Central Information Commission, New Delhi
File No.CIC/SM/A/2012/000135
Right to Information Act 2005 Under Section (19)
Date of Hearing 6.3.2012
Date of Order 27.3.2012
Name of the Applicant Ms. Shipra Sud
Name of the Public Authority CPIO, Union Public Service
commission
Brief Facts of the Case
1. The Case involves giving information to the RTI Applicant about the Civil
Services Preliminary Exams held in May/June 2011. The Commission has
taken cognisance of the Supreme Court order in UPSC vs. Shiv Shambu (SLP
23250/2008) and the order dated 30/09/2011 in Ajay Kumar Mishra vs. UPSC
(SLP (Civil) 32443/2010) which allows the Delhi High Court decision in LPA
No. 313/2007 to hold the field. The Delhi High Court in the said case had held:“
10. Aggrieved by the order of the Appellate Authority, the UPSC filed W.P. (C)
No.17583 of 2006 in this Court. The UPSC submitted before the learned Single
Judge that since the optional subject was not common to all the candidates and
could be one of the 23 offered, a methodology has to be developed to make
the
marks obtained in the different subjects comparable across candidates. This
necessitated deployment of the methodology of scaling of marks. A certain
scientific formula was used for scaling of the marks and as such the cut off was
implemented subsequent to the examination. According to the UPSC, if the cut
off
marks, the individual marks and the key answers to the questions were
disclosed,
it would enable unscrupulous candidates to reverse engineer and arrive at the
scaling system which was a carefully guarded secret. According to the UPSC
this
would undermine the very object of selecting the best candidate. It was further
argued before the learned Single Judge that the disclosure of the cut off marks
or the scaling method would enable short cut techniques by coaching institutes
which would reduce the examination process to the level of mere surmising
rather
than being a test of substantive knowledge. The UPSC also provided the
learned
Single Judge information concerning the screening methodology in a sealed
cover.
11. Learned counsel for the Respondents submitted before the learned
Single Judge that there was nothing secret about the scaling method since it
had
already been disclosed by the UPSC in an affidavit dated 20th March 2007 filed
by it before the Supreme Court in SLP (Civil) No. 23723 of 2002 (Union Public
Service Commission v. Satish Chandra Dixit). In the said affidavit the UPSC
had
explained that the scaling system followed by the Uttar Pradesh PSC was a
linear
method known as the Standard Deviation method whereas what was followed
by the UPSC was the Normalized Equipercentile
method.
12. After going through the contents of the sealed cover the learned
Single Judge found that the scaling methodology deployed by the UPSC stood
already disclosed in its counter affidavit filed in the Supreme Court. The
learned Single Judge rejected the argument that if the information was
revealed
a large number of dummy candidates would be made to take the examination
by
unscrupulous coaching institutes which would result in the alteration of scaling
of marks in certain specific subjects, thereby depriving meritorious students in
other papers from qualifying. The learned Single Judge held:
22 The sealed marks, employing the methodology revealed by the UPSC
before the Supreme Court, is clearly dependent upon the number of
candidates.
This is inherent in the formula employed itself. However, what the UPSC seems
to ignore is that the cutoff
mark itself would change. The scaling methodology
adopted by them, which seeks at normalizing the distribution curve, would take
care of the abnormalities (skewness) caused by the dummy candidates, if
any.?
13. As regards the likely misuse of this information by the coaching
institutes, the learned Single Judge observed:
“23. It is important to note that prior to the examination, the cutoff
mark
would not be known. Nor would it be known to any of the coaching institutes as
to how many candidates are going to appear in each of the optional papers.
Apart from this, it would also not be known to anybody as to what the
performance of any candidate would be in each of the papers. It is, therefore,
unfathomable that the coaching institutes would be able to undermine the
system
of examination by disclosure of the cutoff
mark of the previous and the actual
marks of the candidates of the previous year when the marks obtained in any
year
by different candidates is independent of the marks obtained by candidates in
any other year. The examination for each year is entirely independent of the
examinations of the other years. So, the data of one year would have no
bearing
on the data for the next year. The question papers would be different; the
candidates would be different; the composition of the number of candidates
taking each of the optional papers would be different. The cutoff
mark would
not be known prior to the examination and, therefore, revealing the data sought
by the respondents 2 to 24 in the present case would, in my view, have no
bearing on the sanctity of the examination system.?
14. By the impugned judgment the learned Single Judge declined to interfere
with
the directions given by CIC except that direction (ii) issued by the CIC was
modified to the extent that the cut off marks for the combined total of raw
General Studies marks and scaled optional paper marks was not required to be
disclosed. Direction (iii) was modified to the extent that UPSC would be
required to disclose the model answers.”
2. The Delhi high Court further held “17. At the outset we wish to observe that a
perusal of the documents submitted by the UPSC in a sealed cover, are not of
such a nature that can be characterised as secret, or of a type the disclosure of
which would not be in public interest. As regards the scaling methodology, as
already been pointed out by the learned Single Judge, this is no different from
what already stands
disclosed by the UPSC to the Supreme Court in its counter affidavit filed in SLP
(C) No. 23723 of 2002 and is therefore in the public domain. As regards the
apprehension expressed by the UPSC that the scaling formulation could be
deciphered first once the cutoff
marks and solution keys in respect of
individual subject disclosed, we fail to understand how if such information is
deciphered in relation to the examination that has already been conducted,
somehow it would enable the manipulation of the results of a preliminary
examination to be held in future.”
3. Finally Division Bench of the Delhi High Court held “19.....Further still, this
Court is
unable to understand the apprehension of the UPSC that by disclosing the
working
of the scaling methodology for the preliminary examination, merit can get
compromised and candidates with less merit would be selected. The whole
purpose of having three levels of examination i.e. preliminary examination,
main
examination and then interview, is to ensure that only meritorious candidates
are selected for government service. We are of the view that the apprehension
expressed by the UPSC is not wellfounded.”
4. The Law was further explicated in Ajay Kumar Mishra and Anr. vs. UPSC and
Anr. supra in which it was held by the Supreme Court “The grievance of the
Petitioners is that despite writing to the UPSC within 8 days of the declaration
of the results of the Civil Services (Preliminary) Examinations, 2010 seeking to
know the marks awarded to each of them as well as the cut off marks, the
intimation from the Central Public Information Officer (CPIO), UPSC declining
the information was received only recently. The justification shown for not
approaching the Appellate Authority of the UPSC and thereafter the Central
Information Commission (CIC), but directly filing
this writ petition, is that the Civil Services (Main) Examinations 2010
(?Mains?) are to be held on 29th October 2010, and therefore there is not
much
time left. The Petitioners expectation is that once the marks awarded to each
of them in the Prelims and the cutoff
marks are disclosed, they will be able to
demonstrate that they have been wrongly kept out of appearing in the Mains.
Reliance is placed on the decision of the learned Single Judge of this Court in
Union Public Services Commission v. Central Information Commission
(decision
dated 17th April 2007 in W.P (C) No. 17583 of 2006) and the decision of the
Division Bench of this Court in Union Public Service Commission v. Shiv
Shambu
(decision dated 3rd September 2008 in LPA No. 313 of 2007) affirming the
decision of the learned Single Judge.
3. Appearing on advance notice, Mr. Naresh Kaushik learned counsel for the
Union
Public Service Commission (?UPSC?) drew the attention of this Court to the
orders passed by the Supreme Court in Special Leave to Appeal (Civil) No.
23250
of 2008 (Union Public Service Commission v. Shiv Shambu). By an order dated
12th December 2008 the Supreme Court stayed the order dated 3rd
September 2008 of the Division Bench of this Court for a period of three
months and that stay
has continued thereafter. The SLP was listed last on 1st October 2010 and has
been directed to be listed next on 11th November 2010.
4. This Court finds that two of the issues decided by this Court in Union Public
Service Commission v. Shiv Shambu involved the disclosure of marks awarded
to
each of the applicants in the Prelims for the year 2006, the cutoff
marks and
the scaling system. Therefore, two of the prayers in the present petition are
similar to the prayers in the above case, the decision in which is pending
consideration before the Supreme Court.
5. In the considered view of this Court, as long as the Supreme Court does not
decide the above issues, and there is a stay granted of the judgment of the
Division Bench of this Court, which should be understood as a stay of the order
of the CIC in that case, this writ petition cannot be entertained.”
5. The present position is covered by the Supreme Court order dated 30/09/2011
wherein Supreme Court has observed that “In case, in future the UPSC
(Respondent No. 1) is faced with any difficulty with regard to supplying
information in relation to any examinations, the process of which remains
incomplete, it will be open to it to seek appropriate remedies in accordance with
the law”
Decision Notice
6. Central Information Commission has given innumerable decisions on the
disclosure of cut off marks to the candidates appearing in Civil Services Exams.
Some of them are
i) Shiv Sambu & others (CIC/MA/A/2006/00793 dated 30
November 2006)
ii) Ravi Jindal (CIC/MA/C/2006/00149 dated 19 January 2007)
iii) Ravi Jindal (CIC/WB/A/2007/00694 dated 27 October 2008)
iv) Prashant K Sahi (CIC/WB/A/2009/000809 dated 11 January
2011)
v) Ashish Gupta (CIC/WB/A/2010/000880SM
Dated 4/2/2011)
7. In this case, the UPSC has filed an affidavit. They have argued that the CSE is an
integrated threetier
examination system in which each tier leads to the next stage and
the examination is said to be complete only when all the three tiers are completed.
They have further argued that the disclosure of information about the marks in the
Preliminary Examination has the potential to derail the smooth conduct of the further
tiers of examination as the information can be used to cause frivolous complaints and
objections including court cases. Therefore, the UPSC is of the view that any
information regarding the CSE must be given only after the completion of the entire
threetier
system of examination process and not at any immediate stage.
8. We, however, find it difficult to agree with this line of argument. While we admit that the
CSE is a threetier
examination system, we do not agree with the argument that the
preliminary examination in any way contributes to the success or failure of a candidate
except by way of either eliminating him or allowing him to take the next stage of the
examination, namely, the Mains. In other words, the preliminary examination is a
stand alone test to eliminate a large number of candidates leaving a small number of
successful candidates to take the Mains. The results of the preliminary examination do
not contribute in any other manner to the final success or failure of a candidate in the
further CSE.
9. The argument of the UPSC that the disclosure of marks might derail the examination
system is also not very convincing. Even if the candidates get to know about their
marks in the preliminary examination, there is no way they can derail the remaining two
tiers or cause obstruction in holding the Mains. On the other hand, the disclosure of
the marks after the preliminary examination would help candidates to make an honest
assessment of their performance so that they can prepare better for the next
preliminary examination. If these marks are not disclosed immediately after the
preliminary examination is over and the candidates are made to wait for nearly one
year before accessing these marks, they would loose a whole year in the process and
would not know why they performed the way they did. Therefore, in our opinion, these
marks should be disclosed.
10. Delhi High Court in LPA No. 817/2010 took the similar view and held “Those
who are knocked out before the interview even and did not have a chance to
compete any further, are definitely entitled to know that they have not been
knocked out arbitrarily to deprive them from even competing any further.” This
is also the practice UPSC follows at the stage of Mains examination as UPSC
uploads the marks sheet of the unsuccessful candidates on its website within
15 days of declaration of results of Mains Examination based on the factual
matrix that qua the unsuccessful candidate the examination process has come
to an end.
11. The synchronised reading of the Supreme Court order, Delhi High Court order
and the decision of Full bench of the CIC quoted above leads us to conclude
that the RTI applicant is to be given the following information
A. The copies of her OMR Sheets for Paper 1 and Paper II in consonance with
Delhi High Court decision in Writ Petition (Civil) 747/2011 and LPA 817/2010
B. Sectional cutoff
in both papers, if any
C. Cutoff
for General category in Paper 1 and Paper II separately as per Delhi
High Court order in LPA 313/2007 which holds the field after the decision of the
Supreme Court in Special Leave to Appeal (Civil) Nos. 23250/2008 and
32443/2010.
12. The Examination Process qua the RTI Applicant Ms. Shipra Sud has come to
an end once the Mains Examination for 2011 has begun and she has not been
found fit to continue in the 3 stage selection process. We do not agree with the
UPSC that disclosure of the details of marks and the answer sheet (OMR
sheet) could potentially stall the entire examination process. The anticipation
that candidates can, armed with such information, approach higher courts and
obtain stay of the entire examination process or get orders to include
themselves is farfetched.
This would amount to fearing that higher courts
would not apply their minds when confronted with pleas from candidates and
would mechanically pass orders derailing the examination process or confer
benefits on undeserving candidates.
13. With these directions, the appeal is allowed. The copies of the order may be
given to the parties free of cost.
Satyananda Mishra
Chief Information Commissioner
Authenticated true Copies
(Vijay Bhalla)
Deputy Registrar
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ITEM NO.1 COURT NO.8 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
IA No.1 in
Petition(s) for Special Leave to Appeal (Civil) No(s).32443/2010
(From the judgement and order dated 08/10/2010 in WP No.6931/2010 of
the HIGH COURT OF DELHI AT NEW DELHI)
AJAY KUMAR MISHRA & ORS. Petitioner(s)
VERSUS
UNION PUBLIC SERVICE COMMISSION & ANR. Respondent(s)
(With appln(s) for clarification/direction and offie report)
Date: 30/09/2011 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE AFTAB ALAM
HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI
For Petitioner(s)/non-applicant
Mr. Murari Kumar, Adv.
for Mr. Sanjeev Anand, Adv. (NP)
For Respondent(s)/applicant
Mr. Gopal Subramanium, Sr. Adv.
Ms. Binu Tamta, Adv.
UPON hearing counsel the Court made the following
O R D E R
The entire process of the Civil Services
Examination, 2010 is now over and, therefore, this IA is
rendered infructuous.
In case, in future the Union Public Service
Commission (respondent No.1) is faced with any difficulty
with regard to supplying information in relation to any
examinations, the process of which remains incomplete, it
will be open to it to seek appropriate remedies in
accordance with law.
.....2/-
: 2 :
With the aforesaid observations, IA No.1 stands
disposed of.
(N.S.K. Kamesh) (S.S.R. Krishna)
Court Master Court Master
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