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
