State Public Information Officer, Kerala Public Service Commission, Malappuram; and The Appellate Authority, Kerala Public Service Commission, Pattom, Thiruvananthapuram v. State Information Commission, Kerala; Abdulla T. Cholakkal Valiya Parambu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 WP(C) NO. 29 OF 2013** ## **PETITIONERS:** 1 THE STATE PUBLIC INFORMATION OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, MALAPPURAM. 2 THE APPELLATE AUTHORITY THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. BY ADV SRI.P.C.SASIDHARAN, SC, KPSC ## **RESPONDENTS:** 1 THE STATE INFORMATION COMMISSION, KERALA KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695 001. 2 ABDULLA T. CHOLAKKAL VALIYA PARAMBU, KODOOR P.O., PIN - 676 504. BY ADVS. SRI.BABU S. NAIR SRI.K.RAKESH ## **OTHER PRESENT:** SC . M AJAY (R1) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.29/2013 2 ## **JUDGMENT** This writ petition has been filed challenging Ext.P5 order issued by the State Information Commission, Kerala directing the petitioner to serve on the 2[nd] respondent the details of the amounts paid to Invigilators at examinations conducted by the Kerala Public Service Commission in two specified educational institutions. It was directed that the information shall be provided free of cost in terms of Section 7 (6) of the Right to Information Act, 2005. 2. The facts necessary for an appreciation of the issue arising for adjudication are that the 2[nd] respondent submitted Ext.P1 request to the State Information Officer of the Kerala Public Service Commission seeking certain details regarding the conduct of examination by the Kerala Public Service Commission including photocopies of the acquittance roll showing the amounts paid to Invigilators by the Kerala Public Service Commission in two specified educational institutions where the examinations were conducted. Pursuant to Ext.P1, certain information was provided by Ext.P2. In respect of the acquittance roll, it was mentioned that the same was not available with the Kerala Public Service Commission and that details have been forwarded to the office of the Accountant General. The 2[nd] respondent, thereupon, submitted an appeal to the appellate authority constituted under the Right to Information Act and that authority, through Ext.P4, rejected the appeal. The 2[nd] W.P.(C)No.29/2013 3 respondent, therefore, approached the State Information Commission, which, in turn, has issued Ext.P5 order directing the petitioners to provide the information sought for, to the 2[nd] respondent, free of cost. 3. I have heard Sri. P.C. Sasidharan, the learned counsel appearing for the petitioners and Sri. M. Ajay, the learned counsel appearing for the 1[st] respondent. 4. The learned counsel for the petitioners would contend that the Kerala Public Service Commission was under no obligation to provide the information sought. He refers to the pleadings in the writ petition to point out the procedure adopted by the Commission in the matter of engagement of Invigilators and the manner in which the fee for invigilation is paid to them. He submits that the acquittance register is not a permanent record maintained by the Kerala Public Service Commission and that the information sought for is, at any rate, not liable to be given under the provisions of the Right to Information Act. He relies on the judgment of the Supreme Court in _**Central Board of Secondary Education and another**_ v. _**Aditya Bandopadhyay and others;**_ **2011 (8) SCC 497** to contend that indiscriminate and impractical demands for disclosure of all and sundry information, unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting W.P.(C)No.29/2013 4 and furnishing information. 5. The learned standing counsel appearing for the 1[st] respondent would however contend that a Division Bench of this Court in _**Kerala Public Service Commission**_ v. **S** _**tate Information Commission;**_ **2011 (2) KLT 88** had taken the view that the information of the nature sought for by the 2[nd] respondent ought to be given by the Public Service Commission. He also states that the aforesaid judgment of the Division Bench was affirmed by the Supreme Court in _**Kerala Public Service Commission v. State Information Commission**_ **; (2016) 3 SCC 417** . According to him, in every respect except regarding the question as to whether there was a fiduciary relationship between the Kerala Public Service Commission and the examiners appointed by them, the judgment of this Court was affirmed by the Supreme Court. While the Division Bench of this Court had taken the view that there is no such fiduciary relationship, the Supreme Court had held that there was indeed such a relationship. 6. On an examination of the contentions raised, I am of the opinion that the petitioners are entitled to succeed. In paragraph 66 and 67 of the judgment of the Supreme Court in _**Central Board of Secondary Education (supra)**_ , it was held as under:- _**“66.** The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act_ W.P.(C)No.29/2013 5 _should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information [that is, information other than those enumerated in Sections 4(1)(b) and (c) of the Act], equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.)._ _**67.** Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising “information furnishing”, at the cost of their normal and regular duties.”_ It is, no doubt, true that the Division Bench of this Court in _**Kerala Public Service Commission (supra)**_ took the view that the W.P.(C)No.29/2013 6 information of the nature sought for by the 2[nd] respondent ought to be granted. There, one of the issues decided was whether the Public Service Commission would be bound to disclose the identity of the examiners engaged by them for the valuation of answer papers. This Court is not really concerned with all the items of the information sought for by the 2[nd] respondent through Ext.P1, as the issue adjudicated in Ext.P5 relates only to the acquittance roll showing details of amounts paid to Invigilators in two examination centres fixed by the Public Service Commission. In the judgment of the Supreme Court, which considered the correctness of the judgment of the Division Bench of this Court in _**Kerala Public Service**_ ## _**Commission (supra)**_ , it was held as under:- _“_ _**8.** In the present case, PSC has taken upon itself in appointing the examiners to evaluate the answer papers and as such, PSC and examiners stand in a principal-agent relationship. Here PSC in the shoes of a principal has entrusted the task of evaluating the answer papers to the examiners. Consequently, examiners in the position of agents are bound to evaluate the answer papers as per the instructions given by PSC. As a result, a fiduciary relationship is established between PSC and the examiners. Therefore, any information shared between them is not liable to be disclosed. Furthermore, the information seeker has no role to play in this and we do not see any logical reason as to how this will benefit him or the public at large. We would like to point out that the disclosure of the identity of examiners is in the least interest of the general public and also any attempt to reveal the examiner's identity will give rise to dire consequences. Therefore, in our considered opinion revealing examiner's identity will only lead to confusion and public unrest. Hence, we are not inclined to agree_ W.P.(C)No.29/2013 7 _with the decision of the Kerala High Court with respect to the second question._ _**9.** In the present case the request of the information seeker about the information of his answer sheets and details of the interview marks can be and should be provided to him. It is not something which a public authority keeps it under a fiduciary capacity. Even disclosing the marks and the answer sheets to the candidates will ensure that the candidates have been given marks according to their performance in the exam. This practice will ensure a fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams, but, the request of the information seeker about the details of the person who had examined/checked the paper cannot and shall not be provided to the information seeker as the relationship between the public authority i.e. Service Commission and the examiners is totally within fiduciary relationship. The Commission has reposed trust on the examiners that they will check the exam papers with utmost care, honesty and impartially and, similarly, the examiners have faith that they will not be facing any unfortunate consequences for doing their job properly. If we allow disclosing name of the examiners in every exam, the unsuccessful candidates may try to take revenge from the examiners for doing their job properly. This may, further, create a situation where the potential candidates in the next similar exam, especially in the same State or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in the potential exam.”_ In view of the categoric finding of the Supreme Court regarding the relationship between the Public Service Commission and examiners appointed by them, I am of the view that the position of invigilators appointed by the Public Service Commission stands on the same footing W.P.(C)No.29/2013 8 as that of examiners. Therefore, on that short ground, I am inclined to allow this writ petition. I quash Ext.P5 and hold that the Kerala Public Service Commission was under no obligation to provide details regarding the acquittance roll showing details of amounts paid to Invigilators under the provisions of the Right to Information Act, 2005. sd/- **GOPINATH.P. JUDGE** acd W.P.(C)No.29/2013 9 PETITIONER'S EXHIBITS EXT.P1: COPY OF THE REQUEST MADE BY THE 2ND RESPONDENT DATED 14/07/2010. EXT.P2: COPY OF THE REPLY FURNISHED TO THE 2ND RESPONDENT DATED 12/08/2010. EXT.P3: COPY OF THE APPEAL DATED 16.09.2010. EXT.P4: COPY OF THE REPLY GIVEN BY THE APPELLATE AUTOHRITY DATED 4.10.2010. EXT.P5: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 19/10/2012.