High Court of KeralaSingle Judge2014-04-04Writ petition dismissed; no order as to costs.

Smitha M.P. v Kannur University and Controller of Examinations

Case / Petition Number:W.P.(C).No.20078 of 2013 (H)

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-04-04
Court Decision / Holding: The writ petition is dismissed. The court notes that, under a double valuation system, there is no requirement or prescription mandating the university to preserve or provide answer sheets for rechecking; without preservation, the RTI Act cannot compel production of non-existent materials. It holds that the petition’s claims are devoid of merit, though it records no costs order.
Final Disposition: Writ petition dismissed; no order as to costs.

Parties to the Case

Appellants / Petitioners

Smitha M.P.

Respondents

Kannur University, represented by its Registrar, Kannur University Campus, Kannur District
Controller of Examinations, Kannur University, Kannur University Campus

Legal Representation & Advocates

Counsels for Petitioners

• Sri P.M. Pareeth
• Sri Mohammed Shameel

Counsels for Respondents

• Sri V.A. Muhammed

Case Synopsis & Summary

Smitha M.P., a student of the M.Ed. program at the School of Pedagogical Sciences under Kannur University, challenged the university’s handling of her examination papers and access to the answer scripts for the purpose of revaluation and photocopy. In April 2012, during the first semester M.Ed. examination, she failed the paper “Methodology of Educational Research and Educational Statistics” with 43/100. She sought revaluation, but was informed that post-graduate valuations are performed by a double valuation system, leaving no provision for revaluation. She then appeared for the supplementary examination in April 2013 and again obtained 43 marks. Frustrated, she sought photocopies of the answer papers and invoked the Right to Information Act, 2005 to obtain copies (Exhibits P6–P8). The university maintained that there is no storage of answer papers and no mechanism to retain them for revaluation, and the State Public Information Officer likewise declined, citing lack of retrievable information (Exhibits P7, P10). She relied on CBSE v. Aditya Bandopadhyay to argue that inspection of evaluated answer books and copies can be a right of the examinee notwithstanding the lack of revaluation provisions. The court discussed the RTI Act’s overriding effect, the meaning of information that is “available and existing”, and the duty to preserve records. It ultimately held that since double valuation is current practice and answer sheets are not preserved, the petition is devoid of merit and dismissed the writ petition (costs none).

Provisions of Law Cited

Right to Information Act, 2005Section 3 of RTI ActSection 2(f) of RTI ActSection 2(j) of RTI ActSection 8(1)(e) of RTI ActSection 9 of RTI Act

Legal Doctrines & Maxims

RTI Act has overriding effect over regulations of academic bodies to the extent of information available and existing.
Public authorities are not obliged to collect or provide information that is not available in records or not required to be maintained by law.
Not all information can be provided if it requires drawing inferences, assumptions, advice, or opinion; information must be available in the records to which RTI access applies.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends, relying on CBSE v. Aditya Bandopadhyay (2011) 8 SCC 497, that inspection of evaluated answer books and certified copies thereof is a right of the examinee and that RTI Act, 2005 overrides university regulations, enabling access to copies of the answer sheets. She argues that information that exists or is available must be disclosed and that the university’s double valuation practice does not extinguish the right to see or obtain copies of her answer scripts. She sought photocopies (Exhibits P4, P5) and access under RTI (Exhibits P6–P8); the failure to retain papers and provide copies is challenged as inconsistent with the RTI framework. She relied on binding precedents to press the claim that information relating to her examination should be accessible.

Contentions of Respondents

The respondents argue that there is no provision for revaluation in a double valuation system, and therefore the university does not retain or preserve answer papers for rechecking. They claim the RTI Act’s information-access obligation applies only to information that exists in public records; there is no obligation to create or retrieve information that is not maintained. They rely on regulatory and judicial clarifications that information sought which is not maintained or not in record cannot be supplied. They emphasize the practical impossibility of retrieving non-existent papers and maintain that the RTI Act does not compel preservation of all examination papers.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
CBSE v. Aditya Bandopadhyay	[(2011) 8 SCC 497]	Positive	Cited to support the proposition that examinees have a right to inspect evaluated answer books and obtain copies, aligning with the petitioner's RTI-based claim.
ICAI v. Shaunak H. Satya	[(2011) 8 SCC 781]	Positive	Cited to illustrate that data that is not maintained or not available cannot be supplied, supporting the court’s stance on non-maintained records and the limitation of disclosure.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936 ## **W.P.(C).No.20078 of 2013 (H)** --------------------------------------------------- PETITIONER(S):- ------------------------ SMITHA. M.P., SHREYAS, THAZHEKAVINMOOLA, P.O MAMBA, KANNUR DISTRICT - 670 611. BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENT(S):- -------------------------- 1. KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MANGATTU PARAMBA, KANNUR UNIVERSITY CAMPUS P.O., KANNUR DISTRICT - 670 567. 2. CONTROLLER OF EXAMINATIONS, KANNUR UNIVERSITY, MANGATTU PARAMBU, KANNUR UNIVERSITY CAMPUS P.O., KANNUR DISTRICT - 670 567. R1 & R2 BY STANDING COUNSEL SRI.V.A.MUHAMMED. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.20078 of 2013 (H) --------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS:- --------------------------------------- - EXHIBIT P1 A TRUE PHOTOCOPY OF THE MARK LIST IN RESPECT OF FIRST SEMESTER M. Ed. EXAMINATION HELD IN APRIL 2012 ISSUED TO THE PETITIONER. - EXHIBIT P2 A TRUE PHOTOCOPY OF THE LETTER DATED 30-10-2012 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P3 A TRUE PHOTOCOPY OF THE MARK LIST OF THE FIRST SEMESTER M.Ed. EXAMIONATION HELD IN APRIL IN RESPECT OF THE PETITIONER (SUPPLEMENTARY APPEARANCE). - EXHIBIT P4 A TRUE PHOTOCOPY OF THE REQUEST DATED 31-07-2013 FOR PHOTOCOPY OF THE ANSWER SCRIPT. - EXHIBIT P5 A TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE REGULATIONS DATED 20-10-2010 RELATING TO REVALUATIONS/ISSUE OF PHOTOCOPY/SECURITY OF ANSWER SCRIPT OF UNIVERSITY EXAMINATIONS CONDUCTED BY THE FIRST RESPONDENT UNIVERSITY. - EXHIBIT P6 A TRUE PHOTOCOPY OF THE APPLICATION DATED 30.09.2013 SUBMITTED BY THE PETITIONER BEFORE THE STATE PUBLIC INFORMATION OFFICER, KANNUR UNIVERSITY. - EXHIBIT P7 A TRUE PHOTOCOPY OF THE ORDER DATED 19.10.2013 ISSUED BY THE ADDITIONAL 3RD RESPONDENT. - EXHIBIT P8 A TRUE PHOTOCOPY OF THE APPEAL DATED 05.11.2013 SUBMITTED BEFORE THE APPELLATE AUTHORITY UNDER RIGHT TO INFORMATION ACT, 2005 AND REGISTRAR, KANNUR UNIVERSITY. EXHIBIT P9 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT REPORTED IN 2011 (3) KHC SN 16 (SC). - EXHIBIT P10 A TRUE PHOTOCOPY OF THE ORDER DATED 07.12.2013 ISSUED BY THE FIRST RESPONDENT IN HIS CAPACITY AS APPELLATE AUTHORITY UNDER RIGHT TO INFORMATION ACT. RESPONDENT(S)' EXHIBITS:- ----------------------------------------NIL. Vku/( true copy ) ## K. Vinod Chandran, J --------------------------------------- W.P.(C).No.20078 of 2013-H ---------------------------------------Dated this the 04[th] day of April, 2014 ## **JUDGMENT** The petitioner was a student of M.Ed. at the school of Pedagogical Sciences under the 1[st] respondent-University during the academic year 2011-2012. In the 1[st] Semester M.Ed. Examination held in April, 2012, she failed to qualify in one paper, viz., “Methodology of Educational Research and Educational Statistics”, having been awarded only 43 marks out of 100. On approaching the University for revaluation, she was informed that the valuation, for post-graduate courses, is by a method of double valuation and, hence, there can be no revaluation. The petitioner then appeared for the supplementary examination in April, 2013, in which also, she failed to qualify. The marks awarded co-incidentally was 43 in the second appearance also. The petitioner, hence, again sought for revaluation by Exhibit P4 and also requested that she may be supplied the photo copy of the answer papers. The University did not act upon her request. **- 2 -** WP(C).No.20078 of 2013 2. In such circumstance, the petitioner is said to have applied to the State Public Information Officer of the University under the Right to Information Act, 2005, for a copy of the answer paper. The same was replied to by Exhibit P7, in which the petitioner was informed that since there was no provision for re-valuation, the answer papers are not stored in the University in a retrievable manner. Hence, the State Public Information Officer also expressed his helplessness in supplying the photo copy of the answer paper. An appeal was filed under the Right to Information Act, which stood declined as per Exhibit P10 for the very same reasons. 3. The learned counsel for the petitioner places reliance on _**CBSE v. Aditya Bandopadhyay**_ **[(2011) 8 SCC 497]** to contend that inspection of evaluated answer books and taking certified copies thereof has been declared as a right of the examinee by the Hon'ble Supreme Court. It was held in the said decision that an enactment like the Right to Information Act with overriding provisions will prevail over the Regulations of any academic body, since disclosure of information with reference to **- 3 -** WP(C).No.20078 of 2013 answer books does not involve infringement of any copy right and Section 9 of the RTI Act will not apply. The petitioner, hence, contends that despite there being no provision for revaluation, the petitioner has a right under the RTI Act to seek for and obtain copies of the answer books of the examination which she sat for. 4. True, the mere fact that a provision for supply of copies of answer sheets is not there in the Regulations of the University would not stand in opposition to the right of a candidate to obtain copies of the answer sheets, in the teeth of the binding precedent of the aforesaid decision. However, in the present case, the emphasis is not so much on the right of the candidate as it is on the practicability of retrieving such answer sheets, for issuing copies. 5. It is the University's specific contention that the answer papers are not retrievable. Since the method of double valuation is resorted to, by the University, they do not keep the answer sheets. Nor is there a provision which mandates that the answer sheets should be kept in tact for a specific period. In this context, paragraph 63 of the aforesaid judgment of the Supreme **- 4 -** WP(C).No.20078 of 2013 Court assumes significance: “63. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information _that is available and existing_ . This is clear from a combined reading of Section 3 and the definitions of “information” and “right to information” under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide “advice” or “opinion” to an applicant, nor required to obtain and furnish any “opinion” or “advice” to an applicant. The reference to “opinion” or “advice” in the definition of **- 5 -** WP(C).No.20078 of 2013 “information” in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act”. 6. A similar issue came up for consideration before the Hon'ble Supreme Court in _**ICAI v. Shaunak H.Satya**_ **[(2011) 8 SCC 781]** . The information sought for was regarding various questions with reference to Chartered Accountancy examination. One query, numbered as query No.13, was with reference to the number of times the Council had revised the marks of any candidate and the criteria employed for exercising such discretion, the quantum of such revision, the authority deciding such discretion and the number of students along with the quantum of revision effected in the last exams, held at all levels. The answer to the query was that the details sought for was highly confidential in nature and the disclosure was not warranted under Section 8(1)(e) of the RTI Act. The Central Information **- 6 -** WP(C).No.20078 of 2013 Commission upheld the answer to the query. The High Court reversed the order of the Central Information Commission and directed, the appellant before the Supreme Court, to answer the query. Before the Supreme Court, the appellant took a contention that the details regarding paragraphs (i), (iii) and (v) of query No.13 could not be supplied, since such data was not maintained by the examining body. The appellant also relied on the above extracted paragraph in the decision of _**CBSE**_ ( _supra_ ). The Hon'ble Supreme Court found so in paragraphs 34 and 40: “34. As the information sought under Parts (i), (iii) and (iv) of Query 13 are not maintained and is not available in the form of data with the appellant in its records, ICAI is not bound to furnish the same. xxx xxx xxx 40. In view of the above, this appeal is allowed in part and the order of the High Court is set aside and the order of the CIC is restored, subject to one modification in regard to Query 13: _ICAI to disclose the first respondent, the standard criteria, if any relating to moderation, employed by it, for the purpose of making revisions under Regulation 39(2)_ ”. **- 7 -** WP(C).No.20078 of 2013 7. Hence, though a candidate has the right to get copies of answer papers, for exercising such right there should be some Regulation by which the examining body is obliged to preserve such answer sheets. In the present case since a double valuation system is in vogue, the University maintains that there is no revaluation and there is no prescription or mandate obliging the University to maintain and preserve such answer books. In such circumstance, the petitioner's claims in the writ petition are devoid of merit. The writ petition is, hence, dismissed, however with no order as to costs. Sd/K.Vinod Chandran Judge. vku/- ( true copy )