CWP No. 20566 of 2008, date of Judgment 08-12-2008
RTI Activist es Judgment ko ek bar jarur paden.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 20566 of 2008
Decided on : 08-12-2008
State Bank of India
....Petitioner
VERSUS
Central Information Commissioner and another
....Respondents
CORAM:-HON'BLE MR. JUSTICE HEMANT GUPTA.
HON'BLE MR. JUSTICE NAWAB SINGH.
Present:- Mr. Vikas Chatrath, Advocate
for the petitioner.
HEMANT GUPTA, J
The challenge in the present writ petition is to the order dated
07.10.2008 (annexure P-7) passed by Central Information Commissioner,
directing the petitioner to provide the marks obtained by the selected
candidate under various heads; the marks obtained by respondent No.2
(hereinafter referred to as the 'applicant') under various heads and the
marks secured by the applicant during the last four years, if any, for the
performance.
The applicant was considered for promotion as Security
Officer from Middle Management Grade Scale-III (for short 'MMGS-III')
to Senior Management Grade Scale-IV (for short 'SMGS-IV') in
the promotion year 2006-2007. The applicant sought the following
C.W.P. No. 20566 of 2008 - 2 -
information on 20.06.2007 under the Right to Information Act, 2005
(hereinafter referred to as 'the Act'):-
1. The policy/criteria adopted by the Bank for inclusion in
the zone of Selection and promotion of Security
Officers from MMGS-III to SMGS-IV for the
promotion year 2006-2007.
2. For the sake of transparency, please advise me the
score of my last five years performance like the
prevailing practice of advising the test performance to
general cadre officers.
3. My shortcomings, if any, which had formed the basis of
excluding my name from the list of the last year
promotions.”
The petitioner has been granted information in respect of the
policy criteria adopted by the petitioner. However, the following
information ordered by the Central Information Commissioner is disputed
by the petitioner in the present writ petition.
"1. The marks obtained by the last selected candidate under
various heads (without disclosing the name).
2. The marks obtained by the appellant under various heads.
3. If some marks have been prescribed for the performance,
the marks secured by the appellant during the last four
years against the performance.”
Learned counsel for the petitioner has vehemently argued that
such information was not sought by the applicant in his application under
the Act and that the information sought is exempted from disclosure in
terms of Section 8 (1) (e) and (j) of the Act.
C.W.P. No. 20566 of 2008 - 3 -
Having heard learned counsel for the petitioner, we do not
find any merit in the present writ petition. The applicant has sought
information for the sake of transparency and the shortcomings of the
applicant. Such information is sought in respect of the selection of the
applicant for promotion to SMGS-IV. Obviously, the shortcomings can
be assessed only in reference to other eligible candidates. The marks
obtained by the applicant or other candidates would lead to disclosure of
the shortcomings, if any, suffered by the applicant during the process of
selection. Thus, the directions given by the Central Information
Commissioner to disclose the marks obtained by the applicant and other
candidates under the various heads, is the one which has been sought by
the applicant by way of his application under the Act.
Before considering the argument raised by the petitioner
claiming exemption from disclosure of information, reproduction of the
relevant provisions is necessary.
Section 2. Definitions-In this Act, unless the context
otherwise requires:-
xxx xxx xxx
(h) “public authority” means any authority or body or
institution of self-government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c ) by any other law made by State Legislature;
(d) by notification issued or order made by the
appropriate Government and includes any-
(i) body owned, controlled or substantially
financed;
(ii) non-Government organisation substantially
financed,
C.W.P. No. 20566 of 2008 - 4 -
directly or indirectly by funds provided by the
appropriate Government;
8. Exemption from disclosure of information:
xxxx xxxx xxxx
(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied
that the larger public interest warrants the disclosure of
such information;
xxx xxx xxx xxx
(j) information which relates to personal
information the disclosure of which has no relationship
to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual
unless the Central Public Information Officer or the
State Public Information Officer or the Appellate
Authority, as the case may be, is satisfied that the larger
public interest justifies the disclosure of such
information:
Provided that the information which cannot be
denied to the Parliament or a State Legislature shall not
be denied to any person.
Firstly, we will consider the argument of the petitioner in
respect of exemption falling within the scope of Section 8 (1)(e) of the
Act. The exemption is in respect of information available “to a person in
his fiduciary relationship”. The question is whether the person mentioned
in Clause 'e' is referable to the public authority under Section 2(h) of the
Act and what information can be said to be part of fiduciary relationship,
not liable to be disclosed. In our opinion, the person in Section 8(1)(e)
is not synonymous with public authority which is as defined in Section 2
(h) of the Act. A person as contemplated under Section 8(1)(e) of the Act
will be an officer of a public authority who derives some information
in the course of his duties for the public authority. It can be a senior
functionary of the public authority in whom a junior official confides;
C.W.P. No. 20566 of 2008 - 5 -
can be an information from third party to an officer of authority and such
other information disclosed/acquired by him. It is such information which
exempted from disclosure. The person under the General Clauses Act,
can include a juristic entity but the person under Section 8(1)(e) is not
such juristic entity. If the legislature intend to prohibit disclosure of
information available to the public authority, it could have very well used
the word 'public authority' in lieu of person. But the use of word 'person'
in Clause 'e' connote that the information which has come to the
knowledge of a man or woman in confidence alone is sought to be
exempted. The other aspect is what information can be said to be
available in fiduciary relationship. It is difficult to imagine any
information which comes to public authority on account of fiduciary
relationship. A juristic entity such as the public authority carries out its
affairs in accordance with established procedures. In normal
circumstances, all orders, commands, directions, affairs and actions are
expected to be written. Similarly, a public authority will act on
information received in writing. It is needless to say that the information
effecting the sovereignty and integrity of India by the security forces etc.
is not part of Clause 'e', as such information is part of Clause 'a' itself.
Therefore, it is apparent that the information available to public authority
cannot be said to be information available to a person in his fiduciary
relationship.
The fiduciary relationship is relationship subsisting between
two persons reposing trust and confidence in the other. A fiduciary
relationship encompasses the idea of faith and confidence and is generally
C.W.P. No. 20566 of 2008 - 6 -
established only when the confidence given by one person is actually
accepted by the other person. Mere respect for another individual's
judgment or general trust in his or her character is ordinarily insufficient
for the creation of a fiduciary relationship. Their duties of a fiduciary
include loyalty and reasonable care of the assets within custody. All of
the fiduciary's actions are performed for the advantage of the beneficiary.
The examples of fiduciary relations are those existing between attorney
and client, guardian and ward, principal and agent, executor and heir,
trustee and cestui que trust, landlord and tenant etc.
The information sought by the applicant is in respect of
selection of process conducted by public authority to fill a public post.
The conduct of selection of process and the marks obtained cannot be said
to be available to a public authority as in fiduciary relationship exempted
from disclosure under Section 8(1)(e) of the Act.
The argument that information claimed is personal
information, the disclosure of which has no relationship to any public
activity or interest is again mis-conceived. The applicant has sought
information in respect of performance of the candidates for the public
post. The information sought is not personal information. The medical
history of the candidate, the assets owned by the candidate, or such other
details which are personal to him can be said to be part of personal
information. But the marks obtained by candidates to determine the merit
of a candidate for the public post, thus cannot be said to be personal
information. The petitioner is bound to maintain the record of the
selection process so as to instill confidence of all the candidates.
C.W.P. No. 20566 of 2008 - 7 -
The marks obtained by each of the candidate cannot be said to
be a personal information which would cause any unwarranted invasion of
the privacy of the individual. Therefore, we do not find any merit in the
said argument.
We do not find that disclosure of such information is
exempted from disclosure under Section 8 of the Act.
Consequently, we do not find any merit in the present writ
petition . The same is dismissed in limine.
(HEMANT GUPTA)
JUDGE
8th December 2008. (NAWAB SINGH)
MONIKA/sanjeev
