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Mr.

Ashwani Kumar Avasthi vs Department Of Financial Services on 9 January, 2012


Central Information Commission Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi110066 Telefax:01126180532 & 01126107254 websitecic.gov.in Appeal: No. CIC/DS/A/2011/000802 Appellant /Complainant : Shri Ashwani Kumar Avasthi, Aligarh Public Authority : State Bank of India,l Mumbai (Shri Ravinandan Thakur, CPIO through video Conferencing) Date of Hearing : 27 December 2011 Date of Decision : 9 January 2012 Facts:

1. Appellant submitted RTI application dated 1 October 2010 before the CPIO, SBI, Mumbai, seeking information regarding details of the exam result of the Clerical Recruitment Exam conducted by the SBI on 8 November 2009 through 8 points enclosed herewith as Annexure A. 2. Vide CPIO Order dated 21 October 2010, CPIO provided reply to the Appellant that the information sought is available on the SBI Website and partial information with respect to the OMR sheet was not disclosed as it falls under the nondisclosure exemption under section 8 (1) (d) of the RTI Act, 2005.

3.

Not satisfied with the reply, Appellant preferred appeal

dated 22 November 2010, before the First Appellate Authority. 4. Vide FAA order dated 9 December 2010, the FAA upheld the Order of CPIO. 5. Being aggrieved and not being satisfied by the above orders the appellant preferred second appeal before the Commission. 6. Matter was heard today via videoconferencing from Mumbai where respondent as above was present. Appellant was heard from Aligarh via audio conferencing. 7. Respondent appellant stated that they had marks already provided information awarded to to the him

regarding

subject wise, for the interview and total marks. 8. Appellant submitted that he wished to have copies of his

OMR Answer sheet, Question booklet and correct answer key. Appeal: No. CIC/DS/A/2011/000802 9. The Respondents countered by arguing that 26 Lakh candidates had

appeared for the examination which was outsourced to and conducted by IBPS (Institute of Banking Personnel Selection), Mumbai and that disclosure of the requested information was also governed by policy of IBPS, with which the public authority argued that disclosure of had a separate agreement. Further, question paper and correct answer respondent key also

infringed the Intellectual Property Rights of IBPS. The CPIO also submitted before the Commission that this written examination for recruitment of clerks in respect of which information had been sought by the appellant was conducted over two sessions each over three Sundays spread over large number of centres in 34 States and SBI was not maintaining category wise cutoff for each of the eight categories for each of the 34 States and therefore this information was not held by the Public authority and could not be provided to the Appellant.

10. Under point VI of RTI Application appellant had sought to have a photocopy of the Tabulation sheet maintained by the interview board in respect of his own case. Decision notice 11. In respect of the disclosure of OMR Answer Sheet,

question booklet and correct answer key by the SBI/IBPS, two issues are present in the above matter. 1. The first issue is whether under RTI Act, 2005 the answer

sheets / OMR Sheets can be disclosed. As per the judgment of the Supreme Court in Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. Civil Appeal No.6454 Of 2011 the court held that: "...As no other exemption under section 8 is available in respect of evaluated answer books, have to permit inspection sought by the examinees." The court further held that: "...the examining entrusted with body is the 'principal' the work, that and the examiner is the agent the examining bodies will

is, evaluation of answer books. Therefore,

the examining body is not in the position of a fiduciary with reference to the examiner. On the other hand, when an answerbook is entrusted to the examiner for the purpose of evaluation, for the period the answerbook evaluation, the examiner is in the position of a fiduciary with reference to is in the answerhis custody and to the extent of the discharge of his functions relating to examining body and he is barred from disclosing the contents of the answerbook or the result of evaluation of the book to anyone other than the examining body. Once the Appeal: No. CIC/DS/A/2011/000802 examiner has evaluated the answer books, he ceases to have any interest in the evaluation done by him. He does not have any copyright or proprietary right, or confidentiality right in regard to the evaluation. Therefore it cannot be said that the examining

body holds the evaluated answer books in a fiduciary qua the examiner."

relationship,

Thus, respondents are wrong in saying this that disclosure of question paper and correct answer key also infringed the Intellectual Property Rights of IBPS i.e. examining body. Further Justice Murlidhar, in the case before Delhi High Court; IIT, Delhi v. Naveen Talwar and Ors. W.P. (C) 751 of 2011 has stated: "...In the first place given the fact that admittedly the evaluation of the ORS is

carried 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. the disclosure of evaluated answer sheets was "unlikely to render the system unworkable and as such the evaluated answer sheets in such cases will be process concerned disclosed and ORS. and made available under the Right to Information Act . no This prejudice is not can photocopy of be the information ...it is obvious that the evaluation of the ORS/ORM sheets is through a computerized caused to the IIT (public authority) by providing a candidate a being sought by a third party but by the candidate himself or herself. The disclosure of such photocopy of the ORS will not compromise the identity of the evaluator, since the evaluation is done through a computerized process..." The law existing as on date in respect of the disclosure of answer sheets/OMR sheets under the RTI Act, 2005 is a that certified the examining bodies (SBI/IBPS in the present case) evaluating the answer sheets /OMR sheets have to permit the inspection or provide copy of answer sheet/OMR sheets to the examinee. 2. The second issue is whether RTI Act, 2005 is applicable to the IBPS, Mumbai (Institute of Banking Personnel Selection). The IBPS has been permitted by the Department of Financial Services, Ministry of Finance, Government of India vide letter no. 10/30/1/2010IR dated 20 September 2010

to conduct Common Recruitment Programme for selection of both vide this letter, has

Clerks

and delegated

Officers in Public Sector Banks. This means that the Government of India, monopoly power for recruitment in Public Sector Banks to the IBPS, Mumbai probably at the behest of the Public Sector Banks as such a proposal was sent to the Ministry by the Indian Appeal: No. CIC/DS/A/2011/000802 Banks' Association Mumbai vide letter no. HR &

IR/MV/Govt./S/1120 Dated 21.08.2010 IBPS is an autonomous body registered as a Public Trust under the Bombay Public

Trust Act of 1950 and as a Scientific and Industrial Research Organization by the Department of Scientific and Industrial Research, Ministry of Science and Technology, Government of India. Further, the Governing Board of IBPS consists of nominees from Reserve Bank of India, Ministry of Finance (Government of India), National Institute of Bank Management, representatives of Public Sector Banks, and Insurance Sector. The matters related to policy and affairs of the Institute are vested in the Governing Board. This leads us to conclude that IBPS is an organization which is controlled by the Government as well as agencies and instrumentalities of the State falling under the heading "other authorities" within the meaning of Article 12 of the Constitution of India. Under section 2 (h) of the RTI Act public authority is defined as: (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) nonGovernment organization substantially financed, directly or indirectly by funds provided by the appropriate Government; " The question is whether in light of the cumulative facts

as established, the IBPS is a Public Authority as per Section 2 (h)(i) of the RTI Act or not. It is noted that IBPS is functionally dominated by or under the control of the Appropriate Government and thereby making it an agency of the State. Appeal: No. CIC/DS/A/2011/000802 For determining whether an organization is an agency or

instrumentality of the 'State', Mathew, J. in Sukhdev Singh v.

Bhagatram

Sardar

Singh Raghuvanshi (1975) ILLJ 399 SC propounded following indicia: "...(2) Another factor which might be considered is whether furnishing operation of should an be the

operation is an important public function. (3) The combination of State aid and important public service may result in a conclusion that the classified as State agency. If a given

function is of such public importance and so closely related to governmental agency, then even the presence or absence of State financial aid might be irrelevant in making a finding of state action. (4) The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public." The court further highlighted the test give in the Ramana Dayaram Shetty 1979 SC R (3)1014 which were stated in following terms: "... (3) It may also be a relevant factor... whether the corporation enjoys monopoly status which is state conferred or state protected.

(4)

Existence

of

deep

and

pervasive

State

control

may

afford an indication that the corporation is a state agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to governmental (6) Specifically, it of if the functions, a it of would be a relevant Government strong being is an factor in classifying the corporation as an of the Government. transferred to a corporation, would be instrumentality or agency department a corporation factor

supportive of this inference

instrumentality or agency of government." Factual matrix as discussed leads us to conclude: * The recruitment function conducted by IBPS is of public importance, Banks, case, in which as large

numbers of candidates all over India apply for recruitment in Public Sector Government of India has a majority stake. In other words, for in the to IBPS by present be the in exam getting a job in the Public Sector Banks, like State Bank Of India participating conducted by IBPS is the only option available to the aspirant seeking a Banking Career in SBI. This exclusivity is conferred on Department of Financial Services i.e. it Thus, even the presence The fact is that IBPS enjoys a Appeal: No. CIC/DS/A/2011/000802 monopoly status granted by the Department of Financial Services, Ministry of Finance, Government of India, as the recruitment function of the Public Sector Banks has been transferred to IBPS, in the absence of which, IBPS could not have conducted Common Recruitment Programme for recruitment of both and Officers in Public Sector Banks all over India. * Further the Governing Board of IBPS which governs the policy and affairs of the Institute consist of Executive Director, Reserve Bank of India and CMD's of all the Public Clerks is state conferred monopoly. or absence

of State financial aid might be irrelevant in concluding the status of IBPS, Mumbai.

Sector Banks. Thus, such a Monopoly given by the Government of makes Government, it thereby it an comes under agency

India of the

to

the the

IBPS and extensive involvement of the Government in its governing board State, as it is functionally dominated by or under the CONTROL of section 2 (h) (i) of RTI Act, 2005. " IBPS, has in been Public delegated Sector an exclusive Banks (SBI of the power/permission Clerks and in the appropriate

the meaning of Public authority under

for conducting Common Recruitment Programme for recruitment of both Officers present case) on behalf of Government of India via letter no. IR dated 20 September 2010 to The Director, IBPS, by "Agency" which operates thereby IBPS under comes the Department of

10/30/1/2010Financial Central of

Services, Ministry of Finance, Government of India, thus making IBPS an authority/control the Government to carry out such recruitment programmes in Public Sector Banks and under meaning Public authority under section 2 (h) (i) of RTI Act, 2005. " clerks Section Therefore IBPS has an obligation of being and 2 Officers (h) (i), in it Public RTI is transparent Sector Act read required Banks with to

to the citizens of the country in discharging public function of recruitment of both all over India and hence in line with the Preamble of the

discharge its obligations under Section 4 and Section 6 of the RTI Act. 12. In respect of disclosure of information as sought Appellant the marks awarded under after to

point VI, Commission directs the CPIO to provide the same to the blocking/severing other candidates during that Interview Session.

13. The Commission hereby, with respect to the Second appeal directs IBPS, Mumbai and SBI to furnish the OMR Sheet, Question booklet and correct answer keys under section 7 of the RTI Act, 2005 as desired by Appellant within two weeks of the Receipt of the Order. Appeal: No. CIC/DS/A/2011/000802

(Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy: (T. K. Mohapatra) Dy. Secretary & Dy. Registrar Tel. No. 01126105027 Copy to: 1. Shri Ashwani Kumar Avasthi House No. 1/307, Street No. 3 Mohalla Govind Nagar Sanjay Gandhi Colony Near Etah Chungi, G.T. Road Aligarh202001 (UP) 2. The CPIO General Manager State Bank of India CRPD Corporate Centre Tulsiani Chamber, 1st. Floor (West Wing) Free Press Journal Marg, Nariman Point Mumbai400021

3. The Appellate Authority Chief General Manager (Banking Works) State Bank of India CRPD Corporate Centre Tulsiani Chamber, 1st. Floor (West Wing) Free Press Journal Marg, Nariman Point Mumbai400021 4. The Director Institute of Banking Personnel Selection IBPS House, Behind Thakur Polytechnic Kandivali (East) Mumbai400101 Appeal: No. CIC/DS/A/2011/000802

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