IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRAORDINARY ORIGINAL JURISDICTION)
Writ Petition (Civil) No.
.................... of 2012
PUBLIC INTEREST LITIGATION
IN THE MATTER OF:
Saurabh
Kumar
S/o
Sh.Chandrashekhar Singh
R/o
Flat No.36 Railway Transit Camp
State
Entry Road , New Delhi
Versus
1.
Union Public Service Commission
Dholpur House,
New Delhi-110069.
2.
Union of India
Through Ministry of Personnel,
Public Grievances and Pension
Department of Personnel and Training
Through Secretary, New Delhi
A WRIT PETITION IN PUBLIC INTEREST UNDER ARTICLE 226 OF THE CONSTITUTION
OF INDIA SEEKING WRIT OF MANDAMUS OR ANY OTHER WRIT, ORDER OR
DIRECTION, FOR ISSUANCE OF DIRECTION TO THE UPSC TO PROVIDE PHOTO COPIES OF THE ANSWER-SHEETS OF THE APPLICANTS
OF THE CIVIL SERVICES EXAMINATIONS AND TO DIRECT THE UPSC TO MAINTAIN ANSWER
SHEETS UPTO ONE YEAR.
To,
THE HON’BLE CHIEF JUSTICE OF HIGH COURT
OF DELHI
AND HIS COMPANION JUDGES OF
THE HON’BLE HIGH COURT OF DELHI
The
Humble Petition of the
Petitioners
above-named
MOST
RESPECTFULLY SHOWETH: -
1) The petitioners are filing the
instant writ petition in public interest challenging the Constitutional and
Legal validity of denying to provide the information regarding Civil Services
Examination conducted by UPSC, which is a fundamental rights of the
Petitioner under Article 19(1) of the Constitution of India. This petition seeks a Direction to the Respondents for
providing photo copies of the answer-sheets of the Applicants as asked by the Applicants
by their applications under Right To Information Act, 2005 in respect of Civil Services Main Examination -2011 immediately.
2) This petition also seeks stay 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 his legal
rights i.e. one year.
3) This petition also seeks the
direction to the UPSC for
logic counting of the 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.
THE CASE IN BRIEF
1) It is respectfully submitted that Union Public Service Commission (UPSC), Respondent No. 1
herein, conducts Civil Services Examination every year for selection of
candidates for appointment on various posts for Civil Services in India. The
said recruitment process involves three stages Preliminary Examination, Mains
Examination and Interview.
2) It
is respectfully submitted that the Petitioners herein are the students who
appeared in the Civil Services Main Examination-2011 conducted by Union Public
Service Commission (UPSC), Respondent No, 1 . The Petitioners have sought for
photo copies of the answer-sheets of the Applicants in Civil Services Mains
Examinations-2011, conducted by the Respondent , under Right to Information Act,2005 ,in view
of Hon’ble Supreme Court judgment dated
9/8/2011 in Central Board of Secondary Education v/s Aditya Bandopadhyay in Civil appeal no. 6454 of 2011 directing all
examining bodies including Public Service Commission to provide Certified
copies of evaluated Answersheets to candidates under Right to Information
Act,2005. True copy of the applications of the Petitioners are filed herewith
as ANNEXURE P-l (Colly)
3. In the matter of “Central
Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. decided on 9-08-2011” Hon’ble Supreme Court directed the examining bodies to permit examinees
to have inspection of their answer books. Even after this Judgment of the Apex
Court UPSC has denied to follow this Judgment on various frivolous grounds
including section 8(1)(d) of Right to Information act ,2005 , which has been
categorically denied by Hon’ble Apex court
in point 27 of judgment in “Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay
& Ors.
as mentioned here,
“We, therefore, hold that an examining body does not hold the
evaluated 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.”
evaluated 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.”
The reply of the UPSC dated
. .2012 are filed herewith as ANNEXURE
P-II (CollY).
4. It is pertinent to mention here that
Assam Public Service Commission was one of the party in CA Nos.6465-6468 of
2011 which was attached to CA NO. 6454
OF 2011, “Central
Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors. Thus , if this judgment is applicable to Assam Public
Service Commission, then it is also applicable to Union Public Service
Commission , as both of them are constitutional bodies which owe their origin
from Article 315 of Indian Constitution.
5. It is
pertinent to mention here that before the abovementioned judgment of Hon’ble
Apex Court, Union Public Service Commission used to deny the Answersheets to
the candidates under Right to Information Act ,2005 , mentioning CIC’s decision
dated 23.04.2007 ,which deals with Section 8(1) (e), section 8(1) (g), section
8 (1)(j), which were overruled by abovementioned judgment of Apex Court.
Then Officers in Union Public Service
Commission raised altogether new ground
,i.e. section 8(1)(d). This change of ground for denial of answersheet, itself
reflects the Malafide intention of Union Public Service Commission. But, they
forgot that Hon’ble Apex Court in abovementioned judgment very categorically
said that no exemption under section 8 is available to deny certified copies of
Answersheets, thus denying Answersheets to candidates under section 8(1)(d)
Union Public Service Commission is committing Contempt of Court. Reply of UPSC
dated 27/11/2009 is filed as ANNEXURE
P-III (CollY).
6. 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 21-35 of their life preparing for this examination.
7. It is pertinent to mention that High
Court of Delhi very categorically held in WP (C) 218/2011 that ,if the law is finally
settled by Apex Court, then candidate need not have to follow complete
procedure of RTI ACT,2005, as it will needlessly delay the matter.
Petitioners are approaching this Court, after filling RTI application
demanding certified copy of answersheet, without waiting the UPSC’S reply as UPSC has rejected the same
demand of other applicants under section 8 (1)(d) of RTI act,2005 ,even after
Hon’ble Apex Court judgment in “Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay
& Ors., so, UPSC’S stand is known to petitioners.
Even Petitioner can’t wait for UPSC’s
reply in their case, as According to changed Record Retention Schedule ,from 31
january 2012, regarding Answersheets, Answersheets will be kept intact six
month from conclusion of examination or 45 days from display of marksheets, whichever
is latter. Thus, UPSC will destroy the Answersheets first week of July 2012.
So, it will be too late, if petitioners will follow normal RTI procedure.
8. That the Hon’ble Apex Court in ICAI versus Shaunak H. Satya [2011 (8) SCC 781] has held that, “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 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”.
8. That the Hon’ble Apex Court in ICAI versus Shaunak H. Satya [2011 (8) SCC 781] has held that, “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 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”.
9.
The Petitioners have not filed any other writ, complaint, suit or claim
in any manner regarding the matter of dispute in this Hon’ble court or any
other court or tribunal throughout the territory of India
GROUNDS
A.
In
the matter of “Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay
& Ors.Decided on
9-08-2011” this Hon’ble Court
B.
The
Right
to Information is a part of fundamental rights under Article 19(1) of the
Constitution of India. Article 19 (1) says that every citizen has freedom of
speech and expression. As early as in 1976, the Supreme Court said in the case
of Raj Narain vs State of UP India India
C.
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.Till 2010, UPSC maintained answer sheets for the last 1 year
from the conclusion of examination or 60 days after start of display of
marksheets on the Commisions website, whichever is later. But since examination
of 2011, UPSC changed its retention period of maintaining answer sheets to 6
months from the conclusion of examination or 45 days after start of display of
marksheets on the Commisions website, whichever is later.
D.
In
case an applicant challenges the violation of his legal rights(within 1 year)
against UPSC after the period when UPSC has destroyed the answer sheet(6 month
or 45 days whichever is later), then the applicant will have no proof(answer
sheet) to put forth his point. The retention period should be aligned with the
time duration given by Law for challenging the violation of his legal rights,
otherwise the time given by Law becomes void. The new retention period defined
by UPSC is arbitrary and is a clear violation of Article 14 of the Constitution
of India and right to
information of the citizen of India
E.
The
logic used by UPSC for counting the retention period is incorrect and High
Court has also accepted the said fact. The start day of counting of retention
period is taken from the day when exam is over. The counting should be taken
from the day when result is declared.The logic for counting is arbitrary and is
a clear violation of Article 14 of the Constitution of India.
F.
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.
G.
That the conduct of the UPSC shows
malafide as it is incumbent upon not giving the information sought by the
Petitioners despite the judgments of Hon’ble Supreme Court in Civil Appeal No: 6454 of 2011 titled
Central Board of Secondary Education & Anr v/s Aditya Bandopadhyay &
ors. Wherein Assam Public Service Commmission was also party in CA Nos.
6465-6468 of 2011 attached to abovementioned case, hence the abovementioned
decision is also applicable on UPSC.
H.
That
the Petitioners are moving pillar to post to obtain the Certified copies of
their Answersheets to prove the case of the Petitioners that their non
selection in Civil Services is because of the irregularities committed by UPSC
in the evaluation process. The UPSC
knowing fully well that the claim of the Petitioners about the irregularities in
the recruitment process is genuine is trying to deny certified copies of
Answersheets to petitioners on various frivolous grounds including Section 8 (1) ( d) , which is already
rejected by Hon’ble Supreme Court, in Civil Appeal No: 6454 of 2011 titled Central
Board of Secondary Education & Anr v/s Aditya Bandopadhyay & ors. , and
deliberately committing Contempt of Court
and frustrating the legitimate
endeavor of the Petitioners thus violating the fundamental Rights of the
Petitioners .
PRAYERS
In
view of the facts & circumstances stated above, it is most respectfully
prayed that this Hon’ble Court
a. Issue a writ of mandamus or any other writ or order for directing
the Respondents to provide Certified
copy of their answersheet asked by the Petitioners by their applications under
Right To Information Act, 2005 to the CPIO, UPSC for Civil Services
Examinations 2011.
B. grant an interim stay for destroying the documents relating to Civil Services Examination
2011 within six months and direct to maintain the retention period aligned with the time duration given by
Law for challenging the violation of his legal rights i.e. one year..
C. Issue or pass any writ, direction or order, which this Hon’ble
court may deem fit and proper.
Petitioners
Through
Counsel
for the Petitioners
Drawn
By:
Drawn
On: MAY 2012
Filed
On: MAY 2012
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