T.Balaji v. The Secretary Tamil Nadu Public Service Commission

candidates selected for the Oral Interview in the written examinationheld on 29.07.2007 for the post of Motor Vehicle Inspector, Grade –II in the Tamil Nadu Transport Subordinate Service for the year 2001-2006.For Petitioner: Mr.K.M.Vijayan Senior Counsel for M/s.Fast Track Law Associates (in W.P.Nos.13132 to 13134/2009)For R-1 & 3: Mr.G.Masilamani Senior Counsel for Mr.K.Surendranath / Mr.V.Saravanan (TNPSC) (in W.P.Nos.13132 to 13134/2009)For R-2: Mrs.Lita Srinivasan Government Advocate (in W.P.Nos.13132 to 13134/2009)O R D E RIn view of the common issues raised in all the WritPetitions having the same prayer with identical facts all the writpetitions have been taken up together and a common order is passed.2.The first respondent / Tamil Nadu Public ServiceCommission issued a notification in Advertisement No.107 dated25.07.2007 and invited applications from the eligible candidates forfilling up 49 vacancies for the post of Motor Vehicle Inspector,Grade - II spreading over the period between 2001-2006.3.In pursuant to the said notification, the petitionersherein have made applications and appeared for the main writtenexamination held on 29.07.2007. Thereafter, the first respondent hadpublished the list of candidates who have been selected for the oraltest to be held on 15.07.2009. Having found the names of thepetitioners not included in the selection list, the petitioners havepreferred the present writ petitions alleging that there is nofairness in the selection process. The petitioners gave arepresentation to the first respondent on 06.07.2009 seeking therevaluation of the answer sheets written by the petitioners and togive copies of the answer sheets. The first respondent has sent areply stating that as per the Tamil Nadu Public Service Commissionletter dated 17.08.2009 and as well as the orders passed by theHon'ble Supreme Court, no candidate would be permitted to scrutinisethe necessary answer sheets and given the copies of the answersheets. However if the Hon'ble Court orders in the pending writ https://hcservices.ecourts.gov.in/hcservices/ petitions permits then the same can be considered. It has beenfurther stated in the said letter that the marks of the candidateswill be published in the website of the first respondent after thepublication of the results, the request for revaluation cannot beconsidered and the request for re-totalling and re-examination wouldbe done after the publication of the results. Thereafter, inaccordance with the provisions of the Right to Information Act, 2005an application was made by the petitioners on 10.07.2009 in theprescribed format seeking for the following particulars:"A. Provide me the mark statements of all the Selected Candidates under Reference (ii)B.Provide me the copy of my OMR Answer Sheet.C.Provide my mark statement for the exam written by me on 29.07.2007 stated under Reference (ii).D.Whether the Tamil Nadu Public Service Commission published the mark statement of all the candidates who appeared for the exam stated under Reference (ii)? If not state the reason and the law that prohibit such publication of mark statement.E.Under what circumstances and reasons I was not selected for the Oral Interview?F.What is the ratio of selection for the Oral Interview?G.What are the measures adopted to ensure fairness while selecting candidates stated under Reference (ii)?H.Is there any Quota system? If so provide the details of the candidates selected under different Quotas."4.In view of no prompt reply from the respondents 1 and 3and also in view of the urgency that the interview is proceedingfurther from 15.07.2009 onwards, the petitioners have moved thisHon'ble Court by filing these writ petitions on 13.07.2009 seekingthe relief of Writ of Mandamus forbearing the respondents fromproceeding further with selection process in pursuant to the writtenexamination held on 29.07.2007 without providing the particularssought for by the petitioners in their petitions dated 10.07.2009under the Right to Information Act. https://hcservices.ecourts.gov.in/hcservices/

5.Counter affidavits have been filed by the respondents 1and 3 stating that even though the examination was conducted on29.07.2007, there was no progress in the selection in view of thependency of the Court proceedings and the results of the list ofselected candidates for the written examination was published inpursuant to the orders passed by the Hon'ble High Court on25.03.2009. 6.It has been further stated that the entire selectionprocess is absolutely fair and the respondents have evolved a perfectmethodology in scanning the answer sheets immediately to avoidmanipulation and the selection process is conducted with care andcaution. It has been stated that the valuation procedure has beendivided into two parts and each of them have been handled by twodifferent Confidential Departments. The scanning of the OMR answersheets is done in the Evaluation Department by using OMR scannerswherein the response shaded by the candidates alone are captured.After scanning, the scanned data is transferred to the confidentialdepartment in a Compact Disc. After transferring the scanned data,the fields in the OMR answer sheets such as Register No., SubjectCode and Question Paper Booklet series alone are edited in EDsection, in order to verify whether the candidates have committed anymistake while shading or omitted to shade these fields. Aftercompleting the said editing, the final data is again transferred tothe Confidential Department for further process. The scanned dataalready transferred and the final data are compared to verify whetherthere are any deviations on the part of candidates' responses inanswer sheets. The procedure of awarding of marks to the responsesshaded by the candidates is done at the Confidential Department,based on matching of answer keys with the responses in data,transferred by the Evaluation Department. The utmost care is taken bythe Commission, to avoid any untoward happenings. The above in-housemechanism of valuation will not be revealed to the public normally,since these matters are confidential in nature.7.It is further submitted that the writ petitions areliable to be dismissed since the averments are based upon surmisesand conjectures. The respondents would conduct the oral test andthereafter, the marks of the written examination as well as the oraltest would be published on the last date of the oral test in thewebsite and the Notice Board of the Commission. After the finalresults are published, the marks of the candidates who are not beensummoned for the oral test would be published. It is stated that themarks are not published earlier in order to maintain the secrecy inthe oral test and also in order to prevent a candidate fromattempting to influence the members. After the evaluation of thewritten marks they will be kept in a secret cover in a safe custodywith the Controller of Examinations. After the oral test is over,both the marks will be totalled and ranking will be given as per thesame. https://hcservices.ecourts.gov.in/hcservices/

8.It has been further averred in the counter affidavit thatthe respondents 1 to 3 are empowered to evolve their own process byvirtue of the power conferred on them under Article 320(1) of theConstitution of India. The petitioners having participated in theselection process cannot question the same. A reading of theinstructions to the candidates in paragraph 22(b) would clearly showthat the marks obtained by the candidate will be placed in the noticeboard and the same will also be available in the website. Further,the Union Public Service Commission has stated that the necessaryanswer sheets need not be shown to the candidates. Therefore, it isprayed by the respondents 1 to 3 that the writ petitions will have tobe dismissed.9.Shri.K.M.Vijayan, learned senior counsel for thepetitioners submitted that the right given under Right to InformationAct, 2005 cannot be taken away by the instructions issued by therespondents. According to the learned senior counsel when theprospectus is unconstitutional having instructions by way ofconditions contrary to the provisions of the Right to InformationAct, 2005 the same cannot be put against the petitioners.10.Shri.K.M.Vijayan, learned senior counsel for thepetitioners further submitted that the relief sought for under theRight to Information Act, 2005 would prevail over the policy decisionof the respondents. The petitioners have filed the writ petitions atthe appropriate time since they have filed the writ petitions onlyafter coming to know that their names have not been found in theselected list. Further, it cannot be said that the petitioners willhave to file an appeal as provided under Section 19 of the Right toInformation Act, 2005. Since, the petitioners application dated10.07.2009 in the prescribed format has not been decided by therespondents 1 and 3 so far. Hence, Mr.K.M.Vijayan, learned seniorcounsel for the petitioners prayed that the writ petitions will haveto be allowed as sought for. The learned counsel further submittedthat in any case this Hon'ble Court can direct the respondents tofurnish the information sought for by the petitioners.11.The learned senior counsel for the petitioners hasrelied upon the judgment reported in AIR 2009 CALCUTTA 97 [UNIVERSITYOF CALCUTTA AND OTHERS vs. PRITAM ROOJ] wherein the Division Bench ofthe Hon'ble High Court has held the answer script written by acandidate would come into the definition of word 'information' andunder those circumstances, such a candidate is eligible for a copy ofthe same. The learned counsel has also relied upon the unreportedjudgment of the DELHI HIGH COURT in W.P.(C)NO.3114/2007 dated03.12.2007 [BHAGAT SINGH vs. CHIEF INFORMATION COMMISSIONER ANDOTHERS] wherein the learned single Judge of the Delhi High Court hasheld that Section 8(1)(j) of the Right to Information Act, 2005 wouldnot be pressed against the request for furnishing the informationsought in the absence of any pending investigation. https://hcservices.ecourts.gov.in/hcservices/

12.Shri.G.Masilamani, learned senior counsel for therespondents 1 and 3 submitted that the prayer as sought for cannot bemaintained in law and facts. According to the learned senior counsel,if the petitioners grievance is that to get the information soughtfor under Right to Information Act, 2005 then the petitioners willhave to file an appeal. Further, the contention that the petitionersapplication dated 10.07.2009 is also pending will have to be rejectedsince there is no difference between the earlier representation madeon 06.07.2009 which was rejected on 13.07.2009 and the subsequentrepresentation. Moreover, a reading of Section 19 of the Right toInformation Act, 2005 would show that even when no orders are passedby the respondents, an appeal would lie to the appropriate authority.According to the learned senior counsel the policy decision evolvedby the respondents 1 and 3 in exercise of the power conferred underArticle 320(1) of the Constitution of India cannot be interfered onthe ground that the petitioners grievance under the Right toInformation Act, 2005 has not been complied with. 13.Next, it is urged that in the present case on hand thereis no challenge to the policy decision of the respondents 1 and 3. Itis also to be seen that the writ petitioners are estopped in view ofthe specific clause provided under 22(b) of the instructions to thecandidates. The prospectus and instructions are having the force oflaw and hence, the petitioners cannot maintain the present writpetitions. The respondents 1 and 3 have evolved a policy decision ofnot disclosing the marks after the written examination and thereasons behind the same cannot be questioned. The Hon'ble SupremeCourt of India has also held that in the absence of any rules answersheets cannot be given.14.Shri.G.Masilamani, learned senior counsel for therespondents has relied upon the judgment reported in AIR 1984 SC 1543[MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATIONAND ANOTHER vs. PARITOSH BHUPESH KURMARSHETH] in support of hiscontention that the judicial review of the Hon'ble Court against thepolicy decision is rather limited and also the non furnishing of theanswer sheets would not amount to violation of principles of naturaljustice. The learned senior counsel for the respondents also repliedupon the unreported judgment in W.P.C.NO.12583/2006 [SUNIL KUMAR RAIvs. UNION OF INDIA AND OTHERS] DATED 31.08.2006 wherein the HighCourt of Delhi has taken a view that in the absence of any rule acandidate need not be given the answer sheet. The learned counsel hasalso relied upon the judgment reported in 2006 (3) CTC 449[DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] to submitthat the prospectus is having the force of law along with theinstructions contained therein and hence one who has written theexamination cannot be allowed to challenge the same. 15.It is also urged that the information sought for cannotbe given since the same would come under the categories of exemption https://hcservices.ecourts.gov.in/hcservices/ as provided under Section 8(1) of the Right to Information Act, 2005.A particular reference has been made to Section 8(1)(d) and (e) ofthe said Act contending that there is a fiduciary capacity in whichthe information is held and the public interest does not require thefurnishing of such information. 16.I have heard the arguments of the learned seniorcounsels appearing for both sides as well as the learned GovernmentPleader appearing for the second respondent. 17.The petitioners herein have filed the writ petitions onthe ground that without providing the information as required by themunder the Right to Information Act, 2005 the selection process shallnot be proceeded with. A reading of the said prayer especiallyforbearing the respondents from proceeding with the selection processwould make it clear that the same is not maintainable andmisconceived. The said prayer would amount to a prayer forprohibition prohibiting a statutory authority from proceeding inaccordance with law. In the absence of any legal right, thepetitioners cannot prevent the public authorities from proceeding inaccordance with law, based upon surmises and conjectures. 18.It is also to be noted that an official act is presumedto be correct until and unless the contrary is proved. In thejudgment reported in (2009) 4 MLJ 417 [RAMACHANDRA REXINS PRIVATELTD., vs. CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL,CHENNAI], the Hon'ble Division Bench has taken a view that there isalways a presumption in favour of the official act done in such acapacity and the party who allege any irregularity has to prove thesame. Therefore, this Court under such a situation cannot exerciseits discretionary power under Article 226 of the Constitution ofIndia. The petitioners right to get an information under Right toInformation Act, 2005 is one thing and without the informationfurnished by the respondents they cannot be allowed to proceed withas against their own procedure based upon their policy decision isanother. The petitioners may have a legal right to get an informationunder the Right to Information Act, 2005 but they do not have a legalright to postpone the process of selection till the information isreceived. In other words, the petitioners cannot contend that untiland unless they are allowed to have the information the furtherprocess cannot be allowed to go on. In the present case, thepetitioners rights have not been crystalized in so far as theselection is concerned. Therefore, they have to get the informationand thereafter, challenge the selection provided the informationobtained would be sufficient enough for them to approach theappropriate forum.19.In the present case on hand, the petitioners have takena policy decision not to publish the marks after the writtenexamination. They have also taken the policy decision to proceed with https://hcservices.ecourts.gov.in/hcservices/ the oral test and publish the results thereafter. As rightlycontended by the learned senior counsel Shri.G.Masilamani, the wisdomof the respondents 1 and 3 in evolving the process by exercising thepower conferred on them under Article 320(1) of the Constitution ofIndia cannot be questioned by the petitioners more so on the groundthat the respondents have not furnished the information as requiredunder the Right to Information Act, 2005. It is further to be seen inthe present case that the said policy decision has not beenchallenged by the petitioners. It is well settled principal of law,the provisions of the enactments will have to be given a harmoniousconstruction and it cannot be presumed that they are in conflict witheach other.20.Therefore, the said policy decision which is based uponthe application of mind and reasoning cannot be challenged by thepetitioners indirectly on the ground that till they get the requireddocuments the selection cannot be go on. If the request of thepetitioners is granted then the same would go against the policydecision of the respondents 1 and 3. 21.The petitioners are aware of the rules and regulationsas contained in the prospectus and the instructions given to thecandidates. In this connection, it is useful to refer the paragraph22(b) of the instructions given to the candidates which is as follows:"22(b). Posts for which selection is made on thebasis of Written Examination and Oral Test.Where the selection is made on the basis ofboth, Main Written Examination/WrittenExamination and Oral Test, the Main WrittenExamination/Written Examination will precede theOral Test. If the number of vacanciesnotified/reserved to be filled up for any one ormore of the reservation groups(viz. ScheduledCastes, Scheduled Tribes, Most BackwardClasses/Denotified Communities, Backward Classesor General Turn) is five and above, the number ofcandidates to be admitted to the Oral Test shallbe two times the number of vacancies for whichrecruitment has to be made against thosereservation groups based on the marks obtained bythe candidates at the Main Written Examination orWritten Examination, as the case may be.Similarly, if the number of vacancies in any oneor more of the remaining reservation groups forthe same recruitment is four and below, thenumber of candidates to be admitted to the OralTest from those particular reservation groups(s)shall be three times the number of vacancies forwhich recruitment has to be made against those https://hcservices.ecourts.gov.in/hcservices/ reservation group(s). In respect of the posts,the total cadre strength of which is one only andfor which the rule of reservation of appointmentsdoes not apply, the number of candidates to beadmitted to the Oral Test on the basis of themarks obtained at the Written Examination will bethree. The final selection will be made on thebasis of the total marks obtained by thecandidates at the Main Written Examination orWritten Examination, as the case may be, and OralTest taken together subject to the rule ofreservation of appointments wherever it applies.Appearance in all the papers at the Main WrittenExamination/Written Examination and for Oral Testis compulsory. The candidates who have notappeared for any of the subjects in the MainWritten Examination/Written Examination will notbe considered for selection even if they securethe minimum qualifying marks for selection.The marks obtained by the candidatesappearing for the Oral Test, both in the WrittenExamination as well as in the Oral Test will beplaced in the Notice Board in the Office of theTamil Nadu Public Service Commission in theevening either on the last day fixed for OralTest or one the succeeding working day. The samewill also be made available on the Internet inthe Commission's Website www.tnpsc.org."Similarly, paragraph 19 of the said instructions isextracted herein:"19.Communication with the Tamil Nadu PublicService Commissioni.Any communication intended for theCommission must be made in writing and addressedonly to the Secretary, Tamil Nadu Public ServiceCommission, Omanthoorar Government Estate, AnnaSalai, Chennai – 600 002.ii.If a reply is sought it must beaccompanied by an envelope affixed withsufficient Postage Stamps with the address towhich the reply is to be sent.iii.Communications asking for reasons fornon-selection and request for exemption from agelimit or other qualifications will receive noattention. https://hcservices.ecourts.gov.in/hcservices/ iv.The Commission will receivecommunications only from candidates.Communications in the name of pleader or agentwill receive no attention.v.Requests for furnishing causes of failurein written exam or for non-selection on theresults of the written exam / oral test or forrevaluation of answer books will not be compliedwith.vi.Details of marks of all candidates whoappeared for the main written exam / oral testwill be available in the Commission's Websitewww.tnpsc.org.Vii.Candidates asking for details of marksafter finalisation of selection should send acrossed Account Payee demand draft for Rs.10/-(Rupees Ten only) in favour of the Secretary,Tamil Nadu Public Service Commission."22.A reading of the above said provisions would show thatthe request for furnishing cost of failure in the written examinationor non selection for the written examination or for re-valuation willnot be complied with. It also shows that the details of the markswill be available in the website and all the marks of the candidateswill be given after the finalisation of the selection process.Therefore, in view of the above said provisions which are having theforce of law, the petitioners cannot seek the information sought forby them during the process of selection. The petitioners are bound bythe prospectus and the instructions which are having the force of law.23.As rightly submitted by Shri.G.Masilamani, learnedsenior counsel for the respondents 1 and 3, the ratio laid down bythe Division Bench in the judgment reported in 2006 (3) CTC 449[DR.M.VENNILA vs. TAMIL NADU PUBLIC SERVICE COMMISSION] is squarelyapplicable to the facts on hand. The Division Bench has observed inparagraph 25 of the judgment is as follows:"25.In the earlier part of our order, wehave extracted relevant provision, viz.,Instructions, etc. to Candidates as well as theInformation Brochure of the Tamil Nadu PublicService Commission, we hold that the terms andconditions of Instructions, etc. to Candidatesand Information Brochure have the force of lawand have to be strictly complied with. We arealso of the view that no modification/relaxation https://hcservices.ecourts.gov.in/hcservices/ can be made by the Court in exercise of powersunder Article 226 of the Constitution of Indiaand application filed in violation of theInstructions, etc. to Candidates and the terms ofthe Information Brochure is liable to berejected. We are also of the view that strictadherence to the terms and conditions isparamount consideration and the same cannot berelaxed unless such power is specificallyprovided to a named authority by the use of clearlanguage. As said at the beginning of our order,since similar violations are happening in thecases relating to admission of students tovarious courses, we have dealt with the issueexhaustively. We make it clear that the aboveprinciples are applicable not only toapplications calling for employment, but also tothe cases relating to the admission of studentsto various courses. We are constrained to makethis observation to prevent avoidable prejudiceto other applicants at large."24.Therefore, this Court is of the opinion that inasmuch asa clear policy having been evolved by the respondents 1 and 3 inrespect of the conduct of the selection process, this Hon'ble Courtcannot interfere with the same. If the petitioners request forfurnishing the particulars sought for by them is allowed before theselection process is over the same would stand against the policydecision of the respondents 1 and 3.25.In the judgment reported in (2009) 5 SCC 1 [ANDHRAPRADESH PUBLIC SERVICE COMMISSION vs. BALOJI BADHAVATH AND OTHERS]the Hon'ble Supreme Court was pleased to hold that unless theprocedure adopted by the authority is held to be arbitrary or againstthe known principles of fair play, the same cannot be interferedwith. The said Division Bench of the Hon'ble High Court has followthe recent judgment reported in (2009) 5 MLJ 281 [DR.A.R.BALAMURUGANvs. SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT] tothe effect that a person who participated in the selection processcannot claim that the same is arbitrary. Further, it is seen thatwhen the Government evolves a policy, the judicial review is verylimited in the sense that the Court cannot go into the merits anddemerits of the said decision. 26.However, a perusal of the instructions issued ininstruction no.19 would clearly show that what cannot be asked for isthe cause of rejection, non-selection and also the request for re-valuation. It also shows that the marks will be published after thefinalisation of the selection process either in the Notice Board or https://hcservices.ecourts.gov.in/hcservices/ in the website, which shall also be given a demand. Therefore, it hasto be seen that the instructions and the prospectus are to beconstrued only for the purpose of the finalisation of the process ofselection. Hence, once the said process is over it cannot be saidthat the documents and informations sought for by the petitionersunder the Right to Information Act, 2005 cannot be considered. It isfurther seen that even the respondents are publishing the marks afterthe process is over. Hence, in the absence of any rational oracceptable reasons for not furnishing the mark sheets and the otherinformation sought for it cannot be said that in view of theprospectus and the instructions the same cannot be given. 27.In the present case, this Court has to examine thegrievance of the petitioners who filed the writ petitions. Thepetitioners wanted the mark sheets of all the candidates who havewritten the main written examination including that of thepetitioners and they want the copy of their own OMR answer sheets.The other informations sought for by the petitioners are eitheravailable in the instructions themselves or explained in the counteraffidavit filed by the respondents 1 and 3. Since the respondents 1and 3 both in the instructions as well as the counter affidavit haveclearly stated that marks of all the candidates would be published inthe last day evening of the oral test, this Court is of the opinionthat the said request of the petitioners need not be considered bythis Court particularly in view of the observation made earlier thatthe petitioners are not entitled to get any information till theselection process is over. Therefore, the only issue to be decided inthe present case is the petitioners are entitled to get their own OMRanswer sheets along with the other factual information or not afterthe selection process is over. 28.In so far as the other information are concerned, thisCourt is of the opinion that there cannot be any impediment for therespondents 1 and 3 to provide the same after the completion of theprocess. It is an admitted fact that the said answer sheet is nothingbut a shaded one done by a candidate. It is also seen from thecounter affidavit filed by the respondents 1 and 3 there is a clearmethod adopted by the use of technology for computing the marks.Therefore, there is very little work for the human mind involving anyprocess of evaluation or correction as in the normal evaluation of ananswer sheet.29.What the petitioners want is a copy of their own marksheets. There is no question of secrecy to be maintained infurnishing a copy of the same. Moreover, when the respondents 1 and 3are providing the mark sheet of a concerned person, this Court findsthat there cannot be any impediment or reasonable objection for notproviding a copy of the said answer sheet. Therefore, this Court isof the opinion that the respondents 1 and 3 are bound to give a copyof the said answer sheet of a concerned person, of-course after thecompletion of the selection process. https://hcservices.ecourts.gov.in/hcservices/

30.In order to appreciate the arguments made by the learnedsenior counsels of both sides one has to see the provisions of theRight to Information Act, 2005 the definition of Section 2(e) of thesaid Act is extracted herein:"2(e) "competent authority" means-(i)the Speaker in the case of the House ofthe People or the Legislative Assembly of a Stateor a Union territory having such Assembly and theChairman in the case of the Council of States orLegislative Council of a State;(ii)the Chief Justice of India in the caseof the Supreme Court;(iii)the Chief Justice of the High Court inthe case of a High Court;(iv)the President or the Governor, as thecase may be, in the case of other authoritiesestablished or constituted by or under theConstitution;(v)the administrator appointed under article239 of the Constitution;"Similarly, the definition of Section 2(j) of the said Actis extracted herein:"2(j) "right to information" means the rightto information accessible under this Act which isheld by or under the control of any publicauthority and includes the right to-(i)inspection of work, documents, records;(ii)taking notes, extracts or certifiedcopies of documents or records;(iii)taking certified samples of material;(iv)obtaining information in the form ofdiskettes, floppies, tapes, video cassettes or inany other electronic mode or through printoutswhere such information is stored in a computer orin any other device;"31.A reading of the above said provisions would amply makeit clear that an answer sheet is a document coming under the saiddefinitions. Therefore, the respondents 1 and 3 cannot deny the same. https://hcservices.ecourts.gov.in/hcservices/ Section 8 of the said Act speaks about the exemption from disclosureof the information. The same is also extracted for betterappreciation."8(1) Exemption from disclosure ofinformation.-(1) Notwithstanding anythingcontained in this Act, there shall be noobligation to give any citizen,-(a)information, disclosure of which wouldprejudicially affect the sovereignty andintegrity of India, the security, strategic,scientific or economic interests of the State,relation with foreign State or lead to incitementof an offence;(b)information which has been expresslyforbidden to be published by any Court of law ortribunal or the disclosure of which mayconstitute contempt of Court;(c)information, the disclosure of whichwould cause a breach of privilege of Parliamentor the State Legislature;(d)information including commercialconfidence, trade secrets or intellectualproperty, the disclosure of which would harm thecompetitive position of a third party, unless thecompetent authority is satisfied that largerpublic interest warrants the disclosure of suchinformation;(e)information available to a person in hisfiduciary relationship, unless the competentauthority is satisfied that the larger publicinterest warrants the disclosure of suchinformation;(f)information received in confidence fromforeign Government;(g)information, the disclosure of whichwould endanger the life or physical safety of anyperson or identify the source of information orassistance given in confidence for lawenforcement or security purposes;(h)information which would impede theprocess of investigation or apprehension or https://hcservices.ecourts.gov.in/hcservices/ prosecution of offenders;(i)cabinet papers including records ofdeliberations of the Council of Ministers,Secretaries and other officers;Provided that the decisions of Council ofMinisters, the reasons thereof, and the materialon the basis of which the decisions were takenshall be made public after the decision has beentaken, and the matter is complete, or over:Provided further that those matters whichcome under the exemptions specified in thissection shall not be disclosed;(j)information which relates to personalinformation the disclosure of which has norelationship to any public activity or interest,or which would cause unwarranted invasion of theprivacy of the individual unless the CentralPublic Information Officer or the State PublicInformation Officer or the appellate authority,as the case may be, is satisfied that the largerpublic interest justifies the disclosure of suchinformation:Provided that the information which cannotbe denied to the Parliament or a StateLegislature shall not be denied to any person."32.A perusal of the said provision would throw light of thefact that an information cannot be withheld by a public authorityexcept the same is covered under Section 8(1) of the said Act.Shri.G.Masilamani, learned senior counsel for the respondents 1 and 3has relied upon Section 8(1)(d) and (e) of the said Act. Section 8(1)(d) speaks about the information such as involving commercialconfidence, trade secrets or intellectual property. If further statesthat the disclosure of the said information would harm thecompetitive position of a third party. This Court is of the opinionthat by no stretch of imagination the said Section can be madeapplicable since what the petitioners want is their own documentwhich they have written. Likewise, Section 8(1)(e) speaks about theinformation available to a person in his fiduciary relationship. Aperson defined therein is in the present case are respondents 1 and3. In law they can be holding the information in the fiduciarycapacity as against the petitioners or the examiner. They cannot be afiduciary for the petitioners since it is petitioners who themselveswant their own document. If one accepts for argument sake that thedocument belongs to the respondents 1 and 3 even then the same has to https://hcservices.ecourts.gov.in/hcservices/ be given in view of their decision to publish the marks. Thefiduciary capacity also cannot be applied from the point of examinersince the examiner has got no role to play in a system which involvesshading where more technology rather than a assessment by an examineris adopted.33.The definition of “fiduciary” capacity has been definedin the dictionary as follows: 1.of a trust, trustee; or trusteeship; 2.held or given in trust; 3.depending for its value on public confidence orsecurities. Black’s Law Dictionary defines “fiduciary” as 1.One who owes to another duty of good faith trust,confidence and candor; 2.One who must exercise a high standard of acre inmanaging another’s money or property. The said definition “fiduciary” would certainly notapplicable to the present case since the informations sought for bythe petitioners are not held by the respondents 1 and 3 in a“fiduciary” capacity. As observed earlier without knowing theinformation sought for the petitioners will not be in a position toknow about their rights which would be based upon the facts thatwould emerge from the information to be given by the respondents 1and 3. 34.In a recent judgment, the HIGH COURT OF KERALA,KOCHHI BENCH in the matter of CANARA BANK vs. CENTRAL INFORMATIONCOMMISSION AND OTHERS, has held as follows:"The information relating to posting, transferand promotion of clerical staff of a bank do notpertain to any fiduciary relationship of the bankwith the its employes within the above meanings.Those information involved herein cannot be saidto be held in trust by the Bank on behalf of itsemployees and therefore cannot be exempted underthis sub-section. In fact, without knowing thisinformation, one employee cannot know his rightsvis-a-vis other employees. In this connection, ithas to be noted that one of the informationrequested for is transfer guidelines pertaining;to clerical staff. Any member of the staff of the https://hcservices.ecourts.gov.in/hcservices/ bank is, as of right, entitled to know what arethose guidelines, even apart from the Right toInformation Act. Therefore, the informationrequested for by the 2nd respondent enumeratedabove cannot be denied to the second respondentrelying on section 8 (1) (e). Further theseinformation have necessarily to be divulged if weare to have an informed citizenry andtransparency of information which are vital tothe functioning of the Bank and to containcorruption so as to hold the Bank which is aninstrumentality of the Stale, accountable to thepeople, which are the avowed objects of the Act,as proclaimed in the preamble to the Act." Therefore, this Court is of the opinion that therespondents 1 and 3 cannot take advantage of Section 8(1)(e) of theRight to Information Act since the same is not applicable to thepresent case. 35.Shri.G.Masilamani, learned senior counsel for therespondents 1 and 3 has also submitted that the petitioners will haveto approach the Appellate Authority as provided under Section 19 ofthe Right to Information Act, 2005. This Court is of the view thatthe power under Article 226 of the Constitution of India can be andshall be exercised in appropriate cases where driving a party toanother forum would lead to depriving one's own right. The delay thatwould be caused to a party will also to be seen since there is anurgency in seeking the relief because only based upon the saiddocument, the petitioners will be in a position to know as to whetherthey can stake a claim for the purpose they sought for. Moreover asobserved earlier, this Court is also of the opinion that driving aparty to file an appeal is unnecessary since an issue has been raisedin the writ petition and arguments have been advanced by the parties.Even though the relief sought for in the writ petition is slightlydifferent, inasmuch as the basis on which the writ petition has beenfiled is to get the required information, this Court is of theopinion that the interest of justice would require the informationsought for by the petitioners will have to be granted. Therefore,this Court is of the opinion that the question of availing thealternative remedy has to be decided based upon the facts andcircumstances of each case and the facts of the present case wouldnot warrant the issue raised to be decided by the Appellate Authorityconstituted under the Right to Information Act, 2005.36.However, a reading of the representation made by thepetitioners as well as the averments made in the affidavit filed insupport of the writ petition would show that the petitioners have notsought for the answer sheets of all the selected candidates in themain entrance examination. What is sought for is only the mark sheets https://hcservices.ecourts.gov.in/hcservices/ of the selected candidates and not the answer sheets. Therefore, thisCourt is of the opinion that under those circumstances there is nonecessity to go into the said question as to whether the petitionersare entitled to get the answer sheets of the selected candidates ornot. Incidentally the question of applicability of Section 8(1)(e) inso far as the Answer Sheets of the other candidates are concernedalso need not be gone into.37.The respondents 1 to 3 being an authorities havingindependent power deriving the source of power under Article 320(1)of the Constitution of India will have to conform to the principle oftransparency, accountability and fair play. The right to get theinformation in a democratic society is a basic and natural right. Theright to get the information is a part in the freedom of speech andexpression as contained in Article 19 (1)(a) of the Constitution ofIndia. Therefore, the right to get the information is a fundamentalright. The disclosure of the information by the public authority is arule and the secrecy is an exemption. That is the reason why theRight to Information Act, 2005 provides for specific clause regardingexemption. The public interest also demands that such informationwill have to be furnished in order to maintain the transparency. Inthe judgment reported in AIR 1975 SC 865 [THE STATE OF UTTAR PRADESHvs. RAJ NARAIN AND OTHERS], the Hon'ble Supreme Court has observed asfollows:"37.Counsel on behalf of the electionpetitioner put in the forefront that it was forthe Court to decide whether the disclosure andproduction of documents by the State would causeprejudice to public interest or whether non-disclosure of documents would cause harm to theinterest of the subject and to the publicinterest that justice should be done betweenlitigating parties. This submission was amplifiedby counsel for the election petitioner bysubmitting that it had to be found out at whatstage and in what manner privilege was to beclaimed and in what circumstances the Court couldlook into the document to determine the validityof the claim to privilege raised under Section123. The other contention on behalf of theelection petitioner was that if a part of thedocument was made public by lawful custodian ofthe document the question was whether thedocument could still be regarded as anunpublished document. It was also said if therewas a long document and if parts thereof werenoxious and therefore privileged whether theinnocuous part could still be brought on therecord of the litigation." https://hcservices.ecourts.gov.in/hcservices/ Similarly, the judgment reported in AIR 1982 SC 149[S.P.GUPTA AND OTHERS vs. UNION OF INDIA AND OTHERS], the Hon'bleSupreme Court has observed as follows:"64.The demand for openness in thegovernment is based principally on two reasons.It is now widely accepted that democracy does notconsist merely in people exercising theirfranchise once in five years to choose theirrules and, once the vote is cast, then retiringin passivity and not taking any interest in thegovernment. Today it is common ground thatdemocracy has a more positive content and itsorchestration has to be continuous and pervasive.This means inter alia that people should not onlycast intelligent and rational votes but shouldalso exercise sound judgment on the conduct ofthe government and the merits of public policies;so that democracy does not remain merely asporadic exercise in voting but becomes acontinuous process of government – an attitudeand habit of mind. But this important role peoplecan fulfil in a democracy only if it is an opengovernment where there is full access toinformation in regard to the functioning of thegovernment."38.The Apex Court in the judgment reported in AIR 1995 SC1236 [SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING vs. CRICKETASSOCIATION OF BENGAL AND ANOTHER] is held as follows:"39.Aggrieved by the orders of the learnedsingle Judge aforementioned, the Union of Indiaand other governmental agencies filed a writappeal (along with an application for stay) whichcame up for orders on November 12, 1993 before aDivision Bench of the Calcutta High Court. It wassubmitted by the learned counsel for the Union ofIndia that though the Doordarshan is very muchkeen to telecast the matches, the CAB has reallycreated problems by entering into an agreementwith TWI. He submitted that under Section 4 ofthe Telegraph Act, 1885, the Central Governmenthas the exclusive privilege of establishing,maintaining and working telegraph and that thedefinition of the expression "telegraph" includestelecast. He submitted that neither CAB nor TWIhave obtained any licence or permission ascontemplated by the proviso to Section 4(1) of https://hcservices.ecourts.gov.in/hcservices/ the Indian Telegraph Act and, therefore, TWIcannot telecast the matches from any place inIndian territory. After referring to the rivalcontentions of the parties and the correspondencethat passed between them, the Division Benchobserved that there were two dimensions to theproblem arising before them, viz., (1) the rightto telecast by Doordarshan within India and (2)right of TWI to telecast outside India forviewers outside India. Having regard to theurgency of the matter and without going into themerits of the rival contentions, and keeping inview the interest of millions of viewers, theDivision Bench observed: "we record, asDoordarshan is inclined to telecast the matchesfor the Indian viewers on receipt of Rs.5 lakhsper match and to enjoy the exclusive right ofsignalling within the country being the hostbroadcaster, we direct the CAB to pay immediatelya sum of Rs.5 lakhs per match for this purposeand the collection of revenue on account ofsponsorship or otherwise in respect of 28 minuteswhich is available for commercial purpose berealised by the Doordarshan on condition thatsuch amount shall be kept in a separate accountand shall not be dealt with and dispose of thesaid amount until further orders" to be passed inthe said writ appeal. The Doordarshan wasaccordingly directed to immediately starttelecasting the matches. The Bench then took upthe question whether TWI is entitled to telecastthe matches from Indian territory. It noted thatno formal order as required under the proviso toSection 4(1) of the Telegraph Act has beengranted in favour of either CAB or TWI.Purporting to take notice of the national andinternational impact of the issue, the Benchdirected the 5th appellant before them viz., theSecretary, Ministry of Telecommunications,Government of India "to consider the facts andcircumstances of the case clearly suggesting thatthere had already been and implied grant ofpermission, shall grant a provisional permissionor licence without prejudice to the rights andcontentions of the parties in this appeal and thewrit application and subject to the conditionthat respondent no.6 (5th appellant in appeal) inthe writ application will be at liberty to imposesuch reasonable terms and conditions consistentwith the provision to Section 4(1) of the Indian https://hcservices.ecourts.gov.in/hcservices/ Telegraph Act having regard to the peculiar factsand circumstances of the case." The Secretary wasdirected to decide the said question within threedays from the date of the said order afterhearing all the parties before the DivisionBench, if necessary."From the above said judgments, it is clear that the rightto get the information is a basic recognized right and the same isalso a fundamental right.39.The information is required in the public interest aswell as in the interest of not only the petitioners but therespondents 1 to 3 as well. Since the respondents 1 to 3 have inclear terms averred that the procedure adopted is just and fair andproper furnishing of the information sought for by the petitionerswould go a long way in not only making them to understand about theirposition but also prevent them from approaching the legal formsseeking their redressal apart from enhancing the reputation of therespondents. It is a well established fact that system which istransparent will have lesser legal issues than the one which isclosed. After all as held by the Hon'ble Supreme Court in variouspronouncements referred above, transparency is one of the basicpillars of the democratic system. It also keeps the faith of thepeople in the working of the system. The Judgment relied upon by thelearned senior counsel for the petitioners Shri.K.M.Vijayan reportedin AIR 2009 CALCUTTA 97 [UNIVERSITY OF CALCUTTA AND OTHERS vs. PRITAMROOJ] answers the substantial issues raised in the present writpetition. The Hon'ble Division Bench of the Calcutta High Court hasconsidered the matter in extenstio and held that an answer sheetwould come under the definition of Section 2(f) of the Right toInformation Act, 2005. The Hon'ble Division Bench was also pleased toheld that in such a situation Section 8(1) of the Right toInformation Act, 2005 cannot be pressed into service against thosewho seek the answer sheets which is an information coming under thepurview of the Act.40.In so far as the judgment relied upon byShri.G.Masilamani, learned senior counsel for the respondents 1 and 3is concerned, this Court is of the opinion that they are notapplicable to the facts in issue. The question of applicability ofthe Right to Information Act, 2005 has never been put in issue inthose judgments. It is well settled principle of law that a judgmentis a binding precedent for what it decides. In the Judgment reportedin (2009) 3 CTC 97 [D.SIVAKUMAR AND ANOTHER vs. THE GOVERNMENT OFTAMIL NADU AND OTHERS] it has been held that until and unless anissue has been consciously considered and decided by the Court and aratio has been laid in pursuant to the same, the judgment rendered bythe Court cannot be held to be a binding precedent. https://hcservices.ecourts.gov.in/hcservices/

41.The Right to Information Act, 2005 has been introducedin order to bring out the transparency and accountability in adecision making process. The said Act will have to be interpretedliberally until and unless the same is prohibited in law as providedunder Section 8(1) of the said Act which is not the case here. Asrightly contended by the learned senior counsel for the petitionersit cannot be said that even after the process of selection is overthe Right to Information Act, 2005 cannot be pressed into service.42.As observed earlier, the petitioners may not be entitledto get the documents required by them under the Right to InformationAct, 2005 when it comes against the policy decision of therespondents in formulating the process of selection. However, thesame cannot be construed to hold that in any given situation thedocuments sought for by the petitioners cannot be givennotwithstanding the provisions of the Right to Information Act, 2005.As observed earlier while interpreting the enactments an attemptshould be made to have a harmonious construction of both theenactments. 43.Therefore while disposing the writ petitions, this Courtis of the opinion that certain directions will have to be giventaking into consideration of the facts and circumstances of the case. (i)The prayer sought for by the petitioners in so far asforbearing the respondents from proceeding with the selection processis hereby rejected. Hence, the respondents 1 and 3 are at liberty toproceed with the selection process.(ii)The respondents 1 and 3 are hereby directed to furnishthe information sought for by the petitioners within a period of sixweeks from the date of publication of the results to be announced inpursuant to the oral interview. The petitioners are at liberty totake appropriate action known to law after obtaining the informationto be furnished by the respondents 1 and 3 if they are so advised.44.Accordingly the writ petitions are disposed of with theabove said observations. No costs. Consequently, connectedmiscellaneous petitions are closed. sriSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary Tamil Nadu Public Service Commission Ommanthurar Government Estate Anna Salai, Chennai – 600 002.2.The Secretary Government of Tamil Nadu Home Department Secretariat Chennai – 600 009.3.The Information Officer Tamil Nadu Public Service Commission Ommanthurar Government Estate Anna Salai Chennai – 600 002.+ One CC to Mr. K. Surendranath, Advocate (CC SR.No. 43987)+ One CC to Mr. Fast Track Court Associates(CC SR.No. 43921)W.P. NOS.13132 to 13134 OF 2009GU (CO)VC (08.09.2009)