THE STATE INFORMATION COMMISSION & ANR.versusTHE STATE INFORMATION COMMISSION & ANR.

                            [2016] i S.C.R.413


       KERALA PUBLIC SERVICE COMMISSION & ORS.                                    A
                                          v.
       THE STATE INFORMATION COMMISSION & ANR.
                   (Civil Appeal Nos. 823-854of2016)
                           FEBRUARY 04, 2016                                      B

             (M.Y. EQBAL AND ARUN MISHRA, JJ.!
        Right lo i11formation: Public Senice Commission - Examinee
is e11titled lo supply <f scan11ed copies ()(his answer sheet of the
l1 rNten test, tabulation sheet containing inlervieH' 111arks and other
 1



infor111ation - HoH eve1: exc1111i11ee is not entitlell to gel the di.\·c/osure
                     1
                                                                                  c
of names of' the examiner who has emluated the 1111swer sheet since
relationship between the PSC and the Ewminers is .fiduciary i11
11alure a11d any i11jimnalim1 shared between them is 1101 liable lo
be disc/osecl - S'erl'ice /a11   1 -   Recrui1111e111 exa1nination.
                                                                                  D
         Partly allowing the appeals, the Court
      HELD: The PSC has taken npon itself appointment of the
examiners to evaluate the answer papers and as such, the PSC
and examiners stand in a p1incipal-agen t rcL~tionship. Herc, the
PSC in the shoes of a Principal has entrusted the task of evaluating
the answer papers to the Examiners. Consequently, Examiners                       E
in the position of agents arc bound to evaluate the answer
papers as per the instructions given by the PSC As a result, a
fiduciary relationship is established between the PSC and the
Examiners. Therefore, any information shared between them is
not liable to be disclosed. Furthermore, the information seeker                   F
has no role to play in this and there is no logical reason as to how
this will benefit him or the public .at large. 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                     G
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 com1ictitivc
environment, where candidate puts his time in preparing for the
                                                                                  H
                                         413
414                  SUPREME COURT REPORTS                [2016] I S.C.R.


 A 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
 B 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 disclosure of
   name of the examiners in every exam is allowed, the
 C 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
 D gain by illegal means in the potential exam. [Paras 9, 10)
   [417-B-D; E-H]
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 823-
      854 of2016
            From the Judgment and Order dated 09.03.2011 of the High Court
  E   ofKerala at Emakulam in W. P (C) Nos. 33620/2009-V, 33718/2010-L,
      3585/2008-B, 15363/2008-0, 15424/2008-J, 22386/2008-M, 6177/20 I 0-
      V, 9250/2010-E, 25779/2010-V, 23839/2010-0, 32772/2010-V, 12032/
      2009-Y, 12160/2009-L, 34585/2007-P, 33620/2009-V, 35723/2008-C,
      22398/2008-N, 22230/2007-U, 6355/2010-T, 22231/2007-V, 3577/2008-
      A, 12312/2007-N, 23458/2008-P, 3 7772/2008-V, 11876/2009-0, 23539/
  F   2008-B, 11687/2009-E, 33616/2009-V, 11042/2010-E, 2207/2008-K,
      10971/2010-V, & 5978/2010-V,35840/2008-N
                                     WITH
          C. A. NO. 855 OF 2016
          V. Giri, Vipin Nair, P. B. Suresh, Vinod Nair, Rahul Srivastava,
 G    Mohammed Sadique T. A., (For Mis. Temple Law Firm), Shrish Kumar
      Misra, Piyush Owivedi for the Appellants.
            G. M. Kawoosa, N. Ganpathy, M. Ajay, Ramesh Babu M. R., B.
      R. Mohan Kumar, Mrs. Anjani Aiyagari, M. V. Rama, Ram Lal Roy, 0.
      P. Chaturvedi, Ravi Panwar, (For S. N. Bhat) for the Respondents.
            The Judgment of the Court was delivered by
 H
   KERALA PUBLIC SERVICE COMMISSION v. THE STATE                                 415
             INFORMATION COMMISSION

       M.Y. EQBAL, J. I. Leave granted.                                          A
       2. In these two appeals the short question which needs
CO)lSideration is as to whether the Division Bench of the Kerala High
Court by impugned judgment has rightly held that the respondents are
entitled not only..to get information with .regard to the scan copies of their
answer sheet, tabulation-sheet containing interview marks but also entitled      B
to know the names of the examiners who have evaluated the answer
sheet.
       3.The information sought for by the respondents were denied by
the. State Public Information Officer and the Appellate Authority.
However, the State Information Commission allowed the second appeal              c
and held that there is no fiduciary relationship in case of answer scripts.
Further, the interview marks cannot be considered as personal infonnation,
since the public authority had already decided to publish them.
       4. Both the High Courts ofKerala and Allahabad have taken the
view, following the earlier decisions of this Court that no fiduciary            D
relationship exists between the appellants and the respondents and,
therefore, the information sought for have to be supplied to them.
      s:-·we have heard learned counsel for the parties and have gone
through the impugned judgments passed by the Division Bench of the
High Court of Kerala at Ernakulam and Allahabad.                                 E
       6. So far as the information sought for by the respondents with
regard to the supply of scanned copies of his answer-sheet of the written
test, copy of the tabulation sheet and other information, we are of the
opinion that the view taken in the impugned judgment with regard to the
disclosure of these information, do not suffer from error of law and the
                                                                                  F
same is fully justified. However, the view of the Kerala High Court is
that the information seekers are also entitled to get the disclosure of
names of examiners who have evaluated the answer-sheet.
       7. The view taken by the Kerala High Court holding that no
fiduciary relationship exists between the University and the Commission
                                                                                 G
and the examiners appointed by them cannot be sustained in law. The
Kerala High Court while observing held:-
       "16.What, ifany, is the fiduciary relationship of the PSC qua the
       examinees? Performance audit of constitutional institutions would
       only strengthen ti]e confidence of the citizenry in such institutions.
                                                                                 H
416             SUPREME COURT REPORTS                      (2016] I S.C.R.


 A    The PSC is a constitutional institution. To stand above board. is
      one of its own prime requirements. There is nothing that should
      deter disclosure of the contents of the materials that the examinees
      provide as part of their pcrfOnnance in the co111pctition for being
      selected to public service. The confidence that may be reposed
      by the examinees in the institution of the l'SC does not inspire the
 B
      acceptability of a fiduciary relationship that should kindle the
      exclusion of infonnation in relation to the evalution or other delai Is
      relating to the examination. Once the evaluation is over and results
      are declared. no more secrecy is called for. Dissemination of
      such information would only add to the credibility of the PSC. in
 c    the constitutional conspectus in which it is placed. A paiticular
      examinee would therefore be entitled to access to information in
      relation to that person's answer scripts. As regards others.
      information in relation to answer scripts may fall within the pale
      of"third party information'' in terms of section 11 of the RTI Act.
      This only means that such information cannot be accessed except
 D
      in conformity with the provisions contained in section 11. It does
      not, in any manner, provide for any immunity from access.
      17. We shall now examine the next contention of PSC that there
      is a fiduciary relationship bet\veen it and the exa1niners and as a
      consequence. it is eligible to claim protection from disclosure,
 E
      except with the sanction of the competent authority. as regards
      the identity of the examiners as also the materials that were
      subjected to the examination. We have already approved TREESA
      and the different precedents and commentaries relied on therein
      as regards the concept of fiduciary relationship. We are in full
 F    agreement with the law laid by the Division Bench of this Court in
      Centre of Earth Science Studies (supra). that S.8 (I )(e) deals
      with information available with the person in his fiduciary
      relationship with another; that information under this head is nothing
      but information in trust. which, but for the relationship would not
      have been conveyed or known to the person concerned. What is
 G    it that the PSC holds in trust for the examiners? Nothing. At the
      best, it could be pointed out that the identity of the examiners has
      to be insulated from public gaze, having regard to issues relatable
      to vulnerability and exposure to corruption ifthe identities of the
      exa111incrs are disclosed in advance. But, at any rate, such issues
 H    would go to oblivion afler the conclusion of the evaluation of the
  KERALA PUBLIC SERVICE COMMISSION v. THE STATE                                 417
      INFORMATION COMMISSION [M.Y.EQBAL, .I.]

      answer scripts and the publication of the results. Therefore, it          A
      would not be in public interest to hold that there could be a
     ·continued secrecy even as regards the identity of the exan1iners.
      Access to such information. including as to the identity of the
      exa111 incrs, after the exan1 ination and evaluation process are over,
      cannot be shied off under any law or avowed principle of privacy."
                                                                                B
      8. We do not find any substance in the reasoning given by the
Kerala High Court on the question of disclosure of names of the
exan11ners.

      9. In the present case, the PSC has taken upon itself in appointing
the examiners to evaluate the answer papers and as such. the PSC and            c
examiners stand in a principal-agent relationship. Herc the l'SC 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 ans\ver papers as per the instructions
given by the PSC. As a result, a fiduciary relationship is established
between the PSC and the Examiners. Therefore. any information shared            D
between them is not liable to be disclosed. Furthermore, the information
seeker has no role to play in this and we don't 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 lo reveal the examiner's              E
 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 with the decision of the
 Kerala High Court with respect to the second question.
         IO. ln 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,             G
 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             H
418                    SUPREME COURT REPORTS                     (2016] 1 S.C.R.


 A    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
 B
      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.
             11. We, therefore, allow these appeals in part and modify the
 c    judgment only to the extent that the respondents-applicants are not entitled
      to the disclosure of names of the examiners as sought for by them.
      Devika Gujral                                         Appeals panly allowed.