rti regarding omr sheet

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 non-

disclosure 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 stated that they had already provided information

to the appellant regarding marks awarded to him

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.


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

had a separate agreement. Further, respondent argued that

disclosure of question paper and correct answer 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, the examining bodies will

have to permit inspection sought by the examinees."

The court further held that:

"...the examining body is the 'principal' and the examiner is the

agent entrusted with the work, that 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 answer-

book is in his custody and to the extent of the discharge of

his functions relating to evaluation, the

examiner is in the position of a fiduciary with reference to the examining

body and he is barred from disclosing the contents of the answer-

book or the result of evaluation of the answer-

book to anyone other than the examining body. Once the


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 relationship,

qua the examiner."

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 disclosed and

made available under the Right to Information Act . ...i

t is obvious that the evaluation of the ORS/ORM sheets is through a

computerized process and no prejudice can be

caused to the IIT (public authority) by providing a candidate a photocopy

of the concerned ORS. This is not information

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 that

the examining bodies (SBI/IBPS in the present case) evaluating

the answer sheets /OMR sheets have to permit the inspection or provide a

certified 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. 10/30/1/2010-

IR dated 20 September 2010

to conduct Common Recruitment Programme for selection of both Clerks

and Officers in Public Sector Banks. This means that the

Government of India, vide this letter, has delegated

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


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.


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 the

operation is an important public function. (3) The combination of State

aid and furnishing of an

important public service may result in a conclusion that the operation

should be 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 functions, it

would be a relevant factor in classifying the corporation as an

instrumentality or agency of the Government. (6) Specifically, if a

department of Government is transferred to a corporation, it would

be a strong factor supportive of this inference of the corporation

being an instrumentality or agency of government."

Factual matrix as discussed leads us to conclude:

* The recruitment function conducted by IBPS is of public importance, as

large numbers of candidates all over India apply for recruitment

in Public Sector Banks, in which

Government of India has a majority stake. In other words, for

getting a job in the Public Sector Banks, like State Bank Of India in the

present case, participating in exam to be

conducted by IBPS is the only option available to the aspirant

seeking a Banking Career in SBI. This exclusivity is conferred on IBPS by

the Department of Financial Services i.e. it is state

conferred monopoly. Thus, even the presence or absence

of State financial aid might be irrelevant in concluding the status of

IBPS, Mumbai. The fact is that IBPS enjoys a


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

Clerks 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

Sector Banks. Thus, such a Monopoly given by the Government of India

to the IBPS and extensive involvement of the Government in its

governing board makes it an agency of the

State, as it is functionally dominated by or under the CONTROL of the

appropriate Government, thereby it comes under the

meaning of Public authority under section 2 (h) (i) of RTI Act, 2005.

" IBPS, has been delegated an exclusive power/permission

for conducting Common Recruitment Programme for recruitment of both

Clerks and Officers in Public Sector Banks (SBI in the

present case) on behalf of Government of India via letter no. 10/30/1/2010-

IR dated 20 September 2010 to The Director, IBPS, by Department of

Financial Services, Ministry of Finance, Government of India, thus

making IBPS an "Agency" which operates under the

authority/control of the Central Government

to carry out such recruitment programmes in Public Sector Banks and

thereby IBPS comes under the meaning of

Public authority under section 2 (h) (i) of RTI Act, 2005.

" Therefore IBPS has an obligation of being transparent

to the citizens of the country in discharging public function of recruitment

of both clerks and Officers in Public Sector Banks

all over India and hence in line with the Preamble of the RTI Act read

with Section 2 (h) (i), it is required to

discharge its obligations under Section 4 and Section 6 of the RTI Act.

12. In respect of disclosure of information as sought under

point VI, Commission directs the CPIO to provide the same to the

Appellant after blocking/severing the marks awarded to

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.


(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


rti regarding omr sheet

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