Kumar, Advocate
For the Opposite Party/s : Mr. Ashutosh Ranjan Pandey,AAG-15
Mr. Rakesh Narayan Singh, Advocate
Mr. Prabhat Ranjan Singh, AC to AAG-13
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date : 03-08-2022
This review application has been filed seeking review
of the judgment and order dated 29.08.2018 passed by this
Court in CWJC No. 8387 of 2018 to the extent this Court had
directed the petitioner-Bihar School Examination Board to place
on the web-site of the Board the answer-sheets of all the top ten
scorers of X and XII examinations, to be held by the Board in
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
future, immediately after publication of result.
2. The said order was passed to minimise scope of
recurrence of similar controversies as had been noticed while
deciding the writ petition filed by opposite party No. 1. Relevant
portion of the order sought to be reviewed reads as under:
"Accordingly, this application is allowed.
The Chairman, Bihar School Examination Board, is
directed to revise the petitioner's score in Hindi paper
by adding one mark against question No.1 ( ग) and
publish her result accordingly within two weeks from
today. This direction is being issued in view of the
admitted fact as stated in the supplementary counter
affidavit of the Board that had the said answer of the
petitioner being evaluated, she would have been given
one more mark. Consequences of publication of revised
result under this order shall follow.
In the facts and circumstances of the case, I
impose a cost of Rs. 5,00,000.00 (Five Lakhs) on the
Bihar School Examination Board to be paid in favour
of Simultala Awasiya Vidyalaya, Jamui, through its
Principal, where the petitioner had pursued her studies
up to Class X. The Principal of the School shall be
required to utilise the said fund exclusively for the
purpose of purchase of books and computers/software
for improvement of library of the school.
It will be the responsibility of the Chairman
of the Board to ensure that the cost amount is paid, as
directed, within three months from today.
I have imposed exemplary cost in the
present case considering the conduct of Board, which,
instead of fairly accepting the claim of petitioner has
chosen to invite a verdict from the Court, placing
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
reliance on the provision of the Regulations, which
even the Board did not adhere to.
Before I part with this present judgment
and order, I consider it appropriate to direct the Bihar
School Examination Board to place on the web-site of
the Board the answer-sheets of all top ten scorers of
Xth and XIIth examinations to be held by the Bihar
School Examination Board in future, immediately after
publication of result in order to minimise the scope of
recurrence of such controversies in future, as have
arisen in the present proceeding."
3. It has been brought to the Court's notice that all the
directions issued by this Court in the order dated 29.08.2018
have been implemented except for the direction, whereby, the
Board has been directed to place on the web-site of the Board,
the answer-sheets of all top ten scorers of X and XII
examinations to be held in future.
4. The Board, in order to seek review of the part of
the order, as noted above, has relied on a Supreme Court's
decision rendered in the case of CBSE v. Aditya Bandopadhyay
reported in (2011) 8 SCC 497 with particular reference to
paragraphs No. 44 and 45 thereof.
5. This review application was taken up on
24.11.2021. Noticing substance in submission made on behalf of
the Board, notice was issued to opposite party No. 1 and it was
further directed that the aforementioned last direction contained
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
in the order dated 29.08.2018 passed in CWJC No. 8387 of
2018 shall remain in abeyance, in the meanwhile.
6. Upon service of notice, opposite party No. 1, who
was the writ petitioner in CWJC No. 8387 of 2018, has entered
appearance through vakalatnama. A counter affidavit has also
been filed on behalf of the opposite party No. 1.
7. I have heard Mr. Satyabir Bharti, learned counsel
appearing on behalf of petitioners and Mr. Ratan Kumar, learned
counsel appearing on behalf of the opposite party No.1.
8. Mr. Satyabir Bharti, learned counsel appearing on
behalf of petitioners has reiterated reliance on the Supreme
Court's decision in case of Aditya Bandopadhyay (supra) and
has submitted that, there being fiduciary relationship between
the Board and the examinees, it may not be appropriate for the
Board to place on its web-site, their answer-sheets after
publication of result.
9. Per contra, learned counsel appearing on behalf of
the opposite party No. 1 has made two fold submissions. He has
firstly submitted that this review application deserves to be
dismissed on the ground of delay for the reason that this Court's
order was passed on 29.08.2018, whereas, the present review
application has been filed on 15.03.2019. In support of his
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
submission, he has relied on Supreme Court's decision in case of
Postmaster General v. Living Media India Ltd. reported in
(2012) 3 SCC 563 with particular reference to paragraphs 25
and 29 thereof. He has secondly submitted that, this Court in a
proceeding for review of an order may not go into the
correctness of the order under review as if sitting in appeal. He
has relied on Supreme Court's decision in case of Parsion Devi
v. Sumitri Devi reported in (1997) 8 SCC 715 in support of his
submission.
10. After having perused the order under review and
records of CWJC No. 8387 of 2018, the Court is of the opinion
that the order under review was passed apparently in ignorance
of the law laid down by the Supreme Court in case of Aditya
Bandopadhyay (supra). Learned counsel for the petitioner has
laid emphasis on paragraph Nos. 44 and 45 of the said decision
of the Supreme Court, which is being reproduced hereinbelow:
"44. We may next consider whether an
examining body would be entitled to claim exemption
under Section 8(1)(e) of the RTI Act, even assuming
that it is in a fiduciary relationship with the examinee.
That section provides that notwithstanding anything
contained in the Act, there shall be no obligation to
give any citizen information available to a person in his
fiduciary relationship. This would only mean that even
if the relationship is fiduciary, the exemption would
operate in regard to giving access to the information
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
held in fiduciary relationship, to third parties. There is
no question of the fiduciary withholding information
relating to the beneficiary, from the beneficiary himself.
45. One of the duties of the fiduciary is to
make thorough disclosure of all the relevant facts of all
transactions between them to the beneficiary, in a
fiduciary relationship. By that logic, the examining
body, if it is in a fiduciary relationship with an
examinee, will be liable to make a full disclosure of the
evaluated answer books to the examinee and at the
same time, owe a duty to the examinee not to disclose
the answer books to anyone else. If A entrusts a
document or an article to B to be processed, on
completion of processing, B is not expected to give the
document or article to anyone else but is bound to give
the same to A who entrusted the document or article
to B for processing. Therefore, if a relationship of
fiduciary and beneficiary is assumed between the
examining body and the examinee with reference to the
answer book, Section 8(1)(e) would operate as an
exemption to prevent access to any third party and will
not operate as a bar for the very person who wrote the
answer book, seeking inspection or disclosure of it."
11. The Supreme Court in case of Aditya
Bandopadhyay (supra) has clearly laid down that if a
relationship of a fiduciary and beneficiary is assumed between
the examining body and examinee with reference to the answer
book, Section 8(1)(e) of the Right to Information Act, 2005
would operate as an exemption to prevent access to any third
party and will operate as a bar for the very person who wrote the
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
answer book, seeking inspection or disclosure of it.
12. In the Court's opinion, in the light of Supreme
Court's decision in case of Aditya Bandopadhyay (supra), since
it has been held to be impermissible for an examining body to
make disclosure to any third party of evaluated answer books by
invoking Right to Information Act, learned counsel appearing
on behalf of the Board is correct in his submission that the Court
should review the order, whereby, the Board has been directed
to place on the web-site of the Board, answer-sheets of all top
ten scorers of X and XII examinations, as that would amount to
disclosure of their answer-sheets to everyone by putting the
same in public domain.
13. The objection taken on behalf of the opposite
party No. 1, on the ground of delay, is not acceptable for the
reason that the procedures prescribed under the Code of Civil
Procedure are not strictly applicable to a writ proceeding under
Article 226 of the Constitution of India. Further, I do not find
any merit in the submission made on behalf of the opposite
party No. 1 with reference to the Supreme Court's decision in
case of Parsion Devi (supra). It is true that review jurisdiction
cannot be used as an appellate jurisdiction. The facts and
circumstances of the present case are entirely different from that
Patna High Court C. REV. No.112 of 2019 dt.03-08-2022
of the case of Parsion Devi (supra). The order, which is sought
to be recalled in the present review application, does not
concern opposite party No. 1. The said direction was issued to
the Board as the Court was of the view that disclosure of
answer-sheets would minimise scope of recurrence of
controversies as had arisen in that case.
14. In view of the Supreme Court's decision in case of
Aditya Bandopadhyay (supra), I find merit in the present review
application. The review application is accordingly allowed.
15. Consequently, the part of the order, whereby, the
Board has been directed to place on the web-site of the Board,
the answer-sheets of all top 10 scorers of X and XII
examinations to be held by the Board in future, immediately
after publication of the result is hereby recalled.
(Chakradhari Sharan Singh, J)
K.K.RAO/-
AFR/NAFR N/A
CAV DATE N/A
Uploading Date 08.08.2022
Transmission Date N/A
