Punjab-Haryana High CourtState Bank Of India vs Central Information Commissioner And ... on 8 December, 2008Author:Hemant GuptaBench:Hemant GuptaIN 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
                                                         ....RespondentsCORAM:-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 followingC.W.P. No. 20566 of 2008                                     -2-information on 20.06.2007 under theRight 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 ofSection 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 fiduciaryrelationship, 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 personalinformation 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 ofSection 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 underSection 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 inSection 8(1)(e)is not synonymous with public authority which is as defined inSection 2(h) of the Act. A person as contemplated underSection 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 theGeneral Clauses Act,

can include a juristic entity but the person underSection 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 generallyC.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 underSection 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 underSection 8of 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