CENTRAL INFORMATION COMMISSION
Block IV, 5th Floor, Old JNU Campus
New Delhi 110067
Decision No. 354/IC(A)/2006
(Right to Information Act – Section 19)
Name of the Appellant: 1. Shri Shiv Shambhu & ors.
2. Shri Sanjeev Kumar & ors.
Name of the Public Authority: Union Public Service Commission
Dholpur House, New Delhi.
Date of the Decision: 13.11.2006
Background & Facts:
In Rajnish Choudhry Vs. UPSC, this Commission vide decision dated
1.9.2006 decided as under:
(1) Total marks scored by the appellant in written papers as well as
interview should be disclosed.
(2) The procedure and the technique that are followed to determine the
cut-off point (or level of score of marks) to draw the line between
successful candidates and others should be disclosed for each
category of aspirants.
(3) Since the action relating to determination and application of cut-off
point being an extremely critical factor in life and career of a person
should fall under public domain, the information sought should be
furnished since the matter is complete and over.
(4) On the grievance that the Selection Committee was not properly
composed, there is no provision in the RTI Act for redress of such
grievance. However, in order to ensure that persons of high caliber
and integrity are associated with the process of selection, the
composition of such Boards/Committees should be made public
after the entire process of selection is over.
2. UPSC requested for recall of this decision and to decide the appeal de
novo by the Full Commission after affording reasonable opportunity of being
heard including oral hearing to UPSC. It was also submitted on behalf of the
UPSC that the process of recruitment has significant bearing on life and liberty of
citizens and that the issue involved in the present case is of prime importance
and of public nature.
3. In pursuance of the request of the UPSC, the Commission decided to hear
the matter by its full Bench.
4. In the meanwhile, some of the Civil Service aspirants who have appeared
for the Civil Services preliminary examination, 2006, including one Shiv Shambhu
and many other applicants applied to the UPSC seeking the following
(a) Separate cut-off marks for General Studies and for every optional
subject for different categories such as General, OBC, SC/ST and
(b) Details of marks obtained by each candidate;
(c) Model answers for each series of every subject;
(d) Reasons behind re-conducting of the examination on the subject of
5. Finding delay in the UPSC giving a decision on furnishing of the
information sought, some of the petitioners, represented by Shri Shiv Shambhu &
ors., approached this Commission on 23.8.2006 stating, inter-alia, that the CPIO
of the UPSC was not releasing the requested information even though it was so
promised earlier. The petition of the applicants was treated as a complaint and
UPSC was asked to offer their comments in respect of the same vide letter dated
25.8.2006. CPIO of UPSC vide his letter dated 8th September, 2006 informed
the applicants that the information sought by them forms part of the UPSC’s
crucial secrets and Intellectual Property u/s 8(1)(d) of the RTI Act, 2005. UPSC
also informed that the information requested by the applicants is in the nature of
secret documents u/s 8(2) of the RTI Act and there being no public interest
requiring its disclosure, it cannot be disclosed as the disclosure would harm the
protected interest. UPSC also found that the disclosure of the information shall
irreparably undermine the integrity, strength and efficacy of the competitive public
examination system of paramount significance conducted by the UPSC.
However, the CPIO of the UPSC enclosed a self-explanatory press-note in
respect of the information sought conducting of the examination in the subject of
Public Administration on 19.5.2006.
6. The applicants after receipt of the communication from CPIO submitted an
appeal before the First Appellate Authority of the UPSC and also filed a
complaint petition u/s 18(1) (b) of RTI Act before this Commission. Some of the
candidates on the same matter submitted an appeal before this Commission
7. In view of the fact that the matters both in the case of Rajnish Singh
Chaudhary Vs. UPSC and in this case filed by Civil Service Aspirants were
analogous in nature and concerning the same public authority, the Commission
decided that both the cases be heard together by the Full Bench on 16.10.2006.
8. After hearing all the parties, the Commission decided that the case of
Rajnish Singh Chaudhary Vs. UPSC in respect whereof the UPSC has requested
for rehearing the matter, orders would be passed separately after the UPSC
submits written arguments, if any, as regards the maintainability of review
petition. Since there were simultaneous appeals and complaints on the same
subject, the Commission preferred not to adjudicate the matter concerning the
Civil Service Aspirants and directed the First Appellate Authority to first dispose
of the appeal pending before it within one week and fixed 23.10.2006 as the next
date of hearing. However, the First Appellate Authority of UPSC rejected the
appeal and upheld the decision of the CPIO vide its order dated 20.10.2006
(hereinafter referred to as the impugned order).
9. The Civil Services aspirants formally filed their Second Appeal against the
impugned order before this Commission on 26.10.2006. In fact, two appeal
petitions have been filed, one by Shiv Shambhu & ors and the other by Sanjeev
Kumar & ors. Since they deal with the same matter, only one number was
assigned to them and they are being dealt with jointly. In response to the appeal
petition, UPSC filed their replies and the matter was heard by Full Bench on
UPSC was represented by:
1. S/Shri SK Mishra, Sr. Advocate
2. Biresh Kumar
3. A.K. Vishan Dass
4. V.P. Singh
5. V. Mitra
Appellants were present together with the following representatives:
1. S/Shri Prashant Bhushan, Sr. Advocate
2. Aman Lekhi, Sr. Advocate
3. Sumit Kumar, Advocate
4. Sudhir Kumar, Advocate
5. Rakesh Kumar, Advocate
6. Jaspreet, Advocate
7. Karmveer, Advocate
10. In their appeal petitions, the appellants have submitted as follows:
(i) The impugned order is contradictory to the stand taken by the CPIO
as the Appellate Authority has erroneously found that there is no
cut-off marks fixed by the respondents whereas the CPIO had
overtly withheld the information u/s 8(1) (d) and 8(2) of the RTI Act.
(ii) The findings of the appellate authority are wholly perverse,
misconceived and unfounded as the respondent cannot shortlist
candidates without first fixing cut-off marks.
(iii) The contention of the appellate authority that the disclosure of
individual score of the candidates along with the keys of question
papers would have wider implication to the extent of derailing the
entire structure and process of Civil Services Examination is not
correct and in support of their submissions, they have also quoted
the report of the Kothari Committee.
(iv) UPSC has been publishing the marks of each of the candidates in
the main examination even before commencement of the interview
and as such, there can be no reasonable basis for withholding of
marks in respect of the preliminary examination. Other State Public
Service Commissions are also furnishing similar information to the
(v) The provisions of Section 8(1)(d) of RTI Act deal with information
concerning commercial confidence, trade secret or Intellectual
Property whereas the UPSC is not involved in commercial or trade
activities and as such, there is no Intellectual Property involved
therein. The information requested does not fall within the ambit of
Official Secrets Act and as such, the provisions of section 8(2) of
the RTI Act are not applicable.
11. UPSC on the other hand, in their rejoinders submitted separately in
respect of the two appeal petitions, has submitted as under:
(i) There are no pre-prescribed cut-off marks;
(ii) UPSC with a view to avoiding a situation where most of the
candidates could come from a few disciplines having low or higher
scoring in optional papers had introduced and adopted the scaling
methodology which has been developed after consulting renowned
experts in the field and as such, it constitutes Intellectual Property
of the UPSC as envisaged u/s 8(1)(d) of the Act.
(iii) Even if the scaling procedure can be taken as “information
simpliciter”, still, it is protected from disclosure u/s 8(1) (d) as it may
adversely affect the competitive position of third parties.
(iv) Statistical aspects of the scaling method relate to the confidentiality
and viability of the method and individual marks in each paper and
the model answer key if revealed would ultimately lead to the
revelation of the formula employed which would adversely affect
the competitive position of the genuinely meritorious candidates.
(v) Even before the examination was held, UPSC made it clear that the
UPSC will not disclose either the individual marks or the cut-off
marks to the candidates. In case the individual marks and cut-off
marks are to be disclosed to the candidates, this will be such a
colossal work for the Commission that it will be impossible to
conduct all the examinations as per the examination schedule.
12. The Full Bench of the Commission heard the arguments advanced by
learned counsels appearing on behalf of UPSC and the appellants. Opening the
arguments on behalf of the UPSC, Sri Mishra submitted that there are no predetermined
cutoff marks for the Preliminary Examination. The candidates receive
no grades for the marks that they obtain in this examination. The marks are
finally assigned to the candidates in accordance with the Scaling methodology
based on Kothari Committee Report. The UPSC has developed this
methodology along with application software. Being a part of the intellectual
property of the UPSC this methodology is protected` under section 8(1)(d) of the
RTI Act, 2005 and the same cannot be disclosed under the RTI Act.
13. Mr. Mishra also contended that even if this be treated as information
simpliciter, it is still protected under Section 8(1) (d) as besides constituting
Intellectual Property of UPSC, it also constitutes information simipliciter as it
adversely affects competitiveness of the Commission. The information sought
will enable coaching centers to develop short-cut techniques, which will defeat
the purpose of the UPSC to select the brightest and fittest and meritorious
candidates for the country’s topmost services. Hence, in larger public interest it
is not possible to share this information. Larger public interest requires that
public services are manned by competent persons. It is the concern of the
UPSC that such things are not tampered with by disclosing it to the public.
14. Mr. Mishra during the course of his arguments submitted that in case of
preliminary examination, statistical methods are used. He explained that under
the formula, which he himself does not know, UPSC gives more numbers to
certain papers. In response to a query from Information Commissioners Prof
Ansari and Mrs. Padma Balasubramanian, that no scientific formula could be
taken as something that cannot be disclosed, Mr. Mishra submitted that after the
application of the formula, certain marks are ascribed to each candidate. Once
the candidates arrive at the same marks, rules then provide for short listing
candidates numbering 12-13 times of total vacancies. At this stage Information
Commissioner Sri AN Tiwari, asked that since the logic is being disclosed to us,
what is then the harm in disclosing it to the public? The learned Counsel
submitted that even the Chairman of the UPSC is not privy to this. The idea is to
make it as confidential as possible.
15. In this context the learned Counsel referred to the provisions of Section 13
of the Copyright Act, where under copyright subsists throughout India in original
literary works. He then referred to Sec.2 (4) of the Copyright Act, which gives an
inclusive definition of “literary work”, and accordingly a literary work includes
computer programs, cables and compilation including computer data base. He
submitted that this is exactly what this information is about which the
respondents/petitioners are asking UPSC to share.
16. He further submitted that disclosure of data would harm competitiveness
of those people who are genuinely meritorious candidates and who have much
larger and comprehensive knowledge of the subject in question and as such their
competitiveness will be affected and they will come under disadvantage. The
disclosure will enable the coaching centres to lay their hands on short-cuts ,
which will adversely affect those who are more meritorious.
17. Submitting his arguments on behalf of the appellants, the learned Counsel
Shri Prashant Bhushan, Senior Advocate submitted his dissatisfaction that the
system was admitted to have been kept unpredictable. He emphasized that
disclosure of scaling system is absolutely essential in the public interest. Since
the UPSC is not a commercial organization, it cannot claim Intellectual Property
or Copyright. He also questioned as to how disclosure of scaling system would
harm the competitive interest of a third party, particularly after the examinations
18. Mr. Aman Lekhi, Senior Advocate appearing on behalf of some of the
appellants, submitted that principle of maximum disclosure is the object of the
Right to Information Act and that the public authorities are under an obligation to
publish the way they function. It is more so in case of a public body providing
direct services to the public. If the information is revealed, flaws can be pointed
out, which can be acted upon to perhaps devise a better formula, as there is
always scope to improve upon. He alleged that UPSC is making a virtue of
nothing else but of unpredictability of methodology of examination. In this
context, he cited the following observations of the Hon’ble Supreme Court in Raj
Narain vs State of U.P. [1975 (3) SCR 360]:
“In a government of responsibility like ours, where all the agents of
the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every
public act, everything, that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing.”
19. The learned counsel also submitted that section 8(1)(d) of the RTI Act is
relevant only when the information relates to commercial confidence or a trade
secret or when the disclosure would harm the competitive position of a third
party. Since UPSC is not a commercial organization, it cannot claim the
protection under the said clause. On the other hand, the UPSC is obliged to
disclose such information in public interest. He also submitted that the UPSC
has denied the information to the appellants on the ground that the information is
something that is “a crucial secret” but such a concept is unknown to Right to
Information Act. At this stage, Chief Information Commissioner Wajahat
Habibullah reminded the learned counsel that this particular aspect has not been
pressed by the UPSC. The learned counsel also submitted that there is nothing
of as much confidentiality as the UPSC is emphasizing. In this context, he cited
the example of the UP Public Service Commission which has already put on their
website both scaled marks and unscaled marks.
20. The Right to Information Act has been enacted with a view to securing
access to information under the control of public authorities in order to promote
transparency and accountability in the working of every public authority. In its
Preamble, it has been clearly set out that an informed citizenry and transparency
of information is vital to the functioning of a democracy and to hold the
Government and its instrumentalities accountable to the governance. Section 3
of the Act declares that all citizens shall have the right to information. This right
is, however, subject to other provisions of the Act. Thus, it is very clear that
every public authority must strive to secure access to the information to the
citizens, should promote transparency and disclose rather than withhold
information. The information that can be withheld could be only those which are
likely to conflict with:
(i) other public interest including efficient operation of the
(ii) optimum use of limited fiscal resources; or
(iii) preservation of confidentiality of sensitive information.
21. The Act recognizes the paramountcy of the democratic ideal and seeks to
harmonize the above conflicting interests by incorporating Sections 8 and 24
which explicitly provide as to what information can be withheld or which are the
organizations which could remain outside the purview of the Act.
22. UPSC is not an organization that has been kept out of the reach of RTI
and as such, if it wants to withhold some information from the reach of the
citizens, it can do so only by taking recourse to provisions of the Act and not in
any other manner. Thus, the impugned order refusing disclosure of information
has to be in conformity with the provisions of the Right to Information Act, 2005.
23. In this context, it is also pertinent to refer to sub-section (5) of Section 19
of the Act which clearly lays down that the onus to prove that a denial of request
for information was justified shall be on the Central Public Information Officer and
not on the information seeker.
24. In the instant case, the appellants have asked for the following
(i) Cut-off marks for each of the optional subjects and the General
Studies for different categories like General/OBS/SC/ST/PH;
(ii) Details of marks obtained by the concerned appellant in the Civil
Services Preliminary Examination;
(iv) Model answers for each series of every subject.
25. Insofar as the reasons for re-holding of the examination in the subject of
Public Administration is concerned, CPIO has already furnished a self
explanatory note which was released to the Press. As this point was not pressed
in the appeal petition, no decision in regard thereto is necessary.
26. In the impugned order as well as in the oral arguments, UPSC has been
emphasizing the peculiar nature of the examination and the process of an even
evaluation of performance of candidates. UPSC has further submitted that this
process has been designed by the UPSC after years of expertise and
consultation with the subject experts and, therefore, this is a subject matter of
Intellectual Property which the UPSC is not in a position to disclose. The other
stand that the UPSC had taken is that disclosure of the information would
seriously affect the competitive position of the 3rd parties, i.e., those who have
been short-listed for the next stage of the examination or who would be preparing
for the future examinations. The denial of information is, therefore, claimed to be
justified u/s 8(1) (d) of the RTI Act.
27. The submissions of the UPSC as aforesaid mainly relate to the nature of
examination, the process of evaluation which includes the process of evenly
balancing scores in respect of various optional subjects, and the question papers
and the answers for each of the optional subjects and the General Studies.
UPSC has failed to explain as to how disclosure of individual marks to the
candidates could be an Intellectual Property of the UPSC. UPSC has already
conducted the examination. The question papers designed in consultation with
subject experts and prepared by UPSC were circulated to the candidates in the
Examination Hall, who have attempted answers. These answers have been
evaluated and marks have been awarded. During the course of hearing, it was
pointed out before us that for evenly balancing the performance of candidates in
various optional subjects, UPSC applies the scaling formula and accordingly, the
candidates are assigned the marks after applying the scaling formula. But we
see no reason as to how the assigned marks after applying the formula,
whatever it might be, could be a part of Intellectual Property of the UPSC.
Similarly, cut-off marks in respect of each of the subject are also fixed in
accordance with the said formula. Exemption is claimed by UPSC about the
“process” which has been developed as an original literary work, but the same is
not true in respect of marks assigned after the process of evaluation is applied.
So, whatever claim of Intellectual Property there is in respect of the formula or
the process, the same cannot be applied to the product, i.e. the marks assigned
to each candidate and the cut-off marks fixed in respect of each of the optional
subjects. Similarly, we see no reason to deny the disclosure as regards the cutoff
marks, if any, fixed for the General Studies paper which is common to all
examinees and application of the scaling formula may not be at all there in this
28. The appellate authority while passing the impugned order has stated that
the UPSC did not fix any subject-wise cut-off marks. It has also been mentioned
in the impugned order that since there are no subject-wise pre-determined cut-off
marks, the information requested is non-existent. On the other hand, CPIO while
denying the request for information did not say that the information is nonexistent
or that there is no cut-off marks for each of the subject. If that is so,
UPSC can provide marks obtained by the appellants in the General Studies
paper and the marks assigned to them in their respective optional papers after
applying the scaling formula.
29. The question that needs to be determined now is as to whether the
question papers per se or the standard answers or the model answers can be
categorized as Intellectual Property of the UPSC. During the course of
arguments, it was clear that the Intellectual Property claimed is under the
Copyright Act and what is prohibited under the Copyright Act is not disclosure but
reproduction and circulation thereof.
30. In this context it is pertinent to refer to Section 13 of the Copyright Act
which clearly lays down that subject to the provisions of the Act, the copyright
shall subsist throughout India in all literary, dramatic, musical and artistic works
which are original. Section 2 (o) gives an inclusive definition of “literary work” so
as to include computer programs in addition to what is commonly understood as
“literary work”. Section 14 of the Copyright Act defines copyright in `literary work’
as an exclusive right to do or authorize the doing of any of the following acts: -
(i) to re-produce the work in any material form including the storing of
it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of
the acts specified in relation to the work in sub-clauses (i) to (vi);
In case of Computer program it also includes to sell or to give for
commercial rental or offer for sale or for commercial rental any copy of the
31. Section 51 of the Copyright Act elaborates as to when Copyright in a work
shall be deemed to have been infringed and it accordingly includes the following
(i) When any person does any thing, the exclusive right to do which, is
by this Act conferred upon the owner of the Copyright;
(ii) When any person makes, distributes or exhibits or imports any
infringing copies of the work;
Thus, any reproduction, translation or adaptation or making copies or films are all
acts of infringement to the Copyright.
32. It is a fact that UPSC consults the subject experts, designs the questions
papers, and takes model answers in respect of each of such question papers.
The question papers, which are prepared by subject experts for UPSC in a
particular manner, are original literary works and as such copyright in respect
thereto vests in the UPSC. Since this literary work has been done by the subject
experts on behalf of the UPSC, it can legitimately claim copyrights thereof and
can thereby restrict its circulation or can exclude others from circulating it.
33. Since copyrights are part of Intellectual Property right, which is covered
under Section 8(1) (d) of the Right to Information Act, this Commission cannot
order its disclosure. Under Section 8 (1) of the RTI Act, the UPSC, therefore,
has no obligation to disclose any such material unless it is satisfied that larger
public interest warrants the disclosure of such information.
34. The Commission has carefully considered the aspects of public interest
involved in the matter. It has also considered the submissions made by the
UPSC and also by the appellants. There is no doubt that the issues involve
paramount public interest of selecting the best available brains for manning the
Civil Services. Equally important is the need to have a transparent system
known to each of the aspirants. Contrary to what the UPSC has claimed, this is
the only sure means of ensuring a level playing field. A public authority should
not be as possessive of its copyright as an ordinary owner who wants to keep his
property to his chest. Throwing the process open for public scrutiny might
probably result in evolving a system better than what has hitherto been followed
by the UPSC. In this context, it is pertinent to refer to the provisions of Section 9
of the RTI Act that reads as under:
“Without prejudice to the provisions of section 8, a Central Public
Information Officer or a State Public Information Officer, as the
case may be, may reject a request for information where such a
request for providing access would involve an infringement of
copyright subsisting in a person other than the State.”
Thus, a CPIO is empowered to reject a request for information where such
a request for providing access to information would involve an infringement of
copyright subsisting in a person. The power of the CPIO does not extend to
rejecting such a request if the infringement of copyright involved is belonging to
the State. Even Section 8(1) (d) also mandates the competent authority to order
disclosure of information, if it is satisfied that larger public interest so warrants.
In view of the reasons cited above, the Commission, therefore, directs as
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
Optional 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 Optional 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 duly
take into account the provisions of Section 9 of the RTI Act.
The appeal petitions stand disposed of accordingly.
The decision agreed to by the Full Bench is announced by the Chief Information
Commissioner on this the 13th day of November 2006.
Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO of
1. The Secretary, Union Public Service Commission, Dholpur House, Shahjehan
Road, New Delhi-110001.
2. Shri Biresh Kumar, Additional Secretary, Appellate Authority, Union Public
Service Commission, Dholpur House, Shahjehan Road, New Delhi.
3. Shri M.P. Singh, JS, PIO, UPSC, Dholpur House, Shahjahan Road, New Delhi.
4. Shri Shiv Shambhu, 401, F/2, C/o Nepal Singh, Room No.301, Budh Vihar, New
5. Sanjeev Kumar Shukla, 83, 3rd Floor, Bhai Parmanand Colony, Delhi-110009.