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

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