VISITORS

Saturday 28 July 2012

SUPREME COURT OF INDIA IN CAG vs K.S.JAGANNATHAN SAID THAT THE WRIT JURISDICTION OF HIGH COURT IS VERY WIDE , EVEN IF ALTERNATIVE REMEDY IS AVAILABLE TO PETITIONERS ,BUT THAT IS LESS CONVINIENT, LESS EFFECTIVE AND LESS BENEFICIAL,THEN INSPITE OF THAT ALTERNATIVE REMEDY AVAILABLE PETITIONER CAN APPROCH WRIT JURISDICTION OF HIGH COURT.



We can use this decision/case law if High Court ask us to follow normal RTI procedure/ ask us to approch Central Information Commission for our demand of answersheet and raw marks, then we can quote this decision wherein Hon'ble Supreme Court says on page no 5, that the writ jurisdiction of High Court is wide enough, even if  the alternative remedy is available , if that is less convinient, less effective, less beneficial ,then petitioner can approch High Court by evoking its writ jurisdiction.(previously, we have taken help of Delhi High Court decision wherein it is said that if the law is finally settled by Hon'ble Supreme Cout, then there is no need to follow normal RTI procedure as it will endlessly delay the matter. But, as it is High Court  decision, it is not binding on other high court, in such case we can take help of abovementioned decision of Hon'ble Supreme Court.





                                 











------------------------------------------------------------------------------------------------------------
 WP (C) 218/2011 of High Court of Delhi:- in point 7 says that "This Court finds that with the law having been settled by this Court, as
  affirmed by the Supreme Court, there is no need to relegate the Petitioners to
  the process under the RTI Act. Such a course will needlessly delay matters."





 IN THE HIGH COURT OF DELHI AT NEW DELHI

  43
  W.P. (C) 218/2011


  ANGESH KUMAR AND ORS .....
  Petitioners
  Through Mr. Yakesh Anand with
  Mr. Murari Kumar, Advocate


versus


  UNION PUBLIC SERVICE COMMISSION
  AND ANR .....
  Respondents
  Through Mr. Naresh Kaushik with
  Ms. Aditi Gupta, Advocate for R-1/UPSC.
  Mr. B.V. Niren, Advocate for UOI.


  CORAM: JUSTICE S. MURALIDHAR

  
 O R D E R
  
 13.01.2011

  CM APPL No. 394/2011

  Exemption allowed subject to all just exceptions.

  The application is disposed of.


  WP (Civil) No. 218/2011

  1. This writ petition has been filed by twelve Petitioners who were unsuccessful
  in the Civil Services (Preliminary) Examination, 2010 (?Prelims 2010?) seeking a
  direction to Respondent No. 1, Union Public Service Commission (?UPSC?), to
  disclose the details of marks (raw and scaled) obtained by them and the
  successful candidates in the said examination.

  2. Earlier, the UPSC had filed Special Leave Petition (Civil) No. 23250 of 2008
  challenging the decision dated 17th April 2007 of the learned Single Judge of
  this Court in Writ Petition (Civil) No. 17583 of 2006 (UPSC v. Central
  Information Commission) and the judgment dated 3rd September 2008 passed by the
  Division Bench in LPA No. 313 of 2007 (UPSC v. Shiv Shambu) which upheld the
  decision of the Central Information Commission (?CIC?) in which the following
  directions were issued in relation to the candidates who sat for the Prelims
  2006 examination:


  ?(i) The UPSC shall, within two weeks from the date of this order,
  disclose the marks assigned to each of the Applicants for the Civil Services
  Preliminary Examination 2006 in General Studies and in Option Papers; and

  (ii) The UPSC, within two weeks from the date of this order, shall also
  disclose the cut-off marks fixed in respect of the General Studies paper and in
  respect of each of the Option Papers and if no such cut-off marks are there, it
  shall disclose the subject-wise marks assigned to short-listed candidates; and

  (iii) The UPSC shall examine and consider under Section 8 (1) (d) of the
  RTI Act the disclosure of the scaling system as it involves larger public
  interest in providing a level playing field for all aspirants and shall place
  the matter before the Competent Authority within one month from the date of this
  order. This will also cover the issue of disclosure of model answers, which we
  recommend should in any case be made public from time to time. In doing so, it
  shall duty take into account the provisions of Section 9 of the RTI Act.?

  3. The above SLP has since been dismissed by the Supreme Court on 18th November
  2010 in view of the statement by the UPSC before that Court that the UPSC had
  decided to adopt a changed format for the Civil Services Examination to be held
  in 2011.

  4. Meanwhile, the Petitioners herein filed Writ Petition (Civil) No. 6939 of
  2010 in this Court seeking directions to the UPSC to disclose, inter alia, the
  details of marks (raw and scaled) awarded to them in the Prelims 2010. In view
  of the stay granted by the Supreme Court in SLP (Civil) No. 23250 of 2008, the
  said writ petition was dismissed by this Court on 8th October 2010. Thereafter,
  the Petitioners challenged the said order dated 8th October 2010 before the
  Supreme Court in SLP (C) No. 32443 of 2010, which was disposed of on 3rd
  December 2010 by the following order:
  ?The issue raised in this SLP was earlier decided by the Delhi High Court
  against the Respondent, the Union Public Service Commission (vide judgment and
  order dated 17th April 2007 passed by a single Judge of the Delhi High Court in
  Writ Petition (Civil) No. 17583 of 2006 and affirmed by the Division Bench of
  the High Court by judgment and order dated 3rd September 2008 in LPA No. 313 of
  2007).

  In the case of the Petitioners the Delhi High Court refrained from passing any
  order observing that the Union Public Service Commission had filed SLP (C) No.
  23250 of 2008 against its order dated 3rd September 2008 in LPA No. 313 of 2007
  and in that SLP this Court had granted stay against the operation of its
  judgment.

  During the pendency of the earlier case [SLP (C) No. 23250 of 2008) the UPSC
  changed the format of its examination for the Central Services. Hence, when the
  earlier SLP came for hearing this Court dismissed it observing that there was no
  need for any adjudication by this Court in the matter since the UPSC had changed
  the pattern of its examination.

  That being the position the order passed by the Delhi High Court in the earlier
  case holds the field and the case of the present Petitioner will also be
  governed by that order.

  This SLP is disposed of with the aforesaid observations and directions.?

  5. Consequent to the above order, the present writ petition has been filed for a
  direction to the UPSC to disclose to the Petitioners the following information


  sought by them in a letter dated 21st December 2010 addressed to the Chairman,
  UPSC:
  ?(1) Copy of the cut-off marks list for optional subjects and General studies.
  (2) Separate cut-off marks for every subject and for General study by different
  categories such as General, OBC, SC and ST including copies of relevant
  documents.
  (3) Details of the marks (raw and scaled) awarded to the following candidates in
  the Civil Services (Prelims) Examination 2010.
  (4) The model answers solution for each series of every subject and General
  Studies.
  (5) Sealing methodology applied to scale the raw marks of every subject.
  (6) The complete result of all qualified candidates of Civil Services (Prelims)
  Examination 2010 with their roll number, raw and scales marks.?

  6. Appearing on advance notice for the UPSC, Mr. Naresh Kaushik, learned counsel
  first submitted that the said letter dated 21st December 2010 has been addressed
  to the Chairman, UPSC and not to its Central Public Information Officer
  (?CPIO?). This Court rejects the said objection as being highly technical. The
  said letter addressed by the Petitioners to the Chairman, UPSC shall be treated
  by the UPSC as an application under the Right to Information Act, 2005 (?RTI
  Act?).


  7. Mr. Kaushik then submitted that the Petitioners ought to first approach the
  CPIO who would then proceed to deal with it in light of the judgments of this
  Court. This Court finds that with the law having been settled by this Court, as
  affirmed by the Supreme Court, there is no need to relegate the Petitioners to
  the process under the RTI Act. Such a course will needlessly delay matters.


  8. Mr. Kaushik stated that with reference to the information at Serial No. 3,
  while the scaled marks awarded to the Petitioners in the Prelims 2010 would be
  disclosed, the raw marks were not available and therefore, could not be
  disclosed. As regards the information at Serial No. 4, he submitted that model
  answers were available only for some of the questions. As regards, the
  information sought at Serial No. 6, i.e., the complete result of all the
  qualified candidates, he submitted that this did not form part of the queries
  raised earlier for the Prelims 2006.

  9. The above submissions have been considered. This Court is of the view that if
  the raw marks are not available with the UPSC, they need not be disclosed to the
  Petitioners. As regards the results of the qualified candidates, no prejudice
  whatsoever would be caused to any of those qualified candidates or to the UPSC
  if the complete results of the qualified candidates with their roll numbers are
  disclosed. Further, it would be in public interest to do so. Consequently, there
  is no merit in the objection raised by learned counsel for the UPSC in this
  regard. As regards the information sought at Serial No. 4 (regarding model
  answers), this aspect already stands covered by the earlier judgments of this
  Court. Obviously, only those model answers as are available with the UPSC need
  be disclosed to the Petitioners.

  10. Consequently, the said letter dated 21st December, 2010 of the Petitioners
  will now be processed by the UPSC in light of the judgments of this Court, and
  the information sought will be provided to the Petitioners within fifteen days
  from today.

  11. No further directions are called for in this petition and it is disposed of
  as such.



  12. Order be given dasti to learned counsel for the parties.



  S. MURALIDHAR,
  
 J.
  JANUARY 13, 2011
  rk
  Writ Petition (Civil) No. 218/2011 Page 1 of 6




Tuesday 24 July 2012

ODISHA PUBLIC SERVICE COMMISSION DECIDED TO PROVIDE XEROX COPY OF ANSWERSHEETS TO CANDIDATES WHO DEMANDS IT



http://opsc.nic.in/Notice_5221_19_7_12.pdf
ODISHA PUBLIC SERVICE COMMISSION
CUTTACK
N O T I C E
No. 5221 /PSC, dt. 19/07/2012
The following fees have been prescribed by the Commission for supply of
Mark Sheet and Xerox copy of Answer Scripts to the  concerned candidate of
various recruitment examination conducted by the Commission.
1. Mark Sheet  --Rs.200/-(Rupees two hundred) only
2. Xerox copy of Answer Script --Rs.200/-(Rupees two hundred) only
                (per paper)
The candidates who desire to take such Mark Sheet/Xerox copy of Answer
Scripts are required to pay non-refundable and non-adjustable prescribed fee
either  in shape of deposit of the amount in the Government Treasury under the  Head
“0051-P.S.C.-105-State P.S.C. Examination Fees”, or Account Payee Bank Draft/Pay
Order drawn in favour of Special Secretary, Odisha Public Service Commission payable
at any Scheduled Bank at Cuttack.  Treasury Chalan with wrong mention of Head of
Account or wrong mention of designation of the authority in the Bank Draft/Pay Order
shall not be accepted.  The original Treasury Chalan/Bank Draft/Pay Order, as the
case may be, must be sent to the office of the Commission along with the application
mentioning details of recruitment/examination, Roll No., Name and address for
supply of Mark Sheets & Xerox copy of Answer Script.
2. The above order will come into force from the date of issue of this Notice.
Special Secretary.

CENTRAL INFORMATION COMMISSION DIRECTED UPSC TO PROVIDE EVALUATED ANSWERSHEET UNDER RTI ACT, 2005 , BASED ON HON'BLE SUPREME COURT DECISION IN CBSE vs ADITYA BANDOPADHYAY


Central Information Commission, New Delhi
File No.CIC/SM/A/2011/002046
Under Section 19 of the Right to Information Act
Date of hearing :   24.05.2012
Date of decision :   10.07.2012
Name of the Appellant :   Dr. A. Arun Thamburaj
Name of the Public Authority :   CPIO, Union Public Service Commission,
    Dholpur House, Shahjahan Road,
NewDelhi
Appellant was present in NIC Studio Chennai
Respondents were represented by learned Senior Counsel Shri
Naresh Kaushik.
Chief Information Commissioner: Shri Satyananda Mishra
Facts:
1. Dr. A. Arun Thamburaj, hereinafter ‘the Appellant’, filed RTI Application
Dated 19 May 2011  to the CPIO, Union Public Service Commission, New
Delhi seeking the following information:
A. The no. of pages and answer sheets written by Appellant in Zoology
Paper I and II in the Civil Services Mains Examination 2010 bearing
Roll no. 23975 held on November 12 2010.
1B. The  Number  of  Additional  Answer  sheets  used  by  Appellant  in  the
Zoology Paper I and II.
C. Page wise Marks awarded in each page in Zoology Paper I and II.
D. Question wise marks awarded for each Question in Zoology Paper I and
II.
E. Number of answer sheets taken up for evaluation in Zoology Paper I and
II.
F. Photocopies of my written answer scripts of Zoology Paper I and II may
kindly be provided.
2. In his Order dated 9 June 2011, CPIO replied with respect to Points no. 1, 2,
and 5 of the RTI Application that information is not being maintained in the
format as desired by the RTI Applicant and CPIO shall not take any research
to collect and compile those aspects of information.
3. With respect to Points no. 3 and 4 of the RTI Application, CPIO replied that
question wise/page no. wise marks are not maintained. As moderation is
required with respect to the total marks secured by the candidates, therefore
at the end of the evaluation, question wise marks do not subsist and therefore
cannot be provided to the Appellant.
4. With  respect  to  Point  no.  6,  CPIO  replied  quoting  the  CIC  Decision
CIC/WB/A/2006/00394 dated 23/4/2007 in which it was clearly decided that
Constitutional bodies like UPSC whose main function is to conduct the
examination need not disclose the evaluated answer sheets under RTI Act,
2005.
25. Not satisfied with the reply of the CPIO, the Appellant preferred first Appeal
to the First Appellate Authority dated 19 June 2011.
6. In his Order Dated 30 June 2011, FAA informed the Appellant that he is
satisfied with the decision taken by the CPIO as it is in line with the earlier
decisions of the CIC not allowing the disclosure of Answer sheets.
7. Being aggrieved and not being satisfied by the above response of the public
authority,  the  appellant  preferred  second  appeal  before  the  Commission
dated 10 August 2011.
8. Matter was heard today on priority basis based on the observation made by
the Madras High Court in the case A. Arun Thamburaj v. UPSC, New Delhi
Writ Petition no. 21750/2011 dated 7 February 2012, in which same matter
was at issue.
The High Court had observed:
“…The said question requires no consideration in this writ petition,
as admittedly the request of the petitioner for such information had
been denied by the two authorities of the respondent-UPSC under the
Right  to  Information  Act  and  a  further  appeal  to  the  appellate
authority under the Act is also pending.  The petitioner would be
entitled to pursue his remedy under the Act before the appellate
authority in the pending appeal.  For that reason, we are not inclined
to express any opinion on the question as to whether the petitioner
would be entitled to perusal of the answer scripts produced before
this Court as per our earlier direction…”
9. At  the  hearing,  the  Appellant  i.e.  Dr.  A.  Arun  Thamburaj  was  present
through  videoconferencing  at  Chennai  while  the  Respondents  were
represented through the Senior Counsel Shri Naresh Kaushik.
310. Appellant broadly submitted that disclosure of answer sheets with respect to
the Examination bodies has been allowed by the Hon’ble Supreme Court in
the  case  of  Central  Board  of  Secondary  Education  and  Anr.Vs.  Aditya
Bandopadhyay and Ors. in Civil Appeal No. 6454 of 2011 dated 9 August
2011.  The  Appellant  further  submitted  that  the  said  law  applied  to  the
present case, his own answer sheet should be allowed for disclosure under
RTI  Act,  2005  after  duly  severing  the  names  and/or  signatures  of  the
examiner of the answer sheet. It was further said that he is only asking for
the disclosure of the answer sheets and not for ‘revaluation’ of the answer
sheets.  The  Appellant  as  per  his  submission  has  been  a  bright  student
throughout his career and has been a topper in the Zoology subject and
hence the low score attained by him in the examination conducted by UPSC
has resulted into the filing of present RTI Application.
11. Respondent  submitted  that  UPSC  Mains  examination  is  a  special
examination  conducted  at  a  national  level  in  multiple  subjects  and
languages. It is conducted for the selection/recruitment of candidates for the
Government  post.  The  said  examination  stands  at  a  different  footing
compared to the Board Examinations conducted at class 10
th
 and 12
th
 level of
the different schools of India by Central Board of Secondary Education or
other similar Central/State Boards. Also, the methodology of the evaluation
of the Answer sheets by the UPSC is confidential in nature, unlike CBSE
and  disclosure  of  answer  sheets  may  also  reveal  the  said  methodology
involved  in  the  said  evaluation.  The Respondents  further  submitted  that
disclosure of the said answer sheet of the Appellant would not serve any
rational purpose as the ‘revaluation’ of the Answer sheets is not allowed as
per  the  rules  of  the  UPSC  Examination.  Another  issue  raised  by  the
respondents  that  for  certain  languages/subjects  only  few examiners  are
4available  and  disclosure  of  the  answer  sheets  in  those  subjects  may
indirectly disclose the identity of those few examiners.
Decision Notice
12. The Commission  has  heard the submissions  of  the  respective  parties  in
detail.  As  submitted  by  the  respondents,  the  information  i.e.  evaluated
answer sheets written by Appellant in Zoology Paper I and II in the Civil
Services Mains Examination 2010 has been presently held by the Public
Authority and has not been destroyed as per the prevailing rules.
13. The core issue in the present case is that whether the answer sheets written
by  Appellant  in  Zoology  Paper  I  and  II  in  the  Civil  Services  Mains
Examination 2010 held on November 12, 2010 can be disclosed under the
RTI Act, 2005.
14. After  Judgment  of  the  Hon’ble  Supreme  Court  in  Central  Board  of
Secondary Education and Anr. Vs. Aditya Bandopadhyay and Ors. in Civil
Appeal No. 6454 of 2011 dated 9 August 2011, the legal dictum is clear that
‘evaluated answer sheets’ are within the purview of  ‘information’ under
section 2 (f) of the Act and ‘disclosure of Answer sheets’ of an examination
conducted by any examination body being ‘public authority’ is mandated
under the RTI Act, 2005. The Court has observed:
“…The definition of 'information' in Section 2(f) of the RTI Act refers to any material in
any  form  which  includes  records,  documents,  opinions,  papers  among  several  other
enumerated items. The term 'record' is defined in Section 2(i) of the said Act as including
any document, manuscript or file among others.
5When a candidate participates in an examination and writes his answers in an answerbook and submits it to the examining body for evaluation and declaration of the result,
the answer-book is a document or record. When the answer-book is evaluated by an
examiner appointed by the examining body, the evaluated answer-book becomes a record
containing the 'opinion' of the examiner. Therefore the evaluated answer-book is also an
'information' under the RTI Act…”[emphasis added]
15. The  Commission  would  like  to  take  each  submissions  made  by  the
Respondents individually.
a) The main contention of the respondents  is that the disclosure  of the
answer sheets written by Appellant in Zoology Paper I and II in the Civil
Services  Mains  Examination  2010  would  reveal  the
methodology/procedure for secret evaluation of answer sheets, prevailing
at the UPSC.
16. The above contention is flawed in two ways, (1) the criteria of evaluation
would not be disclosed  by the knowledge of the marks provided to the
answer in each of the questions. Further the marks weightage allotted to each
question is already in the Public Domain. (2) The personal details of the
examiners would be severed under section 10 of the Act and hence the
evaluation  criteria  of  the  individual  examiner  would  certainly  not  come
under the public domain and thus disclosure of the answer sheets written by
Appellant would not reveal the methodology/procedure for secret evaluation
of answer sheets, prevailing at the UPSC.
17. In the Order of the Delhi High Court in the case ALL INDIA INSTITUTE OF
MEDICAL SCIENCES Vs.  VIKRANT BHURIA LPA No.487/2011 dated 28
May 2012, the division bench has allowed the non disclosure of the Certified
copies of original questions papers of all M Ch super-specialty entrance
exam conducted from 2005-2010 under RTI Act stating that said question
6papers are in the nature of the ‘intellectual Property’ of the AIIMS. But in
the present case, the Answer sheets of the Appellant cannot be considered as
‘Intellectual Property’ of the UPSC which cannot be disclosed under the RTI
Act, 2005. Also, the non disclosure was due to the possibility of asking
limited questions under AIIMS Examination but with UPSC Examination no
such contention has been made by the Respondents.
18. The next issue raised by the respondents is about certain languages/subjects
in which only a  few examiners are available and disclosure of the answer
sheets in those subjects  may indirectly disclose the identity of those  few
examiners. This contention also cannot be accepted by the Commission as
even  the  grading  given  in  the  Annual  Confidential  Reports  are  now
disclosed under the RTI Act and despite name and other personal details
may be severed before disclosure, the Applicant may be indirectly aware of
the person(s) who have prepared/marked the ACR. If the argument of the
respondents is blindly accepted then all the ACR grading disclosure should
not be allowed under the RTI Act, for a remote possibility of threat to the
life of the person(s) who have prepared/marked the ACR. The RTI cannot be
implemented in such hard bounds; it needs practical implications and not
theoretical imaginations. In any case, there shall remain no trace of any
signature, name or reference to the examiner as all this will be deleted before
the disclosure.
b)The next contention raised by the Respondents is that the Judgment of the
Hon’ble  Supreme  Court  in  Central  Board  of  Secondary  Education  and
Anr.Vs.  Aditya  Bandopadhyay  and  Ors  applies  only  to the Board
Examination conducted at class 10
th
 and 12
th
 level of the different schools of
7India  by  Central  Board  of  Secondary  Education  or  other  similar
Central/State Boards.
19) The Commission  is of the view that Respondents  are having  restrictive
interpretation of the term ‘examination bodies’ in the said Judgment of the
Hon’ble Supreme Court. The said judgment does not specifically show that
the  expression  ‘examining  bodies’  does  not  include  the  examination
conducted for the selection/recruitment of candidates for the Government
post by UPSC. The judgment discuses the Examination conducted by the
Board,  but  that  is  because  the  CBSE is  the  petitioner  in  the  said  case;
however, the court has not purposefully excluded the Public Authorities
conducting the examination for the employment purposes. In the absence of
the conclusive definition of the term ‘examination bodies’, the same has to
be given wider implication.
20.) If the contention of the UPSC is accepted, it will imply that all examinations
conducted for promotion and recruitment, etc by different public authorities,
specially Banking and Insurance industry would become outside the purview
of the RTI Act.  This will be against the very objective of the RTI Act to
enhance transparency in the working of the Public Authorities.  Hence the
Contention  raised  by  the  Respondents  cannot  be  accepted  by  the
Commission.
21) Further,  Delhi  High  Court  in Oriental  Insurance  Company  Limited  v.
Tanmayee Ranjan W.P.(C) 1917/2011 Dated 23 February 2012 has allowed the
disclosure of answer sheets under RTI Act for the Examination conducted by
the Oriental Insurance Company Limited on 14/6/2009  for  promotional
8purposes.  The  said  examination  is  only  conducted  for
Promotional/employment purposes and not for School Board examination.
The Delhi High Court has observed:
“ The  petitioner,  Oriental  Insurance  Company  Limited  assails  the
decision dated 16.07.2010 passed by the Central Information Commission
whereby  the  Central  Information  Commission  directed  the  petitioner  to
provide  the  information  sought  by  the  petitioner  i.e.,  the  answer  sheet
   of the petitioner in respect of the promotional exam held on 14.06.2009
wherein the respondent participated under roll no. 33028. In view of the
decision of the Supreme Court in C.B.S.E vs. Aditya Bandopadhyay (2011) 8
SCC  497  the  challenge  to  the  impugned  decision  cannot  succeed.  The
   petitioner  is  bound  to  provide  the  answer  sheet  to  the  respondent
queriest.” [emphasis added]
22.) The next contention taken by the Respondents is that the disclosure of the
answer sheets of the Mains Examination would disproportionately divert the
resources  of  the  Public  Authority.  This  argument  taken  by  the  Public
Authority is flawed as compared to the lakhs of answer sheets evaluated by
CBSE  every  year  which  is  under the RTI  Act,  2005,  the  UPSC  Mains
Examination  are  limited  in  numbers  and  thus  would  certainly  not
disproportionately divert the resources of the Public Authority. However, the
Commission is not asking the Respondents to preserve the Answer sheets
beyond  the  record  retention schedule  of  the  UPSC.  The  right to access
information does not extend beyond the period during which the UPSC is
expected to retain the answer-books.
23.) The Commission would also like to highlight the point taken by the Hon’ble
Supreme Court in Inst. of Chartered Accountants of ... Vs  Shaunak H Sayta
& Ors. in Civil Appeal No. 7571 OF 2011 dated 2 September, 2011:
9“…Examining bodies like ICAI should change their old mindsets and tune them to the
new regime of disclosure of maximum information. Public authorities should realize that
in an era of transparency, previous practices of unwarranted secrecy have no longer a
place.  Accountability  and  prevention  of  corruption  is  possible  only  through
transparency.  Attaining  transparency  no  doubt  would  involve  additional  work  with
reference to maintaining records and furnishing information. Parliament has enacted the
RTI Act providing access to information, after great debate and deliberations by the Civil
Society and the Parliament. In its wisdom, the Parliament has chosen to exempt only
certain categories of information from disclosure and certain organizations from the
applicability of the Act. As the examining bodies have not been exempted, and as the
examination  processes  of  examining  bodies  have  not  been  exempted,  the  examining
bodies  will  have  to  gear  themselves  to  comply  with  the  provisions  of  the  RTI  Act.
Additional workload is not a defence. If there are practical insurmountable difficulties, it
is open to the examining bodies to bring them to the notice of the government for
consideration so that any changes to the Act can be deliberated upon. Be that as it may.
26. We however agree that it is necessary to make a distinction in regard to information
intended to bring transparency, to improve accountability and to reduce corruption,
falling under section 4(1)(b) and (c) and other information which may not have a bearing
on accountability or reducing corruption. The competent authorities under the RTI Act
will have to maintain a proper balance so that while achieving transparency, the demand
for  information  does  not  reach  unmanageable  proportions  affecting  other  public
interests,  which  include  efficient  operation  of  public  authorities  and  government,
preservation of confidentiality of sensitive information and optimum use of limited fiscal
resources.”
24.) Thus  In  the  light  of  the  above  observations,  Commission  directs  the
Respondents to disclose the evaluated answer sheets written by Appellant in
Zoology Paper I and II in the Civil Services Mains Examination 2010 held
on November 12 2010 after duly severing the names and/or signatures of the
Examiner or any other third party information within one week of the receipt
of the Order.
25.)  Copies of this order be given free of cost to the parties.
(Satyananda Mishra)
Chief Information Commissioner
10Authenticated     true     copy.     Additional   copies   of   orders   shall   be
supplied against application and payment of the charges prescribed under
the Act to the CPIO of this Commission.
(Vijay Bhalla)
Deputy Registrar

Disclose question-wise marks of civil services mains exam: HC, CIC


The Delhi High Court and the Central Information Commission have directed the Union Public Service Commission to disclose the question-wise marks obtained by students in each paper of the civil services (mains) examination.
In his July 10 order Chief Information Commissioner Satyanand Mishra has directed the UPSC to “disclose the evaluated answer sheets written by appellant” in the civil services (mains) examination “after duly severing the names and/or signature of the examiner or any other third party information”.
This direction was given on an appeal filed by A Arun Thamburaj, who appeared in CSE (mains) in November 2010. He requested for marks awarded in each paper, question-wise marks in paper I and II, and photocopies of his written answer scrips.
Earlier, hearing two writ petitions on July 6 the HC had asked the UPSC to disclose answer sheets of mains examination to respective candidates. The writ petitions were filed by Manish Parashar and Gaurav Gupta, respectively.
These orders, if implemented, will benefit nearly 15,000 aspirants who appear every year in CSE (mains) examination.
Though there are several orders by the CIC, HC and the Supreme Court to disclose the cut-off marks for prelims, the UPSC is not ready for it and has been approaching courts against those orders.
In its July 13 order in an LPA filed by the UPSC and appeals filed by Angesh Kumar and Durgesh Kumar Tripathi, the acting Chief Justice of Delhi High Court, Justice Rajiv Sahai Endlaw, said: “An examinee is entitled to satisfy himself/herself as to the fairness and transparency of the examination and the selection procedure and to maintain such fairness and transparency disclosure of raw marks, cut-off marks and the scaling method adopted is a must.”
The HC was also miffed with the UPSC approaching it again and again on disclosure orders. The court said: “Though the UPSC has indulged in re-litigation but giving benefit of doubt to UPSC that the resistance to disclose is an after effect of the pre-RTI era, we refrain from imposing any cost on UPSC.”

Saturday 21 July 2012

PIL ABOUT RAW MARKS AND ANSWERSHEET: PIL/98/2012 of HIGH COURT OF BOMBAY AT BOMBAY


IN THE HIGH COURT OF JUDICATURE OF BOMBAY AT BOMBAY

[RULE 4(e) OF THE BOMBAY HIGH COURT PUBLIC INTEREST LITIGATION RULES, 2010]

PIL Petition No. 98                        of 2012

IN THE MATTER OF ARTICLE 226 OF THE CONSTITUTION OF INDIA.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING DIRECTION AGAINST THE UNION PUBLIC SERVICE COMMISSION TO PROVIDE PHOTOCOPIES OF THE ANSWER BOOKS OF THE EXAMINEES ALONGWITH THE RAW AND MODERATED MARKS OF ALL CANDIDATES FOR THE CIVIL SERVICES EXAMINATION – 2011.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING TO QUASH THE RECORD RETENTION SCHEDULE OF THE UNION PUBLIC SERVICE COMMISSION BY WHICH THE UPSC WILL DISTROY THE EXAMINEES’ ANSWER BOOKS AFTER 45 DAYS OF THE DISPLAY OF THE MARKS ON ITS WEBSITE.

AND

IN THE MATTER OF PUBLIC INTEREST LITIGATION SEEKING DIRECTION AGAINST THE UNION PUBLIC SERVICE COMMISSION TO RETAIN ANSWER SHEETS OF ALL THE EXAMINEES UPTOONE YEAR.

1.       Dr. PrachiDilipPampattiwar
          Age: Adult, Occ. Doctor
R/o. Darpan Co-operative Housing Society,
Flat No: 201, Wing A,Budhaji Nagar, Kalwa,
Dist. Thane – 400605.
          Mobile Number: 
          PAN: 
          Email: 

2.       Dr. PrashantRamesh Chakkarwar
          Age: Adult, Occ. Psychiatrist
R/o. Darpan Co-operative Housing Society,
Flat No: 201, Wing A,Budhaji Nagar, Kalwa,
Dist. Thane – 400605.
          Mobile Number: 
          PAN:
          Email: 
…Petitioners

          Versus

1.       Union Public Service Commission
Dholpur House,Shahjahan Road,
New Delhi – 110069.

2.       Union of India,
Through Ministry of Personnel
Public Grievances and Pension
Department of Personnel and Training
Through Secretary, New Delhi
…Respondents

PUBLIC INTEREST LITIGATION PETITION

TO,

THE HON’BLE CHIEF JUSTICE OF THE HIGH COURT OF JUDICATURE AT BOMBAY AND HIS COMPANION JUDGES
THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED
MOST RESPECTFULLY SHOWETH:

A.      Particulars of the cases/order against which the Petition is made:

1.       The petitioners are filing this writ petition in public interest challenging the Constitutional and Legal validity of refusal of Respondent No.1 to provide to the Examinees of the Civil Services Examination – 2011 the information asked by them regarding the Civil Service Examination. Refusal to provide information violates the Legal as well as Constitutional Right of the Examinees under Right to Information Act, 2005 and Article 19(1) of the Constitution of India.

          The Petitioners seek Direction to the Respondents for providing photo copies of the answer books of the Applicants as asked by various Applicants by their applications under Right to Information Act, 2005 in respect of Civil Services Main Examination – 2011 immediately.

          The Petitioners also seek direction against the respondents for providing Raw and Scaled marks of all candidates of Civil Services Main Examination – 2011 asked by various candidates by their applications under Right to Information Act – 2005.

          The Petitioners also seekto quash the Record Retention Schedule of the Respondent No.1 by which the Respondent seeks to destroy in destroying the documents relating to Civil Services Examination 2011 within six months. The retention period should be aligned with the time duration given by Law for challenging the violation of their legal rights i.e. one year.

          The Petitioners also seek the direction against the Respondent No.1 for its logic of countingthe retention period which should be taken from the day when result is declared, not from the day when exam is over. The logic for counting of the retention period is arbitrary and is a clear violation of Article 14 of the Constitution of India.




B.      Particulars of the Petitioners

1.       The Petitioners herein are Public Spirited Individuals fighting for the Rights of Students who appear for or have appeared for in the Civil Services Main Examination – 2011 conducted by the Respondent No.1.The Petitioner No.1 is a Doctor by profession working in the Rajiv Gandhi Medical College, Kalwa, Thane and the Petitioner No.2 is a Doctor by profession working in Sion Hospital as a Psychiatrist. The Petitioners submit that they have no personal interest in the issues agitated in this Writ Petition and any reliefs if granted are going to be beneficial to the lakhs of candidates who appear for the Civil Services Examination and will also affect the interest of citizens of this Country as the reliefs if granted will bring transparency in the Selection of the topmost bureaucrats of the Country.

2.       The Petitioner No.1 states that she is not involved in any other civil, revenue or criminal litigation in any capacity before any Court or Tribunal.

3.       The Petitioner No.2 states that he is party to following pending litigation:
     i.        Chittaranjan Kumar and Others v. UPSC and Others, WP (C) 3973 OF 2011 pending in High Court of Delhi relating to disclosure of Raw Marks in the Civil Services Examination – 2008.
   ii.       

4.       The Respondent No.1, Union PublicService Commission, conducts Civil Services Examination every year for selection of candidates for appointment on various posts for Civil Services in India. The Civil Services Examination is the most coveted examination in the Country as the topmost bureaucrats of India are selected through this examination. The Respondent No.2 is the Ministry of PersonnelPublic Grievances and Pension which directly controls the functioning of the Respondent No.1. Both being the instrumentalities of state are amenable to the Writ Jurisdiction of this Hon’ble Court.

C.      Declaration and undertaking of the Petitioners

1.       That the present petition is being filed by way of public interest litigation and the petitioners do not have any personal interest in the matter. The petition is being filed in the interest of Candidates who appeared for the Civil Services Examination – 2011. Annexed herewith and marked as Annexure “1” is an affidavit in this regard in terms of Rule 7(a) of the Bombay High Court Public Interest Litigation Rules, 2010.

2.       That the entire litigation costs, including the advocate’s fee and other charges are being borne by the petitioners.

3.       That a thorough research has been conducted in the matter raised through the Petition.

4.       That to the best of the Petitioners’ knowledge and research, the issue raised was not dealt with or decided and that a similar or identical petition was not filed earlier by the Petitioners.

5.       That the petitioners have understood that in the course of hearing of this Petition the Court may require any security to be furnished towards costs or any other charges and the Petitioners shall have to comply with such requirements. Annexed herewith and marked as Annexure “2” is an affidavit in this regard in terms of Rule 7(b) of the Bombay High Court Public Interest Litigation Rules, 2010.

D.      Fact constituting the Cause

1.       The Petitioners state that Civil Services Examination is conducted in three stages, i) Preliminary Examination, ii) Mains Examination and iii) Interview. Every year lakhs of candidates appear for this examination which ends in selection of only a few successful candidates. The nature and status of examination sees all these candidates prepare for years putting a financial burden on themselves and the families. Every unsuccessful candidate is causing monitory loss to their families along with mental agony of trial and failure.

          Various unsuccessful candidates have sought,under the Right to Information Act, 2005, the photo copies of their answer books for Civil Services Mains Examinations – 2011, conducted by the Respondent No.1 suspecting irregularity and lapses in evaluation process, amongst other grounds. It is the experience of the Petitioner that none of the candidates seeking for copies of answer books have ever got a copy.

          It is the experience of the Petitioner from the replies of the Respondent No.1 to various Right to Information applications of various candidates that the Respondent No.1 used to refuse to give any information sought under the applications claiming exemption under Sections 8(1)(e) and 8(1)(g) quoting the Central Information Commission’s decision in Rakesh Kumar Singh v. Harish Chander, Complaint No.CIC/WB/C2006/00223. Annexed herewith and marked as Exhibit “A”is the copy of one of the replies of the Respondent No.1 to the Right to Information application of one Mr. Ashish Gupta dated 4.05.2010.

2.       The Petitioners state that it was an unfortunate incident for the candidates of the Civil Services Examinations when in Rakesh Kumar Singh v. Harish Chander, the Central Information Commission held that the examining body had rightly refused information under Sec.8(1)(e) and (g) of the Right to Information Act, 2005, however, after the CBSE v.AdityaBandopadhyay, (2011) 8 SCC 497the Central Information Commission’s decision stands overruled. Annexed herewith and marked as Exhibit “B” is the photocopy of the judgment of the Central Information Commission dated 23.04.2007 Rakesh Kumar Singh v. Harish Chander, Complaint No. CIC/WB/C2006/00223.

3.       The Petitioner states that, in view ofHon’ble Supreme Court’s judgment dated 9.08.2011 in Central Board of Secondary Education v. AdityaBandopadhyay, (2011) 8 SCC 497, all examining bodies including Public Service Commissionshave to provide under Right to Information Act,2005, the Certified Copies of evaluated Answer Books to candidates. Annexed herewith and marked as Exhibit “C” is the copy of the Hon’ble Supreme Court’s judgment in CBSE v. AdityaBandopadhyay, (2011) 8 SCC 497.

4.       As the Respondent No.1 used to refuse information claiming exemption under Sec.8(1)(e) of the Right to Information Act, 2005, the petitioner is reproducing the exemption as follows:

“(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;”

          Regarding the exemption claimed by the Respondent No.1 under Section 8(1)(e), the Hon’ble Supreme Court has observed in AdityaBandopadhyay’scasein Paragraph 27 that:

          “…an examining body does not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books.”

5.       As the Respondent No.1 further used to refuse information claiming exemption under Sec.8(1)(g) of the Right to Information Act, 2005 the Petitioner is reproducing Sec.8(1)(g) as follows:

“(g) information, the disclosure of which would endanger the life or physicalsafety of any person or identify the source of information or assistance given inconfidence for law enforcement or security purposes;”

          Regarding the exemption claimed by the Respondent No.1 under Section 8(1)(g) the Supreme Court has observed in AdityaBandopadhyay’scase that:

          “…Those portions of the answer-books which contain information regarding the examiners/coordinators/ 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.”

6.       Regarding the applicability of the AdityaBandopadhyay’sdecision to the Respondent No.1, the Petitioners state that, Assam Public Service Commission (APSC) was one of the party to CBSE v. AdityaBandopadhyay as APSC’s Civil Application Nos.6465-6468 of 2011 were attached to Civil Application No.6454 OF 201 filed under CBSE v. AdityaBandopadhyay.

          Since APSC was a party to the decision, the judgment in AdityaBandopadhyay’s case applied to APSC. APSC and Respondent No.1 are both constitutional bodies both dealing with conducting examination for selecting candidates for Civil Services, the same principles should be applicable to Respondent No.1, mutatis mutandis. Further the fact that the Hon’ble Supreme Court specifically makes all the observations using the term “examining bodies” itself makes it clear that since the Respondent No.1 is an examining body, the decision in AdityaBandopadhyay’s case are applicable to Respondent No.1.

7.       The Petitioner states that, after the AdityaBandopadhyay’s judgment, the Respondent No.1 has started refusing the Answer Books claiming exemption under Section 8(1)(d). Annexed herewith and marked as Exhibit “D”are the copies of the Applications under the Right to Information Act, 2005 of various candidates and the replies of the Respondent No.1 claiming Section 8(1)(d) as exemption for not giving the information.

8.       It is pertinent here to note that,
a.    The Respondent No.1 started refusing the answer books and other information asked by the candidates under Right to Information Act, 2005, by taking defense of Section 8(1)(e) and 8(1)(g) of the Right to Information Act, 2005.
b.    After the Central Information Commission’s judgment in Rakesh Kumar Singh v. Harish Chander the Respondent No.1 started taking defense of the judgment of the CIC in Rakesh Kumar Singh’s case.
c.    After the AdityaBandopadhyay’s judgment the Respondent has started taking the defense of Section 8(1)(d).

          This conduct of Respondent No.1 shows its mala fides as it is following avoidance tactics and trying to find new excuses every time to avoid giving information.

9.       The Petitioner here specifically quotes the contention of the CBSE in AdityaBandopadhyay’s Judgment which was also accepted by the Supreme Court to be applicable to all examining bodies. The Supreme Court observed in paragraph No.14 as follows:

“(14) The examining bodies contend that the evaluated answer-books are exempted from disclosure under Section 8(1)(e) of the RTI Act, as they are ‘information’ held in its fiduciary relationship. They fairly conceded that evaluated answer-books will not fall under any other exemptions in sub-section (1) of Section 8. Every examinee will have the right to access his evaluated answer-books, by either inspecting them or take certified copies thereof, unless the evaluated answer-books are found to be exempted under Section 8(1)(e) of the RTI Act.”

          On this the Hon’ble Supreme Court has specifically observed in Paragraph No.27 that:

          “(27) We, therefore, hold that an examining body does not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books. As no other exemption under Section 8 is available in respect of evaluated answer books, the examining bodies will have to permit inspection sought by the examinees.”

          After the CBSE’s contentions in the AdityaBandopadhyay’s case that evaluated answer-books will not fall under any other exemption than Section 8(1)(e), the Supreme Court has observed that the Examining bodies have no other exemption under the Section 8 other than Section 8(1)(e).

10.     The Petitioner states that the Respondent No.1 also refused and has kept on refusing information under Sec.8(1) regarding the Raw and Scaled marks of the candidates.

          The Petitioner states that, the Central Information Commission in Appeal No. CIC/MA/A/2006/00793 had specifically directed the Respondent No.1 to provide the Raw and Scaled marks of the candidates who have sought those under Right to Information applications. Annexed herewith and marked as Exhibit “E” is the copy of the Central Information Commission’s judgment in Appeal No. CIC/MA/A/2006/00793.

11.     The Petitioner states that Respondent No.1 had challenged the judgment of CIC in the Hon’ble Delhi High Court by WP (C) No.17583 of 2006. The Hon’ble Delhi High Court upheld the CIC’s judgment with some modifications. Annexed herewith and marked as Exhibit “F” is the copy of the judgment of the Hon’ble Single Judge of the Hon’ble Delhi High Court’s in WP (C) No.17583 of 2006.

          The Respondent No.1 challenged the judgment in WP (C) No.17582 of 2006 in the Hon’ble Delhi High Court by LPA No. 313 of 2007. The Division Bench of the Delhi High Court was pleased to dismiss the Letter Patent Appeal thereby upholding the judgments of the CIC and Single Judge of the Delhi High Court. Annexed herewith and marked as Exhibit “G” is the copy of the judgment of the Division Bench of the Delhi High Court in LPA No. 313 of 2007.

12.     The Respondent No.1 further challenged the judgment of the Division Bench of the Delhi High Court in the Hon’ble Supreme Court by SLP No.23250 of 2008. While the SLP was pending in the Hon’ble Supreme Court the Respondent No.1 refused the information to various candidates on the ground that the issue is pending before the Supreme Court, the information cannot be disclosed. Annexed herewith and marked as Exhibit “H” are the two replies given by the Respondent No.1 to candidates Aashish Gupta and Chittaranjan Kumar while the SLP 23250 of 2008 was pending before the Supreme Court.

          Further it is observed in CIC/WB/A/2007/00694, the CIC has by specifically mentioning Raw Marks/Moderated and Scaled marks, separately that those cannot be given since SLP 23250 of 2008 is under consideration by the Supreme Court. Annexed herewith and marked as Exhibit “I” is the copy of the CIC’s order in CIC/WB/A/2007/00694.

          It is pertinent to note that the Hon’ble Supreme Court dismissed the SLP observing that since the Commission has completely changed the pattern of its examination for the year 2011, it will not adjudicate on this matter. Annexed herewith and marked as Exhibit “J” is the copy of the judgment of the Hon’ble Supreme Court dismissing the SLP of the Respondent No.1.

13.     After dismissal of the SLP by the Hon’ble Supreme Court, many candidates approached the Respondent No.1 seeking Raw and Scaled marks. Since the CPIO refused to give the marks flaunting the previous decisions of the CIC, Delhi High Court and Hon’ble Supreme Court, the candidates filed and Appeal No. 08/RTI Appeal/JS(RD)/UPSC/2011. The appellate authority directed the CPIO of the Respondent No.1 to reconsider the matter and provide the information to the appellants. Annexed herewith and marked as Exhibit “K” is the copy of the Appeal No. 08/RTI Appeal/JS(RD)/UPSC/2011.

          After the dismissal of the SLP by the Hon’ble Supreme Court, the Petitioner No.2 also applied to the Respondent No.1 for Raw Marks of all candidates, however it was refused by the Respondent No.1. On which, the Petitioner No.2 filed an appeal to the Central Information Commission by Appeal No. CIC/WB/A/2010/000332 & 523 SM. The Respondent No.1 filed an Affidavit in that appeal, the Petitioners hereby quote the contention of the Respondent No.1 as follows:

“Raw Marks are unprocessed/unanalyzed data, which undergo the following operations/treatment:
·         Scrutiny with regard to errors (totaling, portion remaining unvalued, extra answers etc.) and correction thereof.
·         Scrutiny by other examiner(s) and requisite adjustments
·         Moderation exercise to bring uniformity in evaluation.

While passing through the above irreversible processes, there marks get modified and are masked/overwritten at the end of each process and ultimately the marks awarded (or final marks) only remain, which only are maintained as per the prescribed Record Retention Schedule.”

          Annexed herewith and marked as Exhibit “L” is the copy of the Affidavit filed by the Respondent No.1 before the CIC in Appeal No. CIC/WB/A/2010/000332.

          This stand of Respondent No.1 is also contrary to their stand taken in 2008 in Appeal No. CIC/WB/A/2008/00192 where the Respondent No.1 has stated that the English answer sheet contained answers to five questions marked in red and totaled separately and moderated marks were marked in blue ink and stated in totality. Annexed herewith and marked as Exhibit “M” is the copy of the Order in Appeal No.CIC/WB/A/2008/00192.

          It is pertinent to note that the Respondent No.1 has been taking different stands at different time which nothing but evasive and avoidance tactics. However, after the Hon’ble Supreme Court dismissed Respondent No.1’s SLP 23250 of 2008 by its order dated 18.11.2010, the judgments of CIC and Delhi High Court stand upheld and therefore, the Respondent No.1 is duty bound to provide the Raw and scaled marks of all candidates for Civil Services Examination – 2011 asasked by candidates by their RTI applications.

14.     The Petitioner believes that the Respondent No.1 is trying so hard to conceal the information regarding the Civil Services Examination – 2011 to conceal the frauds and dupery committed by it in the Selection Process.

          It is pertinent to mention that, this is very serious issue as it deals with careers of lakhs of intellectual youths of India, which gives their most productive age from 21-35of their life preparing for this examination. Hence its outcome has profound effect on Life and Liberty of candidate.

          The Petitioner further states that the Civil Services Examination is most coveted examination in India as the topmost of bureaucrats of India are selected through this examination.

15.     The Petitioner further states the Supreme Court’s observations in in ICAIv. Shaunak H. Satya, 2011 (8) SCC 781 as follows:

“Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only trough transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act, as the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defense. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon”.

16.     The Petitioner states that the Respondent No.1 has a Record Retention Schedule by which the Respondent retains the records for a certain period. Before, 31.12.2011 the Respondent had a retention schedule which allowed them to retain the answer books for 1 year from the date of examination or 60 days from the declaration of marks on Respondent No.1’s website.

          The Petitioner states that, the Respondent No.1 changed the Record Retention Schedule thereby making a provision to retain the answer books for 6 months from the date of examination or 45 days from the date of declaration of marks on the Respondent’s website, whichever is later. Annexed herewith and marked as Exhibit “N” is the copy of the Old and New Record Retention Schedule of the Respondent No.1.

          The Petitioner states that this is Respondent No.1’s new device to conceal information as, when a candidate applies under the Right to Information Act, 2005 for information the information will not be given to him within 45 days and the record of the candidates will be destroyed.

17.     The Delhi High Court in WP (C) No. 2467 of 2006 has observed that it is illogical to calculate one year’s time from destruction of Answer Books from the date on which a person appears in the Written Examination. Grievances, so far as the marking is concerned, would arise only when the Results are declared. Record Retention Schedule, in as much as it stipulates that Records shall be kept for one year, can only be fairly and logically interpreted to commence from the date when the Results are declared. Annexed herewith and marked as Exhibit “O” is the copy of the Hon’ble Delhi High Court’s judgment in WP (C) No.2467 of 2006.

18.     The Petitioners state that the Civil Services Examination was conducted with the following schedule.
Date

Event
12.06.2011
Preliminary Examination in the Civil Services Examination – 2011 was conducted

17.08.2011
Result of the Preliminary examination was declared

October-November 2011
Main Examination in the Civil Services Examination – 2011 was conducted

1.03.2012
Result of the Main examination was declared

16.03.2012

Respondent No.1 issued an Interview Call Letters to Candidates clearing Main Examination

March-April 2012

Candidates appeared for Interview

4.05.2012
The Selection list was published

17.05.2012
The Mark sheets of the candidates were published on the Respondent No.1’s website


          The Petitioners state that according to the Record Retention Schedule the Respondent No.1 will destroy the candidates’ answer books after 45 days of the declaration of the marks. Since the marks were declared on 17.05.2012, the Respondent will destroy the candidate’s answer books on 2.07.2012.

E.      GROUNDS

a.    The conduct of the Respondent No.1 in refusing to disclose information regarding the Civil Services Examination – 2011 is tainted with mala fides as it is following avoidance tactics and trying to find new excuses every time to avoid giving information.

b.    The mala fide intentions of the Respondent No.1 are revealed by the fact that before the Central Information Commission’s judgment, it took the defense of Section 8(1)(e) and (g) of the Right to Information Act, 2005; after the Central Information Commission’s judgment, it took the defense of the CIC’s judgment; and after the CIC’s judgment stood overruled by the AdityaBandopadhyay’s judgment, the Respondent No.1 started taking the defense of Section 8(1)(d).

c.    The Supreme Court has specifically held that the examining bodies do not hold the valuated answer-books in a fiduciary relationship. Not being information available to an examining body in its fiduciary relationship, the exemption under Section 8(1)(e) is not available to the examining bodies with reference to evaluated answer books.

d.    Regarding the defense of Section 8(1)(g), the Supreme Court has specifically held that the portions of the answer-books which contain information regarding the examiners/coordinators/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.

e.    The Respondent No.1 is also bound to disclose the Raw and Scaled marks of the candidates as the SLP No. 23250 of 2008 agitating the exemption from disclosing it was dismissed by the Hon’ble Supreme Court.

f.     Even after dismissal of the Respondent No.1’s Special Leave Petition thereby directing them to disclose Raw and Scaled marks of the candidates, the Respondent No.1 is still not providing the Raw and Scaled marks of the Candidates, let alone the Answer Books.

g.    It is pertinent to mention that UPSC is applying the method of statistical Moderation, by which it upgrade or downgrade the marks of the candidates. This statistical method require average of marks, maximum, minimum and standard deviation and to arrive at these parameters raw marks of all candidates are required. According to UPSC ,the raw marks are available only on Answersheets so they must be kept intact till they provide candidates raw and scaled/Moderated marks of all candidates under Right to Information Act,2005.

h.   The Right to Information is a legal Right which directly relates to the Fundamental Rights under Article 19(1). As early as in 1976, the Supreme Court said in the case of Raj Narain v. State of UP that people cannot speak or express themselves unless they know.

i.     Right to information is embedded in article 19, and as observed in Raj Narain v. State of UP by the Supreme Court, India is a democracy, People are the masters and therefore, the masters have a right to know how the governments, meant to serve them, are functioning.

j.     Right to Information Act 2005 provides a machinery or a process through which a citizen of India can exercise his fundamental right. Therefore, Right to Information Act does not give us any new right. It simply lays down the process on how to apply for information, where to apply, how much fees etc.

k.    As per Law, In case there is violation of any legal rights in the Civil Service examination, an applicant can challenge the violation of his legal rights in Central Administrative Tribunal or in any other Court for a period of 1 year.

l.     The Respondent No.1 has acted with mala fides by modifying the Record Retention Schedule and reducing the period of retaining the answer books of the candidates, as the candidates will lose more than 45 days in obtaining the information under the regular Right to Information procedure.

m.  The modification of the Record Retention has been done in gross violation of the Public Records Act, 1993.

n.   Once, the Respondent No.1 destroys the answer books after 45 days the candidates will not have any remedy left with them.

o.    The Delhi High Court in WP (C) No. 2467 of 2006 has observed that it is illogical to calculate one year’s time from destruction of Answer Books from the date on which a person appears in the Written Examination. Grievances, so far as the marking is concerned, would arise only when the Results are declared. Record Retention Schedule, in as much as it stipulates that Records shall be kept for one year, can only be fairly and logically interpreted to commence from the date when the Results are declared.

p.    The non-transparent, non-accountable functioning of the UPSC and the complete secrecy Regarding Civil Services Examination and recruitment process herein applying violates Article 19(1)(a) of the Constitution which guarantees the right to information, and the same being arbitrary is violative of Article 14 of the Constitution.

q.    The Respondent No.1 is making the candidates to run from pillar to post to obtain the Certified Copies of their Answersheets and Raw and Scaled/Moderated marks of all candidates to prove their case that their non-selection in Civil Services is because of the irregularities committed by UPSC in the evaluation process.

F.       Source of Information:

The Petitioners state that the information relied on in this Public Interest Litigation has been gathered by the Petitioners
1.    from various candidates who appeared for the Civil Services Examination – 2011
2.    through his own Right to Information Applications filed in the office of the Respondent No.1 UPSC, and
3.    The NGO Transparency Seekers for Accountability.
The Petitioners state that they have verified the information themselves personally and to the best of their knowledge, believe it to be correct. Annexed herewith and marked as Annexure “3” is an affidavit in this regard in terms of Rule 7(c) of the Bombay High Court Public Interest Litigation Rules, 2010.

G.      Other Declarations:

1.       The Petitioners state that they have not made any representation to the Respondent No.1 apart from the Right to Information applications made by various candidates on which they rely on for the purpose of this Public Interest Litigation.

2.       The Petitioners state that there is no delay in filing this Public Interest Litigation.

3.       The Petitioner states that have not filed any other writ, complaint, suit or claim in any manner claiming the reliefs claimed in this Public Interest Litigation in this Hon’ble court.

4.       The Petitioners crave leave of this Hon’ble Court to add to and amend this Writ Petition, whenever any new material in support of this Public Interest Litigation are found or discovered by the Petitioners.

5.       The Petitioners undertake to submit English translations of Hindi and Marathi documents if required by this Hon’ble Court.

6.       The Petitioners have paid the Court fees of Rs.500/- while filing this Public Interest Litigation.

7.       The Petitioners undertake to provide typed copies of illegible documents if any in the course of pendency of this Public Interest Litigation.

8.       The Petitioners state that the reliefs claimed in this PIL if granted will be in full and will be beneficial to the laks of Candidates appearing every year for the Civil Services Examination and also to the citizens of India as the topmost bureaucrats of India are selected through this examination.

9.       The Petitioners submit additional documents relating to the issue agitated in this Public Interest Litigation, which documents have been obtained by the Petitioner through various sources among NGO’s and Newspapers. Annexed herewith and marked at Exhibit “P” is a compilation of additional documents related to the Public Interest Litigation.

H.      Documents relied on:
As per the List of Documents annexed to this Public Interest Litigation.

I.       The Petitioner therefore Prays that

1.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the Respondents to provide Certified copies of answer books of the candidates as sought by them in their Right to Information applications under Right to Information Act, 2005 as submitted to the Central Public Information officer, UPSC regarding the Civil Services Examinations 2011.
2.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the respondents to provide the Raw and scaled/Moderated marks of all candidates of Civil Services Main Examination – 2011 as sought by the candidates by their applications under Right to Information Act,2005.
3.    This Hon’ble Court by a Writ of Mandamus or a Writ in the nature Mandamus or any other appropriate Writ or direction be pleased to direct the Respondent No.1 to retain the answer books of all the candidates who appeared for the Civil Services Examination-2011 till the same is provided and any incidental proceeding arising out of it are exhausted.
4.    Any other appropriate relief may be granted by which this Court is of the opinion that the interest of the candidates who appeared for the Civil Services Examination – 2011 will be protected.

J.       Interim Order prayed for
1.    Pending hearing and final disposal of this Petition, This Hon’ble Court be pleased to stay the Record Retention Schedule of the Respondent No.1 dated 31.12.2011.
2.    Pending hearing and final disposal of this Petition, this Hon’ble Court be pleased to direct the respondent to retain the answer books of all the candidates who appeared in the Civil Services Examination, 2011.
3.    Any other appropriate relief may be granted by which this Court is of the opinion that the interest of the candidates who appeared for the Civil Services Examination – 2011 will be protected.

K.      Caveat
The Petitioners state that they have received no notice of lodging a caveat by the opposite parties.

Place: Mumbai
Date:  27th June, 2012
(Dr. PrachiDilipPampattiwar)
Petitioner No.1


(Dr. PrashantRamesh Chakkarwar)
Petitioner No.2