Iit Delhi v. Sushil Kohli

ORDER

07.02.2011

¶1The Petitioner Indian Institute of Technology (TIT'), Delhi is aggrieved by orders dated 23'^'^ November2010 and 23'^''December2010 passedby 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), Page lof? Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. respectively.

¶2The 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 Engineering2010 ('GATE2010'). The schemeof the examinationis 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 coiTect answer in an ORS against the relevant question number.

¶3The JEE 2010 was conductedon ll"^ April 2010 in 1026 centresacross India and 4.72 lakh candidates appeared. The answer key was placed on the internet website .of the IIT on 3'^'' June 2010 while the individual marks of the candidates were posted on 5^^ June 2010. Counseling of the successful candidatestook place from 9^*^ to 12^'' June 2010. The GATE 2010 was conducted on 14"^ February2010 and the results were announcedon IS^J' March 2010.

¶4In the information brochure, for the JEE, one of the terms and conditions reads as under: "X. Results of JEE-2010

¶1Performance in JEE-2010 The answer paper of JEE-2010 is a machine-gradable Optical Response Sheet (ORS). These sheets are scrutinized and graded Writ Petition (Civil) Nos. 747/2011 & 751/2011 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 Ranlcs ('AIR'yCategory 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.

¶5It 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.

¶6The 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 Respondentsfiled 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 informationprovidedby the letter dated 15^'^ June 2010, the Complainant approached this Commission. The Commission ; H suggests the Complainantto seek inspectionof the relevant records and directs Indian Institute of Technology, Delhi to cooperatewith the Complainantin the inspectionof 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 appropriateGrievanceRedressal Forum or seek legal remedy." ^

¶7As regardsthe case of Mr. SushilKohli the Commissionfound 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 u 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 decisionrenderedon 23'^^ December2010 inthe appealfiled 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 O' Appellantand thatthe processwouldtake 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."

¶8This 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. r b

¶9This Court is not impressedwith the above submission.The defencethe Petitionermay have had, if a notice had been issued to it by the CIC, has been consideredby this Court in the presentproceedings.This Court finds, for the reasons explainedhereinafter,that there is no legal justificationfor the Petitioner's reftisal to provide each of the Respondentsa photocopyof / the concerned ORS.

¶10It 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 decisionby the Full Bench of the CIC renderedon 23'^'^ April 2007 iii Rakesh Kumar Singh v. Harish Chander.

¶11In the first place given the fact that admittedly the evaluation of the ORS is canied 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 b? disclosed and made available under the Right to Information Act unless the X) providingofsuchanswersheetswouldinvolvean infringementofcopyright as providedfor underSection9ofthe Rightto InformationAct."

¶12Irrespectiveofthe decisiondated 23'^'^ April 2007 ofthe CIC in Rakesh KumarSingh v. HarishChander,whichin any eventis not bindingon this Court,it is obviousthat the evaluationofthe ORS/ORMsheetsis througha computerizedprocessand no prejudicecan be causedto 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 candidatehimselfor herself The disclosureof suchphotocopyofthe ORS will not compromisethe identityof the evaluator, since the evaluation is done through a computerized process. There is no questionof defenceunder Section8 (1) (e) of the RTI Act being invokedbythe IIT to deny copy of such OMR sheets/ORSto the candidate.

¶13It is then urged by Mr. Mitra that if the impugnedorders 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 apprehensionis exaggerated.If IIT is confidentthat both the JEE and GATE are fool proof, it should have no difficulty providinga candidatea copy of his or her ORS. It enhancestransparency.It appearsunlikelythat the each and every candidatewould want photocopies of the ORS.

¶14It is then submitted that evaluation done of the ORS by the Petitioner is final and no requestcan be entertainedfor re-evaluationof marks. Reliance is placedon the orderdated2"'' July 2010passedby the learnedSingleJudge WritPetition(Civil)Nos. 747/2011&751/2011 ^ . Page6of7 I ; of this Court in Writ Petition(Civil) No. 3807 of 2010 [Adha Srujana v. Union ofIndia].This Courtfinds thatthe questionas far as the presentcase is concernedis not aboutthe requestof the Respondentsfor re-evaluationor re-totallingof the marks obtainedby them inthe JEE 2010 or GATE 2010. Notwithstandingthe disclosureof the ORS to the Respondent,IIT wouldbe withinits rightsto declinea requestfrom eitherof them for re-evaluationor re-totallingin terms of the conditions already set out in the information brochure.The decisiondated 2"*^ July 2010 by this Court in W.P. (C) No. 3807 of 2010 has no appUcation to the present case.

¶15The 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.

¶16For the above reasons, this Court finds no reason to interfere with the impugnedordersdated 23'^'*November2010 and 23'^''December2010 passed by the CIC.

¶17The writ petitions and the pending applications are dismissed. S. MURALIDHAR, J FEBRUARY 07, 2011 rk Writ Petition (Civil) Nos. 747/2011 & 751/2011

* IN THE HIGH COURT OF DELHI AT NEW DELHI #37 + #39 W.P. (C) 747 of 2011 & CM APPL 1568/2011 INDIAN INSTITUTE OF TECHNOLOGY, DEtm Petitioner Through:Mr. Arjun Mitra, Advocate versus NAyiN TALWAR Respondent Through: None. And + s/^.P. (C) 751 of 2011 & CM APPL 1598/2011 % INDIAN INSTITUTE OF TECHNOLOGY, DELHI Petitioner Through: Mr. Arjun Mitra, Advocate versus SUSHIL KOHLI Tlirough: None. Respondent CORAM: JUSTICE S.MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest?