Devanarayanan P. S/o B. Pradeep v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **WP(C).No.15018 OF 2020(B)** ## **PETITIONER:** **DEVANARAYANAN P. S/O. B. PRADEEP, PUSHPAMANGALAM, KOLLAKA P. O., KARUNAGAPPALLY, VADAKKUMTHALA, KOLLAM - 690 536. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE STATE INFORMATION COMMISSION REPRESENTED BY ITS SECRETARY, T.C 14, 2071, PUNNEN ROAD, NEAR JACOBS JUNCTION, VANROSS, PALAYAM, THIRUVANANTHAPURAM - 695 001.** - **3 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY REPRESENTED BY THE REGISTRAR, CET CAMPUS, ENGINEERING COLLEGE P. O., THIRUVANANTHAPURAM - 695 016.** - **4 THE CONTROLLER OF EXAMINATION APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS, ENGINEERING COLLEGE P. O., THIRUVANANTHAPURAM - 695 016.** - **5 PUBLIC INFORAMTION OFFICER APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET CAMPUS, ENGINEERING COLLEGE P. O., THIRUVANANTHAPURAM - 695 016.** **R3 TO R5 SRI ELVIN PETER SC, SRI BIMAL K NATH SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15018 OF 2020** **2** ## **“CR”** ## **J U D G M E N T** Being aggrieved by the rejection of the application seeking information filed by the petitioner under the Right to Information Act, 2005, the petitioner has approached this Court with this Writ Petition. The subtle question is whether the guidelines issued by the APJ Abdul Kalam University for furnishing of information will overshadow the provisions of the Right to Information Act, 2005, ('Act 22 of 2005' for short) and the Kerala Right to Information (Regulation of Fee and Cost) Rules, 2006 ('Kerala RTI Rules, 2006' for short). 2. The factual background leading to the instant proceedings need to be set out in some detail. The petitioner is a student of the Government Engineering College, Barton Hills, Thiruvananthapuram. When his 7th semester results were published, he found that the marks obtained by him for the subject ‘Refrigeration and Air-conditioning’ was much below than what he had expected. He filed Exhibit P2 application on 27.4.2020 under the Right to Information Act,2005 seeking copies of his answer sheet and the answer key for that subject. The application seeking information was filed in tune with the stipulations under the Kerala Right to Information (Regulation of Fee and Cost) Rules, 2006. The said request for information was turned down by the 5th **WP(C).No.15018 OF 2020** **3** respondent by Exhibit P3 order dated 8.7.2020 for failing to comply with the fee guidelines fixed by the University. The usage of court fee stamps as mode of payment was also found fault with. The 5th respondent by Exhibit P3 order pointed out that by U.O. No.800/2020/KTU dated 1.6.2020, the University has fixed the fee for issuing information under the RTI Act as Rs.543/- (Rs.10+ Rs.533) which came into effect on and from 1/6/2020. They also appended a copy of proceedings No. KTU/AR(EXAM)/525/2016 dated 2.3.2019 as per which the mode of payment of fee under Right to information Act was changed and Exhibit P5 order of the University vide No.U.O.No.800/2020/KTU dated 1.6.2020 enhancing the fee for application under the Right to Information Act. 3. According to the petitioner, Exhibit P3 is illegal and squarely against the provisions of the Right to Information Act, 2005 and the Rules framed thereunder. He would contend that the application for information was filed by him under the Right to Information Act and his right to obtain information cannot be thwarted on the basis of the guidelines issued by the 3rd respondent. 4. I have heard Sri.Unni K.K., the learned counsel appearing for the petitioner, Sri. Bimal K. Nath, the learned Government Pleader and Sri.Elvin Peter, who appeared for the respondents 3 to 5. I have considered the submissions advanced. 5. The information that has been sought for by the petitioner are the **WP(C).No.15018 OF 2020** **4** copies of the Answer sheets and the Answer key for a particular subject of his 7th semester examination. The definition of 'information' in S.2(f) of the RTI Act refers to any material in any form and includes records, documents, opinions, papers among several other enumerated items. The term 'record' is defined in S.2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer - book and submits it to the examining body for evaluation and declaration of the result, the answer - book is a document or record. When the answer - book is evaluated by an examiner appointed by the examining body, the evaluated answer - book becomes a record containing the 'opinion' of the examiner. Therefore the evaluated answer - book is also an 'information' under the RTI Act. The right of the examinee in a public examination to inspect his evaluated answer books or take answer sheets or take certified copies by resorting to the provisions of the RTI Act is no longer res integra. In **Central Bureau of Secondary Education and Another v Aditya Bandopadhyay and Others [** (2011) 8 SCC 497], the Apex Court had occasion to hold that the examinee in a public examination has a right to inspect his evaluated answer books or take certified copies thereof as such book is a document or record in terms of Sections 2(f) and 2(i) and therefore ‘information’ under the RTI Act, 2005. While holding so it was held that this right of the examinee is not with reference to the rules or bye - laws of examining bodies, but under the RTI Act, the provisions of which enables and **WP(C).No.15018 OF 2020** **5** entitles them to have access to the answer - books as 'information' and inspect them and take certified copies thereof. It was further held that in view of Section 22 of the RTI Act and the non obstante clause contained therein, the provisions of the RTI Act will prevail over the provisions of the bye-laws/rules of the examining bodies in regard to examinations. In that view of the matter, there cannot be any doubt that the petitioner is entitled to obtain certified copies of the anwer books/ answer keys under the provisions of the RTI Act. 6. In the instant case, the application seeking information was filed by the petitioner invoking Rule 3 and 4 of the Kerala Right to Information (Regulation of Fee and Cost) Rules, 2006. The relevant rules reads thus: ## **3. Procedure for seeking information** .- - (1) A request for obtaining information under sub section (1) of section 6 of the Act shall be made to the concerned State Public Information Officer or through the State Assistant Public Information Officer, as the case may be, accompanied by an application fee of rupees ten. - (2) The application fee shall be paid in any of the following manners, namely:- - (a) By affixing Court fee stamp; or - (b) by remitting the amount in the Government Treasury, under the head of account "0070 other administrative services-60 other services- 800 other receipts -42 other items", or - (c) by cash remittance against proper receipt in the office of the State Public Information Officer/ State Assistant Public Information Officer, as the **WP(C).No.15018 OF 2020** **6** case may be; or - (d) by demand draft/ bankers' cheque/ pay order payable to the State Public Information Officer/ State Assistant Public Information Officer. - (3) An application under sub-rule (1) may specify, as far as possible, the particulars mentioned in the Form appended to these rules. ## **4. Fee for providing information.** - - (1) For providing information under sub-section (1) of section 7, the fee shall be charged at the following rates, namely:- - (a) rupees two for each page in 'A4' size paper - (b) actual charge or cost price of the copy in larger size paper - (c) actual cost or price for samples or models, maps, plans etc; and - (d) for inspection of records, no fee for the first hour, and a fee of rupees ten for every subsequent thirty minutes or fraction thereof. - (2) For providing information under sub-section (5) of section 7, the fee shall be charged at the following rates, namely.- - (a) for information provided in diskette or floppy or CD or any other electronic mode, rupees fifty (for each) - (b) for information provided in printed form, rupees two for each page or the actual price fixed for such publication - (3) The fee specified in sub-rules (1) and (2), shall be collected by way of cash against proper receipt or by remitting the amount in the Treasury under the head of account "0070 other administrative services-60 other services-800 other receipts- 42 other items" or **WP(C).No.15018 OF 2020** **7** by demand draft, or bankers' cheque or pay order payable to the concerned State Public Information Officer. - (4) Notwithstanding anything contained in sub-rules (1) and (2), no fee shall be charged from the person who are below poverty line as may be determined by the Competent Authority. Such persons shall produce valid certificate along with the application providing that they belong to the category of below poverty line. 7. There is no dispute with respect to the fact that the application seeking information was filed in tune with the Rules above. However, the request was turned down in view of Exhibit P4, which mandates a different mode of payment for information and enables the 3rd respondent to charge Rs.533/- as fee for providing a copy of one answer book to a student under the RTI Act, 2005. The issue is whether the Rules framed by the 3rd respondent would eclipse the provisions of the RTI Act and the Rules framed thereunder. 8. Identical questions had come up for consideration of the Hon’ble Apex Court in **Institute of Companies Secretaries of India v. Paras Jain** [(2019) 16 SCC 790]. In the said case, the application under the RTI Act seeking certified copies of the answer sheets in the final examination for Company Secretary was refused owing to the failure of the applicant therein to remit the charge notified as per the guidelines of the Institute of Companies Secretaries of India. The Division Bench of the Delhi High Court overturned the judgment of the learned Single Judge and after quashing the guidelines, **WP(C).No.15018 OF 2020** **8** directed that the Institute of Company Secretaries could only charge the prescribed fee under Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005. This matter ultimately reached the Apex Court and the short issue was when the answer scripts was sought by the examinee, whether the fee prescribed under Rule 4 of the Right to Information (Regulation of Fee and Cost) Rules, 2005 was payable or whether the Guidelines, Rules and Procedures for Providing Inspection and/or Supply of Certified Copy(ies) of Answer Book(s) to Students, framed by the Examination Committee of the statutory council of the Institute of Companies Secretaries were to prevail. The Apex Court disposed of the Wit Petition holding as follows: “8. The appellant is governed by the provisions of the Company Secretaries Act, 1980 and under Sections 15, 15-A and 17, the Examination Committee of the statutory council has framed Guideline 3 providing an avenue to the candidates to either inspect their answer scripts or seek certified copies of the same on payment of the stipulated fees. Guideline 3 stipulates payment of Rs 500 for obtaining certified copies and Rs 450 for seeking inspection of the same: “3. Fee of Rs 500 per subject/answer books payable for supply of certified copy(ies) of answer book(s) and Rs 450 per answer book for providing inspection thereof respectively. The fee shall be paid through demand draft drawn in favour of “The Institute of Company Secretaries of India”, payable at New Delhi.” **WP(C).No.15018 OF 2020** **9** 9. On the contrary, Rule 4, the Right to Information (Regulation of Fee and Cost) Rules, 2005 stipulates: “4. For providing the information under subsection (1) of Section 7, the fee shall be charged by way of cash against proper receipt or by demand draft or banker's cheque or Indian Postal Order payable to the Accounts Officer of the public authority at the following rates— - (a) rupees two for each page (in A-4 or A-3 size paper) created or copied; - (b) actual charge or cost price of a copy in larger size paper; - (c) actual cost or price for samples or models; and - (d) for inspection of records, no fee for the first hour; and a fee of rupees five for each subsequent hour (or fraction thereof).” - (emphasis supplied) - 10. Thus, it is clear that the avenue for seeking certified copies as well as inspection is provided both in the Right to Information Act as well as the statutory guidelines of the appellant. 11. We are cognizant of the fact that guidelines of the appellant, framed by its statutory council, are to govern the modalities of its day-to-day concerns and to effectuate smooth functioning of its responsibilities under the Company Secretaries Act, 1980. The guidelines of the appellant may provide for much more than what is provided under the Right to Information Act, such as re-evaluation, re-totalling of answer scripts. 12. Be that as it may, Guideline 3 of the appellant does not take away from Rule 4, the Right to Information (Regulation of Fee and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to **WP(C).No.15018 OF 2020** **10** choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information Act, then payment has to be sought under the Rules therein, however, if the information is sought under the guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines.” 9. In view of the principles laid down in **Paras Jain** (supra), it is for the examinee to seek certified copies by invoking either of the options before him. He could have applied under the RTI Act and the Rules framed thereunder or by invoking the guidelines issued by the 3rd respondent. The guidelines of the 3rd respondent may provide for much more than what is provided under the Right to Information Act like re-evaluation of the answer sheets, or for other facilities offered by the University to its students. But at the same time, the said guidelines cannot take away from Rule 4, the Kerala Right to Information (Regulation of Fee and Cost) Rules, 2006, the entitlement of the examinee to seek inspection and certified copies of their answer scripts. As held by the Apex Court, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the options. If a candidate seeks information under the provisions of the Right to Information Act, 2005 then payment has to be made under the Rules therein. However, if the request is made under the guidelines of the 3rd respondent for information or for records which the Act 22 of 2005 do not provide for, then the 3rd respondent **WP(C).No.15018 OF 2020** **11** will be at liberty to charge the candidates as per the guidelines issued by them. 10. Resultantly, the petitioner is entitled to succeed. Exhibit P3 will stand quashed. The 5th respondent is directed to provide certified copies of the documents sought for by the petitioner as per Exhibit P1 application as stipulated under the Kerala Right to Information (Regulation of Fee and Cost) Rules, 2006. This writ petition will stand allowed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** PS **WP(C).No.15018 OF 2020** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION UNDER RTI SENT BY THE PETITIONER TO THE 5TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE TRACK CONSIGNMENT DETAILS OF THE APPLICATION SENT BY THE PETITIONER CONFIRMING THE DELIVERY.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 8.7.2020 REJECTING THE APPLICATION OF THE PETITIONER BY THE 5TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.KTU/AR(EXAM)/525/2016 DATED 2.3.2019.** - **EXHIBIT P5 TRUE COPY OF THE U.O.NO.800/2020/KTU DATED 1.6.2020 OF THE 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.5665/2014.** **RESPONDENTS' EXHIBITS:** **NIL**