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.
------------------------------------------------------------------------------------------------------------
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 :-
Secy. to the Govt.of India.
------------------------------------------------------------------------------------------------------------
Records Retention Schedule for Records pertaining to Substantive Functions:
.jpg)
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.
---------------------------------------------------------------------------------------------------------------------------------
FOR OTHER DOCUMENTS REFER POINT 9,10, 11 OF " DOCUMENT REQUIRED IN WRIT PETITION FOR ANSWERSHEETS POST"
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.
------------------------------------------------------------------------------------------------------------
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)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 - In this Act, unless the context otherwise requires, -
- "Board" means the Archival Advisory Board constituted under sub-section (1) of section 13;
- "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
- "Head of the Archives" means a person holding the charge of the Archives of the Union Territory Administration;
- "prescribed" means prescribed by rules made under this Act;
- "public records" includes -
- any document, manuscript and file;
- any microfilm, microfiche and facsimile copy of a document;
- any reproduction of image or images embodied in such microfilm (whether enlarged or not); and
- any other material produced by a computer or by any other device,of any records creating agency;
- "records creating agency" includes, -
- in relation to the Central Government, any ministry, department or office of that Government;
- 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;
- in relation to a Union Territory Administration, any department or office of that Administration;
- 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;
- "records officer" means the officer nominated by the records creating agency under sub-section (1) of section 5.
- (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 :-- supervision, management and control of the Archives.
- acceptance for deposit of public records of permanent, nature after such period as may be prescribed;
- custody, use and withdrawal of public records;
- arrangement, preservation and exhibition of public records;
- preparation of inventories, indices, catalogues and other reference media of public records;
- analyzing, developing, promoting and coordinating the standards, procedures and the techniques for improvement of the records management system
- ensuring the maintenance, arrangement and security of public records in the Archives and in the offices of the records creating agency;
- promoting utilization of available space and maintenance of equipments for preserving public records;
- tendering advice to records creating agencies on the compilation, classification and disposal of records and application of standards, procedures and techniques of records management;
- survey and inspection of public records;
- organizing training programmes in various disciplines of Archives administration and records management;
- accepting records from any private source;
- regulating access to public records;
- receiving records from delunet bodies and making arrangement for securing public records in the event of national emergency;
- receiving reports on records management and disposal practices from the records officer;
- providing authenticated copies of, or extracts from, public records;
- destroying or disposal of public records;
- obtaining on lease or purchasing or accepting as gift any document of historical or national importance.
- 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. - (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. - (1) The records officer shall be responsible for -
- proper arrangement, maintenance and preservation of public records under his charge;
- periodical review of all public records and weeding out public records of euphomeral value;
- 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;
- destruction of public records in such manner and subject to such conditions as may be prescribed under sub-section (1) of section 8;
- 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;
- periodical review for downgrading of classified public records in such manner as may be prescribed;
- 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;
- compilation of annual indices of public records;
- compilation of organizational history and annual supplement thereto;
- assisting the National Archives of India or, as the case may be, the Archives of the Union territory for public records management;
- 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;
- 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.
- (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. - (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. - 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.
- No public records bearing security classification shall be transferred to the National Archives of India or the Archives of the Union Territory.
- (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. - (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. - (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 :-- Secretary to the Government of India in the Ministry of Central Government dealing with Culture
- 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.
- Two representatives not below the rank of Joint Secretary in the Union Territory Administrations to be nominated by the Central Government.
- 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.
- Director General of Archives.
- The members nominated under clause (d) of sub-section (2) shall be paid such allowances as may be prescribed.
- The Board shall perform the following functions, namely :-
- advise the Central Government and Union Territory Administrations on matters concerning the administration, management, conservation and use of public records;
- lay down guidelines for training of Archivists;
- give directions for acquisition of records from private custody;
- deal with such other matters as may be prescribed.
- 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.
- 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.
- (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,- the period after which public records of permanent nature may be accepted under clause (b) of sub-section (2) of section 3;
- 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;
- 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;
- 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;
- 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;
- 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;
- exceptions and restrictions subject to which public records may be made available to a research scholar under sub-section (1) of section 12;
- 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;
- the allowances payable to members of the Board under sub-section (3) of section 13;
- the matters with respect to which the Board may perform its functions under clause (d) of section 14;
- any other matter which is required to be, or may be, prescribed.
- 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.
Secy. to the Govt.of India.
------------------------------------------------------------------------------------------------------------
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
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.
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.
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.
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.
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.
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.
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.
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.
---------------------------------------------------------------------------------------------------------------------------------
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:-
.jpg)
------------------------------------------------------------------------------------------------------------
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?
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?
---------------------------------------------------------------------------------------------------------
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 JURISDICTIONCIVIL 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.
---------------------------------------------------------------------------------------------------------------------------------
FOR OTHER DOCUMENTS REFER POINT 9,10, 11 OF " DOCUMENT REQUIRED IN WRIT PETITION FOR ANSWERSHEETS POST"
