the scheme for compassionate appointment=In view of the above settled position of law and the fact that the memorandums could not be given retrospective effect, we do not consider it appropriate to interfere with the judgment of the High Court. The spirit of the Scheme was to provide relief to the family members of the deceased persons and thus on the yardstick of social justice, such relief cannot be withdrawn on the ground of some alleged discrepancy which has not been supported by any data, is unreasonable and therefore, even unsustainable. The appellants must state appropriate reasons and provide the expected data on record if they expect the Court to come to a different conclusion. As already noticed, the appellants have miserably failed to place any such data on the basis of the Memorandum dated 14th June, 2006.we dismiss all these appeals and further issue the following directions; A) The appointments of the respondents will not be interfered with by the appellants on the strength of the memorandum dated 4th July, 2002. B) The Office Memorandum dated 16th May, 2001, 14th June, 2006 and 4th July, 2002 have in relation to the 1998 Scheme for Compassionate Appointment caused some confusion on the one hand and while on the other they have prejudicially affected the rights of large number of heirs of the employees who died in harness. Thus, we direct the appellants to issue comprehensive, certain and unambiguous directions which shall put an end to such unnecessary controversies. 31. However, there shall be no orders as to costs.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

               CIVIL APPEAL NO.       9049            OF 2012
                  (Arising out of SLP (C) No.19871 of 2009)
Director General of Posts & Ors.         … Appellant
                                   Versus
K. Chandrashekar Rao                     … Respondents
                                    WITH
               CIVIL APPEAL NO.      9050              OF 2012
                  (Arising out of SLP (C) No.19872 of 2009)

               CIVIL APPEAL NO.        9051            OF 2012
                  (Arising out of SLP (C) No.21910 of 2009)

               CIVIL APPEAL NO.        9053            OF 2012
                  (Arising out of SLP (C) No.23211 of 2009)

               CIVIL APPEAL NO.       9054             OF 2012
                  (Arising out of SLP (C) No.23212 of 2009)

               CIVIL APPEAL NO.        9055            OF 2012
                  (Arising out of SLP (C) No.23213 of 2009)

               CIVIL APPEAL NO.     9056               OF 2012
                  (Arising out of SLP (C) No.23214 of 2009)

                CIVIL APPEAL NO.      9057            OF 2012
                  (Arising out of SLP (C) No.25550 of 2009)

               CIVIL APPEAL NO.       9058             OF 2012
                  (Arising out of SLP (C) No.25551 of 2009)

               CIVIL APPEAL NO.           9059         OF 2012
                  (Arising out of SLP (C) No.25553 of 2009)

               CIVIL APPEAL NO.        9060            OF 2012
                  (Arising out of SLP (C) No.25559 of 2009)

               CIVIL APPEAL NO.      9061              OF 2012
                  (Arising out of SLP (C) No.27784 of 2009)





                               J U D G M E N T

Swatanter Kumar, J.
1.    Leave granted in all the SLPs.

2.    By this common judgment we shall dispose of all  the  above  mentioned
appeals which are directed against  the  judgments  of  the  High  Court  of
Andhra Pradesh at Hyderabad passed on different dates vide which the  Court,
while relying upon its  judgment  dated  23rd  July,  2008  passed  in  Writ
Petition (C) No. 15820/2008, has dismissed the writ petitions filed  by  the
concerned government authority.

3.    Thus, it is not necessary for us to notice the facts  of  each  appeal
separately.   Though,  the  judgments  are  of  different  dates,  they  are
primarily based upon the judgment of the High Court  dated  23rdJuly,  2008.
For the purpose of convenience, we  would  be  referring  to  the  facts  of
SLP(C) No.19871/2009.

FACTS:

4.    The Department of Personnel and Training (for short ‘DoPT’),  Ministry
of Personnel, Public Grievances and Pension, Government of India,  issued  a
memorandum dated 9th October, 1998 containing the scheme  for  compassionate
appointment with an object to give a source of employment to  the  dependent
family members of the government servant dying in harness  or  one  who  has
retired on medical grounds.  This scheme was declared on 9th October,  1998.
 The scheme stipulated that the  compassionate  appointment  could  be  made
upto a maximum  of  5  per  cent  of  the  vacancies  falling  under  Direct
Recruitment Quota in Group ‘C’ or ‘D’ post.

5.    According to the appellants, the scheme of  compassionate  appointment
is always treated as an exception to the general rule of recruitment.

6.    The father of the respondent was employed with  the  appellants  in  a
Group ‘D’ post.  Unfortunately, the father of the respondent  died  on  19th
April, 2000.

7.    On 16th May, 2001, the DoPT issued an office  memorandum  in  view  of
the policy of the Government of  India  that  fresh  recruitment  should  be
limited to one per cent of the total strength of civilian staff.  The  basis
for the same appeared to be that about three per cent of the  staff  retired
every year and thus, the reduction in manpower would reduce to  2%  p.a.  if
fresh recruitment is limited to 1% p.a.  This would achieve a  deduction  of
ten  percent  in  five  years.   It  was  decided  that  each  Ministry  and
Department would formulate an Annual Direct  Recruitment  Plan  through  the
mechanism of Screening Committee.  Para  2.2  of  this  memorandum  provided
that while preparing the Annual Recruitment Plan,  the  concerned  Screening
Committee was to ensure that the direct recruitment did not exceed  one  per
cent of the total sanctioned strength of the Department.   Since  three  per
cent of the staff retired every year, this  would  translate  only  to  one-
third of the Direct Recruitment  vacancies  occurring  in  each  year  being
filled.  Thus, the recruitment would be limited to filling one-third of  the
vacancies of Direct Recruitment arising in the year, subject  to  a  further
ceiling, that it does  not  exceed  one  percent  of  the  total  sanctioned
strength of the Department.  In terms of Para 2.4 of the memorandum, it  was
further stated that the vacancies so  cleared  by  the  Screening  Committee
will  be  filled  up  by  applying  rules  for   reservation,   handicapped,
compassionate quota therein.

8.    However, the Special Circle Relaxation Committee, approved  the  names
of the candidates in the category of compassionate appointment on the  basis
of 5 per cent of the existing vacancies occurring in  the  year  2000,  2001
and 2002.  In face of the memorandum dated 16thMay, 2001, on or  about  13th
March, 2002, 69 names were approved.  On 4th July, 2002, the DoPT  issued  a
clarificatory memorandum that the five  per  cent  quota  for  compassionate
appointment was  to  be  calculated  on  the  basis  of  direct  recruitment
vacancies finally cleared by the Screening Committee and not  on  the  basis
of the total vacancies occurring in the Department.  The respondent, on  6th
August, 2002 was communicated the intimation with regard to the approval  of
his name for appointment to Group ‘D’ post, which he joined on 22nd  August,
2002.

9.    It is the case of the appellants now that the mistake  of  appointment
in excess of the prescribed quota was detected and vide  letter  dated  12th
March, 2003 it was communicated that it  was  not  possible  to  adjust  the
candidates  who  were  recommended  in  excess  of  the  quota  because  the
recommendation for compassionate appointment was to be made on the basis  of
five per cent of the approved vacancies cleared by the Screening  Committee.
 In furtherance to this, a decision was taken on 17th May,  2004  to  select
only the most indigent persons against the available  vacancies  within  the
prescribed ceiling of 5 per cent of the vacancies  finally  cleared  by  the
Screening Committee.  In furtherance to the decision taken by the  competent
authority,  a  meeting  of  the  Special  Circle  Relaxation  Committee  was
convened and appointment of total 21 candidates on the  basis  of  five  per
cent approved vacancies cleared by the  Screening  Committee  was  approved.
The   remaining   48   candidates   were   terminated/not    permitted    to
continue/dropped  on  12th  October,  2004.   On  12th  January,  2005,  the
appellants noticed that the candidates, whose names  had  been  cleared  for
compassionate appointment on 13-15th March, 2002 or in the  year  2002  were
still temporary servants.  48 names were in excess of the quota,  therefore,
a notice  of  termination  under  Rule  5  of  the  Central  Civil  Services
(Temporary Services) Rules, 1965 was issued  and  as  already  noticed,  the
services of the 48 persons, whose names were recommended in  excess  of  the
quota, were terminated.  These appointees, including the respondent  in  the
present appeal, challenged the said order of termination before the  Central
Administrative Tribunal (for short ‘CAT’).  The CAT granted an interim  stay
during the pendency of the hearing of the application vide its  order  dated
8th February, 2005.  The present appellants also point out  that  two  other
applications, being OA No. 434/2005 and OA No. 761/2005 filed  by  similarly
situated employees, came to be dismissed vide orders of the CAT  dated  20th
October, 2005 and 19th April, 2007 respectively.

10.   The application filed by the present respondent  came  up  before  the
CAT for hearing on 31st October, 2007.   While allowing the  application  of
the respondent, the  CAT  held  that  the  appointment  of  the  respondent-
applicant before it, was  not  liable  to  be  terminated  inter  alia,  but
primarily for the following reasons:-

           “17.  Therefore, it has been proved  and  established  that  the
           instructions dated  16.05.2001  in  so  far  as  it  relates  to
           compassionate appointment, frustrate  the  very  object  of  the
           scheme  for   compassionate   appointment.    The   scheme   for
           compassionate   appointment   is   a   rehabilitation    scheme.
           Therefore,      the      subsequent      instructions,       the
           application/operation of which frustrates the very object of the
           scheme or make the scheme not practically applicable, cannot  be
           said to be valid instruction(s).  Therefore, even if  there  had
           been  any  instructions  of  2001  to  consider  the  cases  for
           compassionate appointment to the extent of 5%  of  the  approved
           vacancies cleared by the screening committee (which could not be
           produced by the respondents before  us),  any  appointment  made
           without  following  such  instructions  cannot  be  said  to  be
           irregular appointment.  More over, the administration should  be
           more particular while considering  the  cases  of  compassionate
           appointment so that the persons appointed will not be terminated
           for any irregularity in the appointment.  In no case, the family
           which has been provided with compassionate appointment to enable
           the family to meet with the indigent conditions  caused  due  to
           the death of the employee would be put to distress again due  to
           the fault of  the  administration.   We  may,  at  the  cost  of
           repetition, mention that (i) when  the  very  instruction  dated
           16.05.2001 in so far as it relates to compassionate appointment,
           has been proved to be frustrating the very object of the  scheme
           which is a rehabilitation scheme, even  if  any  appointment  is
           made without following such instruction, cannot or does not make
           the appointment irregular.  (ii) The applicants  who  have  been
           given  appointment  against   2000   vacancies   following   the
           instructions/scheme of 1998, their appointments do not,  in  any
           way, come within the purview of the DOPT instructions  of  2001.
           Therefore, their appointments can in no  way  be  terminated  by
           applying the instructions of 2001.  (iii)   All  the  applicants
           who were considered and approved and  were  given  compassionate
           appointments in 2002 cannot be terminated after they have worked
           for a considerable period.  More particularly, when  the  scheme
           is a rehabilitation scheme and the 2001 instructions in  so  far
           it relates to compassionate  appointments  frustrates  the  very
           object  of  the  scheme  and   make   the   scheme   practically
           inapplicable as mentioned vide instructions cannot be said to be
           valid.  For the reasons mentioned above, it will not be  out  of
           place to mention that in the case of Union of India  and  Others
           vs.  K.P. Tiwari [2003 SCC (L&S)  1233]  Hon’ble  Supreme  Court
           declined to interfere with the appointment made 5 years back and
           said that:

                 “It is unnecessary in the present case  to  examine  either
                 questions of law or fact arising in the matter. Suffice  to
                 say that the respondent was appointment  and  has  been  in
                 service  for  more  than  five  years.   It  would  not  be
                 appropriate to disturb that state of affairs by making  any
                 other order resulting in uprooting the respondent from  his
                 livelihood.”

           Since the appropriate instructions dated 14.06.2006 have already
           been issued to consider the cases for compassionate  appointment
           to the extent of  5%  of  total  vacancies  against  the  direct
           recruitment quota, no further order is necessary to that effect.
            Therefore, such appointment which is made without following the
           said instructions cannot be terminated for the reasons mentioned
           above.

           18.   Therefore, in view of the above discussion, we  hold  that
           the respondents are not justified in issuing the impugned notice
           of termination/order of  notice  to  delete  the  names  of  the
           applicants from the list of approved candidates.  The applicants
           are entitled to continue in  service  on  the  strength  of  the
           appointment given to them.  We, therefore, quash and  set  aside
           the impugned orders/notices issued by the respondents in all the
           applications.  Interim order granted  by  this  Tribunal  stands
           absolute.”




11.    Being   aggrieved   from   the   judgment   of   the   Tribunal,  the
appellant filed a writ petition, being W.P.(C)  No.  20655/2008  before  the
High Court.  The High Court by  that  time  had  already  disposed  of  Writ
Petition (C) No. 15820 of 2008 filed by the Government  Department  entitled
Superintendent of Post Offices,  Anantpur  Division,  Anantpur    vs.   R.S.
Madan Lal vide its judgment dated 23rd July, 2008,  the  subject  matter  in
SLP(C) No. 19872/2009 which is also listed along with the present  bunch  of
matters.  While the High Court upheld the order of  the  CAT,  it  not  only
accepted its reasoning but in addition thereto held as under:-

           “We do not find any error in the above reasoning adopted by  the
           Tribunal. The respondent and others who were given  appointments
           against vacancies  arising  in  2000  ignoring  the  scheme-1998
           cannot be removed from service,  pursuant  to  the  instructions
           issued in 2001.  Therefore, the candidates who  were  considered
           and given compassionate appointment in 2002  cannot  be  removed
           from service.  At this stage, it is pat (sic-apt) to  note  that
           the Government taking into consideration the difficulties  being
           faced by various  Ministries  in  implementing  the  scheme  for
           compassionate appointment issued certain  instructions  in  memo
           dated, 14.6.2006.  Para-3 of the said instructions reads thus:

                 “On a demand raised by Staff Side in the Standing Committee
                 of  the  National  Council  (JCM)   for   review   of   the
                 compassionate  appointment  policy,  the  matter  has  been
                 carefully examined and taking into account  the  fact  that
                 the reduction in the number of vacancies for Group ‘C’  and
                 ‘D’ posts (excluding technical pots) that  have  arisen  in
                 the year.  Total  vacancies  available  for  making  direct
                 recruitment would be calculated by deducting the  vacancies
                 to be filled on the basis of compassionate appointment form
                 the vacancies available for direct recruitment in terms  of
                 existing orders on optimization.”




           From the above, it is clear that the vacancies meant for  direct
           recruitment shall have to be calculated  only  after  earmarking
           the vacancies required for compassionate appointment.  In words,
           the direct recruitment vacancies shall have  to  be  arrived  at
           only after deducting the vacancies  required  for  compassionate
           appointment under the scheme.  The Tribunal while  allowing  the
           O.As, has also  taken  into  consideration,  the  aforementioned
           instructions issued by the Government of India.

                 Admittedly,  the  notice  of  termination  was  issued  on
           24.11.2005, i.e., prior to the instructions of the Government of
           India, dated 14.6.2006.   Therefore,  the  authorities  have  to
           reconsider the matter in the light of the instructions issued  I
           memo, dated 14.5.2006.  The Tribunal on a careful  consideration
           of the relevant material on  record  has  rightly  come  to  the
           conclusion that the persons appointment in the year 2002  cannot
           be terminated from service.  We find no error in  the  order  of
           the Tribunal warranting interference by this Court  in  exercise
           of  power  of  judicial  review  under  Article   226   of   the
           Constitution of India.

                 The writ  petition  fails  and  the  same  is  accordingly
           dismissed, at the admission stage.  No costs.”



12.   As is clear from the above factual matrix of the case that  the  issue
revolves around the scope, interpretation and applicability  of  the  office
memorandums issued by the DoPT and other concerned authorities from time  to
time.

13.   The Ministry of Personnel, Public Grievances and  Pension,  Government
of India had issued a circular on 9th October, 1998 declaring its policy  in
the form of  a  Scheme  for  Compassionate  appointment  under  the  Central
Government.   This Scheme provided that the policy shall  be  applicable  to
the family members of  a  government  servant  who  dies  while  in  service
including death by suicide or is retired on medical grounds, but subject  to
fulfilment of the conditions stated therein.   It is not  necessary  for  us
to go into other clauses of this Scheme inasmuch as there is no  dispute  to
other clauses except the clause relating to prescription  of  percentage  in
relation  to  direct  recruitment  for   the   purposes   of   compassionate
appointment.     It  may  be  noticed  that  this  Scheme  of  Compassionate
Appointment can be applied only to the following;

        i) The post should be falling in Group ‘C’ and ‘D’ posts,

       ii)  It should be in relation to direct recruitment as specified.

14.   The Scheme provided for power of relaxation with  the  authorities  in
regard to age etc.   Clause 7 of the Scheme  is  the  relevant  clause  with
which we are concerned.  The same reads as under:-

         “7.  Determination/Availability of Vacancies

        a)  Appointment on compassionate grounds should  be  made  only  on
           regular basis and that too only if regular vacancies  meant  for
           that purpose are available.




        b) Compassionate appointments can be made upto a maximum of  5%  of
           vacancies falling under direct recruitment quota  in  any  Group
           ‘C’ or ‘D’ post.    The appointing authority may hold back  upto
           5% of vacancies in the aforesaid  categories  to  be  filled  by
           direct  recruitment  through  Staff  Selection   Commission   or
           otherwise so  as  to  fill  such  vacancies  by  appointment  on
           compassionate grounds.   A person selected  for  appointment  on
           compassionate grounds should  be  adjusted  in  the  recruitment
           roster against the appropriate category  viz.  SC/ST/OBC/General
           depending upon the category to which he belongs.   For  example,
           if he belongs to SC category he will be adjusted against the  SC
           reservation point, if he is ST/OBC he will be  adjusted  against
           ST/OBC point and if he belongs to General category  he  will  be
           adjusted against the vacancy point meant for General category.




        c) While the ceiling of 5%  for  making  compassionate  appointment
           against regular vacancies should not be circumvented  by  making
           appointment of dependent family member of Government servant  on
           casual/daily   wage/ad-hoc/contract   basis   against    regular
           vacancies,  there  is  no  bar  to  considering  him  for   such
           appointment if he is eligible as  per  the  normal  rules/orders
           governing such appointments.




        d) The ceiling of 5% of direct  recruitment  vacancies  for  making
           compassionate appointment should not be exceeded  by  (sic)  any
           other vacancy e.g. sports quota vacancy.




        e)  Employment  under  the  scheme   is   not   confined   to   the
           Ministry/Department/Office in which  deceased/medically  retired
           Government servant had been working.   Such an  appointment  can
           be given anywhere under the Government of India  depending  upon
           availability of a suitable vacancy  meant  for  the  purpose  of
           compassionate appointment.




        f) If sufficient vacancies are  not  available  in  any  particular
           office to accommodate  the  persons  in  the  waiting  list  for
           compassionate appointment, it  is  open  to  the  administrative
           Ministry/Department/Office to take  up  the  matter  with  other
           Ministries/ Departments/ Offices of the Government of  India  to
           provide at any early date appointment on  compassionate  grounds
           to those in the waiting list.”




15.   Before, we proceed to analyse the above clause as well as examine  its
impact in view of the amended OMs  of  the  Government  of  India,  we  must
notice that under clause 16(c) of this Scheme, it was  specifically  noticed
that Scheme of Compassionate Appointment was conceived by the Government  of
India as far back as 1958.   Since then, a number of  welfare  schemes  have
been introduced by the Government which has made  a  significant  difference
in the financial position of the families of the government  servants  dying
in harness/retired on medical grounds.

16.   Clause 16(d) further provides that a compassionate appointment  should
not be denied or delayed merely on the ground that there is  re-organisation
in the office of the Ministry.   The post should be made  available  to  the
person concerned if there is a vacancy meant for  compassionate  appointment
and he or she is found eligible and suitable under  the  Scheme.   Not  only
this, under clause 16(f), a compassionate appointment will  have  precedence
on absorption of surplus employees and reorganisation of  daily  wage/casual
worker with or without temporary status.

17.   Reverting to clause 7 of  the  Scheme,  it  is  stipulated  under  the
Scheme that appointment on compassionate grounds  should  be  made  only  on
regular basis and that too if regular vacancies meant for that  purpose  are
available. The compassionate appointments can be made upto a maximum  of  5%
of vacancies falling under direct recruitment quota in any group ‘C’ or  ‘D’
post.   The appointing authority may hold back upto 5% of the  vacancies  in
the aforesaid categories to be filled by direct  recruitment  through  Staff
Selection  Commission  or  otherwise  so  as  to  fill  such  vacancies   by
appointment on compassionate grounds.

18.   Clause 7(f) needs to be emphasised as it  contemplates  that  even  if
sufficient  vacancies  are  not  available  in  any  particular  office   to
accommodate the persons in the waiting list for  compassionate  appointment,
it is open to the administrative Ministry/Department/Office to take  up  the
matter with other Ministries/Departments/Offices of the Government of  India
to provide at an early date appointment on compassionate  grounds  to  those
in the waiting list.

19.    The  above  clauses  clearly  show  that  the  Scheme  of  1998   for
compassionate  appointment  is  a  welfare  activity  carried  out  by   the
Government of India.   It is a benevolent act on  the  part  of  the  State.
Keeping in view the dire economic and social crisis to which the  family  of
a deceased  government  employee  in  Class  ‘C’  or  ‘D’  is  exposed,  the
government through this Scheme offers a helping hand.   This is a  voluntary
act of generosity on the part of the State.   The generosity  once  extended
in the form of exercise of a subordinate legislative  power  by  formulating
the said Scheme, will have the force of law.    It  is  enforceable  to  its
limited extent and within its prescribed parameters.   The  purpose  of  the
1998 Scheme was to provide employment and preferably as part of the  regular
cadre subject to availability of vacancies.    Then the  Central  Government
issued Office Memorandum dated 16th May, 2001.    This  Memorandum  did  not
refer to the circular  of  1998  as  such,  however,  the  essence  of  this
memorandum was that while presenting the Budget for the year 2001-2002,  the
Finance Minister stated  that  “all  requirements  of  recruitment  will  be
scrutinized to ensure that fresh recruitment is limited to  1  per  cent  of
total civil staff strength.  As about 3 per cent of the staff  retire  every
year, this will reduce the manpower by 2 per  cent  per  annum  achieving  a
deduction of 10 per cent in five years as announced by the Prime  Minister.”
  Under clause 2.2 of this Memorandum, it  was  further  stated  that  while
preparing the Annual Recruitment Plans, the concerned  screening  committees
would ensure that direct recruitment does not in any case exceed 1 per  cent
of  the  sanctioned  strength  of  the  department  and  accordingly  direct
recruitment would be limited to 1/3rd of the  direct  recruitment  vacancies
arising in the year subject  to  further  restriction  that  this  will  not
exceed 1 per cent of the total sanctioned strength of the department.

20.   In furtherance to this  Memorandum,  the  Government  of  India,  DoPT
issued a clarification on the guidelines for  compassionate  appointment  to
Group ‘C’ and ‘D’ posts on 4th July, 2002.   It clarified that  5  per  cent
quota for compassionate appointment is to be worked out  with  reference  to
DR vacancies in each recruitment year finally approved  for  filling  up  by
the Screening Committee under the  optimisation  policy  of  the  Government
contained in Office Memorandum dated 16th May, 2001.   In other words,  this
Memorandum merely reiterated the  applicability  of  the  Office  Memorandum
dated 16th May, 2001.

21.   Finally on 14th June,  2006,  ‘Scheme  for  Compassionate  Appointment
under the Central Government  Determination  of  Vacancies’  was  clarified.
In this Office Memorandum, an attempt was made to clarify  the  optimisation
of  direct  recruitment  to  civilian  posts  as  contained  in  the  Office
Memorandum dated 16th May, 2001 to say that the recruitment does not  exceed
1% of the total sanctioned strength of the  department.    It  noticed  that
there had been a continuous reduction in the number of vacancies for  direct
recruitment, thus, very  few  vacancies  or,  in  fact,  no  vacancies  were
available for compassionate appointment.   In light  of  this,  the  earlier
instructions including  the  instructions  dated  9th  October,  1998  stood
modified to the extent mentioned therein.

22.   From the above Scheme and Office Memorandum, it is  clear  that  where
on  the  one  hand,  the  State  had  formulated  a   welfare   scheme   for
compassionate appointments, there on the other, because  of  limitations  of
its financial resources it decided to take  economic  measures  by  reducing
the extent of appointment by direct  recruitment  from  the  financial  year
2001-2002.   Both these matters falling in the domain of the Government  and
being matters of policy, the Court is hardly called  upon  to  comment  upon
either of them.   These are the acts which fall in the domain of  the  State
and do not call for any judicial interference.  All that we propose to  hold
is that State has to abide by the Scheme it has  floated  for  compassionate
appointment.   The 1998 Scheme floated by the Government  should  receive  a
liberal construction and application as it is stated to be a social  welfare
scheme and largely tilted in favour of the members  of  the  family  of  the
deceased  employee.  The  purpose  appears  to  be  to  provide  them   with
recruitment on a regular basis rather than circumvent the same  by  adopting
any other measure.   That is the  reason  why  the  Government  specifically
states in its Scheme that efforts should be made to appoint the  members  of
a distressed  family  to  the  post  provided  he/she  satisfies  the  other
parameters stated in the Scheme.

23.   The appellant was admittedly appointed to the post, in furtherance  to
the 1998 Scheme, in the year 2002 (while  other  appellants  were  appointed
during the period  of  2001-2003).    The  instructions  which  specifically
dealt with the compassionate appointments were issued by  office  memorandum
dated 4th July, 2002. Neither  the  Memorandum  dated  16th  May,  2001  nor
Memorandum dated 4th July, 2002 stated that the restrictions  sought  to  be
imposed were applicable retrospectively or even retroactively.   The  rights
of these persons had been  settled,  the  respondent  and  others  had  been
appointed to the posts and they  had  already  worked  in  their  respective
posts before the notice of termination were issued to them  at  the  end  of
year 2004.   No data or material has been placed by  the  government  before
us even to support the contention that under the effect of the  instructions
of the year 1998, these persons  were  appointed  in  excess  of  the  posts
provided under the Scheme.   Both these office memorandums were expected  to
operate prospectively and thus the rights which had been settled  could  not
be re-settled.    The stand of the appellant that it was  a  discrepancy  or
an error does not stand to any reason and must be  rejected.    It  is  also
undisputed before us that the appointments  of  the  respondent  and  others
were made on the basis of the vacancies existing against the year 2000  when
the instructions of 1998 were in operation, free of any restriction.

24.   In the meanwhile and as already  noticed,  another  office  memorandum
came to be issued on 14th June, 2006 amending  the  restrictions  placed  by
the office memorandum dated 16th May, 2001.  The memorandum  of  14th  June,
2006 in fact requires as to how the vacancies available  for  making  direct
recruitment are to  be  calculated.    It  is  not  even  the  case  of  the
appellants before us that in face  of  the  memorandums,  this  exercise  in
terms of this memorandum was ever undertaken by the  appellants.    It  will
be a contradictory stand, if on the one hand, the appellants  are  permitted
to treat office memorandums including  office  memorandum  dated  16th  May,
2001 as retrospective while on the other they treat office memorandum  dated
14th June, 2006 as prospectively.    The High Court in  the  operative  part
of  its  judgment  has  clearly  observed  that  the  authorities  have   to
reconsider the matter in the light of instructions issued in the  memorandum
dated 14th June, 2006.   We are unable to find any error of jurisdiction  or
otherwise in the said finding returned by the High Court.

25.   Despite the fact that  the  judgment  of  the  Central  Administrative
Tribunal (for short “the Tribunal”) has been upheld by the  High  Court,  we
are unable to contribute and sustain the view taken  by  the  Tribunal  that
the Memorandum dated 16th May,  2001  frustrated  the  very  object  of  the
Scheme for Compassionate Appointment  and  on  that  ground  alone,  it  was
liable to be declared invalid.  As already noticed,  both  the  matters  are
policy matters of the State  and  for  valid  and  proper  reasons,  without
infringing the spirit of Article 14 and 16 of the  Constitution.  The  State
can frame its policy, where it is for economic reasons, least such  decision
would be open to judicial review to that  extent.    In  the  present  case,
there is some ambiguity created by  issuance  of  office  memorandums  dated
16th May, 2001 and 14th June, 2006 and the enforcement of  the  former  vide
office memorandum dated 4th July, 2002 in relation to the implementation  of
Compassionate Appointment Scheme of 1998.   Thus, it is not  only  desirable
but necessary  that  the  competent  authority  should  issue  comprehensive
guidelines squarely covering the issue, but  they  cannot  tamper  with  the
existing rights of the appointees.

26.   To contend that the existing status should not be  disturbed  by  this
Court, the learned counsel appearing for the respondent heavily relied  upon
the judgment of this Court in Union of  India  and  Others  v.  K.P.  Tiwari
[(2003) 9 SCC 129], where the Court noticed in para 4 of the  judgment  that
“it is unnecessary in this case to examine either questions of law  or  fact
arising in  the  matter.  Suffice  to  say  that  the  respondent  has  been
appointed now and has been in service for more than five years.  We  do  not
think, it would be appropriate to disturb that state of  affairs  by  making
any other order resulting in uprooting the respondent from his livelihood”.


27.   As is evident from this judgment,  no  law  has  been  stated  by  the
Court, however it was stated that in the facts of  that  case,  it  was  not
appropriate to disturb the appointment  at  that  stage.   We  may  usefully
refer to another judgment of this Court in the case of Balbir Kaur and  Anr.
v. Steel Authority of India Ltd. and Others etc. etc. [(2000)  6  SCC  493],
where this Court held as under:-


        “19. Mr Bhasme further contended that  family  members  of  a  large
        number of the employees have already availed of the  Family  Benefit
        Scheme and as such it would be taken to be otherwise more beneficial
        to the employee concerned. We are not  called  upon  to  assess  the
        situation but the  fact  remains  that  having  due  regard  to  the
        constitutional  philosophy  to  decry  a  compassionate   employment
        opportunity would neither be fair nor  reasonable.  The  concept  of
        social justice is the yardstick to the justice administration system
        or the legal justice and as Roscoe Pound pointed  out  the  greatest
        virtue of law is in its adaptability and  flexibility  and  thus  it
        would be otherwise an obligation for the law courts  also  to  apply
        the law depending upon the situation since the law is made  for  the
        society and whatever is beneficial for the society, the endeavour of
        the law court would be to administer justice having  due  regard  in
        that direction.”


28.   In the above case, the Court has placed emphasis upon the  concept  of
socio-economic  justice  and  granted  relief  to  the  appellant  and,   in
addition, directed employment of one of the family members.

29.   In view of the above settled position of law and  the  fact  that  the
memorandums could not be given retrospective effect, we do not  consider  it
appropriate to interfere with the judgment of the High  Court.   The  spirit
of the Scheme was to provide relief to the family members  of  the  deceased
persons and thus on the yardstick of social justice, such relief  cannot  be
withdrawn on the ground of some  alleged  discrepancy  which  has  not  been
supported by any data, is unreasonable and  therefore,  even  unsustainable.
The appellants must state appropriate reasons and provide the expected  data
on record if they expect the Court to come to a different  conclusion.    As
already noticed, the appellants have miserably  failed  to  place  any  such
data on the basis of the Memorandum dated 14th June, 2006.

30.   For the  reasons  afore-stated,  we  dismiss  all  these  appeals  and
further issue the following directions;

   A)  The appointments of the respondents will not be  interfered  with  by
      the appellants on the strength of the memorandum dated 4th July, 2002.

   B) The Office Memorandum dated 16th May, 2001, 14th June,  2006  and  4th
      July, 2002 have in relation  to  the  1998  Scheme  for  Compassionate
      Appointment caused some confusion on the one hand  and  while  on  the
      other they have prejudicially affected the rights of large  number  of
      heirs of the employees who died in harness.     Thus,  we  direct  the
      appellants to issue comprehensive, certain and unambiguous  directions
      which shall put an end to such unnecessary controversies.

31.   However, there shall be no orders as to costs.



                                         ……...….…………......................J.
                                       (Swatanter Kumar)






                                   .…………..................................J.
                                         (Sudhansu Jyoti Mukhopadhaya)
New Delhi,
December 13, 2012

One Saiyed Hussain Abbas Rizwi, respondent No.1 herein, claiming to be a public spirited citizen, filed an application before the Commission (appellant herein) under the Right to Information Act, 2005 (for short “the Act”) on 16th December, 2008 seeking information in relation to eight queries. These queries concerned the interview which was held on 30th September, 2002 and 1st October, 2002 by the Commission with regard to the above advertisement. These queries, inter alia, related to providing the names, designation and addresses of the subject experts present in the Interview Board, names and addresses of the candidates who appeared, the interview statement with certified photocopies of the marks of all the candidates, criteria for selection of the candidates, tabulated statement containing average marks allotted to the candidates from matriculation to M.Sc. during the selection process with the signatures of the members/officers and certified copy of the merit list.= 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/co- ordinators/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/co-ordinators/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.”The above reasoning of the Bench squarely applies to the present case as well. The disclosure of names and addresses of the members of the Interview Board would ex facie endanger their lives or physical safety. The possibility of a failed candidate attempting to take revenge from such persons cannot be ruled out. On the one hand, it is likely to expose the members of the Interview Board to harm and, on the other, such disclosure would serve no fruitful much less any public purpose. Furthermore, the view of the High Court in the judgment under appeal that element of bias can be traced and would be crystallized only if the names and addresses of the examiners/interviewers are furnished is without any substance. The element of bias can hardly be co-related with the disclosure of the names and addresses of the interviewers. Bias is not a ground which can be considered for or against a party making an application to which exemption under Section 8 is pleaded as a defence. We are unable to accept this reasoning of the High Court. Suffice it to note that the reasoning of the High Court is not in conformity with the principles stated by this Court in the CBSE case (supra). The transparency that is expected to be maintained in such process would not take within its ambit the disclosure of the information called for under query No.1 of the application. Transparency in such cases is relatable to the process where selection is based on collective wisdom and collective marking. Marks are required to be disclosed but disclosure of individual names would hardly hold relevancy either to the concept of transparency or for proper exercise of the right to information within the limitation of the Act. 31. For the reasons afore-stated, we accept the present appeal, set aside the judgment of the High Court and hold that the Commission is not bound to disclose the information asked for by the applicant under Query No.1 of the application.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NO.     9052            OF 2012
                  (Arising out of SLP (C) No.20217 of 2011)


Bihar Public Service Commission                 ... Appellant

                                   Versus

Saiyed Hussain Abbas Rizwi & Anr.          ... Respondents



                               J U D G M E N T


Swatanter Kumar, J.


1.    Leave granted.

2.    The Bihar Public  Service  Commission  (for  short,  ‘the  Commission)
published advertisement No.6 of 2000 dated  10th  May,  2000  in  the  local
papers of the State of Bihar declaring its intention to fill  up  the  posts
of ‘State Examiner of Questioned Documents’, in Police Laboratory  in  Crime
Investigation Department, Government of Bihar,  Patna.   The  advertisement,
inter alia, stated that  written  examination  would  be  held  if  adequate
number  of  applications  were  received.   As  very   limited   number   of
applications were received, the Commission, in terms of  the  advertisement,
decided against the  holding  of  written  examination.   It  exercised  the
option to select the candidates for appointment to  the  said  post  on  the
basis of viva voce test alone.  The  Commission  completed  the  process  of
selection and recommended the panel of selected candidates to the  State  of
Bihar.

3.    One Saiyed Hussain Abbas Rizwi, respondent No.1  herein,  claiming  to
be a public spirited citizen, filed an  application  before  the  Commission
(appellant herein) under the Right to Information Act, 2005 (for short  “the
Act”) on 16th December,  2008  seeking  information  in  relation  to  eight
queries.  These queries concerned the  interview  which  was  held  on  30th
September, 2002 and 1st October, 2002 by the Commission with regard  to  the
above advertisement.  These queries, inter alia, related  to  providing  the
names, designation and addresses of  the  subject  experts  present  in  the
Interview Board, names and addresses of the  candidates  who  appeared,  the
interview statement with certified photocopies  of  the  marks  of  all  the
candidates, criteria for selection of the  candidates,  tabulated  statement
containing average marks allotted to the candidates  from  matriculation  to
M.Sc.  during  the  selection   process   with   the   signatures   of   the
members/officers and certified copy of the  merit  list.   This  application
remained pending with the Public Information Officer of the  Commission  for
a considerable time that led to filing  of  an  appeal  by  respondent  No.1
before the State Information  Commission.   When  the  appeal  came  up  for
hearing, the State Information Commission vide its order dated  30th  April,
2009 had directed the  Public  Information  Officer-cum-Officer  on  Special
Duty of the Commission that the information sought  for  be  made  available
and the case was fixed for 27th August, 2009 when the  following  order  was
passed :

           “The applicant is present.  A letter  dated  12.08.2009  of  the
           Public Information Officer,  Bihar  Public  Service  Commission,
           Patna has been  received  whereby  the  required  paragraph-wise
           information which could be  supplied,  has  been  given  to  the
           applicant.  Since the information which could  be  supplied  has
           been given to the applicant, the proceedings  of  the  case  are
           closed.”




4.    At this stage, we may also  notice  that  the  Commission,  vide  its
letter dated 12th August, 2009, had furnished the information nearly to all
the queries of respondent No.1.  It also stated that no  written  test  had
been conducted and that the name, designation and addresses of the  members
of the Interview Board could not be furnished as they were not required  to
be supplied in accordance with the provisions of  Section  8(1)(g)  of  the
Act.

5.    Aggrieved from the said order of  the  Information  Commission  dated
27th August, 2009, respondent No.1 challenged the same  by  filing  a  writ
before the High Court of Judicature at  Patna.   The  matter  came  up  for
hearing before a learned Judge of that Court, who, vide judgment dated 27th
November, 2009 made the  following  observations  and  dismissed  the  writ
petition :

           “If information with regard to them is  disclosed,  the  secrecy
           and the authenticity of the process itself  may  be  jeopardized
           apart from that information would  be  an  unwarranted  invasion
           into  privacy  of  the  individual.   Restricting  giving   this
           information has a larger public purpose behind  it.   It  is  to
           maintain purity of the process of selection.  Thus, in  view  of
           specific  provision  in  Section  8(1)(j),  in  my   view,   the
           information could not be  demanded  as  matter  of  right.   The
           designated authority in that organization also did not  consider
           it right to divulge the information in larger  public  interest,
           as provided in the said provision.”



6.    Feeling aggrieved, respondent No.1 challenged  the  judgment  of  the
learned Single Judge before the Division Bench of that Court  by  filing  a
letters patent appeal being  LPA  No.102  of  2010.   The  Division  Bench,
amongst others, noticed the following contentions :

      (i)    that  third  party  interest  was  involved  in  providing  the
      information asked for and, therefore,  could  properly  be  denied  in
      terms of Section 2(n) read with Sections 8(1)(j) and 11 of the Act.

      (ii)  that respondent No.1 (the applicant) was a mere busybody and not
      a candidate himself and was attempting to meddle with the  affairs  of
      the Commission needlessly.

7.   The Division Bench took  the  view  that  the  provisions  of  Section
8(1)(j) were not attracted in the facts of the case  in  hand  inasmuch  as
this provision had application in respect of law enforcement agency and for
security purposes.  Since no such consideration arose with respect  to  the
affairs of the Commission and its function was in public  domain,  reliance
on the said provision for  denying  the  information  sought  for  was  not
tenable in law.  Thus, the Court in its  order  dated  20th  January,  2011
accepted the appeal, set aside the order of the learned  Single  Judge  and
directed the Commission  to  communicate  the  information  sought  for  to
respondent No.1.  The Court directed the Commission to provide the names of
the members of the Interview Board, while denying  the  disclosure  of  and
providing photocopies of the papers containing the signatures and addresses
of the members of the Interview Board.

8.    The Commission challenging the legality and correctness of  the  said
judgment has filed the present appeal by way of special leave.

9.    The question that arises for consideration in the present case is  as
to whether the Commission was duty bound  to  disclose  the  names  of  the
members of the Interview  Board  to  any  person  including  the  examinee.
Further, when the Commission could take  up  the  plea  of  exemption  from
disclosure of information as contemplated under Section 8  of  the  Act  in
this regard.

10.   Firstly, we must examine the purpose and scheme  of  this  Act.   For
this purpose, suffice would it be to refer to the judgment of this Court in
the case of Namit Sharma v. Union of India [2012 (8)  SCALE  593],  wherein
this Court has held as under :

           “27.   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   non-Government
           institutions suffers  from  several  bottlenecks  including  the
           existing legal framework, lack of infrastructure  at  the  grass
           root 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.”




11.   The scheme of the Act contemplates  for  setting  out  the  practical
regime of right to information for citizens to secure access to information
under the control of public authorities, in order to  promote  transparency
and accountability in the working of every public authority.  It was  aimed
at  providing  free  access  to  information  with  the  object  of  making
governance more transparent and accountable.  Another right  of  a  citizen
protected under the Constitution is the right to privacy.   This  right  is
enshrined within the spirit of Article 21 of the Constitution.   Thus,  the
right to information has to be balanced with the right  to  privacy  within
the framework of law.

12.   Where Section 3 of the Act grants right to citizens to have access to
information,  there  Section  4  places  an  obligation  upon  the   public
authorities to maintain records and  provide  the  prescribed  information.
Once an application seeking information is made, the same has to  be  dealt
with as per Sections 6 and 7 of the Act.  The request for information is to
be disposed of within the time postulated under the provisions of Section 7
of the Act.  Section 8 is one of the most important provisions of  the  Act
as it is an  exception  to  the  general  rule  of  obligation  to  furnish
information.  It gives the category of cases where the public authority  is
exempted from providing the information.  To  such  exemptions,  there  are
inbuilt exceptions under some of the provisions, where  despite  exemption,
the Commission may call upon the authority to furnish  the  information  in
the larger public interest.   This shows the wide scope of these provisions
as intended by the  framers  of  law.   In  such  cases,   the  Information
Commission has to apply its mind whether it is a case of  exemption  within
the provisions of the said section.

13.   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.

14.   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.

15.   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.

16.   Thus, what has to be seen is whether the information  sought  for  in
exercise of 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 organizations 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
third party information, the Commission is required to follow the procedure
prescribed under Section 11 of the Act.

17.   Before the High Court, reliance had been placed upon Section  8(1)(j)
and Section 11 of the Act.  On facts, the controversy in the  present  case
falls within a very narrow compass.  Most of the details asked for  by  the
applicant have already been furnished.  The  dispute  between  the  parties
related only to the first query of the applicant, that is, with  regard  to
disclosure of the names and addresses  of  the  members  of  the  Interview
Board.

18.   On behalf of the Commission, reliance was placed upon Section 8(1)(j)
and Section 11 of the Act to contend that disclosure  of  the  names  would
endanger the life of the members of the interview board and such disclosure
would also cause unwarranted invasion of the privacy of  the  interviewers.
Further, it was contended that this  information  related  to  third  party
interest. The expression ‘third party’ has been defined in Section 2(n)  of
the Act to mean a person other  than  the  citizen  making  a  request  for
information and includes a public authority.  For these reasons, they  were
entitled to the exemption contemplated under Section 8(1)(j) and  were  not
liable to disclose the required  information.   It  is  also  contended  on
behalf of the Commission that the  Commission  was  entitled  to  exemption
under Sections 8(1)(e) and 8(1)(g) read together.

19.   On the contrary, the submission on behalf of the applicant  was  that
it is an information which the  applicant  is  entitled  to  receive.   The
Commission was not entitled to any exemption under any of the provisions of
Section 8, and therefore, was obliged to disclose the said  information  to
the applicant.

20.   In the present case, we are not concerned  with  the  correctness  or
otherwise of the method adopted for selection of the candidates.  Thus, the
fact that no written examination was held  and  the  selections  were  made
purely on the basis  of  viva  voce,  one  of  the  options  given  in  the
advertisement itself, does not arise for our  consideration.   We  have  to
deal only with the plea as to whether the  information  asked  for  by  the
applicant should be directed to be disclosed by the Commission  or  whether
the Commission is entitled to the exemption under the stated provisions  of
Section 8 of the Act.

21.   Section 8 opens with the non obstante language and is an exception to
the furnishing of information as is required under the relevant  provisions
of the Act.  During the course of the hearing, it was not pressed before us
that the Commission is entitled  to  the  exemption  in  terms  of  Section
8(1)(j) of the Act.  In view of this, we do not  propose  to  discuss  this
issue any further nor would we deal with the correctness  or  otherwise  of
the impugned judgment of the High Court in that behalf.

22.   Section 8(1)(e) provides an exemption from furnishing of  information,
if the information available to a person is in  his  fiduciary  relationship
unless the competent authority is  satisfied  that  larger  public  interest
warrants the disclosure of such information.  In terms of  Section  8(1)(g),
the public authority is not obliged to  furnish  any  such  information  the
disclosure of which would endanger  the  life  or  physical  safety  of  any
person or  identify  the  source  of  information  or  assistance  given  in
confidence for law enforcement and  security  purposes.   If  the  concerned
public authority holds the information in fiduciary relationship,  then  the
obligation to furnish information is  obliterated.   But  if  the  competent
authority is still satisfied that in the  larger  public  interest,  despite
such objection, the information should be furnished, it may  so  direct  the
public authority.  The term ‘fiduciary’ refers to a person having a duty  to
act for the benefit of another, showing good faith and condour,  where  such
other person reposes trust and special confidence in  the  person  owing  or
discharging the duty. The term ‘fiduciary relationship’ is used to  describe
a situation or transaction where one person places  complete  confidence  in
another person in regard to his affairs,  business  or  transactions.   This
aspect has been discussed in some detail in the judgment of  this  Court  in
the case of Central Board of Secondary Education (supra).  Section  8(1)(e),
therefore, carves out a protection in  favour  of  a  person  who  possesses
information in his fiduciary relationship.  This protection can  be  negated
by the  competent  authority  where  larger  public  interest  warrants  the
disclosure of such information, in which case, the authority is expected  to
record reasons for its satisfaction.  Another very significant provision  of
the Act is 8(1)(j).  In terms of this provision, information  which  relates
to personal information, 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  would  fall  within  the  exempted  category,
unless the authority concerned is  satisfied  that  larger  public  interest
justifies the disclosure of such  information.   It  is,  therefore,  to  be
understood clearly that it is a statutory exemption which must operate as  a
rule and only in exceptional cases would disclosure be permitted, that  too,
for reasons to be recorded demonstrating satisfaction to the test of  larger
public interest.  It will not be in consonance  with  the  spirit  of  these
provisions, if  in  a  mechanical  manner,  directions  are  passed  by  the
appropriate authority to disclose information  which  may  be  protected  in
terms of the above provisions.   All  information  which  has  come  to  the
notice of or on record of  a  person  holding  fiduciary  relationship  with
another and but for such capacity, such  information  would  not  have  been
provided to that authority, would normally need to be  protected  and  would
not be open to disclosure keeping the  higher  standards  of  integrity  and
confidentiality  of such relationship.  Such exemption  would  be  available
to such authority or department.

23.   The expression ‘public interest’ has to  be  understood  in  its  true
connotation so as to give complete meaning to  the  relevant  provisions  of
the Act.  The expression ‘public interest’ must  be  viewed  in  its  strict
sense with all its exceptions  so  as  to  justify  denial  of  a  statutory
exemption in terms of the Act.   In  its  common  parlance,  the  expression
‘public interest’, like ‘public purpose’, is  not  capable  of  any  precise
definition . It does not have a rigid meaning,  is  elastic  and  takes  its
colour from the statute in which it occurs, the concept  varying  with  time
and state of society and its needs.  [State  of  Bihar  v.  Kameshwar  Singh
(AIR 1952 SC 252)].  It also means the general welfare of  the  public  that
warrants recommendation and protection; something in which the public  as  a
whole has a stake [Black’s Law Dictionary (Eighth Edition)].

24.   The satisfaction has to be arrived at by the  authorities  objectively
and the consequences of such disclosure have to be weighed  with  regard  to
circumstances of a given case.  The decision has to be  based  on  objective
satisfaction recorded for ensuring that  larger  public  interest  outweighs
unwarranted invasion of privacy or other factors stated  in  the  provision.
Certain matters, particularly in relation to appointment,  are  required  to
be dealt with great confidentiality.  The information may come to  knowledge
of the authority  as  a  result  of  disclosure  by  others  who  give  that
information in confidence and with complete faith, integrity  and  fidelity.
Secrecy of such information shall be maintained, thus,  bringing  it  within
the ambit of fiduciary capacity.  Similarly, there may be  cases  where  the
disclosure has no relationship to any public activity or interest or it  may
even cause unwarranted invasion of privacy of  the  individual.   All  these
protections have to be given their due implementation as  they  spring  from
statutory exemptions.  It is not  a  decision  simpliciter  between  private
interest and public  interest.   It  is  a  matter  where  a  constitutional
protection is available to a person with regard to  the  right  to  privacy.
Thus, the public interest has to be construed  while  keeping  in  mind  the
balance factor between right to privacy and right to  information  with  the
purpose sought to be achieved and the purpose that would be  served  in  the
larger public interest, particularly when both these rights emerge from  the
constitutional values under the Constitution of India.

25.   First of all, the Court has to decide whether  in  the  facts  of  the
present case, the Commission  holds  any  fiduciary  relationship  with  the
examinee or the interviewers.  Discussion on this question need  not  detain
us any further as it stands fully answered by a judgment of  this  Court  in
the  case  of  Central  Board  of  Secondary  Education  &  Anr.  v.  Aditya
Bandopadhyay & Ors. [(2011) 8 SCC 497] wherein the Court held as under :

           “40. There are also certain relationships where both the parties
           have to act in a fiduciary capacity treating the  other  as  the
           beneficiary. Examples of these are: a partner vis-à-vis  another
           partner and an employer  vis-à-vis  employee.  An  employee  who
           comes  into  possession  of  business  or   trade   secrets   or
           confidential information relating to the employer in the  course
           of his employment, is expected to act as a fiduciary and  cannot
           disclose it to others. Similarly,  if  on  the  request  of  the
           employer or official superior or the head of  a  department,  an
           employee furnishes his personal details and information,  to  be
           retained in confidence, the employer, the official  superior  or
           departmental head is expected to hold such personal  information
           in confidence as a fiduciary, to be made  use  of  or  disclosed
           only  if  the  employee’s  conduct  or  acts  are  found  to  be
           prejudicial to the employer.

           41. In a philosophical and very wide sense, examining bodies can
           be said to act in a fiduciary capacity, with  reference  to  the
           students who participate in an examination, as a Government does
           while governing its citizens or as the present  generation  does
           with reference to the future  generation  while  preserving  the
           environment. But the words “information available to a person in
           his fiduciary relationship” are used in Section 8(1)(e)  of  the
           RTI Act in its normal and well-recognised  sense,  that  is,  to
           refer to persons who act in a fiduciary capacity, with reference
           to a  specific  beneficiary  or  beneficiaries  who  are  to  be
           expected to be protected or benefited  by  the  actions  of  the
           fiduciary—a trustee with reference to  the  beneficiary  of  the
           trust, a guardian with reference to a  minor/physically  infirm/
           mentally challenged, a parent  with  reference  to  a  child,  a
           lawyer or a chartered accountant with reference to a  client,  a
           doctor or nurse with reference  to  a  patient,  an  agent  with
           reference to a principal, a partner with  reference  to  another
           partner,  a  Director  of  a  company  with   reference   to   a
           shareholder, an executor with reference to a legatee, a Receiver
           with reference to  the  parties  to  a  lis,  an  employer  with
           reference  to  the  confidential  information  relating  to  the
           employee,  and  an   employee   with   reference   to   business
           dealings/transaction of the employer. We do not find  that  kind
           of fiduciary relationship between the  examining  body  and  the
           examinee, with reference to the  evaluated  answer  books,  that
           come into the custody of the examining body.

           42. The duty of examining bodies is to  subject  the  candidates
           who have completed a course of study or a period of training  in
           accordance   with   its   curricula,    to    a    process    of
           verification/examination/testing of their knowledge, ability  or
           skill, or  to  ascertain  whether  they  can  be  said  to  have
           successfully  completed  or  passed  the  course  of  study   or
           training. Other specialised examining bodies may simply  subject
           the candidates to a process of verification by  an  examination,
           to find out whether such person is  suitable  for  a  particular
           post, job or assignment. An examining body, if it  is  a  public
           authority entrusted with public functions, is  required  to  act
           fairly, reasonably, uniformly and consistently for  public  good
           and in public interest.

           43. This Court has explained the role of an  examining  body  in
           regard to the process of holding examination in the  context  of
           examining whether it amounts to  “service”  to  a  consumer,  in
           Bihar School Examination Board v. Suresh  Prasad  Sinha  in  the
           following manner: (SCC p. 487, paras 11-13)

                 “11. … The  process  of  holding  examinations,  evaluating
                 answer scripts, declaring results and issuing  certificates
                 are different stages of a single  statutory  non-commercial
                 function. It is not possible to  divide  this  function  as
                 partly statutory and partly administrative.

                       12.  When   the   Examination   Board   conducts   an
                 examination in discharge of its statutory function, it does
                 not offer its ‘services’  to  any  candidate.  Nor  does  a
                 student who participates in the  examination  conducted  by
                 the Board, hire or avail of any service from the Board  for
                 a  consideration.  On  the  other  hand,  a  candidate  who
                 participates in the examination conducted by the Board,  is
                 a person who has  undergone  a  course  of  study  and  who
                 requests the Board to test him as to whether he has imbibed
                 sufficient knowledge to be fit to  be  declared  as  having
                 successfully completed the said course of education; and if
                 so, determine his position or rank or competence  vis-à-vis
                 other examinees. The process is not,  therefore,  availment
                 of a service by a student, but participation in  a  general
                 examination conducted by the Board to ascertain whether  he
                 is eligible and fit to be considered as having successfully
                 completed the secondary education course.  The  examination
                 fee paid by  the  student  is  not  the  consideration  for
                 availment of any service,  but  the  charge  paid  for  the
                 privilege of participation in the examination.

                       13. … The fact that in the course of conduct  of  the
                 examination, or evaluation of answer scripts, or furnishing
                 of  marksheets  or  certificates,   there   may   be   some
                 negligence, omission or deficiency, does  not  convert  the
                 Board into a service  provider  for  a  consideration,  nor
                 convert the examinee into a consumer….”

           It cannot therefore be said that the  examining  body  is  in  a
           fiduciary relationship either with reference to the examinee who
           participates in the  examination  and  whose  answer  books  are
           evaluated by the examining body.

                    XXX              XXX              XXX

           49. The examining body entrusts the answer books to an  examiner
           for evaluation and pays the examiner for his expert service. The
           work of evaluation and marking the answer book is an  assignment
           given by the examining body to the examiner which he  discharges
           for a consideration. Sometimes, an examiner  may  assess  answer
           books, in the course of his employment, as a part of his  duties
           without any specific or special remuneration.  In  other  words,
           the examining body is the “principal” and the  examiner  is  the
           “agent” entrusted with the work,  that  is,  the  evaluation  of
           answer books. Therefore,  the  examining  body  is  not  in  the
           position of a fiduciary with reference to the examiner.”


                                                         (emphasis supplied)


26.   We, with respect, would follow the above reasoning of the Bench  and,
thus, would have no hesitation in holding that in  the  present  case,  the
examining body (the Commission), is in no fiduciary relationship  with  the
examinee (interviewers) or the candidate interviewed.  Once  the  fiduciary
relationship is not  established,  the  obvious  consequence  is  that  the
Commission cannot claim exemption as contemplated under Section 8(1)(e)  of
the Act.   The  question  of  directing  disclosure  for  a  larger  public
interest, therefore, would not arise at all.

27.   In CBSE case (supra), this Court had clearly stated the view that  an
examiner who examines the answer sheets holds the relationship of principal
and agent with the examining body.  Applying the same principle, it has  to
be held that the interviewers hold the position of an ‘agent’ vis-a-vis the
examining body which is the ‘principal’.  This relationship per se  is  not
relatable to any of the exemption clauses but there  are  some  clauses  of
exemption, the foundation of which is not a  particular  relationship  like
fiduciary relationship.  Clause 8(1)(g) can come into play with any kind of
relationship.  It requires that where the disclosure of  information  would
endanger the life or physical safety of any person or identify  the  source
of information or assistance given in confidence  for  law  enforcement  or
security purposes, the information need not be provided.   The  High  Court
has rejected the application of Section  8(1)(g)  on  the  ground  that  it
applies only with regard to law enforcement or security purposes  and  does
not have general application.  This reasoning of the High Court is contrary
to the very language of  Section  8(1)(g).   Section  8(1)(g)  has  various
clauses in itself.

28.   Now, let us examine the provisions of Section  8(1)(g)  with  greater
emphasis on the expressions that are relevant to the  present  case.   This
section concerns with the cases where no obligation is cast upon the public
authority to furnish information, the disclosure of  which  would  endanger
(a) the life (b) physical safety of any person.  The  legislature,  in  its
wisdom, has  used  two  distinct  expressions.   They  cannot  be  read  or
construed as being synonymous.  Every expression used  by  the  Legislature
must  be  given  its  intended  meaning  and,   in   fact,   a   purposeful
interpretation.  The expression  ‘life’  has  to  be  construed  liberally.
‘Physical safety’ is a restricted  term  while  life  is  a  term  of  wide
connotation.  ‘Life’ includes reputation of an individual as  well  as  the
right to live with freedom.  The expression ‘ life’ also appears in Article
21 of the Constitution and has been provided a wide meaning so as to  inter
alia include within its ambit the right to  live  with  dignity,  right  to
shelter, right to basic needs  and  even  the  right  to  reputation.   The
expression life under section 8(1(g) the Act, thus, has to be understood in
somewhat similar dimensions.  The term ‘endanger’ or  ‘endangerment’  means
the act or an instance of putting someone or something in danger;  exposure
to peril or such  situation  which  would  hurt  the  concept  of  life  as
understood in  its  wider  sense  [refer  Black’s  Law  Dictionary  (Eighth
Edition)]. Of course, physical safety would mean the likelihood of  assault
to physical existence of a person.  If in  the  opinion  of  the  concerned
authority there is danger to life or  possibility  of  danger  to  physical
safety, the State Information Commission would be entitled  to  bring  such
case within the exemption of Section 8(1)(g) of the Act.  The disclosure of
information which would endanger the life or physical safety of any  person
is one  category  and  identification  of  the  source  of  information  or
assistance given in confidence for law enforcement or security purposes  is
another  category.   The  expression  ‘for  law  enforcement  or   security
purposes’ is to be read ejusdem generis only to the expression  ‘assistance
given in confidence’ and not to any other clause of the  section.   On  the
plain reading of Section 8(1)(g), it becomes clear that the  said clause is
complete in itself.  It cannot  be  said  to  have  any  reference  to  the
expression ‘assistance given in confidence for law enforcement or  security
purposes’.  Neither the language of the  Section  nor  the  object  of  the
Section requires such interpretation.  It would not further  the  cause  of
this section.  Section 8  attempts  to  provide  exemptions  and  once  the
language of the Section  is  unambiguous  and  squarely  deals  with  every
situation, there is no occasion for the Court to frustrate the very  object
of the Section.  It will amount to misconstruing the provisions of the Act.
 The High Court though has referred to Section 8(1)(j) but  has,  in  fact,
dealt with the language of Section 8(1)(g).   The  reasoning  of  the  High
Court, therefore, is neither clear in reference to provision of the Section
nor in terms of the language thereof.

29.   Now, the ancillary question that arises is  as  to  the  consequences
that the interviewers or the  members  of  the  interview  board  would  be
exposed to in the event their names and addresses or individual marks given
by them are directed to be disclosed.  Firstly, the members  of  the  Board
are likely to be exposed to danger  to  their  lives  or  physical  safety.
Secondly, it will hamper  effective  performance  and  discharge  of  their
duties as examiners.  This is the information available with the  examining
body in confidence with the interviewers.  Declaration of collective  marks
to the candidate is one thing and that, in fact, has been permitted by  the
authorities as well as the High Court.  We see no error of jurisdiction  or
reasoning in this regard.  But direction to furnish the names and addresses
of the interviewers would certainly  be  opposed  to  the  very  spirit  of
Section 8(1)(g) of  the  Act.   CBSE  case  (supra)  has  given  sufficient
reasoning in this regard and at this stage, we may refer to  paragraphs  52
and 53 of the said judgment which read as under :

           “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  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/co-
           ordinators/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/co-ordinators/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.”




30.   The above reasoning of the Bench squarely applies to the present case
as well.  The disclosure of names and  addresses  of  the  members  of  the
Interview Board would ex facie endanger their  lives  or  physical  safety.
The possibility of a failed candidate attempting to take revenge from  such
persons cannot be ruled out.  On the one hand, it is likely to  expose  the
members of the Interview Board to harm and, on the other,  such  disclosure
would serve no fruitful much less any  public  purpose.   Furthermore,  the
view of the High Court in the judgment under appeal that  element  of  bias
can be traced and would be crystallized only if the names and addresses  of
the examiners/interviewers are furnished is  without  any  substance.   The
element of bias can hardly be co-related with the disclosure of  the  names
and addresses of the interviewers.  Bias is  not  a  ground  which  can  be
considered for or against a party making an application to which  exemption
under Section 8 is pleaded as a defence.  We  are  unable  to  accept  this
reasoning of the High Court.  Suffice it to note that the reasoning of  the
High Court is not in conformity with the principles stated by this Court in
the CBSE case (supra).  The transparency that is expected to be  maintained
in such process would not take within  its  ambit  the  disclosure  of  the
information called for under query No.1 of the  application.   Transparency
in such cases is relatable to the  process  where  selection  is  based  on
collective wisdom  and  collective  marking.   Marks  are  required  to  be
disclosed but disclosure of individual names would  hardly  hold  relevancy
either to the concept of transparency or for proper exercise of  the  right
to information within the limitation of the Act.

31.   For the reasons afore-stated, we accept the present appeal, set aside
the judgment of the High Court and hold that the Commission is not bound to
disclose the information asked for by the applicant under Query No.1 of the
application.


                                       ………...….………….......................J.
                                                      (Swatanter Kumar)






                                …..…………...................................J.
                                               (Sudhansu Jyoti Mukhopadhaya)


New Delhi,
December 13, 2012