CW/12471/2012 of ALKA MATORIA Vs M.G.S. UNIVERSITY BIKANER and ORS on 21 December 2012

:ORDER

Alka MatoriaVs.

Maharaja Ganga Singh University & Ors.

D.B. Civil Writ Petition No.12471/2012

Date of Order:21[st] December 2012

PresentHON'BLE MR. JUSTICE DINESH MAHESHWARIHON'BLE MRS. JUSTICE NISHA GUPTA

Mr.Hemant Jagga, for the petitioner.Mr.D.D.Chitlangi, for the respondent.

Reportable BY THE COURT:(Per Hon'ble Dinesh Maheshwari,J.)

The petitioner, having pursued the Bachelor of Arts (B.A.)course with a college affiliated to the respondent No.1, MaharajaGanga Singh University, Bikaner ('the respondent-University'hereafter), has filed this writ petition in challenge to a conditionoccurring in the “Regulation for Obtaining Certified Copy of Answer-book under RTI Act-2005”, as framed by the respondent-Universityinsofar it requires payment of a non-refundable fee of Rs.1,000/- peranswer-book for obtaining certified copy thereof.

The factual aspects of the matter are not of dispute and couldbe taken note of, in brief, as follows: The petitioner, said to behaving in the background a good academic record, has beenpursuing her B.A. course as a regular student at Sri Atam VallabhJain Girls College, Sriganganagar, which is affiliated to therespondent-University, with the optional subjects: Political Science, English Literature and Philosophy. After having successfullycompleted Part-I and Part-II of the said course, the petitionerappeared in B.A. Part-III Examination held this year i.e., 2012; and inthe result declared by the respondent-University, she was awarded47 marks in English Literature Paper-I. Being dissatisfied with themarks so awarded, the petitioner sought re-evaluation of her answer-book of English Literature Paper-I; and, in the re-evaluation, hermarks were shown as reduced from 47 to 28.

After getting such unfavourable result in the re-evaluation, thepetitioner filed an application on 15.10.2012 with reference toSection 7(1) of the Right to Information Act, 2005 (‘the Act of 2005’hereafter) seeking certified copy of her answer-book of EnglishLiterature Paper-I with the application fee of Rs.10/-. Then, for theconcerned Public Information Officer having failed to provide therequisite certified copy within time, the petitioner preferred an appealunder Section 19 of the Act of 2005.

It appears from the material placed on record that after filing ofthe application by the petitioner, the respondent-Universityproceeded to notify the regulations framed by it for the purpose ofsupplying of the certified copy of answer-books under the provisionsof the Act of 2005 under the notification dated 26.10.2012 (Annex.9);and these regulations were also uploaded on the website of therespondent-University. The Information Officer informed thepetitioner about publication of such regulations by his communicationdated 05.11.2012 (Annex.7) and thereafter, the Vice-Chancellor ofthe University proceeded to dispose of the appeal filed by thepetitioner by the order dated 08.11.2012 (Annex.8) whereby thepetitioner was directed to apply in accordance with the new regulations and the concerned Information Officer was also directedto decide the application for information within time.

After having noted the contents of the regulations so framed bythe respondent-University, the petitioner filed this writ petition on21.11.2012 while questioning condition No.2 thereof, whereby andwhereunder, a fees of Rs.1,000/- is to be paid for obtaining certifiedcopy of the answer-book, as being contrary to the overridingprovisions of the Act of 2005 and the rules framed thereunder. Thequestioned condition No.2 in the regulations of the respondent- University reads as under:-

“2. Application for obtaining certified copy of the answer book(s)of one or more papers can be submitted alongwith a non-refundable fee of Rs. 1,000/- per answer book. The fee should bedeposited only through Account-payee Demand Draft in favour ofthe Registrar, Maharaja Ganga Singh University Bikaner payableat Bikaner. Postal orders/Money orders/Cheques/Cash will not beaccepted. Applicant must attach his/her attested photo copy ofmarksheet along with the application.”of one or more papers can be submitted alongwith a non-refundable fee of Rs. 1,000/- per answer book. The fee should bedeposited only through Account-payee Demand Draft in favour ofthe Registrar, Maharaja Ganga Singh University Bikaner payableat Bikaner. Postal orders/Money orders/Cheques/Cash will not beaccepted. Applicant must attach his/her attested photo copy ofmarksheet along with the application.”

In this petition, notices for final disposal were issued on26.11.2012 while directing the respondents to keep intact theanswer-book in question.

The respondents have filed a reply seeking to justify thequestioned condition as regards charging of Rs.1,000/- as the feesfor providing copy of the answer-book.

While challenging the aforementioned condition No.2 in theregulations, the learned counsel for the petitioner has contended thatsuch a condition requiring a candidate to make payment of anamount of Rs.1,000/- for the purpose of obtaining certified copy ofhis/her answer-book remains illegal for being contrary to the rulesframed by the State Government under the Act of 2005 i.e., theRajasthan Right to Information Rules, 2005 [‘the Rajasthan Rules of2005’ hereafter] and so also by the Central Government i.e., the Right to Information (Regulation of Fee and Cost) Rules, 2005 [‘theCentral Rules of 2005’ hereafter]. The learned counsel submittedthat as per Rule 4 of the Rajasthan Rules of 2005, the ratechargeable for providing information under sub-section (1) of Section7 is Rs.2/- for each page (A-4 or A-3 size paper) or actual cost orcost price of a copy in large size paper but not beyond; and thesame nature charges are provided in Rule 4 of the Central Rules of2005 too. The learned counsel submitted that cost of a copy of theanswer-book carrying about 32 pages, in no case could beRs.1,000/-. The learned counsel further submitted that per Section22, the Act of 2005 has an overriding effect and the respondent-University is not entitled to frame any regulation that contradicts therequirements of the Act of 2005. It is submitted that exorbitant feesto tune of Rs.1,000/- has been provided only in order to discouragethe students from asking for copies of the answer-books; that theannual examination fee in total is Rs.450/- that includes even thepractical papers and the entire process of examination; and thatthere cannot be even a remote justification for charging Rs.1,000/-per answer-book only for the purpose of providing copy thereof. It issubmitted that the petitioner belongs to a poor family and ispractically unable to deposit such an excessive fee for obtaining thecopy of her answer-book.The learned counsel has also referred tothe fees as regards similar nature information as charged by theother Universities in country.

Per contra, the learned counsel for the respondent-Universitysubmitted that the University has prescribed Rs.1,000/- as fee forproviding certified copy of the answer-book as per resolutionNo.10/2008 dated 08.06.2012, as adopted by the Academic Council and as approved by the Board of Management under its resolutiondated 21.07.2012; and the notification has also been forwarded tothe State Government for information. The learned counselsubmitted that in an academic session, lacs of answer-books arepreserved by the respondent-University and such preservation andmaintenance of record entails huge expenditure; and the fee hasbeen provided keeping in view such costs incurred by the University.According to learned counsel for the respondent-University, neitherthe fee as provided is exorbitant nor could be said to be sufferingfrom any want of authority. The learned counsel has referred to thefees charged by the other Universities in Rajasthan for furnishingsimilar nature information.

After having given thoughtful consideration to the rivalsubmissions, having examined the material placed on record andhaving taken into comprehension the law applicable, we are clearlyof the view that the questioned condition in the regulation framed bythe respondent-University requiring payment of a fee of Rs.1,000/-per answer-book for the purpose of obtaining its copy under the Actof 2005 cannot be sustained.

It needs hardly any elaboration that the Right to InformationAct, 2005, having been enacted with the avowed object of setting outthe practical regime of right to information in order to promotetransparency and accountability in the working of every publicauthority, takes within its sweep an examinee’s right to inspecthis/her evaluated answer-book and to obtain certified copy thereof.The doubts in this regard, if any, were set at rest with theauthoritative pronouncement of the Hon'ble Supreme Court in thecase of Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors.: (2011) 8 SCC 497. Of course, such right waspronounced by the Hon'ble Supreme Court as being conditioned withrelevant limitations and safeguards.

The Hon'ble Supreme Court in Aditya Bandopadhyay’s case(supra) declared that the provisions of the Act of 2005 will prevailover the provisions of bye-laws/rules of examining bodies in regardto the examination; and observed that unless the examining bodywas able to demonstrate that answer-book fell under the exemptedcategory of information as described in clause (e) of Section 8 (1) ofthe Act of 2005, the examining body will be bound to provide accessto an examinee to inspect and take copies of his evaluated answer- book. The Hon'ble Supreme Court said,- “36. Section 22 of the RTI Act provides that the provisions of the said Actwill have effect, notwithstanding anything inconsistent therewith containedin any other law for the time being in force. Therefore the provisions ofthe RTI Act will prevail over the provisions of the bye-laws / rules of theexamining bodies in regard to examinations. As a result, unless theexamining body able to demonstrate that the answer books fall under theexempted category of information described in clause (e) of Section 8 (1)of the RTI Act, the examining body will be bound to provide access to anexaminee to inspect and take copies of his evaluated answer books,even if such inspection or taking copies is barred under the rules/bye-laws of the examining body governing the examinations........”

The Hon'ble Supreme Court further considered the question asto whether any exemption under clause (e) of Section 8(1) wasavailable to the examining body in such a matter; and answered in the negative as under:-

“51. We, therefore, hold that an examining body does not hold theevaluated answer books in a fiduciary relationship. Not beinginformation available to an examining body in its fiduciaryrelationship, the exemption under Section 8(1) (e) is not availableto the examining bodies with reference to the evaluated answerbooks. As no other exemption under Section 8 is available inrespect of the evaluated answer books, the examining bodies willhave to permit inspection sought by the examinees.”

Thus, there remains nothing to doubt that the respondent- University is bound to provide certified copy of the answer-book as sought for by the petitioner. The only question is about the legality ofcharging a fee of Rs.1,000/- per answer-book under the questionedcondition No.2 of the regulations framed by the respondent-University. In our view, only a glimpse of the basic provisions of theAct of 2005 is sufficient to declare the questioned condition asinvalid. Section 22 of the Act of 2005 makes it clear, in no uncertainterms, that this enactment is having overriding effect over any otherlaw for the time being in force or any instrument having effect byvirtue of any law. Section 22 of the Act of 2005 reads as under:- “22. Act to have overriding effect.- The provisions of this Actshall have effect notwithstanding anything inconsistent therewithcontained in the Official Secrets Act, 1923 (19 of 1923) and anyother law for the time being in force or in any instrument havingeffect by virtue of any law other than this Act.”

Then, for the purpose of carrying out the provisions of the Actof 2005, Section 27 thereof has invested the appropriateGovernment with the power to make the necessary rules bynotification in the official gazette. Sub-section (2) of Section 27 inparticular makes it clear that such rules may provide for the mattersrelating, inter alia, to the fee payable under sub-section (1) ofSection 6 and the fee payable under sub-section (1) and (5) ofSection 7. Section 27 of the Act of 2005 reads as under:- “27. Power to make rules by appropriate Government.- (1) Theappropriate Government may, by notification in the OfficialGazette, make rules to carry out the provisions of this Act.appropriate Government may, by notification in the OfficialGazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for all or any of thefollowing matters, namely:-(a) the cost of the medium or print cost price of the materials to bedisseminated under sub-section (4) of Section 4;(b) the fee payable under sub-section (1) of section 6;foregoing power, such rules may provide for all or any of thefollowing matters, namely:-(a) the cost of the medium or print cost price of the materials to bedisseminated under sub-section (4) of Section 4;(b) the fee payable under sub-section (1) of section 6;

(c) the fee payable under sub-section (1) and (5) of section 7;(d) the salaries and allowances payable to and the terms andconditions of service of the officers and other employees undersub-section (6) of section 13 and sub-section (6) of section 16;(d) the salaries and allowances payable to and the terms andconditions of service of the officers and other employees undersub-section (6) of section 13 and sub-section (6) of section 16; (e) the procedure to be adopted by the Central Information Commission or State Information Commission, as the case maybe, in deciding the appeals under sub-section (10) of section 19;and (f) any other matter which is required to be, or may be,prescribed.”

The State Government in Rajasthan, with reference to thepowers conferred under Section 27 ibid. has framed the RajasthanRight to Information Rules, 2005 and sub-sections (3) and (4)thereof, being relevant for the present purpose, could be noticed asunder:- “3. Application fee.- A request for obtaining information underSub-section (1) of Section 6 shall be accompanied by anapplication fee of rupees ten by way of cash against properreceipt or by demand draft or bankers cheque payable to thepublic authority.

4. Fee for providing information.- (1) For providing informationunder Sub-section (1) of Section 7, the fee shall be charged byway of cash against proper receipt or by demand draft or bankerscheque payable to the public authority at the following rates:-(a) rupees two for each page (in A-4 or A-3 size paper) created orcopied; (b) actual charge or cost price of a copy in large size paper;

(c) actual cost price for sample or models; and (d) for inspection of records, no fee for the first hour, and a fee ofrupees five for each fifteen minutes or fraction thereof thereafter.(2) For providing the information under Sub-section (5) of Section7, the fee shall be charged by way of cash against proper receiptor by demand draft or bankers cheque payable to the publicauthority at the following rate:- (a) for information provided in diskette or floppy rupees fifty perdiskette or floppy; and (b) for information provided in printed form at the price fixed forsuch publication or rupees two per page of photocopy for extractsfrom the publication.”

It may be noticed that the Central Government too, withreference to clauses (b) and (c) of sub-section (2) of Section 27 ibid.has framed the Right to Information (Regulation of Fee and Cost)Rules, 2005; and Rules 3 to 5 thereof could be noticed as under:- “3. A request for obtaining information under Sub-section (1) ofSection 6 shall be accompanied by an application fee of rupeesten by way of cash against proper receipt or by demand draft orbankers cheque payable to the Accounts Officer of the publicauthority.Section 6 shall be accompanied by an application fee of rupeesten by way of cash against proper receipt or by demand draft orbankers cheque payable to the Accounts Officer of the publicauthority.

4. For providing the information under Sub-section (1) of Section7, the fee shall be charged by way of cash against proper receiptor by demand draft or bankers cheque payable to the AccountsOfficer of the public authority at the following rates:- (a) rupees two for each page (in A-4 or A-3 size paper) created orcopied; (b) actual charge or cost price of a copy in larger size paper;

(c) actual cost or price for samples or models; and (d) for inspection of records, no fee for the first hour; and a fee ofrupees five for each subsequent hour (or fraction thereof).

5. For providing the information under Sub-section (5) of Section7, the fee shall be charged by way of cash against proper receiptor by demand draft or bankers cheque payable to the AccountsOfficer of the public authority at the following rate:- (a) for information provided in diskette or floppy rupees fifty perdiskette or floppy; and

(b) for information provided in printed form at the price fixed forsuch publication or rupees two per page of photocopy for extractsfrom the publication.”

As noticed, per Section 22, the Act of 2005 has an overridingeffect over any other law; and as a necessary corollary, the rulesframed thereunder for the purpose of giving effect to its provisionsshall have overriding effect in the field they operate and aresupposed to operate. The field in question i.e., the “fee payable” forthe purpose of making application under Section 6 and for thepurpose of providing information under Section 7 is the one which isgoverned by the rules under Section 27 of the Act of 2005. Any ruleor regulation framed by the respondent-University, to the extentstanding at contradiction to such rules cannot be regarded as valid.

We may observe for the present purpose that the respondent-University is a public authority within the meaning of the Act of 2005for having been established by a law made by the State Legislaturei.e., Maharana Ganga Singh University Act, 2003. As per theaverments taken, the Governor of State of Rajasthan is Chancellor ofthe University and the Vice-Chancellor is appointed by theChancellor upon the advice of the State Government. The Registrar of the respondent-University is appointed by the State Governmenton deputation from amongst the officers serving in the Stateservices. For all its practical purposes, it being a Universityestablished in the State of Rajasthan is essentially governed for thepresent purpose by the Rajasthan Rules of 2005, or at any rate, bythe principles thereof. The regulations regarding charge of fees bythe respondent-University, therefore, cannot operate over and abovethe fees prescribed in Rules 3 and 4 ibid. As noticed, even in theCentral Rules of 2005, the scale of fees is similar to that of theRajasthan Rules of 2005.

Having regard to the purpose of the enactment and the natureand purport of the provisions therein, we are of the view that even ifthe respondent-University were to make independent regulations forthe purpose of providing certified copies, so far the fields covered bythe Rajasthan Rules of 2005 are concerned, the respondent-University cannot make any such regulation that could stand atconflict with such rules.

It may be observed that even under the proviso to sub-section(5) of Section 7, the Legislature has contemplated in no uncertainterms that the fees to be prescribed for the purpose of Sections 6 &7 of the Act should be reasonable and is not to be charged at allfrom the persons who are of below poverty line. The proviso readsas under:- “Provided that the fee prescribed under sub-section (1) ofsection 6 and sub-sections (1) and (5) of section 7 shall bereasonable and no such fee shall be charged from the personswho are of below poverty line as may be determined by theappropriate Government.”

Viewed from any angle, charging of exorbitant fees of Rs.1,000/- for the purpose of providing copy of answer-book to a student by the respondent-University does not stand in conformitywith the object and purpose of the Act of 2005, stands at starkconflict with the rules governing the field, and appears to be highlyunreasonable.

So far incurring of the extra expenditure by the University isconcerned, the submissions have only been noted to be rejected.Any such vague reference to the alleged expenditure cannot, by anystretch of imagination, be the justification for the respondent-University to flout the requirements of the applicable statutoryprovisions; and the University cannot claim any special treatmentthan the other public authorities as regards the operation of the Actof 2005. So far the operation of the Act of 2005 is concerned,particularly as regards costs of providing information, suchsubmissions on the part of the respondent-University who issupposed to be an agency of the welfare State, appear to be ratherillogical and unreasonable apart from being totally baseless.

Charging of fees of Rs.1,000/- for providing copy of answer-book, in the ultimate analysis, appears to be an ill-intended attempton the part of the respondent-University to somehow discourage thestudents from seeking certified copies of their answer-books. Suchstrange regulations only demonstrate scant respect shown by therespondent-University to the cherished object of the Act of 2005 andthe principles expounded by the Hon'ble Supreme Court in AdityaBandopadhyay’s case (supra). The offending condition in theregulation is required to be quashed.

Before concluding, we may notice that during the course ofsubmissions, while the learned counsel for the petitioner has referredto some of the Regulations on the same subject by certain Universities like Banaras Hindu University and University of Delhiand submitted that such exorbitant fees as charged by therespondent-University is not charged by these Universities. On theother hand, the learned counsel of the respondent attempted tosubmit that some other Universities in Rajasthan are charging thefees in the range of Rs. 500/- to Rs. 1000/- for providing similarnature information and has referred to the circulars issued by Dr.Sarvapalli Radhakrishnan Rajasthan Ayurved University, Universityof Rajasthan, and University of Kota.

In regard to these submissions, we may observe that while it isnoticeable from the regulations of Banaras Hindu University andUniversity of Delhi that such Universities have provided for the feessquarely in conformity with the fees as prescribed and as provided inthe aforesaid Rules of 2005 whereas Dr.Sarvapalli RadhakrishnanRajasthan Ayurved University, Jodhpur has provided a fees ofRs.1,000/- so as to show the answer-book to the candidate; theUniversity of Rajasthan has provided a fees of Rs.580/- for obtainingcertified copy of answer-book; and the University of Kota hasprovided for such fees for certified copy at Rs.500/- per answer-book. Though we have noticed these different scales of fees but inour view, nothing much turns upon them either way and merelybecause some University has chosen to provide a higher fees, thatby itself does not invest the respondent-University with any right tocharge such kind of fees which is otherwise not in conformity with therequirements of overriding the provisions of the Act of 2005 and rulesframed thereunder, operating in the field of quantum of fees.

In the ultimate analysis, we are clearly of view that theimpugned condition i.e., condition No.2 as reproduced hereinabove

Conclusion

in the regulations framed by the respondent-University deserves tobe quashed as illegal and the respondent-University deserves to bedirected to provide the certified copy of the answer-book to thepetitioner after charging the fees as prescribed under the RajasthanRules of 2005 and not beyond.

As a result of the aforesaid, the writ petition succeeds and isallowed. The questioned condition in the regulations of therespondent-University i.e., condition No.2 as regards charging ofRs.1,000/- as fees for providing copies of the answer-books isdeclared illegal and is quashed. The respondent University shall berequired to provide the necessary information after charging the feeas contemplated by the Rajasthan Rules of 2005 and not beyond.

Having regard to the circumstances of the case andparticularly when we find that a student has unnecessarily beendriven to this avoidable litigation, we allow costs of the litigation tothe writ petitioner, quantified at Rs.11,000/- (eleven thousand).

[NISHA GUPTA],J.

[DINESH MAHESHWARI],J.