To Date :
The Hon’ble Chief Justice of India (CJI)
Supreme Court of India,
Subject:- Letter highlighting UPSC’s attitude and conduct with respect to transparency and accountability(Read RTI Act) & legal issues involved there with ,including value of SC case-laws.
I am a law-abiding citizen of India, a republic in which constitution and rule of law stands supreme and the apex judicial institution i.e. Supreme Court of India is the guardian and upholder of the same.
Sir, I am making this urgent appeal to you, on a very important matter, as I want you and your fellow judges to exercise their superior wisdom & take cognizance of the unbecoming attitude and conduct of another constitutional body i.e. Union Public Service Commission(UPSC),which is mandated to recruit civil servants of the country. In present circumstances, when there is country-wide outcry against corruption and blame is also being shared by bureaucrats, certainly top-recruiting agency is not setting an example on the front of transparency and accountability. Like authority and responsibility, transparency & accountability should also start from the top but sadly UPSC is blatantly violating these sacred principles which are also enshrined in the RTI act and instead, it is setting an example to the contrary.
Sir, irrespective of the RTI case-law emanating from the August 2011’s (Its been more than a year now) path-breaking judgment of Hon’ble Supreme Court in CBSE & Anr. Versus Aditya Bandopadhyay & Ors. case, in which constitutional bodies like Assam PSC and Bihar PSCs were also parties, UPSC is still persisting with its unyielding and conservative attitude and is still not providing any photocopy of evaluated answer sheets using one pretext or another; while under the concerned judgment of Hon’ble Supreme Court , every examinee has already been given, the right to access his evaluated answer-books, by either inspecting them or by taking certified copies thereof.
Now, under such situation when UPSC is judging itself out of the purview of this case-law and is also misleading other agencies including State Public Service Commission (PSCs) in this regard, the value of case law concept has itself come under cloud .If candidates related to each and every exam body(like UPSC),has to go through lengthy legal process all over again ,from bottom to top, when already Supreme Court case law is there then whats the benefit of case law? There can’t be different parameters for different agencies under RTI. If UPSC’s contention is upheld, soon even those agencies including PSCs, which are complying at the moment might think otherwise, thereby eroding the value of Supreme Court case law judgment and consequently a flood of litigation on a matter, already decided by Supreme Court, will emerge, with respect to each and every agency, which were not party to the Aditya Bandopadhyay case .
Sir, It is pertinent to mention here that UPSC is also blatantly violating the case law laid down by Hon’ble Supreme Court in UPSC vs Shiv Shambhu , in which apex court has upheld to disclose the raw marks ,scaled/moderated marks and scaling/moderation formula under RTI act, 2005 by its order dated 18/11/2010. But, till date UPSC has not disclosed the raw marks, scaled /moderated marks, moderation formula to any candidates under RTI application. Thus, making mockery of Hon’ble Apex Court’s case law.
Sir,I am apprehensive that UPSC’s reluctance to disclose certified photocopies of evaluated answer-sheets, raw marks, scaled/moderated marks under the RTI ,is because of the reason that it can ,for the certain extant, expose the arbitrary and unaccountable modification/may be manipulation excercised in the name of “ moderation” in Civil Services Exam(CSE) evaluation. As present implementation of concept of moderation is obscure, selective, non-scientific (not formula based instead human-agency based),without any detailed rules, without transparent accountability and appraisal mechanisms, without reasonable disclosure of standards of moderation. Then the resistance shown by UPSC to remove the cover around it, in the name of maintaining integrity of its secret internal functioning further raises the eye-brows. Thus it seems that in a cut-throat competition its not the absolute performance of the candidates but the performance modified through this arbitrary and shady implementation of Moderation, is the decisive factor and it manifests irrational behaviour on part of the system, which is claimed to be full-proof by UPSC but ironically kept hidden beyond reasonable levels.
It is quite astonishing to know that the apex constitutional commission is fighting near about 1000 cases related to anomalies in exams conducted by it and has spent more than Rs 105 crore on its legal cell, in last 5years, as revealed by RTI and reported by newspapers and yet it is not providing the basic information under RTI like how many supplementary sheets were used by a candidate!! The institution is not leaving any stone unturned in creating obstacles in the unorganized candidate’s (many of them genuinely considers themselves victims & seek justice) quest for exercising their legal rights when It has already been held that no system can be absolutely full-proof and examinee has right to satisfy himself.
UPSC is giving all sort of general and vague responses of specific queries under RTI.A candidate can not challenge this resourceful institution at various forums, including courts, on each and every such RTI reply, which hides more and reveals less. Hon’ble Supreme Court should look at the overall attitude of UPSC on RTI in a holistic manner and should Join the Dots to Find the HOLE. Infact ,these replies under RTI process are used as dilatory tactics in effect, as there is another aspect too, which is the fact that these answer-sheets, which are the basic evidence as far as disputes about evaluation are concerned, can not remain forever with their custodian i.e. UPSC. Sooner or later UPSC will be legally entitled to destroy them according to the related law/rule and thus resulting in fait-accompli for those victims who got erratic marks and wanted to pursue the legal-course for demanding justice.
Not only that, on January 31,2012,it has changed its record retention schedule with respect to answer-sheets, which now, in normal case, enables it to destroy answersheets just 45 days after the display of marksheets on its website i.e. 45 days from May 17 i.e.July2,2012 for Civil Services Main Exam-2011 . Now, Both the logic and process of revision of this record retention schedule of answer sheets are also challenged before the court of law. Under the rules framed under Public Records Act,1993,National Archives of India(NAI)must approve/vet revision of retention schedule by UPSC. But as revealed by RTI response of NAI, UPSC has not even bothered to send draft of this revision to NAI and instead it has implemented its draft without following due process and mandatory approval. This revision too appears to have been made just to dilute the impact of Aditya Bandopadhyaya judgment. Moreover, now this illegal retention schedule, which according to UPSC’s reply was changed without any meeting, has already been used to weed out answersheets (According to UPSC RTI reply) irrespective of pending court-cases and it is nothing but travesty of justice and Supreme Court must intervene immediately.
Sir, UPSC is openly making a mockery of RTI and even Indian judicial system by its non-compliance of orders/judgments of CIC and even courts and instead extravagantly using the tax-payers’ money on its costly legal-cell, just to avoid any transparency and accountability in its functioning and it is doing so arrogantly and with impunity as only helpless and unorganized candidates are fighting against it. It further plays on the psyche of victims, frustrates and exhausts them even more by delaying judicial process with its costly legal cell bringing in novel antics. Justice delayed is also Justice denied, this maxim holds well here.
Number of similar cases (including PIL at Bombay HC)on answer-sheets, raw marks, scaled/moderated marks issue, are pending in various courts of higher judiciary. So, sooner or later Supreme Court has to decide this matter. Sooner will be better not only for aggrieved candidates ,who wanted to exercise their legal right as upheld by Supreme Court for other exam-conducting bodies, but also for transparency,accountability and hence,credibility of a constitutional body like UPSC, particularly in these times when civil servants recruited by it do not command desired degree of credibility in public-perception.
So, in national interest, there is an unquestionable urgency to clear reasonable doubts around credibility and accountability of such an important apex recruitment agency, which selects the civil servants and creates foundation of future Indian bureaucracy, and to uphold the cherished principles of transparency and accountability in UPSC’s functioning, without any more delay.
So,after looking at the larger picture,Hon’ble Supreme Court should promptly scrutinize these cases, to either attest UPSC’s self-accorded special status or reject the same and should ask UPSC to propely comply with the RTI Act in right spirit. Supreme Court has done this in case of institutions like ICAI(Institute of Charted Accounts of India) and here too it must ask these reasonable questions to UPSC and ultimately settle the COLLECTIVE matters related with its functioning once for all.
Sir, I thank you for giving your precious time for reading this & I must say that after reading this, your conscience must have been touched and I hope that you, in your capacity as CJI, will do the needful and exercise legal options available with you as It is quite clear that without Supreme Court’s intervention on the matter (SC case laws) ,lakhs of UPSC candidates would not be able to exercise their legal rights and injustice will continue unabated.
Note-There are documents available in public-domain which support everything, which has been mentioned in this write-up.