CBSE vs AK Kathpal – marks exempt from RTI

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th May, 2012
+ LPA No.1090/2011
% CENTRAL BOARD OF SECONDARY EDUCATION….Appellant
Through: Ms. Manisha Singh, Adv. for
Mr. Amit Bansal, Adv.
Versus
SH. ANIL KUMAR KATHPAL ….. Respondent
Through: Respondent in person.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. This intra-court appeal impugns the judgment dated 07.12.2011 of the
learned Single Judge dismissing W.P.(C) No.8532/2011 preferred by the
appellant. The said writ petition was filed by the appellant assailing the
order dated 27.09.2011 of the Central Information Commission (CIC)
allowing the appeal of the respondent.
2. The daughter of the respondent passed the Class X examination held
by the appellant in the year 2010 and her result declared by the appellant
was as under:
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SUB CODE SUB NAME GRADE GRADE POINT
101 ENGLISH COMM. A2 09
002 HINDI COURSE-A A1 10
041 MATHEMATICS A1 10
086 SCIENCE A1 10
087 SOCIAL SCIENCE A1 10
3. The respondent, under the provisions of the Right to Information Act,
2005, sought from the appellant the actual marks secured by his daughter in
each subject for the reason “this information will help me to identify her
week areas in studies and take timely action, so that she can pursue her
career after XII. I hereby certify that I will neither reveal the above
information to her nor put any pressure on her.”
4. The Information Officer of the appellant informed the respondent that
with the introduction of the grading system at secondary examination with
effect from the year 2010, the appellant had done away with intimating
marks and therefore the information sought could not be provided.
5. The respondent preferred the statutory first appeal which was
dismissed observing that:
i) the National Policy on Education 1986 and Programme of
Action 1992 had provided for recasting of the examination
system and suggested that grades be used in place of marks;
ii) that the National Curriculum Framework 2005 also envisaged
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an evaluation system which would grade the students on their
regular activities in the classroom and enable students to
understand and focus on their learning gaps and learn through
these as part of Formative Assessment;
iii). that the introduction of grades in the examination had been
debated by the appellant also and after holding countrywide
consultations and deliberations with eminent educationists and
experts, the nine point grading system had been introduced in
the secondary school examination from the year 2010;
iv). The system of declaring subject wise marks had thus been
replaced by subject wise grades and grade point;
v). the purpose of introducing the grading system was to take away
the frightening judgmental quality of marks, to lead to a stress
free and joyful learning environment and was intended to
minimize mis-classification of students on the basis of marks,
to eliminate unhealthy cut-throat competition and to reduce
societal pressure etc.
The order denying information as to marks was thus upheld.
6. The respondent pursued the matter before the CIC. It was the
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contention of the appellant before the CIC also that, to provide specific
marks would be contrary to the policy of introducing the grading system
and would undo the grading system. However the appellant, on enquiry by
the CIC, confirmed that the marks awarded were available with the
appellant in their data. The CIC held that since, the marks were available
with the appellant and since none of the exemptions under the RTI Act were
attracted to support the non disclosure thereof, the appellant was bound to
and directed to provide the information sought.
7. It was the argument of the appellant before the learned Single Judge
also that disclosure of the marks would dilute and defeat the grading system.
The learned Single Judge however held that since the respondent was
seeking disclosure of marks, only of his daughter and further since his
daughter who has since attained majority had also consented to the same
and since the respondent was not seeking disclosure of marks obtained by
other students and further since the appellant was possessed of the
information sought, it was required to disclose the same. It was further
observed that a student is entitled to know the marks secured by him / her.
8. Notice of this appeal was issued and the operation of the impugned
order stayed. The respondent appearing in person has been heard. Though
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opportunity was given to the appellant to file written arguments but no
written arguments were filed.
9. The documents filed by the appellant show that the appellant, vide its
letter dated 29.09.2009 to the Heads of all the Institutions affiliated to it,
while introducing the system of Grading at Secondary School level,
explained the evaluation process as under:
“2.3 In this system, student’s performance will be assessed
using conventional numerical marking mode, and the same will
be later converted into the grades on the basis of the pre-
determined marks ranges as detailed below:
MARKS RANGE GRADE GRADE POINT
91-100 A1 10.0
81-90 A2 9.0
71-80 B1 8.0
61-70 B2 7.0
51-60 C1 6.0
41-50 C2 5.0
33-40 D 4.0
21-32 E1 —
20 and below E2 —
The operational modalities were prescribed in the said letter as under:
“4. Operational Modalities
The student’s performance shall be assessed using
4.1
conventional method of numerical marking.
The ‘Grades’ shall be awarded to indicate the subject
4.2
wise performance.
The ‘Grades’ shall be awarded on a nine point scale as
4.3
per Table at para 2.3.
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4.4 Only subject wise grades shall be shown in the
“Statement of Subject wise Performance” to be issued
to all candidates.
4.5 Subject-wise percentile score / rank at the National level
shall be provided to the schools on demand.”
10. The appellant has also placed before us the judgment of Division
Bench of this Court in Independent Schools’ Federation of India (Regd.)
Vs. Central Board of Secondary Education 183(2011) DLT 211 upholding
the grading system introduced by the appellant and dismissing the challenge
thereto. The challenge to the grading system, in the said proceeding also
was inter alia on the ground that replacing marks by grades was only a
cosmetic change and would mar the quality of education and the concept of
grading was virtually an eye-wash. Needless to state that the said challenge
was also found to be without any basis and rejected.
11. What we find to have prevailed with the CIC and the learned Single Judge
is that, despite introduction of grading system, marks existed with the
appellant; it was held that once the information sought was available, there
could be no denial thereof. What also prevailed was that the respondent
was seeking marks only of his ward and not of other students and thus there
could be no objection to disclosure thereof. The CIC also observed that the
information sought was not exempt.
LPA No.1090/2011 Page 6 of 11
12. We are unable to agree; we feel that the CIC as well as the learned
Single Judge, by directing disclosure of „marks‟, in the regime of „grades‟
have indeed undone what was sought to be done by replacing marks with
grades and defeated the very objective thereof. The objective, in replacing
the marks with grades, as can be gathered from the documents on record,
was to grade students in a bandwidth rather than numerically; it was felt that
difference, between a student having 81% and a student having 89%, could
be owing to subjectivity in marking and there was no reason to otherwise
consider a bearer of 81 percentile to be inferior to a bearer of 89 percentile
and there was no reason to treat them differently. It was thus decided to
place both in grade A2 with grade point 9 as aforesaid. Though ideally, the
examiner in such cases ought to give both of them grade A2 only, without
giving them 81% and 89% as aforesaid but it appears that since the teachers
and examiners also, owing to the long past practice were used to marking
instead grading students, for their guidance, the range was prescribed as
aforesaid. Thus it appears that though the marks are available but in law
and fact they ought not to have been available. The marks appear to be
available with the appellant only owing to the examiners and teachers being
not immediately accustomed to grading and for their convenience.
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13. The question which arises is, whether the information which ought
not to have been there as per the changed policy upheld by the Court can be
treated as information within the meaning of the RTI Act. In our opinion
no. Information which is forbidden by law or information of a nature, if
disclosed, would defeat the provisions of any law or disclosure whereof is
opposed to public policy, cannot be regarded as „lawful‟ and is to be ignored
and no disclosure thereof can be made or directed to be made.
14. No doubt, as the CIC also has observed, none of the clauses of
Section 8, if literally interpreted, are attracted. However while interpreting a
statutory provision, we cannot shut our eyes to hard realities, to what was
sought to be achieved thereby and cannot in a pedantic manner allow the
literal interpretation to run amock and create a situation not intended by the
statute. Moreover, a reading of the provisions of the RTI Act in the manner
done by the CIC and the learned Single Judge would bring it in conflict with
other laws and notwithstanding the overriding effect given thereto by
Section 22 thereof, the first attempt has to be to harmonise its provisions
with other laws. Once a purposive interpretation is given to Section 8, it will
be found that information forbidden to be published [Section 8(1)(b)] and
information available in fiduciary relationship [Section 8(1)(e)] is exempt.
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In our opinion, even though there is no express order of any court of law
forbidding publication of marks [as is the want of Section 8(1)(b)] but the
effect of bringing the regime of grades in place of marks and of dismissal of
challenge thereto, is to forbid publication/disclosure of marks. Similarly, in
the evaluation process prescribed by appellant, for guidance of its
examiners, marks are only to arrive at a grade, perhaps as aforesaid to
acquaint the examiners with the grading system and as a transitory stage in
the shift from marks to grades.
15. The Supreme Court in Kailash Chand v. Dharam Das (2005) 5 SCC
375 reiterated that a statute can never be exhaustive and legislature is
incapable of contemplating all possible situations which may arise in future
litigation and in myriad circumstances and it is for the Court to interpret the
law with pragmatism and consistently with demands of varying situations.
The legislative intent has to be found out and effectuated. Earlier also in
Smt. Pushpa Devi v. Milkhi Ram (1990) 2 SCC 134 the same sentiment
was expressed by holding that law as creative response should be so
interpreted to meet the different fact situations coming before the court, for
Acts of Parliament were not drafted with divine prescience and perfect
clarity and when conflicting interests arise, the court by consideration of
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legislative intent must supplement the written word with force and life. Lord
Denning (in Seaford Estate Ltd. v. Asher (1949) 2 KB 481) observing that
the judge must consciously seek to mould the law so as to serve the needs of
time and must not be a mere mechanic, was quoted with approval.
16. The Supreme Court recently in The Institute of Chartered
Accountants of India v. Shaunak H. Satya (2011) 8 SCC 781, in the
context of the RTI Act itself held that in achieving the objective of
transparency and accountability of the RTI Act other equally important
public interests including preservation of confidentiality of sensitive
information, are not to be ignored or sacrificed and that it has to be ensured
that the revelation of information in actual practice, does not harm or
adversely affect other public interests including of preservation of
confidentiality of sensitive information. We have already held above that
disclosure of marks, which though exists with the appellant would amount
to allowing play to the policy earlier prevalent of marking the examinees.
Merely because the appellant/its examiners for the purpose of grading, first
mark the students would not compel this court to put at naught or to allow
full play to the new policy of grades.
17. No weightage can also be given to the submission of the respondent
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that the marks even if disclosed would not be used for any other purpose.
Such an offer cannot be enforced by the Court and the Court cannot on the
basis thereof allow disclosure of something which was not intended to exist
in the first place. The possibility of the respondent and his ward, in securing
admission and for other purposes using the said information to secure an
advantage over others cannot be ruled out.
18. We are therefore unable to agree with the reasoning of the CIC and of
the learned Single Judge and allow this appeal. We hold the information,
disclosure of which was sought, to be no information and also exempt from
disclosure. We allow this appeal as well as the writ petition preferred by the
respondent and set aside the order dated 27.09.2011 of the CIC.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 24, 2012
gsr
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