A LETTER TO CHIEF JUSTICE OF INDIA. Dear Friends, inspite of Supreme court's judgments in our favour in ADITYA BANDOPADHYAY CASE and SHIV SHABHU CASE , UPSC is not providing us certified copy of our answersheets ,raw marks ,moderated/scaled marks and thus violating our fundamental right of right to information which owes its origin from ART. 19 (1) of Indian Constitution. We all will send the copy of this letter to Hon'ble CJI as Supreme Court is the final protector of our fundamental rights. So, we appeal all our friend, well wishers to send one copy of this letter to CJI.

To                                                                                                                    Date :

The Hon’ble  Chief Justice of India (CJI)

Supreme Court of India,

New Delhi

Subject:-  Letter highlighting UPSC’s attitude and conduct with respect to transparency and accountability(Read RTI Act) & legal issues involved there with ,including value of  SC case-laws.

Respected Sir,

                     I am a law-abiding citizen of India, a republic in which constitution and rule of law stands supreme and the apex judicial institution i.e. Supreme Court of India is the guardian and upholder of the same.

Sir, I am making this urgent appeal to you, on a very important matter, as I want you and your fellow judges to exercise their superior wisdom & take cognizance of the unbecoming  attitude and conduct of another constitutional body i.e. Union Public Service Commission(UPSC),which is mandated to recruit civil servants of the country. In present circumstances, when there is country-wide outcry against corruption and blame is also being shared by bureaucrats, certainly top-recruiting agency is not setting an example on the front of transparency and accountability. Like authority and responsibility, transparency & accountability should also start from the top but sadly UPSC is blatantly violating these sacred principles which are also enshrined in the RTI act and instead, it is setting an example to the contrary.

Sir, irrespective of the RTI case-law emanating from the August 2011’s (Its been more than a year now) path-breaking judgment of Hon’ble  Supreme Court in CBSE & Anr. Versus  Aditya  Bandopadhyay & Ors. case, in which constitutional bodies like Assam PSC and Bihar PSCs were also parties, UPSC is still persisting with its unyielding and conservative attitude and is still not providing any photocopy of evaluated answer sheets using one pretext or another; while under the concerned judgment of Hon’ble  Supreme Court , every examinee has already been given, the right to access his evaluated answer-books, by either inspecting them or by taking certified copies thereof.

 Now, under such situation when UPSC is judging itself out of the purview of this case-law and is also misleading other agencies including State Public Service Commission (PSCs) in this regard, the value of case law concept has itself come under cloud .If candidates related to each and every exam body(like UPSC),has to go through lengthy legal process all over again ,from bottom to top, when already Supreme Court case law is there then whats  the benefit of case law? There can’t be different parameters for different agencies under RTI. If UPSC’s contention is upheld, soon even those agencies including PSCs, which are complying at the moment might think otherwise, thereby eroding the value of Supreme Court case law judgment and consequently a flood of  litigation on a matter, already decided by Supreme Court, will emerge, with respect to each and every agency, which were not party to the Aditya Bandopadhyay case .

Sir, It is pertinent to mention   here that UPSC is also  blatantly violating the case law laid down by Hon’ble Supreme Court in UPSC vs  Shiv Shambhu , in which apex court has upheld to disclose the raw marks ,scaled/moderated marks  and scaling/moderation formula under RTI act, 2005 by its order dated 18/11/2010. But, till date UPSC has not disclosed the raw marks, scaled /moderated marks, moderation formula to any candidates under RTI application. Thus, making mockery of Hon’ble Apex Court’s case law.

Sir,I am apprehensive that UPSC’s reluctance to disclose certified photocopies of evaluated answer-sheets, raw marks, scaled/moderated marks  under the RTI ,is because of the reason that it can ,for the certain extant, expose  the arbitrary and unaccountable modification/may be manipulation excercised  in the name of “ moderation” in Civil Services Exam(CSE) evaluation. As present implementation of concept of moderation is obscure, selective, non-scientific (not formula based instead human-agency based),without any detailed rules,  without transparent accountability and appraisal mechanisms, without reasonable disclosure of standards of moderation. Then the resistance shown by UPSC to remove the cover around it, in the name of maintaining integrity of its secret internal functioning further raises the eye-brows. Thus it seems that in a cut-throat competition its not the absolute performance of the candidates but the performance modified through this arbitrary and shady implementation of Moderation, is the decisive factor and it manifests irrational behaviour on part of the system, which is claimed to be full-proof by UPSC but ironically kept hidden beyond reasonable levels.

It is quite astonishing to know that the apex constitutional commission is fighting near about 1000 cases related to anomalies in exams conducted by it and has spent more than Rs 105 crore  on its legal cell, in last 5years, as revealed by RTI and reported by newspapers and yet it is not providing the basic information under RTI like how many supplementary sheets were used by a candidate!! The institution is not leaving any stone unturned in creating obstacles in the unorganized candidate’s (many of them genuinely considers themselves victims & seek justice) quest for exercising their legal rights when It has already been held that no system can be absolutely full-proof and examinee has right to satisfy himself.

UPSC is giving all sort of general and vague responses of specific queries under RTI.A candidate can not challenge this resourceful institution at various forums, including courts, on each and every such RTI reply, which hides more and reveals less. Hon’ble Supreme Court should look at the overall attitude of UPSC on RTI in a holistic manner and should Join the Dots to Find the HOLE. Infact ,these replies under RTI process are used as dilatory tactics in effect, as there is another aspect too, which is the fact that these answer-sheets, which are the  basic  evidence as far as disputes about evaluation are concerned, can not remain forever with their custodian i.e. UPSC. Sooner or later UPSC will be legally entitled to destroy them according to the related law/rule and thus resulting in fait-accompli for those victims who got erratic marks and wanted to pursue the legal-course for demanding justice.

Not only that, on January 31,2012,it has changed its record retention schedule with respect to answer-sheets, which now, in normal case, enables it to destroy answersheets just 45 days after the display of marksheets on its website i.e. 45 days from May 17 i.e.July2,2012 for Civil Services Main Exam-2011 . Now, Both the logic and process of revision of this record retention schedule of answer sheets are also challenged before the court of law. Under the rules framed under Public Records Act,1993,National Archives of India(NAI)must approve/vet revision of retention schedule by UPSC. But as revealed by RTI response of NAI, UPSC has not even bothered to send draft of this revision to NAI and instead it has implemented its draft without following due process and mandatory approval. This revision too appears to have been made just to dilute the impact of Aditya Bandopadhyaya judgment. Moreover, now this illegal retention schedule, which according to UPSC’s reply was changed without any meeting, has already been used to weed out answersheets (According to UPSC RTI reply) irrespective of pending court-cases and it is nothing but travesty of justice and Supreme Court must intervene immediately.

Sir, UPSC is openly making a mockery of RTI and even Indian judicial system by its non-compliance of orders/judgments of CIC and even courts and instead extravagantly using the tax-payers’ money on its costly legal-cell, just to avoid any transparency and accountability in its functioning and it is doing so arrogantly and with impunity as only helpless and unorganized candidates are fighting against it. It further plays on the psyche of victims, frustrates and exhausts them even more by delaying judicial process with its costly legal cell bringing in novel antics. Justice delayed is also Justice denied, this maxim holds well here.

Number of similar cases (including PIL at Bombay HC)on answer-sheets, raw marks, scaled/moderated marks  issue, are pending in various courts of higher judiciary. So, sooner or later Supreme Court has to decide this matter. Sooner will be better not only for aggrieved candidates ,who wanted to exercise their legal right as upheld by Supreme Court for other exam-conducting bodies, but also for transparency,accountability and hence,credibility of a constitutional body like UPSC, particularly in these times when civil servants recruited by it do not command desired degree of credibility in public-perception.

So, in national interest, there is an unquestionable urgency to clear reasonable doubts around credibility and accountability of such an important apex recruitment agency, which selects the  civil servants and creates foundation of future Indian bureaucracy, and to uphold the cherished principles of transparency and accountability in UPSC’s functioning, without any more delay.

So,after looking at the larger picture,Hon’ble Supreme Court  should promptly scrutinize these cases, to either attest UPSC’s self-accorded special status or reject the same and should ask UPSC to propely comply with the RTI Act in right spirit. Supreme Court has done this in case of institutions like ICAI(Institute of Charted Accounts of India) and here too it must ask these reasonable questions to UPSC and ultimately settle the COLLECTIVE matters related with its functioning once for all.

Sir, I thank you for giving your precious time for reading this & I must say that after reading this, your conscience must have been touched and I hope that you, in your capacity as CJI,  will do the needful and exercise legal options available with you as It is quite clear that without Supreme Court’s intervention on the matter (SC case laws) ,lakhs of UPSC candidates would not be able to exercise their legal rights and injustice will continue unabated.

Note-There are documents available in public-domain which support everything, which has been mentioned in this write-up.

Yours Sincerely,  

(Name)

Address-

DELHI HIGH COURT HAS CLARIFIED THAT DECISION OF LPA 229/2011 of disclosing raw marks as well as moderated marks is applicable on CIVIL SERVICES MAINS ALSO. Thus, it is very clear that the matter of raw marks, moderation/scaling formula was decided by Hon'ble Supreme Court in UPSC vs Shiv Shambhu case itself.So,friends file fresh rti application asking UPSC raw and moderated marks as well as moderation formula in view of this judgment of Hon'ble Delhi High Court.

   IN THE HIGH COURT OF DELHI AT NEW DELHI
 
  W.P.(C) 4241/2012 and CM No.8811/2012 (for direction)
 
  MANOJ KUMAR SINGH and ORS ..... Petitioners
 
  Through: In-person.
 
 
 
 
versus
 
 
 
  UNION PUBLIC SERVICE COMMISSION ..... Respondent
 
  Through: Mr. Naresh Kaushik with Ms. Aditi Gupta and Ms. Amita Singh
  Kalkal, Advocates.
 
  CORAM:
 
   HON'BLE THE ACTING CHIEF JUSTICE
 
   HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
 
 
 
   O R D E R
 
   19.07.2012
 
 
 
  1. We have already in our judgment dated 13.7.2012 in LPA No.229/2011
  titled Union Public Service Commission v. Angesh Kumar, held that the
  candidate who appears in Indian Administrative Service Examination and
  wants to know his raw marks as well as final modulated/scaled marks is
  entitled to such disclosure under the Right to Information Act, 2005. To
  this extent, since there is already a judicial pronouncement, no further
  directions are required to be passed.
 
 
 
  2. The petitioners have filed this writ petition in public interest
  seeking general direction that the Union Public Service Commission should
  disclose the raw marks and moderated/scaled marks as well as answer
  scripts of all candidates.
 
 
 
  W.P.(C) No.4241/2012 Page 1 of 2
 
  3. There cannot be any general direction of this nature. Any
  individual, who appears in the Examination or who wants to have such an
  information, can always apply under the provisions of RTI Act and seek
  information.
 
 
 
  4. We are, therefore, not inclined to entertain such a writ petition.
  The same is accordingly dismissed.
 
 
 
 
 
  ACTING CHIEF JUSTICE
 
 
 
 
 
  RAJIV SAHAI ENDLAW, J
 
  JULY 19, 2012
 
  pmc
 
 
 
 
 
  W.P.(C) No.4241/2012 Page 2 of 2
 
 
 
 
 
  $ 6
 

COUNTER TO UPSC'S NEW GIMMICK OF DESTROYING ANSWERSHEETS OF CSM-2011

Legally UPSC can't destroy the answersheets of all candidates of CSM-2011 as PIL in this matter is pending in BOMBAY HIGH COURT AT BOMBAY, PIL/98/2012  and notice has been issued in this matter on 29/6/2012 by Hon'ble Bombay High Court, hence during pendancy of case they can not destroy answersheets of all candidates of CSM-2011 according CIVIL PROCEDURE CODE and even by their own Record retention schedule which says that during pendacy of case, they will not destroy answersheets.

Secondly, The New record retention schedule of UPSC which was changed on 31/1/2012 is illegal as it is in gross violation of Public Record Act.1993, which says that they have to follow Seven step procedure ,which includes ratification/approval  of new/revised retention schedule from National Archieves of India(NAI). But, UPSC as well as NAI in their RTI replies said that no such approval has been taken by UPSC. Thus , the new record retention schedule of UPSC is arbitrary , illegal and is in gross violation of Public Record Act,1993.

SO, FRIENDS EVEN IF UPSC REPLIES IN YOUR RTI REPLIES THAT YOUR ANSWERSHEETS HAS BEEN WEEDED OUT, DON'T GET WORRIED. CONTINUE YOUR RTI PROCESS  i.e. GO IN FIRST APPEAL AND EVEN APPEAL IN CENTRAL INFORMATION COMMISSION. AS DELHI HIGH COURT HAS DIRECTED UPSC TO KEEP ALL ANSWERSHEETS INTACT TILL FINAL DISPOSAL OF RTI APPLICATIONS .

SUPREME COURT IN ITS DECISION IN POONAM RANI vs STATE OF HARYANA has said that if the answersheets are destroyed in violation of rules, then examining body has to conduct re-examination.

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THE PUBLIC RECORDS ACT, 1993No.69 OF 1993(22nd December, 1993)
An Act to regulate the management, administration and preservation of public records of the Central Government, Union Territory Administrations, public sector undertakings, statutory bodies and corporations, commissions and committees constituted by the Central Government or a Union Territory Administration and matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Forty-fourth Year of the Republic of India as follows :-

1. (1)This Act may be called the Public Records Act, 1993.
   (2) It shall come into force, on such date as the Central Government may, by notification in the Official Gazette, appoint
2. In this Act, unless the context otherwise requires, -
   1. "Board" means the Archival Advisory Board constituted under sub-section (1) of section 13;
   2. "Director General" means the Director General of Archives appointed by the Central Government and includes any officer authorized by that Government to perform the duties of the Director General
   3. "Head of the Archives" means a person holding the charge of the Archives of the Union Territory Administration;
   4. "prescribed" means prescribed by rules made under this Act;
   5. "public records" includes -
      1. any document, manuscript and file;
      2. any microfilm, microfiche and facsimile copy of a document;
      3. any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
      4. any other material produced by a computer or by any other device,of any records creating agency;
   6. "records creating agency" includes, -
      1. in relation to the Central Government, any ministry, department or office of that Government;
      2. in relation to any statutory body or corporation wholly or substantially controlled or financed by the Central Government or commission or any committee constituted by that Government, the offices of the said body, corporation, commission or committee;
      3. in relation to a Union Territory Administration, any department or office of that Administration;
      4. in relation to any statutory body or corporation wholly or, substantially controlled or financed by Union territory Administration or commission or any committee constituted by that Government, the offices of the said body, corporation, commission or committee;
   7. "records officer" means the officer nominated by the records creating agency under sub-section (1) of section 5.
3. (1) The Central Government shall have the power to coordinate, regulate and supervise the operations connected with the administration, management, preservation, selection, disposal and retirement of public records under this Act.
   (2) The Central Government in relation to the public records of the records, creating agencies specified in sub-clauses (i) and (ii) of clause (f) of section 2 and the Union territory Administration in relation to the public records of the records creating agencies specified in sub-clauses (iii) and (iv) of the said clause, may, by order, authorize the Director General on the head of the Archives, as the case may be, subject to such conditions as may be specified in the order, to carry out all or any of the following function, namely :-
   
   1. supervision, management and control of the Archives.
   2. acceptance for deposit of public records of permanent, nature after such period as may be prescribed;
   3. custody, use and withdrawal of public records;
   4. arrangement, preservation and exhibition of public records;
   5. preparation of inventories, indices, catalogues and other reference media of public records;
   6. analyzing, developing, promoting and coordinating the standards, procedures and the techniques for improvement of the records management system
   7. ensuring the maintenance, arrangement and security of public records in the Archives and in the offices of the records creating agency;
   8. promoting utilization of available space and maintenance of equipments for preserving public records;
   9. tendering advice to records creating agencies on the compilation, classification and disposal of records and application of standards, procedures and techniques of records management;
   10. survey and inspection of public records;
   11. organizing training programmes in various disciplines of Archives administration and records management;
   12. accepting records from any private source;
   13. regulating access to public records;
   14. receiving records from delunet bodies and making arrangement for securing public records in the event of national emergency;
   15. receiving reports on records management and disposal practices from the records officer;
   16. providing authenticated copies of, or extracts from, public records;
   17. destroying or disposal of public records;
   18. obtaining on lease or purchasing or accepting as gift any document of historical or national importance.
4. No person shall take or cause to be taken out of India any public records without the prior approval of the Central Government;
   Provided that no such prior approval shall be required if any public records are taken or sent out of India for any official purpose.
5. (1) Every records creating agency shall nominate one of its officers as records officer to discharge the functions under this Act.
   (2) Every records creating agency may set up such number of record rooms in such places as it deems fit and shall place each record room under the charge of a records officer.
6. (1) The records officer shall be responsible for -
   1. proper arrangement, maintenance and preservation of public records under his charge;
   2. periodical review of all public records and weeding out public records of euphomeral value;
   3. appraisal of public records which are more than twenty-five years old in consultation with the National Archives of India or, as the case may be, the Archives of the Union territory with a view to retaining public records of permanent value;
   4. destruction of public records in such manner and subject to such conditions as may be prescribed under sub-section (1) of section 8;
   5. compilation of a schedule of retention for public records in consultation with the National Archives of India or, as the case may be, the Archives of the Union Territory;
   6. periodical review for downgrading of classified public records in such manner as may be prescribed;
   7. adoption of such standards, procedures and techniques as may be recommended from time to time by the National Archives of India for improvement of record management system and maintenance of security of public records;
   8. compilation of annual indices of public records;
   9. compilation of organizational history and annual supplement thereto;
   10. assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management;
   11. submission of annual report to the Director General or, as the case may be head of the Archives in such manner as may be prescribed;
   12. transferring of records of any defunct body to the National Archives of India or the Archives of the Union Territory, as the case may be, for preservation.
   (2) The records officer shall act under the direction of the Director General or, as the case may be, head of the Archives while discharging the responsibilities specified in sub-section (1).
7. (1) The records officer shall, in the event of any unauthorized removal, destruction, defacement or alteration of any public records under his charge, forthwith take appropriate action for the recovery or restoration of such public records.
   (2) The records officer shall submit a report in writing to the Director General or as the case may be the head of the Archives without any delay on any information about any unauthorized removal, destruction, defacement or alteration of any public records under his charge and about the action initiated by him and shall take action as he may deem necessary subject to the directions, if any given by the Director General or, as the case may be, head of the Archives.
   (3) The records officer may seek assistance from any government officer or any other person for the purpose of recovery or restoration of public records and such officer or person shall render all assistance to the records officer.
8. (1) Save as otherwise provided in any law for the time being in force, no public record shall be destroyed or otherwise disposed of excepts in such manner and subject to such conditions as may be prescribed.
   (2) No record created before the year 1892 shall be destroyed except where in the opinion of the Director General or, as the case may be, the head of the Archives, it is so defaced or is in such condition that it cannot be put to any archival use.
9. Whoever contravenes any of the provisions of section 4 or section 8 shall be punishable with imprisonment for a term which may extend to five years or with fine which may extend to ten thousand rupees or with both.
10. No public records bearing security classification shall be transferred to the National Archives of India or the Archives of the Union Territory.
11. (1) The National Archives of India or the Archives of the Union Territory may accept any record of historical or national importance from any private source by way of gift, purchase or otherwise.
    (2) The National Archives of India or, as the case may be, the Archives of any Union Territory may, in such manner and subject to such conditions as may be prescribed, make any record referred to in sub-section (1) available to any bona fide research scholar.
12. (1) All unclassified public records as are more than thirty years old and are transferred to the National Archives of India or the Archives of the Union Territory may be, subject to such exceptions and restrictions as may be prescribed made available to any bona fide research scholar.
    
    Explanation :- For the purposes of this sub-section, the period of thirty years shall be reckoned from the year of the opening of the public record.
    
    (2) Any records creating agency may grant to any person access to any public record in its custody in such manner and subject to such conditions as may be prescribed.
13. (1) The Central Government may, by notification in the Official Gazette, constitute an Archival Advisory Board for the purposes of this Act.
    (2) The Board shall consist of the following members, namely :-
    1. Secretary to the Government of India in the Ministry of Central Government dealing with Culture
    2. One officer not below the rank of Joint Secretary to the Government of India, each from the Cabinet Secretariat, Ministry of Home Affairs,Ministry of Defence, Ministry of External Affairs, Ministry of Finance and Ministry of Personnel, Public Grievances and Pension.
    3. Two representatives not below the rank of Joint Secretary in the Union Territory Administrations to be nominated by the Central Government.
    4. Three persons to be nominated by the Central Government for a period not exceeding three years, one being an Archivist and two being Professors in the Post-graduate Department of History in any recognized University.
    5. Director General of Archives.
    6. The members nominated under clause (d) of sub-section (2) shall be paid such allowances as may be prescribed.
14. The Board shall perform the following functions, namely :-
    1. advise the Central Government and Union Territory Administrations on matters concerning the administration, management, conservation and use of public records;
    2. lay down guidelines for training of Archivists;
    3. give directions for acquisition of records from private custody;
    4. deal with such other matters as may be prescribed.
15. The Director General shall have the power to lay down norms and standards for courses curricula, assessment and examinations relating to the training in archival science and other ancillary subjects.
16. No suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made thereunder.
17. (1) The Central Government may, by notification in the Official Gazette, makes rules to carry out the provisions of this Act.
    (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters,
    1. the period after which public records of permanent nature may be accepted under clause (b) of sub-section (2) of section 3;
    2. the manner in which and the conditions subject to which public records can be destroyed under clause (d) of sub-section (1) of section 6;
    3. the manner in which periodical review of classified public records for downgrading shall be undertaken under clause (F) of sub-section (1) of section 6;
    4. the manner in which the records officer will report to the Director General or the head of the Archives under clause (k) of sub section (l) of section 6;
    5. the manner in which and the conditions subject to which public records may be destroyed or disposed of under sub-section (l) of section 8;
    6. the manner in which and the conditions subject to which records of historical or national importance may be made available to research scholar under sub-section (2) of section 11;
    7. exceptions and restrictions subject to which public records may be made available to a research scholar under sub-section (1) of section 12;
    8. the manner in which and the conditions subject to which any records creating agency may grant to any person access to public records in its custody sub-section (2) of section 12;
    9. the allowances payable to members of the Board under sub-section (3) of section 13;
    10. the matters with respect to which the Board may perform its functions under clause (d) of section 14;
    11. any other matter which is required to be, or may be, prescribed.
18. Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

K.L.MOHANPURIA,
Secy. to the Govt.of India.


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 Records Retention Schedule for Records pertaining to Substantive Functions:

    Records pertaining to Substantive Functions of a Records Creating Agency (RCA) include records pertaining to the functions which are peculiar (specific) to that particular agency. Therefore, the Retention Schedule for records pertaining to Substantive Functions of each RCA would be according to the records created by it.

    The Public Records Act, 1993 (69 of 1993) Clause (e) of Subsection (1) of Section 6 and the Central Secretariat Manual of Office Procedure (Para 111 (1) (d)) stipulate that every RCA would compile a Retention Schedule for Records pertaining to its Substantive Functions which has to be vetted by the National Archives of India (NAI) before its implementation.

Steps to be taken by the RCA in the preparation of Retention Schedule for Records pertaining to Substantive Functions

1. Study of the Structure and Functions of the Organisation:
This would include the study of the hierarchical position of the organisation its organisational set up aims and objectives its duties and functions etc

2. Study of the Work Distribution amongst various Divisions/ Branches/ Sections/ Units/ Cells etc:
This exercise would help in short-listing the Divisions/ Branches/ Sections/ Units/ Cells etc that are assigned the work related to substantive functions of that organisation.

3. Study of the Current and Semi-Current Record-Series/ Record-Groups:
This exercise aims at the identification of record-series/record-groups pertaining to Substantive Function produced by a RCA. It would include a physical examination of file registers, filing manuals, and the current and semi-current files with a view to ascertain different subject-heads and their sub-heads under which record are being created in that RCA.

4. Listing of the subject-heads (including sub-heads) and Record-Groups:
This exercise involves listing of various subject-heads including their sub-head and records-group under which record are being created by a division/ branch/ section/ unit/ cell etc. This listing should preferably be done under the name of division/ branch/ section/ unit/ cell etc.

5. Prescribing of the Retention Periods: 
After listing the subject-heads and their sub-heads/ records-groups, their retention periods are prescribed in accordance with their reference value and the importance of the subject. The retention period is the period a particular agency is required to keep the records before their final disposition.

For the purpose of prescribing the retention periods, the records are classified into three categories viz. 'A', 'B' and 'C'. An illustrative list of records fit to be categorised as 'A', 'B' and 'C' categories is given inAnnexure - I.

'A' Category: Records under this category are meant for permanent preservation and are to be microfilmed because they contain:
i. a document so precious that its original must be preserved intact and access to it in the original form must be restricted to the barest minimum; or
ii. material likely to be required for frequent reference by different parties.
'B' Category: Records under this category are also meant for permanent preservation but they are not to be microfilmed.
 'C' Category: records under this category are meant to be maintained for a limited period, not exceeding 10 years.
 N.B. While prescribing the retention period for 'C' Category files, slabs of C-1, C-3, C-5 and C-10 may be followed, where the numerals represent the number of years that a file is to be retained after being closed or recorded.
 6. Preparation of the draft Records Retention Schedule: 
Thus, a draft Records Retention Schedule can be drawn up. A proforma for the draft Records Retention Schedule is enclosed at Annexure II.

While compiling the draft Records Retention Schedule, the subject-heads as well as the retention periods of the similar record-series under different divisions/ branches/ sections/ units/ cells etc. may be checked with a view to ensuring standardisation of nomenclature and the periods of retention.

7. Forwarding the draft Records Retention Schedule to National Archives of India for Vetting: 
The draft Records Retention Schedule thus compiled by the RCA Should then be forwarded to the National Archives of India for its vetting before its implementation by the RCA.

Vetting of the Records Retention Schedule by the National Archives of India

After the draft Records Retention Schedule is received from the RCA, the National Archives of India would:

• depute its officer(s) for conducting on-the-spot study of the records pertaining to Substantive Functions of the RCA,
• while vetting the draft Records Retention Schedule the officer(s) would study the organisational history, consult the File Registers, current and semi-current files and discuss the matter with concerned Sectional/ Divisional heads to finalise the retention periods, and
• forward the vetted Records Retention Schedule to the concerned RCA for its implementation along with the Study Report.

Revision of the Records Retention Schedule Pertaining to Substantive Functions
The Central Secretariat Manual of Office Procedure(Para 111 (2)) stipulates that the Records Retention Schedule pertaining to Substantive Functions should be reviewed at least once in five years. The revision is aimed at the inclusion of the expanding activities of the RCA as well as re-allocation of subjects and other organisational changes that might take place from time to time.

While revising the Records Retention Schedule, steps 1 to 7 stipulated above are followed.

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RTI reply of NATIONAL ARCHIEVES OF INDIA:-

To,                                                                                                   I.D No………….….

                                                                                                                Date:9/7/2012

The Chief Public Information Officer/ Director General of Archives,

National Archives of India, Janpath,

New Delhi 110001

             Subject: - Application under RTI Act,2005 for seeking information about record retention creation/revision by UPSC and NAI’s role in the same.

             A. Name of Applicant-

B. Address: -

C. Sir/Madam I am in urgent need of information under clause7(1)of RTI act concerning life and liberty because of the circumstances arising out of UPSC’s revision of its record retention schedule and consequent implementation,without seeking advice/comment/vetting of NAI as clear from your earlier RTI reply dated June22,2012.UPSC has once again revised its record retention schedule which came into force on January 31,2012(copy attached along with that of old record retention schedule and UPSC’s retention schedule revision history) and on the basis of this NEW record retention schedule they can destroy answersheets of candidates of Civil Services Exam 2011 cycle after July1,2012 i.e.45 days from date of display of marksheet on UPSC website,thus preventing a candidate from obtaining the same under RTI as allowed under Aditya Bandopadhyay judgement of SC in August 2011.This new retention schedule has been challenged before the court and is likely to be quashed.But as you know that court proceedings takes some time and if UPSC,on the basis of this new retention schedule, will destroy answersheets of candidates of UPSC CSE 2011 exam cycle before this new,illogical and arbitrarily set retention schedule is quashed by court then it will be fait accompli and travesty of Justice.For a student ,critcal question of career/livelihood is intricately linked with his right to Life . Missed [ or rather denied ] opportunities like this deny right to equality too[ to compete with others ].Thus please appreciate the unquestionable urgency of the matter and help in seeking the justice by providing information regarding record retention creation/revision by UPSC and NAI’s role in the same.Thus,I request you to answer the following queries in a point by point manner-         

(1)-Sir/Madam,is it necessary for UPSC to seek advice/comment/vetting of NAI before implementing its created or revised record retention schedule for answersheets? If yes,then please cite the clear and detailed rules under which it is mandated to do so and process it is supposed to follow?

(2)-As you can see the UPSC’s record retention schedule revision-history from attached RTI reply document of UPSC.Then in this context,Please tell,with necessary details, in an order-wise manner, whether UPSC has implemented all these revisions(mentioned date-wise in that document) with or without seeking advice/comment/vetting of NAI or not?

(3)-(i)Also tell,if any such changes/revision is introduced by UPSC without following the due-process including seeking advice/comment/vetting of NAI under step7 before implementation of the same,then what is the legal sanctity of such retention schedule and/or its revision?

(ii)Is there any rule/mechanism in NAI or under any other guidelines framed under Public Records Act,to deal with such situation and to initiate disciplinary proceedings against UPSC’s RCA,suo motu by NAI or after receiving a complaint,including penal action against such non-compliance?If yes,please give the details of the same.

(iii)Also,is NAI thinking about issuing a show-cause notice to UPSC or something else on these lines in this respect,as now this matter has been brought into NAI’s knowledge?

(4) Please give the photocopies of UPSC’s forwarded documents,study report conducted by NAI and other documents related with UPSC’s last record retention schedule creation and/or revision and consequent implementation,which was done according to rules in consultation with NAI i.e.details of the last case when UPSC sought advice/comment/vetting of NAI according to step 7,before implementing its created/revised record retention schedule with respect to answersheets.

(5) As retention of Answer books of departmental examinations/tests,as available in the following document http://darpg.nic.in/darpgwebsite_cms/Document/file/RRS_WC.pdf ,sl.no.-6, RECORDS OTHER THAN FILES (page nu-22,27in PDF finding) is C-1 from the date of declaration of results .Please explain it?

(6) As clear from the preface of same document i.e.http://darpg.nic.in/darpgwebsite_cms/Document/file/RRS_WC.pdf ,

There should be uniformity in the retention schedule of records of common nature.

PREFACE

The Department of Administrative Reforms and Public Grievances in the Ministry of Personnel, Public Grievances and Pensions, is entrusted with the responsibility of preparing Record Retention Schedule common to all Ministries and Departments, so that there is uniformity in the retention schedule of records of common nature in the area of policy, establishment and house keeping created by the different Ministries/Departments of Central Government.

So,

(i)             Has NAI ever taken this into consideration while vetting UPSC’s record retention schedule regarding answersheets? Has NAI ever adviced UPSC that for the purpose of uniformity in record retention schedule of records of common nature like answerbooks,record creating agency of UPSC  should take this logic and period into account?If yes,please give details.If no,then please tell why this point was overlooked.Please give the reasons/file notings of the NAI’s actions in this regard.

(ii)            Does NAI,in its superior wisdom, agree with the logic and period of retention mentioned in case of answerbooks of departmental examinations/tests and is of belief,in principle,that for the purpose of uniformity in record retention schedule of records of common nature like answerbooks,same should be considered in case of UPSC answerbooks?

(7)- Has NAI ever vetted UPSC’s answerbooks retention schedule and its revision/s, with regard to pending and disposed court cases and other legal proceedings and what has been NAI’s view on the same?Please provide the details of the same.

(8)-Is there any guidelines /model record retention schedule {including its logic(reference date) and period} of Govt.of india as applicable to UPSC, with respect to answerbooks retention, in normal case and in case of pending and disposed court cases & any other legal proceedings.Please direct this query to appropriate authority incase you cant provide this info.

(9)- If any of the above information cannot be provided, wholly or partially, then please cite the detailed and clear reasons and detailed rules which enable your office to do so.

Postal Order no ………….. Dated ………….. For Rs 10/- favouring you towards payment of fee is enclosed herewith. I am ready to deposit the balance fee, if any, with the authorised person.

I don’t belong to BPL category.

Place:-

 Date: …

Sd-

 Signature of the Applicant

 (   Ashish  Gupta  )

My address for Correspondence:-

Ashish Gupta,

B-33, Galli no:5,

Mandawali, Unchepar,

Delhi-92.

The reply of above rti by NAI which clarifies that UPSC is bound to take approval of NAI for revising retention schedule, which UPSC has not taken. so, the revised retention schedule of UPSC is illegal.:-

RTI reply of UPSC:-

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Hon'ble Delhi High Court order saying that keep answersheets (documents) intact till final disposal upto apex stage of RTI application:-

IN THE HIGH COURT OF DELHI AT NEW DELHIW.P.(C) 3593/2012



MANISH PARASHAR ..... Petitioner

Through: Mr. Sudhir Vats, Advocate.


versus



UNION PUBLIC SERVICE COMMISSION AND ANR ..... Respondents

Through: Mr. Naresh Kaushik, Advocate for the respondent No. 1/UPSC.

Mr. Himanshu Bajaj, CGSC for the respondent No. 2.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI



O R D E R

01.06.2012



Issue notice. Learned counsel for the respondents No. 1 and 2 accept
notice.

Counter-affidavit be filed within six weeks. Rejoinder thereto, if
any, be filed before the next date.

Until further orders, the respondent No. 1 shall maintain the
documents sought by the petitioner under the Right to Information Act.
In all other cases where information is sought from the respondent under
the RTI Act, the information/document sought should be preserved till the
final conclusion of the proceedings in respect thereof.

Adjourned to 06.07.2012.



VIPIN SANGHI, J



JUNE 01, 2012

?BSR?

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POONAM RANI vs STATE OF HARYANA judgment of Hon'ble Apex Court saying that if the answersheets have been destroyed contrary to rules, then re-conduct examination:-

 IN THE SUPREME COURT OF INDIA

                          CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL NO. 4128       OF 2012
                 (Arising out of SLP(C) No. 31804 of 2010).


      Poonam Rani @ Poonam                               … Appellant
                                   Versus
      State of Haryana and another                                     …
Respondents

                               J U D G M E N T
G.S. SINGHVI,  J.

1.    Leave granted.

2.    Whether the  Haryana  Staff  Selection  Commission  (for  short,  ‘the
Commission’)  could  destroy  the  answer  sheets/papers  of   the   written
examination in violation of the policy decision taken vide resolution  dated
1.10.1994 and whether the High Court committed an error  by  dismissing  the
writ petition filed by the appellant questioning the selection made  by  the
Commission for recruitment of Lecturers in Hindi (Education Department)  are
the questions which arise for consideration in  this  appeal  filed  against
judgment dated 29.6.2010 of the Division Bench of  the  Punjab  and  Haryana
High Court.

3.     In  response  to  an  advertisement  issued  by  the  Commission   on
20.7.2006, the Appellant, who belongs to Scheduled Caste  (SC)  applied  for
the  post  of  Lecturer  in  Hindi.  At  that  time,  she  was  having   the
qualifications of M.A. (Hindi), M.Phil. (Hindi)  and  Ph.D.  in  Hindi.  She
appeared in written examination conducted  by  the  Commission,  the  result
whereof was declared on 21.6.2008. She  was  interviewed  along  with  other
candidates who had cleared  the  written  examination.  The  result  of  the
selection was notified on 14.10.2008. The appellant’s name  did  not  figure
in the list of the successful candidates.

4.    Immediately after declaration of the result  of  written  examination,
the appellant  submitted  an  application  to  the  Commission  through  her
advocate under the Right to Information Act, 2005  (for  short,  ‘the  Act’)
for supply of the details of the marks  secured  by  the  female  candidates
belonging to Scheduled Caste, who had  qualified  the  written  examination.
She repeated this request vide letter dated 28.7.2008. After three days  the
State Public Information Officer sent communication dated 31.7.2008  to  the
appellant’s advocate informing her that the marks of the  candidates  cannot
be disclosed because final result of the selection was yet to  be  declared.
The appellant filed an appeal before the Information Commissioner,  Haryana,
who advised her to file an appeal before the  1st  Appellate  Authority-cum-
Secretary of the Commission.   Thereupon,  the  appellant  filed  an  appeal
through her advocate, but the same was not decided. She then filed  CWP  No.
18946 of 2008 in the Punjab and Haryana High Court, which  was  disposed  of
by the learned Single Judge on 5.11.2008 and a direction was  given  to  the
Secretary of the Commission to decide the writ petition by  treating  it  to
be a representation and pass a speaking order. Thereafter, the Secretary  of
the Commission passed order dated 5.12.2008  and  rejected  the  appellant’s
representation on the ground that she had secured 117 marks out  of  225  as
against 119 marks secured by the last selected candidate of Scheduled  Caste
female category.

5.    The appellant challenged the rejection of representation  in  CWP  No.
136 of 2009 and prayed that the selection made  by  the  Commission  may  be
quashed and a direction be issued to  the  respondents  to  appoint  her  as
Lecturer in Hindi against one of the  posts  reserved  for  Scheduled  Caste
(Female).  The  learned  Single  Judge  took  cognizance  of  the  statement
contained in the additional affidavit dated 18/23.9.2009 filed on behalf  of
the Commission that answer  sheets  of  the  written  examination  had  been
destroyed and observed that no mandamus can be issued  for  the  appellant’s
appointment because the marks of the written examination  are  available  in
the result sheet and she had not secured marks sufficient for her  inclusion
in  the  select  list  and  no  malafides  had  been  alleged  against   the
functionaries of the Commission.  The  Division  Bench  of  the  High  Court
dismissed the Letters Patent Appeal by reiterating the reasons  assigned  by
the learned Single Judge.

6.    Before this Court, Shri P.D. Verma, Secretary,  the  Commission  filed
affidavit dated 20.1.2011,  the  relevant  portion  of  which  is  extracted
below:

                       “REPLY ON MERITS”

      “2. That no question of law is involved in the present  writ  petition
      which  requires  adjudication  by  this  Hon’ble  Apex  Court.  It  is
      respectfully  submitted  that  the  Respondent-Commission  vide  Advt.
      No.6/2006, Cat. No. 6 advertised 251 posts, out of which 17 posts were
      meant for SC (Female) category and  after  holding  written  test  and
      interview  as  per  published  criteria,   the   Respondent-Commission
      finalized  the  selection  and  declared  the  result  on   14.10.2008
      (Annexure P-11). The petitioner belongs to SC  (Female)  category  and
      she obtained 117 marks  (written  test=94  and  23  in  interview)  as
      against  119  marks  of  last  selected  candidate  in  her  category.
      Therefore, due to lesser marks the petitioner could not make grade  in
      the main selection list. Furthermore, the petitioner has  appeared  in
      the interview and as per well settled law of the Hon’ble Supreme Court
      reported as 2002 (3) RSJ 507 SC Chander Parkash Tiwari Vs.  Shakuntala
      Shukla, and this Hon’ble Court reported as  Devki  Nandan  Sharma  Vs.
      State of Haryana & ors., 2002(I) RSJ 64, if a candidate appears at the
      interview and participate therein then only because the result of  the
      interview  is  not  palatable  to  him,  he  cannot  turn  round   and
      subsequently contend that the process of interview was unfair or there
      was some lacuna in the process. It is further submitted  that  in  CWP
      No. 136 of 2009 the petitioner had  prayed  before  the  Hon’ble  High
      Court to show his answer sheet for the written  examination  held  for
      the said post. It is respectfully submitted that in reply to Para  No.
      3 of the writ petition the deponent has already stated that the result
      of the written examination was declared  on  20.6.2008  and  that  the
      answer  sheet  pertaining  to  said  examination  was   destroyed   on
      25.10.2008 and at that time  no  writ  petition  on  the  subject  was
      pending in the Hon’ble High Court. It is  further  submitted  that  in
      view of the judgments of the Hon’ble Supreme  Court  in  the  case  of
      Maharashtra State Board of Secondary and Higher Education Vs. Paritosh
      Bhupeshkumar Sheth & anr. (AIR 1984 SC 1543) and President,  Board  of
      Secondary Education, Orissa Vs. D.Suvankar (Civil Appeal No.  4926  of
      2006-Judgment dated 14.11.2006), the disclosures of  evaluated  answer
      sheets cannot be made to the petitioner. However, it is submitted that
      the marks of the written examination of the candidates  including  the
      petitioner are kept in the result sheet. Furthermore, while  declaring
      the result of the written examination the unsuccessful candidates  are
      given the liberty to apply within one month for knowing their marks in
      the written examination and thereafter within one month the Commission
      conveys the marks to such candidates. Therefore, the petitioner has no
      legal right to have access to the answer sheet as per well settled law
      of the Hon’ble Apex Court. It is  further  submitted  that  the  final
      result for the post of Lecturer Hindi was declared  on  13.10.2008  by
      the Respondent-Commission and rest of  the  selection  record  (except
      answer sheets) such as Member sheet, Advisor Sheet,  attendance  sheet
      and application forms were destroyed by the Commission on 30.5.2009 in
      view of judgment of the Hon’ble Apex Court in Prit Pal case  AIR  1995
      SC 414 and Commission resolution dated 27.7.1992 read with  resolution
      dated 1.10.1994. The Hon’ble High Court in the  impugned  order  dated
      29.6.2010 in LPA No. 1390 of 2010 has rightly  held  that  before  the
      learned  Single  Judge  it  was  successfully  demonstrated   by   the
      Respondent-Commission that there was no  malafide  in  destroying  the
      answer sheets and the same  has  been  done  as  per  rules/resolution
      passed by the Commission and also in terms of judgments of the Hon’ble
      Supreme Court. Therefore, in the  present  SLP,  no  cause  of  action
      subsists to the petitioner.”




7.    During the pendency of the  special  leave  petition,  an  application
dated  14.3.2012 was filed on  behalf  of  the  Commission  for  placing  on
record additional facts and xerox copy of OMR Sheet  marked  Annexure  R-A/1
to show that the appellant had secured 94 marks in the written  examination.
Paragraph 12 of the application, which is supported by an affidavit of  Shri
P.D. Verma, reads as under:

      “12. That at the cost of repetition, it is  humbly  stated  here  that
      there was no mala-fide on part of the respondents  in  destroying  the
      answer sheets etc. of the written  test.  As  per  Resolution  of  the
      Commission dated 27.7.1992 the answer sheets  record  (except  written
      examination, result, award list, key book) will be destroyed after six
      months of the declaration of  the  written  test  result  and  as  per
      Resolution dated 1.10.1994 the answer paper i.e. Answer sheets (except
      written examination, result, award list, key book) will  be  destroyed
      after 3  months  from  the  date  of  declaration  of  the  result  of
      selection. It appears and rightly so that  there  was  some  bona-fide
      mistake on part of the concerned officer/staff of  the  respondent  in
      interpreting  the  Resolutions  of  the  Commission  with  respect  to
      destroying the records of the written test and result etc., especially
      after the amendment of 1.10.1994.”

                                        (Underlining is ours)

8.    The arguments in the case were heard on 13.4.2012 and the  matter  was
adjourned with a direction that on the next date of hearing,  the  Secretary
of the Commission shall appear along with the relevant records and the  file
containing the  resolutions  passed  by  the  Commission  on  the  issue  of
destruction of the  records  of  the  examinations.  On  the  next  date  of
hearing, i.e., 20.4.2012, Shri  P.D.  Verma,  Secretary  of  the  Commission
appeared and produced the file in which  various  decisions  were  taken  to
destroy the records of  different  examinations  including  the  examination
held in 2008 for recruitment of Lecturers in Hindi.

9.     Shri V. K. Jhanji, learned senior counsel for  the  appellant  argued
that the decision taken by the Commission to destroy the  answer  sheets  of
the written examination is ex-facie contrary to Resolutions dated  27.7.1992
and 1.10.1994 and, this by itself, is sufficient to draw an  inference  that
the concerned functionaries  of  the  Commission  had  acted  with  ulterior
motive to  deprive  meritorious  candidates  like  the  appellant  of  their
legitimate right to be  appointed  against  the  advertised  posts.  Learned
senior counsel pointed out that immediately after declaration of the  result
of written examination, the appellant had made a request for supply  of  the
details  of  the  marks  secured  by  the  female  candidates  belonging  to
Scheduled Caste category but the Commission  stubbornly  refused  to  accept
her request and the relevant records  were  destroyed  within  few  days  of
declaration of the result of selection which comprised of written  test  and
interview. Shri Jhanji  emphasised  that  the  exercise  undertaken  by  the
functionaries  of  the  Commission  to  destroy  the  relevant  records  was
intended to frustrate any possibility of judicial  scrutiny  of  the  answer
scripts.  Learned senior counsel submitted that if the  answer  scripts  has
been preserved, the appellant could have demonstrated that the same had  not
been properly evaluated or that the marks had not been  properly  calculated
or transposed in the result sheet but she was deprived of  this  opportunity
on account of wholly arbitrary and illegal action taken by  the  officers  /
officials of the Commission to destroy the answer sheets / papers.   Learned
senior counsel relied upon the judgment of this Court in  Pritpal  Singh  v.
State of Haryana (1994) 5 SCC 695 and argued that the High  Court  committed
grave error by refusing to entertain the appellant’s prayer for issue  of  a
mandamus to appoint her only on the ground that  the  relevant  records  had
been destroyed by the Commission.

10.   Shri Kamal Mohan Gupta, learned counsel for the  Commission  supported
the impugned order and argued that in  the  absence  of  any  allegation  of
malice in fact, the Court cannot make a detailed probe into  the  assessment
of the answer scripts or calculation of marks and  issue  mandamus  for  the
appellant’s appointment.

 11.  We have considered the respective submissions and are  satisfied  that
the learned Single Judge and the Division Bench of the High Court  committed
serious error by non-suiting the appellant.  In Pritpal Singh  v.  State  of
Haryana (supra), this Court considered the question  whether  the  selection
made by the Commission which was  then  known  as  the  Haryana  Subordinate
Services Selection Board for the appointment of 40 Assistant  Sub-Inspectors
of Police was vitiated due to manipulations  and  fraud.   The  Court  noted
that in garb of implementing the resolution passed by the  Board  to  create
space, the answer   papers of the written examinations were  destroyed  even
before the result of the selection was declared and proceeded to observe:

      “The answer papers having been destroyed,  it  becomes  impossible  to
      ascertain what marks each candidate had  secured  from  the  examiners
      upon the answer papers themselves.  Ordinarily,  the  examiners  would
      have themselves tabulated the marks given by them against  the  serial
      numbers or names of  the  candidates  whose  answer  papers  they  had
      examined. No such tabulation has been produced  by  the  Board.  There
      were four written papers. The Board would, in any event, have  had  to
      tabulate the marks obtained by each candidate  in  each  of  the  four
      papers and aggregate the same for the purposes of  ascertaining  which
      of the candidates had obtained the qualifying marks or more.  No  such
      tabulation has been produced by the Board. The resolution of the Board
      authorising payment to the examiners shows that there were 13 of them.
      There were four written papers. In each subject, therefore, there were
      more than one examiner and the answer papers of  the  candidates  were
      distributed amongst them. Ordinarily, there would be a  moderation  of
      the marks given by two or more examiners in the same subject so as  to
      ensure that one had not been too strict  and  other  too  lenient.  No
      papers in this behalf have been produced by the Board.


      From the record produced by the  Board  it  appears  that  very  large
      sheets  of  paper  with  the  names  of  the  candidates   and   their
      qualifications, etc., typed thereon were placed before the members  of
      the Board who interviewed them. Upon these sheets of paper  there  are
      large blanks, in that no notation has been made with  regard  to  many
      candidates one after the other in  serial  order.  Such  notations  as
      there are in pencil and they do not always indicate how the candidates
      had fared. Along with these very large sheets  of  paper  there  is  a
      small strip of paper relating to the  only  candidate  who,  for  some
      reason, was interviewed on 3-9-1989. This strip  of  paper  shows  the
      final assessment of the  candidate  at  the  interview.  There  is  no
      corresponding tabulation produced in respect  of  the  candidates  who
      appeared on the earlier dates of interviews. In other words, there  is
      no tabulation of the final marks awarded to these  candidates  at  the
      interview.”



12.   The Court further held that the selection made by the  Board  was  not
objective and fair and deserves to be quashed.  While doing  so,  the  Court
gave the following direction:

      “The Board is directed to preserve the answer papers of the candidates
      and the tabulations of marks made by the examiners for at least  three
      months after the declaration of the  results  of  the  selection.  All
      records of the Board itself  pertaining  to  the  selection  shall  be
      maintained in files or registers chronologically and these shall  also
      be preserved for the aforesaid period.”



13.   In view of the direction contained  in  the  aforesaid  judgment,  the
Board passed Resolution dated 1.10.1994, the relevant portions of which  are
extracted below:

      “In view of the Hon'ble High Court order passed on 10-9-90  in  C.W.P.
       No. 7748 of 1990 Suresh Kumar Taneja v/s State of  Haryana  &  others
       the Board laid down the policy (vide the resolution dated  27-7-1992)
       to be adopted in future for destroying the old record.


      In view of the orders passed by the Hon'ble  Supreme  Court  of  India
       dated 27-7-1994 in SLP No.7798-807/92(Civil Appeal No.5027-36 of 1994
       Prit Pal Singh & other v/s State of Haryana) the  Board  resolves  to
       modify part (ii) of the resolution dated 27-7-1992 to the extent that
       the answer papers i.e., Answer  Sheets(  except  Written  Examination
       result, Award List, Key Book) will be destroyed  after  three  months
       from the date of declaration of the result of the selection”



14.   At this stage, it will be useful to notice the contents  of  statement
dated 12.1.2007 filed by the Ist Appellate  Authority-cum-Secretary  of  the
Commission before the Chief  Information  Commissioner,  Haryana  in  Appeal
Nos.1118 & 1119/2006 titled Satish  Kumar  v.  Secretary/Public  Information
Officer, Haryana Staff Commission, Panchkula. The same reads as under:
      “That the present appeal came up for hearing before Hon'ble Commission
      on 10-1-2007 and Hon'ble Commission directed  the  Secretary,  Haryana
      Staff Selection Commission to apprise the commission  with  regard  to
      destruction of the record relating to  examination  conducted  by  the
      Haryana Staff Selection Commission.

      In this connection it is respectfully submitted that in view of the
      order passed by the Hon'ble Supreme Court of India dated 27-7-
      1994 in S.LP No 7798-807/92 (Civil Appeal No.5027-36 of  94  Prit  Pal
      Singh & others  Vs  State  of  Haryana  and  in  accordance  with  the
      resolution dated 27-2-1992 read with resolution  dated  1-10-1994  the
      answer papers i.e., Answer sheet (Except written  examination  Result,
      Award Lists, Key Book) are destroyed after three months from the  date
      of declaration of the result of  selection  (copy  of  the  resolution
      dated 1-10-1994  is  enclosed)  .  This  practice  is  being  followed
      regularly and uniformly, it is however  submitted  that  in  case  the
      court  case  is  pending  relating  to  the  particular   examination,
      challenging the validity of the examination, in that event the  Answer
      sheets are kept preserved by the commission till the final decision of
      the writ petition.   Further  more  there  is  no  provision  for  re-
      evaluation of OMR sheet in the examination conducted  by  the  Haryana
      staff selection Commission.

      Pursuant to the above resolution of the commission and in view of  the
      fact that no court  case  challenging  the  validity  of  the  present
      examinations were pending,  the  Haryana  Staff  Selection  Commission
      decided to destroy the OMR sheets of the present and other examination
      after three months  from  the  date  of  declaration  of  results  and
      accordingly same were destroyed on 30-10-2006.”

15.   The record produced by learned counsel for the Commission  shows  that
on 17.10.2008 (the figure 10 has been interpolated) a note was submitted  by
the staff for destruction of the records of the  written  examinations  held
for various Group ‘B’ and Group ‘C’ posts including the post of Lecturer  in
Hindi (Education Department). The Secretary and other functionaries  of  the
Commission accorded their approval on 24.10.2008. The prefatory  portion  of
noting dated 17.10.2008 is extracted below:

      “Subject: - Destruction of Record pertaining to various categories  of
      Group “B” and Group “C” posts.

                                    ----

           It is submitted that record of various categories  of  posts  of
      Group “B” and Group “C” where the result of  Written  Examination  has
      been declared more than three months ago and some other categories  of
      Group “B” and Group “C” where only interviews were conducted  and  the
      result of such categories has been declared more than six months  ago,
      has occupied a large space in  record  rooms  of  Confidential  Branch
      which is required to be destroyed so as  to  make  space  for  keeping
      record pertaining to other categories of posts  where  interviews  are
      being conducted by the Commission. The detail of such record which  is
      to be destroyed is given as under:”



However, the member sheet/advisor  sheet/attendance  sheet  and  application
forms of the examination  held  in  2008  were  destroyed  pursuant  to  the
decision taken sometime in February, 2010.

16.   The affidavit filed by the Secretary of  the  Commission  before  this
Court clearly shows that within few days of declaration  of  the  result  of
the selection, the officers of the Commission destroyed  the  answer  sheets
of the written examination held in June, 2008.  This  was  done  in  blatant
violation of Resolution dated  1.10.1994,  in  terms  of  which  the  answer
sheets could be destroyed after three months from the  date  of  declaration
of the result of the selection. The statement contained in paragraph  12  of
application dated 14.3.2012 filed on behalf of the Commission is  reflective
of the casualness with which the officers of  the  Commission  have  treated
the issue of destruction of the most  important  record,  i.e.,  the  answer
sheets  of  the  candidates  which  constituted  foundation  of  the   final
selection.  The explanation given by the Secretary for  not  preserving  the
answer sheets for three months is frivolous and wholly unacceptable  because
it is neither the pleaded case of the Commission nor the  counsel  appearing
on its  behalf  argued  that  the  concerned  officers  were  not  aware  of
Resolution dated 1.10.1994.  Therefore, the action of the  officers  of  the
Commission to destroy the record cannot but be termed  as  wholly  arbitrary
and unjustified. The sole object of this exercise appears to  be  to  ensure
that in the event of challenge to the result of  the  selection,  the  Court
may not be able to scrutinize the record for  the  purpose  of  finding  out
whether the selection was fair and objective  or  the  candidates  had  been
subjected to invidious discrimination.

17.   The learned Single Judge and the Division Bench of the High Court  did
not pay serious attention  to  the  blatant  violation  of  the  resolutions
passed by the Commission on the issue of destruction of the  record  of  the
selection and erroneously assumed that in  the  absence  of  allegations  of
malafides against the particular officials /  officers  of  the  Commission,
the Court was not required to go  into  the  legality  of  their  action  to
destroy the answer sheets within few days of declaration of  the  result  of
the selection.

18.   The OMR sheets produced for the first time before  this  Court  cannot
be  relied  upon  for  recording  a  finding  that  the  assessment  of  the
candidates’ performance in  the  written  examination  was  transparent  and
fair. If the  functionaries  of  the  Commission  were  confident  that  the
selection was not vitiated by any illegality, favouritism or  nepotism  then
they should not have destroyed the answer sheets  within  few  days  of  the
declaration of the result of the selection.

19.   The question which remains to be considered is as to what  relief,  if
any, can be given to the appellant. Since the record of selection  has  been
destroyed, it is not possible for this Court  to  consider  and  decide  the
appellant’s plea that the assessment  of  her  performance  in  the  written
examination was vitiated due to arbitrariness and lack  of  objectivity.  In
this scenario, the only possible course could be to  direct  the  Commission
to conduct fresh written test and interview. However, it will  not  be  fair
to  confine  the  fresh  selection  to  the  appellant  alone.   The   other
unsuccessful candidates, who could not  approach  the  High  Court  or  this
Court on account of ignorance or financial constraints  cannot  be  deprived
of their legitimate right to be again considered along  with  the  appellant
and any direction by the Court to consider the case of the  appellant  alone
would result in the violation of the doctrine of equality.

20.   In the result, the appeal is allowed  and  the  impugned  judgment  as
also the order passed by  the  learned  Single  Judge  are  set  aside.  The
Commission is  directed  to  hold  fresh  written  test  and  interview  for
considering  the  candidature  of  the  appellant  and  other   unsuccessful
candidates after giving them due intimation about the date, time  and  place
of the examination and interview.  This exercise should be completed  within
a period of four months from the date of receipt/production of  this  order.
The candidates who are selected on the  basis  of  the  exercise  undertaken
pursuant to this direction shall become entitled  to  be  appointed  against
the vacancies which may be available on the  date  of  finalisation  of  the
selection.  The parties are left to bear their own costs.


                                                …..……….....……..….………………….…J.
                                     [G.S. SINGHVI]



                                                    …………..………..….………………….…J.
                                     [SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
May 1, 2012.

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FOR OTHER DOCUMENTS REFER POINT 9,10, 11 OF " DOCUMENT REQUIRED IN WRIT PETITION FOR ANSWERSHEETS POST"

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