VISITORS

Sunday, 4 March 2012

Hon'ble High Court of Delhi decision in WP(C) 218/2011 and Review petition no: 51 /2011 and LPA no. 229 of 2011 titled UPSC vs Angesh Kumar

  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





   Review judgement:-

IN THE HIGH COURT OF DELHI AT NEW DELHI
  37

  W.P.(C) 218/2011


  AGNESH KUMAR AND ORS. ..... Petitioners
  Through: Mr. Sumit Kumar, Advocate.


versus


  UNION PUBLIC SERVICE COMMISSION
  AND ANR. .....
  Respondents
  Through: Mr. Naresh Kaushik and Ms. Aditi Gupta, Advocate for R-1.
  Mr. B.V. Niren, CGSC with Mr. Abhishek Goyal, Advocate for R-2.

  CORAM: JUSTICE S. MURALIDHAR

   O R D E R
   04.02.2011

  Review Petition No. 51/2011




  1. One of the grounds on which a review is sought by the writ Petitioners of the
  order dated 13th January 2011 passed by this Court is that in para 8 of the said
  order this Court had recorded the statement of learned counsel for the UPSC that
  as regards the Civil Services Preliminary Examination 2010 (?Prelims 2010?) the
  scaled marks would be disclosed but not the raw marks. Mr. Sumit Kumar, learned
  counsel for the Petitioners points out that from the information available on
  the website of the UPSC it is apparent that answer books/answer sheets are to be
  preserved for one year. The marks indicated on an answer sheet would be the raw
  marks. Therefore, it is unlikely that the UPSC does not have the raw marks
  awarded to candidates who sat for the Prelims 2010.

  2. Mr. Naresh Kaushik, learned counsel appearing for the UPSC, seeks to clarify
  that what was meant by the statement made before this Court on 13th January 2011
  was that after the scaling was done, the raw marks did not ?subsist? and
  therefore could not be disclosed.

  3. In para 9 of the order dated 13th January 2011, this Court had observed that
  ?if the raw marks are not available with the UPSC, they need not be disclosed to
  the Petitioners.? As a corollary, if the raw marks were available with the UPSC,
  they should be disclosed to the Petitioners. There is no merit in the submission
  made on behalf of the UPSC that the raw marks did not ?subsist? and therefore
  could not be disclosed. If the raw marks are awarded to the Petitioners
  available with the UPSC, then they must be disclosed to the Petitioners.

  4. The other ground to seek review of this Court?s order dated 13th January 2011
  is the submission made by the UPSC to this Court on that date as regards the
  model answers. It was recorded in para 8 of the said order that the learned
  counsel for the UPSC stated that ?model answers were available only for some of
  the questions.? On this aspect this Court had held that ?only those model
  answers as are available with the UPSC need be disclosed to the Petitioners.?

  5. It is now submitted by the Petitioners that since the questions for the
  Prelims 2010 are all of objective type, model answers would be available for all
  the questions. This Court clarifies that if indeed model answers are available
  with the UPSC to all the questions in the Prelims 2010, they should be disclosed
  to the Petitioners.

  6. The review petition is disposed of with the above clarification of the order
  dated 13th January 2011 passed by this Court.

  7. Order dasti to the parties.

  S.MURALIDHAR, J
  FEBRUARY 04, 2011
  ak

  Review Petition No. 51/2011 Page 1 of 3


  $
  



LPA 229/2011  RELEVENT ORDERS( for all orders please refer to High Court of Delhi website)



  IN THE HIGH COURT OF DELHI AT NEW DELHI

  LPA 229/2011

  UPSC ..... Appellant
  Through Mr. Naresh Kaushik, Ms. Aditi Gupta and Ms. Amita Kalkal Chaudhary,
  Advocates


versus

  ANGESH KUMAR and ORS ..... Respondents
  Through Mr. B V Niren, CGSC with Mr. Parikshit Singh Shekhawat, Advocate for R-
  13/UOI
  Mr. Murari Kumar, Advocate for R-1 to R-12



  CORAM:
   HON'BLE THE CHIEF JUSTICE
   HON'BLE MR. JUSTICE SANJIV KHANNA

   O R D E R
   19.05.2011

  It is submitted by Mr. Naresh Kaushik, learned counsel for UPSC-Appellant
  that the earlier Division Bench decision rendered in LPA No.313/2007 (Union
  Public Service Commission Vs. Shiv Shambhu and Ors.) decided on 3rd September,
  2008 only pertained to grant of cut off marks and model answers.
  Learned counsel for the appellant has drawn our attention to paragraph 5
  of the said decision, which reads as follows :
  ?5. As far as the present dispute is concerned, its genesis lay in the
  applications made by Respondents herein to the UPSC in August 2006 seeking the
  following information:
  (a) copy of the cut off marks list for optional subject and General Studies.
  (b) separate cut-off marks for every subject and for General Studies by
  different categories such as General, OBC, SC, ST including copies of the
  relevant documents.
  (c) details of the marks obtained by the candidate in the preliminary
  examination.
  (d) the modal answers for each series of every subject.
  (e) the reason for retaking the examination for ?Public Administration? optional
  subject on 18th June 2006.?

  In the present case, the information is sought as regards raw marks and
  scale marks. Learned counsel for the appellant fairly stated that the UPSC has
  no objection to give scale marks and the same has already been given. Thus, the
  only questions that remain whether raw marks and third party information are to
  be granted. If the respondent seeks other informations the same can be given
  and should be given within a period of four weeks.
  It is further submitted by Mr. Kaushik that with regard to raw marks, the
  Apex Court in SLP (Civil) No.2040/2011 (Institute of Chartered Accountants of
  India Vs. Shaunak H Sayta and Ors.) has directed stay of the order of the High
  Court of Bombay, which has dealt with the said aspect.
  Learned counsel for the parties are requested to peruse the decision of the
  Bombay High Court and canvass their contentions.
  Call on 5th July, 2011.
  Be it noted that the raw marks of the respondent is in custody of the UPSC
  and that should be preserved till the matter is decided.
  CM 5093/2011(Stay)
  This is an application for stay of the order dated 4th February, 2011
  passed by the learned Single Judge in Review Petition No.51/2011. Having heard
  learned counsel for the parties it is directed that there shall be stay of the
  operation of the order dated 4th February, 2011 passed in Review Petition
  No.51/2011 till the disposal of the LPA.
  The application is accordingly disposed of.


  CHIEF JUSTICE



   SANJIV KHANNA, J.
  MAY 19, 2011


  vld

  $ 11






 IN THE HIGH COURT OF DELHI AT NEW DELHI







  LPA 229/2011







  UPSC ..... Appellant



  Through: Mr. Naresh Kaushik and Ms. Aditi Gupta, Advs.








Versus



  ANGESH KUMAR and ORS ..... Respondents



  Through: Mr. Rajesh Kumar Tiwari, Respondent No.2 in person.



  Mr. B.V. Niren, Adv. for R-13.







  AND



  W.P.(C) 3316/2011







  DURGESH KUMAR TRIPATHI and ORS. ..... Petitioners



  Through: Mr. Devendra Sharma, Petitioner No.3 in person.








Versus







  UNION PUBLIC SERVICE COMMSSION and ANR..... Respondents



  Through: Mr. Naresh Kaushik and Ms. Aditi Gupta, Advs.



  Mr. Mohit Jolly, Adv. for R-2.



  CORAM:



   HON'BLE THE ACTING CHIEF JUSTICE



   HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW







   O R D E R



   24.02.2012







  Arguments heard.



  Judgment reserved.



  Both the parties want to file their written submission. The same

  may be filed within one week.



  ACTING CHIEF JUSTICE











  RAJIV SAHAI ENDLAW, J



  FEBRUARY 24, 2012/skb







  $ 33-35
 







WRITTEN ARGUMENTS SUBMITTED IN THIS MATTER:-



Written Submissions
In the matter of LPA no .229/2011 & W.P.C no.3316/2011
To,
     The Chief Justice (High Court Of Delhi)

Subject:- To direct Union Public Service Commission( hereafter  reffered  as UPSC) to furnish raw marks of respondents and successful candidates in civil services (preliminary) examination 2010.


Sir,
There are two issues regarding raw marks:-
To know raw marks is our right  or not  and utility and its relevance for us.
1.       To get raw marks is our right which is decided in :-
a. It has been decided by the apex court in the case of Union Public Service Commission  Vs  Shiv Shambhu and others in  SLP 23250/2008 , that UPSC  has to furnish raw marks.(please see our compiled judgement page no 96  about  grounds taken by UPSC  in said SLP  saying in Groud  (C)  “Because once the raw marks and scaled marks are disclosed  and inferences drawn therefrom , there  is likelihood of Dummy candidates appearing in examination in well planned out pattern……” and  at various other places in grounds UPSC  talks about  raw  and scaled marks  in said SLP and   on page no. 112 of our compiled judgement    Hon’ble  Supreme Court by  its  order dated  18/11/2010 dismissed   the same grounds. ) So, after dismissal of above  grounds  in said SLP, UPSC  is duty bound to furnish raw marks of  candidates.
b.
In the matter of The Institute Of Chartered Accountants Of India Vs Shaunak H. Satya and others in
SLP (C) No.2040/2011 (Please see our compiled judgement in page no. 25, point no. 24). ”The RTI Act provides access to all information that is available and existing ”.
According to record retention schedule of UPSC, They have to maintain the answersheets  pertaining to court cases.(please see our  enclosure  1 ,page no……… ).
c. It has been decided in the judgement of  Hon’ble Supreme  Court in CBSE  V/S  Aditya Bandopadhya  in
SLP [C] No.7526/2009    that   candidate can claim certified Xerox copy of his /her answer sheet from the examining body including  Constitutional  bodies  .  (See our compiled judgement ,page  no. 52 point H).Assam Public Service Commission was also the party in above mentioned  case. Hence ,by this judgement  also  UPSC  is  duty bound to provide Raw marks which are written  on front page of  Answersheet.
d.  Also , Review judgment in present matter Review  Petition No: 51/2011 in WP(C ) 218/2011 in point No. 3 held that  Raw marks should  be disclosed  to the petitioners.
              e. The  whole  genesis of  this  matter  is  in  Hon’ble  Central              Information Commission  decision dated  13/11/2006 in  Shiv Shambhu  and others  and  UPSC  ,wherein   Hon’ble  Central  Information Commission  ordered  that  “ UPSC  shall , within  two  weeks  from date of this  order disclose  the  marks  assigned  to each of the  applicants for  Civil Services Preliminary  Examination 2006……..”  and  same Central  Information Commission  in  Interim  Order  CIC/WB/A/2007/00694 in matter of  Ravi Jindal  v/s Union Public Service  Commission  dated  27/10/2008 ,very  clearly said  that  Information  regarding  Raw Marks / Moderated  Marks   can not be  disclosed  when this  specific  issue  is  under challenge in Apex  Court  in SLP (C ) 23250/2008. So, there is no ambiguity in  Hon’ble  Central  Information Commission’s  stand  and  by  assigned marks  it  means  both  Raw as well as scaled/moderated  marks  and  the  SLP 23250 covers  both  Raw marks  and  scaled / moderated  marks  of Civil Services Preliminary as well  as Main  Examination.(please refer to Enclosure 2,page no:…….). This  is  also accepted  by  UPSC  in  RTI  reply  to Shri Ashish  Gupta  dated  13/04/2009 in response to  his query (3) regarding  the  Raw marsk in  point (3)  UPSC  said  that  above  issue  is  sub-judice  in Hon’ble  Supreme Court ,Hence information  sought cannot  be  provided.(please refer  to  our enclosure No:3 ,page no:……)  As, this  issue is finally decided  by Hon’ble Supreme  Court  by dismissing  UPSC’s  SLP 23250/2008, UPSC  is duty bound  to  provide the Raw marks of  Civil Services Preliminary as well  as Main Examination also. So, by  denying  same  and  filing  LPA in already decided matter by all Courts  of the land ,UPSC  is  frustrating  intellectual  youth  energy of  India  as  well as  wasting  precious time and  misleading  this  Hon’ble Court.


2.       Utility and Relevance of Raw marks:-
a.UPSC prepares its result on basis of Normalized Equi- Percentile method and some statistical  formulae .  According to Normalized Equi- Percentile method UPSC  chooses  top   5%, 10%, 15%   of  top most scoring candidates in their various optional papers  according to its requirements. It means if  10% applicants are successful then 90% are failed . In other words, number  of correct answers of 10%  successful applicants were  more than 90% failed candidates, if any person out of 90% candidates has more or equal marks of successful candidates,then commission should provide them chance to appear in next stage  as per Apex Court   Judgment in  Sanjay Singh Vs Uttar Pradesh public service commission.(Please see the last page of judgement of Sanjay Singh Vs Uttar Pradesh Public Service Commission point no: 42 b)And it can only  be proved only after disclosing the raw marks of respondents and successful candidates (whose  no. is  21  and  12493 respectively )  whether respondent   have  more  raw maks than last  successful  candidate or  otherwise .  

So it is our humble request to you to  direct UPSC to furnish these information. 

                                                                                                Yours Sincerely

RAJESH KUMAR TIWARI


Enclosure:
1.Record Retention Schedule of UPSC.
2. Interim Decision of  Hon’ble  Central  Information  Commission  in  CIC/WB/A/2007/00694 in matter of  Ravi Jindal  v/s Union Public Service  Commission  dated  27/10/2008.
3. RTI reply  of  UPSC  to Shri Ashish  Gupta  dated  13/04/2009.














DELHI HIGH COURT DECISION IN LPA 229/2011 - disclose raw marks and scaling formula


LPA No.229/2011 & WP(C) No.3316/2011 Page 1 of 13
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 13th July, 2012 + LPA No.229/2011 % UNION PUBLIC SERVICE COMMISSION ....Appellant Through: Mr. Naresh Kaushik & Ms. Aditi Gupta, Advs. Versus ANGESH KUMAR & ORS. ..... Respondents Through: Mr. Rajesh Kumar Tiwari, Respondent No.2 in person. Mr. B.V. Niren, Adv. for R-13. AND + W.P.(C) NO.3316/2011 % DURGESH KUMAR TRIPATHI & ORS. ....Petitioners Through: Mr. Devendra Sharma, petitioner No.3 in person. Versus UNION PUBLIC SERVICE COMMISSION & ANR... Respondents Through: Mr. Naresh Kaushik & Ms. Aditi Gupta, Advs. Mr. Mohit Jolly, Adv. for R-2. CORAM :- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
LPA No.229/2011 & WP(C) No.3316/2011 Page 2 of 13
RAJIV SAHAI ENDLAW, J. 1. LPA No.229/2011 impugns the order dated 04.02.2011of the learned Single Judge in Review Petition No.51/2011 preferred by the respondents seeking review of the order dated 13.01.2011 disposing of W.P.(C) No.218/2011 preferred by the respondents.
2. The twelve respondents in LPA No.229/2011 had appeared in the Civil Services Preliminary Examination held on 23.05.2010 by the appellant Union Public Service Commission (UPSC) and were unsuccessful therein. They sought certain information under the Right to Information Act, 2005 and which information was denied to them by the Public Information Officer of the appellant UPSC. Aggrieved therefrom, they filed W.P.(C) No.6931/2010 which was dismissed vide order dated 08.10.2010 on account of pendency then of SLP No.23250/2008 preferred by the appellant UPSC before the Supreme Court against the judgment dated 03.09.2008 of a Division Bench of this Court in LPA No.313/2007 titled UPSC Vs. Shiv Shambhu entailing the same question. The respondents thereafter filed SLP No.32443/2010 to the Supreme Court. The Supreme Court vide order dated 18.11.2010 dismissed SLP No.23250/2008 of the UPSC, for the reason of the change effected by the UPSC in the pattern of examination with effect
LPA No.229/2011 & WP(C) No.3316/2011 Page 3 of 13
from the year 2011. Thereafter the Supreme Court vide order dated 03.12.2010 disposed of the SLPNo.32443/2010 preferred by the respondents observing that since SLP No.23250/2008 against the judgment dated 03.09.2008 of the Division Bench of this Court had been dismissed though as infructuous, the case of the respondents herein will also be governed by the said judgment dated 03.09.2008. 3. The respondents on the basis of said order dated 03.12.2010 of the Supreme Court again sought the information from the appellant UPSC and upon not meeting with any success, filed W.P.(C) No.218/2011, from which this appeal arises, seeking a direction to the appellant UPSC to disclose the following information: (i) details of marks (raw and scaled marks) obtained by the selected candidates in their respective optional subjects of the Civil Services Preliminary Examination, 2010; (ii) details of the marks (raw and scaled) obtained by the respondents themselves in the said examination; (iii) the cut off marks of each optional subject in the said examination.
LPA No.229/2011 & WP(C) No.3316/2011 Page 4 of 13
4. The aforesaid writ petition was disposed of vide order dated 13.01.2011 observing, finding and holding as under: (i) that in view of the respondents having earlier applied under the RTI Act for the information and having thereafter preferred a writ petition in this Court and SLP in the Supreme Court, the respondents were not required to again follow the procedure under the RTI Act; (ii) that the law having been settled by the Supreme Court, there was no need to relegate the respondents to the process under the RTI Act; (iii) On the plea of the counsel for the appellant UPSC that raw marks were not available and thus could not be disclosed and that model answers were available only for some of the questions, it was observed that whatsoever was not available with the UPSC need not be disclosed; (iv) no prejudice would be caused to anyone by disclosure of the result of the candidates who had qualified;
LPA No.229/2011 & WP(C) No.3316/2011 Page 5 of 13
(v) that the model answers as available with the UPSC were also liable to disclosure, in accordance with the various dictas on the subject. The appellant UPSC was accordingly directed to make the disclosure. 5. The respondents filed an application for review of the aforesaid order primarily challenging the statement of the counsel for the appellant UPSC that raw marks and the model answers for all the questions were not available. It was their contention that the appellant UPSC as per its rules was required to maintain the same for the prescribed period and which period had not expired. 6. The learned Single Judge vide impugned order dated 04.02.2011 on the said review application observed, found & held: (i) that the marks as appearing on the answer sheets are raw marks; (ii) that the answers sheets are required to be preserved for one year and thus the raw marks ought to be available with the UPSC;
(iii) the contention of the appellant UPSC that raw marks did not subsist upon being scaled and thus could not be disclosed was
LPA No.229/2011 & WP(C) No.3316/2011 Page 6 of 13
rejected. It was held that the raw marks have to be necessarily available; (iv) that since all the questions in the examination were of objective type, there could be no possibility of the model answers of any of them being not available; UPSC was accordingly directed to disclose the raw marks as well as the model answers of the questions in the examination. 7. Notice of this appeal was issued and the operation of the order dated 04.02.2011 of the learned Single Judge stayed. 8. W.P.(C) No.3316/2011 is filed, also seeking a direction to the UPSC to disclose the same information as subject matter of LPA No.229/2011 relating to the same examination and qua the nine petitioners therein. While the said petition was pending before the learned Single Judge, it was pointed out that the controversy therein was the same as in LPA No.229/2011. Accordingly the said writ petition was transferred to this Bench and the counsel for the petitioners in the writ petition has raised the same arguments as the counsel for the respondents in the LPA.
9. As would be apparent from the above, the respondents prior to filing the writ petition from which this appeal arises had filed a writ petition for
LPA No.229/2011 & WP(C) No.3316/2011 Page 7 of 13
the same relief but which writ petition was dismissed owing to the question entailed therein pending consideration before the Supreme Court in SLP No.23250/2008 preferred by the appellant; the respondents also had then preferred SLP No.32443/2010 and which SLP as aforesaid was disposed of with a direction that the respondents would be entitled to the same relief as given by the Division Bench of this Court vide judgment dated 03.09.2008 in LPA No.313/2007. It thus becomes necessary to first examine the said LPA No.313/2007. The same was preferred against the judgment dated 17.04.2007 of the Single Judge in W.P.(C) No.17583/2006. In the said writ petition also, the same disclosure as in the present proceedings was sought from the UPSC, though pertaining to the Civil Services (Preliminary) Examination, 2006 and UPSC had contested the demand for such disclosure on the same grounds as being urged herein.
10. It is the case of UPSC, that the Civil Services Examination comprises of two parts, i.e. the Preliminary Examination and the Main Examination which is followed by interview; that the Preliminary Examination is in the nature of a screening test to select twelve to thirteen times the number of vacancies in the order of merit; that the Preliminary Examination comprises
LPA No.229/2011 & WP(C) No.3316/2011 Page 8 of 13
of two papers, one of General Studies which is compulsory and an optional paper from out of 23 subjects offered; that since different examinees opt for different optional paper, UPSC has developed a methodology to make the marks obtained in each subject comparable; through this methodology, scaling of marks is done so that the marks obtained in different subjects are comparable with each other; scientific formula is used for such scaling of marks; said scientific formula has been further changed and modified by the experience, to suit the needs and requirement of UPSC; that insofar as the marks of compulsory subject are concerned, no scaling is applied; that prior to the examination, no cut offs can be presumed and the cut offs that are implemented are only post examination; the marks in the Preliminary Examination are not counted in the Main Examination. 11. It is further the plea of UPSC that revealing the cut off marks and the keys to the question papers would enable unscrupulous persons to engineer and arrive at the scaling system which is kept secret by the UPSC; that if the scaling system adopted by the UPSC is disclosed, then the entire system would be undermined and defeat the selection.
LPA No.229/2011 & WP(C) No.3316/2011 Page 9 of 13
12. The learned Single Judge in judgment dated 17.04.2007 in W.P.(C) No.17583/2006 found, observed and held, that the UPSC in a counter affidavit filed in the Supreme Court had already disclosed the scaling method adopted by it and thus the said scaling method could no longer be said to be secret or confidential; that there was no merit in the contention of UPSC that disclosure of cut off marks would undermine the selection process; that the disclosure of cut off marks of one year would not effect the examination of a subsequent year which is independent; that the data of one year has no bearing on the following years. Accordingly, holding that the scaling method already stood disclosed and there was no bar to the disclosure of the cut off marks and the model answers, direction for disclosure thereof was issued.
13. UPSC, as aforesaid preferred LPA No.313/2007 against the aforesaid judgment and which was dismissed on 03.09.2008. The SLP No.23250/2008 preferred by the UPSC to the Supreme Court has also been dismissed though as infructuous but without setting aside the judgments dated 17.04.2007 and 03.09.2008 (supra) of the Single Judge and the Division Bench of this Court. Rather, when SLP No.32443/2010 preferred
LPA No.229/2011 & WP(C) No.3316/2011 Page 10 of 13
by the respondents came up before the Supreme Court, the same was disposed of with a direction that the respondents shall be entitled to the relief as given by the High Court in the said judgments. 14. In the aforesaid factual scenario, we are unable to find any scope for further adjudication inasmuch as the Supreme Court has already directed the information as aforesaid to be supplied to the respondents. Once it is held that the UPSC is bound to supply the said information, W.P.(C) No.3316/2011 will also have to be allowed inasmuch as the same information is sought therein. Though undoubtedly the petitioners in W.P.(C) No.3316/2011 ought to have first followed the procedure prescribed under the RTI Act but the petition having been entertained and having remained pending in this Court and this Court being required to adjudicate the controversy in any case in LPA No.229/2011, need is not felt to at this stage relegate the petitioners to following the procedure under the RTI Act.
15. The counsel for the UPSC before us has also urged that raw marks are an intermediary stage and ought not to be treated as information and only after scaling / actualization can the marks scored be computed and UPSC is not liable to disclose such intermediary marks. It is also argued that the
LPA No.229/2011 & WP(C) No.3316/2011 Page 11 of 13
counter affidavit in the Supreme Court on the basis whereof it has been held that the method of scaling already stands disclosed, does not in fact disclose the same and the scaling system is thus not in public domain. 16. We are afraid, the latter of the aforesaid argument cannot be entertained at least before this Court. The Single Judge in judgment dated 17.04.2007 (supra) held that the method of scaling stood disclosed in the counter affidavit in the Supreme Court and we do not find any argument to have been raised by UPSC before the Division Bench that the method of scaling had not been so disclosed. There is no discussion whatsoever in the judgment dated 03.09.2008 of the Division Bench in this regard. Again, if it was the case of UPSC that the method of scaling had not been disclosed and this Court had wrongly presumed the same to have been disclosed, the UPSC ought not to have got its SLP dismissed as infructuous and ought to have got the said matter adjudicated by the Supreme Court. On the contrary, the Supreme Court by dismissal of the SLP of the UPSC and by order dated 03.12.2010 in the SLP of the respondents has expressly directed the disclosure of the method of scaling. After the matter has been dealt with by the Supreme Court, through speaking order, it is not for this Court to re-examine the same.
LPA No.229/2011 & WP(C) No.3316/2011 Page 12 of 13
17. We are even otherwise of the view that there could be no secrecy or confidentiality about the method of scaling / actualization adopted by an examiner. The very objective of the RTI Act is transparency and accountability. The counsel for the UPSC has been unable to show as to how the disclosure of the scaling / actualization method prejudices the examination or affects it competitiveness. The Supreme Court in U.P.P.S.C. Vs. Subhash Chandra Dixit AIR (2004) SC 163 approved of the practice of scaling / actualization, though in the subsequent decision in Sanjay Singh Vs. U.P.P.S.C. AIR (2007) SC 950, certain reservations were expressed with respect thereto. Be that as it may, though the non-disclosure of the method devised for scaling / actualization till declaration of the result may be justified, it cannot be said to be justified after the result is declared. The Supreme Court in The Institute of Chartered Accountants of India Vs. Shaunak H. Satya (2011) 8 SCC 781 has held that the answer scripts and the answer keys are liable to disclosure after the result of the examination has been declared. If it were to be held that there is any secrecy / confidentiality about the raw marks and the method of scaling, the possibility of errors therein or the same being manipulated cannot be ruled out. An examinee is entitled to satisfy himself / herself as to the fairness
LPA No.229/2011 & WP(C) No.3316/2011 Page 13 of 13
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. 18. We therefore do not find any merit in LPA No.229/2011and dismiss the same. Axiomatically, W.P.(C) No.3316/2011 is allowed and the UPSC is directed to within eight weeks hereof disclose the information sought therein. 19. Though UPSC has indulged in re-litigation but giving benefit of doubt to UPSC that the resistance to disclosure is an after effect of the pre- RTI era, we refrain from imposing any costs on UPSC. RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE JULY 13 , 2012 ‘gsr ’




  



  

No comments:

Post a Comment

Post a Comment