Dear Friends,
Now we will discuss the possible arguments of UPSC's Counsel . Friends we will get the short idea about their arguments from the arguments done by first appellate authority,UPSC, while denying answersheets and the arguments done by UPSC's counsel in High Court of Delhi in similar cases.:-
the process under the RTI Act. Such a course will needlessly delay matters."
Now we will discuss the possible arguments of UPSC's Counsel . Friends we will get the short idea about their arguments from the arguments done by first appellate authority,UPSC, while denying answersheets and the arguments done by UPSC's counsel in High Court of Delhi in similar cases.:-
- one such reply of Shri. Partha Mandal, is given here for reference:-
Following are the broad areas of arguments:-
1. petitioner didn't followed the complete RTI process and directly came to High Court.
2. as it is services matter petitiner should approch the Central Administrative Tribunal.
3. Aditya Bandopadhyay case is regarding CBSE and not UPSC.
4.Supreme Court has rejected denial of answersheet under section 8(1)(e) and not on section 8(1)(d)
5..Raw marks are present on answersheet , so, if we give answersheet under RTI act 2005, raw marks would be disclosed to the candidates, so answersheet can't be given.
6. we are applying for exemption from Aditya Bandopadhyay decision.
7.Recent Delhi High Court judgment in CBSE vs KATHPAL said that marks given by examiner can not be given under RTI act, 2005.
8.if we provide answersheets , it will create situation that 75 % of staff will be involved in it ,displacing other important work of commission.
9. evaluated answersheets have remarks of examiner on it ,so ,it may endanger their security , so, it can't be given under section 8(1)(g) of RTI act ,2005.
OUR COUNTER-ARGUMENTS TO IT:-
1.Hon,ble High Court of Delhi in WP (C) 218/2011 of High Court of Delhi:- in point 7 says that "This Court finds that with the law having been settled by this Court, as
affirmed by the Supreme Court, there is no need to relegate the Petitioners tothe process under the RTI Act. Such a course will needlessly delay matters."
so, there is no need to follow complete RTI procedure ,in case where law has been settled by Supreme court.
Even, according to Record Retention schedule , our answersheets are going to be destroyed six month from conclusion of examination or 45 days from display of marksheet on commission's website, i.e. 2nd july 2012, by the time our reply is received our answersheets will be destroyed, so, we can't wait for normal RTI procedure.
2. First of all ,we didn't got service,so ,it can't be service matter. But, it is RTI matter, so, we approched High Court and not Central Administrative Tribunal.
3.Assam Public Service Commission was one of the party in attached case to Aditya Bandopadhyay, so, this decision is also applicable to UPSC.
4 & 9. Supreme Court has elaborately discussed section 8 (1)(e) , as in point no 14 of said decision Hon'ble Apex Court says that,
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 subsection (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.
and in point no 27 said that,
and in point no 27 said that,
27. We, therefore, hold that an examining body does not hold the
evaluated answer-books in a fiduciary relationship. Not being information
available to an examining body in its fiduciary relationship, the exemption
under section 8(1)(e) is not available to the examining bodies with reference
to evaluated answer-books. As no other exemption under section 8 is
available in respect of evaluated answer books, the examining bodies will
have to permit inspection sought by the examinees.
From collective reading of both points ,it is clear that no exemption under section 8 ,is available regarding evaluated answersheet, Hon'ble Apex Court have only elaborately discussed section 8 (1)(e), as examination bodies has denied it on same ground prior to bandopadhay decision quoting 23/4/2007 order of
Hon'ble Central Information Commission, which also UPSC used to quote prior to bandopadhyay decision (for this refer documents in DOCUMENTS REQUIRED FOR WRIT PETITION OF ANSWERSHEET POST), so, supreme court has elaborately discussed only section 8 (1)(e) ,and in point 27 ,it has also rejected other grounds ,including section 8(1)(d) and section 8(1)(g).
5.when in Aditya Bandopadhyay case ,supreme court said that candidate have right to get their EVALUATED ANSWERSHEET under RTI act, it was implied in it that evaluated answersheet contains raw marks of candidate, so, now ,when, when Hon'ble Apex Court says examining bodies have to give evaluated answersheet under RTI, it itself imply that raw marks has to be given. so, whether to disclose raw marks or not is redundunt issue now.
6.if UPSC's Counsel says that, they are asking for exemption from above decision, then we can say that ,they should approch Hon'ble Supreme Court and High Court have no power to give exemption to any law held by Supreme court.
7.If they quote the recent High Court of Delhi judgment in CBSE vs KATHPAL , which says that marks given by examiner can not be given under RTI act.
We will differentiate our case from CBSE vs KATHAPL case by saying that ,the said decision was on GRADING SYSTEM and in our case UPSC apply the RANKING SYSTEM, so the said decision is not applicable to us.
AND, most importantly, it is High Court decision , and we are asking our right based on supreme court decision.
8.If they say that if they provide answersheet under RTI act, then 75% of commission's staff will be busy in such non-productive work.
Here we will quote Hon'ble Supreme Court judgment in ICAI vs Shaunak Satya , wherein Hon'ble Apex Court says that additional workload can't be defence for denial of information.
That the Hon’ble Apex Court in ICAI versus Shaunak H. Satya [2011 (8) SCC 781] has held that, “Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only trough transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act, as the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon”.
So, they can deny information by taking recourse to only section
8 , of RTI act, which is rejected in case of answersheet by
supreme court in Aditya Bandopadhyay decision.
If, they have any problem, they should ask govt to bring amendment to present RTI act, 2005. Till that time they don't have anyother option other than to give evaluated answersheet under RTI act,2005.
From collective reading of both points ,it is clear that no exemption under section 8 ,is available regarding evaluated answersheet, Hon'ble Apex Court have only elaborately discussed section 8 (1)(e), as examination bodies has denied it on same ground prior to bandopadhay decision quoting 23/4/2007 order of
Hon'ble Central Information Commission, which also UPSC used to quote prior to bandopadhyay decision (for this refer documents in DOCUMENTS REQUIRED FOR WRIT PETITION OF ANSWERSHEET POST), so, supreme court has elaborately discussed only section 8 (1)(e) ,and in point 27 ,it has also rejected other grounds ,including section 8(1)(d) and section 8(1)(g).
5.when in Aditya Bandopadhyay case ,supreme court said that candidate have right to get their EVALUATED ANSWERSHEET under RTI act, it was implied in it that evaluated answersheet contains raw marks of candidate, so, now ,when, when Hon'ble Apex Court says examining bodies have to give evaluated answersheet under RTI, it itself imply that raw marks has to be given. so, whether to disclose raw marks or not is redundunt issue now.
6.if UPSC's Counsel says that, they are asking for exemption from above decision, then we can say that ,they should approch Hon'ble Supreme Court and High Court have no power to give exemption to any law held by Supreme court.
7.If they quote the recent High Court of Delhi judgment in CBSE vs KATHPAL , which says that marks given by examiner can not be given under RTI act.
We will differentiate our case from CBSE vs KATHAPL case by saying that ,the said decision was on GRADING SYSTEM and in our case UPSC apply the RANKING SYSTEM, so the said decision is not applicable to us.
AND, most importantly, it is High Court decision , and we are asking our right based on supreme court decision.
8.If they say that if they provide answersheet under RTI act, then 75% of commission's staff will be busy in such non-productive work.
Here we will quote Hon'ble Supreme Court judgment in ICAI vs Shaunak Satya , wherein Hon'ble Apex Court says that additional workload can't be defence for denial of information.
That the Hon’ble Apex Court in ICAI versus Shaunak H. Satya [2011 (8) SCC 781] has held that, “Examining bodies like ICAI should change their old mindsets and tune them to the new regime of disclosure of maximum information. Public authorities should realize that in an era of transparency, previous practices of unwarranted secrecy have no longer a place. Accountability and prevention of corruption is possible only trough transparency. Attaining transparency no doubt would involve additional work with reference to maintaining records and furnishing information. Parliament has enacted the RTI Act providing access to information, after great debate and deliberations by the civil society and Parliament. In its wisdom, parliament has chosen to exempt only certain categories of information from disclosure and certain organizations from the applicability of the Act, as the examining bodies have not been exempted, and as the examination processes of the examining bodies have not been exempted, the examining bodies will have to gear themselves to comply with the provisions of the RTI Act. Additional workload is not a defence. If there are practical insurmountable difficulties, it is open to the examining bodies to bring them to the notice of the government for consideration so that any changes to the Act can be deliberated upon”.
So, they can deny information by taking recourse to only section
8 , of RTI act, which is rejected in case of answersheet by
supreme court in Aditya Bandopadhyay decision.
If, they have any problem, they should ask govt to bring amendment to present RTI act, 2005. Till that time they don't have anyother option other than to give evaluated answersheet under RTI act,2005.
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