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					                   WEST BENGAL INFORMTION COMMISSION
                        Bhabani Bhaban (2nd Floor), Alipore
                                Kolkata – 700 027
                            Telefax (033) 2479-1966.

                                    Appeal / Complaint No. 1566(3)-WBIC/RTI/210/07
                                    Right to Information Act, 2005
                                    Date of hearing : 15.11.2007

                              Shri Prasanta Kumar Saha
                                         -Vs-
                      Assistant State Public Information Officer
                      West Bengal Board of Secondary Education

Present: 1. Shri Prasanta Kumar Saha ………. Appellant.
         2. Shri Jayanta Joy Chattopadhyay ….Respondents.
            Deputy Secretary & SAPIO,
            West Bengal Board of Secondary Education
         3. Shri Manik Chandra Das
            Advocate on behalf of Board
         4. Shri Sauvik Chowdhury, Advocate
         5. Special Law Officer
            West Bengal Board of Secondary Education
         6. Shri Pradip Kumar Ghosh

Facts on record:

       1. Shri Prasanta Kumar Saha vide his application dated 14.06.2007 sought for
          certified Xerox copies of the front cover page of each of the nine answer
          scripts including cage of marks of Madhyamik Pariksha 2007 of his son, Shri
          Spandan Saha Roll A-08391 No. 0179 under Right to Information Act from
          the SAPIO of West Bengal Board of Secondary Education. The concerned
          SAPIO vide his letter No. Inf/2 dated 18.07.2007denied to furnish the
          information sought for on the ground that the normal procedure of the Board
          does not provide to allow a candidate or his/her representative to inspect the
          written answer script of the candidate.
       2. Being aggrieved, Shri Saha lodged a complaint on 24.07.2007 with the
          Commission under section 18 of the Act. The Commission advised him vide
          letter No. 1131-WBIC/RTI/210/07 dated 27.07.2007 to prefer an appeal under
          section 19(1) of the Act before the first Appellate Authority. Shri Saha
          preferred an appeal on 27.07.2007 accordingly. The concerned Appellate
          Authority passed an order dated 31.08.2007 stating that transparency and
          accountability are the key words under RTI Act, 2005 and every public
          authority has to maintain the same. Information according to the Act means
            any material or any form including records, documents etc. and right to
            information means the right to information held by or under the control of
            any public authority and includes the right to have extracts of certified copies
            of the documents and records. He therefore ordered that the SAPIO should
            supply the Appellant the information as applied for within 10 days of the
            receipt of this order after collecting charges at the rate of Rs. 2.00 per page
            from the applicant.
         3. Even after 21 days of passing of the order by the first Appellate Authority the
            concerned SAPIO did not furnish the information and therefore Shri Saha
            filed second appeal before the Commission on 25.09.2007.
         4. The Commission decides to hear both the parties on 15.11.2007.

Order:

         5. Shri R.K. Roy, Joint Secretary & Appellate Authority, School Education
            Department was found absent without taking leave of the Commission. The
            Commission observes that officers of a public authority cannot be so casual to
            ignore the notice of hearing from the Commission. It is brought to the notice
            of the concerned authority that the Commission has the power to summon and
            enforce attendance of the persons it requires for proper dissemination of
            information. The Commission orders that the Appellate Authority shall
            explain within 15 days from the date receipt of this order the reasons for his
            absence.
         6. Shri Manik Chandra Das Advocate on behalf of the West Bengal Board of
            Secondary Education represented that the public authority would like to prefer
            an appeal before the Commission against the order of the first Appellate
            Authority. The Commission makes it clear that the public authority has no
            right of appeal as is evident from section 19(3) of the Act. Section 19(3) states
            that “ A second appeal against the decision under sub-section (1) shall lie
            within ninety days from the date on which the decision should have been made
            or was actually received, with the Central Information Commission or the
            State Information Commission:
            Provided that the Central Information Commission or the State Information
            Commission, as the case may be, may admit the appeal after the expiry of the
            period of ninety days if it is satisfied that the appellant was prevented by
            sufficient cause from filing the appeal in time.”
         7. It is evident from above that an appeal before the Commission is a second
            appeal by the information seeker after exhausting provision of section 19(1)
            which enables him to prefer first appeal before the appellate Authority as
            designated by the public authority. None of the designated officers of the
            public authority has any right to prefer an appeal justifying denial of
            information.
         8. Shri Das Advocate further stated that the public authority has no obligation to
            give the information as asked for under the provision of exemption clause 8(1)
            ( c) of the Act. The said provision states that “information, the disclosure of
           which would cause a breach of privilege of Parliament or the State
           Legislature”.
       9. He submitted that since West Bengal Board of Secondary Education has been
           constituted by a State Act and since the Rules framed under the said Act does
           not provide to allow a candidate or his/her representative to inspect the written
           answer script of the candidate, inspection, if allowed, would breach the
           privilege of the State Legislature. The Commission refutes this argument and
           draws the attention to the provisions of the section 22 which categorically
           states that the RTI Act shall have effect notwithstanding anything in
           consistent 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 this Act. Therefore, the question of breach of privilege of
           the State legislature does not arise if right to information is allowed in the
           instant case.
       10. Shri Das further appealed that the Board should be given an opportunity to
           submit a written argument in defence.
       11. Considering all the points of view, in this regard, and after hearing thoroughly
           both the parties, the Commission hereby orders that the West Bengal Board of
           Secondary Education is hereby granted 15 days time from the date of this
           hearing to submit a written argument in their defence. Meanwhile, the public
           authority shall preserve all the answer scripts of Shri Spandan Saha, Roll A-
           08391, No. 0179 till final disposal of the matter by the Commission.

                                                                  Sd/-
Date: 16.11.2007                                        Arun Kumar Bhattacharya
                                                  State Chief Information Commissioner

Authenticated true copy forwarded to:

1.Shri Prasanta Kumar Saha, 288/1, B.B. Chatterjee Road (1st Floor), Kasba, Kolkat-700
042.
2.Shri Jayanta Joy Chattopadhyay, Deputy Secretary & State Assistant Public
Information Officer, West Bengal Board of Secondary Education, 77/2 Park Street,
Kolkata-700 016.
3.Shri R.K. Ray, Joint Secretary & Appellate Authority, School Education Department,
Bikash Bhavan, Salt Lake, Kolkata-700 091.



Date: 16.11.2007                                      Secretary & Acting Registrar
                                                  West Bengal Information Commission

				
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