Ram Kishan vs Haryana Staff Selection Commission <BR> Vikas Sharma Vs State of Haryana

Augustine George Masih, J.—By this order, I propose to dispose of C.W.P. No. 2201 of 2014, titled as ''Vikas Sharma v. State of Haryana & others'' and C.W.P. No. 23886 of 2011, titled as ''Ram Kishan vs. Haryana Staff Selection Commission & others''. While issuing notice of motion in C.W.P. No. 2201 of 2014 on 06.02.2014, following order was passed:-

"Prayer in the present writ petition is for quashing the action of the respondents in publishing only the roll numbers of the selected candidates for the post of Post Graduate Teacher (Commerce) without disclosing the merit, marks, the details of the selected and unselected candidates such as name and parentage, criteria and other minimum required details relating to the selection, which leads the candidates in a difficult situation where for these factual informations they have to file applications under the Right to Information Act which results in wastage of time, energy and money not only of the candidates but of the respondents also. Contention is that the same should be either published or put on the website, so that each candidate, who has participated in the selection is aware of the factual aspect with regard to his position vis-a-vis the selected candidates and others.

These submissions are taken as suggestions and the respondents are called upon to respond to the same by way of affidavit within three weeks from today.

Although the present writ petition pertains only to the selection to the post of Post Graduate Teacher (Commerce), however, it has come to the notice of the Court that the similar situation arises in other selections also, which are conducted not only by the Haryana School Teachers Selection Board but by the Haryana Public Service Commission and the Haryana Staff Selection Commission. Keeping this in view, this Court is of the view that notice be issued not only to the three respondents in the present writ petition but also to the Haryana Staff Selection Commission, through its Secretary and the Haryana Public Service Commission, through its Secretary. They are ordered to be impleaded as respondent Nos. 4 and 5 to the writ petition. Registry to carry out the necessary additions in the memo of parties.

On the asking of Court, Mr. Sunil Nehra, Sr. DAG, Haryana accepts notice on behalf of respondent Nos. 1 to 4.

Four copies of the writ petition be supplied to Mr. Nehra and two copies of the same be supplied to Mr. H.N. Mehtani, Standing Counsel for the Haryana Public Service Commission, during the course of the day.

List on 03.03.2014.

In the meanwhile, direction is issued to the Haryana Teachers Selection Board to put on the website the details of all the candidates (names, parentage and category) who had participated in the selection, their respective merits, marks obtained by each candidate along with the breakup, criteria and further details as has been prayed for in the present writ petition, within a period of two weeks from today.

Copy of the order be given dasti to the counsel for the State under the signatures of the Special Secretary of this Court."

On 03.03.2014, the counsel for the State had sought time to comply with the order dated 06.02.2012 and HPSC also sought further time to file response.

The matter was taken up on 26.04.2014 when following order was passed:-

"In compliance with the order dated 3rd of March, 2014 passed by this Court, the Haryana School Teachers Selection Board has filed an affidavit dated 21st of April, 2014. A perusal of the same indicates that the order as passed by this Court on 03.03.2014 has till date not been complied with in toto.

It has been averred in para. 2 of the affidavit dated 21st of April, 2014, that the selection list in the order of merit both of Mewat and non Mewat cadres of all the categories of results declared by the Board for the post of Post-Graduate Teachers have been uploaded on the website of the Board i.e. www.hstsb.gov.in. The said selection list is stated to contain Roll Nos., name, parentage, address, sex, category and respective merits of the selected candidates. The downloaded selection list merit-wise is of categories No. 1.5 and 16 of PGT has been appended as Annexure R-1 with this affidavit.

A perusal of the said select list shows that the breakup of the marks obtained by the candidates and the total marks have not been given and displayed on the website. The order passed by this Court on 03.03.2014 required the Board to put on the website the details of all the candidates (names, parentage and category) who had participated in the selection, the respective marks, marks obtained by each candidate alongwith breakup of criteria and further details as had been prayed for in the writ petition.

Counsel for the petitioner submits that the breakup of the marks and the total marks obtained by the selected candidates have still not been displayed on the website. Counsel for the State prays for an adjournment to verify this aspect and file a specific affidavit to this effect within a period of two weeks.

In case the breakup of the marks obtained and the total marks of the selected candidates have not been displayed on the website, the same be now so done within a period of two weeks.

In para. 3 of the affidavit, it has been stated that the individual candidates are entitled to get the breakup of the marks which are also mentioned. Reference in this regard has been made to Annexure R-3. It has also been mentioned that the candidate has to put password for downloading this information.

This would, therefore, indicate that only a candidate can get his own individual result and not of other un-selected candidates. There appears to be no justification for not displaying the total result of the non selected candidates as the details have already been uploaded on the website otherwise the same could not have been downloaded by individual non-selected candidates. Counsel for the respondents to seek instructions in this regard as well. The affidavit be filed within a period of two weeks from today.

In the reply which has been filed by the Haryana Staff Selection Commission, it has been stated that the names of the selected candidates, their merit number and Roll Number are displayed on the website of the Commission with effect from 12.02.2014.

So far as the Haryana Public Service Commission is concerned, it has been stated in the affidavit that the result of all the selected candidates would be displayed on the website soon after the declaration of the result.

The difficulty which has been highlighted by both the Commissions is that large number of applications are received by them for each selection and the data which will have to be uploaded of the result of the selected and un-selected candidates to be displayed on the website would be voluminous. This assertion of counsel for both the Commissions may not be correct as the Commissions invariably proceed to short list the number of candidates who apply for the post. After the process of short listing the number of the candidates who have to ultimately participate in the selection goes down considerably and obviously the Commissions takes a conscious decision to bring the candidates within a reasonable and manageable limit. The ultimate result which has thus to be declared by these Commissions would not be voluminous that as has been sought to be projected in their affidavits proceeding on the assumption that large number of applications are received by them at the initial stage when the advertisements are issued. Thus the apprehensions of the Commissions are misplaced.

It has been pointed out by the counsel for the respondents that as per the order passed by this Court, the result of all the candidates has to be displayed on the website and, therefore, the clarification of the said order needs to be made by the Court. A perusal of the order would indicate that what was intended by the Court was pertaining to the different stages of selection i.e. where preliminary examination is held where short-listing is resorted to by the Commissions that primarily is in the form of screening test or on the basis of parentage of cut off marks for each category and that would be the first stage and in that process, the data involved would not be of that much volume which would pose any real difficulty to upload the same specially in the light of the fact that all these details are already available with the selecting authorities. The second stage would be when the selection process is over and the final result has to be uploaded for display which would relate to the candidates who had after the short listing participated in the main selection. This should not create any difficulty.

Counsel for the respondents pray for a short adjournment to seek instructions in this regard as well and file a specific affidavit to this effect. Needful be done within a period of two weeks.

Mr. Ashwani Bakshi, Advocate who is counsel in C.W.P. No. 23886 of 2011, titled as ''Ram Kishan v. Haryana Staff Selection Commission others'', which case is tagged alongwith this case, submits that as per Section 4 of the Right to Information Act, 2005, a public authority is required to maintain record in computerized form. The result needs to be displayed on the website as has already been mentioned above and should be retained on the website there for a reasonable period of time for the candidates to see and if need to be downloaded the same and thereafter, if because of overloading of the portal, the data has to be removed, the same should be retained either in the hard disk of the computer or in any other electronic form including the CDs so that it is readily available thereafter also.

Counsel for the respondents to seek instructions in this regard as well.

List for further consideration on 20.05.2014. Photocopy of this order be placed on the file of connected case.

Copy of this order be given to the counsel for the parties under the signatures of Court Secretary to this Court."

In compliance with the order dated 26.04.2014, counsel for Haryana Staff Selection Commission (for short ''HSSC'') has stated that the said order has been complied with and all the informations have been displayed on the website which will be available there for 15 days. In future also, it will be displayed as per the directions dated 26.04.2012 for 15 days from the date of declaration of the result. He further states that all the directions which were issued vide order dated 26.04.2014 qua the HSSC and Haryana School Teachers Selection Board (for short ''HSTSB'') stands complied with. This fact is not disputed by the counsel for the petitioners.

As regards the Haryana Public Service Commission (for short ''HPSC''), an affidavit dated 13.05.2014 has been filed by the Secretary, HPSC, wherein it has been stated that the order dated 26.04.2014, which has been passed by this Court, may not be in confirmity with the provisions of Section 8(1)(e) and (j) of the Right to Information Act, 2005 (for short ''2005 Act''). It has been stated that it would amount to displaying the personal information of the candidates to the public which would amount to causing an unwarranted invasion into the privacy of an individual.

On this aspect, counsel for the petitioner in C.W.P. No. 23886 of 2011 has produced the Division Bench judgment passed by this Court in State Bank of India Vs. Central Information Commissioner and Another, where these very provisions, on which reliance has been placed by the HPSC, have been dealt with and it has been held that the said information is not exempted from disclosure u/s 8(1)(j) of the 2005 Act. Accordingly, he prays that the objections as raised by the HPSC cannot sustain and deserve to be not accepted.

I have considered the submissions made by the counsel for the parties and I am of the view that the order dated 26.04.2014 need to be complied with even by the HPSC.

A perusal of the order dated 26.04.2014 would show that the order passed by this Court was very clear and specific. It did not violate any law and rather fulfills the mandate and is in consonance with the provisions as contained under the 2005 Act. The objections which have been raised by the HPSC through the affidavit filed by the Secretary of HPSC dated 13.05.2014 placing reliance upon Section 8(1)(e) and (j) of the 2005 Act, cannot sustain in the light of the Division Bench judgment of this Court in State Bank of India v. Central Information Commissioner and another, 2009 (1) RSJ 770 where it has been categorically held that information relating to the marks obtained by each of the candidate cannot be said to be personal information which would cause any unwarranted invasion into the privacy of an individual and such information do not find mentioned therein which would be exempted from the disclosure u/s 8 of the 2005 Act. Paras. 6 to 13 of the said judgment be read as follows:-

"6. Before considering the argument raised by the petitioner claiming exemption from disclosure of information, reproduction of the relevant provisions is necessary.

Section 2. Definitions-In this Act, unless the context otherwise requires:-

XXX XXX XXX

(h) "public authority" means any authority or body or institution of self-government established or constituted-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

Exemption from disclosure of information:

XXXX XXXX XXXX

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

XXX XXX XXX XXX

(j) information which relates to personal information 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 unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Firstly, we will consider the argument of the petitioner in respect of exemption falling within the scope of Section 8(1)(e) of the Act. The exemption is in respect of information available "to a person in his fiduciary relationship". The question is whether the person mentioned in Clause V is referable to the public authority u/s 2(h) of the Act and what information can be said to be part of fiduciary relationship, not liable to be disclosed. In our opinion, the person in Section 8(1)(e) is not synonymous with public authority which is as defined in Section 2(h) of the Act. A person as contemplated u/s 8(1)(e) of the Act will be an officer of a public authority who derives some information in the course of his duties for the public authority. It can be a senior functionary of the public authority in whom a junior official confides; can be an information from third party to an officer of authority and such other information disclosed/acquired by him. It is such information which exempted from disclosure. The person under the General Clauses Act, can include a juristic entity but the person u/s 8(1)(e) is not such juristic entity. If the legislature intend to prohibit disclosure of information available to the public authority, it could have very well used the word ''public authority'' in lieu of person. But the use of word ''person'' in Clause ''e'' connote that the information which has come to the knowledge of a man or woman in confidence alone is sought to be exempted. The other aspect is what information can be said to be available in fiduciary relationship. It is difficult to imagine any information which comes to public authority on account of fiduciary relationship. A juristic entity such as the public authority carries out its affairs in accordance with established procedures. In normal circumstances, all orders, commands, directions, affairs and actions are expected to be written. Similarly, a public authority will act on information received in writing. It is needless to say that the information effecting the sovereignty and integrity of India by the security forces etc. is not part of Clause V, as such information is part of Clause ''a'' itself. Therefore, it is apparent that the information available to public authority cannot be said to be information available to a person in his fiduciary relationship.

The fiduciary relationship is relationship subsisting between two persons reposing trust and confidence in the other. A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is actually accepted by the other person. Mere respect for another individual''s judgment or general trust in his or her character is ordinarily insufficient for the creation of a fiduciary relationship. Their duties of a fiduciary include loyalty and reasonable care of the assets within custody. All of the fiduciary''s actions are performed for the advantage of the beneficiary. The examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant etc.

The information sought by the applicant is in respect of selection of process conducted by public authority to fill a public post. The conduct of selection of process and the marks obtained cannot be said to be available to a public authority as in fiduciary relationship exempted from disclosure u/s 8(1)(e) of the Act.

The argument that information claimed is personal information, the disclosure of which has no relationship to any public activity or interest is again mis-conceived. The applicant has sought information in respect of performance of the candidates for the public post. The information sought is not personal information. The medical history of the candidate, the assets owned by the candidate, or such other details which are personal to him can be said to be part of personal information. But the marks obtained by candidates to determine the merit of a candidate for the public post, thus cannot be said to be personal information. The petitioner is bound to maintain the record of the selection process so as to instill confidence of all the candidates.

The marks obtained by each of the candidate cannot be said to be a personal information which would cause any unwarranted invasion of the privacy of the individual. Therefore, we do not find any merit in the said argument.

We do not find that disclosure of such information is exempted from disclosure u/s 8 of the Act.

In view of the above, in order to bring transparency and dispel doubts, if any, in the minds of the candidates who have participated in the selection, it would be proper to direct uploading of the information about the results relating to all public posts by all concerned public authorities. This would reduce litigation under the Right to Information Act, 2005 which results in wastage of time, energy and money, both of the candidates and the public authorities. This will enhance the credibility of the authorities making selection which would be in public interest. As recorded above, the HSSC and the HSTSB have already complied with the order dated 26.04.2014 passed by this Court, in view of the reasons mentioned above, a direction is issued to the HPSC to comply with the order dated 26.04.2014 in toto within a period of two weeks from today. This would apply to the selections which have been held by the HPSC results of which have been declared from March, 2014 onwards. The HPSC, HSSC and HSTSB shall also ensure compliance with the provisions as contained u/s 4 of the 2005 Act which mandates the public authority to maintain records in the computerized form after the display of the result on the website. The process as indicated in the order dated 26.04.2014 in the form of submissions of Mr. Ashwani Bakshi, Advocate, be followed and complied with. The result alongwith the information as has been ordered to be displayed on the website vide order dated 26.04.2014 shall be available on the website for a period of three weeks with facility of downloading it. It is made clear that these directions shall not be specific to the selection in question in the present writ petition but would be a perpetual mandamus for the HPSC, HSSC and HSTSB for all selections to be made by these authorities in future as well.

In case, the petitioners still feel that there is some difficulty in the operation of the website in getting the information as has been ordered vide order dated 26.04.2014, it would be open to them to again approach the Court.

The writ petitions stand disposed of.

Copy of this order be given dasti to the counsel for the parties under the signatures of Court Secretary of this Court.