The procedure set out by NBE as well as the RTI Act coexists and therefore, it is for the citizen to determine which route she would prefer for obtaining the information, the CIC ruled. This is the 179th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

The Central Information Commission (CIC), while allowing a complaint, directed the Public Information Officer (PIO) and deputy director of National Board of Examinations (NBE) under the Ministry of Health and Family Welfare, to provide the information sought by the appellant under the Right to Information (RTI) Act.

While giving the judgement on 27 December 2011, Shailesh Gandhi, the then Central Information Commissioner said, "The Bench would like to highlight that just as the procedure put in place by NBE is not abrogated, the RTI Act passed by the Parliament also cannot be suspended and therefore, it is for the citizen to determine which route she would prefer for obtaining the information."

Gurgaon (Haryana) resident Saurabh Yadav, on 8 April 2011, sought from the Public Information Officer (PIO) information regarding question and answer papers of NBE. Here is the information he sought and the reply provided by the PIO under the RTI Act...

1.      (i) Attested photocopy of original question paper, Part I Series of FMG Exam held on 27/03/2011.

PIO's Reply—As per the policy of National Board of Examinations (NBE), question paper/answer key of multiple choice questions (MCQ) based exams cannot be provided.

(ii) Attested photocopy of original question paper, Part II Series of FMG Exam held on 27/03/2011.

PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exams cannot be provided.

2.      (i) Attested photocopy of answer key of question paper, Part I Series 'B' of FMG Exam held on 27/03/2011. 

PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exams cannot be provided.

(ii) Attested photocopy of answer key of question paper, Part II Series 'B' of FMG Exam held on 27/03/2011. 

PIO's Reply—As per the policy of NBE, question paper/answer key of MCQ based exam can not be provided.

3.      (i) Attested photocopy of original answer sheet of question paper, Part I, Series 'B' attempted by Saurabh Yadav Roll No. 11143392 in FMG Exam held on 27/03/2011.     

PIO's Reply—Scheme/format of application is available at NBE website- natboard.edu.in. Copy also enclosed.

(ii) Attested photocopy of original answer sheet of question paper, Part II, Series 'B' attempted by Saurabh Yadav Roll No. 11143392 in FMG Exam held on 27/03/2011.     

PIO's Reply—Scheme/format of application is available at NBE website- . Copy also enclosed.

Not satisfied with the PIO's information, Yadav, the appellant filed his first appeal.

In his order, the First Appellate Authority (FAA) observed, "NBE has spent years to frame the questions that now form part of its question bank. The question bank is a very valuable resource for the NBE. NBE has got these questions prepared by making payments to the experts and NBE holds its intellectual property rights over these questions. The question bank is maintained to screen Indian nationals with foreign medical qualifications and assess the minimum standard of Medical education at the MBBS level in India, the same are scarce and in case these questions are shared with the third party, candidate and institutions, the same will have a negative effect on the examination system. Therefore, questions of MCQ based examinations cannot be shown/ divulged".

In relation to query 3, the FAA noted: "Scheme/ format of application is available at NBE web-site natboard.edu.in. Copy of the same is also enclosed".

Yadav, still not satisfied with the FAA's order, approached the CIC with his second appeal.

During the hearing on 14 December 2011, the PIO stated that he had objections in providing the question papers (as sought in query 1) as the question bank was limited and the design of the examination had been dictated by the Supreme Court of India in Sanjiv Gupta vs Union of India (2005)1SCC45. He submitted that if two or three question papers were revealed, the Respondent-public authority would not have any further questions which it could ask in the examination. The PIO also argued that a larger public interest would be served by not disclosing the question papers and answer keys. As regards query 3, he stated that he was willing to provide the answer sheets so long as the Appellant applied for them in accordance with the procedure set out by NBE.

On the other hand, Yadav, the appellant, argued that he required the question papers along with the answer keys to determine whether he was properly marked or not.

The Bench reserved its order.

During the hearing on 27 December 2011, Mr Gandhi, the then CIC, reiterated that the right to information is a fundamental right of the citizens of India. It is premised on disclosure being the norm, and refusal, the exception. Further, it is legally established that information requested for under the RTI Act may be exempt from disclosure in accordance with Sections 8 and 9 only, and no other exemptions can be claimed while rejecting a demand for disclosure. Moreover, under Section 6(2) of the RTI Act, an applicant is not required to give any reason for requesting the information.

The PIO described the background to the Foreign Medical Graduates Examination (FMGE) Screening Test. He also referred to certain orders of the Supreme Court including in (2002) (3SCC696 dated 08/03/2002) wherein directions were issued in respect of Foreign Medical Graduates who had applied for registration with the Medical Council of India (MCI). Further, in Sanjeev Gupta vs Union of India (2005)(1SCC45) it was observed that MCI was the best judge to decide whether a person was duly qualified to practice medicine in India. The Court noted that as regards the FMGE screening test, MCI had concluded that post-disintegration of USSR, due to serious aberrations in the recruitment system and admission of students in institutions located in Russia, there was a decline in the standard of medical education in these countries. Consequently, keeping in view the larger public interest and need to main a certain standard for students passing from these institutions, MCI decided that such students would be required to do an internship for a year as well as qualify for the said screening test before they were given permanent registration in India.

Mr Gandhi said, "The above mentioned rulings lay down the importance of the screening test and the objectives behind it. This Bench however, is of the view that they deal with a different subject-matter and may not be relevant to determine whether the denial of information in the present matter was justified under the RTI Act and the specific exemptions contained therein."

The PIO has argued that if the information sought is revealed, then it is liable to be grossly abused and comprise the confidentiality of the examination process. The syllabus of the screening test was judicially approved and fixed by the Supreme Court. Further, the NBE was required to frame the questions for the Screening Test within the parameters fixed and only a limited number of permutations/combinations were possible limiting the number of questions. The PIO also submitted that the FMG Exam was conducted in public interest to screen the academic competence of professionals to whom the lives of prospective patients would be entrusted.

The Bench said, "It is pertinent to mention that the PIO has not cited any exemption in Sections 8 or 9 of the RTI Act to deny the information. This is clearly contrary to the legal position well-established in this regard. Moreover, the Bench is of the considered opinion that the arguments raised by the PIO do not attract any of the exemptions under Section 8 of the RTI Act. In the functioning of the government and other like authorities including the NBE public authority, there may be various instances where certain documents, records, procedures, etc have been treated as confidential and at times, explicitly so provided. However, with the advent of the RTI Act, such information has to be provided subject only to the exemptions of the RTI Act viz Sections 8 and 9. It may not be out of place to mention that where a test is conducted to screen the academic competence of professionals who are to be given permanent registration as medical practitioners, the questions set in such a test should necessarily be of a high standard testing the knowledge and competence of such persons, and not be mere repetitions from a limited question bank. The Bench is unable to agree with the PIO's arguments."

"At this juncture," Mr Gandhi said, "it must be noted that Section 9 of the RTI Act may be claimed as an exemption from disclosure of information where such disclosure would infringe a copyright subsisting in a person other than the State. Given that the FAA has already observed inter alia that the information sought is the intellectual property of NBE, Section 9 of the RTI Act is not applicable to the instant matter."

As regards query 3, the PIO specifically submitted that he was willing to provide the answer sheets so long as the appellant applied for them in accordance with the procedure set out by NBE.

Mr Gandhi said, "Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Given the above, two scenarios may be envisaged:

1. An earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under the RTI Act. If the PIO has received a request for information under the RTI Act, the information shall be provided to the citizen as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; and

2. An earlier law/ rule whose provisions pertain to furnishing of information but is inconsistent with the RTI Act: Where there is inconsistency between the law/ rule and the RTI Act in terms of access to information, then Section 22 of the RTI Act shall override the said law/ rule and the PIO would be required to furnish the information as per the RTI Act only."

"The procedure set out by NBE as well as the RTI Act coexists and therefore, it is for the citizen to determine which route she would prefer for obtaining the information. The right to information available to the citizens under the RTI Act cannot be denied where such citizen chooses to exercise such right, as has been done by the PIO in the instant case," Mr Gandhi said.

He said, "If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only. In view of the same, the Bench rejects the PIO's contention."

While allowing the appeal the Bench directed the PIO to provide the information on queries 1, 2 and 3 to Yadav, the appellant, before 20 January 2012.  

CENTRAL INFORMATION COMMISSION

Decision No. CIC/SG/A/2011/002724/16593

http://ciconline.nic.in/cic_decisions/CIC_SG_A_2011_002724_16593_M_72963.pdf

Appeal No. CIC/SG/A/2011/002724

Appellant                                         : Saurabh Yadav,

                                                            Sector-46, Gurgaon,

                                                            Haryana-122003

Respondent                                     : Dinesh Chand,

                                                            Public Information Officer &

                                                            Deputy Director,

                                                            National Board of Examinations,

                                                            M/o Health and Family Welfare,

                                                            Ansari Nagar, New Delhi-110029