Wednesday, September 22, 2010

Information prior to 2005 cannot be denied

"Information prior to 2005 cannot be denied"

Staff Reporter

MADURAI: The Madras High Court Bench here has rejected the argument that public authorities dealing with applications under the Right To Information (RTI) Act, 2005 were not liable to provide details related to the period before the enactment of the legislation.

Dismissing a writ petition filed by a government-aided arts and science college in Tuticorin against an order passed by the State Information Commission, Justice R.S. Ramanathan said that the college could not refuse to part with details sought by an individual about its activities since 1999.

The judge disagreed with the petitioner's contention that compelling an authority to part with information prior to 2005 would amount to giving retrospective effect to the Act. He said that it was a substantial legislation which recognises the right of every person to obtain information.

"The purpose of enacting the legislation itself would become meaningless if the Court accepts the argument of the learned counsel for the petitioner that no information or documents earlier to 2005 can be asked for by an RTI applicant… A citizen is entitled to call for information related to any period," the judge said.

He also rejected the petitioner's other argument that the State Information Commission had violated the principles of natural justice by not giving an opportunity to the college explain its stand before directing the institution to provide information sought by the RTI applicant.

The Act does not require the Commission to issue notice before ordering disclosure of information.

"Further the question of violation of principles of natural justice would arise only when a person is affected by the passing of an order or any civil consequences followed by that order," the judge added.

He also held that the petitioner college, being a government aided institution, was liable to provide the information as directed by the Information Commission.

Courtesy_

Madras HC Judgement on University Answer Sheets

Answer Sheets_Madras High Court Judgement

Judgement dated 13-09-2010 of Madurai Bench of Hon'ble Madras High Court in the matter of disclosure of answer sheets of university exams. Para Nos 7 and 8 are important for RTI which read as under:

"7.with reference to non furnishing the copies of answer sheets, the conduct of the University cannot be appreciated and without driven the parties to approach this court, the University ought not to have given copies.

8.When a question arose whether such an information is in public domain and the persons are entitled to know the marks obtained in the answer sheets, this court vide its judgment in The Tamil Nadu Dr. Ambedkar Law University, rep.By its Registrar Vs. The Tamil Nadu State Information Commission and others reported in 2010 (1) CWC 816 has held that even under the provisions of the Right To Information Act, a third party is entitled to get such an information."

In my humble views, there is typographical error in para 7. Last sentence should be as under: "the University ought to have given copies." [not is deleted here]

Courtesy_

Also read the FULL Judgment at: http://judis.nic.in/chennai/qrydisp.asp?tfnm=57128

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13/09/2010

CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU

W.P.(MD)NO.4815 of 2008

R.Ramasamy ..  Petitioner

Vs.

1.The Secretary,
   Ministry of Higher Education,
   Chennai.
2.The Registrar,
   T.N.Dr.Ambedkar Law University,
   Chennai.
3.The Controller of Examination,
   T.N.Dr. Ambedkar Law University,
   Chennai. ..  Respondents

This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to direct the
third respondent to produce answer manuscripts of M.L. Degree exam Code Nos.PDE,
PDF exams held in December, 2007 written by the petitioner in Reg.No.0049 and to
direct to revalue the same answer papers in the court supervision and to declare
the results before the forthcoming exam on 9th and 11th June 2008.

!For Petitioner ... Mr.R.Ramasamy (Party in person)
^For Respondents ... Mr.S.C.Herold Singh, GA for R-1
   Mr.P.Thiagarajan for RR2 and 3
- - - -

ORDER

Heard the petitioner appearing in person, Mr.S.C.Herold Singh, learned
Government Advocate for the first respondent and Mr.P.Thiagarajan, learned
counsel for respondents 2 and 3 University.

2.The petitioner was a Post Graduate student in Law under the second
respondent University. He joined M.L. with Transfer of Properties which is an
optional subject. He wrote his final year M.L. Examination and appeared for
Public Trust and Charities (PDE) and Land Reform Laws and Leases (PDF) with
registration No.0049. But he was unsuccessful. Though he asked for photostat
copies of his answer sheets, the same were not provided. Therefore, he filed the
present writ petition, seeking for a direction to produce the answer sheets for
the examination wrote by him with code Nos.PDE and PDF for the year December,
2007. Further the court should direct the authorities to revalue the answer
sheets under the court supervision and also to declare the results before the
ensuing examination in June, 2008.

3.On notice from this court, the respondents have produced the photostat
copies of answer sheets. A counter affidavit, dated 3.7.2008 was also filed by
the second respondent. In paragraph 5 of the counter affidavit, it was averred
as follows:

"5.I submit, with regard to the averments made in Ground 3 to 6, till now there
is no provision for revaluation of M.L.Degree answer scripts in this University.
Since, in normal practice P.G. Degree answer scripts are being valued by
different Examiners (Double Valuation), the question of revaluation of answer
scripts of the P.G. Programme does not arise. However, the copies of the answer
scripts of the Petitioner, viz., (1) Public Trust and Charities (PDE) and (2)
Land Reform Laws and Leases (PDF) were forwarded to the petitioner on 07-06-2008
as per his request."

4.This court by an order, dated 15.6.2010 allowed the petitioner to write
the examination held in June, 2010 making it clear that in case he succeeds in
the writ petition, the results obtained in this writ petition will be binding on
parties.

        5.After perusing the answer sheets, the petitioner has come up with
an additional affidavit, dated 6.11.2009. He had stated that for the U.G.
Course, the University has system of revaluation and there is no reason why they
should deny the petitioner's request.  It was also stated that the other
universities in Tamil Nadu have adopted revaluation procedure even at the P.G.
Level. Therefore, there is nothing wrong for this court ordering revaluation. He
further submitted that he has done very well in the examination.

6.A perusal of the PDF paper shows that it has been valued by two
different examiners and after working out an average of two valuations, he had
only secured  37 marks. Likewise, in PDE paper, it has been valued by two
examiners and an average worked out to 28 marks. It must be noted that the
petitioner had not alleged any malafide.

7.with reference to non furnishing the copies of answer sheets, the
conduct of the University cannot be appreciated and without driven the parties
to approach this court, the University ought not to have given copies.

8.When a question arose whether such an information is in public domain
and the persons are entitled to know the marks obtained in the answer sheets,
this court vide its judgment in The Tamil Nadu Dr. Ambedkar Law University, rep.
By its Registrar Vs. The Tamil Nadu State Information Commission and others
reported in 2010 (1) CWC 816 has held that even under the provisions of the
Right To Information Act, a third party is entitled to get such an information.

9.With reference to the prayer for revaluation, it must be stated that the
petitioner had obtained marks bordering very near to pass mark. Very recently,
the Supreme Court dealt with an issue regarding the court's power in ordering
revaluation, vide its judgment in H.P.Public Service Commission Vs. Mukesh
Thakur and another reported in  2010 AIR SCW 3636 = 2010 (6) SCC 759. It is
necessary to refer to paragraphs 24 to 26 of the said judgment which is as
follows:

"24. The issue of revaluation of answer book is no more res integra. This issue
was considered at length by this Court in Maharashtra State Board of Secondary
and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth (1984(4) SCC 27),
wherein this Court rejected the contention that in the absence of the provision
for revaluation, a direction to this effect can be issued by the Court. The
Court further held that even the policy decision incorporated in the
Rules/Regulations not providing for rechecking/verification/revaluation cannot
be challenged unless there are grounds to show that the policy itself is in
violation of some statutory provision. The Court held as under: (SCC pp.39-40 &
42, paras 14 & 16)

"14. ? It is exclusively within the province of the legislature and its delegate
to determine, as a matter of policy, how the provisions of the statute can best
be implemented and what measures, substantive as well as procedural would have
to be incorporated in the rules or regulations for the efficacious achievement
of the objects and purposes of the Act. ?
* * *
16. ? The Court cannot sit in judgment over the wisdom of the policy evolved by
the legislature and the subordinate regulation-making body. It may be a wise
policy which will fully effectuate the purpose of the enactment or it may be
lacking in effectiveness and hence calling for revision and improvement. But any
drawbacks in the policy incorporated in a rule or regulation will not render it
ultra vires and the Court cannot strike it down on the ground that, in its
opinion, it is not a wise or prudent policy, but is even a foolish one, and that
it will not really serve to effectuate the purposes of the Act."

25. This view has been approved and relied upon and reiterated by this Court in
Pramod Kumar Srivastava v. Bihar Public Service Commission(2004 (6) SCC 714)
observing as under: (SCC pp.717-18, para 7)

"7. ? Under the relevant rules of the Commission, there is no provision wherein
a candidate may be entitled to ask for revaluation of his answer book. There is
a provision for scrutiny only wherein the answer books are seen for the purpose
of checking whether all the answers given by a candidate have been examined and
whether there has been any mistake in the totalling of marks of each question
and noting them correctly on the first cover page of the answer book. There is
no dispute that after scrutiny no mistake was found in the marks awarded to the
appellant in the General Science paper. In the absence of any provision for
revaluation of answer books in the relevant rules, no candidate in an
examination has got any right whatsoever to claim or ask for revaluation of his
marks." (emphasis added)

A similar view has been reiterated in Muneeb-Ul-Rehman Haroon (Dr.) v. Govt. of
J&K State (1984(4) SCC 24), Board of Secondary Education v. Pravas Ranjan
Panda(2004(13) SCC 383), Board of Secondary Education v. D. Suvankar(2007 (1)
SCC 603), W.B. Council of Higher Secondary Education v. Ayan Das(2007 (8) SCC
242) and Sahiti v. Dr. N.T.R. University of Health Sciences(2009(1) SCC 599).
26. Thus, the law on the subject emerges to the effect that in the absence of
any provision under the statute or statutory rules/regulations, the Court should
not generally direct revaluation."

10.In the light of the above, there is no case made out to entertain the
writ petition. Hence the writ petition will stand dismissed. However there will
be no order as to costs.
vvk

To
1.The Secretary,
   Ministry of Higher Education,
   Chennai.
2.The Registrar,
   T.N.Dr.Ambedkar Law University,
   Chennai.
3.The Controller of Examination,
   T.N.Dr. Ambedkar Law University,
   Chennai.

Courtesy_

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The RTI Act was passed by the Lok Sabha (Lower House) on 11 May 2005, by the Raj Sabha (Upper House) on 12 May 2005 and received Presidential assent on 15 June 2005. Parts of the Act came into force upon Presidential assent, but the Act came fully into force on 12 October 2005, 120 days after Presidential assent.

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This Blog Spot is meant for publishing reports about the usage of RTI Act (Right to Information Act, 2005) so as to create an awareness to the general public and also to keep it as a ready reckoner by them. So the readers may extend their gratitude towards the Author as we quoted at the bottom of each Post under the title "Courtesy".Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.

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