# A. Pavitra v. Union of India & Ors

- **Citation:** (2015) 1 ILRA 103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-15
- **Case number:** Civil Misc. Writ Petition No. 60338 of 2014
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-pavitra-v-union-of-india-ors-43070
- **Pages:** 12

## Headnote

Right to Information Act-2005-Section21(h)-Public authority-whether the council
for Indian School certificate examination is
public authority to provide information
under R.T.I?-held-'No'.
Held: Para-17 & 25

## Text

_Characters 0–39,861 of 41,193. This is a partial read: ask again with offset=39861 for what follows._

1 All] A. Pavitra Vs. Union of India & Ors.
103
In view of sub section 3 of section 27, any
incorrect incorporation has to be corrected
under the provisions of the U.P. Land
Revenue
Act,
if
the
consolidation
operations have come to a close.
14. Accordingly and for the reasons
given above, I find no illegality in the
impugned orders.
15. The writ petition is devoid of
merits and is accordingly dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2014
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 60338 of 2014
alongwith W.P. NO. 60738 of 2014
A. Pavitra
...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Mrs. Swati Agarwal
Counsel for the Respondents:
A.S.G.I., Sri Pratik J. Nagar
Right to Information Act-2005-Section21(h)-Public authority-whether the council
for Indian School certificate examination is
public authority to provide information
under R.T.I?-held-'No'.
Held: Para-17 & 25
17.
In view of the aforesaid observations,
this Court finds that the Board is not covered
within the definition clause 2(h), and
consequently, it is not under any obligation
to provide the information, as sought by the
petitioners, under the RTI Act.
25. Thus, in view of the discussions
aforesaid, I am of the considered opinion
that the respondent Board is under no
obligation to provide the answer scripts
to the petitioners, in respect of the
examination conducted by the Board,
and the relief prayed for is not liable to
be granted to them. Consequently, the
writ petition fails and is dismissed.
Case Law discussed:
[(2011) 8 SCC 497]; [1989 (2) SCC 691];
[2002 5 SCC 111]; [2013 (136) FLR 86]; [2013
(1) SCC 745]; [(2012) 13 SCC 61]; [(1984) 4
SCC 27]; 2008 (72) AIC 555.
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
1.

The
question
requiring
consideration of this Court, in the present
writ petition, is as to whether "The
Council for Indian School Certificate
Examinations", (hereinafter referred to as
the 'Board') is a public authority, in terms
of
Section
2(h)
of
the
Right
to
Information
Act,
2005,
(hereinafter
referred to as the 'Act') ?, and whether it is
obliged, in law, to provide the information
sought by the students, who have
appeared in the examination conducted by
the Board ?
2. The petitioners are students, who
are dissatisfied with the marks awarded to
them by the Board, in the examinations
conducted by the said Board. Applications
were, accordingly, moved under the Right
to Information Act with the prayer that
petitioners be supplied copies of the
answer scripts, which was not bestowed
any consideration, and consequently, the
present writ petition has been filed for a
direction upon the Board, to provide the
information sought under the RTI Act.
3.
I have heard Mrs. Swati Agrawal
and Sri Atul Kumar Tiwari, learned counsel
for the petitioners; Sri J. Nagar, learned
104
 INDIAN LAW REPORTS ALLAHABAD SERIES
Senior Counsel, assisted by Sri Pratik J.
Nagar, learned counsel for the respondent
nos.2 and 3, and have also gone through the
materials brought on record.
4.
Learned counsel for the Board, at
the very outset, raised an objection that the
Board is not a 'public authority', in view of
Section 2(h) of the Act, and consequently, it
is not required to provide the information
sought by the petitioners, under the Act.
Substantiating the objection, Sri Nagar
submits that the Board is a society registered
under the provisions of the Societies
Registration Act, 1860, and is not receiving
any financial grant or aid from the Central or
the State Government. He further submits
that Board is not a creation of any Act of
Legislature,
and
therefore,
necessary
ingredients to hold the Board as a 'public
authority', under Section 2(h) of the Act, are
lacking, and consequently, the prayer made
in the writ petition is not liable to be granted.
5. Petitioners have come up with three
fold submissions to counter the objection of
the Board. Firstly, it is contended that the
Parliament has enacted the Delhi School
Education Board Act, 1973, (hereinafter
referred to as the 'Act of 1973'), which refers
to the Board as one of the bodies recognized
for holding public examination, and therefore,
the Board is covered under Section 2(h) of the
Act. Secondly, it is urged that the Board since
is conducting public examination, therefore, it
is enjoined to provide information sought by
virtue of the orders passed by the Apex Court
in Central Board of Secondary Education and
Another Vs. Aditya Bandopadhyay and others
[(2011) 8 SCC 497]. Lastly, it is contended
that the Board, otherwise, consists of a body
of men performing public duty, and therefore,
in view of the law laid down by the Supreme
Court in Anandi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust & Ors Vs. V.R.
Rudani [1989 (2) SCC 691], as reiterated in
Pradeep Biswas Vs. Institute of Chemical
Biology [2002 5 SCC 111], and in Ramesh
Ahluwalia Vs. State of Punjab & Ors. [2013
(136) FLR 86], the Board is an authority
within the meaning of Article 226 of the
Constitution of India, and therefore, the
directions sought can be issued against it.
6.
The claim of the petitioners,
raised herein, is for a direction upon the
respondent Board to provide answer
scripts of the Board examination to the
petitioners under the RTI
Act.
A
direction, as prayed for by the petitioners,
can be issued only if the Board qualifies
to be a public authority, in terms of
Section 2(h) of the Act. Section 2(h) of
the Right to Information Act, 2005, is
reproduced:-
"2.(h) "public authority" means any
authority or body or institution of selfgovernment 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,
directly
or
indirectly by funds provided by the
appropriate Government;"
7. The purpose of the Act of 2005 was
the subject matter of consideration by the
Apex Court in Namit Sharma Vs. Union of
India [2013 (1) SCC 745], wherein in Para 29,
Apex Court was pleased to observe as under:-
1 All] A. Pavitra Vs. Union of India & Ors.
105
"29. In terms of the Statement of Objects
and Reasons of the Act of 2002, it was stated
that this law was enacted in order to make the
Government
more
transparent
and
accountable to the public. It was felt that in
the present democratic framework, free flow
of information for citizens and nongovernment institutions suffers from several
bottlenecks including the existing legal
framework, lack of infrastructure at the grassroot level and an attitude of secrecy within the
civil services as a result of the old framework
of rules. The Act was to deal with all such
aspects. The purpose and object was to make
the Government more transparent and
accountable to the public and to provide,
"freedom to every citizen to secure
access to information under the control of
public authorities, consistent with public
interest, in order to promote openness,
transparency
and
accountability
in
administration and in relation to matters
connected therewith or incidental thereto"."
(emphasis supplied)
8.
Scheme of the Act, as well as the
definition of 'public authority' was again
examined by the Apex Court in Bihar Public
Service Commission Vs. Saiyed Hussain
Abbas Rizwi and another [(2012) 13 SCC
61]. Paras 12 to 15 of the judgment are
relevant and, thus, are reproduced:-
"12. Right to information is a basic
and celebrated fundamental/basic right
but is not uncontrolled. It has its
limitations. The right is subject to a dual
check. Firstly, this right is subject to the
restrictions inbuilt within the Act, and
secondly, the constitutional limitations
emerging
from
Article
21
of
the
Constitution. Thus, wherever in response
to an application for disclosure of
information, the public authority takes
shelter under the provisions relating to
exemption,
non-applicability
or
infringement
of
Article
21
of
the
Constitution,
the
State
Information
Commission has to apply its mind and
form an opinion objectively if the
exemption claimed for was sustainable on
facts of the case.
13. Now, we have to examine whether
the Commission is a public authority within
the meaning of the Act. The expression
"public authority" has been given an
exhaustive definition under Section 2(h) of
the Act as the legislature has used the word
"means" which is an expression of wide
connotation. Thus, "public authority" is
defined as any authority or body or
institution of the Government, established or
constituted by the Government which falls in
any of the stated categories under Section
2(h) of the Act. In terms of Section 2(h)(a), a
body or an institution which is established or
constituted by or under the Constitution
would be a public authority. Public Service
Commission is established under Article 315
of the Constitution of India and as such there
cannot be any escape from the conclusion
that the Commission shall be a public
authority within the scope of this section.
14. Section 2(f) again is exhaustive in nature.
The legislature has given meaning to the
expression "information" and has stated that it
shall mean any material in any form including
papers, samples, data material held in
electronic form, etc. Right to information under
Section 2(j) means the "right to information"
accessible under this Act which is held by or
under the control of any public authority and
includes the right to inspection of work,
documents, records, taking notes, extracts,
taking certified sample of materials, obtaining
information in the form of diskettes, floppies
and video cassettes, etc. The right sought to be
exercised and information asked for should fall
within the scope of "information" and "right to
information" as defined under the Act.
106
 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Thus, what has to be seen is whether
the information sought for in exercise of the
right to information is one that is permissible
within the framework of law as prescribed
under the Act. If the information called for
falls in any of the categories specified under
Section 8 or relates to the organisations to
which the Act itself does not apply in terms of
Section 24 of the Act, the public authority can
take such stand before the Commission and
decline to furnish such information. Another
aspect of exercise of this right is that where
the information asked for relates to thirdparty information, the Commission is required
to follow the procedure prescribed under
Section 11 of the Act."
9. A public authority has been defined
in the Act to mean any authority or body or
institution of self-government, established or
constituted,- (i) by or under the constitution;
(ii) by any other law made by Parliament;
(iii) by any other law made by State
Legislature; (iv) by notification issued or
order made by appropriate Government, and
includes a body owned, controlled or
substantially financed and also a nongovernment
organization,
substantially
financed, directly or indirectly by the funds
provided by the appropriate Government.
10.
This Court, thus, is required to
determine as to whether the Board is covered
under the definition of 'public authority',
aforesaid. From the materials brought on
record before this Court, it is apparent that
the respondent Board does not fall in any of
the first three contingencies, inasmuch as it
has not been established or constituted by or
under the constitution, by any other law
made by Parliament, or by any other law
made by State Legislature. There is further
no notification or order of the appropriate
Government, brought on record before this
Court, bringing the Board under the Right to
Information Act. The respondent Board has
categorically stated that it receives no
financial support, directly or indirectly, by
Central or the State Government, and
therefore, it is not financed by the appropriate
Government, which fact has not been
effectively denied. It is undisputed that the
respondent Board is a society registered
under the provisions of the Societies
Registration Act, 1860, and its bye-laws
provides that it functions as an independent,
autonomous, juristic person.
11. The name of the society has
been specified in Clause 1 of the
Memorandum and Articles of Association
of the Board, which reads as under:-
"1.
The name of the Society is:
COUNCIL FOR THE INDIAN SCHOOL
CERTIFICATE
EXAMINATIONS
(hereinafter called the "Society")."
12. The society has its registered
office at Pragati House, 3rd Floor, 47-48
Nehru Place, New Delhi-110019. The
members of the society have also been
specified in Clause 5 of the Memorandum
and Articles of Association of the Board,
which reads as under:-
"5. (i) The members of the Society
shall be as follows:-
(a) The Chairman who shall be
appointed by the Society.
(b) Two members nominated by the
Government or two Assessors (observers)
of the Government of India, whichever is
preferred by that Government.
(c) The Director of Education/Public
Instruction (or his deputy) of the States in
which there are schools affiliated for the
examinations conducted by the Society.
(d)
One
representative
of
the
Association of Indian Universities.
1 All] A. Pavitra Vs. Union of India & Ors.
107
(e) Not more than six persons to be coopted by the Executive Committee of the
Council.
(f) Two representatives of the InterState Board for Anglo-Indian Education.
(g) Fourteen Principals of affiliated
schools who shall be selected as follows:-
(i)Six, of whom two shall be ladies,
elected by the Association of Heads of
Anglo-Indian Schools in India.
(ii)Two, elected by the Indian Public
Schools' Conference.
(iii)Six, elected by the Association of
Schools for the Indian School Certificate
Examination.
Provided that the maximum number
of representatives of any one of the three
organisations mentioned in (g) (i), (ii)
and (iii) above shall not exceed six:
Provided further that if one or more of
the categories mentioned in (i) (b) to (g)
above are not represented on the Council
this shall not prevent the Council from
functioning.
5. (ii) The term of office of members
specified under Clauses 5(i) (a), (d), (e),
(f) and (g) sub clause (i) (ii) and (iii) shall
be for three years:
Provided that when a member is appointed
in place of another before expiry of the term of
membership of the latter he shall hold office for
the residue of the term of the original member,
Provided
further
that
members
whose term has expired shall be eligible
for re-nomination/re-cooption.
5. (iii) A member shall cease to be a
member of the Society:
(a) on his resignation to be signified
in writing to the Secretary;
(b) on the passing of a resolution by the
majority of the members of the Society at a
General meeting present in person or by
proxy, that he should cease to be a member;
(c) on a notification from the
Government/organisation
which
has
nominated/elected the member that the
member has ceased to represent that
Government/organisation.
(iv) Disqualified members shall not
be entitled to vote.
(v)
Persons,
institutions
and
organisations in known sympathy with the
objects of the Society may be admitted as
Associate members with the approval of
the Society on such terms as the Society
may determine. As Associate members
they shall have no right to vote at a
General Body Meeting."
13.
Sri Nagar submits that only two
observers have been appointed by the
Government of India. Director of Education
(or his deputy), of the States, in which there
are schools affiliated, for the examinations
conducted by the society, is merely a
member. The association of governmental
authorities does not change the nature of
society itself, which remains a private juristic
person. The society functions independently
in accordance with its bye-laws. The nature
of the Board, which is a society, therefore,
does not change on account of the aforesaid
constitution, and such association would not
bring the Board within the definition of
Clause 2(h), if it otherwise is not covered.
14. Learned counsel for the petitioners
contend that Board qualifies to be a 'public
authority, as it finds specific mention in the
Delhi School Education Board Act, 1973,
enacted by the Parliament. The definition of
Clause 2(s) of the Act of 1973, defines public
examination in the following words:-
"2.(s) "public examination" means an
examination conducted by the Central
Board of Secondary Education, Council
for
Indian
School
Certificate
Examinations or any other Board which
may hereafter be established for the
purpose,
and
recognised
by
the
108
 INDIAN LAW REPORTS ALLAHABAD SERIES
Administrator
or
any
other
officer
authorised by him in this behalf;"
15.
Apart from the definition clause,
attention of the Court has not been invited to
any other provision of the Act of 1973,
which
may
support
the
petitioners'
contention. The fact that the examination
conducted by the Board is recognized as a
public examination, would not be a
determining factor. Mere recognition of the
examination conducted by the Board, as a
public examination, would not mean that
Board becomes a 'public authority' within the
meaning of Section 2(h) of the Act. It is just
that the examination conducted by the Board
is recognized by the Act of 1973, and
nothing further can be added to it. Therefore,
this Court is of the opinion that definition
contained in Clause 2(g) of the Act of 1973,
would not bring the 'Board' within the
definition of Clause 2(h) of the Act.
16. The constitution of the Board
has also been specified in the bye-laws,
which have been brought on record. Sri
Nagar has also placed reliance upon a
Division Bench judgment of the Delhi
High Court in LPA No. 617 of 2011,
dated 24th July, 2012. Paras 2 and 3 of
the said judgment is reproduced:-
"2.
Upon
going
through
the
impugned decision we find that the
learned Single Judge has been persuaded
to hold that the Council was a public
authority merely on the basis of the
constitution of the membership of the
Council. It is an admitted position that the
Council is a registered society under the
Societies Registration Act, 1860. There is
also a letter on record issued on
24.03.2006 by the Ministry of Human
Resource Development L.P.A. 617/2011
Page 2 of 4 which indicates clearly that
the Council is not owned or controlled by
the
Ministry
of
Human
Resource
Development. Therefore, according to the
learned counsel for the petitioner since
the Council is neither owned nor it is
substantially financed and, because of the
clear
statement
made
in
the said
communication dated 24.03.2006, nor is it
controlled by Central Government, the
question of the Council being regarded as
public authority does not arise at all.
3. There is yet another aspect of the
matter. The definition clause contained in
Section 2 (h) of the said Act has reference
to 'appropriate government'. Appropriate
Government could either mean the
Central
Government
or
the
State
Government.
Clearly
the
Central
Government has indicated that it does not
control the Council. Insofar as State
Governments are concerned, only one
person, namely, the Director of Education
of that particular State would be a
Member of the Society. Therefore, no
particular State would have control over
the Council. Consequently, there is prima
facie some merit in what the learned
counsel for the petitioner has contended
with regard to the Council not falling
within the definition of public authority
under Section 2 (h) of the said Act. "
Although,
the
Division
Bench
judgment of the Delhi High Court does
not answer the question as to whether the
Board is a 'public authority' or not, under
the Act of 2005, yet the facts throw light
upon the nature of the constitution of the
Society itself. In view of the discussions
made above, I am of the considered
opinion that the Board does not qualify to
be a 'public authority', in view of Section
2(h) of the Act, on account of its
recognition under Section 2 (g) of the
Delhi School Education Board Act, 1973,
1 All] A. Pavitra Vs. Union of India & Ors.
109
or on account of the nature of constitution
of the Board itself.
17. In view of the aforesaid
observations, this Court finds that the
Board is not covered within the definition
clause 2(h), and consequently, it is not
under any obligation to provide the
information, as sought by the petitioners,
under the RTI Act.
18. Coming to the second limb of
petitioners' submission that they are
entitled to the relief prayed for, on
account of the judgment in Central Board
of Secondary Education and Another
(supra), it is to be seen that the Apex
Court had the occasion to examine the
right
of
a
student
to
obtain
information/answer scripts, under the act,
in the context of public examination
conducted by the Central Board of
Secondary Education, New Delhi. The
Apex Court considered the definition of
"information" in Section 2(f) of the RTI
Act. The question raised therein was
regarding the scope of Section 8 of the
Act and protection claimed by the CBSE
thereunder. Having considered the said
aspect, Apex Court held as under in Paras
26 and 27 of the said judgment:-
"
26.
The
examining
bodies
(universities, Examination Boards, CBSE,
etc.) are neither intelligence nor security
organisations and therefore the exemption
under Section 24 will not apply to them.
The disclosure of information with
reference to answer books does not also
involve infringement of any copyright and
therefore Section 9 will not apply.
Resultantly, unless the examining bodies
are able to demonstrate that the evaluated
answer books fall under any of the
categories of exempted "information"
enumerated in clauses (a) to (j) of subsection (1) of Section 8, they will be
bound
to
provide
access
to
the
information and any applicant can either
inspect the document/record, take notes,
extracts or obtain certified copies thereof.
27. The examining bodies contend
that the evaluated answer books are
exempted from disclosure under Section
8(1)(e) of the RTI Act, as they are
"information"
held
in
its
fiduciary
relationship. They fairly conceded that
evaluated answer books will not fall
under any other exemptions in sub-section
(1) of Section 8. Every examinee will have
the right to access his evaluated answer
books, by either inspecting them or take
certified
copies
thereof,
unless
the
evaluated answer books are found to be
exempted under Section 8(1)(e) of the RTI
Act."
(emphasis supplied)
19. Hon'ble Apex Court also held
that the examining bodies do not hold the
evaluated answer books in a fiduciary
relationship, and therefore, the exemption
claimed under Section 8(1)(e) of the Act
is not available to the examining body,
with reference to the evaluated answer
books. Apex Court, however, held that the
disclosure with regard to details of the
examiner etc. is exempted from the
disclosure under Section 8(1)(g) of the
Act. Paras 52 to 55 of the judgment in
Central Board of Secondary Education
and Another (supra) are reproduced:-
" 52. When an examining body
engages the services of an examiner to
evaluate the answer books, the examining
body expects the examiner not to disclose
the information regarding evaluation to
anyone other than the examining body.
Similarly the examiner also expects that
110
 INDIAN LAW REPORTS ALLAHABAD SERIES
his name and particulars would not be
disclosed to the candidates whose answer
books are evaluated by him. In the event
of such information being made known, a
disgruntled examinee who is not satisfied
with the evaluation of the answer books,
may act to the prejudice of the examiner
by attempting to endanger his physical
safety. Further, any apprehension on the
part of the examiner that there may be
danger to his physical safety, if his
identity becomes known to the examinees,
may come in the way of effective
discharge of his duties. The above applies
not only to the examiner, but also to the
scrutiniser,
co-ordinator
and
head
examiner who deal with the answer book.
53.
The
answer
book
usually
contains not only the signature and code
number of the examiner, but also the
signatures and code number of the
scrutiniser/co-ordinator/head
examiner.
The information as to the names or
particulars
of
the
examiners/coordinators/scrutinisers/head
examiners
are therefore exempted from disclosure
under Section 8(1)(g) of the RTI Act, on
the ground that if such information is
disclosed, it may endanger their physical
safety. Therefore, if the examinees are to
be given access to evaluated answer
books either by permitting inspection or
by granting certified copies, such access
will have to be given only to that part of
the answer book which does not contain
any information or signature of the
examiners/co-ordinators/
scrutinisers/head examiners,
exempted
from disclosure under Section 8(1)(g) of
the RTI Act. Those portions of the answer
books
which
contain
information
regarding
the
examiners/coordinators/scrutinisers/head examiners or
which may disclose their identity with
reference to signature or initials, shall
have to be removed, covered, or otherwise
severed from the non-exempted part of the
answer books, under Section 10 of the RTI
Act.
54. The right to access information
does not extend beyond the period during
which the examining body is expected to
retain the answer books. In the case of
CBSE, the answer books are required to
be maintained for a period of three
months and thereafter they are liable to
be disposed of/destroyed. Some other
examining bodies are required to keep the
answer books for a period of six months.
The fact that right to information is
available in regard to answer books does
not mean that answer books will have to
be maintained for any longer period than
required under the rules and regulations
of the public authority. The obligation
under the RTI Act is to make available or
give access to existing information or
information which is expected to be
preserved or maintained.
55. If the rules and regulations
governing
the
functioning
of
the
respective
public
authority
require
preservation of the information for only a
limited
period,
the
applicant
for
information will be entitled to such
information
only
if
he
seeks
the
information when it is available with the
public authority. For example, with
reference to answer books, if an examinee
makes an application to CBSE for
inspection or grant of certified copies
beyond three months (or six months or
such
other
period
prescribed
for
preservation of the records in regard to
other examining bodies) from the date of
declaration of results, the application
could be rejected on the ground that such
information is not available. The power of
the
Information
Commission
under
Section 19(8) of the RTI Act to require a
1 All] A. Pavitra Vs. Union of India & Ors.
111
public authority to take any such steps as
may be necessary to secure compliance
with the provision of the Act, does not
include a power to direct the public
authority to preserve the information, for
any period larger than what is provided
under the rules and regulations of the
public authority."
(emphasis supplied)
20. In the judgment aforesaid of the
Apex Court, the constitution of CBSE
Board as being covered by under Section
2(h) of the Act was not in issue. Since
CBSE Board functions under the control
of the Ministry of Human Resource
Development, therefore, on account of its
constitution
and
functioning,
it
undisputedly
was
covered
by
the
definition of 'public authority', under
Section 2(h), and no occasion arose to
consider as to whether the RTI Act itself
is applicable upon the CBSE Board or not
? However, a word of caution was
mentioned in Para 68 of the aforesaid
judgment of the Apex Court to the
following effect:-
"68. In view of the foregoing, the
order of the High Court directing the
examining bodies to permit examinees to
have inspection of their answer books is
affirmed, subject to the clarifications
regarding the scope of the RTI Act and
the safeguards and conditions subject to
which "information" should be furnished.
The appeals are disposed of accordingly."
(emphasis supplied)
21. Therefore, the question involved
in the present case as to whether the
Board herein is a public authority, under
Section 2(h) of the Act, did not arise for
consideration in the aforesaid judgment of
the Apex Court and the petitioners,
consequently, cannot derive any strength
from the observations made therein.
22. Coming to the last submission of
the petitioners that the Board is a body of
men performing public duty, would be
relevant, only when it is to be examined
as to whether the Board is an authority,
and is amenable to exercise of writ
jurisdiction, under Article 226 of the
Constitution of India. The considerations
for an authority to be included in the
definition of 'other authority', for the
purposes of invoking jurisdiction under
Article 226 of the Constitution of India, is
entirely distinct, and has no relevance for
the question, which has come up for
consideration in the instant case. The
petitioners herein are seeking relief under
the Act, and therefore, what is relevant to
be determined is as to whether the Board
is included within the definition of the
'public authority' or not. Therefore, this
Court is not required to answer the
question as to whether the Board would
qualify to be an authority within the
meaning of Article 12 of the Constitution
of India or to examine as to whether it is a
body of men performing public duty, so
as to make it subservient to the exercise of
jurisdiction under Article 226 of the
Constitution of India.
23. Even if the Board is amenable to
exercise of writ jurisdiction under Article
226 of the Constitution of India, even
then, a direction to produce the answer
books or to re-evaluate it, cannot be
issued, in view of law settled by the Apex
Court in Maharashtra State Board of
Secondary
and
Higher
Secondary
Education Vs. Paritosh Bhupesh Kumar
Sheth etc. [(1984) 4 SCC 27]. There is no
provision or rules and regulations of the
Board, which permits the petitioners to
112
 INDIAN LAW REPORTS ALLAHABAD SERIES
secure the information from it, and
therefore, in absence of the applicability
of the RTI Act, the judgment aforesaid of
the Apex Court would be attracted. The
said decision was extensively referred to
by the Apex Court in Central Board of
Secondary Education and Another Vs.
Aditya Bandopadhyay and others (supra)
in Paras 28 to 34, which is reproduced:-
"28. In Maharashtra State Board1, this
Court was considering whether denial of reevaluation of answer books or denial of
disclosure by way of inspection of answer
books, to an examinee, under Rules 104(1)
and (3) of the Maharashtra Secondary and
Higher Secondary Board Rules, 1977 was
violative of the principles of natural justice
and violative of Articles 14 and 19 of the
Constitution of India. Rule 104(1) provided
that no re-evaluation of the answer books
shall be done and on an application of any
candidate verification will be restricted to
checking whether all the answers have been
examined and that there is no mistake in the
totalling of marks for each question in that
subject and transferring marks correctly on
the first cover page of the answer book. Rule
104(3) provided that no candidate shall claim
or be entitled to re-evaluation of his answer
books or inspection of answer books as they
were treated as confidential.
29. This Court while upholding the
validity of Rule 104(3) held as under:
(Maharashtra State Board case1, SCC pp.
38-39 & 42, paras 12, 14, 16 & 15)
"12. ... the ''process of evaluation of
answer
papers
or
of
subsequent
verification of marks' under clause (3) of
Regulation 104 does not attract the
principles of natural justice since no
decision-making process which brings
about adverse civil consequences to the
examinees is involved. The principles of
natural justice cannot be extended beyond
reasonable and rational limits and cannot be
carried to such absurd lengths as to make it
necessary that candidates who have taken a
public examination should be allowed to
participate in the process of evaluation of
their performances or to verify the correctness
of the evaluation made by the examiners by
themselves conducting an inspection of the
answer books and determining whether there
has been a proper and fair valuation of the
answers by the examiners. ...
* * *
14. ... So long as the body entrusted
with the task of framing the rules or
regulations acts within the scope of the
authority conferred on it, in the sense that
the rules or regulations made by it have a
rational nexus with the object and
purpose of the statute, the court should
not concern itself with the wisdom or
efficaciousness
of
such
rules
or
regulations....
* * *
16. ... The legislature and its
delegate are the sole repositories of the
power to decide what policy should be
pursued in relation to matters covered by
the Act and there is no scope for
interference by the court unless the
particular provision impugned before it
can be said to suffer from any legal
infirmity, in the sense of its being wholly
beyond the scope of the regulationmaking power or its being inconsistent
with any of the provisions of the parent
enactment or in violation of any of the
limitations imposed by the Constitution."
* * *
"15. ... it was perfectly within the
competence of the Board, rather it was its
plain duty, to apply its mind and decide as
a matter of policy relating to the conduct
of the examination as to whether
disclosure and inspection of the answer
books
should
be
allowed
to
the
1 All] A. Pavitra Vs. Union of India & Ors.
113
candidates, whether and to what extent
verification of the result should be
permitted after the results have already
been announced and whether any right to
claim revaluation of the answer books
should be recognised or provided for. All
these are undoubtedly matters which have
an intimate nexus with the objects and
purposes of the enactment and are,
therefore, within the ambit of the general
power
to
make
regulations...."
(Maharashtra State Board case1, SCC p.
41, para 15)
30. This Court in Maharashtra State
Board1 held that Regulation 104(3) cannot be
held to be unreasonable merely because in
certain stray instances, errors or irregularities
had gone unnoticed even after verification of
the answer books concerned according to the
existing procedure and it was only after
further scrutiny made either on orders of the
court or in the wake of contentions raised in
the petitions filed before a court, that such
errors or irregularities were ultimately
discovered. This Court reiterated the view that
"the test of reasonableness is not applied in
vacuum but in the context of life's realities"
and
concluded
that
realistically
and
practically, providing all the candidates
inspection of their answer books or reevaluation of the answer books in the
presence of the candidates would not be
feasible.
31. Dealing with the contention that
every student is entitled to fair play in
examination and receive marks matching his
performance, this Court held: (Maharashtra
State Board case1, SCC p. 31)
"What constitutes fair play depends upon
the facts and circumstances relating to each
particular given situation. If it is found that
every possible precaution has been taken and
all necessary safeguards provided to ensure
that
the
answer
books
inclusive
of
supplements are kept in safe custody so as to
eliminate the danger of their being tampered
with, [and] that the evaluation is done by the
examiners applying uniform standards with
checks and cross-checks at different stages
and
that
measures
for
detection
of
malpractice, etc. have also been effectively
adopted, in such cases it will not be correct on
the part of the courts to strike down the
provision prohibiting revaluation on the
ground that it violates the rules of fair play. It
appears that the procedure evolved by the
Board for ensuring fairness and accuracy in
evaluation of the answer books has made the
system as foolproof as can be possible and is
entirely satisfactory. The Board is a very
responsible body. The candidates have taken
the examination with full awareness of the
provisions contained in the regulations and in
the declaration made in the form of
application for admission to the examination
they have solemnly stated that they fully agree
to abide by the regulations issued by the
Board. In the circumstances, when [we find
that] all safeguards against errors and
malpractices have been provided for, there
cannot be [said to be] any denial of fair play
to the examinees by reason of the prohibition
against asking for revaluation."
32. This Court in Maharashtra State
Board1 concluded that if inspection and
verification in the presence of the
candidates, or revaluation, have to be
allowed as of right, it may lead to gross
and indefinite uncertainty, particularly in
regard to the relative ranking, etc. of the
candidate,
besides
leading to utter
confusion on account of the enormity of
the labour and time involved in the
process.
This
Court
concluded:
(Maharashtra State Board case1, SCC pp.
56-57, para 29)
"29. ... the court should be extremely
reluctant to substitute its own views as to
what is wise, prudent and proper in relation to
academic matters in preference to those
114
 INDIAN LAW REPORTS ALLAHABAD SERIES
formulated by professional men possessing
technical expertise and rich experience of
actual day-to-day working of educational
institutions and the departments controlling
them. It will be wholly wrong for the court to
make a pedantic and purely idealistic
approach to the problems of this nature,
isolated from the actual realities and grassroot problems involved in the working of the
system and unmindful of the consequences
which would emanate if a purely idealistic
view as opposed to a pragmatic one were to
be propounded."
33. The above principles laid down in
Maharashtra State Board1 have been
followed and reiterated in several decisions of
this Court, some of which are referred to in
para 9 above. But the principles laid down in
the decisions such as Maharashtra State
Board1 depend upon the provisions of the
rules and regulations of the examining body.
If the rules and regulations of the examining
body provide for re-evaluation, inspection or
disclosure of the answer books, then none of
the principles in Maharashtra State Board1
or other decisions following it, will apply or
be relevant. There has been a gradual change
in trend with several examining bodies
permitting inspection and disclosure of the
answer books.
34. It is thus now well settled that a
provision barring inspection or disclosure of
the answer books or re-evaluation of the
answer books and restricting the remedy of
the candidates only to re-totalling is valid and
binding on the examinee. In the case of CBSE,
the provisions barring re-evaluation and
inspection contained in Bye-law 61, are akin
to Rule 104 considered in Maharashtra State
Board1. As a consequence if an examination
is governed only by the rules and regulations
of the examining body which bar inspection,
disclosure or re-evaluation, the examinee will
be entitled only for re-totalling by checking
whether all the answers have been evaluated
and further checking whether there is no
mistake in the totalling of marks for each
question and marks have been transferred
correctly to the title (abstract) page.